Opinion
FSTCV145014267
12-18-2015
James R. Maxfield v. Rosemary C. Maxfield
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#112)
Hon. Charles T. Lee, J.
On or about June 21, 2014, the plaintiff, James Maxfield, commenced this action against Rosemary Maxfield, his former spouse, by service of a single-count complaint for defamation of character and libel allegedly constituting defamation per se. The parties herein are self-represented. The complaint accuses defendant of forwarding to third parties material accusing plaintiff of having a sexually transmitted disease, which plaintiff denies. On May 27, 2015, defendant filed her answer to the complaint, which admitted the transmission of the material to third parties.
On June 5, 2015, defendant filed this motion for summary judgment, claiming that transmitting another's email does not constitute publication, that accusation of a loathsome disease does not constitute libel per se, and that plaintiff failed to plead or introduce evidence of any actual damage to reputation. The plaintiff filed an objection on December 2, 2015, claiming that he had properly pleaded a claim for libel/slander per se and was entitled to general damages, and that the authority relied by defendant for her defense of non-publication, primarily Vazquez v. Buhl, 150 Conn.App. 117, 90 A.3d 331 (2014), was inapplicable. This matter was heard at short calendar on December 7, 2015. On December 8, 2015, Plaintiff submitted a " Sur-Reply: Twitter Viewing Routines." As more fully explained below, the court grants defendant's motion for summary judgment dismissing the complaint.
Statement of Undisputed Facts
The parties do not dispute the material facts in this matter, which the court finds as follows: On August 13, 2013, plaintiff e-mailed the defendant requesting information regarding certain allegedly defamatory comments made about him on Twitter. The e-mail included a screen shot of a Twitter page containing statements that the plaintiff had a sexually transmitted disease, which the plaintiff maintains is false. The messages or " tweets" initially were sent by an unknown Twitter user identifying herself as Ava Alexander (@AvaAlex 1) to the twitter account of Kristen Cusato, who, at the time, was a local news anchor and acquaintance of the plaintiff.
The messages read as follows:
(1) " @kristencusato and he's got more than one STD# guess where that came from?#";
(2) " @kristencusato if you want to meet in person to discuss more I'd be happy to do so. let me know#";
(3) " @kristancusato he's a loser, don't be a loser too. don't walk--run. If you stay w/him you'll only look stupid#";
(4) " @kristencusato he lies, he deceives, why do you think he's on his 2nd divorce, you deserve better. don't be fooled by his charm#";
(5) " @kristencusato #jim maxfield is charming but a player. He'll dump u as soon he's on to his new conquest. A narcissist. ur2smart4that." (The original spelling, capitalization, and grammar have been preserved.)
Mr. Maxfield's email transmitting these messages to Ms. Maxfield reads as follows:
If you or anyone you know may be involved in this, please ask that they take it down. The point has been made already, substantially to my detriment. Its just not right to take a machete, publicly, to a good person like this. Whoever did this accomplished what they wanted, now they ought to take it down off of the public forum that will hurt her moving forward for quite some time.
It strikes me odd that the only person who has ever called me a narcissist is you . . . not saying it is you, but it sure conjures up the " Bogey Man" in a reasonable person.
The owner of this account (who I cannot find out any info about) is the only person who can take this down by deleting each remark.
The defendant denies sending these tweets to Ms. Cusato's account and asserts that she has never had a Twitter account. Defendant admits that she subsequently forwarded the screen shot containing the messages set forth above to Ms. Lara Gold, the plaintiff's girlfriend who is now his wife, and to the guardian ad litem who represents the interests of the children in the parties' ongoing matrimonial dispute.
Discussion
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 87 A.3d 546 (2014). " [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). " The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Russell v. Mitchell Properties, Inc., 148 Conn.App. 635, 638, 87 A.3d 591, cert. denied, 314 Conn. 912, 100 A.3d 404 (2014).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " [A]lthough, generally, the device used to challenge the sufficiency of the pleadings is a motion to strike; see Practice Book § 10-39; our case law [has] sanctioned the use of a motion for summary judgment to test the legal sufficiency of a pleading, if a party has waived its right to file a motion to strike by filing a responsive pleading." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 535 n.10, 51 A.3d 367 (2012).
