Finkle v. Carroll

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FINKLE v. CARROLL—DISSENT
ROGERS, C. J., with whom PALMER and EVELEIGH,
Js., join, dissenting. The plaintiff, Jennie Finkle, admin-
istratrix of the estate of Barbara A. Eckert (decedent),
contends in this certified appeal that the Appellate
Court improperly concluded that the defendants, the
town of Watertown (town) and John F. Carroll III, a
police officer employed by the town, are entitled to
judgment as a matter of law because the plaintiff’s
action is barred by the statute of limitations and does
not come within the protection of General Statutes § 52-
593.1 The majority concludes that the Appellate Court
properly affirmed the trial court’s grant of summary
judgment in favor of the defendants. For the following
reasons, I disagree.
The factual background and procedural history of
this case, as set forth in the majority opinion, can be
briefly summarized as follows. On the evening of Sep-
tember 28, 2002, the decedent’s former boyfriend, Mark
Tannenbaum, went to the decedent’s home in Water-
town and became embroiled in a dispute with the dece-
dent and a male friend of hers. Tannenbaum ultimately
was arrested by Watertown police and brought to the
police station where he was processed. Later that eve-
ning, Carroll released Tannenbaum on a promise to
appear. Tannenbaum went to the decedent’s home,
where he shot and killed her. He then went to another
location and killed himself.
Thereafter, the plaintiff brought an action against
the town and three of its police officers, Christopher
Marciano, David McDonnell and David Bromley, who
had had dealings with Tannenbaum on the night of the
murder, alleging, among other things, that the individual
officers had been negligent in charging Tannenbaum
and releasing him from custody. After discovering that
Carroll had been solely responsible for releasing Tan-
nenbaum, the plaintiff withdrew her complaint and
brought a second action against Carroll and the town
alleging that Carroll’s negligence had resulted in the
decedent’s death. The defendants filed a motion to dis-
miss the second complaint, claiming that the plaintiff’s
claims were barred by the applicable statute of limita-
tions and were not saved by the application of § 52-
593. The trial court, Brunetti, J., denied the motion. The
defendants then filed a motion for summary judgment
raising essentially the same claim. The trial court,
Ozalis, J., granted that motion. The plaintiff then
appealed to the Appellate Court, which affirmed the
judgment of the trial court. Finkle v. Carroll, 134 Conn.
App. 278, 288, 37 A.3d 851 (2012). This certified appeal
followed. See Finkle v. Carroll, 305 Conn. 907, 44 A.3d
184 (2012).
I begin my analysis with the standard of review. ‘‘The
party moving for summary judgment has the burden of
showing the absence of any genuine issue of material
fact and that the party is, therefore, entitled to judgment
as a matter of law.’’ (Internal quotation marks omitted.)
Cogan v. Chase Manhattan Auto Financial Corp., 276
Conn. 1, 6, 882 A.2d 597 (2005). In addition, the proper
interpretation of § 52-593 is a question of statutory con-
struction that is subject to plenary review. Id., 7. ‘‘In
making such determinations, we are guided by funda-
mental principles of statutory construction.’’ In re Mat-
thew F., 297 Conn. 673, 688, 4 A.3d 248 (2010); see
General Statutes § 1-2z.2 ‘‘[O]ur fundamental objective
is to ascertain and give effect to the apparent intent
of the legislature.’’ (Internal quotation marks omitted.)
Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075
(2008). ‘‘Because [§ 52-593] is remedial in nature, it
should be construed broadly to accomplish its remedial
purpose. . . . In addition, any ambiguities should be
resolved in a manner that furthers, rather than thwarts,
the [statute’s] remedial purposes.’’ (Citation omitted;
internal quotation marks omitted.) DiPietro v. Farm-
ington Sports Arena, LLC, 123 Conn. App. 583, 594, 2
A.3d 963 (2010), rev’d on other grounds, 306 Conn. 107,
49 A.3d 951 (2012).
Section 52-593 provides in relevant part: ‘‘When a
plaintiff in any civil action has failed to obtain judgment
by reason of failure to name the right person as defen-
dant therein, the plaintiff may bring a new action and
the statute of limitations shall not be a bar thereto if
service of process in the new action is made within one
year after the termination of the original action. . . .’’
