Kruger v. Grauer

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NATHAN KRUGER v. AVERY GRAUER
(AC 38263)
Lavine, Prescott and Mullins, Js.
Argued December 12, 2016—officially released June 6, 2017
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
Daniel P. Scholfield, with whom were Miruna C.
Popescu Voiculescu and, on the brief, Hugh F. Keefe,
for the appellant (defendant).
John R. Williams, for the appellee (plaintiff).
Opinion
MULLINS, J. The defendant, Avery Grauer, appeals
from the judgment of the trial court denying her motion
for summary judgment.1 The issue in this appeal is
whether the court properly concluded that the defen-
dant was not entitled to absolute immunity on the basis
of the litigation privilege for reports of child sexual
abuse that she made to the Department of Children and
Families (department). We conclude that, even if we
were to assume, without deciding, that individuals who
make such reports were entitled to absolute immunity
at common law, the legislature has abrogated that com-
mon-law immunity by affording only qualified immunity
to those who report abuse or neglect pursuant to Gen-
eral Statutes § 17a-101e (b).2 Accordingly, we affirm the
judgment of the trial court.
A review of the pleadings and the documents submit-
ted in conjunction with the motion for summary judg-
ment reveals the following undisputed facts and
procedural history. The plaintiff, a cardiologist, and the
defendant, a psychiatrist, formerly were married and
are the parents of two minor children. On January 24,
2011, the trial court rendered a judgment dissolving the
parties’ marriage. As a result of the divorce, the parties
had shared custody of their two children. On February
20, 2011, the parties’ four year old son purportedly
informed the defendant that the plaintiff had ‘‘hurt’’
his ‘‘tushie’’ and had ‘‘put a stick’’ in his ‘‘tushie.’’ The
defendant did not take any immediate action.
The next day, on February 21, 2011, the parties’ son
purportedly repeated the allegations to the defendant.
The son also told the defendant’s boyfriend, Adam
Joshua Watsky, about this alleged abuse. Watsky sur-
reptitiously recorded the allegations on his cell phone.
The defendant informed Watsky that her son had made
similar allegations the day before. Watsky and the
defendant thereafter discussed what course of action
they should take. Watsky wanted to ‘‘make a report to
a state agency.’’ The defendant, however, convinced
Watsky that they would instead have the parties’ son
repeat the allegations to his therapist, David Meyers,
at his next therapy appointment. They would then seek
Meyers’ opinion as to whether filing a report was neces-
sary. Later that day, the defendant composed an e-mail
describing the son’s purported allegations and sent it
to Meyers.
The next day, February 22, 2011, at the son’s therapy
appointment, Meyers conducted an evaluation of the
child. The defendant was not present for the evaluation.
After the evaluation, however, Watsky, Meyers, and the
defendant had a conversation regarding the allegations.
As a result of that conversation, Watsky believed that
Meyers thought that ‘‘follow-up with a state agency was
required.’’ Acting on this belief, Watsky filed a report
of suspected child abuse with the department later
that day.3
Due to the report of suspected abuse, the department
scheduled an evaluation of the parties’ two children
for February 24, 2011. The evaluation consisted of an
interview and physical examination of the children,
both of which were attended by the defendant at the
department’s request. In the course of the interview
and physical examination, the defendant repeated the
son’s allegations to department personnel, a police offi-
cer, and personnel from Yale-New Haven Hospital’s
Child Sexual Abuse Clinic (Yale Clinic).
After the department evaluation, the defendant
sought a restraining order against the plaintiff on her
children’s behalf for the pendency of the department’s
investigation. A three day hearing concerning the
restraining order took place between March 9 and
March 11, 2011. At the hearing, the defendant testified
as to the allegations made by the son. The court, Abery-
Wetstone, J., however, dismissed the restraining order
application after concluding that the defendant’s testi-
mony was not credible.
After the March, 2011 restraining order hearing, the
department closed its investigation. The department
concluded that the allegations against the plaintiff were
unsubstantiated.
