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Norris v. Town of Trumbull

Court of Appeals of Connecticut

January 15, 2019

ASHLEY NORRIS ET AL.
v.
TOWN OF TRUMBULL ET AL.

          Argued October 18, 2018

         Procedural History

         Action to recover damages for personal injuries sustained as a result of, inter alia, the defendants' negligence, and for other relief, brought to the Superior Court in the judicial district of Fairfield; thereafter, the action was withdrawn as against the defendant town of Trumbull et al.; subsequently, the court, Radcliffe, J., granted the motion for summary judgment filed by the defendant city of Bridgeport et al.; thereafter, the court denied the motion to dismiss filed by the defendant Cooperative Educational Services, and the defendant Cooperative Educational Services appealed to this court. Affirmed.

          Ashley A. Noel, with whom, on the brief, was Timothy R. Scannell, for the appellant (defendant Cooperative Educational Services).

          Kenneth J. Bartschi, with whom were Brendon P. Levesque and, on the brief, Jeffrey D. Lynch, for the appellees (plaintiffs).

          Alvord, Prescott and Eveleigh, Js.

          OPINION

          PRESCOTT, J.

         The sole issue raised in this appeal is whether a regional educational service center established, pursuant to General Statutes § 10-66a et seq., by four or more municipal boards of education is entitled to invoke sovereign immunity in a negligence action brought by a special needs student injured while attending a school operated and managed by the regional educational service center. The defendant Cooperative Educational Services[1] appeals from the trial court's denial of its motion to dismiss on sovereign immunity grounds that portion of the operative complaint filed against it by the plaintiffs, Ashley Norris, a minor child acting through her mother and next friend, Bonita Wiggins, and Bonita Wiggins individually.[2] The defendant claims that the court improperly determined that the defendant's role in supervising students committed to its care and custody is a municipal function that is not shielded by the doctrine of sovereign immunity. We disagree and conclude that the court properly denied the defendant's motion to dismiss. Accordingly, we affirm the judgment of the trial court.

         The following facts, as alleged in or necessarily implied from the plaintiffs' complaint, and procedural history are relevant to our resolution of the defendant's claim. On April 25, 2013, the minor plaintiff was enrolled at a school for children with special needs located in Trumbull and operated by the defendant, a regional educational service center established pursuant to § 10-66a. The school's staff was aware that, for her safety, the minor plaintiff needed to wear a gait belt at all times.[3] That day, however, the minor plaintiff, who was participating in an activity being run and monitored by the school, was walking with a staff member in the school's parking lot without her gait belt on when she suffered a seizure and fell to the ground, striking her face.

         On February 20, 2015, the plaintiffs commenced the underlying action. The operative revised complaint was filed on August 17, 2015. Count three was the sole count directed against the defendant and sounded in negligence. According to the plaintiffs, the minor plaintiff fell due to the carelessness and negligence of the defendant, which allegedly had failed to take necessary precautions to properly supervise and ensure the safety of students in its care.[4] The plaintiffs alleged that, as a result of the defendant's negligence, the minor plaintiff suffered physical and emotional injuries, and that Wiggins was required to expend personal funds for her child's medical care. The defendant filed an answer denying all of the allegations of negligence.

         On September 13, 2016, the defendant filed a motion to dismiss count three of the complaint on the ground that the court lacked subject matter jurisdiction over the claims against it. Specifically, the defendant argued that, as a regional educational service center created pursuant to § 10-66a, it is a state agent and, therefore, has sovereign immunity in an action for money damages absent a proper waiver of sovereign immunity.[5] Attached to the motion to dismiss was an affidavit from the defendant's executive director averring that the defendant was one of six regional education service centers established in this state in accordance with the provisions of § 10-66a. Also attached were copies of the defendant's constitution and governing bylaws.[6]

         The plaintiffs filed an objection to the motion to dismiss on November 10, 2016, arguing that sovereign immunity did not apply to the defendant under the circumstances alleged. According to the plaintiffs, a review of the statutory scheme governing regional education service centers shows that those entities are not state agencies and do not act as agents for the state when overseeing children entrusted to their care. They instead, according to the plaintiffs, are separate and independent corporations formed by municipalities. Furthermore, the plaintiffs noted that amongst the enumerated powers given to the regional educational service centers by § 10-66c is the power ‘‘to sue and be sued, '' which evinces a legislative intent that they are not state agencies shielded by sovereign immunity.

         The court, Radcliffe, J., issued a memorandum of decision on January 30, 2017, denying the defendant's motion to dismiss. The court reasoned that after a regional education service center is formed by its constituent municipal or regional boards of education, it exists pursuant to § 10-66c (a) as a ‘‘ ‘body corporate and politic,' rather than as an agency of state government.'' More particularly, the court explained that ‘‘[b]ecause [the defendant] is governed by a board of directors chosen by the member boards of education, and accepts students from the boards of education, its actions regarding enrolled students are in lieu of the municipality in which the affected student resides. [The defendant] performs functions, and assumes responsibilities as to a given student, which would otherwise be those of the local or regional board of education.''