This court previously has concluded that ‘‘a ‘right per-
son,’ as that term is used in § 52-593, is one who, as a
matter of fact, is a ‘proper defendant for the legal theory
alleged.’ ’’ (Emphasis in original.) Cogan v. Chase Man-
hattan Auto Financial Corp., supra, 276 Conn. 8. Thus,
when the original action has failed as the result of a
mistake as to legal theory, rather than a factual mistake
in identifying the defendant, the second action does
not come within the protection of § 52-593. DiPietro v.
Farmington Sports Arena, LLC, supra, 123 Conn. App.
596. Moreover, when a plaintiff has brought an action
against a proper defendant, the plaintiff’s failure to
name all potentially liable defendants does not trigger
the protection of the statute in a second action brought
against additional defendants. Cogan v. Chase Manhat-
tan Auto Financial Corp., supra, 10–11 (‘‘[t]he fact that
the complaint in the plaintiff’s original action failed to
name all potentially liable defendants’’ does not bring
second action naming additional right defendant within
protection of § 52-593 [emphasis added]); Iello v.
Weiner, 129 Conn. App. 359, 363, 20 A.3d 81 (2011)
(same).
In the present case, the defendants claim that,
because, according to the allegations made by the plain-
tiff in the original action, which were supported by the
documents and affidavits that the defendants submitted
in support of their motion for summary judgment, the
conduct of the individual defendants in that action con-
tributed to the decedent’s death, the Appellate Court
properly concluded that those defendants were proper
defendants for purposes of § 52-593. Therefore, the
defendants contend, the statute does not operate to
save the present action. The plaintiff contends, to the
contrary, that the cases on which the defendants and
the Appellate Court rely are distinguishable from the
present case because in none of them had the plaintiff
failed to obtain a judgment in the original action on the
ground that the plaintiff had mistakenly believed that
the defendants in that action had engaged in specific
negligent conduct that was in fact attributable to the
defendant in the second action. I agree with the plaintiff.
Specifically, I would conclude that, when there are mul-
tiple specifications of negligence in a particular count,
and the plaintiff has mistakenly identified the wrong
person as the party who engaged in one of the specifica-
tions, the plaintiff has ‘‘failed . . . to name the right
person as [a] defendant’’ in that count pursuant to § 52-
593, entitling the plaintiff to invoke the protection of
that statute in a second action against the right
defendant.
I note preliminarily that the defendants do not claim
that the plaintiff did not make a mistake as to the iden-
tity of the person who released Tannenbaum from cus-
tody.3 Instead, the defendants contend that whether the
plaintiff made a mistake in failing to identify Carroll as
that person is ‘‘beside the point’’ because, even if she
did, the defendants in that action were still potentially
liable defendants for purposes of § 52-593 on the basis
of the other allegations of negligence, including their
alleged failure to provide immediate assistant to the
decedent, their failure to inform her of her right to seek
the arrest and pretrial detention of Tannenbaum, and
their failure to remain with the decedent until the threat
of violence was eliminated. See footnote 5 of this dis-
senting opinion. I further note that both trial judges
who addressed the issue agreed that the plaintiff had
made a mistake of fact when she alleged that the individ-
ual defendants in the original action had released Tan-
nenbaum from custody.4 Thus, there is no dispute that
this is not a case in which the plaintiff was ‘‘free to
pursue [Carroll] in the original action but [failed] to
do so for some reason, whether a tactical choice or
technical deficiency.’’ Isidro v. State, 62 Conn. App.
545, 550, 771 A.2d 257 (2001). The defendants also do
not dispute that, if the only allegation of negligence in
the original complaint had been that the defendants
had negligently released Tannenbaum, § 52-593 would
operate to save the second action. Kronberg v. Peacock,
67 Conn. App. 668, 673, 789 A.2d 1091 (‘‘§ 52-593 would
apply in a situation in which a plaintiff erroneously sues
A under the mistaken belief that A negligently operated
or owned a vehicle, when in fact B operated or owned
the vehicle’’), cert. denied, 260 Conn. 902, 793 A.2d 1089
(2002). Rather, the defendants’ sole claim is that § 52-
593 does not apply because the plaintiff’s claims in the
original action ‘‘went far beyond simpl[e] negligence
in the ‘release’ of Tannenbaum, as [the] plaintiff now
attempts to make it appear,’’5 and the claims that were
made against the defendants in the original action, but
that have not been raised against Carroll, would support
a finding of negligence against those defendants.
