Attorney General's Opinion

Attorney General, Richard Blumenthal

February 8, 2010

Honorable Richard Nicholson
Commissioner of Revenue Services
25 Sigourney Street
Hartford, CT 06106-5032

Although you raise questions that typically require each case to be reviewed on an individual basis, the following discusses the applicable law and offers some guidance as to how the issues might be resolved generally.  Based on the facts that you have presented, it appears that (a) unless the employee acted wantonly, recklessly or maliciously, a DRS employee who volunteers to serve on the ERT would have immunity under Conn. Gen. Stat. § 4-165 and would be entitled to indemnification under Conn. Gen. Stat. § 5-141d; (b) the Attorney General’s Office would provide representation under Conn. Gen. Stat. § 5-141d unless the Attorney General determines that such representation would be inappropriate and so notifies the employee in writing; and (c) any claim against the State arising from the provision of emergency medical assistance by an ERT member would have to be pursued through the Claims Commissioner.  These general conclusions could change depending on the specific facts and circumstances of a particular case.

Background

            Your letter sets out the following facts:  The ERT is comprised of DRS employees who respond to emergency situations on floors occupied by DRS at 25 Sigourney Street and in the common areas of 25 Sigourney Street.  The ERT is organized, conducted and operated for the health and welfare of the DRS employees and the public in the common areas of 25 Sigourney Street.  The purpose of the ERT is to provide interim medical assistance until ambulance personnel arrive.

The ERT members are trained by the American Red Cross in first aid, cardiopulmonary resuscitation (CPR), the use of an automatic external defibrillator (AED), and the use of a cartridge injector.  Each ERT member who successfully completes the six-day First Responder training receives a certificate as a First Responder from the American Red Cross.  The First Responder training is conducted every three years during a member’s official work hours.  CPR, AED and cartridge injector certification and training is conducted every year, during a member’s official work hours.  Additionally, the ERT members meet every three months to conduct practice sessions, during the members’ official work hours.  The ERT members are not certified by the Department of Public Health as Medical Response Technicians or as Emergency Medical Technicians. 

DRS provides all the equipment and supplies required for training and for responding to emergency situations.  Additionally, DRS makes all the necessary arrangements for the ERT members to receive the required training to be certified by the American Red Cross and ensures that each member maintains current certifications.  The ERT members do not receive any additional compensation for volunteering.  All the required training is done during members’ official work hours. 

DRS does not impose a duty or obligation on the ERT members to respond to an emergency.  However, if an ERT member chooses to respond, DRS considers the member to be acting within the scope of his or her responsibilities in the ERT.

Immunity, Indemnification and Representation of State Employees

Section 4-165 of the General Statutes provides, in pertinent part, that:

No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state [to the Claims Commissioner].

Conn. Gen. Stat. § 4-165; see Martin v. Brady, 261 Conn. 372, 378-79 (2002).  Under this provision, state employees are immune from suit and personal liability for all claims involving damage or injury caused in the discharge of their duties or within the scope of their employment, provided their conduct was not wanton, reckless or malicious.  A plaintiff who wishes to bring such a claim against a state official can only do so by presenting it to the Claims Commissioner.  Id. 

            Similarly, § 5-141d of the General Statutes provides, in pertinent part, that:

The state shall save harmless and indemnify any state officer or employee . . . from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person’s civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.

Conn. Gen. Stat. § 5-141d(a).  Section 5-141d further provides:

The state, through the Attorney General, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member has acted in the discharge of his duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the Attorney General, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing.

Conn. Gen. Stat. § 5-141d(b).¹   

Thus, the State will indemnify state employees from loss arising out of any claim involving damage or injury caused in the discharge of their duties or within the scope of their employment, again provided their conduct was not wanton, reckless or malicious.  In addition, the Attorney General’s Office will provide representation to state employees in a civil action based on conduct alleged to have occurred in the discharge of the employees’ duties or in the scope of their employment, unless the Attorney General determines such representation would be inappropriate and notifies the employee in writing.

            From your description of the ERT, although participation in the ERT is voluntary and no additional compensation is provided, it appears that ERT members would be acting within the scope of their employment.  State employees are acting within the scope of their employment if they are acting in furtherance of the State’s business.  See King v. Board of Educ., 203 Conn. 324, 327 (1987); Atty. Gen. Op. No. 93-37 (Dec. 21, 1993).  You indicate that DRS makes the arrangements for ERT members to receive training, ensures that certifications are current, and provides all the equipment and supplies needed.  All the training is conducted during official work hours.  The ERT is organized and operated for the health and welfare of DRS employees and the public in the common areas of 25 Sigourney Street.  The ERT members are all DRS employees and would not be involved in the emergency assistance but for their employment with DRS. Thus, it appears that ERT members would be acting within the scope of their employment with DRS.

Whether an employee’s conduct was wanton, reckless or malicious, of course, can only be determined on a case-by-case basis.

In sum, based on the facts as you describe them, a DRS employee that volunteers to serve on the ERT would have immunity under § 4-165 and would be entitled to indemnification under § 5-141 unless the employee acted wantonly, recklessly or maliciously.  The Attorney General’s Office would provide representation under § 5-141d unless the Attorney General determines that such representation would be inappropriate and so notifies the employee in writing.

Potential State Liability

It is difficult to opine in the abstract what potential liability the State could have for injuries caused by ERT members.  As a general proposition under § 4-165 discussed above, the State may be liable for damages caused by employees’ conduct in the scope of their employment that was not wanton, reckless or malicious. 

Any claims against the State for injuries caused by ERT members would have to be brought to the Claims Commissioner pursuant to Conn. Gen. Stat. §§ 4-141 through 4-165.  The doctrine of sovereign immunity bars suits for money damages against the State except where the State, by appropriate legislation, consents to be sued.  DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711-12 (2007); Miller v. Egan, 265 Conn. 301, 314 (2003).  In the absence of a legislative waiver of sovereign immunity, a plaintiff seeking to recover money damages from the State must proceed through the Claims Commissioner.  C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 259 (2007); Prigge v. Ragaglia, 265 Conn. 338, 349 (2003).  There is no statute waiving sovereign immunity applicable to this context.

            I trust that this discussion provides guidance as to the issues you have raised.

Sincerely yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

¹ Section 5-141d also provides:

Legal fees and costs incurred as a result of the retention of any such officer, employee or member of an attorney to defend his interests in any such civil action or proceeding shall be borne by the state only in those cases where (1) the Attorney General has stated in writing to the officer, employee or member, pursuant to section (b) of this section, that the state will not provide an attorney to defend the interests of the officer, employee or member, and (2) the officer, employee or member is thereafter found to have acted in the discharge of his duties or in the scope of his employment, and not to have acted wantonly, recklessly or maliciously. 

Conn. Gen. Stat. § 5-141d(c) (emphasis added).

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