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.
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.
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
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.
case has been found interpreting the immunity issues raised on this
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
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.
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.
Attorney for Plaintiffs
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]