Burgess v. State

920 A.2d 383

50 Conn.Sup. 271

Christopher N. BURGESS v. STATE of Connecticut.

Richard F. Piotrowski v. STATE of Connecticut.

No. CV-03 0520679S.

No. CV-03 0520681S.

Superior Court of Connecticut, Judicial District at New Britain.

January 8, 2007.

Gary Constant, Bristol, for the plaintiff in the first case.

Gaffney, Kane & Vollmer, PC, for the plaintiff in the second case.

Michael Bullers, assistant attorney general, with whom was Richard Blumenthal, attorney general, for the defendant in both cases.

SCHUMAN, J.

INTRODUCTION

The principal issue in these two cases is whether the state claims commissioner has authority to waive the defendant state of Connecticut's sovereign immunity in suits against the state for money damages alleging willful and malicious misconduct. The court holds that the claims commissioner does have that authority.

I

Unfortunately, these two matters date back to 1994. On June 10, 1994, the plaintiffs, Christopher N. Burgess and Richard Piotrowski in the first and second cases respectively, sustained injuries when they fell off a cliff at Sunset Rock Park in Plainville. In June, 1995, they filed claims with the state claims commissioner seeking permission to sue the state for money damages. Plaintiff Piotrowski alleged that the state acted "willfully and/ or maliciously," while plaintiff Burgess alleged that his injuries were caused by the "negligence and carelessness and/or the willful or malicious acts of the State . . . ." In November, 2001, the claims commissioner issued a memorandum of decision denying permission to sue.¹

The commissioner found the following facts. There is no admission or other fee to enter the park. A sign at the park provided notice that the park closed at sunset. Another sign stated: "Danger Cliff, Natural Hazard." The plaintiffs gained entry through a chain link fence that was partially or fully knocked down on the date of the accident. The state department of environmental protection had, in previous years, repaired or replaced the fence and was aware of at least one other incident in which a person fell from the cliff located on the opposite side of the fence.

The commissioner also found that the plaintiffs had been to the park before, were aware of the closing time and were familiar with the presence and location of the cliff. One night in May, 1994, the Plainville police asked the plaintiffs to leave the park. Earlier in the evening of June 10, 1994, the plaintiffs and a third person went to the park and consumed from three to six beers. The plaintiffs returned to the park at 10:15 p.m., when the accident occurred.

The commissioner ruled that, because there was no admission fee to the park and because the state would have same defenses as a private person, the state would have a defense under the recreational use immunity statute.² The commissioner then ruled that the facts did not support a finding of willful conduct by the state that would constitute an exception to that immunity.³ Accordingly, the commissioner concluded that the plaintiffs had not presented a just claim and denied permission to sue.

On April 19, 2002, pursuant to General Statutes § 4-159, the General Assembly rejected the finding of the claims commissioner and granted permission to sue.⁴ The resolution provided: "That the recommendation of the Claims Commissioner, file numbers 15853 and 15854 of said commissioner that no award be granted to Christopher N. Burgess and Richard Piotrowski on their claims against the state in excess of seven thousand five hundred dollars and that permission to sue be denied, is rejected and Christopher N. Burgess and Richard Piotrowski are authorized to institute and prosecute to final judgment an action against the state to recover damages as compensation for personal injuries allegedly suffered by them on June 10, 1994. Such action shall be brought not later than one year from the date of the final adoption by the General Assembly of this resolution."

The plaintiffs filed suit on or about April 17, 2003. For reasons that are unclear, the Burgess file reflects no activity between July, 2003 and July, 2006 while the Piotrowski file reveals no activity between August, 2003 and February, 2005. The state filed a motion to dismiss in Piotrowski in April, 2005 but, also for reasons unknown to the court, the motion was not argued until December 18, 2006. At that time, the court also heard argument on the motion to dismiss in Burgess, which the state filed on November 21, 2006.

