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:
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novo, rescinded reprimand.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.
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.
B.
Relevant Law
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
