Perez v. University of Connecticut , 182 Conn. App. 278 ( 2018 )

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CHRISTIAN PEREZ ET AL. v. UNIVERSITY OF
CONNECTICUT ET AL.
(AC 38829)
DiPentima, C. J., and Lavine and Prescott, Js.
Syllabus
The named plaintiff, P, sought to recover damages from the defendant state
of Connecticut for personal injuries he sustained following a slip and
fall on the campus of the University of Connecticut. After the claims
commissioner denied P’s claim, the General Assembly authorized P to
bring this action pursuant to statute (§ 4-159 [b] [1] [B] [ii]). The trial
court granted the state’s motion to strike the matter from the jury list
on the basis of the statute (§ 4-160 [f]) that provides that ‘‘such actions
shall be tried to the court without a jury.’’ Thereafter, the matter was
tried to the court, which rendered judgment in favor of the state. P
appealed to this court claiming that the trial court improperly granted
the state’s motion to strike his action from the jury list. Held:
1. P’s claim that he had a constitutional right to a jury trial under article
first, § 19, of the Connecticut constitution was unavailing: to be entitled
to a jury trial under article first, § 19, of the state constitution, the cause
of action alleged must be the same or similar in nature to an action that
could have been tried to a jury in 1818 and it must be brought against
a defendant who was suable at common law in 1818, and given the
common-law principle that the state cannot be sued without its consent
and is entitled to sovereign immunity, P failed to establish that he would
have been able to bring the present action seeking money damages
against the state prior to 1818 and, therefore, the state constitution did
not afford him a constitutional right to a jury trial in this case; moreover,
the fact that a litigant was able to bring an action against a municipality
prior to 1818 did not support P’s claim that he had a right to a jury trial
in the present case, as a municipality and the state are fundamentally
different entities, and towns have no sovereign immunity and are capable
of suing and being sued.
2. P could not prevail on his claim that he had a right to a jury trial pursuant
to §§ 4-159 (c) and 4-160 (c), which was based on his claim that those
statutes mandate that a litigant who is granted permission by the General
Assembly to bring an action against the state pursuant to § 4-159 has
the same rights as would a theoretical litigant who brought that action
against a private person: it was clear from the plain language of § 4-159
(c) that the legislature did not intent to confer the right to a jury trial
on P, or any other litigant authorized to bring a claim under § 4-159,
which does not use the phrase ‘‘jury trial’’ or refer to a litigant’s personal
rights, but merely addresses the standard under which the General
Assembly will decide whether to waive sovereign immunity; moreover,
P’s claim regarding § 4-160 (c) was undermined by the fact that a separate
subsection of that same statute, namely, § 4-160 (f), expressly provides
that actions brought against the state pursuant to § 4-159 shall be tried
to the court, and the interpretation of § 4-160 (c) suggested by P was
unreasonable because it would compel a result contrary to the plain
language of § 4-160 (f), which evinced a clear legislative intent that
actions brought against the state pursuant to the General Assembly’s
waiver of sovereign immunity must be tried to the court, not a jury.
Argued February 13—officially released May 29, 2018
Procedural History
Action seeking to recover damages for personal injur-
ies sustained by the named plaintiff as a result of the
defendants’ alleged negligence, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the court, Bellis, J., dismissed the
action as to the plaintiff Kleber O. Perez; thereafter,
the court, Arnold, J., dismissed the action as to the
named defendant; subsequently, the court, Hon. George
N. Thim, judge trial referee, granted the state’s motion
to strike the action from the jury list; thereafter, the
matter was tried to the court, Hon. Edward F. Stodol-
ink, judge trial referee; judgment for the state, from
which the named plaintiff appealed to this court.
Affirmed.
Lee Samowitz, for the appellant (named plaintiff).
Michael McKenna, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (state).