Accordingly, the defendants contend that the plaintiff
did not ‘‘[fail] to obtain [a] judgment by reason of [her]
failure to name the right person[s] as defendant[s]’’ in
the original action, as required by § 52-593. Instead, the
defendants contend, the plaintiff unilaterally withdrew
the action for no apparent reason. The plaintiff disputes
this claim and contends that, because the ‘‘core theory
of liability’’ in her original action was the allegation that
the defendants had negligently released Tannenbaum
from police custody, she would have been unable to
prove negligence without being able to prove that alle-
gation.6 Thus, she claims that the original action ‘‘was
hopeless without Carroll in the case . . . .’’ Accord-
ingly, she contends that she failed to obtain a judgment
in the original action because of her factual mistake.
I agree with the plaintiff. I recognize that the plaintiff
made allegations of negligent conduct against the indi-
vidual defendants in the original action that she does not
make against Carroll in the present case. See footnote 5
of this opinion. For purposes of § 52-593, however, the
critical point is not that some allegations of negligent
conduct that the plaintiff made in the original case
were made against the right persons. Rather, the critical
point is that, because an allegation of negligent conduct
that the plaintiff raised against Marciano, Bromley and
McDonnell in the original action, namely, that they neg-
ligently released Tannenbaum, had been made against
the wrong person, the plaintiff failed to obtain a judg-
ment against the right defendant, which is all that § 52-
593 requires.7 Thus, this case is distinguishable from all
of the cases on which the defendants and the Appellate
Court rely because, in none of them, had the plaintiff
made a factual mistake in the original complaint as to
the person who engaged in a specific type of negligent
conduct. See Cogan v. Chase Manhattan Auto Finan-
cial Corp., supra, 276 Conn. 10; Iello v. Weiner, supra,
129 Conn. App. 363; Kronberg v. Peacock, supra, 67
Conn. App. 673; Isidro v. State, supra, 62 Conn. App.
550.
Moreover, even the defendants recognize that, if the
plaintiff could have obtained a judgment against the
defendants named in the original action, there would
have been no reason for the plaintiff to withdraw that
action and bring this action against Carroll and the
town. Certainly, the plaintiff could not have gained any
tactical advantage by withdrawing her claims against
the more culpable parties. In any event, as long as the
plaintiff can show that she made a factual mistake
regarding the identity of the person or persons who
engaged in specific allegedly negligent conduct and she
determined that, as a result of the mistake, the action
could not be sustained, I do not believe that it is the
function of the courts to second-guess her judgment as
to the strength of her case against the various defen-
dants for purposes of determining the applicability of
§ 52-593. If the plaintiff has made a misjudgment as to
Carroll’s relative culpability, she has taken the risk that
the defendants will obtain summary judgment in their
favor or successfully persuade the jury that Carroll can-
not be held responsible for the decedent’s death.
Indeed, I can perceive no reason why the plaintiff
should be forced to pursue claims that, as the result of
a factual mistake in identifying the primary wrongdoer,
she has determined to be so weak and marginal that
she cannot prevail on them, any more than a plaintiff
should be bound by the factual allegations of a com-
plaint in which the plaintiff has mistakenly named a
defendant who has no connection to the underlying
events. Cf. Viera v. Cohen, 283 Conn. 412, 435–36, 927
A.2d 843 (2007) (rejecting construction of statutory
apportionment scheme that would require plaintiffs ‘‘to
pursue claims of weak liability against third parties,
thereby fostering marginal and costly litigation in our
courts’’ [internal quotation marks omitted]).
I recognize, of course, that, in order to invoke the
protection of § 52-593, a plaintiff must establish that he
or she mistakenly identified the defendants named
in the original action as the persons who engaged in
specified negligent conduct that, in fact, the newly
named defendant in the second action engaged in. Thus,
under my interpretation, the statute would not apply
when the plaintiff named defendants in the original
action who had a minimal connection to the alleged
injury and then attempted to bring a second action
against another wrongdoer who had greater potential
liability, but who had not engaged in any of the specific
negligent conduct attributed to the defendants in the
original action.
