Opinion
No. PJR-CV-07-5015527S
May 12, 2009
MEMORANDUM OF DECISION
In this action the plaintiff, Mary Anne Bojko, seeks money damages, punitive damages and injunctive relief against the defendant, Laurie A. Lima, for libel, libel per se, intentional infliction of emotional distress, tortious interference with business relationship, invasion of privacy and vexatious suit. After a trial the court finds the following facts.
The plaintiff comes from a family of teachers and school administrators. She was a high school and college swimmer, softball, and basketball player who graduated from Penny High School in East Hartford in 1983 and from Southern Connecticut State University in 1987. She obtained a Masters degree in Health Education and commenced her teaching career in 1988.
The plaintiff taught and coached at East Hartford High School from 1988 through 1999, and then left and taught in the Windsor school system from 1999 through 2006 when she returned to East Hartford High School where she taught and coached. She coached swimming in 2006. Hope Lima, the daughter of the defendant, was a swimmer on the team. The defendant was by her own admission very involved in the academic lives of her two daughters. Several times, the plaintiff was surprised to find the defendant in the girl's locker room. The defendant was generally pleased with the plaintiff's performance as a coach in 2006.
The plaintiff again coached the swim team in 2007. The defendant was complimentary of the plaintiff's performance as a coach until the end of the season. On October 26, 2007 the defendant sent the plaintiff an e-mail in which she complimented her as a coach and suggested that the plaintiff obtain some money to pay for a banquet for the swimming team. In the memo the defendant acknowledged that she understood that the school had not paid for the banquet in the past.
The plaintiff did not agree to support the defendant's wish that the school should pay for the swimming banquet because East Hartford High School had a policy of providing an all-sports dinner at the end of the athletic season. If a team wanted its own separate banquet, the school left it to the students or their parents to pay for it. The defendant was clearly aware of this policy. Most parents would have accepted the school's policy and the plaintiff's response as reasonable. But the defendant did not. Instead, she sent e-mails to the school's athletic director and principal. When they would not support her position vis-a-vis the banquet, she lashed out at the plaintiff in an e-mail dated November 1, 2007 to the school principal, Matthew Ryan:
As this is unfolding to me, Bojko told the swimmers more than a few days ago there was to be no banquet, when I explored the reasoning behind this . . .
Bojko has a policy of confidentiality with her swimmers concerning what is swim team business . . . so this woman encouraged our girls to withhold information directly concerning our children from us (their parents)
When an adult ask a minor to keep a secret that is . . . I don't even know what to call it, one step away from a pedifile (sic).
This woman needs to be removed from her position, she is dangerous.
Do what you will, this is my papertrail.
Laurie Lima.
The defendant admitted that she realized that the allegation that the plaintiff was a pedophile was sensitive, so she sent the e-mail only to Mr. Ryan. However, when Mr. Ryan did not respond to her, she published the e-mail "all over the world," to the plaintiffs' fellow teachers and administrators, politicians, including the Mayor of East Hartford, the Attorney General, the Governor of Connecticut and even to students. Thereafter, the defendant embarked on an absolutely unbelievable e-mail campaign against the plaintiff in which she claimed that the plaintiff had "abused" her daughter, repeatedly used the term "pedophile," demanded that the plaintiff be fired from her coaching position, alleged that the plaintiff was "dangerous" to children, demanded a background check on the plaintiff, demanded an investigation by the State Board of Education and an investigation by the Department of Children and Families.
The defendant's character assassination of the plaintiff was extended to anyone either directly or remotely connected with the plaintiff. This compounded the plaintiff's embarrassment and emotional distress.
The plaintiff hired an attorney, Christopher Stone, to represent her. Mr. Stone demanded a retraction from the defendant. Notwithstanding that the defendant admitted that she had no basis for her claim that the plaintiff was a pedophile, the defendant refused to publish any retraction. Instead, she sent more e-mails in which she linked the plaintiff and the term "pedophile."
One such e-mail was to the Superintendent of Schools, Marion Martinez, amongst other recipients, and stated:
Subject: I want a copy of the back ground check you did on the former girls swim coach Ms Bojko, In the interest of time, I will pick it up or you can hand deliver it.
