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WILBERT LAWRENCE v. HENRY WEINER
(AC 35378)
Keller, Prescott and Schaller, Js.
Argued October 16, 2014—officially released January 6, 2015
(Appeal from Superior Court, judicial district of
Hartford, Miller, J.)
Vincent F. Sabatini, for the appellant (plaintiff).
Nancy A. Brouillet, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Ann E. Lynch and Peter M. Haberlandt, assis-
tant attorneys general, for the appellee (defendant).
Opinion
PRESCOTT, J. 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 wan-
ton, 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.
The following facts are alleged in the plaintiff’s com-
plaint, which we assume to be true for purposes of this
appeal. The plaintiff was the teacher of an automotive
repair class at the State of Connecticut’s Vinal Technical
High School in Middletown. In March, 2010, he was
teaching his class when he experienced ‘‘an emergency
situation in which he needed to use the restroom facili-
ties.’’ As required by school policy, the plaintiff had
another staff member supervise his students during his
absence from the classroom. While the plaintiff was in
the restroom, however, a student was injured while
using a piece of machinery.
Later that day, the defendant, the school’s assistant
principal, ‘‘falsely reported the plaintiff to the Depart-
ment of Children and [Families (department)] . . . and
accused the plaintiff of physical neglect.’ ’’ In making
his report, the defendant failed to disclose that the
plaintiff was in the bathroom at the time of the accident,
and that another staff member was supervising the
plaintiff’s students in his absence. The defendant also
failed to wait for an investigation into the student’s
injury to be completed before making his report to the
department. One month later, the plaintiff was termi-
nated from his position at the school.
The plaintiff subsequently filed the present case
against the defendant in his individual capacity, raising
claims of defamation, vexatious litigation pursuant to
General Statutes § 52-568, Unfair Trade Practices pursu-
ant to General Statutes § 42-110a et seq., ‘‘false accusa-
tions,’’ negligent and intentional infliction of emotional
distress, and recklessness. The defendant moved to dis-
miss the plaintiff’s action, arguing that he was entitled
to statutory immunity pursuant to General Statutes §§ 4-
165 and 17a-101e (b).1 After hearing argument, the court
granted the defendant’s motion, and the plaintiff
appealed. Additional facts will be set forth as necessary.
The plaintiff raises two principal claims on appeal.2
First, he claims that the court improperly concluded
that the defendant was entitled to statutory immunity
under § 4-165. Second, he claims that before ruling on
the defendant’s motion to dismiss, the court was
required to hold an evidentiary hearing. For reasons
we now set forth, we reject both of these claims.
I
The plaintiff claims that the court improperly deter-
mined that the defendant was entitled to statutory
immunity pursuant to § 4-165. Specifically, the plaintiff
contends that § 4-165 does not afford the defendant
immunity because the defendant acted wantonly, reck-
lessly, and maliciously. The defendant responds that
the plaintiff’s action was properly dismissed because
his complaint failed to allege specific facts sufficient
to demonstrate that the defendant’s conduct fell within
an exception to the immunity provided by § 4-165. We
agree with the defendant.
We begin by setting forth the applicable standard of
review. ‘‘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.’’ (Inter-
nal quotation marks omitted.) Conboy v. State, 292
Conn. 642, 650, 974 A.2d 669 (2009).
‘‘Claims involving the doctrines of common-law sov-
ereign immunity and statutory immunity, pursuant to
§ 4–165, implicate the court’s subject matter jurisdic-
tion. . . . A determination regarding a trial court’s sub-
ject 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. Ragag-
lia, 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, constru-
ing 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 per-
sonally 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).
‘‘In the posture of this case, we 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).
We thus turn to the matter of whether the plaintiff
has alleged facts that, if proven, are sufficient to demon-
strate 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 negli-
gence, 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 indi-
cates 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. Ragag-
lia, 102 Conn. App. 315, 324, 926 A.2d 38 (2007).
The plaintiff bases his claim that the defendant acted
wantonly, recklessly, and maliciously on his assertion
in his appellate brief that the defendant knowingly made
a ‘‘false report’’ to the department. That assertion, how-
ever, overstates the scope of the plaintiff’s allegations.
