qualified immunity in Connecticut

2014Although I agree with the majority that, ultimately, the determination of whether the identifiable person- imminent harm exception to the doctrine of qualified immunity is a matter of law; see, e.g., Purzycki v. Fair- field, supra, 244 Conn. 107–108; this court must make this determination in light of the factual findings of the jury.

2006A defendant is entitled to judgment as a matter of law if the duties allegedly breached required the exercise of judgment or discretion, in some measure, by the governmental employee.’’bonamico v. Middletown, 47 Conn. App. 758, 761 , 706 A.2d 1386 , vacated on other grounds, 49 Conn. App. 605 , 713 A.2d 1291 (1998). 1 Simply put, “[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.” (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 10

2007In other words, “[although a qualified privilege insulates many defamatory statements and shields many defendants from liability, the privilege does not protect a defendant who makes statements that are both defamatory and malicious.” Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545 , 733 A.2d 197 (1999); see also Bleich v. Ortiz, 196 Conn. 498, 504 , 493 A.2d 236 (1985) (“[e]ven when a legitimate interest is at stake, a claim of conditional privilege is defeated if the defendant acts with malice in making the defamatory communication at issue”).

2007In other words, “[although a qualified privilege insulates many defamatory statements and shields many defendants from liability, the privilege does not protect a defendant who makes statements that are both defamatory and malicious.” Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545 , 733 A.2d 197 (1999); see also Bleich v. Ortiz, 196 Conn. 498, 504 , 493 A.2d 236 (1985) (“[e]ven when a legitimate interest is at stake, a claim of conditional privilege is defeated if the defendant acts with malice in making the defamatory communication at issue”).

2003The defendant City in its motion for summary judgment claims that all of the acts or omissions of which the plaintiffs complain are CT Page 2941 discretionary and they are immune from liability under principles of governmental immunity. "[M]unicipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliott v. Waterbury , 245 Conn. 385 , 411 , 715 A.2d 27 (1998); see also Gordon v. Bridgeport Housing Authority , 208 Conn. 161 , 166 , 544 A.2d 1185 (1988). "[A] municipal employee . . . has a qualifi

2003The defendant City in its motion for summary judgment claims that all of the acts or omissions of which the plaintiffs complain are CT Page 2941 discretionary and they are immune from liability under principles of governmental immunity. "[M]unicipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliott v. Waterbury , 245 Conn. 385 , 411 , 715 A.2d 27 (1998); see also Gordon v. Bridgeport Housing Authority , 208 Conn. 161 , 166 , 544 A.2d 1185 (1988). "[A] municipal employee . . . has a qualifi

2026Hassett v. Carroll, 85 Conn. 23 , 35-36, 81 A. 1013 (1911) (‘[o]ne pub- lishing defamatory words under a qualified or conditional privilege is only liable upon proof of express malice’). ‘[T]he malice required to overcome a qualified privilege in defamation cases is malice in fact or actual malice.’ . . . ‘Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false.’ ” (Citations omitted.) Mara v. Otto, 127 Conn. App. 404, 409 , 13 A.3d 1134 (2011). 14 General Statutes § 52-597 provides: “No action of

2026Hassett v. Carroll, 85 Conn. 23 , 35-36, 81 A. 1013 (1911) (‘[o]ne pub- lishing defamatory words under a qualified or conditional privilege is only liable upon proof of express malice’). ‘[T]he malice required to overcome a qualified privilege in defamation cases is malice in fact or actual malice.’ . . . ‘Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false.’ ” (Citations omitted.) Mara v. Otto, 127 Conn. App. 404, 409 , 13 A.3d 1134 (2011). 14 General Statutes § 52-597 provides: “No action of

2003For example, in Evon v. Andrews , 211 Conn. 501 (1989), the Court noted that a municipal employee's qualified immunity from liability will be lost where he is alleged to have engaged in an act intending to injure another.

2003Thus, in determining the immunity of the defendants in this case, including the teacher and the principal, the court is guided by the well-established doctrine that determines the tort liability of 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." (Internal quotation marks omitted.) Purzycki v. Fairfield , supra , 244 Conn. 107 ; Burns v. Board of Education , 228 Conn. 640 , 645 , 638 A.2d 1 (1994); Evon v. Andrews , 211 Conn. 501 ,

2009See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1 , 30 n.12, 662 A.2d 89 (1995) (declining to engage in further analysis upon concluding that evidence supported finding of actual malice). 6 The plaintiff also asserts, as an alternate ground for affirmance, that the defendants exceeded the scope of the qualified privilege for intracorporate communications because the defamatory statements had been published beyond the group to whom the privilege had attached, namely, those not directly involved in the decision to terminate the plaintiffs employment.

