Opinion
No. CV-03-0100254-S
July 19, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendants, Alice Duckworth, Regional School District Number 4 (RSD #4) and Supervisory Combination District (SCD), have moved for summary judgment on all counts of the plaintiff's Complaint of January 24, 2003 (the "Complaint"). The Complaint contains nine counts. After the defendants filed their Motion for Summary Judgment, the plaintiff filed a Request to Amend her Complaint so that only Counts Three, Five, Six, Seven and Nine are directed at the moving defendants. The Amended Complaint is not the subject of the motion under consideration here. However, the plaintiff has indicated that she is considering Counts One, Two, Four and Eight to have been withdrawn as to the moving defendants.
The plaintiff withdrew the action as to the defendant Deep River Board of Education on November 4, 2003.
Facts
The facts are largely undisputed. During the 1977-78 school year, the plaintiff was an 8th grader at the John Winthrop Junior High School in Deep River, Connecticut. The defendant, James Burns, was a math teacher at the school and the coach of the girl's basketball team. During the plaintiff's 8th grade school year she developed a close friendship with Burns. She viewed him as a father figure and confided in him about her poor relationship with her own father.
Burns' classroom was a well-known morning gathering place for many young girls. It was also well known that Burns was very friendly with many female students but not friendly with male students. In the spring of 1978 Burns picked the plaintiff up at her house and brought her as his "date" for an 8th grade awards dinner. During the summer of 1978 Burns asked the plaintiff and another female student to clean his house and mow his lawn. While the plaintiff was at Burns' house for house cleaning he kissed her and touched her inappropriately. He also asked the plaintiff to lie on top of him, but she refused.
In the fall of 1978 the plaintiff told her mother about her sexual CT Page 11090-bj encounter with Burns. The plaintiff's mother contacted the plaintiff's uncle, who was the Commissioner of the State Police. The Commissioner contacted defendant Duckworth, Superintendent of Schools, to advise her that Burns engaged in inappropriate conduct of a sexual nature with his niece.
The plaintiff's mother also complained directly to the defendant Duckworth and to Tim Doyle, the principal of the school, about Burns' inappropriate sexual actions. The defendants failed to take any action to investigate the allegations as to Burns. The plaintiff suffered emotional distress as a result of the defendants' conduct.
The Plaintiff's Memorandum in Opposition to the Motion for Summary Judgment contains additional facts about the damages sustained by the plaintiff as a result of the alleged failure to investigate. See pp. 8-11. However, such damages are not alleged in the Complaint. The defendants' alleged failure to investigate the plaintiff's claims occurred after Burns' alleged inappropriate sexual contact with the plaintiff. Therefore, the causal connection between the emotional distress suffered by the plaintiff due to the alleged contact and the subsequent failure to investigate, appears tenuous.
Discussion of the Law and Ruling
Practice Book § 17-49 (formerly § 384) provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). CT Page 11090-bk
The plaintiff has alleged that RSD#4 and SCD are vicariously liable for Burns' negligent conduct in the Third, Fifth and Sixth Counts of the Complaint. The liability of those defendants is based on Connecticut General Statutes § 52-557n, which provides in pertinent part:
(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; . . .
This section is a partial codification of the common-law doctrine of respondeat superior, under which a master is liable for the negligent or wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business. Cardona v. Valentin, 160 Conn. 18, 273 A.2d 697 (1970); Antinozzi v. A. Vincent Pepe Co., 117 Conn. 11, 13, 166 A. 392 (1933); Son v. Hartford Ice Cream Co., 102 Conn. 696, 699, 129 A. 778 (1925); Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500, 656 A.2d 1009 (1995). But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply. Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968); A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 208. "While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful"; Butler v. Hyperion Theatre Co., 100 Conn. 551, 554, 124 A. 220 (1924), quoting Loomis v. Hollister, 75 Conn. 718, 723, 55 A. 561 (1903); that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business . . . Butler v. Hyperion Theatre Co., supra, 556." A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 210, 579 A.2d 69 208. Unless the employee is actuated at least in part "by a purpose to serve a principal, the principal is not liable. Meyers v. National Detective Agency, Inc., 281 A.2d 435, 437 (D.C.C.A. 1971), quoting M.J. Uline Co. Cashdan, 84, U.S.App.D.C. 58, 59, 171 F.2d 132, 133 (1948)." International Distributing Corporation v. American District Telegraph Co., 569 F.2d 136, 139 (D.C. Cir. 1977).
