As many news outlets have reported, a Connecticut attorney, Irving Pinsky, is asking to sue Connecticut for $100 million on behalf of a 6-year-old Newtown school shooting survivor. Pinsky, who calls his client "Jill Doe" due to her age, claims that she sustained "emotional and psychological trauma and injury" as a result of the shooting. Pinsky further claims that the Board of Education, Department of Education and state education commission were negligent by failing to protect the child "from foreseeable harm." The Hartford Courant first reported the story.
Obviously many people across the state will be outraged about the possibility of this lawsuit in the wake of such a tragic event. A quick look at Pinsky's Google Page Profile shows this anger. We are not here to weigh in on that debate. We do, however, evaluate the merits of Pinsky's claim.
I. IRVING PINSKY
Attorney Irving Pinsky does not appear to have a website for his firm. His Facebook page can be found here and his LinkedIn Profile here. Attorney Pinsky describes himself as a "Wongful death Attorney also handling brain injury cases, crippling injuries and any way I can help. Years of radio and TV legal commentary in such venues as WPLR, WICC, CNN, NBC, etc."
He is a 1973 graduate of UConn and a 1969 graduate of Lyman Hall High School. It is not clear where he earned his law degree. He operates his law practice out of New Haven, CT. Attorney Pinsky has been practicing in Connecticut for 32 years. He does have a disciplinary history in the state of Connecticut:
Court History
Statewide Grievance Committee History
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Attorney, who was threatened with eviction by landlord and sent letter directly to landlord's employee threatening to initiate legal action, was reprimanded by statewide grievance committee for violation of Rule of Professional Conduct prohibiting lawyer, in representing client, from communicating directly with party lawyer knows to be represented by another lawyer in matter. Attorney appealed. The Superior Court, Judicial District of New Haven, Purtill, J., after conducting trial de novo, rescinded reprimand. Committee appealed. The Supreme Court, Covello, J., following transfer of matter from Appellate Court, held that: (1) although there was no statutory right by attorney to appeal from reprimand, trial court had authority to review such order by virtue of its inherent supervisory authority over attorney conduct; (2) trial court in reviewing reprimand should have limited proceedings to review of record rather than conducting trial de novo; and (3) undisputed facts contained in record supported legal conclusion of trial court that attorney's letter was communication between litigants and not communication made by attorney in representing client and did not violate rules of professional conduct.
We are not trying to suggest that Attorney Pinsky is not a quality
attorney. Based on our quick research, however, all of the information
we can find on Attorney Pinsky is related to the filing of this lawsuit
or his past disciplinary history.
II. MERITS OF THE CASE
A. Sovereign Immunity
Under the doctrine of sovereign immunity, the state is immune from suit. Therefore, a party much apply to the state Claims Commission for permission to sue the state. According to the Claims Commission:
The state, unlike most of its citizens, is immune from liability and from suit. Without its consent, the state cannot be held liable in a legal action for any damage or injury it may cause or for the cost of any good, service or benefit it may have received.
In most other cases where there is no legal or administrative remedy available, a person claiming to be injured or damaged as a result of state action must pursue a claim through the Office of the Claims Commissioner (OCC). The legislation implementing this process is set forth in Chapter 53 of the General Statutes. Those provisions define the duties and jurisdiction of the Claims Commissioner, who is appointed by the Governor with approval of the General Assembly, and has the duty to decide when it is "just and equitable" to waive the sovereign immunity of the state.Chapter 53 of the Connecticut General Statutes provide procedures for filing a claim:
1.Claimant must file himself, or by an attorney.
2. Include the name and address of the claimant.
3. Provide a concise statement of the claim including the date, time,
place and circumstances surrounding the claim, the state agency being
filed against, and the amount of money requested. The claim must be
filed in duplicate.
4. Statement should include sufficient allegations to show what the state did or failed to do which caused the damage or injury complained of.
4. Statement should include sufficient allegations to show what the state did or failed to do which caused the damage or injury complained of.
5. A filing fee must be submitted with each claim. The check or money
order should be made payable to the Treasurer, State of Connecticut, but
mailed to the Office of the Claims Commissioner. Effective July 1,
1992, Public Act 92-6 requires that a filing fee of $25 be paid on each
claim for $5000 or less, and $50 be paid on each claim in excess of
$5,000.
6. Claims in amounts of less than $5000 must be sworn and notarized and
supported by bills, estimates, etc, for exparte hearings.
7.Claims must be filed within one year of the date of incident.
8. If the claim is for property damage or personal injury, the claimant
should look to his/her insurance carrier for reimbursement. In the event
of a deductible, a claimant may file with the Commissioner for the
amount of the deductible. An affidavit concerning the existence and
amount of coverage, the deductible, and the amount received or to be
received from insurance, or the cover sheet of the applicable insurance
policy should accompany the claim.