Opinion
PRESCOTT, J. The issue in this appeal is whether
the plaintiff Christian Perez1 has the right to a jury trial
in a negligence action for monetary damages against
the defendant, the state of Connecticut.2 The plaintiff
was authorized to bring his action against the state by
the General Assembly pursuant to General Statutes § 4-
159 (b) (1) (B) (ii). Following a trial to the court, judg-
ment was rendered in favor of the state. The plaintiff
now appeals from the judgment, claiming that the court
improperly granted the state’s motion to strike his
action from the jury list.3 We affirm the judgment of
the court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. On July 15, 2009,
the plaintiff filed a claim with the Office of the Claims
Commissioner against the state. The claim related to an
incident that occurred on the University of Connecticut
campus in Storrs on February 22, 2009. On that day,
the plaintiff, then a full-time student at the University
of Connecticut, fell on ice and injured his knee in a
parking lot reserved for media vehicles near Gample
Pavilion.
On June 22, 2012, the claims commissioner held a
formal hearing on the plaintiff’s claim. The claims com-
missioner subsequently denied the plaintiff’s claim
against the state on October 26, 2012. Pursuant to Gen-
eral Statutes § 4-158 (b), the plaintiff requested review
by the General Assembly of the claims commissioner’s
denial of his claim.4 On May 20, 2013, the General
Assembly reviewed the plaintiff’s claim, vacated the
claims commissioner’s denial, and adopted a resolution
authorizing the plaintiff to ‘‘institute and prosecute to
final judgment an action against the state to recover
damages as compensation for injury to [his] person’’
pursuant to § 4-159 (b) (1) (B) (ii).5
On February 20, 2014, the plaintiff filed an action
against both the University of Connecticut and the state
of Connecticut in the judicial district of Fairfield seek-
ing monetary damages. The plaintiff’s action against the
University of Connecticut subsequently was dismissed.6
On February 10, 2015, the plaintiff filed a revised com-
plaint against the remaining defendant, the state. Count
one of the revised complaint alleged that the state had
acted negligently in failing to properly clear the snow
and ice in the parking lot in which the plaintiff fell.
Count two alleged that the state had acted with reckless
disregard for the safety and welfare of University of
Connecticut students.
In response to the plaintiff’s revised complaint, the
state denied that it had acted negligently or recklessly
with respect to the conditions in the parking lot on the
day the plaintiff was injured. The state also alleged as
a special defense that the plaintiff was contributorily
negligent in causing his injuries.
On July 2, 2015, the plaintiff claimed the action to
the jury trial list. On July 6, 2015, the state filed a motion
to strike the plaintiff’s action from the jury list. In its
accompanying memorandum, the state argued that the
plaintiff had no right to a jury trial in an action against
the state where sovereign immunity had been waived
pursuant to § 4-159 because General Statutes § 4-160 (f)
expressly provides that ‘‘[i]ssues arising in such actions
shall be tried to the court without a jury.’’
In response to the state’s motion to strike the plain-
tiff’s action from the jury list, the plaintiff argued that
the ‘‘actions’’ referenced in § 4-160 (f) did not include
an action authorized by the General Assembly pursuant
to § 4-159. The plaintiff further argued that § 4-159 (c)
granted him the right to a jury trial. That subsection
provides: ‘‘The General Assembly may grant the claim-
ant permission to sue the state under the provisions of
this section when the General Assembly deems it just
and equitable and believes the claim to present an issue
of law or fact under which the state, were it a private
person, could be liable.’’ (Emphasis added.) General
Statutes § 4-159 (c).
Specifically, the plaintiff argued that if his action were
brought against a private person, he would undeniably
have a right to a jury trial and, thus, he has a right to
a jury trial against the state because it must be treated
as if it were a private person. The plaintiff further argued
that §§ 4-160 (f) and 4-159 (c) must be construed in this
manner because a contrary construction would violate
his constitutional right to a jury trial under article first,
§ 19, of the state constitution.
On July 7, 2015, the court, Hon. George N. Thim,
judge trial referee, heard oral argument on the state’s
motion to strike the plaintiff’s action from the jury list.
