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WILBERT LAWRENCE v. HENRY WEINER

(AC 35378)

Keller, Prescott and Schaller, Js.

Argued October 16, 2014—officially released January 6, 2015

(Appeal from Superior Court, judicial district of

Hartford, Miller, J.)

Vincent F. Sabatini, for the appellant (plaintiff).

Nancy A. Brouillet, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, and Ann E. Lynch and Peter M. Haberlandt, assistant attorneys general, for the appellee (defendant).
Opinion

PRESCOTT, J. General Statutes § 4-165 grants state

employees immunity from suit from negligence claims

regarding conduct arising out of the scope of their

employment, but such immunity does not extend to

conduct by a state employee that is alleged to be wanton, reckless, or malicious. In this appeal from the trial

court’s judgment of dismissal in a tort action brought by

the plaintiff, Wilbert Lawrence, against the defendant,

Henry Weiner, a state employee, the dispositive issue is

whetherthe court properly concluded thatthe plaintiff’s

complaint failed, as a matter of law, to plead conduct

that is wanton, reckless, or malicious. We conclude

that the plaintiff’s complaint failed to adequately allege

conduct that is wanton, reckless, or malicious and is

therefore barred by § 4-165. Accordingly, we affirm the

judgment of the trial court.

The following facts are alleged in the plaintiff’s complaint, which we assume to be true for purposes of this

appeal. The plaintiff was the teacher of an automotive

repair class at the State of Connecticut’s Vinal Technical

High School in Middletown. In March, 2010, he was

teaching his class when he experienced ‘‘an emergency

situation in which he needed to use the restroom facilities.’’ As required by school policy, the plaintiff had

another staff member supervise his students during his

absence from the classroom. While the plaintiff was in

the restroom, however, a student was injured while

using a piece of machinery.

Later that day, the defendant, the school’s assistant

principal, ‘‘falsely reported the plaintiff to the Department of Children and [Families (department)] . . . and

accused the plaintiff of physical neglect.’ ’’ In making

his report, the defendant failed to disclose that the

plaintiff was in the bathroom at the time of the accident,

and that another staff member was supervising the

plaintiff’s students in his absence. The defendant also

failed to wait for an investigation into the student’s

injury to be completed before making his report to the

department. One month later, the plaintiff was terminated from his position at the school.

The plaintiff subsequently filed the present case

against the defendant in his individual capacity, raising

claims of defamation, vexatious litigation pursuant to

General Statutes § 52-568, Unfair Trade Practices pursuant to General Statutes § 42-110a et seq., ‘‘false accusations,’’ negligent and intentional infliction of emotional

distress, and recklessness. The defendant moved to dismiss the plaintiff’s action, arguing that he was entitled

to statutory immunity pursuant to General Statutes §§ 4-

165 and 17a-101e (b).1 After hearing argument, the court

granted the defendant’s motion, and the plaintiff

appealed. Additional facts will be set forth as necessary.

The plaintiff raises two principal claims on appeal.2
First, he claims that the court improperly concluded

that the defendant was entitled to statutory immunity

under § 4-165. Second, he claims that before ruling on

the defendant’s motion to dismiss, the court was

required to hold an evidentiary hearing. For reasons

we now set forth, we reject both of these claims.

I

The plaintiff claims that the court improperly determined that the defendant was entitled to statutory

immunity pursuant to § 4-165. Specifically, the plaintiff

contends that § 4-165 does not afford the defendant

immunity because the defendant acted wantonly, recklessly, and maliciously. The defendant responds that

the plaintiff’s action was properly dismissed because

his complaint failed to allege specific facts sufficient

to demonstrate that the defendant’s conduct fell within

an exception to the immunity provided by § 4-165. We

agree with the defendant.

We begin by setting forth the applicable standard of

review. ‘‘A motion to dismiss . . . properly attacks the

jurisdiction of the court, essentially asserting that the

plaintiff cannot as a matter of law and fact state a cause

of action that should be heard by the court. . . . A

motion to dismiss tests, inter alia, whether, on the face

of the record, the court is without jurisdiction.’’ (Internal quotation marks omitted.) Conboy v. State, 292

Conn. 642, 650, 974 A.2d 669 (2009).