Generally, Connecticut recognizes the common-law principles "that the state cannot be sued without its consent ...” Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). “The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property.” Id. at 624. “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.” Tuchman v. State, 89 Conn. App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
“The sovereign immunity
enjoyed by the state is not absolute, and our Supreme Court has
recognized limited exceptions to the doctrine. These are: (1) when the
legislature, either expressly or by force of a necessary implication,
statutorily waives the state's sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim
that the state or one of its officers has violated the plaintiff's
constitutional rights ... and (3) when an action seeks declaratory or
injunctive relief on the basis of a substantial allegation of wrongful
conduct to promote an illegal purpose in excess of the officer's
statutory authority.” Tuchman v. State, 89 Conn.App. 745, 753, 878 A.2d 384 (2005).
C. Application To This Case
It is highly unlikely that any of the above exceptions are implicated in this case. First, there was no waiver by the state of its statutory authority. Second, there does not appear to be any violation of the plaintiff's constitutional rights. There is no constitutional duty to protect citizens. Pinsky might try to make a constitutional argument (possibly a deprivation of the Due Process rights of life, liberty or property), but it just doesn't fit. Third, there is no evidence of wrongful conduct to promote an illegal purpose. In short, the state is not legally liable and the Claims Commission will not give Pinsky permission to sue.
III. WHAT ABOUT THE LOCAL SCHOOL?
It is unclear whether Pinsky will seek to file lawsuit against the local Newtown school system or local employees. This may be coming up next if his attempt to sue the state fails.
The local schools are operated by municipalities, not the state, implicating another body of law known as "municipal liability." It is slightly easier to bring suit against a municipality or a municipal employee:
Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. A municipal employee ... has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. The ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court ... unless there are unresolved factual issues material to the applicability of the defense ... where resolution of those factual issues is properly left to the jury.
Purzycki v. Town of Fairfield, 244 Conn. 101, 107-08, 708 A.2d 937, 940-41 (1998).
Connecticut recognize three exceptions to municipal immunity:
First, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ... and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.
Tryon v. Town of N. Branford, 58 Conn. App. 702, 709, 755 A.2d 317, 322 (2000).
Pinsky will likely make the argument that it was apparent that
the failure to act would be likely to subject his client to imminent
harm. There is more teeth to this argument than those against the
state. Pinsky apparently is arguing that the school failed to
"formalize and implement an effective student safety emergency response
plan," which subjected his client to "foreseeable harm." It seems like
this argument is more appropriate to claims against the municipality,
rather than the state.
However, it will be extremely difficult to show that it was apparent that there was an identifiable victim in imminent risk of harm. The facts of the case just don't fit.
There is, however, case law the can be useful to Pinsky's case. In Todd M. v. Richard L.,
44 Conn. Supp. 527, 696 A.2d 1063 (Super. Ct. 1995), an elementary
school student sued the director of transportation of town board of
education and school bus driver for negligence, for injuries sustained
by student as result of physical and sexual abuse by fellow students
riding same school bus as the plaintiff student. The Court concluded
(in the motion to dismiss stage) that the defendants had duty to protect the plaintiff student from intentional conduct of other students. The Court noted:
Section 315 of the second Restatement of Torts provides that there is generally no duty to control the conduct of a third person to prevent harm to others unless there is a special relationship giving the injured party a right to such protection. The types of relationships that impose a duty because of the relation of the actor to a third person include parents, employers, and landowners. The types of relationships that impose a duty based on the relation of the actor to the victim include that of innkeeper, common carrier, police and the like. . Where one of these special relationships exists, there is a duty to so control the intentional conduct of third persons.
In the present case, there are elements of both types of “special relationship.” Here, the defendants had a duty imposed by law to protect the minor plaintiff from harm and to prevent the intentional harm to the school children in their care. Members and employees of boards of education stand as surrogate parents to their pupils. Part of this special relationship includes the duty to maintain order and discipline. There are, therefore, two bases for finding that the defendants' special defense is improper. First, the defendants stood in the shoes of the parents of the children on the school bus and thus, had a duty to protect them from the intentional acts of others, including other school children. Second, the duty of the defendants also extended to an obligation to maintain discipline and order. Having failed in that regard, the defendants may not now claim that their failure to prevent the very conduct they had a duty to prevent relieves them of liability.I am sure that this doctrine will come up in some of Pinsky's legal filings. It is a stretch, but a much better argument than those against the state.
One thing is for sure, Pinsky is getting a
great deal of press from this case. The old saying is "any press is
good press." I'm not sure if that will hold true here.
TheConnecticuter
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