Whether the employee was acting within the scope of his authority is often a question of fact. However, where the alleged acts of the employee are very clearly outside of the scope of his authority, the Courts of CT Page 11090-bl this state have considered the issue to be one of law. Brown v. Housing Authority, 23 Conn.App. 621, 628, 583 A.2d 643 (1990). In Brown the plaintiff and Sam Jones, a maintenance mechanic employed by the defendant, were involved in an altercation which began when the plaintiff asked Jones, who was driving a van owned by the defendant to a job site, to move his vehicle, which was blocking traffic. The two men exchanged words. When Jones refused to move the van, the plaintiff drove around it. Jones followed the plaintiff in the van, rear-ending the plaintiff's car several times. The plaintiff stopped his car and got out to speak with Jones. Jones also exited his vehicle, grabbed a hammer, chased the plaintiff around the car and struck him on the chest with the hammer, seriously injuring the plaintiff. In affirming a summary judgment in favor of the defendant employer, the Court said:
It is clear in the present case that Jones was not furthering the defendant's business interests when he assaulted the plaintiff. His intentional, criminal acts were in no way connected to the defendant's business. The mere fact that Jones was driving from one job site to another when the assault took place does not change this analysis. "`In the course of his employment' means while engaged in the service of the master, and it is not synonymous with the phrase `during the period covered by his employment.'" Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968). As there were no facts before the court from which it could conclude that Jones was furthering the defendant's interests, the defendant's nonliability under the theory of respondeat superior was properly determined as a matter of law.
23 Conn.App. at 628.
Courts of this state have held as a matter of law that when the tortfeasor-employee's activity with the alleged victim became sexual, the employee abandoned and ceased to further the employer's business. Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988); Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66 (D.Conn. 1995) Maule v. Sullivan, Hartford/New Britain J.D. at Hartford. No. CV-92-05176235 (Wagner, J.) ( 9 Conn. L. Rptr. 542), 1993 Conn.Super. LEXIS 1994. In Maule Judge Wagner found that an alleged sexual assault perpetrated on a hospital patient by a nurse was "clearly outside the scope of his employment." In granting the hospital's CT Page 11090-bm motion to strike the plaintiff's respondeat superior claim, Judge Wagner stated: "It is manifest that the alleged actions of Sullivan, a nurse, were so clearly outside the scope of his employment and not in furtherance of any interest of the hospital, that the allegations seeking to hold the hospital liable are insufficient as a matter of law," [citing Brown v. Housing Authority, 23 Conn.App. 624, 628 (1990); Guttierrez v. Thorne, 13 Conn.App. 493, 498-500 (1988)].
In this case the alleged improper sexual contact between the plaintiff and Burns took place in the summer at the Burns' house. Does a teacher in a school system who interacts at any time or place with a student in that same school system act "within the course of his employment"? Even if one accepts such an unconvincing premise, Burns' alleged sexual activity clearly did not further any interest of the defendants. Therefore, under Gutierrez, Nutt and Maule, as a matter of law Burns was not acting within the scope of his employment at the time he sexually assaulted the plaintiff and, therefore, summary judgment may enter on the Third, Fifth and Sixth Counts of the Complaint.
The Seventh Count of the Complaint alleges that the defendants RSD#4, SCD and Duckworth were negligent in failing to supervise, evaluate and investigate Burns notwithstanding that they knew or had reason to know of Burns' inappropriate conduct with female students. The defendants argue that they are entitled to governmental immunity with respect to the allegations in the Seventh Count. The plaintiff counters first that the defendants are not entitled to this immunity because the act of supervising Burns was ministerial, not discretionary in nature, and in the alternative, even if the acts are discretionary she falls within the purview of the identifiable person-imminent harm exception to governmental immunity, namely, "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 . . ." (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003). CT Page 11090-bn
"At common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts." Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). "Governmental immunity, however, is not a blanket protection for all official acts. For example, a municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts." Kolaniak v. Board of Education, 28 Conn.App. 277, 280, 610 A.2d 193 (1992). "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (b) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." General Statutes § 52-577n.