Although the plaintiff does allege that the defendant
‘‘falsely reported’’ him to the department, his complaint
is devoid of any specific factual allegation that the
defendant did so knowingly or with knowledge of facts
that would have revealed to him that his report was
false. See Matthiessen v. Vanech, 266 Conn. 822, 832,
836 A.2d 394 (2003) (‘‘[r]ecklessness requires a con-
scious choice of a course of action either with knowl-
edge of the serious danger to others involved in it or
with knowledge of facts which would disclose this dan-
ger to any reasonable man’’ [internal quotation marks
omitted]). Consequently, we have no basis on which
to conclude that the defendant’s conduct was not, for
example, the result of justifiable ignorance, or that it
amounted to ‘‘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.’’ (Internal quotation marks omitted.)
Manifold v. Ragaglia, supra, 102 Conn. App. 324. The
allegation that the defendant either knew, or recklessly
disregarded that his report was false is, in the present
case, essential to demonstrating the requisite ‘‘state of
consciousness with reference to the consequences of
one’s acts’’; (internal quotation marks omitted) id.; that
must have existed for the defendant to have acted wan-
tonly, recklessly, or maliciously.
The plaintiff nevertheless argues that we may infer
that the defendant knew that his report was false at the
time he made it from other allegations in his complaint.
Specifically, he asserts that he ‘‘has alleged that the
defendant conducted a two day investigation into the
incident that occurred on March 10, 2010,’’ and that this
investigation should have revealed to him exculpatory
information about the plaintiff’s conduct within the time
period that the defendant was required to make his
report to the department.
This argument fails for two reasons. First, the defen-
dant was mandated by statute to make his report ‘‘as
soon as practicable but not later than twelve hours after
the mandated reporter has reasonable cause to suspect
or believe that a child has been abused or neglected or
placed in imminent risk of serious harm . . . .’’ General
Statutes § 17a-101b (a). Had he waited the two days
necessary for the investigation to be completed, he
would have violated § 17a-101b (a) and potentially sub-
jected himself to criminal prosecution. See General
Statutes § 17a-101a (b) (‘‘[a]ny person required to report
under the provisions of this section who fails to make
such report or fails to make such report within the
time period prescribed in sections 17a-101b to 17a-
101d, inclusive, and section 17a-103 shall be guilty of
a class A misdemeanor’’ [emphasis added]).
Second, the plaintiff’s argument is not supported by
what he has actually alleged in his complaint. The only
reference in the plaintiff’s complaint to an investigation
occurs in paragraph 12, in which he alleges that ‘‘[t]he
defendant reported the incident to [the department] on
March 10, 2010, despite the fact that the investigation
was not completed until on or about March 12, 2010.’’
This vague assertion, however, tells us nothing specific
about the investigation, except that it was completed
two days after the defendant reported the plaintiff to
the department. Significantly, the plaintiff does not
allege any facts supporting an inference that the defen-
dant actually conducted the investigation prior to mak-
ing the report, as the plaintiff asserts, or that the
investigation produced any exculpatory information
prior to the defendant making the report that could
have benefited the plaintiff.
The plaintiff finally argues that in reaching the conclu-
sion that he has not adequately pleaded wanton, reck-
less, or malicious conduct, the trial court failed both
to consider his allegations in the light most favorable
to him and to indulge every presumption favoring juris-
diction. He further contends that the court incorrectly
assessed the merits of his claims by failing to give suffi-
cient weight to various allegations in his complaint. We
find neither of these contentions persuasive.
With respect to the plaintiff’s first argument, we con-
clude, on the basis of our review of the court’s memo-
randum of decision, that the court properly assumed
all of the plaintiff’s allegations to be true and indulged
every presumption favoring jurisdiction. The fact that
the court nevertheless concluded, as do we, that the
plaintiff had failed to allege facts that, if proven, would
overcome the immunity provided by § 4-165, does not
establish that it failed to view his allegations in the
proper light.
As to his remaining argument, namely, that the court
failed to afford sufficient weight to some of his allega-
tions, the plaintiff states incorrectly the standard
applied to a motion to dismiss challenging a court’s
jurisdiction under § 4-165. In his main brief, he argues
that ‘‘[t]he court chose to ignore the substance of the
plaintiff’s complaint, namely, that the defendant know-
ingly made a false report to [the department]. Instead,
the court inferred from the complaint that the defendant
did not know the exculpatory information when he
made his report and concluded that the fact that the
defendant is a mandated reporter outweighs the defen-
dant’s requirement to make an honest report.’’
