Preview
DOCKET NO.: CV12 6030214 SUPERIOR COURT
MICHAEL FAZZINO, ET AL JUDICIAL DISTRICT OF NEW HAVEN
Vv. AT NEW HAVEN
DANIEL CRUZ OCTOBER 30, 2013
of New Have:
SUPER REOURe
MEMORANDUM OF DECISION
OCT Ho 2012 IN RE: DEFENDANT’S MOTION TO DISMISS (#110)
CHIEF CLERK'S OFFICE jaintifis, Michael Fazzino, Alyson Wade, and Luke Wallace, filed a three count
complaint against the defendant Daniel Cruz seeking to recover money damages for personal injuries
they sustained as the result of a motor vehicle accident that occurred on January 16, 2011. In their
complaint, the plaintiffs allege that Michael Fazzino was operating his vehicle with Ms. Wade and
Mr. Wallace as passengers in the northbound lane of Interstate 91, when the defendant caused the
vehicle he was operating to crash into the rear of plaintiffs’ vehicle. The plaintiffs allege that the
crash was caused by the negligence and carelessness of the defendant, causing “damages and severe
personal injury” to plaintiffs. The defendant moved to dismiss the claims against him on the basis
that the court lacks subject matter jurisdiction. The defendant alleges that the claims against him are
barred by Connecticut General Statutes § 4-165 as well as the doctrine of sovereign immunity. He
claims that he is a Master Sargent in the UCONN police department, and was a state employee
acting
in his official capacity as an agent or employee of the state at the time of the subject motor
vehicle
accident. The plaintiff filed an objection and memorandum, alleging that the claims are not
barred
by either Connecticut General Statutes § 4-165 or the doctrine of sovereign immunity because
the
defendant was not acting in his official capacity as an agent or employee of the sate
at the time of
the accident. The court heard argument on the matter on October 21 » 2013.
Discussion
“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting
that the plaintiff cannot as a matter of law and fact state a cause of. action that should
be heard by the
court. ... A motion to dismiss tests, inter alia, whether, on the face of the record,
the court is without
jurisdiction.” (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn.
204, 210-21 1,897 A.2d
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71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d
1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). “The grounds which may
be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of
jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency
of service of process.” Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d
509 (1985), citing Practice Book § 143, now § 10-31. “Claims involving the doctrines of common-
law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court’s subject
matter jurisdiction.” Manifoldv. Ragaglia, 94 Conn. App. 103, 113-14, 891 A.2d 106 (2006). “The
subject matter jurisdiction requirement may not be waived by any party, and also may be raised by
a party, or by the court sua sponte, at any state of the proceedings, including on appeal.” Peters v.
Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). “When a... . court decides a
jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the
complaint in their most favorable light.” (Internal quotation marks omitted.) Kozlowski v.
Commissioner of Transportation, supra, 501.
“An evidentiary hearing is necessary when a court cannot make a critical factual
jurisdictional finding based on memoranda and documents submitted by the parties”. Ruisi v.
O'Sullivan, 132 Conn. App. 1, 5 (2013). The court has reviewed the memoranda submitted by the
plaintiffand defendant, as well as the deposition of the defendant taken September 25, 2013 attached
to the defendant’s memorandum. The defendant has also attached his “time card” for the date in
question.
I Connecticut General Statutes § 4-165 Immunity
The defendant argues that the court lacks subject matter jurisdiction over these claims,
because as a state employee acting within the course of his employment, he is afforded statutory
immunity pursuant to Connecticut General Statutes § 4-165.
General Statutes 4-165 provides in relevant part:
No state officer or employee shall be personally liable for damages or injury, not
wanton, reckless or malicious, caused in the discharge of his duties or within the
scope of his employment. Any person having a complaint for such damage or injury
2
shall present it as a claim against the state under the provisions of this chapter.
General Statutes 4-165 was intended to grant state officers and employees immunity we. ‘where
and because the state may be sued.’” McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600
(1981), quoting Spring v. Constantino, 168 Conn. 563, 571, 362 A.2d 871 (1975). Because it
abrogates the previously existing common law rights of redress against state officers or employees,
the statute must be strictly construed. Mckinley v. Musshorn, supra.
After carefully reviewing the defendant’s deposition and time card, the court concludes that
at the time of the accident, he was acting in his official capacity as a state employee and is subject
to the immunity afforded to him Connecticut General Statutes § 4-165. The plaintiffs have not
alleged wanton, reckless, or malicious conduct in the complaint.
