Opinion
No. 4001378
August 8, 2005
I FACTS
The plaintiff, Michael Thomas, filed a complaint on November 8, 2004 against the town of Groton, patrolman Albert Smythe in his official capacity and David Vanesse alleging that on or about the late night of October 6, 2002 through the early morning of October 7, 2002, the plaintiff was a state police officer working in conjunction with the town of Groton Police Department and one of the town's employees, patrolman Albert Smythe. At the tine, Smythe was in control of a police K-9 unit named Ben. At some point on the date in question, Smythe intentionally directed Ben to attack the plaintiff. Count eleven of the complaint states that sometime after the attack occurred, the town conducted an investigation of the dog attack incident and, during the course of the investigation, officer Smythe and the town committed slander per se by making statements implicating that the plaintiff was acting improperly towards another town police officer and that, through these statements, Smythe and the town of Groton "sought to demean, harm, and disparage the plaintiff, Thomas, in his capacity as a Connecticut State Trooper."
The original complaint named Patrolman Albert Smythe as the first defendant with David Vanesse and the Town of Groton as additional defendants. The counts of the complaint are as follows: First Count: Assault as to Albert Smythe and the Town of Groton; Second Count: Battery as to Albert Smythe and the town of Groton; Third Count: False imprisonment as to Albert Smythe and the town of Groton; Fourth Count: Negligence as to Albert Smythe and town of Groton; Fifth Count: Negligence as to David Vanasse and town of Groton; Sixth Count: Recklessness; Seventh Count: 42 U.S.C. 1983 as to David Vanasse and town of Groton; Eighth Count: 42 U.S.C. 1983 as to Albert Smythe and town of Groton; Ninth Count: Connecticut Constitution, Art. 1 Sections 7 9 as to Albert Smythe and town of Groton; Tenth Count: Strict liability as to Albert Smythe and town of Groton; and Eleventh Count Slander as to Albert Smythe and town of Groton. The plaintiff has also filed two request for leave to amend, however, the court has not acted upon either requests.
II DISCUSSION
"As a preliminary matter, we set forth the applicable standard of review. The standard of review of a motion to dismiss is well established. In ruling upon whether a complaint survives a motion to dismiss, a court must CT Page 11952-i take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005). "The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. A determination regarding a trial court's subject matter jurisdiction is a question of law." Schub v. Department of Social Services, 86 Conn.App. 748, 750, 862 A.2d 382, cert. denied, 273 Conn. 920, 871 A.2d 1029 (2005). "Because [the] doctrine of sovereign immunity implicates [the] court's subject matter jurisdiction, [the] issue must be considered when [the] court becomes aware of it." Gordon v. H.N.S. Management Co., 272 Conn. 81, 106, 861 A.2d 1160 (2004). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
The defendant argues in motion to dismiss, #108.00, that the court should dismiss count eleven of the plaintiff's suit based on sovereign immunity. In the accompanying memorandum of law, the defendant relies upon the decisions of Sammartino v. Turn, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 99 070151 (February 28, 2003, Scholl, J.) ( 34 Conn. L. Rptr. 215) and Elinsky v. Marlene, Superior Court, judicial district of Hartford at New Britain, Docket No. CV96 0557659 (October 31, 1997, Hale, J.). The defendant maintains that by way of the courts' holdings in Sammartino and Elinshy, slander per se is an intentional act just like slander. Therefore, it only makes sense then that § 52-557n bars count eleven for slander per se because that count alleges "intentional conduct committed with actual malice" from which the town is immune under § 52-557n. Additionally, the defendant argues that the plaintiff's claim under § 7-465 is barred because the plaintiff did not provide the requisite notice of this law suit. CT Page 11952-j
The relevant portion of § 52-577n reads: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages CT Page 11952-l to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct."
The relevant portion of § 7-465 reads "(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . This section shall not apply to libel or slander proceedings brought against any such employee and, in such cases, there is no assumption of liability by any town, city or borough . . . No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose and written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section."
In response, the plaintiff argues that the court should deny motion to dismiss #108.00. Relying upon the March 4, 2005 amended complaint which is still pending before this court, the plaintiff argues within his memorandum that motion to dismiss #108.00 should be denied because the plaintiff's amended complaint filed on March 4, 2005 removes all allegations of intentional, willful or criminal conduct against the town. Thus, as the plaintiff would have it, motion to dismiss #108.00 is moot. The plaintiff further argues within his supplemental memorandum filed on April 4, 2005 that slander per se is a negligent act from which the town is not immune. Also, because General Statutes § 52-557n does not exclude or specifically mention negligence per se, the court must determine if negligence per se abrogates a town's immunity. Last, the plaintiff contends that the opinions of Sammartino and Elinsky are inapposite to the case at bar, are not controlling, and the plaintiff is free to proceed against the town.
The town's motion to dismiss on the grounds of sovereign immunity is denied because sovereign immunity is a defense reserved for the state, its entities or agents of which the town is neither. Therefore, the town cannot invoke sovereign immunity as a defense. Martinez v. Department of Public Safety, 263 Conn. 74, 818 A.2d 758 (2003). Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); Gordon v. H.N.S. Management Co., Inc., 272 Conn. 81, 91, 105 n. 12, 861 A.2d 1160 (2004). Second, the town's motion to dismiss is denied on the grounds of § 52-557n as raised in its memorandum of law is also denied because issues of governmental immunity must be raised by way of a special defense or a motion for summary judgment, not upon a motion to dismiss. Westport Taxi Services, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995); Violano v. Fernandez, 88 Conn.App. 1, 8-12, 868 A.2d 69, cert. granted, 273 Conn. 936 (2005); Outlaw v. Meriden, 43 Conn.App. 387, 395, 682 A.2d 1112, cert. denied, 239 Conn. 946, 686 A.2d 122 (1996); Marceau v. Norwich, 46 Conn.Sup. 197, 746 A.2d 836 (1999) ( 26 Conn. L. Rptr. 33). Third, the defendant's motion to dismiss is denied on the grounds of lack of notice under § 7-465 as argued in its memorandum because the plaintiff is not suing pursuant CT Page 11952-k to that statute. Gaudino v. East Hartford, 87 Conn.App. 353, 358, 865 A.2d 470 (2005); Altfeter v. Naugatuck, 53 Conn.App. 791, 799, 732 A.2d 207 (1999); Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); McKnerney v. Ransone, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 930531150 (May 19, 1995, Sheldon, J.) ( 14 Conn. L. Rptr. 279).
The court denies motion to dismiss #108.00 and the court has subject matter jurisdiction over the plaintiff's suit.
D. Michael Hurley, JTR