Devine v. Fusaro ( 2023 )

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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.
1
The case captions in the trial court, the Appellate Court, and this court
list Michael Devine, in his official capacity as the administrator of the estate
of the decedent, as the named plaintiff, but the summons and operative
complaint listed the estate of the decedent as the named plaintiff. During
oral argument before this court, the issue was raised whether the plaintiff
had standing to invoke the subject matter jurisdiction of the courts given
that an estate is not a legal entity capable of filing suit. Compare Estate of
Rock v. University of Connecticut, 323 Conn. 26, 32, 144 A.3d 420 (2016)
(‘‘It is well established that an estate is not a legal representative. . . . Not
having a legal existence, it can neither sue nor be sued.’’ (Internal quotation
marks omitted.)), with Estate of Brooks v. Commissioner of Revenue Ser-
vices, 325 Conn. 705, 706 n.1, 159 A.3d 1149 (2017) (subject matter jurisdic-
tion exists, despite naming estate as plaintiff, if action is maintained on
behalf of estate by legal entity), cert. denied, U.S. , 138 S. Ct. 1181,
200 L. Ed. 2d 314 (2018). Because we dismiss the certified appeal, we do
not resolve this issue, but the parties and the trial court may address it on
remand. See, e.g., Reinke v. Sing, 328 Conn. 376, 382, 179 A.3d 769 (2018)
(‘‘Subject matter jurisdiction involves the authority of the court to adjudicate
the type of controversy presented by the action before it. . . . The subject
matter jurisdiction requirement may not be waived by any party, and also
may be raised by a party, or by the court sua sponte, at any stage of the
proceedings . . . .’’ (Internal quotation marks omitted.)).