The court’s memorandum of decision reveals, how-
ever, that it did not infer that the defendant was
unaware of any exculpatory information concerning the
incident in the plaintiff’s classroom. Rather, its decision
manifestly turned on the plaintiff’s failure to allege in
his complaint that the defendant possessed that knowl-
edge at the time that he made his report to the depart-
ment. ‘‘[I]t is the burden of the party who seeks the
exercise of jurisdiction in his favor . . . clearly to
allege facts [sufficient] to invoke judicial resolution of
the dispute.’’ (Internal quotation marks omitted.) Lit-
vack v. Artusio, 137 Conn. App. 397, 402–403, 49 A.3d
762. 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.’’
(Emphasis added.) Martin v. Brady, supra, 261
Conn. 376.
The plaintiff further argues that ‘‘[t]he court also
chose to give little weight to the plaintiff’s allegations
regarding the fact that a substitute teacher, not the
plaintiff, was responsible for supervision. The plaintiff
explicitly alleges that a substitute teacher accepted and
assumed supervision of the classroom and that the stu-
dent was injured during that time.’’
Here, however, the plaintiff conflates the existence
of exculpatory information with the defendant’s knowl-
edge of that exculpatory information. Although the
plaintiff did allege that another teacher supervised his
classroom while he was in the bathroom, he made no
allegation that the defendant was aware of that fact at
the time that he made his report to the department.
Thus, the court did not fail to give proper weight to
the plaintiff’s allegations; it simply determined that the
mere allegation that exculpatory information existed
was, by itself, not sufficient to establish wanton, reck-
less, or malicious conduct on the part of the defendant.
Accordingly, we conclude that the plaintiff has failed
to allege facts from which we can infer that the defen-
dant’s conduct was indicative of such a state of mind
or that the conduct rose to the level of egregiousness
necessary to be considered wanton, reckless, or mali-
cious. See Martin v. Brady, supra, 261 Conn. 380. The
trial court therefore properly determined that the defen-
dant was entitled to immunity under § 4-165.3
II
The plaintiff next claims that the court was required
to hold an evidentiary hearing to resolve various issues
of fact before ruling on the defendant’s motion to dis-
miss. Specifically, the plaintiff claims that an issue of
fact exists as to whether the defendant acted wantonly,
recklessly, and maliciously. We find this claim unper-
suasive.
It is well established that ‘‘[i]n the absence of any
disputed facts pertaining to jurisdiction, a court is not
obligated to hold an evidentiary hearing before dismiss-
ing an action for lack of jurisdiction.’’ (Internal quota-
tion marks omitted.) Weihing v. Dodsworth, 100 Conn.
App. 29, 39, 917 A.2d 53 (2007); accord West Hartford
v. Murtha Cullina, LLP, 85 Conn. App. 15, 25, 857 A.2d
354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004);
Pinchbeck v. Dept. of Public Health, 65 Conn. App. 201,
209, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d
1029 (2001); see also Weinstein & Wisser, P.C. v. Corne-
lius, 151 Conn. App. 174, 182, 94 A.3d 700 (2014) (‘‘the
due process requirement of a hearing is required only
when issues of facts are disputed’’ [internal quotation
marks omitted]).4 In the present case, the defendant
did not dispute any of the facts alleged in the plaintiff’s
complaint. Rather, he argued that those facts, even if
assumed to be true, still failed to demonstrate that he
engaged in conduct falling within either of the two
immunity exceptions described in § 4-165.5 Thus, ruling
on the defendant’s jurisdictional challenge did not
depend on resolving any critical factual disputes, but
instead turned solely on the sufficiency of the plain-
tiff’s allegations.
The plaintiff argues, nonetheless, that an evidentiary
hearing remains necessary because the question of
jurisdiction is intertwined with the merits of his claims.
See Conboy v. State, supra, 292 Conn. 653 (‘‘if the ques-
tion of jurisdiction is intertwined with the merits of the
case, a court cannot resolve the jurisdictional question
without a hearing to evaluate those merits’’). This prin-
ciple assumes, however, that the party claiming jurisdic-
tion has met his or her initial burden of alleging facts
that, if true, would establish the court’s jurisdiction.