Thereafter, on February 13, 2013, the plaintiff com-
menced the present action, seeking damages from the
defendant for ‘‘falsely and maliciously accus[ing] the
plaintiff of sexually assaulting their four year old son.’’
The plaintiff’s operative complaint contains four differ-
ent causes of action, all of which arise from the report
of sexual abuse that the defendant made to department
and Yale Clinic personnel during the department’s
investigation.4 Specifically, the complaint sounds in (1)
vexatious litigation, (2) defamation, (3) intentional
infliction of emotional distress, and (4) negligent inflic-
tion of emotional distress.
The defendant filed an answer and a special defense
alleging qualified immunity with respect to the claims
for defamation, intentional infliction of emotional dis-
tress, and negligent infliction of emotional distress. As
to the defamation claim, she also alleged that the state-
ments ‘‘were made in truth.’’ The plaintiff filed a reply
denying the allegations of the defendant’s special
defenses.
On December 15, 2014, the defendant filed a motion
for summary judgment. The court heard oral argument
on the motion on March 30, 2015. The defendant argued
that she is entitled to summary judgment on the counts
sounding in defamation, intentional infliction of emo-
tional distress, and negligent infliction of emotional dis-
tress. She contended that those causes of action are
barred because she is entitled to absolute immunity
from suit by virtue of the litigation privilege. According
to the defendant, she is entitled to absolute immunity
for her statements regarding her son’s abuse accusa-
tions pursuant to the litigation privilege because those
statements were made to ‘‘appropriate authorities in
the course of investigating [the son’s] claims of sex-
ual abuse.’’
The plaintiff filed an objection to the defendant’s
motion for summary judgment. In his objection, he
argued that ‘‘the public policy of the state of Connecti-
cut manifestly does not afford immunity, either absolute
or qualified, to those who make false reports of child
abuse.’’
In a memorandum of decision filed July 28, 2015,
the court denied the defendant’s motion for summary
judgment. It rejected the defendant’s argument that she
was entitled to absolute immunity from suit pursuant
to the litigation privilege. The court concluded that the
legislature ‘‘has made clear that a report of suspected
child abuse is entitled to only a conditional or qualified
privilege . . . .’’ In so concluding, it cited § 17a-101e
(b), which provides in relevant part: ‘‘Any person . . .
[who] in good faith, makes, or in good faith does not
make . . . [a report of suspected child abuse to the
department] . . . shall be immune from any liability,
civil or criminal, which might otherwise be incurred or
imposed . . . .’’ (Emphasis added.) Thus, in light of
this statute, the court stated that it would ‘‘[decline]
the defendant’s invitation to undermine the existing
conditional statutory immunity by recognizing an abso-
lute [immunity] under the common law.’’5 This interloc-
utory appeal followed.
On appeal, the defendant claims that the court
improperly determined that the litigation privilege does
not entitle her to common-law absolute immunity for
the statements that she made to department and Yale
Clinic personnel in connection with the department’s
investigation of her son’s alleged sexual abuse. The
crux of the defendant’s claim is that she is entitled
to absolute immunity because affording her absolute
immunity advances the policy underlying that doctrine.
According to the defendant, the policy underlying abso-
lute immunity ‘‘is that in certain situations the public
interest in having people speak freely outweighs the risk
that individuals will occasionally abuse the privilege
by making false and malicious statements.’’ (Internal
quotation marks omitted.)
Thus, she argues that the factual circumstances
underlying this appeal, i.e., a department investigation
of suspected child abuse, presents a situation where
the law encourages people to speak freely, even at the
expense of immunizing individuals who make false and
malicious statements. As support for this argument, the
defendant posits that this state has a ‘‘robust’’ policy
of protecting children from abuse, which is best effectu-
ated by encouraging individuals to speak freely when
reporting suspected child abuse to the department. Con-
sequently, the defendant contends, affording absolute
immunity to individuals who report child abuse to the
department will encourage individuals to speak freely
when making such reports and, therefore, advance the
overarching goal of protecting children.