The defendants also contend that § 52-593 does not
apply here because the plaintiff brought the original
action pursuant to General Statutes § 52-557n, and the
town was a proper defendant in that action, from whom
the plaintiff could have recovered the full amount of
damages for the decedent’s injuries and death regard-
less of whether Carroll was named as a defendant. In
paragraph 29 of count three of the operative complaint
in the original action, the plaintiff alleged that the town
was liable ‘‘pursuant to . . . § 52-557n.’’ The defen-
dants point out that, under § 52-557n, a plaintiff may
bring an action directly against a municipality for the
negligence of its employees, without any requirement
that the plaintiff name a negligent employee as a defen-
dant. Spears v. Garcia, 263 Conn. 22, 37, 818 A.2d 37
(2003) (direct cause of action against municipality is
authorized by § 52-557n, without requirement that negli-
gent employee be named as defendant); see also Grady
v. Somers, 294 Conn. 324, 335, 984 A.2d 684 (2009)
(same). The plaintiff contends that, to the contrary,
count three of the operative complaint in the original
action was an indemnification action brought pursuant
to General Statutes § 7-4658 and that, to prevail on that
count, she was required to prove that the individual
defendants had been negligent. Accordingly, the plain-
tiff contends, her factual mistake as to the identity of
the person who released Tannenbaum from custody
fatally undermined the claim.
I would conclude, and the majority agrees, that the
plaintiff intended to raise an indemnification claim
against the defendants pursuant § 7-465 in the original
action, not a claim pursuant to § 52-557n. See Boone v.
William W. Backus Hospital, 272 Conn. 551, 559, 864
A.2d 1 (2005) (‘‘[t]he interpretation of pleadings is
always a question of law for the court’’ [internal quota-
tion marks omitted]). First and foremost, if the plaintiff
had intended to bring a claim directly against the town
pursuant to § 52-557n in the original action, there would
have been no reason for her to withdraw the complaint
upon learning of her factual mistake and to bring a
second action against Carroll. The defendants have
pointed to no conceivable tactical advantage that the
plaintiff could have gained by following that course if
she had intended to bring an action against the town
pursuant to § 52-557n. Second, and relatedly, there
would have been no need for the plaintiff to name
Marciano, Bromley and McDonnell as defendants in the
first instance if she had intended to bring an action
pursuant to § 52-557n. As between §§ 52-557n and 7-
465, only § 7-465 requires a plaintiff to establish the
liability of municipal employees. Kostyal v. Cass, 163
Conn. 92, 97, 302 A.2d 121 (1972) (‘‘[w]hatever may be
the full scope and effect of [§ 7-465], in no event may the
municipality be held liable under it unless the municipal
employee himself becomes obligated to pay [sums] by
reason of the liability imposed upon . . . [him] by law
for physical damages to person or property’’ [internal
quotation marks omitted]); compare Spears v. Garcia,
supra, 263 Conn. 37 (plaintiff is not required to name
individual employees as defendants in action pursuant
to § 52-557n). Third, the plaintiff’s reference to § 52-
557n was contained in paragraph 29 of count three of
the operative complaint, which count was expressly
captioned, ‘‘Indemnification as to Defendant Town of
Waterbury.’’ Section 7-465, not § 52-557n, is the statute
that authorizes an indemnification action against
municipalities and their employees. See Gaudino v.
Hartford, 87 Conn. App. 353, 356, 865 A.2d 470 (2005)
(‘‘Section 52-557n allows an action to be brought
directly against a municipality for the negligent actions
of its agents. Section 7-465 allows an action for indemni-
fication against a municipality in conjunction with a
common-law action against a municipal employee.’’).
