Sharon Whitehead v. SEAT (2013)

MEMORANDUM OF DECISION ON DEFENDANT STATE OF CONNECTICUT DEPARTMENT OF TRANSPORTATION'S MOTION TO DISMISS

FACTS

The plaintiff, Sharon Whitehead, filed the original complaint in this action on December 10, 2012, arising from injuries she allegedly sustained while she was a passenger on a state-owned bus that collided with another vehicle.   In the second amended complaint filed on March 5, 2013, which is the operative pleading, the plaintiff alleges the following facts.   On January 26, 2011, the plaintiff was a passenger on a bus owned by the state of Connecticut department of transportation (state) or Southern Area Transit Authority (SEAT), or both.   The bus was driven by Leanne Hewitt, in her capacity as employee or agent of the state or SEAT, or both.   While traveling on Route 85 in Waterford, Connecticut, the bus was involved in a collision with a motor vehicle driven by Lauren Palumbo and owned by Sherry Main. The plaintiff suffered numerous injuries as a result of the collision.

The plaintiff's complaint contains six counts, alleging various causes of action against the state, SEAT, Hewitt, Palumbo and Main. In counts one through three, which are the counts pertinent to this motion, the plaintiff alleges that the state, SEAT and Hewitt are liable for Hewitt's negligent and reckless operation of the bus.   Specifically, count one alleges negligence, count two alleges recklessness under General Statutes § 14–295 and count three alleges common-law recklessness.

On March 11, 2013, the state filed this motion to dismiss on the ground that this court lacks subject matter jurisdiction over the claims against the state because they are precluded by the doctrine of sovereign immunity.   The motion was accompanied by a memorandum of law.   The plaintiff filed a written objection to the motion on March 20, 2013, and the state filed a reply on April 11, 2013.   The defendant's motion was argued before the court on April 15, 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.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003);  see also Practice Book § 10–31(a)(1).  “Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ․ A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.”  (Internal quotation marks omitted.)  Johnson v. Rell, 119 Conn.App. 730, 734–35, 990 A.2d 354 (2010).

“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 ․ In this regard, a court must 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.”   (Internal quotation marks omitted.)  Id., 735.  “Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).

The state moves to dismiss the claims against it on the ground that the court lacks subject matter jurisdiction as a result of the state's sovereign immunity.   Specifically, the state argues that there is no statutory waiver of sovereign immunity that would permit this suit against the state;  that General Statutes § 52–556 allows suit against the state only for motor vehicle accidents caused through the negligent operation of a motor vehicle by a “state official or employee”;  and that Hewitt was neither a state official nor a state employee when operating the SEAT bus.   In support of this position, the state submitted two affidavits:  (1) an affidavit of Hewitt, stating that she was an employee of SEAT at the time of the accident and has “never been an employee or official of the state of Connecticut,” and (2) an affidavit of Gary Reardon, director of the payroll division of the office of the state comptroller, stating that, from 1990 to present, there are no payroll records that indicate Hewitt was an official or employee of the state of Connecticut.¹

The plaintiff counters that the claims against the state fall within the scope of § 52–556 because Hewitt was an agent of the state when the collision occurred.   The plaintiff does not dispute the state's assertion that Hewitt was an employee of SEAT and not of the state.   The plaintiff argues that § 52–556 was intended to apply to agents of the state despite its language only referencing state officials and employees.²  For the reasons set forth below, the court concludes that § 52–556 does not waive the state's sovereign immunity for injuries caused through the negligent operation of a motor vehicle by an agent of the state who is not a state official or employee.

“[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, supra, 301 Conn. 274.  “That a sovereign state is immune from suit, unless it consents to be sued, is the settled law of Connecticut.”   (Internal quotation marks omitted.)  Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990).  “The question whether the principles of governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination” and, thus, “[s]overeign immunity may be waived only through a statute.”  (Internal quotation marks omitted.)  Cooper v. Delta Chi Housing Corp. of Connecticut, 41 Conn.App. 61, 64, 674 A.2d 858 (1996).

The statute at issue in this case, § 52–556, creates such a waiver.   Section 52–556 provides that:  “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.”  (Emphasis added.)  “[Section] 52–556 creates a cause of action against the state and represents a statutory exception to the common law rule of sovereign immunity.”  Rivera v. Fox, 20 Conn.App. 619, 622, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

The present issue is whether, viewing the plaintiff's complaint in the light most favorable to the plaintiff, the § 52–556 waiver of sovereign immunity in cases of “negligence of any state official or employee” extends to this case of alleged negligence of an agent of the state.   There is no appellate authority directly on point to this issue.   See MacLean v. Perry, Superior Court, judicial district of New London, Docket No. CV 11 6009597 (February 16, 2012, Martin, J.) (53 Conn. L. Rptr. 497).³

The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 808, 12 A.3d 852 (2011).