Additionally, the defendant asserts that the trial court
erred in concluding that § 17a-101e abrogates the abso-
lute immunity that she contends the common law
affords her. Specifically, she argues that the legislature
did not intend to abrogate such common-law immunity
because the statute fails to state in explicit language
that it is abrogating common-law absolute immunity.
We are unpersuaded by the defendant’s arguments.
We begin by setting forth our standard of review and
the relevant law. ‘‘Pursuant to Practice Book § 17-49,
summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. Such questions of law are subject
to plenary appellate review. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The test is whether a party would be enti-
tled to a directed verdict on the same facts.’’ (Internal
quotation marks omitted.) Lega Siciliana Social Club,
Inc. v. St. Germaine, 77 Conn. App. 846, 848, 825 A.2d
827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
‘‘[T]he doctrine of absolute immunity originated in
response to the need to bar persons accused of crimes
from suing their accusers for defamation. . . . The
doctrine then developed to encompass and bar defama-
tion claims against all participants in judicial proceed-
ings, including judges, attorneys, parties, and witnesses.
. . . [T]he purpose of affording absolute immunity to
those who provide information in connection with judi-
cial and quasi-judicial proceedings is that in certain
situations the public interest in having people speak
freely outweighs the risk that individuals will occasion-
ally abuse the privilege by making false and malicious
statements. . . . Put simply, absolute immunity fur-
thers the public policy of encouraging participation and
candor in judicial and quasi-judicial proceedings. This
objective would be thwarted if those persons whom
the common-law doctrine [of absolute immunity] was
intended to protect nevertheless faced the threat of
suit.’’ (Citations omitted; internal quotation marks omit-
ted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 627,
79 A.3d 60 (2013).
‘‘At common law, communications uttered or pub-
lished in the course of judicial proceedings are [pro-
tected by the litigation privilege] so long as they are in
some way pertinent to the subject of the controversy.
. . . [Although] the [litigation] privilege . . . is gener-
ally applied to pertinent statements made in formal
judicial proceedings, [it] also attaches to relevant state-
ments made during administrative proceedings which
are quasi-judicial in nature. . . . Once it is determined
that a proceeding is quasi-judicial in nature, the [litiga-
tion] privilege that is granted to statements made in
furtherance of it extends to every step of the proceeding
until final disposition.’’ (Citation omitted; internal quo-
tation marks omitted.) Chadha v. Charlotte Hungerford
Hospital, 272 Conn. 776, 787–88, 865 A.2d 1163 (2005).
If asked to decide whether a person is entitled to
absolute immunity on the basis of the litigation privi-
lege, ‘‘[w]e must first determine whether the proceed-
ings [in question] were [judicial or] quasijudicial in
nature. The judicial proceeding to which [absolute]
immunity attaches has not been defined very exactly.
It includes any hearing before a tribunal which performs
a judicial function, ex parte or otherwise, and whether
the hearing is public or not. It includes for example,
lunacy, bankruptcy, or naturalization proceedings, and
an election contest. It extends also to the proceedings
of many administrative officers, such as boards and
commissions, so far as they have powers of discretion
in applying the law to the facts which are regarded as
judicial or quasi-judicial, in character.’’ (Internal quota-
tion marks omitted.) Kelley v. Bonney, 221 Conn. 549,
566, 606 A.2d 693 (1992).
‘‘[Once we have] concluded that the statements of
the defendant were made in the context of a judicial or
quasi-judicial process, we must next determine whether
the alleged defamatory statements were made in the
course of that proceeding and whether they related to
its subject matter. . . . In making [the] determination
[of whether a particular statement is made in the course
of a judicial proceeding], the court must decide as a
matter of law whether the . . . statements [at issue]
are sufficiently relevant to the issues involved in a pro-
posed or ongoing judicial [or quasi-judicial] proceeding,
so as to qualify for the privilege. The test for relevancy
is generous . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) Mercer v. Blanchette, 133 Conn.
App. 84, 93–94, 33 A.3d 889 (2012).
