PPA v. State of Connecticut Department of Mental Health and Addiction Services (2014)

MEMORANDUM OF DECISION

Before the court is the defendants' motion to dismiss (# 110) portions of the plaintiff's complaint for lack of subject matter jurisdiction based on the statute of limitations.   For the reasons that follow, the motion to dismiss will be granted as to any claim alleged to have occurred prior to April 25, 2010.

I

FACTS

On April 25, 2013, the plaintiff, Mary Doe, by and through her conservator of person and next friend Jane Doe, served a writ, summons and five-count complaint on the defendants, the State of Connecticut Department of Mental Health and Addiction Services, Connecticut Valley Hospital, and Whiting Forensic Division of the Connecticut Valley Hospital, alleging violations of the psychiatric patient bill of rights, General Statutes § 17a–540 et seq.   The complaint alleges the following relevant facts.   Between July 1994, and January 19, 1996, the plaintiff was committed to Whiting Forensic Division ¹ (“Whiting”) on a restoration to competency order.   On January 18, 1996, the plaintiff was involuntarily committed pursuant to an order of the Probate Court.   During the period of July 1994, through May 2012, the plaintiff was a conserved person pursuant to a Probate Court order.   Between July 1994, and May 2012, the plaintiff spent eight years and five months confined under maximum security conditions at Whiting.   The period of incarceration includes the following dates:  July 7, 1994 to March 12, 1997;  November 25, 2003 to April 19, 2005;  November 20, 2007 to June 16, 2008;  December 24, 2008 to January 29, 2011;  and April 6, 2011 to May 18, 2012.

On August 30, 2013, the defendants filed a motion to dismiss portions of the plaintiff's complaint on the ground that it is barred by the statute of limitations.   The plaintiff filed an objection on September 20, 2013, to which the defendants filed a reply memorandum on December 5, 2013.   The matter came before the court and was heard on the December 23, 2013 short calendar.

II

DISCUSSIONAMotion to Dismiss Standard

“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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.”  (Internal quotation marks omitted.)  Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it 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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Citation omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

“[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense ․” (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).   Nevertheless, “[when] ․ a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ․ In such cases, the time limitation is not to be treated as an ordinary statute of limitation ․ but rather is a limitation on the liability itself, and not of the remedy alone ․ [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised ․ at any time ․ and may not be waived.”   (Internal quotation marks omitted.)  State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).

B

Parties' Arguments

According to the defendants, although the psychiatric patient bill of rights does not contain a statute of limitations, those portions of the complaint which raise claims alleged to have occurred prior to April 2010, are barred by the three-year statute of limitations applicable to torts.  General Statutes § 52–577.   In contrast, the plaintiff argues that the statute of limitations was tolled due to a continuing course of conduct.   According to the plaintiff, the course of conduct was continuous from 1994 to 2012, and the harm that resulted from events in 1994 cannot be parsed from harm or injury that was inflicted in 2012.   The plaintiff asserts that, even if the actions could be severed, it would be unjust to deprive the plaintiff of her opportunity to pursue claims developing prior to April 2010.   The plaintiff contends that, between 1994 and April 2010, she was living in conditions of imminent and serious threat to her health, safety and welfare, under full control of the defendants and their agents, and that she was not in any reasonable position to comply with the statute of limitations.   The plaintiff argues that she was not free from the threat of ongoing harm until May 2012.

In reply, the defendants argue that the continuing course of conduct doctrine should not be applied because the wrongs alleged by the plaintiff were not difficult to identify and the plaintiff could have brought an action at the time the wrongs occurred.   The defendants contend that the individual identifiable wrongs alleged in the complaint did not give rise to an evolving situation after the acts complained of were completed.   The defendants assert that the plaintiff does not identify any duty that was breached, which remained in effect after the initial wrong.   According to the defendants, if the plaintiff was aggrieved by her placement at Whiting on each of her five separate placements, she or her conservator could have filed an action alleging a violation of the psychiatric patient bill of rights each time she was allegedly inappropriately placed at Whiting.   The defendants argue that the court should find, as a matter of public policy, that the defendants did not have a continuing duty to the plaintiff after she was discharged from the care of Connecticut Valley Hospital into the community.   The defendants also argue that the court should find, as a matter of public policy, that the State should not be held liable to a patient who brings claims against it for care which was provided as far back as nineteen years ago.

C

Analysis

The parties do not dispute that the psychiatric patient bill of rights includes no express statute of limitations.  “[W]hen a statute includes no express statute of limitations, we should not simply assume that there is no limitation period.   Instead, we borrow the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued upon.”   Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007).   When the legislature enacted the psychiatric patient bill of rights, it created a new tort cause of action, unknown to the common law, and independent of common-law negligence.  Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990).   Therefore, a claim under the psychiatric patient bill of rights should be governed by the three-year statute of limitations found in General Statutes § 52–577, which provides that “no action founded upon a tort shall be brought within three years from the date of the act or the omission complained of.”

