Plaintiffs' Memorandum of Law on the Legal Insufficiency of Defendant's Immunity Defense*

Defendant's special defense asserting immunity under Section 1 7a-101 of Connecticut General Statutes is insufficient as a matter of law since defendant has admitted she failed to file a written report as required.  Thus, the defense should not go to the jury.

Facts: Plaintiff's seventh and eighth causes of action in the complaint assert claims of slander against Mary Smith.  The claims are based on Mary Smith having orally told certain third-parties that John Doe had sexually abused his daughter, Jane Doe, and that Jane Doe had engaged in sexual activities with her father, and was thus unchaste.

Mary Smith has admitted in her various depositions that she made statements to this effect to the Anytown Police Department, Elizabeth Doe, her supervisor, a friend and co-therapist, another psychologist, and a Court-appointed independent psychiatrist evaluator of the Doe family.  Plaintiffs anticipate that the Rev. John Jones will testify that Smith made defamatory statements about Mr. Doe to Rev. Jones.  As a result of Smith's statement to the police and subsequent arrest of Mr. Doe, Smith's statement that John Doe had sexually abused his daughter, and fondled and tortured animals, appeared several times in the Anytown Gazette in September of 1985.

Thus, there is no question about publication: it is clear that Smith published the previously mentioned statements to third-parties.  Similarly, there is no question about the slanderous nature of the statements; they clearly import moral turpitude, and thus are slanderous per se.  Defendant has not asserted the defense of truth.  Defendant's only defense is a claim of immunity pursuant to Section 17a-101, formerly 17-38a of the Connecticut General Statutes.  For the reasons set forth below, defendant is not entitled to that defense.

Argument

Connecticut General Statutes Section 17a-101, formerly 17-38 a, is generally known as the "mandated reporting" section of the statutory scheme to protect children from abuse.  Pursuant to Section 17a-101(b), a mental health professional or a Connecticut certified marital and family therapist "who has reasonable cause to suspect or believe that any child under the age of eighteen has had physical injury ... or is in a condition which is the result of ... sexual abuse ... shall report or cause a report to be made in accordance with the provisions of Subsection (c) of this section."

Pursuant to Section 17a-101(c) "an oral report shall be made immediately by telephone or otherwise, to the State Commissioner of Children and Youth Services or his representatives, or the local police department or the state police, to be followed within 72 hours by a written report to the Commissioner of Children and Youth Services or his representative."

Section 17a-101(h), which grants the immunity, states.

Any person, institution or agency which, in good faith, makes the report required by this section shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report.

Though most other states have statutes similar to the mandated reporting statute in Connecticut, the plaintiffs have found only several other states which have both an oral and a written reporting requirement similar to the Connecticut oral and written reporting requirement.  No case has been found interpreting the immunity issues raised on this motion.

Plaintiffs contend that defendant is not entitled to immunity since Smith failed to file a written report within 72 hours of her oral report by DCYS, which is required by the statute.

DCYS has produced its records concerning this incident, and they contain no written report from Mrs. Smith.  The defendant admitted at a recent deposition that she had not filed a written report with DCYS.1

Time-honored rules of statutory construction require that statutes depriving citizens of rights in derogation of common law must be strictly construed.  Concomitantly, a person seeking to obtain the protection of those statutes, must have strictly adhered to and complied with the statute.  Since 17a-101 of the Connecticut General Statutes by its terms deprives a citizen of a right to sue which he otherwise would have, in order for Smith to benefit from statutory immunity, she must have strictly adhered to the requisites of that statute.  Since Smith failed to fulfill the statutory requirement of filing a written report within 72 hours of her oral report, she did not comply with the statute, and therefore is not entitled to the protection it affords to those who do comply.

As the Court stated in Pagani v. BT II, Limited Partnership, 24 Conn. App. 739 (1991):

It is a salutary rule of statutory construction that statutes in derogation of common law are to be strictly construed.  McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1991) ... no statute is to be construed as altering the common law, farther than its words import.  It is not to be construed as making any innovation upon the common law which it does not fairly express. (Citations omitted)

Thus, it is a well-established rule of statutory construction "that statutorily created exceptions to a general rule must be strictly construed and the language not extended beyond its evident intent." State v. Anonymous, 38 Conn. Sup. 661, citing Kulas v. Moll, 172 Conn. 104, 110, 374 A.2d 133 (1976).

It is clear that the special defense of immunity asserted by defendant in this case is a statute which derogates from the otherwise common law right plaintiff would have to sue the defendant.  Thus, it must be strictly construed, and must not be extended or altered beyond the evident intent of its very specific language.

This statute requires a written report to be filed by the "mandated reporter" within seventy-two hours of the making of an oral report.  Defendant has testified and the DCYS records confirm that her oral report was made on March 26, 1987.  Plaintiff's testimony and the DCYS records confirm that plaintiff never filed a written report as required by the Statute.

Since Section 17a-101(h) provides certain immunity to persons making "the report required by this section", and since the report required by the section is both an oral and written report, it is clear that Smith has failed to "make the report required by this section" and thus is not entitled to immunity.

Conclusion

For the reasons set forth herein, it is respectfully submitted that the Court should exclude defendant's immunity special defense as insufficient as a matter of law.

Respectfully submitted,

Attorney for Plaintiffs

Endnotes

Mrs. Smith's explanation was that she had been told by DCYS that she did not need to file a written report.  Even assuming such advice was given, that advice clearly conflicts with the statutory mandate. and provides no safe haven to the defendant. [Back]

* Readers who want more information regarding this article may contact Robert L. Herbst, Esquire at Herbst & Greenwald, 122 East 42nd Street, Suite 2500, New York, New York 10168. [Back]

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