Duguay v. Hopkins

• Decision Date: 23 August 1983
• Citation: 191 Conn. 222,464 A.2d 45
• Parties: Donald R. DUGUAY, Jr., et al. v. Rhoda J. HOPKINS et al.
• Court: Connecticut Supreme Court

Page 45

464 A.2d 45

191 Conn. 222

Donald R. DUGUAY, Jr., et al. v. Rhoda J. HOPKINS et al.

Supreme Court of Connecticut.

Argued March 9, 1983.

Decided Aug. 23, 1983.

Norman J. Voog, Waterbury, with whom, on the brief, were Donald C. Simmons and Mary M. Voog, Waterbury, for appellants (plaintiffs).

Patricia A. Lilly, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Wendell S. Gates, Asst. Atty. Gen., for appellees (defendant Gareth D. Thorne, commissioner of mental retardation, et al.).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, GRILLO and BIELUCH, JJ.

BIELUCH, Associate Justice.

The named plaintiff, a minor, brought this five count action by his mother and next friend against the defendants (1) Rhoda J. Hopkins, (2) the Fairfield County Hounds, (3) the Southbury Training School, and (4) Gareth D. Thorne, commissioner of mental retardation, for personal injuries suffered while he was a ward of the commissioner of mental retardation and a resident at the Southbury Training School. ¹ The child's mother, Annette Rickertsen, sought in the same action to recover the medical and hospital expenses which she incurred on behalf of her son, who was born on August 25, 1964.

The amended complaint alleges in the first count that the minor plaintiff was mentally retarded and committed on or about July 28, 1978, to the care of the superintendent of the Southbury Training School, a facility owned, operated and controlled by the state of Connecticut through its commissioner of mental retardation, the defendant Gareth D. Thorne, and that the school and its personnel were the agents, employees and/or servants of the commissioner and the state of Connecticut. It is further alleged that on or about August 21, 1978, the minor received substantial permanent physical injuries when run over, while apparently asleep in overgrown grass, by a tractor pulling a brush bull rotary mower owned by the defendant the Fairfield County Hounds and negligently operated by the defendant Rhoda J. Hopkins, against whom this count is directed. The second count alleges the negligence of the defendant the Fairfield County Hounds. The allegations of the third count recite that the injuries of the minor child were due to the carelessness and negligence of the defendants the Southbury Training School, Gareth D. Thorne, the commissioner of mental retardation, and the state of Connecticut, and their agents, servants and/or employees. In the fourth count it is alleged that the injuries of the minor plaintiff were due to the negligence and carelessness of the defendants the Fairfield County Hounds, Gareth D. Thorne, the commissioner of mental retardation, the Southbury Training School, the state of Connecticut and Rhoda J. Hopkins. The fifth count, on behalf of the plaintiff Annette Rickertsen, seeks to recover medical and hospital expenses from all the defendants.

The attorney general appeared for the state defendants (the Southbury Training School, Gareth D. Thorne, the commissioner of mental retardation, and the state of Connecticut) and filed an answer with special defenses in their behalf. The defendant Gareth D. Thorne alleged two special defenses. In his first defense, Thorne claimed that he was being sued in his official capacity as the commissioner of mental retardation, an agent of the state, and, therefore, that this was in effect a suit against the state which is immune from such liability. His second defense alleged that the court had no jurisdiction over the subject matter of this action. In its first defense to counts three, four and five, the state of Connecticut alleged immunity from the plaintiffs' suit, and in the second defense to these counts it alleged that the court lacked subject matter jurisdiction. The Southbury Training School alleged three special defenses; first, that it is not a legal entity capable of being sued in court; second, that it is immune from the plaintiffs' suit; and third, that the court lacks subject matter jurisdiction of this action.

