DocketNumber: No. CV95 0321569 S
Judges: RADCLIFFE, J.
Filed Date: 10/26/1998
Status: Non-Precedential
Modified Date: 4/17/2021
A maintenance worker employed by Western Connecticut State University, the plaintiff was walking across a parking lot when he was struck by a police car operated by the defendant, Leonard W. Silva.
Both the plaintiff and the defendant were employed by Western Connecticut State University, and both were acting within the scope of their employment at the time of the incident. CT Page 12338
The plaintiff applied for and received Workers' Compensation benefits, and also instituted a claim against the State of Connecticut through the Claims Commissioner.
Count one of the five count complaint alleges that the plaintiff's injuries were caused by the negligent operation of a motor vehicle by Leonard W. Silva.
In count two, the plaintiff asserts that Silva's conduct was reckless.
Counts three and four named the defendants, Department of Administrative Services and Western Connecticut State University, respectively, under the theory of Respondeat superior. The plaintiff does not contest the motion for summary judgment as to these counts, and it is therefore granted by agreement.
Count five is a direct action against the State of Connecticut, pursuant to the provisions of §
The defendants, Leonard W. Silva and the State of Connecticut, move for summary judgment as to each of the remaining counts, counts one, two and five.
Each claim will be discussed separately.
In deciding a motion for summary judgment, the trial court must view all of the evidence in the light most favorable to the nonmoving party. Home Ins. Co. v. Aetna Life Casualty Co.,
The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict. United Oil Co.v. Urban Redevelopment Commission,
Section
No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.
The plaintiff counters that §
Section
If an employee . . . has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee . . . unless such . . . action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section
14-1 .
The Connecticut Supreme Court confronted this issue inMcKinley v. Musshorn,
In McKinley, the plaintiff sought to maintain an action against a fellow employee, claiming personal injuries as a result CT Page 12340 of the negligent operation of a motor vehicle.
The court, in reconciling the provisions of §
Section
Because count one involves allegations of negligence against the defendant, Leonard W. Silva, a co-employee of the plaintiff, it is barred by the provisions of §
This holding does not leave the plaintiff without a remedy. That remedy, however, must proceed through the Claims Commissioner. McKinley v. Musshorn, supra, 621.
That section reads:
Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.
The plaintiff argues that §
The argument is not persuasive.
The state cannot be sued without its consent. Sentner v.Board of Trustees of Regional Community Colleges,
Absent any intent to create a second cause of action for state employees already entitled to Workers' Compensation benefits, the plaintiff's claim against the state must fail.Sullivan v. State, supra, 555 n. 7.
Unlike negligence, recklessness involves intentional conduct. It involves a design to injure, either actually entertained, or implied from conduct and circumstances. Dubay v. Irish,
Negligence, on the other hand, involves the failure to use the degree of care and skill which ordinarily prudent persons would use under the circumstances. Hoelter v. Mohawk Service,Inc.,
Since neither §
It should be noted, however, that the count has combined allegations of reckless conduct with those which appear to be purely negligent.
Proof at trial would be limited to reckless conduct, not that more accurately described as negligent or unintentional. Framing a single count to allege both negligent and reckless, willful or wanton conduct would be improper. Brown v. Branford, supra, 108.
The motion for summary judgment, as to counts one, three, four and five is granted. CT Page 12342
The motion for summary judgment as to count two is denied.
Radcliffe, J.