‘‘Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to

§ 4–165, implicate the court’s subject matter jurisdiction. . . . A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . .

the trial court draws conclusions of law, our review is

plenary and we must decide whether its conclusions

are legally and logically correct and find support in the

facts that appear in the record.’’ (Citations omitted;

internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn. App. 103, 113–14, 891 A.2d 106 (2006).

‘‘When a . . . court decides a jurisdictional question

raised by a pretrial motion to dismiss, it must consider

the allegations of the complaint in their most favorable

light. . . . In this regard, a court must take the facts

to be those alleged in the complaint, including those

facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.’’

(Internal quotation marks omitted.) Filippi v. Sullivan,

273 Conn. 1, 8, 866 A.2d 599 (2005).

General Statutes § 4-165 (a) provides in relevant part

that ‘‘[n]o state officer or employee shall be personally

liable for damage or injury, not wanton, reckless or

malicious, caused in the discharge of his or her duties

or within the scope of his or her employment. . . .’’

‘‘In other words, state employees may not be held personally liable for their negligent actions performed
within the scope of their employment. . . . State

employees do not, however, have statutory immunity

for wanton, reckless or malicious actions, or for actions

not performed within the scope of their employment.

For those actions, they may be held personally liable,

and a plaintiff who has been injured by such actions is

free to bring an action against the individual employee.’’

(Footnote omitted.) Miller v. Egan, 265 Conn. 301, 319,

828 A.2d 549 (2003).

‘‘In the posture of this case, we examine the pleadings

to decide if the plaintiff has alleged sufficient facts . . .

with respect to personal immunity under § 4-165, to

support a conclusion that the [defendant was] acting

outside the scope of [his] employment or wilfully or

maliciously. . . . The question before us, therefore, is

whether the facts as alleged in the pleadings, viewed

in the light most favorable to the plaintiff, are sufficient

to survive a motion to dismiss on the ground of statutory

immunity.’’ (Citation omitted; internal quotation marks

omitted.) Martin v. Brady, 261 Conn. 372, 376, 802 A.2d

814 (2002).

We thus turn to the matter of whether the plaintiff

has alleged facts that, if proven, are sufficient to demonstrate that the defendant acted wantonly, recklessly, or

maliciously. ‘‘In applying § 4-165, our Supreme Court

has understood wanton, reckless or malicious to have

the same meaning as it does in the common-law context.

. . . Under the common law, [i]n order to establish that

the defendants’ conduct was wanton, reckless, wilful,

intentional and malicious, the plaintiff must prove, on

the part of the defendants, the existence of a state of

consciousness with reference to the consequences of

one’s acts . . . . [Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to

infer it, there must be something more than a failure to

exercise a reasonable degree of watchfulness to avoid

danger to others or to take reasonable precautions to

avoid injury to them. . . . It is such conduct as indicates a reckless disregard of the just rights or safety

of others or of the consequences of the action. . . .

[In sum, such] conduct tends to take on the aspect

of highly unreasonable conduct, involving an extreme

departure from ordinary care, in a situation where a

high degree of danger is apparent.’’ (Citation omitted;

internal quotation marks omitted.) Manifold v. Ragaglia, 102 Conn. App. 315, 324, 926 A.2d 38 (2007).

The plaintiff bases his claim that the defendant acted

wantonly, recklessly, and maliciously on his assertion

in his appellate brief that the defendant knowingly made

a ‘‘false report’’ to the department. That assertion, however, overstates the scope of the plaintiff’s allegations.

Although the plaintiff does allege that the defendant

‘‘falsely reported’’ him to the department, his complaint

is devoid of any specific factual allegation that the

defendant did so knowingly or with knowledge of facts
that would have revealed to him that his report was

false. See Matthiessen v. Vanech, 266 Conn. 822, 832,

836 A.2d 394 (2003) (‘‘[r]ecklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or

with knowledge of facts which would disclose this danger to any reasonable man’’ [internal quotation marks

omitted]). Consequently, we have no basis on which

to conclude that the defendant’s conduct was not, for

example, the result of justifiable ignorance, or that it

amounted to ‘‘something more than a failure to exercise

a reasonable degree of watchfulness to avoid danger

to others or to take reasonable precautions to avoid

injury to them.’’ (Internal quotation marks omitted.)