The court subsequently granted the state’s motion, con-
cluding that § 4-160 (f) barred a trial by jury in this
action. The court reasoned that the language in subsec-
tions (c) and (d) of § 4-160 clearly indicated that the
phrase ‘‘such actions’’ in § 4-160 (f) included actions
authorized by the General Assembly pursuant to § 4-
159.7
A trial to the court was conducted by the Hon.
Edward F. Stodolink, judge trial referee, immediately
thereafter. On December 2, 2015, the court rendered
judgment for the state on both counts of the plaintiff’s
complaint. On January 26, 2016, the plaintiff filed the
present appeal, challenging Judge Thim’s ruling on the
state’s motion to strike the plaintiff’s action from the
jury list.
On appeal, the plaintiff claims that the court improp-
erly granted the state’s motion to strike his action from
the jury list because, contrary to the plain language in
§ 4-160 (f), he has a constitutional right to a jury trial
under article first, § 19, of the Connecticut constitution.
The plaintiff also claims that §§ 4-159 (c) and 4-160 (c)
grant him the right to a jury trial.
I
We first address the plaintiff’s constitutional claim.
The plaintiff claims that he has a constitutional right
to a jury trial under article first, § 19, of the Connecticut
constitution, which provides, in relevant part, that
‘‘[t]he right of a trial by jury shall remain inviolate
. . . .’’ Specifically, he argues that because a plaintiff
had a right to a jury trial in a negligence action seeking
monetary damages at the time of the adoption of the
constitutional provision, he has a right to a jury trial
in this negligence action seeking monetary damages
against the state of Connecticut. We disagree.
The plaintiff’s claim presents a question of law over
which we exercise plenary review. See Bysiewicz v.
Dinardo, 298 Conn. 748, 788 n.38, 6 A.3d 726 (2010).
Article first, § 19, of our state constitution ‘‘has been
consistently construed by Connecticut courts to mean
that if there was a right to a trial by jury at the time of
the adoption of the provision, then that right remains
intact.’’ Skinner v. Angliker, 211 Conn. 370, 373–74, 559
A.2d 701 (1989). ‘‘Accordingly, in determining whether
a party has a right to a trial by jury under the state
constitution . . . the court must ascertain whether the
action being tried is similar in nature to an action that
could have been tried to a jury in 1818 when the state
constitution was adopted. This test requires an inquiry
as to whether the course of action has roots in the
common law, and if so, whether the remedy involved
was one in law or equity. If the action existed at common
law and involved a legal remedy, the right to a jury trial
exists and the legislature may not curtail that right
either directly or indirectly.’’ Id., 375–76.
In Skinner, however, our Supreme Court concluded
that ‘‘to entitle one to a right to a jury trial, it is not
enough that the nature of the plaintiff’s action is legal
rather than equitable; the action must also be brought
against a defendant who was suable at common law
in [1818].’’ (Emphasis added; internal quotation marks
omitted.) Id., 378. Thus, article first, § 19, of the state
constitution grants a litigant the right to a jury trial only
if the cause of action alleged is (1) the same or similar
in nature to an action that could have been tried to a
jury in 1818, and (2) brought against a defendant who
was suable at common law in 1818.
In Connecticut, ‘‘[w]e have long recognized the com-
mon-law principle that the state cannot be sued without
its consent. . . . The doctrine of sovereign immunity
protects the state, not only from ultimate liability for
alleged wrongs, but also from being required to litigate
whether it is so liable.’’ (Internal quotation marks omit-
ted.) Henderson v. State, 151 Conn. App. 246, 256, 95
A.3d 1 (2014). ‘‘In its pristine form the doctrine of sover-
eign immunity would exempt the state from suit
entirely, because the sovereign could not be sued in its
own courts . . . .’’ (Internal quotation marks omitted.)
Skinner v. Angliker, supra, 211 Conn. 377.
The plaintiff argues that, prior to 1818, ‘‘negligence
cases against governmental officials or against a govern-
ment entity [for monetary damages] were tried to a
jury.’’ The plaintiff, however, provides no authority, nor
are we aware of any, that supports his assertion. Rather,
the plaintiff cites only to cases in which the defendant
is a municipality or a municipal employee. See Calkins
v. Hartford, 33 Conn. 57 (1865) (negligence action
against city of Hartford); Drake v. Chester, 2 Conn.
