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.")