"Although historically [a] municipality itself was generally immune from liability for its tortious acts at common law . . . [municipal] employees faced the same personal tort liability as private individuals . . . Over the years, however, [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental [or discretionary] acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Spears v. Garcia, supra, 263 Conn. 35-36.
According to the common-law doctrine of governmental immunity the plaintiff is barred from bringing suit against the municipality in this instance. For the purposes of this action, the school districts, RSD #4 and SCD are considered municipal entities pursuant to General Statutes § 10-220 et. seq. "A town board of education can be an agent of the state for some purposes and an agent of the municipality for others . . . A town board of education thus potentially enjoys immunity CT Page 11090-bo under two different theories of immunity for acts carried out within its governmental capacity." Heigl v. Board of Education, 218 Conn. 1, 3-4, 587 A.2d 423 (1991). In addition, Duckworth, as a superintendent is an employee of the municipal entity and enjoys immunity pursuant to the common-law doctrine of governmental immunity because her actions in supervising Burns were discretionary in nature and not ministerial.
The Connecticut General Statutes outline certain procedures required of the superintendent and the school board with regard to regular supervision and review of teachers, however, these statutes do not provide concrete criteria, equations or checklists by which the school board and superintendent are to evaluate teachers. In fact, the very nature of such supervision and review implies judgments that are discretionary, or subjective, in nature. The defendants' decision to sustain the ongoing employment of Burns according to his performance, as they perceived it, implies a discretionary act, not a negligent failure to perform a ministerial act.
For example, General Statutes § 10-151b addresses the evaluation, by superintendents, of certain educational personnel.
General Statutes § 10-151b provides in pertinent part: "(a) The superintendent of each local or regional board of education shall, in CT Page 11090-bu accordance with guidelines . . . continuously evaluate or cause to be evaluated each teacher. An evaluation pursuant to this subsection shall include, but need not be limited to, strengths, areas needing improvement and strategies for improvement."
"The promotion of comfort, safety and the overall welfare of the general public constitutes a recognized public service . . . and such public service indisputably involves the exercise of police power which is the supreme power of the government." (Internal quotation marks omitted.) Brown v. Branford, 12 Conn.App. 106, 111, 529 A.2d 743 (1987). In the present case, the actions of the school district and Duckworth were performed for the purpose of promoting the comfort, safety and overall welfare of the general public, in this case the schoolchildren and their parents, and, therefore, constituted an exercise of police power. The plaintiff bases her claim against the municipality on a theory of negligent supervision, however, evidence suggests that Burns endured the same regular reviews and assessments as did any other teacher employed by the municipality. All of these evaluations were performed to ensure the safety and welfare of the general public, and, thus, their actions qualify for governmental immunity.
Finally, public policy dictates that the careful, and regular assessments of teachers as performed by the CT Page 11090-bp defendants remain protected by the common-law doctrine of governmental immunity. "Governmental immunity allows decisions to be made by public officials without the debilitating concern that an honest mistake, made despite the exercise of good faith, will subject the municipality or the official to liability." Purzycki v. Fairfield, 244 Conn. 101, 124, 708 A.2d 937 (1988).
"A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions [including, inter alia,] 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 . . ." (Internal quotation marks omitted.) Spears v. Garcia, supra, 236 Conn. 36.
Connecticut courts have consistently concluded that where there are facts to suggest that the identifiable victim exception to governmental immunity might apply, summary judgment is inappropriate. See Burns v. Board of Education, 228 Conn. 640, 650-51, 638 A.2d 1 (1994); Purzycki v. Town of Fairfield, 244 Conn. 101, 111, 708 A.2d 937 (1998).
The defendants contend that the plaintiff has failed to offer any evidence to suggest that it was apparent to the defendants or that they knew that Burns was engaging in inappropriate contacts with the plaintiff. However, the fact that Burns took the plaintiff to school dance as his "date" prior to the alleged sexual assault, is sufficient to raise an issue of fact with respect to whether the plaintiff was an identifiable victim. Therefore summary judgment is denied as to the Seventh Count.
