Wayne Rioux v. Timothy Barry et al. (2012)

MEMORANDUM OF DECISION

This case had its beginnings in March of 2005, when the plaintiff Wayne Rioux, a retired state police lieutenant brought this action for damages against the following state police officers and employees: ¹  Trooper John Bement, Trooper Edward Capowich, Detective Karoline Keith, clerk Marisol Laboy, retired Trooper Kathy Lauretano, Trooper Mark Lauretano, Trooper Timothy Loomis, and retired Trooper John Sipper, and Trooper Mark Wallak (state Trooper's Union President) for vexatious litigation and intentional interference with contractual or beneficial relations regarding a police Internal Affairs (IA) investigation with respect to allegations of sexual harassment against the plaintiff which resulted in the plaintiff being disciplined but subsequently exonerated by the appeals board.

The case was first dismissed by the trial court, Licari, J., on the grounds that the defendants had absolute immunity [40 Conn. L. Rptr. 537].   On appeal the Supreme Court of Connecticut ² affirmed the judgment of the trial court with regard to the plaintiff's claim for intentional interference with contractual or beneficial relations, but reversed the claim for vexatious litigation and remanded this matter for further proceedings, Rioux v. Barry, 283 Conn. 338, 351 (2007) which is the matter now before this trial court.

This court heard all of the plaintiff's evidence and he rested.   The defendants then moved for judgment pursuant to General Statute § 4–165, “Immunity of State Officers and Employees from Personal Liability” ³ and Practice Book § 15–8, “Dismissal in Court Cases for Failure to Make Out a Prima Facie Case.” ⁴ The court finds that this matter should be dismissed under either authority, but will focus its discussion that the action should be dismissed under General Statutes § 4–165.

The defendants are or were state employees at the time that the plaintiff's claims are based and that they were acting within the scope of their employment as state employees.  General Statutes § 4–165 provides for absolute immunity for personal liability provided their actions were not wanton, reckless or malicious.   The plaintiff bases his claims on the survey taken by the defendants' union and responses with respect to his management style which was within the union's right to take and the employee's right to respond and on their testimony they gave before the IA investigation to which they had a duty as police officers and state employees to furnish.

The plaintiff focuses on Detective Keith's response to the survey, which obviously was the prime cause of the IA investigation resulting in his punishment and legal entanglement.   She complained in her response to the survey that:  “(1) the plaintiff had authored and distributed the ‘Twas the Night of Rumors' poem;  (2) the plaintiff had provided the ‘Flaming Projectile Gerbil’ article during roll call, and had shown the article around in the workplace;  (3) the plaintiff had referred to Detective Keith as a ‘best man’ during a lunchtime conversation;  and (4) the plaintiff had made inappropriate comments about female anatomy while watching reality television shows with Master Sergeant Peters in the Troop lunch room.”   All of the foregoing was true and it was an obvious attempt by the plaintiff to make humorous comments with respect to homosexual conduct which was the basis of the IA investigation.

The court finds that the plaintiff has failed to prove that such conduct on the part of Detective Keith in her response to the survey or any other defendant was wanton, reckless or malicious.   Accordingly Detective Keith and the other defendants could not be held personally liable pursuant to Section 4–165 of the General Statutes.

The court wishes to emphasize the failure of it to comment on the plaintiff's failure to make a prima facie case with respect to vexatious litigation or conspiracy to commit vexatious litigation does not reflect on its opinion that the plaintiff's failure to make such prima facie cases.

Judgment may enter in favor of the defendants and against the plaintiff together with taxable costs.

Robert I. Berdon

Judge Trial Referee

FOOTNOTES

FN1. In the original action Timothy Barry and Robert Duffy, state police officers, who initiated and reviewed the internal affairs investigation which the plaintiff was the subject were also defendants, but at trial on remand from the Supreme Court of Connecticut, the plaintiff withdrew his action against them..  FN1. In the original action Timothy Barry and Robert Duffy, state police officers, who initiated and reviewed the internal affairs investigation which the plaintiff was the subject were also defendants, but at trial on remand from the Supreme Court of Connecticut, the plaintiff withdrew his action against them.

FN2. The plaintiff appealed the judgment of the trial court to the appellate court and the Supreme Court transferred the appeal to itself..  FN2. The plaintiff appealed the judgment of the trial court to the appellate court and the Supreme Court transferred the appeal to itself.

FN3. Section 4–165 of Connecticut General Statutes entitled Immunity of state officers and employees from personal liability provides in part:  “(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.   Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.”.  FN3. Section 4–165 of Connecticut General Statutes entitled Immunity of state officers and employees from personal liability provides in part:  “(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.   Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.”

FN4. Section 15–8 of Connecticut Practice Book provides:  “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case.   The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”.  FN4. Section 15–8 of Connecticut Practice Book provides:  “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case.   The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

Berdon, Robert I., J.T.R.