May 23, 2000
SUING THE STATE FOR NEGLIGENCE
By: George Coppolo, Chief Attorney
You asked how someone could sue the state for negligence. This office is not authorized to render a legal opinion and this memo should not be considered one.
Under the common law sovereign immunity doctrine the state cannot be sued for negligence without its consent. In response to this doctrine, the state has created a claims commissioner and a structure to process negligence and other claims against the state. Thus, most negligence claims would have to be presented to the claims commissioner.
But the law authorizes people to go directly to court in several situations. If the negligence occurred within the context of one of these categories, the injured person could bypass the claims commissioner and file a negligence lawsuit directly in court.
By statute, state employees are not liable for damage or injury that is caused within the scope of their employment or by the discharge of their duties and is not wanton, reckless, or malicious. Thus state employees and officials are not personally liable for acts of negligence (CGS § 4-165). Claims against state employees for negligence must be presented as a claim against the state to the claims commissioner or against the state as a lawsuit against the state if it is a type of case the legislature permits to be brought directly to court.
PROCESS FOR MAKING CLAIMS AGAINST THE STATE
Authority of Claims Commissioner (CGS §§ 4-141, 142, 148)
A claims commissioner, appointed by the governor with the advice
and consent of the General Assembly, hears and determines claims
against the state. The law defines a claim as a petition for the
payment or refund of money by the state or for permission to sue
the state. It explicitly excludes claims for employment benefits,
including disability, pension, and retirement benefits; claims that
under law can be brought through a lawsuit or administrative
hearing; requests by political subdivisions for payment in lieu of
taxes; and claims for tax refunds. Any claim that can be presented
to the claims commissioner cannot be presented against the state in
any other way.
Notice of Claim (CGS § 4-147)
Anyone who wants to present a claim against the state must file
a notice with the clerk of the Office of the Claims Commissioner. This notice must contain:
1. the name and address of the claimant and his attorney if he
2. a concise statement of the basis of the claim, including the date, time, place, and circumstances of the act or event complained of;
3. the amount requested; and
4. a request for permission to sue the state, if such permission
If sent by mail, the notice is deemed to have been filed on the
date it is postmarked. A $50 filing fee is required for claims over
$5,000, and a $25 fee is needed for lesser claims. The commissioner
can waive the fees for good cause.
Notice of Injury (CGS § 4-146)
Anyone who suffers damage or injury because of the defective
condition of a building, park, or ground owned or leased by the
state must, within a reasonable time after the damage or injury,
notify the official in charge of the date, time, place, and
circumstances of the damage or injury. But no claim can be defeated
for violating this requirement unless the state shows that it was
substantially prejudiced by the lack of notice.
Statute of Limitations (CGS § 4-148(a))
A claim must be presented within one year after it accrues. By
law, a claim accrues on the date the damage or injury is sustained
or discovered or in the exercise of reasonable care should have
been discovered. But no claim can be presented more than three
years from the date of the act or event complained of.
The General Assembly may, through special act, authorize a person to present a claim after the time passes if it (1) deems the authorization to be just and equitable and (2) makes an express finding that the authorization is supported by compelling equitable circumstances that would serve a public purpose.
Representation by the Attorney General (CGS § 4-149)
The attorney general must review each claim to determine whether
the protection of the state's interest requires his representation.
In reaching this decision, he must consider the sum involved, the
legal significance of the claim as a precedent, and the complexity
of the legal and factual issues presented. He must notify the
claims commissioner and the agency or department involved within 90
days if he decides not to intervene. If he decides to oppose a
claim, he must file a notice with the clerk including a concise
statement of his objections. The clerk must promptly send a copy to
Hearings (CGS § 4-151)
Claims must be heard "as soon as practicable" after they are
filed. The commissioner can call witnesses, examine and cross
examine witnesses, and require information not offered by either
side. He is not bound by any law or rule of evidence. He can admit
or exclude testimony or other evidence. He must obtain a full and
complete record of all facts necessary for a fair determination of
the issues (§ 4-157-10 Regulation of Conn. State Agencies).
If a person fails to respond to a subpoena, the commissioner can
order the appropriate county sheriff to arrest the person and bring
him before the commissioner. If a person refuses to testify
or produce any relevant document, the commissioner can certify the
matter to the attorney general, who must apply for a Superior Court
order compelling compliance. If the person refusing to comply with
a court order is the claimant, the commissioner must dismiss his
claim and order it forfeited to the state.
Records of Claims (CGS § 4-153)
The commissioner must make a record of each claim and maintain it
until the adjournment of the regular session of the General
Assembly following the disposition of the claim. Copies of the
record and hearing transcript must be made available upon request
to the claimant and the attorney general.
Findings and Decision (CGS § 4-154)
The commissioner must render his decision within 90 days after
hearing a claim. He must make a finding of fact for each claim and
file these findings with his order or recommendation. The clerk
must deliver a copy of the findings, order, or recommendation to
the claimant and the state's representative.
Rehearings (CGS. § 4-156)
If new evidence is discovered, a claimant aggrieved by an order
or recommendation may apply for a rehearing by filing an
application stating the matters he wishes to submit. The clerk must
submit a copy of this application to the attorney general, who
decides whether to intervene.
