SC20633 - Devine v. Fusaro ("On July 24, 2012, the decedent, Timothy Devine, fatally shot himself with a handgun after
state police officers fired nonlethal ammunition at him
in an unsuccessful effort to cause him to drop or to
surrender his weapon. The plaintiff, Michael Devine, as
administrator of the decedent’s estate, filed a wrongful
death action against four state police officers—the
defendants, Louis Fusaro, Jr., Steven Rief, Michael
Avery, and Kevin Cook—alleging that their intentional,
reckless, or grossly negligent conduct caused the death
of the decedent. The defendants moved to dismiss the
action, claiming that it was barred by the doctrine of
sovereign immunity or, alternatively, the statutory grant
of immunity set forth in General Statutes § 4-165. The
trial court granted the defendants’ motion to dismiss,
concluding that the plaintiff’s action was barred by the
doctrine of sovereign immunity pursuant to the four
factor test set forth in Spring v. Constantino, 168 Conn.
563, 568, 362 A.2d 871 (1975). See id. (articulating ‘‘the
following criteria for determining whether [a] suit is,
in effect, one against the state and cannot be maintained
without its consent: (1) a state official has been sued;
(2) the suit concerns some matter in which that official
represents the state; (3) the state is the real party against
whom relief is sought; and (4) the judgment, though
nominally against the official, will operate to control the
activities of the state or subject it to liability’’ (internal
quotation marks omitted)).
The Appellate Court reversed the judgment of the
trial court, reasoning that the Spring test does not apply
because the operative complaint unequivocally stated
that ‘‘[t]he defendants are sued in their individual capacit[ies].’’ (Internal quotation marks omitted.) Devine v.
Fusaro, 205 Conn. App. 554, 576, 259 A.3d 655 (2021);
see id., 585. Alternatively, the Appellate Court determined that the trial court misapplied the third factor
of the Spring test because it ‘‘was required to give far
greater weight to the fact that the plaintiff specifically
pleaded that he brought the action against the defendants in their individual capacities.’’ Id., 582–83. Accordingly, the Appellate Court reversed the trial court’s judgment and remanded the case with direction to ‘‘consider
the remaining ground raised in the motion [to dismiss],
namely, whether the plaintiff’s complaint sufficiently
alleges reckless, wanton, or malicious conduct such
that, if proven, the defendants would not be entitled to
statutory immunity under § 4-165.’’ Id., 585. We granted
the defendants’ petition for certification to appeal, limited to the following issue: ‘‘Did the Appellate Court
correctly conclude that, when a court determines
whether sovereign immunity bars a claim against state
officials or employees for actions taken in the exercise
of their duties, the [Spring] test . . . ‘has no applicability’ when a plaintiff designates that the state officials
or employees have been sued in their individual capacities?’’ Devine v. Fusaro, 339 Conn. 904, 260 A.3d
1224 (2021).
After examining the entire record on appeal and considering the briefs and oral arguments of the parties,
we have determined that that the appeal should be
dismissed on the ground that certification was improvidently granted.
The appeal is dismissed.")