Opinion
No. LLI CV 06 500240S
November 28, 2008
MEMORANDUM OF DECISION
This is the defendant's motion for summary judgment as to all five counts of the plaintiff's complaint. For the reasons that follow, summary judgment must be granted on count one but denied on counts two, three four and five.
Facts
The plaintiff, Michael Winter, alleges that beginning in December 2002 and continuing for several years thereafter, the defendant, Debra L. Thibault, made "numerous false and spurious allegations" against him by claiming that the plaintiff was criminally harassing and stalking her. As a result of the defendant's allegations, the plaintiff was arrested and prosecuted. The plaintiff was convicted on some of the charges brought against him and acquitted on others.
The plaintiff's suit for monetary damages is in five counts: false arrest, malicious prosecution, intentional infliction of emotional distress, defamation, and negligent infliction of emotional distress.
In her motion for summary judgment the defendant claims that at least some of the allegations against her are beyond the applicable statute of limitations and that each of the counts is deficient. The defendant supported the motion for summary judgment with a brief and copies of the plaintiff's responses to discovery. Essentially, the defendant is using this motion for summary judgment as a substitute for a motion to strike. The plaintiff has filed a brief in opposition to the motion for summary judgment and has attached various documents as well as his own deposition in a federal suit against the arresting officers.
Legal Standard
"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 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "The courts hold the [summary judgment] movant 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." (Internal quotation marks omitted.) Id., 318-19.
Statute of Limitations
The defendant's reliance upon a statute of limitations defense may be disposed of quickly. It is true that some of the statements made by the defendant appear to be outside the applicable statute of limitations. But, at least some of the statements allegedly made by the defendant were made within the two-year period before the suit was served. Therefore, these statements were within the statute of limitations period for the various causes of action, regardless of whether it is two years or three years. The defendant has not contested the fact that these statements were, in fact, made. For this reason, the statute of limitations would not provide a complete defense to any of the causes of action. Therefore, the statute of limitations cannot provide the basis of summary judgment on any of the five counts.
The tort statute of limitations, C.G.S. Sec. 52-577, is three years. The negligence statute of limitations, C.G.S. Sec. 52-584, is two years. The libel or slander statute of limitations, C.G.S. Sec. 52-597, is two years. According to the plaintiff's discovery responses, at least two of the plaintiff's arrests on March 5, 2004 and on March 8, 2004, were within two years of the service of the suit on February 6, 2006.
First Count — False Arrest
In the first count the plaintiff alleges that the defendant made false statements to the police, which led to plaintiff's arrest and trial. The plaintiff alleges that these actions of the defendant constitute false arrest. The defendant moves for summary judgment on the ground that the first count is deficient because there is no genuine issue of material fact that neither the defendant, nor her agents, physically restrained the plaintiff. The complaint does not allege that the defendant physically restrained the plaintiff. The defendant argues that making a false report to the police, without any physical restraint by the defendant, cannot constitute false arrest. I agree.
"False [arrest] is the unlawful restraint by one person of the physical liberty of another. To prevail on a claim of false [arrest], the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, he did not consent to the restraint or acquiesce in it willingly." Berry v. Loiseau, 223 Conn. 786 (1992). "If the defendant complies with the formal requirements of the law . . . so that the arrest is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of the law and the state, and not imputed to him." Lo Sacco v. Young, 20 Conn.App. 6, 21 (1989).
It is true that the defendant is using this motion for summary judgment to attack the legal sufficiency of the complaint. "[T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Accordingly, "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Id.
Here, it is clear that the police who arrested the plaintiff were not acting as agents of the defendant. Based upon the plaintiff's deposition testimony, it does not appear that the plaintiff could replead the first count so as to set forth a valid claim for false arrest. Therefore, summary judgment can be granted on this count despite the fact that the motion for summary judgment is being used as a motion to strike.
