Shay v. Rossi, (SC 16212)

• Court: Supreme Court of Connecticut
• Citation: 253 Conn. 134,749 A.2d 1147
• Decision Date: 03 May 2000
• Docket Number: (SC 16212)
• Parties: STEPHEN SHAY ET AL. v. LINDA D'AMARIO ROSSI ET AL.

253 Conn. 134
749 A.2d 1147

STEPHEN SHAY ET AL.
v.
LINDA D'AMARIO ROSSI ET AL

(SC 16212)

Supreme Court of Connecticut.

Argued January 12, 2000.

Officially released May 3, 2000¹

Borden, Norcott, Katz, Palmer, Sullivan, Vertefeuille and Callahan, JS.

253 Conn. 136

Donald McPartland, with whom was W. Fielding Secor, for the appellants-appellees (plaintiffs)

Carolyn K. Querijero, assistant attorney general, with whom were Michael R. Bullers, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and John E. Tucker, assistant attorney general, for the appellees-appellants (defendants).

Opinion

BORDEN, J.

This appeal and cross appeal raise significant issues regarding the meaning and scope of the doctrine of sovereign immunity, and the relationship between that doctrine and General Statutes ? 4-165.²

253 Conn. 137

More specifically, the appeal and cross appeal raise the following issues, namely, whether: (1) the denial by the trial court of a motion to dismiss on the grounds of sovereign immunity is an appealable final judgment; (2) the trial court properly declined to dismiss the complaint of the plaintiffs against the defendants in their official capacities on the ground that the doctrine of sovereign immunity does not protect them; and (3) the trial court properly dismissed the complaint against the defendants in their individual capacities on the ground that the plaintiffs had not sufficiently established that the defendants did not have immunity under ? 4-165

The plaintiffs, Stephen Shay, Kyle Shay, Kelsey Shay, Maggie Shay and Amelia Shay,³ appeal,⁴ and the defendants, Linda D'Amario Rossi, Carl Graham-Leichner, Robert W. Murphy III and Christine Lupke,⁵ cross

253 Conn. 138

appeal⁶ from the judgment of the trial court: (1) dismissing the plaintiffs' complaint against the defendants in their individual capacities; and (2) declining to dismiss the complaint against the defendants in their official capacities. In their appeal, the plaintiffs claim that, in response to the defendants' motion to dismiss, they made a sufficient showing that the defendants, in their individual capacities, had acted wantonly, recklessly or maliciously so as to bring their conduct within the exception to the statutory immunity provided by ? 4-165. In their cross appeal, the defendants claim that: (1) the denial of a motion to dismiss based on sovereign immunity is a final judgment for purposes of appeal; and (2) on the merits of their cross appeal, the trial court improperly denied their motion to dismiss the complaint against them in their official capacities. We conclude that: (1) the denial of a motion to dismiss based on sovereign immunity is a final judgment for purposes of appeal; (2) the trial court properly denied the defendants' motion to dismiss the complaint against them in their official capacities; and (3) the trial court improperly dismissed the complaint against the defendants in their individual capacities. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The plaintiffs brought this fifteen count complaint⁷ against the defendants in both their official and individual capacities. The defendants moved to dismiss the

253 Conn. 139

entire complaint. As to the counts against the defendants in their official capacities, they moved to dismiss on the ground of sovereign immunity. As to the counts against the defendants in their individual capacities, they moved to dismiss on the ground that they were immune under ? 4-165. The trial court denied the motion to dismiss the complaint against the defendants in their official capacities, granted the motion to dismiss the complaint against the defendants in their individual capacities, and rendered judgment accordingly. This appeal and cross appeal followed.

I

We first address the procedural posture in which this appeal is presented to us. In their motion to dismiss, the defendants challenged the sufficiency of the plaintiffs' allegations to overcome the doctrines of sovereign immunity and statutory immunity, and also presented certain affidavits that incorporated numerous documents, attached thereto, bearing on the events in question.⁸ The plaintiffs did not present any counteraffidavits, did not question the accuracy of the facts stated in the affidavits, and stated at oral argument before this court that, in their view, the affidavits in question simply verified their allegations. Thus, they did not in the trial court, and do not in this court, claim that the affidavits created questions of fact that would have necessitated an evidentiary hearing on the defendants' motion. The defendants claim that, because the plaintiffs have not challenged any of the facts stated in the affidavits, their allegations must be viewed in light of the undisputed facts established by them. The trial court, however, did

253 Conn. 140

not advert to the affidavits, and ruled on the motion solely on the basis of the plaintiffs' allegations.