Claims of $7,500 or Less (CGS § 4-158)
The commissioner can approve the immediate payment of "just
claims" not exceeding $7,500. "Just claims" are those that in
equity and justice the state should pay, as long as it caused the
damage or injury or received a benefit. The commissioner must report to the General Assembly on all claims paid in this way but does not need General Assembly approval.
Anyone who filed a claim for more than $7,500 but is awarded
$7,500 or less and wishes to protest the award, can waive immediate
payment and have his claim submitted directly to the General
Assembly. He must file this waiver with the commissioner within 10
days after he receives a copy of the order approving immediate
payment. These claims are then handled like claims exceeding
$7,500 (see next section).
Payment in Excess of $7,500 (CGS § 4-159)
If he recommends paying over $7,500, the commissioner must make
this recommendation to the General Assembly within five days after
it convenes or at such other times as the Senate president pro
tempore and House speaker desire. He must include a copy of
his findings and the hearing record of each claim, he reports. The
General Assembly may accept or alter such a recommendation or
reject it and grant or deny the claimant permission to sue the
Authorizations of Lawsuits Against the State (CGS §§ 4-159 and
The General Assembly or the commissioner can authorize a claimant
to sue the state when they deem it just and equitable and when the
claim, in their opinion, presents an issue of law or fact under
which the state, were it a private person, could be liable. The
state waives its immunity from liability and all defenses that
might arise from the governmental nature of the activity complained
of. The rights and liability of the state in these lawsuits are the
same as those of private persons in similar circumstances.
The lawsuit must be filed within one year after it was
authorized. It must be tried to the court without a jury.
Medical Malpractice Claims (CGS Sec.4-160)
The claims commissioner may authorize a lawsuit against the state for any medical malpractice claims against the state; a state hospital or sanitarium; or a state-employed physician, surgeon, dentist, podiatrist, chiropractor, or other licensed health care provider under the following condition: the attorney or person filing the claim submits the certificate of good faith that is currently required in medical malpractice lawsuits and an affidavit supporting the certificate from a licensed similar health care provider.
Certificate of Good Faith. A malpractice lawsuit cannot be filed in court unless the attorney or party filing it has made a reasonable inquiry to determine that there are grounds for a good faith belief that negligence has occurred. The complaint initiating the lawsuit or the first pleading in such a suit must contain a certificate that a reasonable inquiry caused a good faith belief that grounds exist.
Good faith can be shown by a written opinion from a “similar health care provider” that there appears to be evidence of medical negligence. The court can also consider additional factors in determining good faith.
The court must sanction the person who signed the certificate if it concludes that (1) the suit was not filed in good faith, (2) there was no real and substantial controversy appropriate to present to the court, and (3) the defendant fully cooperated in providing informal discovery. The sanction can include paying the defendant's reasonable expenses, including attorney's fees. The court can also submit the matter to the appropriate attorney grievance committee.
STATUTES AUTHORIZING LAWSUITS
The legislature allows injured people to go directly to court in the following circumstances without going to the claims commissioner.
CGS § 19a-24 authorizes claims in excess of $1,500 against the commissioners of public health and mental retardation and their staffs to be brought as a lawsuit in Superior Court. The attorney general must defend and damages are paid by the state. This law also authorizes lawsuits against certain other state entities such as the Council on Mental Retardation. Claims of $1,500 or less must be brought to the claims commissioner.
CGS § 4-197 authorizes those who are aggrieved by a violation of the law protecting the privacy of personal data about state employees to sue for damages.
CGS § 13a-144 authorizes those injured by a defective road or bridge to sue the commissioner of transportation for damages (the defect must be the sole proximate cause).
CGS § 17A-550 allows a person injured by a violation of the patient's bill of rights for mentally ill people to sue the state or its commissioners for damages (Mahoney v. Lesnick, 2123 Conn. 548 (1990)).
CGS § 52-556 allows anyone injured because of the negligence of any state official or employee operating a state owned and insured motor vehicle to sue the state for damages.
Wanton, Willful, and Malicious Misconduct
Connecticut courts have long held that government officials and employees are immune from liability for their official acts or omissions as long as they are done “in good faith, in the exercise of an honest judgment, and not in abuse of discretion, or maliciously or wantonly.” According to our courts, where the discretion has been exercised erroneously but in good faith through an error of judgment, the public official should not be required to pay damages for his acts” (Wadsworth v. Middletown, 94 Conn. 435).
The courts have generally equated wanton acts with acts done recklessly or with callous disregard. These are acts that indicate a reckless disregard of the rights or safety of others or of the consequences of the action. If these elements are present, it is not necessary to prove that an official actually intended to harm someone (West Haven v. Hartford Ins. Co., 221 Conn. 149).
A willful and malicious injury is inflicted intentionally without just cause or excuse. Both terms — willful and malicious — imply intent. Both the act and the resulting injury must be intentional. The intentional injury aspect may be satisfied if the resulting harm was the direct and natural consequence of the intended act (Markey v. Santangelo, 195 Conn. 76).
Willful misconduct shows willful disregard of someone's interest, such as deliberate violations of procedure or of expected standards of behavior. It includes deliberate disobedience or the intentional violation of a known rule (Todd v. Administrator of Unemployment, 5 Conn. App. 309).