Second Count — Malicious Prosecution
The second count sets up a cause of action for malicious prosecution. The defendant moves for summary judgment on the ground that the plaintiff "has not alleged or offered any facts tending to show that the defendant acted without probable cause." This is another attack on the legal sufficiency of the complaint. It is true that: "An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for the purpose other than bringing an offender to justice." (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 404 (2008).
The defendant argues that summary judgment must be granted because the plaintiff does not specifically allege that the defendant's statements were without probable cause. It is true that the complaint does not contain the words "without probable cause." If this were a motion to strike, perhaps the defendant's argument would be persuasive. The plaintiff would then be able to plead over to add these words. But, because this is a motion for summary judgment, it would not be fair to grant summary judgment for a pleading defect which could be easily be corrected by a simple amendment. Although the plaintiff has not used the words "without probable cause" he has alleged that the plaintiff made false statements to the police about alleged threats and harassing comments made directly to her. He has supported his objection to the motion for summary judgment with his deposition in the federal case in which he denies that any of the defendant's statements to the police are true. The defendant, on the other hand, did not support her motion for summary judgment with any evidence that her statements were true.
This situation is distinguishable from the facts and procedural posture of the case cited by the plaintiff: Kelly v. McIntosh, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 07-5004381 (January 18, 2008). Significantly, the decision in that case was in response to a motion to strike, not a motion for summary judgment. Second, the defendant's statements to the police did not involve threats made directly to defendant of which the defendant would have personal knowledge. In that case the court concluded that: "Consequently, the plaintiff has failed to show that the defendant lacked a sufficient factual basis for concluding that she was making a meritorious complaint to the police." The same cannot be said here.
Finally, the defendant argues that the plaintiff is collaterally estopped from claiming that there was probable cause for the arrest because the Federal District Court granted summary judgment in favor of the defendant arresting police officers who the plaintiff had sued for false arrest. The argument is unavailing. First, the fact that the arresting officers had probable cause to arrest the plaintiff based upon the statements of the defendant does not show that the defendant had probable cause to make the statements. Second, it is not clear from the documentation provided by the parties that the statements complained of by the plaintiff in this case are the same statements which formed the basis of the arrests which were involved in the Federal case. For these reasons, there is no collateral estoppel which the court can find at this point.
The motion for summary judgment on the second count is denied.
CT Page 18789
Fourth Count-Defamation
In his fourth count the plaintiff repleads the allegations of the previous counts and then states in paragraph 12: "The statements of the defendant constitute defamation." The defendant moves for summary judgment on this count on the ground that any statements made to the police are qualifiedly privileged and there is no genuine issue of material fact that the defendant's statements were not malicious."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." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 848 (2005). Because defamation carries a two-year statute of limitations, the only statements of the defendant disclosed by the plaintiff which are within two years are those which were made on March 1, 3 and 5 of 2004 and those made as a witness during the plaintiff's criminal trial. On those dates the defendant made oral and written statements to the police that the plaintiff violated a restraining order by telephoning her and saying "Fucking Cunt." The defendant then told the police that "I am very scared of what Winter might do to me."
The defendant persuasively argues that the testimony given by the plaintiff during the defendant's criminal trial is protected by an absolute privilege. "It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy . . . The effect of an absolute privilege is that damages cannot be recovered for the publication of the privileged statement even if the statement is false and malicious . . . The absolute privilege for statements made in the course of judicial proceedings applies . . . to defamation claims . . ." (Citations omitted; internal quotation marks omitted.) Gallo v. Barile, 284 Conn. 459, 465-66 (2007). The defendant's testimony was pertinent to the subject of the controversy. Therefore, the plaintiff is unable to recover damages for the statements made by the defendant during the course of her testimony at the plaintiff's criminal trial.
As to the statements made to the police in early March 2004, the defendant is correct that she is protected by a qualified privilege. Gallo v. Barile, 284 Conn. 459 (2007). "A qualified privilege protects false statements that are not made maliciously. In other words, [a]lthough a qualified privilege insulates many defamatory statements and shields many defendants from liability, the privilege does not protect a defendant who makes statements that are both defamatory and malicious." (Internal quotation marks omitted). Id., 465 n. 6. "Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth . . . Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives." (Internal quotation marks omitted.) Chada v. Shimelman, 75 Conn.App. 819, 827, cert. denied, 264 Conn. 909 (2003).