Importantly, even if the litigation privilege affords
individuals common-law absolute immunity for state-
ments made in the course of a quasi-judicial proceeding,
the legislature may abrogate such absolute immunity
by statute. See, e.g., Chadha v. Charlotte Hungerford
Hospital, supra, 272 Conn. 787–98. In Chadha, the plain-
tiff, a physician, sued several other physicians for sub-
mitting affidavits expressing concerns to the
Department of Public Health about his ability to safely
practice medicine. Id., 780. The trial court denied the
defendants’ motion for summary judgment, in which
they argued that, because the statements in their affida-
vits were made in the course of a quasi-judicial proceed-
ing, they were entitled to absolute immunity at common
law. Id., 781–82. Upon granting review of the defen-
dants’ interlocutory appeal, our Supreme Court first
determined that the physicians generally would be enti-
tled to absolute immunity at common law because their
affidavits were made in the course of a quasi-judicial
proceeding. Id., 787.
The court, however, then considered what effect Gen-
eral Statutes §§ 19a-17b and 19a-20 had on such com-
mon-law absolute immunity. Id., 790. The court stated:
‘‘General Statutes § 19a-17b (b) provides in relevant part
that [t]here shall be no monetary liability on the part
of, and no cause of action for damages shall arise
against, any person who provides testimony, informa-
tion, records, documents, reports, proceedings, minutes
or conclusions to any . . . professional licensing
board . . . when such communication is intended to
aid in the evaluation of the qualifications, fitness or
character of a health care provider and does not repre-
sent as true any matter not reasonably believed to be
true. . . . General Statutes § 19a-20 provides in rele-
vant part that [n]o member of any board or commission
. . . including a member of a medical hearing panel
. . . and no person making a complaint or providing
information to any of such boards or commissions or
the Department of Public Health as part of an investiga-
tion . . . or a disciplinary action . . . shall, without
a showing of malice, be personally liable for damage
or injury to a practitioner arising out of any proceeding
of such boards and commissions or department.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) Id., 789–90.
On the basis of that statutory language, the court
concluded that there is ‘‘no dispute that the immunity
afforded under §§ 19a-17b and 19a-20 is qualified, rather
than absolute, because those provisions expressly
except from their purview conduct and statements that
are motivated by malice.’’ Id., 790. The court further
determined that ‘‘the only reasonable interpretation’’;
id.; of ‘‘the plain language’’ in §§ 19a-17b and 19a-20 is
that the legislature ‘‘intended to abrogate the common-
law absolute immunity applicable to statements made
in connection with board proceedings.’’ Id., 796. The
court reasoned that there is ‘‘no way to give effect both
to the qualified immunity that those provisions provide,
on the one hand, and to the absolute immunity existing
at common law, on the other. . . . To do so would
require us to ignore the clear legislative mandate of
§§ 19a-17b and 19a-20 that the immunity applicable to
statements falling within the ambit of those provisions
is qualified and not absolute.’’ (Citation omitted; empha-
sis omitted.) Id., 790–91.
Critically, the court in Chadha also rejected the
defendants’ contention that ‘‘the legislature should not
be deemed to have abrogated the common-law absolute
immunity . . . in the absence of express language
accomplishing that end.’’ Id., 796. The Supreme Court
observed that ‘‘[it] never has held that the legislature
cannot implicitly supersede the common law.’’ Id. Not-
withstanding the fact that the statutes at issue did not
expressly abrogate common-law absolute immunity,
the court stated that ‘‘the plain language of §§ 19a-17b
and 19a-20 compels the conclusion that the legislature
intended to abrogate the common-law absolute immu-
nity applicable to statements made in connection with
board proceedings.’’ Id. Accordingly, the court affirmed
the denial of the defendants’ motion for summary judg-
ment. Id., 798.
With the appropriate legal framework in mind, we
now turn to the present case to determine whether the
defendant is entitled to absolute immunity for the report
of child abuse she made to the department. Pursuant
to that framework, our analysis normally consists of
determining whether a department investigation of
child abuse allegations is a quasi-judicial proceeding,
and, if a department investigation is a quasi-judicial
proceeding, whether the defendant’s report was a state-
ment made in the course of that proceeding. See, e.g.,
Kelley v. Bonney, supra, 221 Conn. 566. For purposes
of this appeal, we assume, without deciding, that the
defendant has satisfied these requirements and that she
generally would have been entitled to absolute immu-
nity at common law for her report to the department.