Fourth, in paragraph 28 of count three, the plaintiff
expressly alleged that, ‘‘[p]ursuant to . . . § 7-465
. . . all municipalities must indemnify and pay on
behalf of their employees, all sums their employees
become obligated for by reason of liability imposed
by laws.’’ (Emphasis added.) Finally, in the concluding
paragraph of count three, paragraph 31, the plaintiff
stated, ‘‘[t]herefore,’’ i.e., for all of the reasons set forth
in the foregoing paragraphs of the count, including para-
graph 29 referring to § 52-557n, ‘‘pursuant to . . . § 7-
465, the plaintiff claims, and is entitled to, indemnity
from the [t]own . . . for all sums awarded to the plain-
tiff against the defendants for the claims set forth in
this complaint.’’ (Emphasis added.)
I would also conclude that the fact that the town
was a proper defendant in the original indemnification
action pursuant to § 7-465 does not bar the plaintiff
from bringing the second action pursuant to § 52-593.
Section 7-465 effectively imposes vicarious liability on
municipalities for the negligence of their employees.
See Sanzone v. Board of Police Commissioners, 219
Conn. 179, 193, 592 A.2d 912 (1991) (‘‘[§] 7-465 [a] effec-
tively circumvented the general common law immunity
of municipalities from vicarious liability for their
employees’ acts’’); see also Kostyal v. Cass, supra, 163
Conn. 97 (‘‘in no event may the municipality be held
liable under [§ 7-465] unless the municipal employee
himself becomes obligated’’ [internal quotation marks
omitted]). Thus, if a plaintiff raising a claim pursuant
to § 7-465 were unable to obtain a judgment against the
individual employee named as the defendant because
the plaintiff had identified the wrong employee as the
active wrongdoer, the plaintiff would also be unable to
obtain a judgment against the town. The defendants
have cited no authority for the proposition that, when
a plaintiff has claimed that an entity that is vicariously
liable for the negligence of a person who was mistakenly
identified as the active tortfeasor, a second action
against the actual active tortfeasor and the vicariously
liable defendant does not come within the protection
of § 52-593.
To the extent that the defendants claim that the pre-
sent action is barred because, in the original action, the
plaintiff brought a separate claim directly against the
town pursuant to § 52-557n9 for its alleged negligence
in failing to adopt guidelines for arrests in incidents of
family violence, as required by General Statutes § 46b-
38b (e), I also disagree. This claim against the town
was not premised on the town’s vicarious liability for
the alleged negligence of Marciano, Bromley and
McDonnell, but was directly against the town and was
based on entirely separate and distinct conduct, namely,
the town’s alleged negligence in failing to adopt opera-
tional guidelines for arrests involving family violence.
Again, the defendants in the present case have cited no
authority for the proposition that, when a plaintiff has
filed a multicount complaint in the original action and,
in one of the counts, the plaintiff has made a factual
mistake as to the identity of the actual tortfeasor, the
plaintiff is barred from invoking the protection of § 52-
593 in a second action making the same allegations
against the right defendant because, in the original
action, the plaintiff named a proper defendant in an
entirely independent count involving a different active
wrongdoer and different conduct. 10
Accordingly, I would conclude that, because the
plaintiff made a factual mistake when she identified
the individual defendants in the original action as the
persons who were responsible for releasing Tannen-
baum from custody, the present action comes squarely
within the protection of § 52-593. Indeed, § 52-593 is
remedial in nature and must be construed broadly to
accomplish its purpose of alleviating the harsh conse-
quences of enforcing a statute of limitations when the
plaintiff has failed to obtain a judgment in the original
action because he or she made a factual mistake as to
the identity of the person who engaged in the allegedly
negligent conduct. See DiPietro v. Farmington Sports
Arena, LLC, supra, 123 Conn. App. 594. Moreover, my
conclusion is ‘‘consistent with the legislative [policy]
that . . . the plaintiff be fully compensated and [the]
defendants pay their fair share . . . .’’ Viera v. Cohen,
supra, 283 Conn. 436; see also Hanks v. Powder Ridge
Restaurant Corp., 276 Conn. 314, 327, 885 A.2d 734
(2005) (‘‘[t]he fundamental policy purposes of the tort
compensation system [are] compensation of innocent
parties, shifting the loss to responsible parties or distrib-
uting it among appropriate entities, and deterrence of
wrongful conduct’’ [internal quotation marks omitted]).
Accordingly, I would conclude that the Appellate Court
improperly determined that the plaintiff was barred
from invoking the protection of § 52-593 on this ground.
