The Connecticut General Assembly
OFFICE OF LEGISLATIVE RESEARCH
January 6, 1994 94-R-0036
FROM: George Coppolo, Chief Attorney
RE: Municipal Liability--When Wrongful Death Cause of Action Accrues
You asked us to review a recent federal district court decision concerning when a wrongful death cause of action accrues against a municipality.
In Judith Auger Smith, Admin. v. David Berry, et al., (Docket No. 2:92UC-00923) Judge Covello held that a wrongful death cause of action against a municipality under CGS § 7-465 accrues at the time of death. Thus, the statute of limitation begins to run from the date of death. The plaintiff, who is the administratrix of the deceased, argued that the cause of action should not accrue until the administrator or administratrix is appointed.
The case arose out of the suicide of the plaintiff's intestate. The decedent was arrested November 7, 1990, and committed suicide that same day while in custody of the defendant municipal police department. The probate court appointed the plaintiff administratrix on October 28, 1992, nearly two years after the death. The plaintiff filed a notice of claim with the defendant municipality on November 2, 1992.
The defendant filed a written motion to dismiss on the basis that the plaintiff had not complied with the notice requirements of CGS § 7-465. This statute requires municipalities to assume their employee's liability to pay for civil rights violations and for negligence. But the statute requires that written notice of an intention to commence a lawsuit be given to the municipality within six months after the cause of action has accrued. The notice must indicate the time and place where the damages were sustained.
Judge Covello, in a case of first impression, held that a wrongful death cause of action accrues at the date of death. Thus, the six month notice requirement begins to run at the date of death. He rejected the plaintiff's argument that the time period should start to run from the date the administrator or administratrix is appointed.
Attorney Linda Dow, Chief Counsel for the Probate Court Administrator's Office, advised us that an administrator or administratrix can be appointed in a matter of hours if all the heirs waive their right to a hearing. Even if a hearing is required, Dow indicated the entire process can be completed within nine days. She also indicated that probate judges normally will go out of their way to accommodate parties who need to act quickly to preserve their right to sue. Thus, there does not appear to be any need to amend the probate court procedure.
We spoke with Attorney Jim Bartolini, a prominent member of the plaintiff's bar and Attorney Jon Berk a leading member of the defense bar with experience in municipal liability issue. Attorney Bartolini was critical of the six month notice requirement noting that there is generally no such requirement for private lawsuits. He believes the notice serves no valid function since municipalities are free to conduct their own investigation as soon as the incident occurs. If the legislature decides to keep the notice requirement, he suggests borrowing a concept from the Dram Shop Law (CGS § 30-102) which excludes from the notice period the time between the death or incapacity of the aggrieved person and the appointment of an executor, administrator, conservator, or guardian up to a maximum of 120 days.
Attorney Berk, on the other hand, noted that the six month period is reasonable and questions why, in this litigious society, people would not take the appropriate action within the timeframe, especially in cases involving death. He theorizes that the purpose of the notice period is to give municipalities an opportunity to investigate the circumstances of the incident, while memories are fresh and witnesses available. He noted that in this highly mobile society, witnesses often become unavailable.
Attorney Berk also notes that CGS § 7-465 only applies to suits against employees in their official capacity. Often, employees are also sued in their individual capacity where the six month notice requirement would not apply. Although municipalities would not have to assume liability in such a suit, he believes they would be unlikely to leave their employees unprotected unless it was an unusual case.