Opinion
No. CV03-0177251S
October 2, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This is an action for violation of the right to privacy and negligent infliction of emotional distress. Before the court is the defendant's motion for summary judgment on the ground that there are no genuine issues of material fact in dispute as to the defendant's liability and that the defendant is entitled to judgment as a matter of law.
FACTS
The facts set forth herein are alleged in the amended complaint. In 2002, the plaintiff was diagnosed with reactive hypoglycemia. As a result, in part, of the condition, the plaintiff and her husband encountered marital problems during the summer of 2002. As a consequence of the marital problems, the Naugatuck police were called to the residence shared by the plaintiff and her husband. No arrests were made as a result of these calls.
On October 1, 2002, the plaintiff and her husband appeared in family court in the judicial district of Waterbury. At the time of the appearance, the plaintiff's husband possessed confidential police records regarding the plaintiff which were generated during the summer and early fall of 2002. These records had been turned over to Robert Sprano, a civilian third party by the defendant, a Naugatuck police officer. Sprano, in turn, disclosed the reports to the plaintiff's husband for use against the plaintiff in the family court proceedings. The plaintiff alleges that her right to privacy was invaded, and she was caused to suffer emotional distress as a result of the defendant's unlawful and unauthorized disclosures of the confidential police records to the third-party civilian.
The defendant submits the following documents in support of his motion for summary judgment: (1) a copy of the deposition of Thomas Evans, (2) a copy of the deposition of Anita Evans (3) a copy of the deposition of Robert Sprano, (4) the transcript of the Evans v. Evans proceeding before Petroni, J.T.R., (5) a copy of the plaintiff's amended complaint, (6) the defendant's sworn affidavit, and (7) a copy of the plaintiff's objection to the defendant's request to revise the plaintiff's complaint. The plaintiff has filed nothing other than a memorandum in opposition to the defendant's motion.
DISCUSSION
"Practice Book [§ 17-49] 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "A material fact . . . [is] a fact which will make a difference in the result of the case." Pane v. Danbury, 267 Conn. 669, 675, 841 A.2d 684 (2004).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The movant is held to a strict standard. To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).
The defendant argues that no unreasonable publicity occurred as a result of the disclosure of the police reports to a third party and that even if unreasonable publicity was found, the matter publicized is not of the type which would be highly offensive to a reasonable person and was of legitimate public concern. Additionally, the defendant asserts that the plaintiff has no factual basis for the claim of negligent infliction of emotional distress. The defendant further argues that he is not liable to the plaintiff based upon governmental immunity for his actions regarding the disclosure of police reports. Finally, the defendant argues that no duty was owed the plaintiff in regard to the use of the records at issue because the police reports are public records.
The plaintiff counters that a requirement of widespread publicity is not applicable to a claim based upon unreasonable intrusion into another's solitude. The plaintiff further counters that the issue of whether emotional distress arising from disclosure of police reports was reasonably foreseeable is an issue that should be decided by a jury.
INVASION OF PRIVACY
"[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone . . . The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." (Citation omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, CT Page 17945 127-28, 448 A.2d 1317 (1982)
In the present case, the defendant argues that the plaintiff is alleging an invasion of privacy by way of unreasonable publicity given to the other's private life. The plaintiff argues that the present case is based on the defendant's unreasonable intrusion into another's solitude and as such, the "publicity" requirement does not apply. Although the plaintiff's complaint is unclear as to the wrong alleged, a fair reading of the amended complaint permits a conclusion that the plaintiff has alleged an invasion of privacy by way of unreasonable intrusion upon her seclusion.
The Connecticut Appellate Courts have not yet set forth the necessary elements of a claim for unreasonable intrusion upon seclusion, but, in Gallagher v. Rapoport, Superior D'Andrea, J. observed that the Restatement indicates that this form of invasion of privacy "consists solely of an intentional interference with [the plaintiff's] interest in solitude or seclusion, either as to his person, or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man." 3 Restatement (Second) of Torts § 652B, comment (a). "The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home . . . The defendant is subject to liability under the rule stated in this Section [§ 652B] only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs." (Citation omitted.) Gallagher v. Rapoport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0149891 (May 6, 1997, D'Andrea, J.) ( 19 Conn. L. Rptr. 474).
"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." (Internal quotation marks omitted.) Gallagher v. Rapoport, supra, Superior Court, Docket No. CV 96 0149891. Whether particular conduct would be highly offensive to a reasonable person is question of fact. Mashantucket Pequot Tribe v. State, Superior Court, judicial district of New London at Norwich, Docket No. 101113 (August 19, 1994, Hendel, J.); Rafferty v. Hartford Courant Co., 36 Conn.Sup. 239, 241, 416 A.2d 1215 (1980).
"The form of invasion of privacy covered by [§ 652B] does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man." 3 Restatement (Second), Torts § 652B, comment (a). No liability attaches to the examination of a public record. See 3 Restatement (Second), Torts § 652B, comment (c).