In the Ninth Count the plaintiff seeks indemnification under § 10-235 of the Connecticut General Statutes, which provides in pertinent part:
Indemnification of teachers . . . (a) Each board of education shall protect and save harmless any member of such board or any teacher . . . from financial loss and expense, including legal fees and costs if any, arising out of any claim, demand, suit or CT Page 11090-bq judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person . . . which acts are not wanton, reckless or malicious, provided such teacher . . . was acting in the discharge of his or her duties or within the scope of employment or under the direction of such board of education, . . .
The purpose of this statute was to make indemnification available to a board of education member or teacher. King v. Board of Education, 195 Conn. 90, 97, 486 A.2d 1111 (1985). A number of Superior Court decisions have held that § 10-235 does not provide for a direct cause of action by a plaintiff against a school Board. Goode v. Town of Wilton, Superior Court, Judicial District of Stamford/Norwalk, Docket No. 180777 (Mintz, J., October 9, 2001) ( 31 Conn. L. Rptr. 25); Duffas v. McClendon, Superior Court, Judicial District of Stamford/Norwalk, Docket No. 0182286 (Karazin, J., April 12, 2001); D'Alessio v. Town of Ansonia, Superior Court, Judicial District of Ansonia/Milford at Milford, Docket No 070881 (Nadeau, J., October 11, 2000) ( 28 Conn. L. Rptr. 361); Carrington v. Sullivan, 3 Conn. L. Rptr. 232, 235 (January 29, 1991, Hennessey, J.); Marotto v. Gaudet, 8 CSCR 83, 84 (January 19, 1993, Langenbach, J.); Little v. Booth, No. CV 92-0514952S, 1993 WL 454202 (Dunn, J.) ( 10 Conn. L. Rptr. 290); Ashlaw v. Booth, No. CV 90 0045313 S (Potter, J.).
In Marotto the court stated: [General Statutes § 10-235] gives the right of indemnification to an employee of the board of education in certain circumstances, unlike General Statutes § 7-465a which reads in pertinent part that "the municipality shall pay on behalf of any such employee," which provides an injured plaintiff a direct cause of action against a municipality . . . General Statutes § 10-235 does not provide the plaintiff with a direct cause of action against the Board, but it remains available to the defendants to seek indemnification This court agrees with the reasoning in Marotto, Goode, and the other Superior Court cases cited above and, therefore, summary judgment is granted as to the Ninth Count of the Complaint.
Lastly, the defendants claim that the statute of limitations pursuant to General Statutes § 52-584 has expired or, alternatively, that Connecticut General Statutes § 52-577d does not apply to these defendants and is unconstitutional. As to the statute of limitations, the defendants claim that: (1) the applicable statute of limitations is Connecticut General Statutes § 52-584; (2) the plain meaning of Connecticut General Statutes § 52-577d does not lend itself to negligence actions; (3) Connecticut General Statutes § 52-577d does not apply to CT Page 11090-br third parties. Both the plaintiff and the defendants cite to the case of Almonte v. New York Medical College, 851 F.Sup. 34 (D.Conn. 1994), in setting forth their positions. Therein, the court determined that Connecticut General Statutes § 52-577d applied to non-perpetrators. Adopting what was termed a "harm-based" approach, the court stated that its: "conclusion is driven in large part by the language of the statute. Quite simply, the statute does not expressly limit its application to offenders; rather, reference to the unambiguous language of the statute indicates that the statutory focus is on actions flowing from a particular type of harm, and not parties. In other words, in defining the scope of the statute, courts should look to whether the underlying harm was allegedly `caused by sexual abuse, sexual exploitation or sexual assault,' § 52-577d, rather than whether the named defendants are potentially primarily or only secondarily liable for the alleged harm." Almonte v. New York Medical College, supra, 851 F.Sup. 37.
"Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority." General Statutes § 52-577d.
"No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed." General Statutes § 52-584.
Additionally, with regard to the issue of whether § 52-577d applies in the negligence context, the court in Almonte pointed out that a Connecticut trial court considering the issue relied on the rule of statutory construction favoring the application of specific statutes over the application of general statutes. Id., 38, citing See v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 0300948 (Sept. 13, 1993, Freed, J.) ( 10 Conn. L. Rptr. 51); Rosado v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 0302072 (Sept. 13, 1993, Freed, J.) ( 10 Conn. L. Rptr. 52). In denying the defendants' motion for summary judgment in those companion cases, the court stated that, "It is a basic rule of statutory construction that `absent manifest intent to repeal an earlier statute, when general and specific statutes conflict they should be harmoniously construed so the more specific statute controls.' McKinley v. Musshorn, 185 Conn. 616, 624, 441 A.2d 600 (1981)." See v. Bridgeport Roman Catholic Diocesan Corp., supra, Docket No. CV 93 0300948; Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, Docket No. CV 93 0302072.