2009See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1 , 30 n.12, 662 A.2d 89 (1995) (declining to engage in further analysis upon concluding that evidence supported finding of actual malice). 6 The plaintiff also asserts, as an alternate ground for affirmance, that the defendants exceeded the scope of the qualified privilege for intracorporate communications because the defamatory statements had been published beyond the group to whom the privilege had attached, namely, those not directly involved in the decision to terminate the plaintiffs employment.

2018The privilege [however] was elevated to constitutional status ... by ... [the] United States Supreme Court ...." (Citations omitted; emphasis added.) Goodrich v. Waterbury Republican-American, Inc. , 188 Conn. 107 , 114-15, 448 A.2d 1317 (1982). "[E]xpressions of pure opinion (those based upon known or disclosed facts) [now] are guaranteed virtually complete constitutional protection." (Internal quotation marks omitted.) Id., at 118 , 448 A.2d 1317 . " 'Defamation is comprised of the torts of libel and slander: slander is oral defamation and libel is written defamation.' Skakel v. Grace , 5 F.

2018The privilege [however] was elevated to constitutional status ... by ... [the] United States Supreme Court ...." (Citations omitted; emphasis added.) Goodrich v. Waterbury Republican-American, Inc. , 188 Conn. 107 , 114-15, 448 A.2d 1317 (1982). "[E]xpressions of pure opinion (those based upon known or disclosed facts) [now] are guaranteed virtually complete constitutional protection." (Internal quotation marks omitted.) Id., at 118 , 448 A.2d 1317 . " 'Defamation is comprised of the torts of libel and slander: slander is oral defamation and libel is written defamation.' Skakel v. Grace , 5 F.

2021Usually, it is called either official immunity or qualified immunity; see, e.g., Grady v. Somers, 294 Conn. 324, 326 , 984 A.2d 684 (2009) (referring to ‘‘a municipal employee’s qualified immunity for discretionary acts’’); though, sometimes, it is indiscriminately and inaccurately lumped together with the corporate (municipal entity) immunity under the rubric of ‘‘governmental’’ or ‘‘municipal’’ immunity.

2021Usually, it is called either official immunity or qualified immunity; see, e.g., Grady v. Somers, 294 Conn. 324, 326 , 984 A.2d 684 (2009) (referring to ‘‘a municipal employee’s qualified immunity for discretionary acts’’); though, sometimes, it is indiscriminately and inaccurately lumped together with the corporate (municipal entity) immunity under the rubric of ‘‘governmental’’ or ‘‘municipal’’ immunity.

2009“Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. 8 Id.

2005The only exception to a municipal employee’s qualified immunity for discretionary acts that is relevant to the present case is “where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subj ect an identifiable person [or member of an identifiable class of foreseeable persons] to imminent harm . . . .” (Internal quotation marks omitted.) Id.

2009Compare Bleich v. Ortiz, supra, 196 Conn. 504 (qualified privilege may be overcome on finding of bad faith or improper motive), Charles Parker Co. v. Silver City Crystal Co., supra, 142 Conn. 615 (qualified privilege may be overcome on finding of bad faith), and Miles v. Perry, [ 11 Conn. App. 584 , 594-95 and 595 n.8, 529 A.2d 199 (1987)], [with] 3 Restatement (Second), Torts § 600 (1977) (lack of good faith insufficient to defeat privilege; statement must be made with actual knowledge of falsity or reckless disregard as to truth) . . . .” (Citations omitted.) 8 General Statutes § 53a-119 def

2009Compare Bleich v. Ortiz, supra, 196 Conn. 504 (qualified privilege may be overcome on finding of bad faith or improper motive), Charles Parker Co. v. Silver City Crystal Co., supra, 142 Conn. 615 (qualified privilege may be overcome on finding of bad faith), and Miles v. Perry, [ 11 Conn. App. 584 , 594-95 and 595 n.8, 529 A.2d 199 (1987)], [with] 3 Restatement (Second), Torts § 600 (1977) (lack of good faith insufficient to defeat privilege; statement must be made with actual knowledge of falsity or reckless disregard as to truth) . . . .” (Citations omitted.) 8 General Statutes § 53a-119 def

2007Indeed, we have stated, albeit in dictum, that “a complaining witness who initiates a prosecution and procures the issuance of an arrest warrant has only a qualified immunity at common law . . . .” Id.; see also Malley v. Briggs, 475 U.S. 335, 340 , 106 S. Ct. 1092 , 89 L.