473 (1818) (action against sheriff of Hartford county);
Ackley v. Chester, 5 Day 221, 221 (1811) (action against
sheriff of Hartford county); Duryee v. Webb, 8 F. Cas.
136 (D. Conn. 1810) (No. 4198) (action against sheriff
of Windham county), reprinted in Palmer v. Gallup, 16
Conn. 555, 558 n.(a) (1844); Swift v. Berry, Superior
Court, 1 Root 448 (1792) (action against town).
A municipality and the state are fundamentally differ-
ent entities. Our Supreme Court has long held that there
are ‘‘inherent differences in the nature of the govern-
mental immunity enjoyed by municipalities as con-
trasted with the sovereign immunity enjoyed by the
state. Governmental immunity, which applies to munici-
palities, is different in historic origin, scope and applica-
tion from the sovereign immunity enjoyed by the state.
A suit against a municipality is not a suit against a
sovereign. Towns have no sovereign immunity, and are
capable of suing and being sued . . . in any action.
. . . Municipalities do, in certain circumstances, have
a governmental immunity from liability. . . . But that
is entirely different from the state’s sovereign immunity
from suit . . . .’’ (Emphasis omitted; internal quotation
marks omitted.) Vejseli v. Pasha, 282 Conn. 561, 573,
923 A.2d 688 (2007). Thus, the fact that a litigant was
able to bring suit against a municipality prior to 1818
does not support the plaintiff’s claim that he has a right
to a jury trial in the present case.
Our conclusion that the plaintiff has no constitutional
right to a jury trial is supported by prior decisions of
our Supreme Court. In Skinner, our Supreme Court
concluded that ‘‘there was no right of jury trial in an
action brought against the state pursuant to General
States § 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 . . .
[because] [n]o principle of common law, prior to 1818,
allowed actions against the state for wrongful dis-
charge or related claims and . . . it cannot be main-
tained that under the common law in 1818 a jury trial
was a matter of right for persons asserting a claim
against the sovereign.’’ (Emphasis in original; internal
quotation marks omitted.) Canning v. Lensink, 221
Conn. 346, 351, 603 A.2d 1155 (1992) (discussing
Skinner).
Similarly, in Canning, our Supreme Court concluded
that there was no right to a jury trial in a wrongful
death action brought pursuant to General Statute § 19a-
24 against state employees in their official capacity,
reasoning 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 waiving such immunity in particular
situations.’’ Id., 353. In the present case, like in Skinner
and Canning, the plaintiff has not established that he
would have been able to bring the action he now alleges
against the state prior to 1818. Therefore, article first,
§ 19, of the state constitution does not afford him a
constitutional right to a jury trial in this case.8
II
The plaintiff next claims that §§ 4-159 (c) and 4-160
(c) grant him the right to a jury trial. Specifically, he
argues that the language in §§ 4-159 (c) and 4-160 (c)
mandates that a litigant who is granted permission by
the General Assembly to bring an action against the
state pursuant to § 4-159 has the same rights as would
a theoretical litigant who brought that action against a
private person. The plaintiff asserts that, because a
litigant who brings a negligence action for monetary
damages against a private person has the right to a jury
trial, so too does he. We disagree.
Whether §§ 4-159 (c) and 4-160 (c) confer upon the
plaintiff the right to a jury trial presents an issue of
statutory interpretation over which we exercise plenary
review. See Miller v. Egan, 265 Conn. 301, 327, 828 A.2d
549 (2003). ‘‘When construing a statute, [o]ur fundamen-
tal objective is to ascertain and give effect to the appar-
ent intent of the legislature. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider 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 ambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered.’’