The majority does not appear to disagree with my
conclusion that the plaintiff made a mistake of fact that
prevented her from obtaining a judgment against Carroll
under her original complaint as it was actually drafted.
Nevertheless, it contends that § 52-593 does not apply
here because the plaintiff could have obtained a judg-
ment in her favor in the original action if she had
amended the fourth count of the operative complaint
alleging negligence directly against the town pursuant
to § 52-557n to include an allegation that Carroll was
negligent. I disagree with this analysis. First, because
the defendants did not raise this claim on appeal and
the parties have not had an opportunity to brief it, it
is not properly before the court. Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 162, 84 A.3d 840 (2014) (‘‘if the
reviewing court would have the discretion to review
[an issue not involving subject matter jurisdiction, plain
error or constitutional error that was not preserved in
the trial court or raised on appeal] because important
considerations of justice outweigh the interest in
enforcing procedural rules governing the preservation
of claims and adversarial principles, the court may raise
the claim sua sponte, as long as it provides an opportu-
nity for all parties to be heard on the issue’’ [emphasis
added]). Indeed, all of the arguments raised by the par-
ties address the question of whether the plaintiff made
a mistake of fact in her original complaint that would
entitle her to invoke § 52-593. The defendants have not
remotely suggested that, even if the plaintiff did make
a mistake of fact of a type that would ordinarily allow
a plaintiff to invoke the protection of § 52-593, the plain-
tiff cannot invoke the statute because she could have
prevailed under a legal theory that she did not allege.
Second, even if I were to assume that the majority
is correct that the plaintiff would have been permitted
to amend her complaint in the manner that it suggests,
I see no reason why she should be required to do so.
The plaintiff had the unconditional right to bring an
action against the individual defendants on the basis
of their negligent conduct pursuant to § 7-465 or to
bring an action against the town on the basis of that
conduct pursuant to § 52-557n, the election of remedy
being in her sole discretion. Section 52-593 uncondition-
ally allows a plaintiff who is unable to obtain a judgment
on a claim that has been properly raised because he
or she named the wrong defendant to bring a second
action against the right defendant after the statute of
limitations has expired. The statute does not require a
plaintiff to change an otherwise proper complaint in
whatever manner might be required to obtain a judg-
ment despite the fact that the plaintiff failed to name
the right defendants. Significantly, the majority does
not contend that the plaintiff would be able to obtain
a judgment in her favor on the basis of the individual
defendants’ allegedly negligent conduct under the
existing allegations of the operative complaint.
The majority does claim, however, that allowing the
plaintiff to invoke § 52-593 in the present case would
have ‘‘negative consequences for judicial economy, by
permitting an entirely new action to be litigated in lieu
of the relatively simple step of amending the complaint
in the original action . . . [and] also raises the
improper specter of a plaintiff filing ‘successive com-
plaints . . . naming different defendants, all of whom
were proper, thereby permitting the plaintiff to take
the proverbial second, third or even fourth bite of the
apple, [which] could lead to unrestrained filings in cases
with multiple defendants and open the door to endless
litigation.’ [Cogan v. Chase Manhattan Auto Financial
Corp., supra, 276 Conn. 11].’’ (Footnote omitted.) This
ritual incantation of boilerplate language does nothing
to bolster the majority’s conclusion, however, because
the plaintiff did not file ‘‘successive complaints . . .
naming different defendants, all of whom were proper
. . . .’’ (Internal quotation marks omitted.) Cogan v.
Chase Manhattan Auto Financial Corp., supra, 11.
Rather, she filed a complaint in which she mistakenly
attributed specific negligent conduct to the wrong
defendants, and she then withdrew that complaint and
filed a second complaint in which she attributed the
same negligent conduct to the right defendants. This
is precisely the situation to which § 52-593 was intended
to apply. Thus, any ‘‘negative consequences for judicial
economy’’ as referenced by the majority that might arise
from allowing the plaintiff and similarly situated plain-
tiffs to invoke § 52-593 are contemplated by the statute
and cannot constitute a reason for barring its applica-
tion. Moreover, there is no reason to believe that
allowing the plaintiff to invoke the protection of § 52-
593 will result in ‘‘unrestrained filings’’ and ‘‘endless
litigation’’; see Cogan v. Chase Manhattan Auto Finan-
cial Corp., supra, 11; because there is no reason to
believe that large numbers of plaintiffs mistakenly attri-
bute specific negligent conduct to the wrong defendant.