" A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement . . . With each publication by the defendant, a new cause of action arises." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). Defamation consists of the torts of slander and libel, whereas slander is oral and libel is written. 3 Restatement (Second), Torts, Libel and Slander Distinguished § 568, p.177 (1977).
Analysis
I. PUBLICATION
The defendant argues that forwarding a screen shot from a Twitter page does not amount to publication in the context of defamation law because she did not author the underlying defamatory statements. She contends that these tweets were publicly available and claims her transmission is protected by the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230 et seq., as discussed in Vazquez v. Buhl, 150 Conn.App. 117, 90 A.3d 331 (2014).
Before reaching the statutory argument, the court notes that defendant's transmission would constitute publication under the common law. " Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed." Restatement (Second), Torts, supra, What Constitutes Publication § 577, p. 201. " [O]ne who only delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character." Id., Transmission of Defamation Published by Third Person, § 581(1), p. 231. Typically " the consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation"; id., Consent § 583, p. 240; however, " [a]n honest inquiry or investigation by the person defamed to ascertain the existence, source, content or meaning of a defamatory publication is not a defense to an action for its republication by the defamer" and does not amount to consent. Id., Inquiry and Investigation § 584, p. 242.
Here, defendant had reason to know of the defamatory character of the tweets on the screen shot she forwarded. This is especially true where one of the recipients of such information was the sexual partner of the person about whom the defamatory statements were made. As a result, the origin of the defamatory statements is not relevant if they are transmitted with knowledge of their defamatory nature, unless plaintiff could be found to have consented to their transmission.
That is not the case here. Although the plaintiff forwarded the screen shot to the defendant, he did so in order to inquire whether the defendant had posted them, and, if so, to request that the defendant remove them from Twitter. Therefore, the plaintiff did not consent to the defendant distributing the statements to third persons. Restatement (Second), Torts, supra, § 584, p. 242. Accordingly, the defendant published the defamatory statements under the common law of libel.
Defendant contends, however, that her transmission of the defamatory information received from plaintiff to his girlfriend and the guardian ad litem would be protected by the provisions of CDA. This federal statute provides that " [n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). " No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).
The CDA defines " interactive computer service" as " any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(f)(2).
In Vazquez v. Buhl, supra, 150 Conn.App. 117, a news website editor provided links to defamatory articles posted on another website. Id., 120-21. The plaintiff alleged that by posting links to the defamatory articles, the defendant had " published, distributed, endorsed and promoted the defamatory statements contained in [the] articles because it hyperlinked to [the] articles, [which] validated [the articles'] credibility . . ." (Internal quotation marks omitted.) Id., 121-22. The court rejected this theory of liability, and held that the defendant was shielded from liability under the CDA because it was a website operator. Id., 140. Accordingly, the court affirmed the trial court's grant of defendant's motion to strike. Id.
In rejecting this conclusion, the court discussed the policy concerns underlying the CDA. " Congress enacted the CDA as Title V of the Telecommunications Act of 1996, Pub. L. No. 104-04, primarily to protect minors from exposure to obscene and indecent material on the Internet." (Internal quotation marks omitted.) Id., 123. At the same time, however, Congress was also concerned with ensuring the continued development of the Internet . . . Section 230 . . . was enacted based on a congressional concern that treating providers of computer services the same way as traditional publishers would impede the development of the Internet." (Citation omitted; internal quotation marks omitted.) Id.
Neither the CDA nor Vazquez provide a defense for defendant's actions. Ms. Maxfield does not operate a website and plainly is not " a provider of an interactive computer service." While she might, on occasion, be considered a " user of an interactive computer service, " she did not do so in the behavior alleged in the complaint. She merely transmitted a defamatory message to individuals via the internet.