We also conclude, however, that the absolute immu-
nity we have assumed to exist at common law for indi-
viduals making reports to the department has been
legislatively abrogated by § 17a-101e. Accordingly, by
virtue of this statute, the common-law absolute immu-
nity to which individuals making such reports may have
been entitled has been replaced with qualified
immunity.6
Our determination that § 17a-101e (b) abrogates the
absolute immunity that the common law may have
afforded to individuals reporting abuse to the depart-
ment is guided by well established principles.
‘‘[Although] the legislature’s authority to abrogate the
common law is undeniable, we will not lightly impute
such an intent to the legislature. . . . In determining
whether or not a statute abrogates or modifies a com-
mon law rule the construction must be strict, and the
operation of a statute in derogation of the common law
is to be limited to matters clearly brought within its
scope. . . . Although the legislature may eliminate a
common law right by statute, the presumption that the
legislature does not have such a purpose can be over-
come only if the legislative intent is clearly and plainly
expressed. . . . The rule that statutes in derogation of
the common law are strictly construed can be seen to
serve the same policy of continuity and stability in the
legal system as the doctrine of stare decisis in relation
to case law.’’ (Internal quotation marks omitted.)
Chadha v. Charlotte Hungerford Hospital, supra, 272
Conn. 788–89.
Despite the presumption that legislative action is not
in derogation of the common law, we conclude that
§ 17a-101e (b) expresses a clear legislative intent to
abrogate the absolute immunity that the common law
may have afforded to individuals who report child abuse
to the department. In reaching this resolution, we are
guided by our Supreme Court’s reasoning in Chadha.
Here, as in Chadha, we begin our analysis with a
review of the language of the relevant statutory provi-
sions. General Statutes § 17a-103 (a) provides in rele-
vant part that any person ‘‘having reasonable cause to
suspect or believe that any child under the age of eigh-
teen is in danger of being abused, or has been abused
or neglected . . . may cause a written or oral report
to be made to the Commissioner of Children and Fami-
lies or the commissioner’s representative or a law
enforcement agency. . . .’’ Section 17a-101e (b) pro-
vides in relevant part that ‘‘[a]ny person . . . [who] in
good faith, makes . . . the report pursuant to [section]
. . . 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 . . . .’’ (Emphasis added.)
The parties do not dispute that this language clearly
expresses the legislature’s intent that individuals who
make statements that fall within the purview of § 17a-
101e (b) are entitled to qualified immunity rather than
absolute immunity. Indeed, it is well established that
conditioning immunity on the exercise of good faith is
consistent with qualified immunity, not absolute immu-
nity. See, e.g., Villages, LLC v. Longhi, 166 Conn. App.
685, 702–703, 142 A.3d 1162 (2016) (statute granting
immunity to municipal officials ‘‘acting in good faith’’
plainly ‘‘affords qualified immunity, rather than abso-
lute immunity’’ [emphasis omitted; internal quotation
marks omitted]). Given that the meaning of the plain
language of the statute is not disputed, the issue we
must decide is how that language affects the absolute
immunity that we have assumed the common law
afforded to individuals reporting child abuse to the
department. See Chadha v. Charlotte Hungerford Hos-
pital, supra, 272 Conn. 790 (‘‘The issue presented . . .
is not what [the statutes] say; at least with respect to the
nature of the immunity provided thereunder, namely,
qualified immunity, the pertinent statutory language is
unambiguous. The issue that we must decide, rather,
is the effect of that language, if any, on the common-
law absolute immunity . . . .’’ [Emphasis omitted.]).
