MICHAEL DEVINE, ADMINISTRATOR (ESTATE OF TIMOTHY DEVINE)

v. LOUIS FUSARO, JR., et al., SC 20633

Judicial District of New London

 

Wrongful Death; Sovereign Immunity; Whether Test from Spring v. Constantino Is Applicable When Plaintiff Unequivocally Sues the Defendants in Their Individual Capacities. In July, 2012, the decedent Timothy Devine called the Groton Police Department and stated that he was contemplating suicide. Officers located him in possession of a handgun and requested the assistance of a Connecticut State Police tactical unit, which responded and struck the decedent with less than lethal ammunition. The decedent raised the handgun to his head, warned the officers, "[d]on't make me do this," and lowered the weapon. The tactical unit fired another series of less than lethal rounds, and the decedent shot himself in the head, resulting in his death. The plaintiff administrator of the decedent's estate brought this wrongful death action against the defendants, certain members of the tactical unit, alleging that they acted "intentionally," with "gross negligence" and "with reckless indifference" to the decedent's safety. The defendants moved to dismiss the action based on sovereign immunity, which provides that the state cannot be sued without its consent. The plaintiff responded that sovereign immunity did not apply because his claims were expressly brought against the defendants "in their individual capacities." The trial court granted the motion to dismiss after applying the test in Spring v. Constantino, 168 Conn. 563 (1975), and concluding that this action was brought against the defendants in their official capacities alone, and, therefore, the action was truly brought against the state. Following the judgment of dismissal, the plaintiff appealed, and, although the Appellate Court (197 Conn. App. 872) initially affirmed the judgment, upon reconsideration, the Appellate Court (205 Conn. App. 554) reversed the judgment of dismissal. On reconsideration, that court determined that the trial court had misapplied the Spring test and failed to give sufficient weight to the plaintiff's "clearly expressed intent to sue the defendants in their individual capacities." The court held that the Spring test only applies in the absence of an express statement regarding the capacity in which a state official is sued, and, here, the trial court erred in applying the test because the plaintiff unequivocally sued the defendants in their individual capacities. Moreover, the Appellate Court found that the result here would be the same even if the Spring test applied because, under the third prong of the test asking whether "the state is the real party against whom relief is sought," the trial court failed to give sufficient weight to plaintiff's express allegation that the defendants were sued in their individual capacities. On the granting of certification pursuant to General Statutes  51-197f, the defendants appealed to the Supreme Court, which will decide whether the Appellate Court properly concluded that the Spring test "has no applicability" when a plaintiff expressly states that he or she is suing the defendants in their individual capacities. The defendants argue that the Appellate Court erred because the Spring test is always applicable and a court should not defer to the plaintiff's designation that he is suing the defendants in their individual capacities, as courts have a responsibility to determine independently the capacity in which the defendants are being sued based on the allegations of the complaint. The plaintiff responds that the Spring test is inapplicable here because it applies only in ambiguous cases when the plaintiff has not expressly stated that the defendants are being sued in their individual capacities.