CANNING v. LENSINK, 221 Conn. 346 (1992)

603 A.2d 1155

(14259)Supreme Court of Connecticut

PETERS, C.J., SHEA, GLASS, COVELLO and BORDEN, Js.

Where the state, by statute, waives its immunity to suit, the right to a jury trial cannot be implied, but, rather, must be affirmatively expressed. The named plaintiff, administrator of the estate of his son, S, who had died while a patient in a mental health facility operated by the state, sought damages for the wrongful death of S. Alleging that the negligent care afforded S by the defendant commissioner of the department of mental retardation through his agents, staff members and employees resulted in S’s death, the named plaintiff brought the action under the statute (19a-24) providing that claims for such damages are to be brought against the commissioner in his official capacity and precluding personal liability on the part of the commissioner or his employees. The defendant claimed that the named plaintiff was not entitled to a trial by jury and moved to strike the case from the jury docket. The trial court denied the defendant’s motion, and the defendant, on the granting of certification, appealed to this court. Held that the named plaintiff was not entitled to a trial by jury, and that the defendant’s motion to strike the case from the jury docket should have been granted; an action for damages against the commissioner of mental retardation pursuant to 19a-24 is an action against the state, and the legislature, while waiving the state’s sovereign immunity under that statute, did not specifically provide for the right to a trial by jury.

Argued December 10, 1991

Decision released March 3, 1992

Action to recover damages for the wrongful death of the named plaintiff’s decedent, brought to the Superior Court in the judicial district of New Haven, where the court, Berdon, J., denied the defendant’s motion to strike the complaint from the jury docket, from which the defendant, on the granting of certification, appealed to this court; thereafter, the trial court, sua sponte, ordered reargument on the motion and, after reargument, filed an amended memorandum of decision denying the defendant’s motion to strike, from which the defendant filed an amended appeal to this court. Reversed; further proceedings.

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Carolyn K. Querijero, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

Stephen J. Errante, with whom, on the brief, was Stephen I. Traub, for the appellees (plaintiffs).

SHEA, J.

After the trial court had denied the defendant commissioner’s motion to strike this wrongful death action from the jury docket to which it had been claimed, the commissioner successfully applied for certification that “a substantial public interest is involved, and that delay may work a substantial injustice” in order to appeal from this interlocutory ruling pursuant to General Statutes 52-265a. See Practice Book 4177, 4178. In the appeal the sole issue is whether there is a right to a jury trial in an action for damages brought against the commissioner of mental retardation pursuant to General Statutes 19a-24.[1] We conclude that in such an action there is no such right.

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The plaintiff, John Canning,[2] brought this wrongful death action as administrator of the estate of his son, Shaun Canning, who died on March 14, 1987, after having been admitted as a patient on March 6, 1987, to a residential facility known as California House operated by the department of mental retardation. The complaint alleges that Shaun’s general health was good when he entered the facility, but that, after he became ill on March 11, 1987, the negligent care afforded him by the commissioner, his agents, staff and employees resulted in Shaun’s death three days later. The plaintiff claims damages on behalf of his son’s estate for the

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allegedly wrongful death of his son pursuant to the wrongful death statute, General Statutes 52-555. The plaintiff claimed the case to the jury docket, and the commissioner moved to strike it from that docket.

In denying the commissioner’s motion, the trial court concluded that the issues presented were “substantially of the same nature” as those triable to a jury prior to the adoption of our state constitution in 1818. Swanson v. Boschen, 143 Conn. 159, 165, 120 A.2d 546 (1959). Relying upon article first, 19, of the state constitution, which provides that “[t]he right; of trial by jury shall remain inviolate. . . .” the court, decided that the plaintiff was entitled to a jury trial and, accordingly, denied the commissioner’s motion.

In his appeal the commissioner claims that there is no right of jury trial in this case because: (1) the state is the real defendant; in any action brought against the commissioner pursuant to 19a-24; (2) there is no right to a trial by jury in a suit against t, he state unless the legislature, in waiving the state’s immunity, has provided such a right; and (3) no such right pertaining to a 19a-24 action can be found. We agree with each of these contentions.

I
“We have long recognized the common-law principle that the state cannot be sued without its consent.” Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). “[B]ecause the state can act only through its officers and agents, a suit; against a state officer concerning a matter in which the officer represents the state is, in effect, against. the state.” Id. The complaint in this action alleges that the commissioner is being sued in his official capacity under the authority of 19a-24, subsection (b) of which precludes personal liability on his part “in any civil action for damages on account of any official act or omission of

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any superintendent, director, employee or staff member of any . . . state mental retardation region . . .”

The plaintiff argues that the paragraph of his complaint alleging that his son’s death resulted from the “negligence of the defendant [c]ommissioner of [m]ental [r]etardation, his agents, staff and employees” may reasonably be construed to claim negligence on the part of the commissioner in his personal capacity, as well as his vicarious liability based upon the acts or omissions of the state employees involved in the operation of California House. Such a reading of the complaint, even if otherwise permissible, is precluded by subsection (a) of 19a-24, which expressly requires that an action under the statute be brought against the commissioner in his official capacity. The complaint plainly indicates that the statute is the sole basis for the action.

