Opinion
No. UWY-CV-05-4002947-S
June 29, 2005
MEMORANDUM OF DECISION
I. PROCEDURAL HISTORY
The Plaintiff commenced the above-entitled action against the defendant on December 7, 2004. The complaint contains eight counts which allege a variety of legal claims including false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of Connecticut General Statutes Sections 17a-541, 17a-542, 17a-544, and 17a-547. The claims involve an incident which took place on January 9, 2004 at Behavioral Health Care, which is a division of St. Mary's Hospital.
On March 28, 2005 the defendant filed a motion to strike Count Four of the plaintiff's complaint. Said Count Four alleges that the agents of the defendant had discussions with other members of the hospital staff and patients, in which they stated that the plaintiff was acting crazy, screaming, and threatening other staff and patients. The count further alleges that said agents should have realized that their actions would be offensive to a person of ordinary sensibilities, and that said actions caused injury to the plaintiff. Paragraph 11 of said count alleges that the actions of the agents of the defendant constituted an invasion of the plaintiff's privacy.
Defendant has moved to strike the fourth count on the grounds that a defendant will only be held liable for invasion of privacy if he "gives publicity" to facts concerning the private life of the plaintiff. It claims that the communication alleged in count four does not rise to the requisite level of widespread dissemination to the public at large. The plaintiff claims that the only two Connecticut cases which have denied such a claim dealt with situations wherein statements were made in the work environment to fellow workers. Plaintiff argues that dissemination to patients outside of the hospital staff is sufficient dissemination to overcome a motion to strike.
II. LAW
A motion to strike may be used to challenge the legal sufficiency of a pleading. Practice Book Section 10-39; Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985). The motion admits well-pleaded facts, but does not admit legal conclusions or the truth or accuracy of opinions stated therein. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545 (1980). "In ruling on a motion to strike, the court is limited to the facts alleged in the challenged pleadings." King v. Board of Education, 195 Conn. 90, 93 (1985). The burden of alleging a cognizable cause of action rests upon the party asserting the claim. McAnerney v. McAnerney, 165 Conn. 277 (1973).
The tort of invasion of privacy was first recognized in 1959 in the lower court decision of Korn v. Rennison, 21 Conn.Sup. 400, 156 A.2d 476 (1959). The Connecticut Supreme Court recognized the action in the early 1980s. "The law of privacy developed not 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.'" Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 448 A.2d 1317 (1982), citing Prosser, Torts (4th ed. 1971) 117, p. 804. The four categories of invasion of privacy are set forth in the 3 Restatement (Second) of Torts Section 652A as follows: Section 652B — unreasonable intrusion upon the seclusion of another; Section 652C — appropriation of the other's name or likeness; Section 652D — unreasonable publicity given to the other's private life; and Section 652E — publicity that unreasonably places the other in a false light before the public. Venturi v. Savitt, Inc., 191 Conn. 588, 468 A.2d 933 (1983).
Count four of the plaintiff's complaint is entitled "Disclosure of Embarrassing Private facts." Paragraph 11 of said count alleges that the disclosure constituted an invasion of privacy. Both parties argue that the aforesaid count alleges that the defendant gave unreasonable publicity to the plaintiff's private life, which constitutes an allegation pursuant to Section 652D of 3 Restatement (Second) of Torts.
In Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993), the Connecticut Supreme Court approved the Restatement's definition of the cause of action for giving unreasonable publicity to another private life. In order to successfully litigate a cause of action for giving unreasonable publicity to the plaintiff's private life, the plaintiff must plead and prove: (1) that the defendant gave publicity; (2) to a matter concerning the private life of the plaintiff; (3) that the matter publicized was of a kind that (a) would be highly offensive to a reasonable person, and (b) would not be of legitimate concern to the public.
The gravamen of the defendant's motion to strike is that the allegations in the complaint are insufficient to show that there was publication in order to sustain the invasion of privacy count. A defendant will only be held liable for invasion of privacy if he "gives publicity" to facts concerning the private life of the plaintiff. 3 Restatement (Second), Torts Section 652D, comment (a) (1971). The Restatement provides:
Publicity differs from "publication" as that term is used in Section 577 in connection with liability for defamation." Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. "Publicity," on the other hand, 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. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach the public.
Thus, it is not an invasion 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 magazine, even of small circulation, or in a handbill distributed to a large number or 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 cause of action. The distinction, in other words, is one between private and public communication.
Connecticut courts have not decided what constitutes "publicity" as that term is used in the context of an action for invasion of privacy. The Restatement, however, does provide three illustrations in order to help explain what constitutes "publicity" for the purpose of this cause of action. The Restatement provides:
1. A, a creditor, writes a letter to the employer of B, his debtor, informing the employer that B owes the debt and will not pay it. This is not an invasion of privacy under the section.
2. A, a creditor, posts in the window of his shop, where it is read by those passing by on the street, a statement that B owes a debt to him and has not paid. This is an invasion of B's privacy.
3. A, a motion picture exhibitor, wishing to advertise a picture to be exhibited, writes letters to a thousand men in which he makes unprivileged and objectionable statements statements concerning the private life of B, an actress. This is an invasion of B's privacy.
Thus, it was held not to be an invasion of privacy when information about an individual was shared at a department meeting of ten individuals. Handler v. Arends, 1995 Conn.Super. LEXIS 660, at 22-24 (Conn.Super. March 1, 1995) (Sheldon, J.). Further, where a communication was made about the plaintiff to a small group attending a business meeting, the communication was held not to be made to the public at large. Daconto v. Trumbull Housing Authority, 2004 Conn.Super. LEXIS 212 (Conn.Super. Jan. 30, 2004) (Doherty, J.).
The issue before the court in the instant matter is whether the allegation that "embarrassing private facts" about the plaintiff were shared by Hospital employees, and with other staff and patients, is sufficient to meet the requirement of a dissemination to the public at large mandated by the Restatement. The plaintiff argues that the allegation is sufficient because it states that the defendant communicated private facts about the plaintiff to other patients in the hospital. The complaint neither contains any reference to statements made beyond the hospital setting, nor does it demonstrate that these statements would have any likelihood of reaching a large audience or the public at large.
The two Connecticut cases on point dealt with comments made in a work or small meeting setting. The instant case deals with a situation that involves communication between employees and patients at the hospital. The complaint does not state the number of patients who are involved. It also does not state the manner in which these statements may be disseminated to the public at large. The closest analogy in the Restatement is probably the speech given to a large audience. However, in the instant case the court has no idea as to the size of the audience, or that the statements would be likely to be disseminated beyond the hospital setting. The Connecticut case law and the Restatement of Torts require more of showing of dissemination to the public at large than is exhibited in the instant case.
III. CONCLUSION
For the foregoing reasons, the motion to strike the fourth count of the complaint is granted.
THE COURT
Dennis G. Eveleigh, Judge