2007Indeed, we have stated, albeit in dictum, that “a complaining witness who initiates a prosecution and procures the issuance of an arrest warrant has only a qualified immunity at common law . . . .” Id.; see also Malley v. Briggs, 475 U.S. 335, 340 , 106 S. Ct. 1092 , 89 L.

1998The 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.” (Internal quotation marks omitted.) Burns v. Board of Education, supra, 228 Conn. 645 . “[T]he 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 applicabili

1998The 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.” (Internal quotation marks omitted.) Burns v. Board of Education, supra, 228 Conn. 645 . “[T]he 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 applicabili

2003The defendant City in its motion for summary judgment claims that all of the acts or omissions of which the plaintiffs complain are CT Page 2941 discretionary and they are immune from liability under principles of governmental immunity. "[M]unicipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliott v. Waterbury , 245 Conn. 385 , 411 , 715 A.2d 27 (1998); see also Gordon v. Bridgeport Housing Authority , 208 Conn. 161 , 166 , 544 A.2d 1185 (1988). "[A] municipal employee . . . has a qualifi

2003The defendant City in its motion for summary judgment claims that all of the acts or omissions of which the plaintiffs complain are CT Page 2941 discretionary and they are immune from liability under principles of governmental immunity. "[M]unicipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliott v. Waterbury , 245 Conn. 385 , 411 , 715 A.2d 27 (1998); see also Gordon v. Bridgeport Housing Authority , 208 Conn. 161 , 166 , 544 A.2d 1185 (1988). "[A] municipal employee . . . has a qualifi

2007Under federal law, the doctrine of qualified immunity shields officials from “civil damages liability” for their discretionary actions “as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 , 107 S. Ct. 3034 , 97 L. Ed. 2d 523 (1987).

2007Under federal law, the doctrine of qualified immunity shields officials from “civil damages liability” for their discretionary actions “as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 , 107 S. Ct. 3034 , 97 L. Ed. 2d 523 (1987).

2007In other words, “[although a qualified privilege insulates many defamatory statements and shields many defendants from liability, the privilege does not protect a defendant who makes statements that are both defamatory and malicious.” Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545 , 733 A.2d 197 (1999); see also Bleich v. Ortiz, 196 Conn. 498, 504 , 493 A.2d 236 (1985) (“[e]ven when a legitimate interest is at stake, a claim of conditional privilege is defeated if the defendant acts with malice in making the defamatory communication at issue”).

2007In other words, “[although a qualified privilege insulates many defamatory statements and shields many defendants from liability, the privilege does not protect a defendant who makes statements that are both defamatory and malicious.” Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545 , 733 A.2d 197 (1999); see also Bleich v. Ortiz, 196 Conn. 498, 504 , 493 A.2d 236 (1985) (“[e]ven when a legitimate interest is at stake, a claim of conditional privilege is defeated if the defendant acts with malice in making the defamatory communication at issue”).

1996Whether the occasion is one of privilege is a question of law. . . . [W]hether the privilege was abused . . . depends upon whether there was malice in fact . . . in uttering and broadcasting the alleged defamatory matter.' Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605 , 615 , 116 A.2d 440 (1955); see also Bleich v. Ortiz, 196 Conn. 498 , CT Page 5750 504, 493 A.2d 236 (1985)." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 28 . "[C]ommunications between managers regarding the review of an employee's job performance and the preparation of documents regar

1996Whether the occasion is one of privilege is a question of law. . . . [W]hether the privilege was abused . . . depends upon whether there was malice in fact . . . in uttering and broadcasting the alleged defamatory matter.' Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605 , 615 , 116 A.2d 440 (1955); see also Bleich v. Ortiz, 196 Conn. 498 , CT Page 5750 504, 493 A.2d 236 (1985)." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 28 . "[C]ommunications between managers regarding the review of an employee's job performance and the preparation of documents regar

2021Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials.’’ (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, 230 Conn. 735 , 742– 43, 646 A.2d 152 (1994). ‘‘Under federal law, the doctrine of qualified immunity shields officials from civil damages liability for their discretionary actions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.