II
The trial court concluded that, whether or not an action for wrongful death was a recognized cause of action in this state at common law,[3] the underlying cause of action was based on negligence and the issues presented were “substantially of the same nature . . . as prior to 1818 would have been triable to a jury.” Swanson v. Boschen, supra. This court has recognized

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that the constitutional right of jury trial in civil actions depends not on whether the cause of action is statutory, but upon whether it “has roots in the common law,” when no equitable remedy is involved. Skinner v. Angliker, 211 Conn. 370, 375-76, 559 A.2d 701
(1989). In Skinner, however, we held that there was no right of jury trial in an action brought against the state pursuant to General Statutes 31-51q for violation of the first amendment rights of an employee who had been discharged after complaining that he had witnessed other members of the staff abusing patients at a state mental hospital. We concluded that “[n]o principle of common law, prior to 1818, allowed actions against the state for wrongful discharge or related claims” and that “it cannot be maintained that under the common law in 1818 a jury trial was a matter of right for persons asserting a claim against the sovereign . . . .” Id., 377, 380. The United States Supreme Court has held similarly that the seventh amendment to the federal constitution, which provides a right of jury trial “[i]n [s]uits at common law,” does not apply when the action is against the government, because, historically, any such action was barred by the common law doctrine of sovereign immunity. Lehman v. Nakshian, 453 U.S. 156, 162 n. 9, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981); Glidden Co. v. Zdanok, 370 U.S. 530, 572, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); Galloway v. United States, 319 U.S. 372, 388, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943); McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189 (1880).

The trial court attempted to distinguish Skinner on the ground that that suit was based on a statute, 31-51q, for which there was no equivalent cause of action at common law in this state, unlike the present case, which arises out of negligence. The basis for our decision in Skinner, however, is the circumstance that the two officials who were made defendants were

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deemed to represent the state and, therefore, to partake of its sovereign immunity. “While the plaintiff’s arguments may be valid in a suit against a private employer, it is important to remember that the instant action is one against the sovereign” Skinner v. Angliker, supra, 380.

The plaintiff contends that the common law of this state in 1818 imposed liability on public officials for the negligent performance of their duties and cites several cases in which such claims were tried to juries prior to that date. Ackley v. Chester. 5 Day 221 (1811) (action against sheriff for negligent handling and return of execution); Carrington v. Parsons, 4 Day 45 (1809) (action against sheriff for negligence in permitting debtor to escape from jail); Stoyel v. Lawrence, 3 Day 1 (1807) (action against sheriff for false imprisonment arising from arrest of debtor pursuant to expired execution); Avery v. Bulkly, 1 Root 275 (1791) (action against militia officers for trespass, assault and battery committed by troops under their command after their failure to prevent such acts). In none of these cases, however, was the defense of sovereign immunity raised nor does it appear that any recovery would have been satisfied from the state treasury.

In contrast, as we have concluded in part I of this opinion, the plaintiff’s action against the commissioner is based wholly on 19a-24, which provides in subsection (a) that “[d]amages recovered in such action shall be a proper charge against the general fund of the state . . .” thus implicating the state’s sovereign immunity. Furthermore, it is doubtful that the complaint can reasonably be construed to allege any acts of negligence by the commissioner in his individual capacity rather than in his official capacity as the head of the department of mental retardation.[4] The conduct alleged is that

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of the state employees involved in caring for patients at California House, for which the statute makes the commissioner, as the representative of the state, vicariously liable. At common law, “[g]enerally government officers are not vicariously responsible for the acts of their subordinates any more than a foreman or factory superintendent would be though there is an exception — now possibly losing ground — in the case of sheriffs, marshals, and constables who are liable for the acts of their deputies.” (Emphasis in original). 5 F. Harper, F. James, O. Gray, Law of Torts (2d Ed.) 29.8. We adhere to our conclusion in Skinner that, because the doctrine of sovereign immunity barred actions against the state prior to the adoption of the state constitution in 1818, there is no constitutional right; of jury trial in civil actions based on statutes effectively waving such immunity in particular situations. Skinner v. Angliker, supra, 382.

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III
Some statutory waivers of sovereign immunity enacted by the legislature expressly preclude a right of jury trial. See, e.g., General Statutes 4-61 (a) (actions against the state on highway and public works contracts), and 4-160 (e) (actions against the state authorized by the claims commissioner). One statute provides such a right explicitly. General Statutes 13a-144 (damages for injuries sustained on state highways or sidewalks). In the absence of such a specification, we have concluded that the legislature intended that the action should be tried without a jury. “When the state, by statute, waives its immunity to suit, as it has in [19a-24], the right to a jury trial cannot be implied, but rather, must be affirmatively expressed.” Skinner v. Angliker, supra, 381. Since 19a-24 contains no indication of a legislative intention to provide a right of jury trial, we conclude that no such right exists in an action pursuant to the statute.

The plaintiff does not contend that 19a-24 or any other statute explicitly provides a right of jury trial in this action. He maintains, however, that the statute should be construed as substituting for the common law personal liability of negligent state employees in mental hospitals, which subsections (b) and (c) eliminate, the liability of the commissioner and recourse to state funds for payment of any judgment. Such an interpretation would treat 19a-24 as, in effect, an indemnification statute, which would not alter the right of jury trial in an action against the indemnitee for his negligence. Indemnification of state officers and employees for losses resulting from claims of negligence against them is expressly provided by General Statutes 5-141d.[5]

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Furthermore, subsection (d) of 19a-24 requires the state to “indemnify and save harmless each member of the councils or boards of trustees” that are established by statute to perform certain functions relating to the department of mental retardation. The absence of such standard indemnification language in those subsections of 19a-24 pertaining to the commissioner

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indicates that different consequences were intended. Those consequences are the substitution of the state, represented by the commissioner, for the negligent employee as the defendant, and the resulting absence of a right of jury trial because of the state’s sovereign immunity.

The ruling of the trial court is reversed and the case is remanded with direction to grant the motion to strike it from the jury docket.

In this opinion the other justices concurred.