Devine v. Fusaro

***********************************************

The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. *********************************************** MICHAEL DEVINE, ADMINISTRATOR (ESTATE

OF TIMOTHY DEVINE) v. LOUIS

FUSARO, JR., ET AL.

(SC 20633) Robinson, C. J., and McDonald, D’Auria, Mullins and Ecker, Js. Argued November 22, 2022—officially released January 18, 2023*

Procedural History Action to recover damages for the wrongful death of the plaintiff’s decedent as a result of the defendants’ alleged recklessness and gross negligence, brought to the Superior Court in the judicial district of New Lon- don, where the court, Knox, J., granted the defendants’ motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to the Appellate Court, DiPentima, C. J., and Keller and Norcott, Js., which affirmed the trial court’s judgment; thereafter, the Appellate Court granted the plaintiff’s motion for recon- sideration; subsequently, the Appellate Court, Prescott, Cradle and DiPentima, Js., reversed the trial court’s judgment and remanded the case for further proceed- ings, and the defendants, on the granting of certifica- tion, appealed to this court. Appeal dismissed. Michael K. Skold, deputy solicitor general, with whom, on the brief, were William Tong, attorney gen- eral, Clare Kindall, former solicitor general, Alayna M. Stone, associate attorney general, and Colleen B. Valentine, assistant attorney general, for the appel- lants (defendants).

Trent A. LaLima, with whom was Virginia M. Gil- lette, for the appellee (plaintiff).

Opinion

PER CURIAM. On July 24, 2012, the decedent, Timo- thy 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,1 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 capa- cit[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 deter- mined 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 defen- dants in their individual capacities.’’ Id., 582–83. Accord- ingly, the Appellate Court reversed the trial court’s judgment and remanded the case with direction to ‘‘con- sider the remaining ground raised in the motion [to dismiss], namely, whether the plaintiff’s complaint suffi- ciently alleges reckless, wanton, or malicious conduct such that, if proven, the defendants would not be enti- tled 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 applicabil- ity’ when a plaintiff designates that the state officials or employees have been sued in their individual capaci- ties?’’ Devine v. Fusaro, 339 Conn. 904, 260 A.3d 1224 (2021).

After examining the entire record on appeal and con- sidering the briefs and oral arguments of the parties, we have determined that that the appeal should be dismissed on the ground that certification was improvi- dently granted.

The appeal is dismissed. * January 18, 2023, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.