To start, we agree with the trial court’s general obser-
vation that continuing to recognize absolute immunity
at common law ‘‘could make an end run around the
existing good faith statutory immunity.’’ Put another
way, the statutory immunity and common-law immunity
are irreconcilable when applied to persons making
reports to the department. It is impossible to give effect
both to the qualified immunity provided by § 17a-101e
(b) and any purported absolute immunity that may have
existed at common law. See Chadha v. Charlotte Hun-
gerford Hospital, supra, 272 Conn. 790 (‘‘only reason-
able interpretation’’ of statutes affording qualified
immunity to individuals who give statements to state
medical boards is that they abrogate absolute immunity
that common law afforded to such individuals).
Furthermore, affording absolute immunity to individ-
uals who make reports to the department when the
legislature has stated expressly that such individuals
are entitled to qualified immunity for those reports
undoubtedly would thwart the legislature’s intent to
except from protection individuals who make bad faith
reports. ‘‘It is axiomatic that we do not interpret a stat-
ute in a way that would so blatantly thwart its purpose.’’
Location Realty, Inc. v. Colaccino, 287 Conn. 706, 727,
949 A.2d 1189 (2008). If the legislature wanted to pro-
vide protection to all reporters of abuse, then it cer-
tainly could have done so. As the statute’s plain
language indicates, however, it did not. See Chadha v.
Charlotte Hungerford Hospital, supra, 272 Conn. 793
(‘‘[H]ad the legislature wanted to provide absolute
immunity to those [whose statements] fall within the
ambit of §§ 19a-20 or 19a-17b, it could have done so. It
chose not to.’’ [Internal quotation marks omitted.]).
The fact that § 17a-101e (d) also prescribes criminal
penalties for anyone who ‘‘knowingly makes a false
report of child abuse or neglect’’ is further evidence of
the legislature’s intent to abrogate any absolute immu-
nity that may have existed at common law. See General
Statutes § 17a-101e (d) (imposing $2000 fine, maximum
jail sentence of one year, or both, for false report).
Our Supreme Court has observed that ‘‘it is illogical
to punish someone criminally for engaging in certain
conduct but protect them civilly absolutely and under
all circumstances for the same behavior.’’ (Emphasis
in original.) Hopkins v. O’Connor, 282 Conn. 821, 844,
925 A.2d 1030 (2007) (‘‘we reasonably cannot give effect
both to the imposition of criminal liability that [the
statute] explicitly provides, on the one hand, and to the
absolute immunity existing at common law, on the
other’’).
Finally, we disagree with the defendant’s contention
that the legislature did not abrogate common-law immu-
nity because it failed to use express language accomp-
lishing that end. As discussed previously, in rejecting
a similar argument in Chadha, our Supreme Court
observed that it ‘‘never has [been] held that the legisla-
ture cannot implicitly supersede the common law.’’
Chadha v. Charlotte Hungerford Hospital, supra, 272
Conn. 796. Indeed, the statutes at issue in Chadha did
not state expressly that the legislature was abrogating
absolute immunity. See id.; General Statutes § 19a-17b;
General Statutes § 19a-20. However, the only ‘‘reason-
able interpretation’’; Chadha v. Charlotte Hungerford
Hospital, supra, 790; of ‘‘the plain language of [those
statutes compelled] the conclusion that the legislature
intended to abrogate the common-law absolute immu-
nity . . . .’’ Id., 796.
In the present case, we similarly are compelled to
conclude that the only reasonable interpretation of
§ 17a-101e is that it expresses a clear legislative intent
to abrogate the absolute immunity that the common
law may have afforded to individuals who report child
abuse to the department. Thus, as the defendant’s state-
ments constitute reports of abuse falling within the
purview of § 17a-101e, the trial court properly deter-
mined that the defendant was entitled to only the quali-
fied immunity provided by that statute.
Although our interpretation of the plain language in
§§ 17a-101e and 17a-103 has led us to conclude that the
legislature intended to abrogate the absolute immunity
that the common-law immunity may have afforded to
individuals reporting abuse to the department, the
defendant’s public policy arguments are not lost on us.
Rather, we ultimately recognize that, by enacting these
statutes, the legislature already has performed a careful
evaluation and balancing of the important policy consid-
erations surrounding the reporting of suspected child
abuse.