See Litvack v. Artusio, supra, 137 Conn. App. 402–403
(‘‘[i]t is the burden of the party who seeks the exercise
of jurisdiction in his favor . . . clearly to allege facts
[sufficient] to invoke judicial resolution of the dispute’’
[internal quotation marks omitted]). In the present case,
a hearing on the merits would have been superfluous
because the court had already assumed the plaintiff’s
allegations to be true and still concluded that they were
insufficient to establish that the court had jurisdiction
over the plaintiff’s claims.
Accordingly, we conclude that because none of the
jurisdictional facts alleged in the plaintiff’s complaint
were disputed by the defendant, the court correctly
ruled on the defendant’s motion to dismiss without
holding an evidentiary hearing.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 17a-101e (b) provides: ‘‘Any person, institution or
agency which, in good faith, makes, or in good faith does not make, the
report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103
shall be immune from any liability, civil or criminal, which might otherwise
be incurred or imposed and shall have the same immunity with respect to
any judicial proceeding which results from such report provided such person
did not perpetrate or cause such abuse or neglect.’’
2
Overall, the plaintiff raises four claims on appeal. Specifically, he claims
that the trial court (1) improperly concluded that the defendant was entitled
to statutory immunity pursuant to § 4-165; (2) improperly concluded that
the defendant was entitled to statutory immunity pursuant to § 17a-101e
(b); (3) applied an incorrect standard in deciding the defendant’s motion
to dismiss; and (4) improperly decided the defendant’s motion to dismiss
without conducting an evidentiary hearing.
Our analysis of the plaintiff’s first claim is necessarily intertwined with our
analysis of his third claim. We therefore address both of them concurrently in
part I of this opinion. Because we conclude that the court properly deter-
mined that § 4-165 barred the plaintiff’s claims, we need not reach the
plaintiff’s second claim that the defendant was not entitled to immunity
under § 17a-101e (b), or the alternative ground for affirmance raised by the
defendant that the action is barred by sovereign immunity. The plaintiff’s
fourth claim is discussed in part II of this opinion.
3
The plaintiff also claims that the defendant is not entitled to statutory
immunity pursuant to § 4-165 because he acted outside the scope of his
employment when he reported the plaintiff to the department. In his brief, the
plaintiff argues that the defendant acted outside the scope of his employment
solely on the basis that his conduct was wanton, reckless, or malicious. In
our view, however, the inquiry regarding whether a state employee was
acting outside the scope of his or her employment is not necessarily always
coterminous with an inquiry regarding whether the employee’s conduct was
wanton, reckless, or malicious. Accordingly, we conclude that this claim
has not been adequately briefed. See Jalbert v. Mulligan, 153 Conn. App.
124, 133, 101 A.3d 279 (2014) (‘‘[w]e consistently have held that [a]nalysis,
rather than mere abstract assertion, is required in order to avoid abandoning
an issue by failure to brief the issue properly’’ [internal quotation marks
omitted]).
Even if the claim had been adequately briefed, we must conclude that it
is meritless as a matter of law. The defendant’s act of reporting the plaintiff
to the department fell squarely within the scope of his employment duties
because he, as a school administrator, was mandated by statute to promptly
report any suspected cases of physical neglect. See General Statutes §§ 17a-
101 through 17a-101d. To the extent the plaintiff argues that the defendant
was not acting within the scope of his employment because he knowingly
made a false report, we conclude that no such allegation appears in the
plaintiff’s complaint. See part I of this opinion.
4
We note that although he was not entitled to an evidentiary hearing
under the circumstances of this case, the plaintiff was entitled to present
oral argument in objection to the defendant’s motion to dismiss, which he
did on October 1, 2012.
5
We find it significant that in responding to the defendant’s argument,
the plaintiff made no attempt to identify any disputed jurisdictional facts,
nor did he explicitly request an evidentiary hearing. Instead, he focused
his argument on his contention that the allegations in his complaint were
sufficient to demonstrate that the defendant had engaged in conduct that
was not protected by § 4-165. This procedural history suggests that both
parties recognized that the issue of subject matter jurisdiction turned on
the sufficiency of the plaintiff’s allegations, rather than on the resolution
of disputed jurisdictional facts.