(Internal quotation marks omitted.) Commissioner of
Public Safety v. Freedom of Information Commission,
312 Conn. 513, 527, 93 A.3d 1142 (2014).
Section 4-159 (c) provides that ‘‘[t]he General Assem-
bly may grant the claimant permission to sue the state
under the provisions of this section when the General
Assembly deems it just and equitable and believes the
claim to present an issue of law or fact under which
the state, were it a private person, could be liable.’’ The
plaintiff argues that because the legislature chose to
equate the state to a ‘‘private person,’’ it thereby granted
to him the same rights he would have if the defendant
were a private person, including the right to a jury trial.
It is clear from the plain language of § 4-159 (c),
however, that the legislature did not intend to confer
upon the plaintiff, or any other litigant authorized to
bring a claim under § 4-159, the right to a jury trial.
‘‘When the state, by statute, waives its immunity to suit
. . . the right to a jury trial cannot be implied, but
rather, must be affirmatively expressed.’’ (Internal quo-
tation marks omitted.) Canning v. Lensink, supra, 221
Conn. 354; accord Skinner v. Angliker, supra, 211 Conn.
381. Nowhere in § 4-159 (c) does the legislature use the
phrase ‘‘jury trial,’’ nor does the statute reference a
litigant’s personal rights. Rather, § 4-159 (c) merely
addresses the standard under which the General Assem-
bly will decide whether to waive sovereign immunity.
In other words, the reference to a private person in the
statute only pertains to the preliminary determination
made by the legislature in deciding whether to grant
permission to sue, i.e., whether it is just and equitable
and whether the state could be held liable if it were a
private person. The language cannot be fairly construed
as a grant to the plaintiff of all the rights he would have
had if the action were brought against a private person
rather than the state.
The plaintiff further argues that similar language in
§ 4-160 (c) compels the same result. Section 4-160 (c)
provides: ‘‘In each action authorized by the Claims Com-
missioner pursuant to subsection (a) or (b) of this sec-
tion or by the General Assembly pursuant to section 4-
159 or 4-159a, the claimant shall allege such authoriza-
tion and the date on which it was granted, except that
evidence of such authorization shall not be admissible
in such action as evidence of the state’s liability. The
state waives its immunity from liability and from suit
in each such action and waives all defenses which might
arise from the eleemosynary or governmental nature
of the activity complained of. The rights and liability
of the state in each such action shall be coextensive
with and shall equal the rights and liability of private
persons in like circumstances.’’ (Emphasis added.)
Although this language is somewhat more suggestive
of the result the plaintiff seeks, his argument regarding
§ 4-160 (c) is completely undermined by the fact that
a separate subsection of that same statute, namely, § 4-
160 (f), expressly provides that ‘‘such actions’’ brought
against the state pursuant to § 4-159 shall be tried to the
court, not a jury. To interpret § 4-160 (c) as conferring
a right to a jury trial when § 4-160 (f) expressly prohibits
it would be nonsensical. It is a well established tenet of
statutory construction that, ‘‘if possible, the component
parts of a statute should be construed harmoniously in
order to render an overall reasonable interpretation.’’
(Internal quotation marks omitted.) Board of Education
v. State Board of Education, 278 Conn. 326, 333, 898
A.2d 170 (2006). ‘‘[C]onsistent with the aforementioned
principle, the legislature is always presumed to have
created a harmonious and consistent body of law . . . .
[T]his tenet of statutory construction requires [this
court] to read statutes together when they relate to the
same subject matter . . . . Accordingly, [i]n determin-
ing the meaning of a statute . . . we look not only at
the provision at issue, but also to the broader statutory
scheme to ensure the coherency of our construction.
. . . [T]he General Assembly is always presumed to
know all the existing statutes and the effect that its
action or non-action will have upon any one of them.’’
(Internal quotation marks omitted.) Id., 333–34.
The interpretation of § 4-160 (c) suggested by the
plaintiff is unreasonable because it would compel a
result contrary to the plain language of § 4-160 (f).9 The
legislature’s intent is clear: Actions brought against the
state pursuant to the General Assembly’s waiver of sov-
ereign immunity must be tried to a court, not a jury.