You know the swim team facility
The attire is a bathing suit
where the lockers are that my daughter had to undress to put on her bathing suit the place where any female can come and go at will
where the showers are
where my daughters self esteem was beat to a pulp
I asked you for this many months ago Mr. Ryan and you ignored me are you people actually believing I had no right to ask for this.
This is my third request for the background check on this coach.
The defendant admitted that she had never had any evidence that the plaintiff was a pedofile. And while the defendant claimed the plaintiff "emotionally" abused her daughter, neither of the defendant's daughters testified. There was some evidence that her daughters did not agree with their mother's characterizations. In an e-mail to Principal Ryan the defendant's daughter, Rachel, stated:
I don't want to bother you like my mother does, but I wanted to talk to you because I know you've received emails from her to Mrs. Rell, and theyre about you. I wanted to tell you that I never said that to my mom, because I know you never said those things to me. I told my mom that she may have misunderstood me (or else she just likes to lie for the hell of it).
In addition to refusing to retract her admittedly baseless e-mails about the plaintiff on December 17, 2007, the defendant also filed a counterclaim against the plaintiff for $500,000. During the prejudgment remedy hearing before this court, McWeeny, J., the defendant admitted that she filed the counterclaim only to try to intimidate the plaintiff into withdrawing her action against the defendant and verbally withdrew the counterclaim.
The court finds that there was absolutely no evidence that the plaintiff abused the defendant's children or any other child. Furthermore, there was no evidence that the plaintiff engaged in any improper conduct whatsoever. All the negative allegations in the e-mails were prompted by the defendant's predilection to "lie for the hell of it." These e-mails were sent for the sole purpose of inflicting emotional distress and harm to the plaintiff professionally and personally. Laurie Lima's e-mail attacks on Mary Anne Bojko were singularly malicious, outrageous and evil.
The defendant's numerous e-mails calling for background checks, and investigations into the plaintiff's history with other school systems, and making unsubstantiated claims of child abuse had a negative impact on the plaintiff's emotional and physical well being. The plaintiff loved her job as a teacher and a coach, but the defendant's malicious e-mail tirade literally took the joy out of teaching and coaching for the plaintiff. The plaintiff saw a counselor and required medication for her loss of sleep, anxiety and weight loss caused by the defendant's crusade against her. The plaintiff's bills from the counselor, Dr. Joan Gleason, totaled $874. The plaintiff was so distraught over the defendant's baseless, malicious accusations that she also took a leave of absence from teaching.
The plaintiff had intended to continue to coach swimming, but the defendant's conduct caused the plaintiff to resign as coach of the swimming team after the 2007 season. It is reasonable to assume that the plaintiff would have continued to coach swimming for at least 5 years. She earned an extra $4,400 per year for coaching. Ms. Lima's conduct caused the plaintiff to lose $22,000.
In the first and second counts the plaintiff seeks to recover for libel and libel per se.
To recover on a claim that the libel was actionable per se, a plaintiff must show that the libel, on its face, either charged some impropriety in the plaintiff's business or profession or that it charged a crime of moral turpitude. Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A.2d 199 (1987).
"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." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
"Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation . . . Libel 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 . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. [The plaintiff] is required neither to plead nor to prove it . . . Whether a publication is libelous per se is a question for the court." (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 850, 863 A.2d 735 (2005).
The plaintiff has proved her claim for libel per se, and therefore, has also proved her claim for libel. Accusing anyone who works with children of being a pedophile is certainly defamatory on its face. The court finds in favor of the plaintiff, Mary Anne Bojko, against the defendant, Laurie Lima, on the First and Second Counts.
In the Third Count the plaintiff alleges intentional infliction of emotional distress. To establish a claim of intentional infliction of emotional distress, the plaintiff must plead and prove the following four elements: "(1) that the [defendant] 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.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
The evidence shows that the defendant found it "enjoyable" and "hysterical" to send defamatory e-mails to as many people as possible. She clearly engaged in such conduct to inflict emotional distress on the plaintiff, her conduct was extreme and outrageous and it did cause the plaintiff severe emotional distress. The court finds in favor of the plaintiff, Mary Anne Bojko, against the defendant, Laurie Lima, on the Third Count.