This state's statutory “plain meaning rule,” General Statutes § 1–2z, provides as follows:

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

This court finds no reason to go beyond the text of § 52–556 to ascertain its meaning, particularly the meaning of the four words, “state official or employee,” except to find that the adjective “state” modifies both “official” and “employee.”

Increasing the plaintiff's present burden, statutory waivers of sovereign immunity must be narrowly construed.  Cooper v. Delta Chi Housing Corp. of Connecticut, supra, 41 Conn.App. 64.  “[T]he state's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication.”  (Internal quotation marks omitted.)  Lacasse v. Burns, supra, 214 Conn. 468.  “[T]his court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed ․ Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity.”  (Citation omitted;  internal quotation marks omitted.)  Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 691, 894 A.2d 919 (2006);  see also Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983).  “Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.”  (Internal quotation marks omitted.)  Board of Education v. Naugatuck, 70 Conn.App. 358, 376, 800 A.2d 517 (2002), rev'd on other grounds, 268 Conn. 295, 843 A.2d 603 (2004).

Our Superior Court decisions have consistently held that § 52–556 does not waive the state's sovereign immunity for claims of negligence against mere agents of the state.   In Lucarelli v. Rosson, Superior Court, judicial district of New Haven, Docket No. CV 01 0447538 (November 7, 2001, Robinson, J.) (30 Conn. L. Rptr. 617), the court held that a plow driver employed by a municipality, even if clearing snow from roads as an agent of the state, was not a state employee within the meaning of § 52–556.   In Pereira v. Rodriguez, Superior Court, judicial district of Hartford, Docket No. CV 10 6007617 (June 8, 2010, Domnarski, J.) (50 Conn. L. Rptr. 69), the court held that “ § 52–556 does not include operators who are agents and servants of the state” as distinguished from state officers and employees.   Pereira is directly on the present point because it involved a bus that was owned and insured by the state, but that was driven by someone who was not a state employee.   In MacLean v. Perry, supra, 53 Conn. L. Rptr. 497, the facts were similar to Pereira and to this case.   The court again found in favor of the state, stating that it “agrees with the reasoning of Lucarelli and Pereira and finds that § 52–556 applies only to state officials and employees.” ⁴  Id.

The state Supreme Court's decision in Sansone v. Bechtel, 180 Conn. 96, 429 A.2d 820 (1980), indicates how that court would decide the present issue.   Sansone involved a public school student who suffered injuries caused by the alleged negligence of the defendant teacher through infliction of excessive corporal punishment.   As a defense, the teacher sought immunity pursuant to General Statutes § 4–165, which grants state employees immunity from personal liability for negligence that occurs within the scope of their employment and, in turn, transfers that liability to the state.⁵  The sole issue in Sansone was whether the teacher qualified as a state employee for purposes of General Statutes § 4–165 when the teacher was employed not by the state but by a town board of education.   The Sansone court acknowledged that “a town board of education is an agent of the state,” but concluded that the teacher did not fit the definition of a state employee in § 4–165.   Sansone v. Bechtel, supra, 100–01.  “[T]eachers as employees of a town board of education are also not employed in the state government ․ Giving [§ 4–165] the strict construction which any statute in derogation of the principle of sovereignty must be given ․ we hold that ․ § 4–165 in particular do [es] not apply to teachers in local school systems.”  (Citation omitted.)   Id.

The present case provides a substantially similar scenario to Sansone, albeit under § 52–556.   In this case, the defendant SEAT is an agent of the state—just like the board of education in Sansone— and Hewitt is an employee of SEAT. In view of the clear text of § 52–556, the Sansone decision, General Statutes § 1–2z, and the Chatterjee, supra, decision mandating strict construction of waivers of sovereign immunity, this court can see no basis for denying the state's motion to dismiss.