Manifold v. Ragaglia, supra, 102 Conn. App. 324. The

allegation that the defendant either knew, or recklessly

disregarded that his report was false is, in the present

case, essential to demonstrating the requisite ‘‘state of

consciousness with reference to the consequences of

one’s acts’’; (internal quotation marks omitted) id.; that

must have existed for the defendant to have acted wantonly, recklessly, or maliciously.

The plaintiff nevertheless argues that we may infer

that the defendant knew that his report was false at the

time he made it from other allegations in his complaint.

Specifically, he asserts that he ‘‘has alleged that the

defendant conducted a two day investigation into the

incident that occurred on March 10, 2010,’’ and that this

investigation should have revealed to him exculpatory

information about the plaintiff’s conduct within the time

period that the defendant was required to make his

report to the department.

This argument fails for two reasons. First, the defendant was mandated by statute to make his report ‘‘as

soon as practicable but not later than twelve hours after

the mandated reporter has reasonable cause to suspect

or believe that a child has been abused or neglected or

placed in imminent risk of serious harm . . . .’’ General

Statutes § 17a-101b (a). Had he waited the two days

necessary for the investigation to be completed, he

would have violated § 17a-101b (a) and potentially subjected himself to criminal prosecution. See General

Statutes § 17a-101a (b)(‘‘[a]ny person required to report

under the provisions of this section who fails to make

such report or fails to make such report within the

time period prescribed in sections 17a-101b to 17a101d, inclusive, and section 17a-103 shall be guilty of

a class A misdemeanor’’ [emphasis added]).

Second, the plaintiff’s argument is not supported by

what he has actually alleged in his complaint. The only

reference in the plaintiff’s complaint to an investigation

occurs in paragraph 12, in which he alleges that ‘‘[t]he

defendant reported the incident to [the department] on

March 10, 2010, despite the fact that the investigation

was not completed until on or about March 12, 2010.’’
This vague assertion, however, tells us nothing specific

about the investigation, except that it was completed

two days after the defendant reported the plaintiff to

the department. Significantly, the plaintiff does not

allege any facts supporting an inference that the defendant actually conducted the investigation prior to making the report, as the plaintiff asserts, or that the

investigation produced any exculpatory information

prior to the defendant making the report that could

have benefited the plaintiff.

The plaintifffinally argues thatin reaching the conclusion that he has not adequately pleaded wanton, reckless, or malicious conduct, the trial court failed both

to consider his allegations in the light most favorable

to him and to indulge every presumption favoring jurisdiction. He further contends that the court incorrectly

assessed the merits of his claims by failing to give sufficient weight to various allegations in his complaint. We

find neither of these contentions persuasive.

With respect to the plaintiff’s first argument, we conclude, on the basis of our review of the court’s memorandum of decision, that the court properly assumed

all of the plaintiff’s allegations to be true and indulged

every presumption favoring jurisdiction. The fact that

the court nevertheless concluded, as do we, that the

plaintiff had failed to allege facts that, if proven, would

overcome the immunity provided by § 4-165, does not

establish that it failed to view his allegations in the

proper light.

As to his remaining argument, namely, that the court

failed to afford sufficient weight to some of his allegations, the plaintiff states incorrectly the standard

applied to a motion to dismiss challenging a court’s

jurisdiction under § 4-165. In his main brief, he argues

that ‘‘[t]he court chose to ignore the substance of the

plaintiff’s complaint, namely, that the defendant knowingly made a false report to [the department]. Instead,

the court inferred from the complaint that the defendant

did not know the exculpatory information when he

made his report and concluded that the fact that the

defendant is a mandated reporter outweighs the defendant’s requirement to make an honest report.’’