In the Fourth Count the plaintiff alleges tortious interference with business expectancy.
"[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32-33, 761 A.2d 1268 (2000).
The plaintiff has proven that she had a business relationship with East Hartford High School as a swimming coach. The defendant knew of this relationship and used tortious means, i.e. defamatory e-mails, to interfere with that relationship. In this case "interfere" is much too mild a word. The defendant repeatedly demanded that the plaintiff be terminated as a coach. As a result of the interference the plaintiff did suffer an actual loss of coaching income, $22,000. The court finds in favor of the plaintiff, Mary Anne Bojko, against the defendant, Laurie Lima, on the Fourth Count.
In the Fifth Count the plaintiff alleges an invasion of privacy by false light. The existence of a cause of action for invasion of privacy has been recognized by the Connecticut Supreme Court. Venturi v. Savitt, Inc., 191 Conn. 588, 591, 468 A.2d 933 (1983); Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127, 448 A.2d 1317 (1982). In recognizing this cause of action, the Supreme Court adopted the definition and categories of invasion of privacy as set forth in 3 Restatement (Second), Torts 652A: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that places the other in a false light before the public. Goodrich v. Waterbury Republican-American, Inc., supra, 128; see Venturi v. Savitt, Inc., supra.
In order to establish invasion of privacy by false light, the plaintiff must show "(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." 3 Restatement (Second), Torts 652E; see Goodrich v. Waterbury Republican American, Inc., supra. The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true; and (2) is such a `major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.' Id., comment c." Goodrich v. Waterbury Republican-American, Inc., supra, 131.
Mary Anne Bojko has proved that the statements made by Laurie Lima that the plaintiff was a pedophile and abused children were untrue and were such a major misrepresentation of Ms. Bojko's character the it was reasonable to expect Ms. Bojko to take serious offense at such statements. The court finds in favor of the plaintiff, Mary Anne Bojko, against the defendant, Laurie Lima, on the Fifth Count.
In the Sixth and final count of the complaint the plaintiff alleges vexatious litigation by the defendant's filing of her admittedly baseless counterclaim. Under Connecticut law, the elements of vexatious litigation require the plaintiff to prove that (1) the defendant initiated proceedings against the plaintiff; (2) the proceedings terminated in favor of the plaintiff; (3) the defendant acted without probable cause and (4) the defendant acted with malice. Zeller v. Consolini, 235 Conn. 417, 424, 666 A.2d 64 (1995); McHale v. W.B.S. Corp., supra, 178 Conn. 447; Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); Calvo v. Bartolotta, 112 Conn. 396, 397, 152 A. 311 (1930).
Connecticut General Statutes § 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
The defendant filed the counterclaim against the plaintiff without probable cause and with malicious intent to trouble and vex the plaintiff. The court finds in favor of the plaintiff, Mary Anne Bojko, against the defendant, Laurie Lima, on the Sixth Count.
The court awards the plaintiff $22,874 for her economic damages. That amount is comprised of her loss of coaching income and her therapist bills. The court further awards the plaintiff damages of $25,000 for the emotional distress caused by the defendant's conduct.
"Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). The defendant clearly acted with malice and with an intent to harm the plaintiff. She was aware that her allegations against the plaintiff were untrue, yet she continued to make them even after being asked to stop and having actual knowledge that the false allegations were distressing the plaintiff. Moreover, the defendant admittedly enjoyed the fact that the false allegations caused distress to the plaintiff. Punitive damages are generally limited to attorneys fees. See Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008). In this case the court finds that the plaintiff's reasonable attorneys fees are $33,000 and awards that amount as punitive damages.
As set forth above, the plaintiff is also entitled to treble damages under Connecticut General Statutes § 52-568. Such damages should be limited to those associated with the vexatious counterclaim. The court finds that the filing of the counterclaim caused the plaintiff to suffer emotional distress in addition to that caused by the defendant's e-mails, awards $2,500 for the same, and trebles it for a total award with respect to the Sixth Count of $7,500.
Judgment is hereby entered in favor of the plaintiff, Mary Anne Bojko, against the defendant, Laurie Lima, in the total amount of $88,374.