Lemoine v. McCann

LANDAU, J.,

dissenting. The majority concludes that the defendant falls within the protection of the doctrine of sovereign immunity because the trial court properly found that the plaintiffs complaint fails to allege sufficient acts of wanton, reckless or malicious misconduct. Because my review of the complaint leads me to conclude otherwise, I respectfully dissent.

Our consideration on appeal is whether the trial court properly granted the motion to dismiss the plaintiffs complaint. Two facts present themselves with exceptional clarity: (1) the plaintiff appears pro se; and (2) the effect, albeit not the purpose, of the trial court’s action is to prevent the pro se plaintiff from obtaining a full and fair adjudication of his rights. “ ‘This court has always been solicitous of the rights of pro se litigants and, like the trial court, 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.’ Conservation Commission v. Price, 193 Conn. 414, 421 n.4, 479 A.2d 187 (1984).” Budlong v. Nadeau, 30 Conn. App. 61, 67, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290, cert. denied, 510 U.S. 814, 114 S. Ct. 62, 126 *469L. Ed. 2d 31 (1993). “ ‘Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982); LaBow v. LaBow, 13 Conn. App. 330, 336, 537 A.2d 157 (1988).’ Cugini v. Cugini, 13 Conn. App. 632, 634, 538 A.2d 1060 (1988).” Lo Sacco v. Young, 20 Conn. App. 6, 9, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989).

Neither party in this case sought to introduce facts outside of the record on the motion to dismiss. “[Wjhen a motion to dismiss 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).” American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983).

Although I do not dispute the majority’s conclusion that the plaintiff alleges what can be deemed only acts of negligence in eleven of thirteen allegations of misconduct set forth in the pleading, with respect to the remaining two, I would conclude that the plaintiff asserts claims of misconduct by the defendant that transcend negligence. In subpar agraphs (e) and (f) of paragraph one, the plaintiff claims that the defendant (1) “refused to subpoena witnesses that were available and ready to testify” and (2) “refused to take statements or depositions from witnesses that were available and critical and because of this lost memory of crucial facts.” (Emphasis added.) In my view, the language employed by the plaintiff in these allegations was “ ‘explicit enough to clearly inform the court and opposing counsel that reckless misconduct [was] relied on.’ ” Kostiuk v. Queally, 159 Conn. 91, 94, 276 A.2d 452 (1970). Moreover, if proven, these assertions would *470establish that the defendant exhibited “a reckless disregard of the just rights ... of others or of the consequences of [his] action.” (Internal quotation marks omitted.) Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 510, 548 A.2d 728 (1988).

Consistent with our practice of being solicitous of the rights of pro se litigants; Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519-20, 370 A.2d 1306 (1976); in ascertaining the true scope of the complaint, I would conclude that the plaintiff sufficiently alleges acts of misconduct that remove the defendant from the protection of the doctrine of sovereign immunity. Accordingly, I would reverse the judgment and remand the matter for further proceedings.