Opinion
HHDCV165043425S
08-18-2017
Heather Scott v. Christopher N. Oakly
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103.00
Nawaz M. Wahla, J.
Present before the court is the defendant's motion to dismiss the plaintiff's complaint on the grounds that the court lacks subject matter jurisdiction because the defendant is entitled to statutory immunity pursuant to C.G.S. § 4-165. Additionally, defendant contends that the claims raised in count 7 are barred by the doctrine of mootness and/or ripeness. The motion to dismiss is granted for the reasons set forth below.
I. Procedural and Factual Context
On November 23, 2016, Heather Scott, a self-represented plaintiff filed summons and 7 counts complaint against Christopher Oakley, the defendant. The counts are framed as follows; count one negligence, count two breach of fiduciary duty, count three negligent infliction of emotional distress, count four intentional infliction of emotional distress, count five breach of covenant of good faith and fair dealing, count six negligent misrepresentation and count seven is breach of contract. On December 14, 2016, the office of Assistant Attorney General, State of Connecticut, filed an appearance to represent the defendant. Defendant, an attorney, was at the time a partner at the law firm of Oakley & Chizinski, LLC, a firm that had a contractual relationship with the Chief Public Defender to provide representation of indigent parents in Juvenile Court proceedings seeking termination of parental rights. On January 13, 2017, the defendant filed a memorandum of law in support of the motion to dismiss and then on January 17, 2017, the motion to dismiss was docketed in the pleadings. Considering the record and filing, the court concludes that motion was timely filed contrary to the plaintiff's assertion. The challenge to the subject matter jurisdiction can be raised at any time, not confined to time sensitivity.
" [Our courts have] have been solicitous of the rights of [self-represented] litigants and . . . will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party . . . Although we will not entirely disregard our rules of practice, we do give great latitude to [self-represented] litigants in order that justice may both be done and be seen to be done . . . For justice to be done, however, any latitude given to self-represented litigants cannot interfere with the rights of the other parties, nor can be disregarded completely our rules of practice." (Internal quotation marks omitted.) Marlow v. Starkweather, 113 Conn.App. 469, 473, 966 A.2d 770 (2009).
On January 18, 2017, plaintiff filed an amended complaint. On February 3, 2017, defendant filed an objection to putative amended complaint. On April 17, 2017, the plaintiff filed an opposition to motion to dismiss. The matter appeared on short calendar on May 15, 2017, and parties presented their arguments.
II. Standard of Review--Motion to Dismiss
" 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 quotations marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).
III. Doctrine of Common-law Sovereign Immunity and Statutory Immunity
The Appellate Court recently addressed the issue of common-law immunity and statutory immunity. Lawrence v. Weiner, 154 Conn.App. 592, 597, 106 A.3d 963, 967 (2015).
Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction . . . A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. (Citations omitted; internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (2006).
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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
General Statutes § 4-165(a) provides in relevant part that " [n]o 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 . . ." " In other words, state employees may not be held personally liable for their negligent actions performed within the scope of their employment . . . State employees do not, however, have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee." (Footnote omitted.) Miller v. Egan, 265 Conn. 301, 319, 828 A.2d 549 (2003).
Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to state employee immunity statute, implicate the court's subject matter jurisdiction; a determination regarding a trial court's subject matter jurisdiction is a question of law. See C.G.S.A. § 4-165 and Lawrence v. Weiner, 154 Conn.App. 592, 106 A.3d 963 (2015).
Under the common law, in order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts. See Lawrence v. Weiner, 154 Conn.App. 592, 106 A.3d 963 (2015).
Wanton, reckless, wilful, intentional, and malicious conduct under the common law tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. Lawrence v. Weiner, 154 Conn.App. 592, 106 A.3d 963 (2015).
The inquiry regarding whether a state employee was acting outside the scope of his or her employment, as required for application of immunity statute, is not necessarily always coterminous with an inquiry regarding whether the employee's conduct was wanton, reckless, or malicious. C.G.S.A. § 4-165.