This procedural posture implicates two different lines of cases. One line of cases, applicable to cases in which the parties present a motion to dismiss solely on the basis of the allegations of the complaint, holds that "we examine the pleadings to decide if the plaintiff has alleged sufficient facts: (1) with respect to sovereign immunity, to support a conclusion that the defendant acted in excess of his statutory authority; and (2) 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. [Gurliacci v. Mayer, 218 Conn. 531, 542, 590 A.2d 914 (1991)]; see Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988)." Antinerella v. Rioux, 229 Conn. 479, 489, 642 A.2d 699 (1994). In doing so, moreover, we construe the pleadings broadly in favor of the plaintiff. Id., 490. The second line of cases holds that "[w]here ... as here, 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. Garden Mutual Benefit Assn. v. Levy, 37 Conn. Sup. 790, 791, 437 A.2d 141 (1981)." Barde v. Board of Trustees, supra, 62; see Practice Book ? 10-31.⁹ Both lines of

253 Conn. 141

cases, however, are premised on the further principle that, although allegations of fact are to be read broadly in favor of the plaintiff, allegations that state conclusions of law are not given such presumptive validity. See Barde v. Board of Trustees, supra, 65-66; American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983).

In the present case, the defendants accompanied their motion to dismiss with affidavits the contents of which the plaintiffs do not dispute. There are certain allegations in the complaint, however, discussed in more detail in part II of this opinion, which, although disputed by the defendants in their brief in this court, either were not specifically contested or were not addressed in their affidavits. Under these circumstances, therefore, we read the factual allegations of the plaintiffs' complaint tempered by the light shed on them by the defendants' affidavits. With respect to those factual allegations, however, that were not disputed by those affidavits either directly or by implication, we construe them broadly in the plaintiffs' favor and presume them to be true for purposes of the motion to dismiss.

II

With this procedural posture in mind, we turn to those facts that are undisputed for purposes of the motion to dismiss, as disclosed by the allegations of the complaint and the affidavits. Those facts are as follows.

On the morning of February 14, 1996, Kyle Shay tripped and fell at her home, in the town of New Milford, while holding Charlotte Shay, her youngest child, who was then approximately seven months old and was breast-feeding. Concerned that Charlotte might have been injured in the fall, Kyle called her family pediatrician, Diane M. D'Isidori, who recommended that Kyle take Charlotte to the New Milford Hospital emergency

253 Conn. 142

room. D'Isidori also telephoned the emergency room to advise that Kyle and Charlotte were on their way, and that there should be no concern about child abuse. Kyle immediately drove Charlotte to the emergency room, where she was admitted at 8:30 a.m. At the emergency room, Charlotte was treated by the attending physician, Edouard Tavernier, who confirmed that she had a nondisplaced fracture of the left femur, with no evidence of additional fractures.

At 2:17 p.m., in a facsimile transmission to the state department of children and families (department), Tavernier reported Charlotte Shay's injury as a suspected case of child abuse. In his telephone report, he indicated that Kyle Shay's statement that she had fallen while holding Charlotte, who had a broken left femur with no other bruises or abrasions, led him to be suspicious of Kyle's statement. A skeletal survey of Charlotte was negative for other injuries. Tavernier also stated that the hospital records disclosed an extensive history of admissions for the other children, namely: on February 25, 1995, then two year old Amelia Shay reportedly had bumped her head on a table, and on April 15, 1994, she was "run over by [a] garden tractor"; and on July 17, 1995, then three year old Maggie Shay "ingested poison," on October 20, 1994, she "had a Tylenol overdose," and at one year of age, she had a laceration on her chin. The department records disclosed no prior involvement with the family.

The department called the New Milford police department, which sent an officer to investigate. At 2:45 p.m., the case was assigned to Murphy, and at the same time Graham-Leichner executed and delivered to Murphy an "Immediate Removal/96-Hour Hold of Child(ren)" pursuant to General Statutes (Rev....