In the present case, the defendants were served with the writ, summons and complaint on April 25, 2013.   See Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004) (“[t]he time when the action is regarded as having been brought is the date of service of the writ upon the defendant” (internal quotation marks omitted)).   Therefore, any claim alleged to have occurred prior to April 25, 2010, would be time barred under General Statutes § 52–577, unless the statute of limitations was tolled by the continuing course of conduct doctrine.

“[T]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied ․ [T]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong ․ Where [the court] [has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act ․

“A violation is called ‘continuing,’ signifying that a plaintiff can reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant's unlawful conduct.   The injuries about which the plaintiff is complaining in [these] case[s] are the consequence of a numerous and continuous series of events ․ When a single event gives rise to continuing injuries ․ the plaintiff can bring a single suit based on an estimation of his total injuries, and that mode of proceeding is much to be preferred to piecemeal litigation despite the possible loss in accuracy.   But in [cases in which the continuing course of conduct doctrine is applicable, each incident increases the plaintiff's injury].   Not only would it be unreasonable to require him, as a condition of preserving his right to have [the full limitations period] to sue ․ to bring separate suits [during the limitations period] after each [incident giving rise to the claim];  but it would impose an unreasonable burden on the courts to entertain an indefinite number of suits and apportion damages among them.

“In between the case in which a single event gives rise to continuing injuries and the case in which a continuous series of events gives rise to a cumulative injury is the case in which repeated events give rise to discrete injuries, as in suits for lost wages ․ [T]he damages from each discrete act of discrimination would be readily calculable without waiting for the entire series of acts to end.   There would be no excuse for the delay.   And so the violation would not be deemed ‘continuing.’  ․”Our Supreme Court ․ explained that the doctrine applies to cases, such as negligent infliction of emotional distress, that “involv[e] a continuing course of conduct which over a period of years cause[s] injury.   Since usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm, it seems proper to regard the cumulative effect of the conduct as actionable.”  (Citations omitted;  internal quotation marks omitted.)  Fradianni v. Protective Life Ins. Co., 145 Conn.App. 90, 97–100, 73 A.3d 896, cert. denied, 310 Conn. 934, 79 A.3d 888 (2013);  see Watts v. Chittenden, 301 Conn. 575, 22 A.3d 1214 (2011).

In the present case, the statute of limitations was not tolled by the continuing course of conduct doctrine.   The plaintiff provides no authority that shows that, after each release from Whiting, there was an ongoing duty between the plaintiff and the defendants, or a special relationship between the parties that would give rise to such ongoing duty.   The plaintiff's allegations do not indicate that the defendants' duty to her continued to exist after each release from Whiting by virtue of later wrongful conduct of the defendants related to the prior act, or by virtue of a special relationship.   Although “[w]hat is meant by the ‘special relationship’ required by this principle is not clear ․ it does mean something more than evidence of either a terminated ․ or on-going relationship.”  (Citations omitted.)  Rivera v. Fairbank Management Properties, Inc., 45 Conn.Sup. 154, 159–60 n.1, 703 A.2d 808 [20 Conn. L. Rptr. 338] (1997).   One type of special relationship that has been recognized is that of a fiduciary.  Fichera v. Mine Hill Corp., 207 Conn. 204, 210, 541 A.2d 472 (1998).  “A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.”  (Citations omitted.)  Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987), overruled on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213, 682 A.2d 106 (1996).

However, evidence that the defendants were in a fiduciary relationship with the plaintiff during those period of incarceration at Whiting is not, in and of itself, sufficient to invoke the doctrine.   Any fiduciary relationship between the plaintiff and the defendants terminated each time she was released from Whiting and began, anew, each time she was recommitted.   Moreover, the plaintiff's complaint identifies the harm the occurred during each period of her incarceration at Whiting.   The plaintiff had three years from the date of each release to bring any claims against the defendants.   The plaintiff alleges her period of incarceration at Whiting includes the following dates:  July 7, 1994 to March 12, 1997;  November 25, 2003 to April 19, 2005;  November 20, 2007 to June 16, 2008;  December 24, 2008 to January 29, 2011;  and April 6, 2011 to May 18, 2012.   The defendants were served with the writ, summons and complaint on April 25, 2013, and, therefore, any claim alleged to have occurred prior to April 25, 2010, is time barred under General Statutes § 52–577.

Therefore, the motion to dismiss is granted as to any claim alleged to have occurred prior to April 25, 2010.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. Whiting Forensic Division of the Connecticut Valley Hospital is a facility for the diagnosis, observation or treatment of persons with psychiatric disabilities..  FN1. Whiting Forensic Division of the Connecticut Valley Hospital is a facility for the diagnosis, observation or treatment of persons with psychiatric disabilities.

Pickard, John W., J.