Indeed, as the defendant highlights, the legislature
has stated expressly: ‘‘The public policy of this state is
. . . [t]o protect children whose health and welfare
may be adversely affected through injury and neglect;
to strengthen the family and to make the home safe for
children by enhancing the parental capacity for good
child care; to provide a temporary or permanent nurtur-
ing and safe environment for children when necessary;
and for these purposes to require the reporting of sus-
pected child abuse or neglect, investigation of such
reports by a social agency, and provision of services,
where needed, to such child and family.’’ General Stat-
utes § 17a-101 (a).
Affording absolute immunity in this context surely
would, as the defendant suggests, encourage individuals
to speak freely in reporting suspected child abuse and,
therefore, aid in the overarching goal of protecting the
welfare of children. The legislature, however, did not
afford such immunity when enacting § 17a-101e.
Instead, it determined, as a matter of policy, that there
are limits on the methods to be used in pursuing the
goal of child protection. Clearly, immunizing individuals
who make bad faith reports exceeds the limitations that
the legislature has imposed on achieving the goal of
child protection.
To be sure, § 17a-101e reflects the determination that,
although child protection is an important goal, its
achievement does not outweigh the harms resulting
from reports of child abuse that are made in bad faith.
That is, by excepting reports made in bad faith from
its purview, the statute contemplates and accounts for
(1) the harm likely inuring to an individual falsely and
maliciously accused of child abuse, and (2) the extent to
which false reports waste limited department resources
and detract from the investigation of real cases of child
abuse. Cf. Gallo v. Barile, 284 Conn. 459, 473–76, 935
A.2d 103 (2007) (‘‘Although some states have concluded
that the statements of complaining witnesses [made to
law enforcement] are subject to absolute immunity
. . . we disagree that an absolute privilege for such
statements is warranted. . . . Although the detection
of crime and the apprehension of criminals are
extremely important goals, their achievement does not
outweigh the harm that is likely to inure to an individual
who is falsely and maliciously accused of criminal mis-
conduct. . . . [Moreover] because the reporting of
false information [to law enforcement] necessarily
interferes with the intelligent exercise of official discre-
tion . . . false reports invariably waste limited law
enforcement resources and deflect police time and
resources away from the investigation and detection
of real crime.’’ [Citations omitted; internal quotation
marks omitted.]).
Thus, in deciding that individuals who report abuse to
the department are entitled to only qualified immunity
rather than absolute immunity, it is clear that the legisla-
ture already weighed the pertinent policy considera-
tions in this context. We must follow that legislative
mandate. It is well settled that ‘‘[our appellate courts]
lack the authority to override [such a] valid expression
of legislative will . . . .’’ Chadha v. Charlotte Hun-
gerford Hospital, supra, 272 Conn. 797. ‘‘[T]he primary
responsibility for formulating public policy resides in
the legislature . . . [and] so, too, does the responsibil-
ity for determining, within constitutional limits, the
methods to be employed in achieving those policy
goals.’’ (Citations omitted.) Thibodeau v. Design Group
One Architects, LLC, 260 Conn. 691, 715, 802 A.2d 731
(2002). ‘‘[Our appellate] court[s] [are] precluded from
substituting [their] own ideas of what might be a wise
provision in place of a clear expression of legislative
will.’’ (Internal quotation marks omitted.) Skindzier v.
Commissioner of Social Services, 258 Conn. 642, 661,
784 A.2d 323 (2001). Accordingly, we agree with the
trial court’s conclusion that ‘‘it is not for a court to
second-guess the legislature’s [express] determination
[in § 17a-101e] that a qualified [immunity] adequately
advances the relevant public policy.’’
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘The denial of a motion for summary judgment ordinarily is an interlocu-
tory ruling and, accordingly, not a final judgment for purposes of appeal.’’
(Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal,
288 Conn. 646, 653, 954 A.2d 816 (2008). ‘‘A denial of a motion for summary
judgment, however, which had been filed on the basis of a colorable claim
of absolute immunity, constitutes an appealable final judgment.’’ (Internal
quotation marks omitted.) Morgan v. Bubar, 115 Conn. App. 603, 608, 975
A.2d 59 (2009).