         The court acknowledged that sovereign immunity protections have been extended to entities that act on behalf of the state, and that the furnishing of public education is a state function. It noted, however, that municipal boards of education, despite being entrusted to perform a state function with respect to education, nevertheless act as an agent of its municipality, not the state, when performing that function and, thus, are not protected by sovereign immunity. Because the court concluded that a regional educational service center's role in the care and supervision of students entrusted to it is directly analogous to the role performed by local or regional boards of education, the court concluded that regional educational service centers similarly cannot invoke sovereign immunity.[7] Although the court acknowledged that at least one other Superior Court considering the same issue had reached a contrary conclusion, it nonetheless held that ‘‘[i]n the absence of any appellate authority, sovereign immunity will not be permitted to bar an action against a ‘body corporate and politic,' charged with the care and custody of students by local boards of education, under circumstances in which the General Assembly has explicitly provided for the ability of the regional educational center to ‘sue and be sued.' '' This appeal followed.

         The defendant claims on appeal that the trial court improperly determined that the defendant was not entitled to invoke sovereign immunity. According to the defendant, express language exists in § 10-66c that demonstrates that the defendant operates as an agent of the state in fulfilling a state-mandated duty to provided special education services to the minor plaintiff and, therefore, sovereign immunity applies. We disagree. Like the trial court, we conclude that, for the purposes of this type of negligence action, the defendant was not acting as a state agent and, therefore, is not entitled to the protections of sovereign immunity.

         We begin with our standard of review and other applicable principles of law. A motion to dismiss is the proper vehicle to assert lack of jurisdiction over the subject matter. Practice Book § 10-30 (a) (1). ‘‘[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.'' (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). ‘‘[O]ur review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss [is] de novo.'' (Internal quotation marks omitted.) Id. Furthermore, to the extent that we are called upon to engage in statutory interpretation, such review is also plenary.[8] See Gonzalez v. O & G Industries, Inc., 322 Conn. 291, 302, 140 A.3d 950 (2016).

         ‘‘When [deciding] a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, [a court] 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. . . .

         ‘‘In contrast, if the complaint is supplemented by undisputed facts established by [1] affidavits submitted in support of the motion to dismiss . . . [2] other types of undisputed evidence . . . and/or [3] public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]. . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings. . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.''

         ‘‘Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts. . . . Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits. . . . An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.'' (Citations omitted; emphasis omitted; footnotes omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-54, 974 A.2d 669 (2009).

         In the present appeal, in addition to the factual allegations in the complaint, the following documents were appended to the defendant's motion to dismiss: (1) a copy of the defendant's constitution, (2) a copy of the defendant's governing bylaws and (3) an affidavit from the defendant's executive director. The plaintiffs never challenged the authenticity of these submissions in their opposition to the motion to dismiss or at the hearing on the motion, nor did they attach any counter affidavit or other evidentiary submissions of their own. Neither party asked the trial court to conduct an evidentiary hearing in order to establish additional jurisdictional facts, nor do they claim on appeal that an evidentiary hearing was necessary in this case. Thus, in conducting our de novo review, we limit ourselves to the factual record as it existed before the trial court, supplemented by any additional records of which we may take judicial notice. See Conboy v. State, supra, 292 Conn. 653-54.

         Turning to the substance of the issue before us, ‘‘[i]n Connecticut, [w]e have long recognized the common-law principle that the state cannot be sued without its consent. . . . The doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable. . . . The protection afforded by this doctrine has been extended to agents of the state acting in its behalf.'' (Citation omitted; internal quotation marks omitted.) Palosz v. Greenwich, 184 Conn.App. 201, 207, 194 A.3d 885, cert. denied, 330 Conn. 930, 194 A.3d 778 (2018).

         It is possible, however, that an entity may be deemed an agent of the state for some purposes, but not others. For example, ‘‘[t]own boards of education, although they are agents of the state responsible for education in the towns, are also agents of the towns and subject to the laws governing municipalities. . . . [O]ur jurisprudence has created a dichotomy in which local boards of education are agents of the state for some purposes and agents of the municipality for others.'' (Citation omitted; internal quotation marks omitted.) Id., 207-208. An entity is entitled to invoke sovereign immunity only if it is acting in its capacity as an agent of the state. See Purzycki v. Fairfield, 244 Conn. 101, 112, 708 A.2d 937 (1998) (duty of local boards of education to supervise students performed for benefit of ...


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