Here, the plaintiff alleges negligence and seeks damages for personal injury, including emotional distress, caused by sexual assault and abuse. Connecticut General Statutes § 52-577d is the statute of limitations most specific to the present action. The plaintiff was thirty-seven years old when this action was brought; accordingly, she reached the age of majority nineteen years prior to commencement of the action. See General Statutes § 1-1d ("`age of majority' shall be deemed to be eighteen years"). Accordingly, the plaintiff brought this action within the time limit set forth in General Statutes § 52-577d. CT Page 11090-bs
The defendants also claim that § 52-577d is unconstitutional because: (1) it violates the defendants' right to equal protection; and (2) retroactive application of § 52-577d violates the defendants' right to due process. With regard to the equal protection violation, the defendants assert that there is no rational basis for § 52-577d as applied to allegedly negligent non-perpetrators and that the legislature did not intend to extend the statute of limitations under those circumstances. The defendants rely on the case of Giordano v. Giordano, 39 Conn.App. 183, 192, 664 A.2d 1136 (1995), and the legislative history of the statute in support of their position.
"The party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality." State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989). In Giordano, the court stated that, "[i]t is clear from the legislative history of § 52-577d that the purpose of the 1991 amendment[, extending the statute of limitations to seventeen years after the age of majority,] was to allow victims to recall sexual abuse that had been repressed, and to bring an action against the perpetrators of that abuse as part of the victim's healing process." Giordano v. Giordano, supra, 39 Conn.App. 191. The court, however, stated that, "This legislation does not have to be narrowly tailored[,]" citing to the rational basis test. Id., 192. "The state has a legitimate interest both in deterring the sexual abuse of children and in providing a means for the victims of childhood sexual abuse to recall the traumatic events and understand the harm done to them before seeking redress. The extension of the statute of limitations to seventeen years after the age of majority is reasonably related to the accomplishment of those goals." Id., 193. While the statute of limitations is now 20 years and the defendants legitimately point to the fact that this is not a case where the plaintiff has a repressed memory, the defendants have failed to establish that the statute is not reasonably related to the legitimate interest articulated by the court in Giordano v. Giordano, supra, 193.
The court did not consider whether § 52-577d applied to third parties.
The defendants also assert that the retroactive application of § 52-577d violates their due process rights. "[S]tatutes of limitation are presumed to apply retroactively . . . Although substantive legislation is not generally applied retroactively absent a clearly expressed legislative intent, legislation that affects only matters of procedure is presumed to [be] applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary . . . Statutes of limitation are generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action CT Page 11090-bt and does not itself create the right of action. . . . Therefore, unless specifically filed to a statutory right of action or unless a contrary legislative intent is expressed, the statute of limitations in effect at the time an action is filed governs the timeliness of the claim." (Citations omitted; internal quotation marks omitted.) Roberts v. Caton, 224 Conn. 483, 488-89, 619 A.2d 844 (1993). The defendants cite to the court's subsequent statement that a statute "will not be applied retroactively if considerations of good sense and justice dictate that it not be so applied." Id., 493. They assert that under the circumstances of this case, good sense and justice preclude the retroactive application of § 52-577d because evidence has been destroyed and witnesses have died. It should be noted, however, that several people, some of whom would presumably be called as witnesses at a trial, have been deposed in this case. Furthermore, the defendants have not made it clear what evidence has been destroyed and whether it still would have existed at an earlier time. The defendants have failed to establish the unconstitutionality of § 52-577d. The motion for summary judgment on the grounds of the unconstitutionality of § 52-577d is, therefore, denied.
In conclusion, summary judgment is hereby entered in favor of the defendants on Counts Three, Five, Six, and Nine of the Complaint. Summary judgment is denied as to the Count Seven.
By the court,
Aurigemma, J.