Is city liable for the actions of its employees?

Connecticut Trial Court Official Decisions

Unpublished

DOE v. FIELDS, No. FST CV 05 4006555 (Aug. 10, 2006) JOHN
DOE v. WALTER FIELDS ET AL. 2006 Ct. Sup. 14329, 41 CLR
799 No. FST CV 05 4006555 Connecticut Superior Court
Judicial District of Stamford-Norwalk at Stamford August
10, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] MEMORANDUM OF DECISION RE MOTION TO DISMISS

WILLIAM B. LEWIS, JUDGE TRIAL REFEREE.

The defendant, city of Stamford, has moved (#107; sh.
cal.; 5/1/06) to dismiss so much of the ninth, eleventh and
fourteenth counts of the plaintiff John Doe’s complaint
which allege causes of action based on General Statutes
§§ 7-465 and 7-101a. This action was
commenced by John Doe[fn1] to recover for injuries and
losses allegedly incurred while the plaintiff was a seventh
and eighth grade student at the Cloonan Middle School in
Stamford. The complaint alleges that the plaintiff was
sexually assaulted and sexually harassed by Walter Fields,
the school resource officer. The assaults were alleged to
have occurred from the spring of 2000 until February 2001.
The action was commenced by service of process on September
10, 2005.

The operative, revised complaint is in sixteen counts and
alleges causes of action against Fields, Dudley Orr, the
school principal, Anthony Mazzullo, the superintendent of
schools, John Fontneau, a supervisor and director of the
youth services bureau of the Stamford police department,
the Stamford board of education and the city of Stamford.

The ninth, eleventh and fourteenth counts are against the
city of Stamford. All three counts allege that the city is
vicariously liable for the actions of its employees under
General Statutes §§ 52-557n,[fn2] 7-465[fn3]
and 7-101a.[fn4]

The city has moved to dismiss of the ninth, eleventh and
fourteenth counts which allege causes of action based on
General Statutes §§ 7-465 and 7-101a.[fn5]
The city argues that both §§ 7-465 and 7-101a
are statutory causes of action which contain explicit
two-year statutes of limitation. Because the limitation
periods are contained in statutory causes of action,
noncompliance deprives the court of subject matter
jurisdiction. In that this action was not commenced until
more than four years CT Page 14330 after the alleged
assaults, the defendant city argues that the court has no
jurisdiction to entertain the claims and this portion of
the action must be dismissed.

The city also moves to dismiss on a second ground,
asserting that both §§ 7-465 and 7-101a
require that notice of the claim be given to the city
within six months after the cause of action accrued.
Although the complaint alleges that notice was given, the
city filed two affidavits attesting that the city has no
record of receiving any notice from the plaintiff from
February 2001, the last date any assault was alleged to
have occurred, through August 31, 2001, six months later.
Because timely notice is a prerequisite to commencing a
statutory cause of action, the city argues that the alleged
failure to give notice implicates subject matter
jurisdiction and requires dismissal of the statutory
claims.

The plaintiff argues that General Statutes § 52-577d
stays the statutes of limitation and, thus, the notice
requirements, for claims arising out of sexual assault
until thirty years from the date that he has reached
majority. He cites decisions which hold that §
52-577d applies to perpetrators of sexual abuse and to
non-perpetrators, such as the city. In addition, §
52-577d is a more specific statute which should apply to
this matter over §§ 7-465 and 7-101a, both
statutes of general application. Finally, because §
52-577d is a remedial statute, it should be liberally
construed to protect those whom the legislature intended to
benefit, in this case minor victims of sexual abuse. The
plaintiff argues that to exclude claims against a city,
because of language contained in the indemnification
statutes, would be bizarre and unjust and thwart the intent
of the legislature.

The city counters that whereas General Statutes §
52-577d may stay ordinary statutes of limitation, it does
not act to stay the limitation and notice provisions of
§§ 7-465 and 7-101a, both statutory causes of
action containing internal limitations periods. In
addition, the express language of § 52-577d provides
that it applies “[n]otwithstanding the provisions of
section 52-577.” The statute does not state that it
applies notwithstanding all statutes of limitation,
including internal, jurisdictional statutes of limitation.

The issue in this motion can be summarized as whether the
statute of limitations provisions of General Statutes
§ 52-577d preempt the time and notice provisions
contained in General CT Page 14331 Statutes
§§ 7-465 and 7-101a.