Finally, even if I agreed with the majority’s analysis,
I would not agree that the plaintiff reasonably could
have anticipated on the basis of the plain language of
§ 52-593 or of this court’s precedents that she would
be barred from invoking that statute and, instead, would
be required to abandon her legitimate claim directly
against the individual or individuals who were responsi-
ble for releasing Tannenbaum from custody pursuant
to § 7-465 and amend her complaint to bring a claim of
vicarious liability against the town pursuant to § 52-
557n. Accordingly, I believe that, rather than affirming
the judgment in favor of the defendants, fairness
requires the majority to remand the case to the trial
court with direction to reinstate the withdrawn action
and to afford the plaintiff an opportunity to amend her
complaint. See Lusas v. St. Patrick’s Roman Catholic
Church Corp. of Waterbury, 123 Conn. 166, 169, 193 A.
204 (1937) (‘‘[w]here a case is withdrawn . . . the
order of the court granting permission to withdraw is
essential to prevent further action in the case, and that
order, like any other, can of course be vacated or modi-
fied’’); cf. Galland v. Bronson, 16 Conn. App. 54, 57,
546 A.2d 935 (Appellate Court has ‘‘power over the
control of its own docket’’ and has authority to reinstate
withdrawn appeal), cert. denied, 209 Conn. 820, 551
A.2d 755 (1988).
For the foregoing reasons, I would reverse the judg-
ment of the Appellate Court upholding the trial court’s
grant of the defendants’ motion for summary judgment.
Accordingly, I dissent.
1
General Statutes § 52-593 provides in relevant part: ‘‘When a plaintiff in
any civil action has failed to obtain judgment by reason of failure to name
the right person as defendant therein, the plaintiff may bring a new action
and the statute of limitations shall not be a bar thereto if service of process
in the new action is made within one year after the termination of the
original action. . . .’’
2
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
3
The defendants contend that ‘‘the plaintiff in this case was not mistaken
about the identity of the proper defendants when she commenced [the
original action].’’ (Emphasis in original.) Because they never disputed the
plaintiff’s claim that she did not learn about Carroll’s involvement until she
conducted discovery, however, it is apparent that the defendants are claim-
ing only that the plaintiff correctly believed that the defendants in the original
action were proper defendants because a reasonable jury could conclude
that their conduct contributed to the decedent’s death even if they did not
release Tannenbaum.
4
In his memorandum of decision on the defendants’ motion to dismiss,
Judge Brunetti stated that ‘‘the plaintiff erroneously sued Marciano, Bromley
and McDonnell under the mistaken belief that they had negligently released
Tannenbaum, when in fact Carroll was the individual who had done so
. . . .’’ In her memorandum of decision on the defendants’ motion for sum-
mary judgment, Judge Ozalis stated that this was not a case ‘‘where the
plaintiff failed to name all of the potentially liable defendants’’ in the original
action, but ‘‘the plaintiff made a reasonable and honest mistake of fact in
naming the original [defendants] . . . .’’
5
Specifically, the defendants rely on the following allegations in count
two of the operative complaint in the original action, dated October 8, 2004,
alleging negligence per se against the individual defendants: ‘‘The defendants
violated the provisions of . . . General Statutes § 46b-38b (a), (b) and (d)
in that they failed to properly evaluate [the] plaintiff’s decedent’s complaint
to determine the appropriate charges and bond conditions to impose on
Tannenbaum; and the defendants violated the provisions of . . . § 46-38b
(d) by: (1) failing to provide immediate and adequate assistance to the
plaintiff’s decedent; (2) failing to adequately inform the plaintiff’s decedent
of her right to seek the arrest and pretrial detention of Tannenbaum; (3)
failing to adequately inform the plaintiff’s decedent of services available at
the Office of Victim Services; (4) failing to remain with the plaintiff’s dece-
dent for a reasonable time until, in their reasonable judgment, the likelihood
of further imminent violence was eliminated; and (5) failing unreasonably
to take appropriate steps to prevent further contact between Tannenbaum
and the plaintiff’s decedent.’’