2
General Statutes § 17a-101e (b) provides in relevant part: ‘‘Any person
. . . [who], in good faith, makes . . . the report pursuant to . . . [section]
. . . 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.’’
General Statutes § 17a-103 (a) provides in relevant part: ‘‘[A]ny . . . per-
son having reasonable cause to suspect or believe that any child under the
age of eighteen is in danger of being abused, or has been abused or neglected
. . . may cause a written or oral report to be made to the Commissioner
of Children and Families or the commissioner’s representative or a law
enforcement agency. . . .’’
3
The record reflects that Meyers never contacted the department himself.
4
Although the defendant presented evidence of her additional statements
to two purported mandated reporters, Watsky and Meyers, the plaintiff’s
complaint does not seek recovery on the basis of these statements. Instead,
the plaintiff refers only to the statements that the defendant made to the
department and to Yale Clinic personnel on February 24, 2011, which is
undisputedly the date on which the defendant was interviewed by such
personnel. Accordingly, we address as a basis for recovery only the state-
ments made to department personnel and the Yale Clinic in connection with
the department’s investigation of the abuse allegations.
5
The defendant asserted both absolute immunity and qualified immunity
as grounds for summary judgment. The court denied the motion for summary
judgment on both grounds. On appeal, however, the defendant challenges
the trial court’s ruling only with respect to its conclusion regarding abso-
lute immunity.
6
At oral argument before this court, the defendant contended that her
statements did not fall within the scope of § 17a-101e. Specifically, she
argued that her statements did not constitute a ‘‘report’’ because she was
not the person who initially related the abuse allegations to the department.
We are unpersuaded.
First, it is clear that the defendant’s statements constituted a ‘‘report.’’ Our
Supreme Court has construed ‘‘report’’ in this context to have its ordinary
dictionary definition. Manifold v. Ragaglia, 272 Conn. 410, 421–22 n.12, 862
A.2d 292 (2004) (defining report as ‘‘[a]n account presented usu[ally] in
detail,’’ ‘‘[t]o make or present an often official, formal, or regular account
of,’’ ‘‘[t]o relate or tell about; present,’’ and ‘‘to carry back and repeat to
another’’ [internal quotation marks omitted]). Accordingly, we conclude that
the defendant’s act of relating her son’s abuse allegations to the department
fits squarely within the definition of ‘‘report.’’ See id., 421 (‘‘[physician’s]
act of describing the result of his examination of the children orally to [a
department social worker], followed by his provision of a written account
of that examination, clearly falls within the common usage of the term
‘report’ ’’).
Second, our Supreme Court has rejected the contention that § 17a-101e
applies only to initial reporters of child abuse. Id., 422, 424 (§ 17a-101e
provides immunity ‘‘to secondary reporters of abuse’’ because statute does
not ‘‘contain any language that . . . limits [its] application to initial report-
ers of child abuse’’ [emphasis omitted]).
The defendant also contended at oral argument that, because Yale Clinic
personnel interviewed her at the department’s request, they were the depart-
ment’s ‘‘agents.’’ On that basis, the defendant claims that her entitlement
to absolute immunity applies not only to her statements to department
personnel, but also to her statements to Yale Clinic personnel. With this
in mind, we conclude that in the limited circumstances of this case, the
defendant’s statements to Yale Clinic personnel constitute a ‘‘report’’ falling
within the scope of § 17a-101e. In other words, because this was a department
investigation and Yale Clinic personnel spoke to the defendant only at the
behest of the department during its investigation, a report to the Yale Clinic
in this very limited context was tantamount to a report to the department.
It logically follows, then, that statements made to Yale Clinic personnel
under these limited circumstances should be subject to the same strictures
that § 17a-101e imposes on statements made to the department. Neverthe-
less, notwithstanding the defendant’s contention, nothing in this opinion
is intended to suggest that Yale Clinic personnel are in fact ‘‘agents’’ of
the department.