The court’s memorandum of decision reveals, however, that it did not infer that the defendant was

unaware of any exculpatory information concerning the

incident in the plaintiff’s classroom. Rather, its decision

manifestly turned on the plaintiff’s failure to allege in

his complaint that the defendant possessed that knowledge at the time that he made his report to the department. ‘‘[I]t is the burden of the party who seeks the

exercise of jurisdiction in his favor . . . clearly to

allege facts [sufficient] to invoke judicial resolution of

the dispute.’’ (Internal quotation marks omitted.) Litvack v. Artusio, 137 Conn. App. 397, 402–403, 49 A.3d

762. The question before us, therefore, is ‘‘whether the
facts as alleged in the pleadings, viewed in the light

most favorable to the plaintiff, are sufficient to survive a

motion to dismiss on the ground of statutory immunity.’’

(Emphasis added.) Martin v. Brady, supra, 261

Conn. 376.

The plaintiff further argues that ‘‘[t]he court also

chose to give little weight to the plaintiff’s allegations

regarding the fact that a substitute teacher, not the

plaintiff, was responsible for supervision. The plaintiff

explicitly alleges that a substitute teacher accepted and

assumed supervision of the classroom and that the student was injured during that time.’’

Here, however, the plaintiff conflates the existence

of exculpatory information with the defendant’s knowledge of that exculpatory information. Although the

plaintiff did allege that another teacher supervised his

classroom while he was in the bathroom, he made no

allegation that the defendant was aware of that fact at

the time that he made his report to the department.

Thus, the court did not fail to give proper weight to

the plaintiff’s allegations; it simply determined that the

mere allegation that exculpatory information existed

was, by itself, not sufficient to establish wanton, reckless, or malicious conduct on the part of the defendant.

Accordingly, we conclude that the plaintiff has failed

to allege facts from which we can infer that the defendant’s conduct was indicative of such a state of mind

or that the conduct rose to the level of egregiousness

necessary to be considered wanton, reckless, or malicious. See Martin v. Brady, supra, 261 Conn. 380. The

trial court therefore properly determined that the defendant was entitled to immunity under § 4-165.3

II

The plaintiff next claims that the court was required

to hold an evidentiary hearing to resolve various issues

of fact before ruling on the defendant’s motion to dismiss. Specifically, the plaintiff claims that an issue of

fact exists as to whether the defendant acted wantonly,

recklessly, and maliciously. We find this claim unpersuasive.

It is well established that ‘‘[i]n the absence of any

disputed facts pertaining to jurisdiction, a court is not

obligated to hold an evidentiary hearing before dismissing an action for lack of jurisdiction.’’ (Internal quotation marks omitted.) Weihing v. Dodsworth, 100 Conn.

App. 29, 39, 917 A.2d 53 (2007); accord West Hartford

v. Murtha Cullina, LLP, 85 Conn. App. 15, 25, 857 A.2d

354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004);

Pinchbeck v. Dept. of Public Health, 65 Conn. App. 201,

209, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d

1029 (2001); see also Weinstein & Wisser, P.C. v. Cornelius, 151 Conn. App. 174, 182, 94 A.3d 700 (2014) (‘‘the

due process requirement of a hearing is required only

when issues of facts are disputed’’ [internal quotation
marks omitted]).4

In the present case, the defendant

did not dispute any of the facts alleged in the plaintiff’s

complaint. Rather, he argued that those facts, even if

assumed to be true, still failed to demonstrate that he

engaged in conduct falling within either of the two

immunity exceptions described in § 4-165.5 Thus, ruling

on the defendant’s jurisdictional challenge did not

depend on resolving any critical factual disputes, but

instead turned solely on the sufficiency of the plaintiff’s allegations.

The plaintiff argues, nonetheless, that an evidentiary

hearing remains necessary because the question of

jurisdiction is intertwined with the merits of his claims.

See Conboy v. State, supra, 292 Conn. 653 (‘‘if the question of jurisdiction is intertwined with the merits of the

case, a court cannot resolve the jurisdictional question

without a hearing to evaluate those merits’’). This principle assumes, however, that the party claiming jurisdiction has met his or her initial burden of alleging facts

that, if true, would establish the court’s jurisdiction.