The city has moved to dismiss on the grounds that the
failure to comply with the limitations period and notice
provisions of General Statutes §§ 7-465 and
7-101a deprive the court of subject matter jurisdiction.
“The grounds which may be asserted in [a motion to dismiss]
are: (1) lack of jurisdiction over the subject matter; (2)
lack of jurisdiction over the person; (3) improper venue;
(4) insufficiency of process; and (5) insufficiency of
service of process.” Zizka v. Water Pollution Control
Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). A
statute of limitations defense “must be specially pleaded
and cannot be raised by a [motion to dismiss].” Ross Realty
Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972);
see also Practice Book § 10-50. Nevertheless,
“[w]here . . . a specific time limitation is contained
within a statute that creates a right of action that did
not exist at common law, then the remedy exists only during
the prescribed period and not thereafter . . . In such
cases, the time limitation is not to be treated as an
ordinary statute of limitation, but rather is a limitation
on the liability itself, and not of the remedy alone . . .
[U]nder such circumstances, the time limitation is a
substantive and jurisdictional prerequisite, which may be
raised [by the court] at any time, even by the court sua
sponte, and may not be waived.” (Internal quotation marks
omitted.) Ambroise v. William Raveis Real Estate, Inc., 226
Conn. 757, 766-67, 628 A.2d 1303 (1993). In this matter,
the claims raised are appropriately made in this motion to
dismiss.

General Statutes § 7-465(a) provides, in relevant
part: “Any town, city or borough . . . shall pay on behalf
of any employee of such municipality . . . all sums which
such employee becomes obligated to pay by reason of the
liability imposed upon such employee by law for . . .
physical damages to person or property . . . if the
employee, at the time of the occurrence, accident, physical
injury or damages complained of, was acting in the
performance of his duties and within the scope of his
employment, and if such occurrence, accident, physical
injury or damage was not the result of any wilful or wanton
act of such employee in the discharge of such duty . . . No
action for personal physical injuries or damages to real or
personal property shall be maintained against such
municipality and employee jointly unless such action is
commenced within two years after the cause of action
therefor arose and written notice of the intention to
commence such action and of the time when and the place
where the damages were incurred or sustained has been filed
with the clerk CT Page 14332 of such municipality within
six months after such cause of action has accrued.
Governmental immunity shall not be a defense in any action
brought under this section.” (Emphasis added.)

General Statutes § 7-101a provides, in relevant
part: “(a) Each municipality shall protect and save
harmless . . . any municipal employee . . . of such
municipality from financial loss and expense, including
legal fees and costs, if any, arising out of any claim,
demand, suit or judgment by reason of alleged negligence .
. . on the part of . . . such employee while acting in the
discharge of his duties . . . (d) No action shall be
maintained under this section against such municipality or
employee unless such action is commenced within two years
after the cause of action therefore arose nor unless
written notice of the intention to commence such action and
of the time when and the place where the damages were
incurred or sustained has been filed with the clerk of such
municipality within six months after such cause of action
has accrued.” (Emphasis added.)[fn6]

General Statutes § 52-577d provides “Notwithstanding
the provisions of section 52-577, no action to recover
damages for personal injury to a minor, including emotional
distress, caused by sexual abuse, sexual exploitation or
sexual assault may be brought by such person later than
thirty years from the date such person attains the age of
majority.”

Although many of the legal principles argued by the
plaintiff may be applicable, none of the cases relied on by
him involve the application of the limitation provision of
§ 52-577d to the municipal employee indemnification
provisions of §§ 7-465 and 7-101a. The
holding in Greco v. United Technologies Corp., 277 Conn.
337, 890 A.2d 1289 (2006), provides the most closely
analogous situation.

In Greco representatives of sixty-one decedents brought
wrongful death actions against the decedents’ former
employer, alleging that the decedents’ deaths were caused
by exposure to toxic agents while working for the employer.
The employer moved to strike the claims, arguing that the
claims were time barred under the two-year statute of
limitations period contained in General Statutes §
52-555, the wrongful death statute. The plaintiffs argued
that the applicable statute of limitations is contained in
General Statutes § 52-557c which deals with losses
“caused by exposure to a hazardous chemical substance or
mixture or hazardous pollutant . . .” (Internal quotation
marks omitted.) CT Page 14333 Id., 348. That limitations
period extended until two years from the date that the loss
was discovered or in the exercise of reasonable care should
have been discovered. The Connecticut Supreme Court
disagreed, and affirmed the trial court’s decision striking
the claims as being time-barred.

The court noted that in their complaint, the plaintiffs
specifically pleaded that they were proceeding under the
wrongful death statute, § 52-555, and made no
mention of § 52-557c. Greco v. United Technologies
Corp., supra, 277 Conn. 345. Similarly in this matter, in
the ninth, eleventh and fourteenth counts, the plaintiff
cites §§ 52-557n, 7-465 and 7-101a, without
making any mention of § 52-557d.

The court rejected the argument that the allegations of
the complaint fall under § 52-557c because the
losses were the result of toxic exposure. The court noted
that the toxic exposure statute was applicable to actions
for “damages for personal injury or property damage . . .”
(Internal quotation marks omitted.) Id., 348. The action by
the plaintiffs was an action for wrongful death, not for
personal injury or property damage, even though the losses
were the result of toxic exposure. Id.

Similarly in this matter, the plaintiff has brought causes
of action against numerous defendants to recover for
personal injuries and emotional distress caused by sexual
assaults. Included within the ninth, eleventh and
fourteenth counts are causes of action based on vicarious
liability of the city for the actions of its employees
under General Statutes § 52-557n. These causes of
action fall clearly within the extended statute of
limitations provision of § 52-557d. The claims under
§§ 7-465 and 7-101a, however, are indemnity
claims, are pleaded as such, and are not technically claims
for personal injury and emotional distress which fall under
the extended statute of limitations provision.

