Opinion
CV156013784
11-08-2016
C. Barton Gullong v. Mark A. Nurmi et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE DEFENDANTS AMENDED COUNTERCLAIM (#130)
ELPEDIO N. VITALE, JUDGE.
Nature of the Proceedings
The defendants, Mark and Joann Nurmi, filed the ten-count amended counterclaim in this action on March 21, 2016. Counts one, two, five, seven, and nine allege invasion of privacy by unreasonable intrusion upon seclusion, invasion of privacy by unreasonably placing in a false light, negligent infliction of emotional distress, intentional infliction of emotional distress, and a permanent injunction, respectively, on behalf of Mr. Nurmi. Counts three, four, six, eight and ten raise the same claims, in the same order, on behalf of Mrs. Nurmi.
Mark Nurmi and Joann Nurmi were both named as defendants in this action. Hereafter, Mr. and Mrs. Nurmi are referred to collectively as the defendants, and individually by name where appropriate.
The defendants allege the following facts. Since about spring 2013, the plaintiff, C. Barton Gullong, a residential neighbor of the defendants, has engaged in a pattern of offensive behavior directed at the defendants. Specifically, the plaintiff has (1) conducted video surveillance of the defendants, as well as their property and home; (2) lied to town officials and police officers by claiming that he was not causing pesticides to be sprayed on public land; (3) driven by the defendants' home, making obscene and threatening gestures--specifically, fashioning his hand into the shape of a gun, and then pointing it at Mr. Nurmi--and screaming at Mr. Nurmi; (4) gone onto the defendants' driveway, making obscene and threatening gestures--specifically, fashioning his hand into the shape of a gun, and then pointing it at Mr. Nurmi--and screaming, while Mr. Nurmi worked with power tools from scaffolding, causing a fear of falling; (5) used cameras to conduct surveillance on his own home, and accused Mrs. Nurmi of urinating in his yard, even after the police determined that Mrs. Nurmi was not the perpetrator; (6) exhibited aggressive behavior in retaliation against the defendants, because the defendants reported to local officials that the plaintiff was causing pesticides to be sprayed on public land; (7) exhibited unwanted and obsessive attention upon the defendants, manifested by, among other things, engaging in confrontations with the defendants and calling the police; (8) confronted Mr. Nurmi on public land in an aggressive and threatening manner, and said to Mr. Nurmi that he was " watching [him]" and that he would " keep an eye on [him]"; (9) threatened to submit the urine found on his land for DNA testing to prove that Mrs. Nurmi urinated on his property, even though the plaintiff knew or should have known that the police confirmed that Mrs. Nurmi was not the perpetrator; and (10) caused his attorney to send a letter to the defendants threatening immediate third-party relief.
Certain counts relevant to the motion to strike omit specific allegations. Counts two and four, which claim false light, and eight, which goes to intentional infliction of emotional distress for Mrs. Nurmi, omit subparagraphs (3), (4), (6), and (8); count three, which goes to intrusion upon seclusion for Mrs. Nurmi, omits subparagraph (8).
On June 17, 2016, the plaintiff filed a motion to strike counts one through four, seven, and eight of the amended counterclaim on the grounds that the defendants have not alleged any actual intrusion on the defendants' seclusion, that the publicity requirement for false light is not alleged, and that the plaintiff's behavior is not alleged to be extreme and outrageous for purposes of intentional infliction of emotional distress. The motion is accompanied by a memorandum of law. The defendants filed a memorandum of law in opposition to the motion to strike on July 15, 2016. The court heard argument on August 1, 2016.
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). " A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) Cadle Co. v. D'Addario, 131 Conn.App. 223, 235, 26 A.3d 682 (2011).