In Lawrence v. Weiner, supra, the Appellate Court held:
General Statutes § 4-165 grants state employees immunity from suit from negligence claims regarding conduct arising out of the scope of their employment, but such immunity does not extend to conduct by a state employee that is alleged to be wanton, reckless, or malicious. In this appeal from the trial court's judgment of dismissal in a tort action brought by the plaintiff, Wilbert Lawrence, against the defendant, Henry Weiner, a state employee, the dispositive issue is whether the court properly concluded that the plaintiff's complaint failed, as a matter of law, to plead conduct that is wanton, reckless, or malicious. We conclude that the plaintiff's complaint failed to adequately allege conduct that is wanton, reckless, or malicious and is therefore barred by § 4-165. Accordingly, we affirm the judgment of the trial court. See Lawrence v. Weiner, 154 Conn.App. 592, 594, 106 A.3d 963, 965-66 (2015).
Turning to the present case, whether the plaintiff has alleged facts that, if proven, are sufficient to demonstrate that the defendant acted wantonly, recklessly, or maliciously. " In applying § 4-165, our Supreme Court has understood wanton, reckless or malicious to have the same meaning as it does in the common-law context . . . Under the common law, [i]n order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citation omitted; internal quotation marks omitted.) Manifold v. Ragaglia, 102 Conn.App. 315, 324, 926 A.2d 38 (2007).
IV. Discussion
In considering this case, the court will " examine the pleadings to decide if the plaintiff has alleged sufficient facts . . . with respect to personal immunity under § 4-165, to support a conclusion that the [defendant was] acting outside the scope of [his] employment or wilfully or maliciously . . . The question before us, therefore, is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity." (Citation omitted; internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).
Defendant contends that he defendant represented the plaintiff as assigned court-appointed counsel. Defendant asserts that he is immune from suit for malpractice. He is immune from suit for conduct not wanton, reckless, or malicious. That encompasses the entire complaint. Defendant raises that the alleged legal malpractice claim is premised upon the negligence of the defendant. Defendant argues that counts 1, 2, 3, and 6 are all framed in terms of negligence of some sort. The second count is titled as " breach of fiduciary duty" and it incorporates the allegations as in the first count. The first count is nothing but sounds in negligence. Additionally, counts 4, 5, and 7 are barred by the statutory immunity. Defendant points out that count 4 is framed and titled as intentional infliction of emotional distress. But the facts recited are nothing but tactical litigation choices made by the attorney in the course of trial or other proceedings or worst negligent conduct.
To assert a claim for intentional emotional distress, the plaintiff must satisfy the four elements: (1) the defendant intended to inflict emotional distress and knew or should have known that emotional distress was likely to result from his conduct; (2) the conduct was extreme and outrageous; (3) the conduct caused the plaintiff's distress; and (4) the plaintiff sustained severe emotional distress. Appleton v. Board of Education of the Town of Stonington, 254 Conn. 205, 210, 757 A.2d 1059, (2000). Outrageous conduct is that which exceeds " all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." Id. (Quoting Petyan v. Ellis, 200 Conn. 243, 254, 510 A.2d 1337 n.5 (1986).
The essence of the count 4 allegations is that defendant did not seek a continuance, plaintiff's perception of the defendant's unpreparedness before and after the trial, and not filing the motion to Revisit and the motion to Compel and did not call witnesses are nothing but negligence, etc. These assertions and allegations review concludes that they cannot rise to the level of malice required for a cause of action. Applying the applicable standard to the allegations of count 4, it does not meet the subject test.
Count 5 is captioned as " Breach of Covenant of Good Faith and Fair Dealings, " it simply states see 1-10 of the fourth count: intentional infliction of emotional distress. There is no other allegations or explanation whatsoever. The court is left with no choice except to dismiss for the reasons set forth above.
Count 7 is listed as " Breach of Contract." The allegations in this count, inter alia, contend that defendant breached the attorney-client contract of February 4, 2013, through incident listed in fourth count of this complaint as well as by his abusive demeanor. Defendant reiterates and court agrees that these allegations do not present wanton, reckless or malicious conduct. Hence, the breach of contract claim cannot sustain as a matter of law.
V. Conclusion
For the foregoing reasons, the motion to dismiss is granted.