The court in Greco next noted that the toxic exposure
statute, § 52-577c, provided that it contained “the
applicable limitations period [n]otwithstanding the
provisions of [General Statutes §] 52-577 . . . and
[General Statutes §] 52-577a . . . Thus, to the
extent that § 52-577c(b) otherwise may be applicable
under the present factual circumstances, that statutory
provision expressly preempts §§ 52-577 and
52-577a but, notably, does not purport to preempt §
52-555. If the legislature had intended for §
52-577c(b) to preempt § 52-555, it easily could have
done so by CT Page 14334 enumerating § 52-555,
along with §§ 52-577 and 52-577a, as one of
the statutes of limitation preempted by §
52-577c(b).” (Internal quotation marks omitted.) Id.,
348-49.

Similarly in this matter, General Statutes § 52-557d
provides that it is the statute of limitation in sexual
abuse cases “[n]otwithstanding the provisions of section
577[fn7] . . .” The statute explicitly does not state that
it preempts the limitation periods for indemnity actions
under §§ 7-465 and 7-101a.

The court also pointed out that the wrongful death statute
provided liability where none existed at common law. As
such, the time limitation contained therein was
jurisdictional. Id., 349-50. It was “not to be treated as
an ordinary statute of limitation[s] . . . Rather, it is a
limitation on the liability itself, and not of the remedy
alone . . . Accordingly, the right to bring a wrongful
death claim pursuant to § 52-555 exists only during
the statutorily prescribed time period, and expires
thereafter . . . Because the limitation period of §
52-555 is jurisdictional in nature, the plaintiffs shoulder
a heavy burden of establishing that § 52-555 is
preempted by another statute of limitations.” (Citations
omitted; internal quotation marks omitted.) Id., 350; see
also Lostritto v. Community Action Agency of New Haven,
Inc., 269 Conn. 10, 23, 848 A.2d 418 (2004).

Similarly in this matter, the rights to indemnification
under the indemnity statutes are statutory rights “designed
to furnish some relief for injustice that would otherwise
attend our well-established doctrine of sovereign municipal
immunity.” Norwich v. Silverberg, 200 Conn. 367, 374, 511
A.2d 336 (1986). Because these statutes contain indemnity
rights which did not exist at common law, the limitation
periods contained therein are jurisdictional and are not
ordinary statutes of limitation. The right to bring a claim
for indemnity exists only during the prescribed time period
and expires thereafter.

Finally the court considered the plaintiffs’ argument that
their decedents could not have complied with the shorter
limitations period because they did not exhibit any symptoms
of their chemical exposure until after the limitations
period had run. They also argued that the legislature could
not have intended such an absurd result. Id., 352-53. The
court, however, refused to apply the extended limitations
period, noting CT Page 14335 that its decision “leads to
what reasonably may be characterized as a harsh, and even
unfair, result . . .” Id., 353. The court reviewed the
justifications for statutes of imitation, noting they are
sometimes work harsh results. Id., 353-54.

Similarly in this matter, the plaintiff argues that holding
a minor to the statutes of limitation contained in the
indemnity statutes would work a bizarre and unjust result
because the victims of the sexual assaults are minors.

Although there is no Connecticut case addressing this
issue, the holding in Greco v. United Technologies Corp.,
supra, 277 Conn. 337 presents the most closely analogous
situation. Thus, the motion to dismiss is granted. While
this decision may foreclose the indemnity claims, under
General Statutes §§ 7-465 and 7-101a,[fn8] it
has no effect on any of the other claims, including the
vicarious liability claim against the city contained in
General Statutes § 52-557n.

So Ordered.

[fn1] On August 31, 2005 the court, Rogers, J., granted an
order allowing the plaintiff to prosecute this action using
a pseudonym.

[fn2] General Statutes § 52-557n is the statutory
governmental immunity provision which makes a city liable,
under certain conditions, for the acts or omissions of city
employees acting within the scope of their employment.

[fn3] General Statutes § 7-465 requires a city to
pay, on behalf of its employees, all sums which the
employee may be obligated to pay as a result of acts of the
employee in the performance of his duties and within the
scope of his employment.

[fn4] General Statutes § 7-101a requires a city to
protect and hold harmless city employees from financial
losses and expenses, including legal fees and costs, which
arise out of certain acts of the employee in the discharge
of his duties.

[fn5] The city filed a notice, simultaneous to filing its
motion to dismiss, that it intends to indemnify its
employees under the statutes. Any action by the court would
have no effect on the viability of the counts under
§ 52-557n. CT Page 14336 [fn6] Section (b) of the
statute applies to malicious, wanton, wilful or ultra vires
acts by a municipal employee.

[fn7] The statute of limitations for actions founded upon a
tort.

[fn8] See, however, footnote 6. CT Page 14337