6
Specifically, the plaintiff alleged in the original action that the individual
defendants ‘‘charged Tannenbaum with only one misdemeanor, disorderly
conduct, and, rather than setting a high bond on Tannenbaum with heavy
restrictions, released him on a promise to appear in court with no bond or
special restrictions at all.’’ The plaintiff further alleged that, despite Tannen-
baum’s known history of domestic disputes with the decedent, ‘‘the defen-
dants did nothing more than charge Tannenbaum with one misdemeanor
and release him from their custody without bond.’’
7
The following examples illustrate this point. If a plaintiff brought a
complaint identifying A, B and C as the negligent parties, and then discovered
that D had actually engaged in the negligent conduct that the plaintiff had
mistakenly attributed to C, I can perceive no reason why, if the plaintiff
failed to obtain judgment against C, the plaintiff would be barred from
bringing a claim against D under the wrong defendant statute, even though
A and B continued to be proper defendants. This would not be a case in
which the plaintiff brought an action against A, B and C and then discovered
that, in addition to A, B and C, D had engaged in negligent conduct. Compare
Cogan v. Chase Manhattan Auto Financial Corp., supra, 276 Conn. 10
(‘‘[t]he fact that the complaint in the plaintiff’s original action failed to
name all potentially liable defendants’’ did not bring second action within
protection of § 52-593 [emphasis added]); Iello v. Weiner, supra, 129 Conn.
App. 363 (same). Similarly, I can perceive no reason why, if a plaintiff
identified A, B and C as the negligent parties when only D had actually
engaged in one of the acts of specific negligent conduct that the plaintiff
had mistakenly attributed to A, B and C, and, as a result, the plaintiff failed
to obtain a judgment against A, B and C, the plaintiff should be barred from
bringing an action against D for his negligent conduct, even though A, B
and C engaged in separate conduct that might subject them to weak or
marginal negligence claims.
8
General Statutes § 7-465 (a) provides in relevant part: ‘‘Any town, city
or borough, notwithstanding any inconsistent provision of law, general,
special or local, 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 damages awarded for
infringement of any person’s civil rights or for physical damages to person
or property . . . .’’
9
The operative complaint in the original action refers to General Statutes
§ 52-577n. Because no such statute exists, however, it is reasonable to
conclude that the complaint contains a typographical error, and the plaintiff
intended to refer to § 52-557n.
10
The majority contends that my interpretation of § 52-593 ‘‘is inconsistent
with the plain language of the statute, which refers to the ‘fail[ure] to obtain
judgment’ ‘in any civil action’ in a global sense, and does not contemplate
a failure to obtain judgment with respect to any particular defendant or
claim when other viable claims exist within the plaintiff’s original civil
action. It also is inconsistent with Cogan v. Chase Manhattan Auto Financial
Corp., supra, 276 Conn. 10–11, Iello v. Weiner, supra, 129 Conn. App. 361–62,
and Kronberg v. Peacock, supra, 67 Conn. App. 673–74, wherein the inclusion
of properly named parties in an earlier action was held to bar the use of
§ 52-593 to save later actions against different defendants under different
legal theories, along with [this court’s] admonition in Cogan against allowing
multiple ‘bites at the apple.’ Cogan v. Chase Manhattan Auto Financial
Corp., supra, 11.’’ See footnote 19 of the majority opinion. Thus, the majority
appears to conclude that, even if the plaintiff was prevented from obtaining
a judgment against the individual defendants as the result of a factual
mistake, § 52-593 does not apply because the plaintiff was not prevented
by any factual mistake from obtaining a judgment against the town pursuant
to § 52-557n for its alleged negligence in failing to adopt operational guide-
lines for arrests involving family violence. This conclusion—with which I
disagree—would appear to be dispositive of the appeal. Accordingly, it is
unclear to me why the majority devotes the bulk of its opinion to establishing
that the plaintiff cannot invoke § 52-593 because she could have amended
her complaint to include that negligence allegation against Carroll in her
claim against the town pursuant to § 52-557n.