The plaintiff argues that counts one through four, seven, and eight are legally insufficient. For counts one and three, asserting claims of unreasonable intrusion upon the seclusion of another against Mr. and Mrs. Nurmi, respectively, the plaintiff argues that the defendants do not allege sufficiently intrusive conduct, and that the allegations do not implicate the defendants' seclusion. For counts two and four, asserting claims of unreasonably placing in a false light, the plaintiff maintains that the defendants have not sufficiently alleged publicity. Finally, counts seven and eight, asserting claims of intentional infliction of emotional distress, the plaintiff argues that the defendants have not alleged that the plaintiff's behavior rises to the level of extreme and outrageous. In response, the defendants argue that the plaintiff's conduct--which includes pointing cameras toward the defendants' home and its curtilage, fashioning his hand in the form of a gun, and accusing Mrs. Nurmi of urinating on his property--together with the aggression and attention the plaintiff directs toward the defendants sufficiently alleges an intrusion upon the defendants' seclusion. Additionally, the defendants contend that the plaintiff's complaint and police report are subject to public access, which is a further invasion of their privacy, as it places the defendants in a false light. The defendants also argue that the facts alleged sufficiently characterize the plaintiff's actions as extreme and outrageous.
Counts One and Three: Invasion of Privacy, Unreasonable Intrusion Upon Seclusion
" [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 . . . 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 . . ." (Citation omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 448 A.2d 1317 (1982); see also 3 Restatement (Second), Torts § 652A (1977). " The Connecticut Appellate Courts have yet to interpret what constitutes an invasion of privacy under the first category: an unreasonable intrusion upon the seclusion of another . . . The Supreme Court however has often adopted the Restatement when adjudicating an invasion of privacy claim . . . and the Superior Court has consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another." (Internal quotations omitted.) Huston v. Cossette, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-11-6003351-S, (January 22, 2015, Fischer, J.); see also Carney v. Amendola, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-10-6003738, (May 15, 2014, Brazzel-Massaro, J.) (same).
Section 652B of the Restatement (Second) of Torts provides: " 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 his privacy . . ." Furthermore, " [t]he 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. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars . . . It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail . . ." Id., comment (b). Finally, " [t]he defendant is subject to liability under the rule stated in this Section 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. Thus there is no liability for the examination of a public record concerning the plaintiff . . . Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters." Id., comment (c).
The Restatement indicates that an intrusion does not occur in the absence of seclusion, and that seclusion may be physical or may implicate personal, private matters. Id. In terms of physical seclusion, a recent Superior Court decision found that a party's allegation that a neighboring couple attached a video camera to the front of their home and took footage of her property and her guests did not constitute a violation of privacy because the camera recorded an area of the property that was in plain view, and there were no steps taken to obscure the property from passers-by. Chapdelaine v. Duncan, Superior Court, judicial district of Windham, Docket No. CV-14-5005837, (October 28, 2014, Boland, J.); see also Fiorillo v. Berkley Administrators, Superior Court, judicial district of New Haven, Docket No. CV-01-0458400-S (May 5, 2004, Arnold, J.) [37 Conn.L.Rptr. 62, ] (surveillance conducted in public not a violation of privacy). Cases addressing the fourth amendment may be instructive in determining whether there is a reasonable expectation of privacy in a particular area. See Chapdelaine v. Duncan, supra (discussing curtilage protected by the fourth amendment). One has a diminished expectation of privacy in a front driveway that is freely accessible, in contrast with an area in which one has manifested an intent to keep private, such as a driveway behind a fence. See State v. Ryder, 301 Conn. 810, 822-25, 23 A.3d 694 (2011) (expectation of privacy in interior driveway behind electronic security gate); State v. Brocuglio, 64 Conn.App. 93, 102-04, 779 A.2d 793 (2001) (expectation of privacy in back portion of driveway, behind fence and in area with signs discouraging trespassing).
As for seclusion by way of personal matters, an intrusion may occur when statements expose private facts. Garces v. R& K Spero Co., LLC, Superior Court, judicial district of New Haven, Docket No. CV-09-5025895-S, (May 29, 2009, Thompson, J.) (forcing one to reveal that one is menstruating sufficient for intrusion upon seclusion); Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-99-066602 (February 4, 2000, Nadeau, J.) [26 Conn.L.Rptr. 368, ] (highly offensive statements about sex life, appearance, and values sufficient for intrusion upon seclusion claim). If the statements are imprecise, and are closer to insinuations than questions or demands, the statements may be insufficient. See Neron v. Cossette, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-11-6003350-S, (April 13, 2012, Markle, J.) (statements alleging, inter alia, that defendant was arrested for domestic abuse and had a history of sexual harassment complaints insufficient); Kindschi v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV-06-4022391, (November 28, 2006, Robinson, J.) (insinuations about extra-marital affair insufficient).