The plaintiff argues that this court should follow Nisinzweig v. Kurien, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 96 0150688 (August 21, 2001, Tierney, J.) (30 Conn. L. Rptr. 342), rather than Lucarelli, Pereira and MacLean, and deny the state's motion.   In Nisinzweig, the state was not a defendant.   The defendants were sued by a student for injuries resulting from an accident that occurred while the student was riding on a public school bus.   The defendants asserted a special defense that, by transporting the child to school, they were acting as an agent of the state such that suit against them should be barred by the state's sovereign immunity.   The plaintiff moved to strike the special defense, arguing, inter alia, that any sovereign immunity was waived by § 52–556.   The court agreed with the plaintiff, finding that the state employee requirement was met because the special defense “conceded the operation of the motor vehicle was in an agency capacity for the State of Connecticut.”   This court does not find Nisinzweig apposite for two reasons.   First, the result of the § 52–556 argument was academic.   Because the state was not a party in Nisinzweig, the state's own sovereign immunity was not really involved.   The movants had no basis to claim sovereign immunity except as an agency of the state and if, as such, § 52–556 applied to them, sovereign immunity was waived.   Second, the Nisinzweig court's reasoning as to why an agent would qualify as an employee under § 52–556 is unclear and unpersuasive.

This court now joins the Lucarelli, Pereira and MacLean courts and holds that § 52–556 means no more than it says:  it applies to negligence claims against state officials and state employees.   The ordinary meaning of those terms excludes mere agents of the state and employees of agents of the state, including defendant Hewitt.

The state's motion to dismiss the claims against the state in counts one, two and three of the plaintiff's second amended complaint is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The state also argues that counts two and three should be dismissed, as to the state, because they allege recklessness, and the waiver of sovereign immunity in § 52–556 applies only to claims of negligence.   The present ruling makes it unnecessary to consider that argument..  FN1. The state also argues that counts two and three should be dismissed, as to the state, because they allege recklessness, and the waiver of sovereign immunity in § 52–556 applies only to claims of negligence.   The present ruling makes it unnecessary to consider that argument.

FN2. The plaintiff also argues that the motion to dismiss should be denied because it was filed after the plaintiff's request to revise and, therefore, it is untimely under Practice Book §§ 10–6 and 10–7.   That argument is unavailing.   A challenge to a court's subject matter jurisdiction can be raised at any time.  Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012).  “Unlike the requirements that apply to ․ other grounds for a motion to dismiss ․ [t]he 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 stage of the proceedings, including on appeal.”  (Internal quotation marks omitted.)   Manifold v. Ragaglia, 94 Conn.App. 103, 116–17, 891 A.2d 106 (2006)..  FN2. The plaintiff also argues that the motion to dismiss should be denied because it was filed after the plaintiff's request to revise and, therefore, it is untimely under Practice Book §§ 10–6 and 10–7.   That argument is unavailing.   A challenge to a court's subject matter jurisdiction can be raised at any time.  Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012).  “Unlike the requirements that apply to ․ other grounds for a motion to dismiss ․ [t]he 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 stage of the proceedings, including on appeal.”  (Internal quotation marks omitted.)   Manifold v. Ragaglia, 94 Conn.App. 103, 116–17, 891 A.2d 106 (2006).

FN3. In the plaintiff's memorandum of law in opposition to the motion, she acknowledges MacLean 's observation in this regard.   Paradoxically, she also claims Babes v. Bennett, 247 Conn. 256, 263–64, 721 A.2d 511 (1998), and Sullivan v. State, 189 Conn. 550, 555 n.7, 457 A.2d 304 (1983), as authority for the extension of § 52–556 to agents of the state.   In both Babes, a General Statutes § 52–572h liability allocation case, and Sullivan, a workers' compensation case, the pertinent actors were state employees, not mere agents.   In neither of those cases, was the present issue present, let alone decided..  FN3. In the plaintiff's memorandum of law in opposition to the motion, she acknowledges MacLean 's observation in this regard.   Paradoxically, she also claims Babes v. Bennett, 247 Conn. 256, 263–64, 721 A.2d 511 (1998), and Sullivan v. State, 189 Conn. 550, 555 n.7, 457 A.2d 304 (1983), as authority for the extension of § 52–556 to agents of the state.   In both Babes, a General Statutes § 52–572h liability allocation case, and Sullivan, a workers' compensation case, the pertinent actors were state employees, not mere agents.   In neither of those cases, was the present issue present, let alone decided.

FN4. MacLean involved a plaintiff's motion to strike the special defense of the defendant state that the plaintiff's negligence suit was barred by § 52–556.   This procedural variance, however, does not alter the application of MacLean 's holding to the present motion to dismiss..  FN4. MacLean involved a plaintiff's motion to strike the special defense of the defendant state that the plaintiff's negligence suit was barred by § 52–556.   This procedural variance, however, does not alter the application of MacLean 's holding to the present motion to dismiss.

FN5. General Statutes § 4–165 provides that:  “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.”  (Emphasis added.).  FN5. General Statutes § 4–165 provides that:  “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.”  (Emphasis added.)

Cole–Chu, Leeland J., J.