II

Each complaint includes counts alleging negligence, willful negligence, willful and malicious conduct, and nuisance. The state's principle argument is that the claims commissioner had authority to grant permission to sue only for simple negligence and, therefore, the legislature could and did do no more than that. The state accordingly moves to dismiss those portions of the complaint that allege willful misconduct and nuisance.⁵

The state relies on two general points. The first is the doctrine of sovereign immunity. The doctrine of sovereign immunity implicates the subject matter jurisdiction of the court and, therefore, is a basis for granting a motion to dismiss. See Miller v. Egan, 265 Conn. 301 313, 828 A.2d 549 (2003). Under the doctrine, the state is "immune from suit unless, by appropriate legislation, it authorizes or consents to suit." (Internal quotation marks omitted.) Mahoney v. Lensink, 213 Conn. 548, 555, 569 A.2d 518 (1990). "[S]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed." (Internal quotation marks omitted.) Babes v. Bennett, 247 Conn. 256, 262, 721 A.2d 511 (1998).

The second point is the applicable legislation. General Statutes § 4-165(a) (2006 Sup.) provides: "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." The state reasons that §§ 4-165 and 4-160, see note 2 supra, create a statutory scheme whereby a person would present a negligence claim to the claims commissioner under § 4-160, while a claimant who alleges aggravated misconduct, such as "wanton, reckless or malicious" behavior, should file suit against the state officer or employee individually.⁶ The state adds that an exception to the jurisdiction of the claims commissioner exists for "claims upon which suit is otherwise authorized by law including suits to recover similar relief arising from the same set of facts"; General Statutes § 4-142(2); and that a suit against a state employee individually for willful misconduct under § 4-165 is the type of similar suit to which the exception refers.

The state's interpretation of these statutes is a plausible but not exclusive one. An alternative approach focuses on the expansive language used in the claims authorization statutes. Section 4-160(a) provides without limitation that suit against the state may be authorized on "any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable." The term "claim" is also broadly defined to include "a petition for the payment or refund of money by the state or for permission to sue the state . . . ." General Statutes § 4-141.⁷ It is thus certainly reasonable to interpret the phrase "any claim" in § 4-160(a) to mean exactly that.

The resolution of this statutory uncertainty derives from several decisions of our appellate court, which have held that suits for money damages against the state based on alleged intentional of other aggravated misconduct must obtain initial authorization from the claims commissioner. The leading case is Miller v. Egan, supra, 265 Conn. at 301, 828 A.2d 549. In Miller, the plaintiff sued the state and state officers for both equitable and monetary relief alleging false imprisonment, civil conspiracy, and violations of constitutional rights. Id., at 306 n. 7, 828 A.2d 549. The court held that "the exception to sovereign immunity for actions in excess of statutory authority or pursuant to an unconstitutional statute, applies only to actions seeking declaratory or injunctive relief, not to those seeking monetary damages." Id., at 321, 828 A.2d 549. Thus, because sovereign immunity applied to all claims against the state for money damages, "a plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner." Id., at 317, 828 A.2d 549. Because the plaintiff had "not received permission from the office of the claims commissioner to bring this action for money damages against the state . . . sovereign immunity [barred] such an action . . . ." Id., at 325, 828 A.2d 549.

In at least two subsequent cases, our appellate courts have similarly held that claims for money damages against the state or state officers acting in their official capacity arising from intentional misconduct must first receive authorization from the claims commissioner.⁸ In Prigge v. Ragaglia, 265 Conn. 338, 828 A.2d 542 (2003), our Supreme Court concluded that sovereign immunity barred claims for monetary damages arising from alleged violations of constitutional rights and intentional infliction of emotional distress because "the plaintiffs have not received permission from the office of the claims commissioner to bring their claims for money damages against the state." Id., at 349, 828 A.2d 542. Further, in Tuchman v. State, 89 Conn.App. 745, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005), the plaintiffs sought equitable and monetary relief arising from the state's alleged refusal to grant them a hazardous waste shipping permit and its...