The plaintiffs filed a motion to strike these special defenses, claiming that General Statutes (Rev. to 1981) § 19-5a, now § 19a-24, authorized suit against these defendants. ² The trial court denied this motion on the ground that § 19a-24 did not constitute a waiver of sovereign immunity. The state defendants thereafter moved for judgment on the special defenses and dismissal of the complaint against them. This was granted. In its memorandum of decision the court reaffirmed its earlier ruling on the plaintiffs' motion to strike, i.e., that § 19a-24 did not constitute a waiver of sovereign immunity. The court dismissed the action against the state defendants because the plaintiffs did not allege authorization of the claims commissioner under General Statutes § 4-160 ³ to bring this suit. From this judgment the plaintiffs have appealed.

The first claim of the plaintiffs is that § 19a-24 constitutes a waiver of sovereign immunity and permits persons injured at state training schools to bring action directly against the state of Connecticut by suing the commissioner of mental retardation without first obtaining permission from the commissioner of claims. Section 19a-24(a) provides that "[a]ny civil action for damages on account of any official act or omission of the commissioner of health services or the commissioner of mental retardation or any member of their staffs ... shall be brought against the commissioners in their official capacities and said commissioners shall be represented therein by the attorney general ...." The plaintiffs maintain that by enacting this statute, the legislature has carved an exception within the terms of § 4-142(2), which waives sovereign immunity and the requirement of seeking prior permission from the claims commissioner under § 4-160 for this action. Section 4-142 states that "[t]here shall be a claims commissioner who shall hear and determine all claims against the state except ... (2) claims upon which suit otherwise is authorized by law ...." They assert that a claim under § 19a-24 against the commissioner of mental retardation is such a suit "otherwise authorized by law." In support of their position they assert that the legislative history of § 19a-24 confirms that the legislature intended by this enactment to provide a statutory basis for an independent suit against the commissioner of mental retardation as evidenced by the earlier opinion of the attorney general's office when the plaintiffs' claim was first presented to the claims commissioner. The state defendants, also relying on the legislative history of § 19a-24, counter that the statute does not constitute a waiver of sovereign immunity and that the plaintiffs' claims should now be heard and determined by the claims commissioner.

The defense of sovereign immunity may be raised in a motion to dismiss an action against the state. See American Laundry Machinery, Inc. v. State, 190 Conn. 212, 459 A.2d 1031 (1983). Since the motion to dismiss filed by the state defendants "does not seek to introduce facts outside of the record it is equivalent to our former motion to erase and admits all well pleaded facts, the complaint being construed most favorably to the plaintiff. Brewster v. Brewster, 152 Conn. 228, 233, 206 A.2d 106 (1964)." Id., 190 Conn. at 217, 459 A.2d 1031. We review the trial court's decision to grant the state defendants' motion to dismiss, then, under the assumption that Duguay's injuries were due to the negligence and carelessness of the state defendants. It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases. ⁴ Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963).

This case is one of first impression. The dispositive issue before the court is whether the legislature intended § 19a-24 to waive the state's sovereign immunity and impose a direct liability to the plaintiffs on the commissioner of mental retardation, the Southbury Training School and the state of Connecticut as parties defendant in this action. The question whether the principles of governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination. Rogan v. Board of Trustees, 178 Conn. 579, 582, 424 A.2d 274 (1979); Bergner v. State, 144 Conn. 282, 286-87, 130 A.2d 293 (1957). The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed "by the use of express terms or by force of a necessary implication." Baker v. Ives, supra; Murphy v. Ives, supra.

To determine the legislative intent expressed in a statute, we look to its wording and to its history and basic policy as disclosed by preexisting legislation and the circumstances which brought about its enactment. Connecticut Light & Power Co. v. Sullivan, 150 Conn. 578, 581, 192 A.2d 545 (1963). If the words of a statute are clear, the duty of a reviewing court is to apply the legislature's directive since where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended, but what intention is expressed by the words that it used. P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983); Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980). The statute must be applied as its words direct. International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974).

Section 19a-24(a) provides that "[a]ny civil action for damages on account of any official act or omission of the commissioner of health services or the commissioner of mental retardation ... shall be brought against the...