The defendant argues that the plaintiff has not alleged any facts upon which malice could be based. The only allegations made by the defendant in this count are that the statements made to the police were false and constitute defamation. These allegations are sparse indeed. The defendant claims that they are insufficient to allege malice. But, is it fair to grant summary judgment in a situation where the plaintiff could have pled sufficient facts to support malice if this issue had been raised in a motion to strike? I do not think it is fair. Although not alleged specifically, the nature of the statements made to the police are such that, if they are false, the plaintiff would have known it. This would have been a sufficient allegation to support an allegation of malice. It would not be fair to grant summary judgment on the basis that the plaintiff failed to allege facts which he could have done if allowed to replead. The motion for summary judgment on the fourth count is denied.
Third and Fifth Counts — Intentional and Negligent Infliction of Emotional Distress
The defendant moves for summary judgment on the two infliction of emotional distress counts on the ground that any statements made by the defendant during the course of judicial proceedings are absolutely privileged, her statements to police are qualifiedly privileged, and there is no genuine issue of material fact that the defendant's conduct was not severe or outrageous.
A. Intentional Infliction of Emotional Distress
"In order to prevail in a case for liability under [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210 (2000).
The issue of "[w]hether 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." (Citation omitted.) Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295 (2005). Accordingly, "[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 it 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, cert. denied, 284 Conn. 910 (2007).
The defendant is correct in her argument that she is entitled to an absolute privilege for her testimony at the plaintiff's trial. See, Gallo v. Barile, supra, 284 Conn. 465-66. The statements made to the police are protected by a qualified privilege unless they were maliciously made false statements. Id. at 477. The issue of whether the statements were false must be resolved by the trier of fact. The same is true with the issue of malice. It would not be fair to grant summary judgment on the issue of malice and prevent the plaintiff from pleading over to correct a pleading defect.
The defendant also argues that even if the defendant's statements to the police are not entitled to a qualified privilege, they do not rise to the level of being extreme or outrageous as a matter of law. I have read the cases cited by the defendant in support of her argument, but find that the facts of this case are distinguishable. The defendant does not contest that she told the police that in violation of a protective order the plaintiff called the defendant to make the vulgar statement cited earlier. The plaintiff says in his deposition that he denies making this statement. If the finder of fact determines that the plaintiff never made the vulgar statement, an average member of the community would be aroused to exclaim "Outrageous!" when hearing that the defendant made the false report to the police which led the plaintiff's arrest and prosecution.
The motion for summary judgment on the third count is denied.
B. Negligent Infliction of Emotional Distress
"[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 its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410 (2005). To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003). "[T]he elements of negligent infliction of emotional distress do not require proof of any particular level of intent. In fact, intent need not be proven at all to establish a claim of negligent infliction of emotional distress." Stohlts v. Gilkinson, 87 Conn.App. 634, 645, cert. denied, 273 Conn. 930 (2005) (court held plaintiffs could recover punitive damages on negligent infliction of emotional distress claims because they proved all elements and that defendants' conduct was intentional).
Regarding the first element, "a pivotal difference between claims for emotional distress based on intentional conduct and those based on negligent conduct is that an essential component of an intentional infliction claim is that the defendant's alleged behavior must be extreme and outrageous. A claim based on the negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm. Thus, to survive a motion to strike, a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 7 (2005). Accordingly, "the plaintiff may recover without having to prove that the conduct engaged in by the defendant was extreme and outrageous." (Internal quotation marks omitted.) Id., 8.
Summary judgment must be denied on this count for the same reasons that it was denied on counts two, three and four. If the allegations of the complaint are thin, it would not be fair to permit the defendant to use this summary judgment motion as a motion to strike and deny the plaintiff the right to plead over. The motion for summary judgment on the fifth count is denied.