In the present case, the defendants' allegations do not sufficiently allege an unreasonable intrusion upon their seclusion. The first subparagraph is insufficient because there are no allegations that the plaintiff's surveillance cameras capture footage that is not in plain view of the general public. As for the second subparagraph, the plaintiff's conversations with others about the plaintiff's conduct do not implicate the defendants' privacy. The third and fourth subparagraphs are insufficient because the plaintiff's presence on the street outside the defendants' home does not constitute an intrusion into a private place, and the gesturing and screaming are not alleged to concern the defendants' private matters; the additional allegation in subparagraph four that the plaintiff entered onto the defendants' driveway does not sufficiently allege an intrusion because there are no facts to suggest that the defendants' manifested an intent to keep the driveway private. In subparagraph five, neither the plaintiff's surveillance of his own home nor the allegations concerning the plaintiff's accusation violate the defendants' privacy. Although the accusation implicates personal matters, it does not expose private facts about Mrs. Nurmi. The sixth subparagraph merely alleges the plaintiff's propensity for intrusiveness. The confrontations in the seventh subparagraph are not alleged to concern the defendants' private matters, and the allegation that the plaintiff has called the police concerning the defendants, without more, seems to allege an invasion of privacy by way of false light, rather than intrusion. The threats alleged in the eighth subparagraph do not refer to Mr. Nurmi's private affairs and occurred on public property; therefore, Mr. Nurmi does not sufficiently allege either a psychological or a physical intrusion. The ninth subparagraph is insufficient for reasons similar to the fifth, though additionally, there is no allegation that to submit the urine for DNA analysis the plaintiff demanded any personal information from Mrs. Nurmi. Finally, although improperly opening another's mail may be an intrusion upon seclusion, an allegation that the defendants received a letter is insufficient.
Counts Two and Four: Invasion of Privacy, Unreasonably Placing in a False Light
" [P]ublicity that unreasonably places the other in a false light before the public, " is one category within the larger action for an invasion of privacy. Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 129; 3 Restatement (Second), supra, § 652E. Although § 652E establishes false light as a claim, § 652E comment (a) refers to § 652D to define publicity. " 'Publicity, ' . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge . . . Thus it is not an invasion of the right of privacy . . . to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section . . ." 3 Restatement (Second), supra, § 652D, comment (a).
" Where a plaintiff fails to allege facts relating to publicity, the complaint will fail for insufficiently pleading a cause of action for invasion of privacy by false light." (Internal quotation marks omitted.) Cavallaro v. Rosado, Superior Court, judicial district of New Haven, Docket No. 05-4009939, (October 5, 2006, Robinson, J.). A verbal communication to a small group of people, which can include a group of up to ten people, does not constitute publicity. Carney v. Amendola, supra, Superior Court, Docket No. CV-10-600373 8 (collecting cases). Moreover, suspecting that the public may overhear or otherwise encounter a statement is insufficient for false light. Id. (statement made in public not publicized when no indication that others in vicinity overheard); see also Doe v. Hartnett, Superior Court, judicial district of Waterbury, Docket No. CV-96-0134840 (May 7, 2002, Pittman, J.) [32 Conn.L.Rptr. 91, ] (suspecting that statement has been communicated to others and that a record subject to public disclosure has been created does not establish publicity). To determine whether publicity is sufficiently alleged, " [t]he question is . . . whether [the party] published the offending falsity directly to the public and not in a manner that was merely foreseeable the public would become aware of the falsity." Winters v. Concentra Health Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV-07-5012082-S, (March 4, 2008, Thompson, J.).