In the present case the plaintiff alleges that the defendant turned over confidential police reports to a third party, who, in turn disclosed the reports to the plaintiff's spouse for use in family court proceedings, with the knowledge and intent that the reports would be disclosed to a large number of third persons. The plaintiff asserts that the defendant's conduct, consisting of "accessing and unlawfully disclosing police records illustrating events discovered upon entering the plaintiff's residence under the cloak of official police power," meets the definition of unreasonable intrusion into the seclusion of another.
The defendant argues that the plaintiff has offered no legal support for such a conclusion. However, as previously stated, "[i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 46-47.
"Whether [an] intrusion [upon a person's privacy] is highly offensive to a reasonable person is for a jury to decide . . ." (Citation omitted.) Rafferty v. Hartford Courant Co., 36 Conn.Sup. 239, 241, 416 A.2d 1215 (1980); see also Flowers v. New Britain General Hospital, Superior Court, judicial district of Hartford at Hartford, Docket No. 393885 (June 13, 1994, Hennessey, J.) ( 9 C.S.C.R. 699, 700) (same); Mashantucket Pequot Tribe v. State of Connecticut, Superior Court, judicial district of New London at Norwich, Docket No. 101113 (August 19, 1994, Hendel, J.) (same).
The defendant has failed to satisfy his obligation of establishing that no genuine issue of material fact exists regarding whether the records disclosed are in fact confidential or whether any alleged intrusion of the plaintiff's privacy based upon the alleged disclosure is of the type that would be highly offensive to a reasonable person. The motion is therefore denied as to the first count.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The defendant argues that the plaintiff has no factual basis for the claim of negligent infliction of emotional distress. The defendant asserts that the plaintiff has provided no evidence other than "self serving" statements that the defendant had knowledge of the plaintiff's hypoglycemia. Further, the defendant contends that the level of emotional distress claimed by the plaintiff is unreasonable in light of the defendant's conduct of disclosing the police reports. As such, the defendant argues that he is not liable to the plaintiff for negligent infliction of emotional distress. The plaintiff merely asserts that it would "not be a sign of undue or unreasonable over sensitivity for a private person to be profoundly distressed that the sort of personal data included in the plaintiff's non-arrest police records would be accessed illegally and revealed to third parties."
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that [his] conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This . . . test essentially requires that the fear or distress experienced by the [plaintiff] be reasonable in light of the conduct of the [defendant]. If such [distress] were reasonable in light of the [defendant's] conduct, the [defendant] should have realized that [his] conduct created an unreasonable risk of causing distress, and [he,] therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the [defendant's] conduct, the [defendant] would not have recognized that [his] conduct could cause this distress and, therefore, [he] would not be liable." Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).
"[T]he "genuine issue" aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." Id., 379.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
In the present action, the defendant submitted an affidavit in which he stated that, at the time he disclosed the police reports in 2002, he had no knowledge of the plaintiff's medical condition. He has not presented any evidence supporting his assertion that the plaintiff's claimed emotional distress is unreasonable in light of the defendant's conduct of disclosing the police reports. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005). The defendant has failed to meet this burden as to the second count.
GOVERNMENTAL IMMUNITY
The defendant argues that he is immune from liability to the plaintiff because his actions were, in the performance of governmental acts; thus, based upon governmental immunity, he is not liable to the plaintiff. The plaintiff fails to address this argument.
"The [common law] doctrines that determine the tort liability of municipal employees are well established . . . 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 governmental 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 acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . ." (Internal citations omitted; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 723, 643 A.2d 1226 (1994). "[A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . [T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury." Purzycki v. Fairfield, 244 Conn. 101, 107, 108, 708 A.2d 937 (1998).
In the present case, a factual issue exists as to the applicability of the defense of governmental immunity. It is not clear whether the plaintiff has sued the defendant in his individual capacity or in his official capacity. The summons identifies the defendant by name and states C/O the Naugatuck Police Department. This identification, seemingly connecting the defendant with the Naugatuck Police Department is insufficient to lead to the conclusion that the defendant has been sued in his official capacity. Moreover, even if the defendant is sued in his official capacity, the applicability of the defense is not clear. "It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." Batick v. Seymour, 186 Conn. 632, 646-47, 443 A.2d 471 (1982).
Genuine issues of material fact exist and the defendant is not entitled to judgment as a matter of law as to whether the defendant acted with the state of mind upon which liability to the plaintiff can be based as well as whether the plaintiff has sued the defendant personally or in his official capacity.
NATURE OF DISCLOSURE
The defendant asserts that the plaintiff has failed to establish that a duty was owed to the plaintiff not to disclose the records at issue here. The plaintiff does not counter the defendant's assertion.
General Statutes § 1-210 states in relevant part: "(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings; (b) Nothing in the Freedom of Information Act shall be construed to require disclosure of:
(1) Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure;
(2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy;CT Page 17951
(3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216 . . ."
In the present case, neither party has definitively defined what records were disclosed by the defendant. Because it is unclear whether these records would be exempt from disclosure pursuant to § 1-210, there exists a genuine issue of material fact as to whether the disclosure was unlawful.
CONCLUSION
The defendant has failed to provide evidence that no genuine issue of material fact exists, and that he is entitled to judgment as a matter of law. Therefore, the defendant's motion for summary judgment is denied.