The mere fact that the language of § 4-160 (c) dictates
that the state’s liability for damages shall be equal to
the liability of a private person does not mean that the
language can be stretched to address the manner in
which that liability shall be determined, that is, by jury
or court trial. The legislature’s inclusion of subsection
(f) in § 4-160 eliminates any question regarding its intent
that actions, like the one the General Assembly permit-
ted the plaintiff to bring, shall be tried to the court
rather than a jury. We, therefore, reject the plaintiff’s
claim that he has a statutory right to a jury trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The trial court granted the defendants’ motion to dismiss the action as
to the plaintiff Kleber O. Perez and he did not participate in this appeal.
Our references in this opinion to the plaintiff are to Christian Perez.
2
The plaintiff initially brought an action against both the state of Connecti-
cut and the University of Connecticut. The defendants, however, filed a
joint motion to dismiss the action against the University of Connecticut for
lack of subject matter jurisdiction. The defendants argued that Connecticut
law does not permit the University of Connecticut to be named as a defendant
in such actions. The court subsequently granted the defendants’ motion,
concluding that the University of Connecticut is an agent of the state and,
therefore, that the state was the real party in interest. That determination
has not been challenged in this appeal.
3
We note that our Supreme Court is considering a similar claim in Smith
v. Rudolph, SC 20008. The plaintiff in that case was driving to work on the
morning of October 23, 2012, when he was hit by a passenger bus owned
by the state of Connecticut Department of Transportation and driven by
William Rudolph. The defendant moved to strike the plaintiff’s action from
the jury list, arguing that General Statutes § 52-556, pursuant to which the
plaintiff was authorized to bring his action against the state, did not grant
him the right to a jury trial. The trial court granted the defendant’s motion
and the case was tried to the court. The plaintiff appealed the court’s order
striking the action from the jury list and our Supreme Court transferred the
appeal from this court to itself. On appeal, the plaintiff claims that § 52-556
permits a jury trial in an action against the state and that to construe the
statute otherwise violates article first, § 19 of the state constitution. Smith
was argued on March 27, 2018.
4
General Statutes § 4-159 (a) provides in relevant part: ‘‘Not later than
five days after the convening of each regular session and at such other times
as the speaker of the House of Representatives and president pro tempore
of the Senate may desire, the Office of the Claims Commissioner shall submit
to the General Assembly . . . (2) all claims for which a request for review
has been filed pursuant to subsection (b) of section 4-158 . . . .’’
5
General Statutes § 4-159 (b) provides in relevant part: ‘‘The General
Assembly shall:
‘‘(1) With respect to a decision of the Claims Commissioner ordering the
denial or dismissal of a claim pursuant to subdivision (1) of subsection (a)
of section 4-158:
‘‘(A) confirm the decision; or
‘‘(B) vacate the decision and, in lieu thereof, (i) order the payment of
the claim in a specified amount, or (ii) authorize the claimant to sue the
state . . . .’’
6
See footnote 2 of this opinion.
7
Section 4-160 (c) explicitly refers to actions authorized by the General
Assembly pursuant to § 4-159.
8
The plaintiff also claims on appeal that § 4-160 (f) is unconstitutional
because it conflicts with article first, § 19, of the state constitution, which
declares that ‘‘[t]he right of a trial by jury shall remain inviolate.’’ Arguably,
this claim is not preserved. Even if it is preserved, it is without merit in
light of our conclusion that article first, § 19, grants the plaintiff no such
right in an action brought pursuant to an authorization by the General
Assembly under § 4-159. Thus, we determine that § 4-160 (f), which governs
actions brought pursuant to § 4-159, does not conflict with article first, § 19,
of the state constitution.
9
At various points throughout these proceedings, the plaintiff argued that
§ 4-160 (f) does not apply to an action brought pursuant to § 4-159. The
plaintiff now argues, however, that § 4-160 (c) does apply to an action
brought pursuant to § 4-159. The plaintiff cannot cherry pick which subsec-
tions of § 4-160 apply to his action. Sections 4-159 and 4-160 are part of a
broader statutory scheme, often referred to as the Claims Commissioner
statutes, and must be read together. Cf. Board of Education v. State Board
of Education, supra, 278 Conn. 333.