Opinion
No. CV 05-4010011-S
November 26, 2008
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This revised two-count complaint dated July 13, 2005 filed by the plaintiff, Grace Aliano, alleges that the defendant, Paolino Sanseverino, raped her when she was his employee at a bakery owned by the defendant. The first count sounds in assault and battery and the second count in intentional infliction of emotional distress. On April 4, 2006, plaintiff filed this Motion for Summary Judgment.
The defendant was convicted of first degree sexual assault and kidnaping of the plaintiff on May 3, 2004. The Appellate Court overturned the conviction on the sexual assault conviction, while it upheld the kidnaping conviction. State v. Sanseverino, 98 Conn.App. 198, 907 A.2d 1248 (2006). The Supreme Court, in turn, reversed the Appellate Court, reinstating the sexual assault conviction and overturning the kidnaping conviction. State v. Sanseverino, 287 Conn. 608, 949 A.2d 11156 (2008). The state subsequently moved for the Supreme Court to reconsider its decision as to the kidnaping charge only.
The Supreme Court has effectively decided the state's motion for reconsideration, by ruling that the correct resolution in Sanseverino should have been to remand to the Superior Court for a new trial, rather than to remand for an entry of acquittal on the kidnaping charge. State v. Dejesus, 288 Conn. 418, 437, 953 A.2d 45 (2008) ("[O]ur conclusion in Sanseverino hereby is overruled").
-I-
As to the assault and battery claim, the defendant claims that the plaintiff cannot assert collateral estoppel on the issue of the sexual assault because there is no final judgment in the criminal case. The defendant cites two cases dealing with the offensive use of collateral estoppel to support his motion; Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Bear, Stearns Co. v. 1109580 Ontario, Inc., 409 F.3d 87, 91 (2d Cir. 2005). While these cases urge caution in allowing the offensive use of collateral estoppel, neither supports the proposition that, where one issue in a case has been appealed, the other issues will not be final for estoppel purposes.
"To assert successful the doctrine of issue preclusion . . . a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case." (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 373-74, 727 A.2d 1245 (1999). In Aetna Casualty and Surety Co. v. Jones, 220 Conn. 285, 596 A.2d 414 (1991), the plaintiff insurance company sought a declaratory judgment to protect it from liability for the damages awarded in an earlier wrongful death action against its insured, brought by the estate of his wife, whom he had been convicted of killing. The Court held that the defendants, the insured and the estate of the deceased, were precluded from relitigating the issue of the insured's intent to bring about the death of his wife. In the present case, the plaintiff offers the admissions of the defendant that he was convicted of sexual assault in the first degree. No further appeals or motions are pending as to the sexual assault conviction, and, therefore, the use of collateral estoppel is appropriate to support the plaintiff's assault and battery claim.
-II-
The defendant argues that a conviction for a general intent crime cannot estop litigation on the intent element of the plaintiff's claim for intentional infliction of emotional distress. "For the plaintiff to prevail on a claim of 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 . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Citations omitted, internal quotation marks omitted.) Dollard v. Board of Education, 63 Conn.App. 550, 553-54, 777 A.2d 714 (2001).
However, the intent required for a sexual assault conviction encompasses the intent required for intentional infliction of emotional distress. By finding the defendant guilty of the general intent crime of sexual assault in the first degree, the jury necessarily determined that the defendant consciously intended to sexually assault the victim. A prima facie case for intentional infliction of emotional distress requires a showing that the tortfeasor acted intentionally, or with reckless disregard for the likely distress his conduct would cause. Dollard v. Board of Education, 63 Conn.App. 550, 553-54, 777 A.2d 714 (2001). The defendant's intentional sexual assault of the plaintiff shows, at the very least, a reckless disregard for the likely distress his conduct would cause. The defendant's conviction of sexual assault enables the plaintiff to meet her burden to show that the defendant acted with the requisite intent for the tort.
Finally, the defendant argues that a genuine issue of material fact exists as to whether the plaintiff suffered severe emotional distress. The plaintiff's affidavit states that after the rape, defendant repeatedly told her that he and his family were in the Mafia causing her to hide in the bathroom because she was terrified to go to the police; that she received an AIDS test, sought the counsel of a priest and psychiatrist, and was prescribed anti-depressants and sleeping pills by her physician. Among many other symptoms of distress, she experienced difficulty sleeping, anxiety and depressions as a result of the incident. The affidavit sufficiently demonstrates that the plaintiff suffered severe emotional distress, and the defendant's claim that she continued working for him is insufficient to raise a genuine issue of material fact as to whether the plaintiff suffered severe emotional distress as a result of the defendant's conduct.
Motion for Summary Judgment granted as to both counts one and two.