Also, the defendant does not explicitly raise any argument based on her status as a user, and, therefore, the court need not address it. " [A] trial court lacks authority to render summary judgment on grounds not raised or briefed by the parties that do not involve the court's subject matter jurisdiction." Bombero v. Bombero, 160 Conn.App. 118, 125 A.3d 229 (2015).
As a result, defendant's assertion that she cannot be found to have published the defamatory remarks at issue in this case must be rejected.
II. DAMAGES
Defendant correctly contends that defamatory statements falsely claiming someone has a sexually transmitted disease are not libelous per se. Therefore, she correctly maintains that damages are not assumed, and that the plaintiff must adduce proof of actual damages in order to defeat summary judgment, which plaintiff has not done.
The Appellate Court recently explained that " [l]ibel per se . . . is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . The distinction between libel per se and libel per quod is important because [a] plaintiff may recover general damages where the defamation in question constitutes libel per se . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. He is required neither to plead nor to prove it . . . Whether a publication is libelous per se is a question for the court." (Citations omitted; internal quotation marks omitted.) Battista v. United Illuminating Co., 10 Conn.App. 486, 491-92, 523 A.2d 1356, cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987).
" Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached." (Citation omitted; internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 853, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003); accord Ramirez v. Costco Wholesale Corp., Superior Court, judicial district of New Haven, Docket No. CV-116020832-S, (May 9, 2014, Burke, J.) (" In general, there are two classes of libel that are actionable per se: (1) libels charging crimes and (2) libels which injure a man in his profession and calling" [internal quotation marks omitted]). " [T]he requirements that the defamatory words fall into one of the recognized categories--infamous crime, loathsome disease, incompetency in a trade, or female unchastity--in order to be admissible without proof of special damage does not apply to libel as opposed to slander according to the general rule." Corbett v. Register Publishing Co., 33 Conn.Supp. 4, 13-14, 356 A.2d 472 (1975).
Conversely, " [w]hen a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover." (Citation omitted.) Battista, supra, 10 Conn.App. 491. " [I]njury to the reputation must be alleged and proved as an essential link between the [libelous statements] and the special damage which constitutes the basis of recovery in actions per quod . . . The special damage, to which we now refer, must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and that conduct must be directly caused by the publication of the [libelous statements] . . . For example, if a third person, because he believes the [libel] or because of an unwillingness to employ one whose reputation has been impaired by it, withdraws his previous offer to hire that person, the latter's loss of reasonable expectation of gainful employment would amount to special damage." (Citations omitted.) Urban v. Hartford Gas Co., 139 Conn. 301, 308-09, 93 A.2d 292 (1952).
Accordingly, the statements at issue are not libel per se because they do not involve a crime or act of moral turpitude or call the plaintiff's professional capabilities into question. Lega Siciliana Social Club, supra, 77 Conn.App. 853. Therefore, the plaintiff must allege and adduce proof that he has suffered special damages.
However, plaintiff has not done so. In his complaint, the plaintiff alleges, " In addition to the specific Defamation [per] Se stated in the above text, the plaintiff has, and continues to suffer, both mental and physical injuries from the defendant's defamatory statements." However, plaintiff neither alleges facts nor provides evidence demonstrating that the defamatory statements at issue caused him special damages. While he does allege that the defendant sent the messages with the intent of damaging his reputation, but he does not allege or present evidence showing that his reputation has actually been damaged. Further, he does not allege or offer evidence that the third parties who received the e-mail attachment believed the statements, to his detriment. As a result, plaintiff fails to allege or establish a key element of the tort of libel, i.e., harm to his reputation, in this case causing him special damages. Accordingly, his cause of action for liable per se fails for legal insufficiency and lack of proof sufficient to defeat defendant's motion for summary judgment.
CONCLUSION
As a result of the foregoing, the court grants defendant's motion for summary judgment dismissing the complaint.