2021Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials.’’ (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, 230 Conn. 735 , 742– 43, 646 A.2d 152 (1994). ‘‘Under federal law, the doctrine of qualified immunity shields officials from civil damages liability for their discretionary actions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.

2026See Martinez v. California, 444 U.S. 277 , 284 n.8, 100 S. Ct. 553 , 62 L. Ed. 2d 481 (1980); Wood v. Strickland, 420 U.S. 308 , 315-22, 95 S. Ct. 992 , 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232 , 238-49, 94 S. Ct. 1683 , 40 L. Ed. 2d 90 (1974); see also Mawhirt v. Ahmed, 8 Fed. Appx. 125, 127 (2d Cir. 2001) (discussing “the federal law doctrine of qualified immunity” to § 1983 claims), cert. denied, 534 U.S. 1080 , 122 S. Ct. 810 , 151 L. Ed. 2d 695 (2002).

2026See Martinez v. California, 444 U.S. 277 , 284 n.8, 100 S. Ct. 553 , 62 L. Ed. 2d 481 (1980); Wood v. Strickland, 420 U.S. 308 , 315-22, 95 S. Ct. 992 , 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232 , 238-49, 94 S. Ct. 1683 , 40 L. Ed. 2d 90 (1974); see also Mawhirt v. Ahmed, 8 Fed. Appx. 125, 127 (2d Cir. 2001) (discussing “the federal law doctrine of qualified immunity” to § 1983 claims), cert. denied, 534 U.S. 1080 , 122 S. Ct. 810 , 151 L. Ed. 2d 695 (2002).

2026See Ham v. Greene, 248 Conn. 508, 523 , 729 A.2d 740 (setting forth party’s burden “to prevail as a matter of law on the special defense of qualified immunity”), cert. denied, 528 U.S. 929 , 120 S. Ct. 326 , 145 L. Ed. 2d 254 (1999); Schnabel v. Tyler, supra, 230 Conn. 742 (explaining that qualified immunity is “a defense to civil suits brought pursuant to § 1983” and referencing “the qualified immunity defense” throughout opinion); see also Sullins v. Rodriguez, 281 Conn. 128 , 131 nn.4 and 5, 913 A.2d 415 (2007) (defendants pleaded special defense of qualified immunity in answer to complaint

2026See Ham v. Greene, 248 Conn. 508, 523 , 729 A.2d 740 (setting forth party’s burden “to prevail as a matter of law on the special defense of qualified immunity”), cert. denied, 528 U.S. 929 , 120 S. Ct. 326 , 145 L. Ed. 2d 254 (1999); Schnabel v. Tyler, supra, 230 Conn. 742 (explaining that qualified immunity is “a defense to civil suits brought pursuant to § 1983” and referencing “the qualified immunity defense” throughout opinion); see also Sullins v. Rodriguez, 281 Conn. 128 , 131 nn.4 and 5, 913 A.2d 415 (2007) (defendants pleaded special defense of qualified immunity in answer to complaint

2026See Ham v. Greene, 248 Conn. 508, 523 , 729 A.2d 740 (setting forth party’s burden “to prevail as a matter of law on the special defense of qualified immunity”), cert. denied, 528 U.S. 929 , 120 S. Ct. 326 , 145 L. Ed. 2d 254 (1999); Schnabel v. Tyler, supra, 230 Conn. 742 (explaining that qualified immunity is “a defense to civil suits brought pursuant to § 1983” and referencing “the qualified immunity defense” throughout opinion); see also Sullins v. Rodriguez, 281 Conn. 128 , 131 nn.4 and 5, 913 A.2d 415 (2007) (defendants pleaded special defense of qualified immunity in answer to complaint

2026See Ham v. Greene, 248 Conn. 508, 523 , 729 A.2d 740 (setting forth party’s burden “to prevail as a matter of law on the special defense of qualified immunity”), cert. denied, 528 U.S. 929 , 120 S. Ct. 326 , 145 L. Ed. 2d 254 (1999); Schnabel v. Tyler, supra, 230 Conn. 742 (explaining that qualified immunity is “a defense to civil suits brought pursuant to § 1983” and referencing “the qualified immunity defense” throughout opinion); see also Sullins v. Rodriguez, 281 Conn. 128 , 131 nn.4 and 5, 913 A.2d 415 (2007) (defendants pleaded special defense of qualified immunity in answer to complaint