Il. Sovereign Immunity
“[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore
a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) Housatonic Railroad
Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). “The principle
that state cannot be sued without its consent, or sovereign immunity, is well established under our
case law . . . [T]he practical and logical basis of the doctrine [of sovereign immunity] is today
recognized to rest . . . on the hazard that the subjection of the state and federal governments to
private litigation might constitute a serious interference with the performance of their functions and
with their control over their respective instrumentalities, funds, and property. . . Exceptions to this
doctrine are few and narrowly construed under our jurisprudence.” (Citations omitted; internal
quotation marks omitted.) Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d
668 (2011).
“In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an
action against the state for monetary damages without authorization from the claims commissioner
to do so.” (Citations omitted: internal quotation marks omitted.) DiPietro v. Dept. of Public Safety,
126 Conn. App. 4414, 418, 11 A.3d 1149, cert. granted on other grounds, 300 Conn. 932, 17 A.3d
69 (2011), appeal withdrawn, June 26, 2012. “When sovereign immunity has not been waived, the
claims commissioner is authorized by statute to hear monetary claims against the state and determine
3
whether the claimant has a cognizable claim. . . This legislation expressly bars suits upon claims
cognizable by the claims commissioner except as he may authorize, an indication of the legislative
determination to preserve sovereign immunity as a defense to monetary claims against the state not
sanctioned by the commissioner or other statutory provisions.” (Internal quotation marks omitted.)
Cox v. Aiken, 278 Conn. 204, 212 n.22 897 A.2d 71 (2006). Even in cases where the claims
commissioner denies or dismisses a claim, our statutes provide that the General Assembly may, in
certain circumstances, provide the plaintiff such a right. See General Statutes §§ 4-158, 4-159.
The defense of sovereign immunity may be raised for claims brought directly against state
employees acting in their official capacity. Mercer v. Strange, 96 Conn. App. 123, 128 (2006). The
fact that the state is not named as a defendant does not conclusively establish that the action is not
within the principle which prohibits action against the sovereign without its content. Miller v. Egan,
265 Conn. 301, 307 (2003).
In Gordon v. H.N.S. Management Co.,272 Conn. 81 (2004), our Supreme Court set forth the
following factors to consider when determining whether an action against an individual is actually
against the state and thus barred by the doctrine of sovereign immunity:
“(1) a state official has been sued; (2) the suit concerns some matter in which that official
represents the state; (3) that state is the real party against whom relief is sought; and (4) the
judgment, through nominally against the official, will operate to control the activities of the state or
subject it to liability.” Gordon v. H.N.S. Management Co., supra at 93-94.
Applying these factors, the court concludes that the present action is against the state. The
state will be liable for any judgment against the defendant as he was operating a state owned vehicle
in the course of his duties as a state official at the time of the accident. Therefore, he is entitled to
sovereign immunity.
For the foregoing reasons, the motion to dismiss is granted.
Vitale, J.
Preview
DOCKET NO.: CV12 6030214 SUPERIOR COURT MICHAEL FAZZINO, ET AL JUDICIAL DISTRICT OF NEW HAVEN Vv. AT NEW HAVEN DANIEL CRUZ OCTOBER 30, 2013 of New Have: SUPER REOURe MEMORANDUM OF DECISION OCT Ho 2012 IN RE: DEFENDANT’S MOTION TO DISMISS (#110) CHIEF CLERK'S OFFICE jaintifis, Michael Fazzino, Alyson Wade, and Luke Wallace, filed a three count complaint against the defendant Daniel Cruz seeking to recover money damages for personal injuries they sustained as the result of a motor vehicle accident that occurred on January 16, 2011. In their complaint, the plaintiffs allege that Michael Fazzino was operating his vehicle with Ms. Wade and Mr. Wallace as passengers in the northbound lane of Interstate 91, when the defendant caused the vehicle he was operating to crash into the rear of plaintiffs’ vehicle. The plaintiffs allege that the crash was caused by the negligence and carelessness of the defendant, causing “damages and severe personal injury” to plaintiffs. The defendant moved to dismiss the claims against him on the basis that the court lacks subject matter jurisdiction. The defendant alleges that the claims against him are barred by Connecticut General Statutes § 4-165 as well as the doctrine of sovereign immunity. He claims that he is a Master Sargent in the UCONN police department, and was a state employee acting in his official capacity as an agent or employee of the state at the time of the subject motor vehicle accident. The plaintiff filed an objection and memorandum, alleging that the claims are not barred by either Connecticut General Statutes § 4-165 or the doctrine of sovereign immunity because the defendant was not acting in his official capacity as an agent or employee of the sate at the time of the accident. The court heard argument on the matter on October 21 » 2013. Discussion “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of. action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-21 1,897 A.2d Jucgment entered, tn (O-=3° 4» (3 Counsel/self-rep. ind. notit ied TES Se520( By O JDNO Gitopy of inemo O otiner 2. Copy to Renorter of Judicial Decisions //0.20 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). “The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process.” Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, now § 10-31. “Claims involving the doctrines of common- law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court’s subject matter jurisdiction.” Manifoldv. Ragaglia, 94 Conn. App. 103, 113-14, 891 A.2d 106 (2006). “The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any state of the proceedings, including on appeal.” Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). “When a... . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.” (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 501. “An evidentiary hearing is necessary when a court cannot make a critical factual jurisdictional finding based on memoranda and documents submitted by the parties”. Ruisi v. O'Sullivan, 132 Conn. App. 1, 5 (2013). The court has reviewed the memoranda submitted by the plaintiffand defendant, as well as the deposition of the defendant taken September 25, 2013 attached to the defendant’s memorandum. The defendant has also attached his “time card” for the date in question. I Connecticut General Statutes § 4-165 Immunity The defendant argues that the court lacks subject matter jurisdiction over these claims, because as a state employee acting within the course of his employment, he is afforded statutory immunity pursuant to Connecticut General Statutes § 4-165. General Statutes 4-165 provides in relevant part: No state officer or employee shall be personally liable for damages or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury 2 shall present it as a claim against the state under the provisions of this chapter. General Statutes 4-165 was intended to grant state officers and employees immunity we. ‘where and because the state may be sued.’” McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981), quoting Spring v. Constantino, 168 Conn. 563, 571, 362 A.2d 871 (1975). Because it abrogates the previously existing common law rights of redress against state officers or employees, the statute must be strictly construed. Mckinley v. Musshorn, supra. After carefully reviewing the defendant’s deposition and time card, the court concludes that at the time of the accident, he was acting in his official capacity as a state employee and is subject to the immunity afforded to him Connecticut General Statutes § 4-165. The plaintiffs have not alleged wanton, reckless, or malicious conduct in the complaint. Il. Sovereign Immunity “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). “The principle that state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . [T]he practical and logical basis of the doctrine [of sovereign immunity] is today recognized to rest . . . on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property. . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence.” (Citations omitted; internal quotation marks omitted.) Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011). “In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so.” (Citations omitted: internal quotation marks omitted.) DiPietro v. Dept. of Public Safety, 126 Conn. App. 4414, 418, 11 A.3d 1149, cert. granted on other grounds, 300 Conn. 932, 17 A.3d 69 (2011), appeal withdrawn, June 26, 2012. “When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine 3 whether the claimant has a cognizable claim. . . This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions.” (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 212 n.22 897 A.2d 71 (2006). Even in cases where the claims commissioner denies or dismisses a claim, our statutes provide that the General Assembly may, in certain circumstances, provide the plaintiff such a right. See General Statutes §§ 4-158, 4-159. The defense of sovereign immunity may be raised for claims brought directly against state employees acting in their official capacity. Mercer v. Strange, 96 Conn. App. 123, 128 (2006). The fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits action against the sovereign without its content. Miller v. Egan, 265 Conn. 301, 307 (2003). In Gordon v. H.N.S. Management Co.,272 Conn. 81 (2004), our Supreme Court set forth the following factors to consider when determining whether an action against an individual is actually against the state and thus barred by the doctrine of sovereign immunity: “(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) that state is the real party against whom relief is sought; and (4) the judgment, through nominally against the official, will operate to control the activities of the state or subject it to liability.” Gordon v. H.N.S. Management Co., supra at 93-94. Applying these factors, the court concludes that the present action is against the state. The state will be liable for any judgment against the defendant as he was operating a state owned vehicle in the course of his duties as a state official at the time of the accident. Therefore, he is entitled to sovereign immunity. For the foregoing reasons, the motion to dismiss is granted. Vitale, J.