The defendants do not sufficiently allege that the plaintiff unreasonably placed them in a false light because there are no allegations concerning publicity. First, the allegation concerning the plaintiff's surveillance of the defendants does not allege that the plaintiff distributed or communicated anything he observed to the public. In a similar vein, allegations that the plaintiff communicated with town officials and police officers for various reasons are insufficient to allege publicity, as there is no allegation that the matters discussed became or were certain to become public knowledge. The allegations concerning the urination accusations and the letter from the plaintiff's attorneys involve a similarly limited group of people. Consequently, as there are no allegations that the plaintiff published any information directly to the public, the defendants have not alleged facts relating to publicity.
Counts Seven and Eight: Intentional Infliction of Emotional Distress
To prevail on a claim of intentional infliction of emotional distress, " [i]t must be shown . . . that the conduct was extreme and outrageous . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012).
" [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
" Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, supra, 304 Conn. 527. Threatening physical violence is not necessarily extreme and outrageous conduct. See Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004) (insults accompanied by a threat of future physical violence insufficient); see also Cassotto v. Aeschliman, 130 Conn.App. 230, 235, 22 A.3d 697 (2011) (conduct not extreme and outrageous where defendant " falsely reported to others . . . that the plaintiff engaged in outbursts and irrational behavior; . . . became violently angry at the plaintiff such that he feared for his physical safety; and . . . on one occasion look[ed] directly at the plaintiff and stat[ed]: Bang, Bang" [internal quotation marks omitted]). A false accusation of criminal conduct may also be insufficiently extreme and outrageous; Carnemolla v. Walsh, 75 Conn.App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); though when it is alleged that the accusations manifest in the form of false police reports, " [w]hether such allegations are sufficiently extreme and outrageous to survive a motion to strike depends, at least in part, on the seriousness of the offense reported to the police." Bozelko v. Milici, Superior Court, judicial district of New Haven, Docket No. CV-11-5033844-S, (March 11, 2013, Wilson, J.). Harassment including complaints to local authorities, vulgar language, obscene gestures, and taking pictures of the complaining party's property has been found to be insufficient. See Hunt v. Pelliccia, Superior Court, judicial district of New Haven, Docket No. CV-03-0479776, (February 20, 2004, Arnold, J.).
The defendants do not sufficiently allege that the plaintiff's conduct was extreme and outrageous. The first subparagraph alleges surveillance that, as previously addressed, does not constitute a violation of privacy; as the plaintiff's recording of what is visible to the public does not exceed what is tolerable in society, it is not extreme and outrageous. Next, there are no allegations in the second subparagraph that the plaintiff's denial concerning the pesticides was done in an extreme or outrageous manner. Mr. Nurmi's allegations concerning the plaintiff's conduct while driving by the defendants' home and coming onto their driveway are also insufficient. The screaming and obscene gestures fall in line with insulting behavior, and even assuming that the plaintiff's fashioning his hand into a gun is a physical threat, it does not reach the high threshold of extreme and outrageous conduct. The allegation in the fifth subparagraph that the plaintiff conducted surveillance of his own home is not atrocious or intolerable. Additionally, to the extent that the allegation concerning the plaintiff's accusation in the fifth subparagraph indicates that the plaintiff filed a false report with the police, an accusation of public urination is not sufficiently serious to render the plaintiff's conduct extreme and outrageous. Subparagraphs six and seven merely allege the plaintiff's behavior generally, and together with the allegation that the plaintiff has placed calls to the police, these allegations are not specific enough to indicate whether the plaintiff's conduct is sufficiently extreme and outrageous as a matter of law. The conduct alleged in subparagraph eight is insufficient for reasons similar to the conduct alleged in subparagraphs three and four, even assuming that the plaintiff's statements constitute a veiled threat of future harm. Similarly, the allegations in subparagraph nine are insufficient for the same reasons as the allegations in subparagraph five. Finally, neither the content of the letter in subparagraph ten nor the fact of its arrival would prompt an average member of the community to exclaim, " Outrageous!" Accordingly, the defendants have not sufficiently alleged intentional infliction of emotional distress, as there are no allegations of extreme and outrageous conduct.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to strike counts one through four, seven, and eight of the defendants' amended counterclaim is granted.