See Litvack v. Artusio, supra, 137 Conn. App. 402–403

(‘‘[i]t is the burden of the party who seeks the exercise

of jurisdiction in his favor . . . clearly to allege facts

[sufficient] to invoke judicial resolution of the dispute’’

[internal quotation marks omitted]). In the present case,

a hearing on the merits would have been superfluous

because the court had already assumed the plaintiff’s

allegations to be true and still concluded that they were

insufficient to establish that the court had jurisdiction

over the plaintiff’s claims.

Accordingly, we conclude that because none of the

jurisdictional facts alleged in the plaintiff’s complaint

were disputed by the defendant, the court correctly

ruled on the defendant’s motion to dismiss without

holding an evidentiary hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 17a-101e (b) provides: ‘‘Any person, institution or

agency which, in good faith, makes, or in good faith does not make, the

report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103

shall be immune from any liability, civil or criminal, which might otherwise

be incurred or imposed and shall have the same immunity with respect to

any judicial proceeding which results from such report provided such person

did not perpetrate or cause such abuse or neglect.’’

2 Overall, the plaintiff raises four claims on appeal. Specifically, he claims

that the trial court (1) improperly concluded that the defendant was entitled

to statutory immunity pursuant to § 4-165; (2) improperly concluded that

the defendant was entitled to statutory immunity pursuant to § 17a-101e

(b); (3) applied an incorrect standard in deciding the defendant’s motion

to dismiss; and (4) improperly decided the defendant’s motion to dismiss

without conducting an evidentiary hearing.

Our analysis of the plaintiff’s first claim is necessarily intertwined with our

analysis of his third claim. We therefore address both of them concurrently in

part I of this opinion. Because we conclude that the court properly determined that § 4-165 barred the plaintiff’s claims, we need not reach the

plaintiff’s second claim that the defendant was not entitled to immunity

under § 17a-101e (b), or the alternative ground for affirmance raised by the

defendant that the action is barred by sovereign immunity. The plaintiff’s

fourth claim is discussed in part II of this opinion.
3 The plaintiff also claims that the defendant is not entitled to statutory

immunity pursuant to § 4-165 because he acted outside the scope of his

employment when he reported the plaintiff to the department. In his brief, the

plaintiff argues that the defendant acted outside the scope of his employment

solely on the basis that his conduct was wanton, reckless, or malicious. In

our view, however, the inquiry regarding whether a state employee was

acting outside the scope of his or her employment is not necessarily always

coterminous with an inquiry regarding whether the employee’s conduct was

wanton, reckless, or malicious. Accordingly, we conclude that this claim

has not been adequately briefed. See Jalbert v. Mulligan, 153 Conn. App.

124, 133, 101 A.3d 279 (2014) (‘‘[w]e consistently have held that [a]nalysis,

rather than mere abstract assertion, is required in order to avoid abandoning

an issue by failure to brief the issue properly’’ [internal quotation marks

omitted]).

Even if the claim had been adequately briefed, we must conclude that it

is meritless as a matter of law. The defendant’s act of reporting the plaintiff

to the department fell squarely within the scope of his employment duties

because he, as a school administrator, was mandated by statute to promptly

report any suspected cases of physical neglect. See General Statutes §§ 17a101 through 17a-101d. To the extent the plaintiff argues that the defendant

was not acting within the scope of his employment because he knowingly

made a false report, we conclude that no such allegation appears in the

plaintiff’s complaint. See part I of this opinion.

4 We note that although he was not entitled to an evidentiary hearing

under the circumstances of this case, the plaintiff was entitled to present

oral argument in objection to the defendant’s motion to dismiss, which he

did on October 1, 2012.

5 We find it significant that in responding to the defendant’s argument,

the plaintiff made no attempt to identify any disputed jurisdictional facts,

nor did he explicitly request an evidentiary hearing. Instead, he focused

his argument on his contention that the allegations in his complaint were

sufficient to demonstrate that the defendant had engaged in conduct that

was not protected by § 4-165. This procedural history suggests that both

parties recognized that the issue of subject matter jurisdiction turned on

the sufficiency of the plaintiff’s allegations, rather than on the resolution

of disputed jurisdictional facts.