Opinion
No. FBT CV 04-4003309 S
December 12, 2008
Memorandum of Decision
In this action the plaintiff sues for damages, claiming that remarks made by the defendant and quoted in the January 21, 2004 edition of the Connecticut Post were: 1) defamatory; 2) invaded her privacy; 3) invaded her privacy and placed her in a false light; and 4) subjected her to negligently inflicted emotional distress. The events which led the Connecticut Post to publish the defendant's remarks began on the evening of Sunday, January 18, 2004.
On that date the plaintiff was employed by the Bridgeport Police Department as a sergeant. She was on medical leave from the department due to her recent delivery of a daughter, Julia. She was residing at her home in Trumbull with her eight-year-old son, Christopher, her infant daughter, Julia and Julia's father Michael Dominguez. Dominguez was also employed by the Bridgeport Police Department as a police sergeant.
At approximately ten p.m. on the evening of January 18, officers of the Trumbull Police Department were dispatched to the plaintiff's home as a result of a 911 call with a hang up. While the officers were knocking on the door and ringing the doorbell, the plaintiff exited the house through a window along with her children and approached the officers. She informed them that Michael Dominguez was very disturbed and armed with several firearms. She further warned them to be cautious in approaching the house. One of the officers noticed several bullet holes in a rear window, indicating that shots had recently been fired. The Trumbull Tactical Response Team and Crisis Intervention Officers were assembled and sent to the scene. The Connecticut State Police were notified as well and their trained negotiators were deployed.
A standoff continued for nearly seventeen hours until the early afternoon of January 19, 2004 when Michael Dominguez ended his life with a shot to his head from his hand gun. Following the end of the incident, defendant Wilbur Chapman, Bridgeport's Chief of Police, was interviewed by a reporter from the Connecticut Post. The January 20 edition of the Connecticut Post carried the story under a banner headline reading: "Cop kills self in standoff." (Ex. 1.) The story related that Dominguez "ended his life in the pink Cape Cod style home he shared with his girlfriend, Christine Burns, 29 a fellow Bridgeport police sergeant, their infant daughter and her 9 year old son."
"The standoff began shortly after 10:00 p.m. Sunday when police received a 911 hang-up call from Dominguez's home at 30 Country Lane. When police called back, they said Burns answered and told them that Dominguez was threatening her with his 9 mm service pistol. When police arrived at the house they said they heard several gunshots. The State Police tactical unit was called to the scene when it became apparent that Dominguez was holding Burns and the children as hostages. State police arrived with an assault vehicle and officers surrounded the house."
"`Shortly after 11 p.m., Burns dressed in pajamas and clutching her infant daughter, managed to crawl out a first-story window accompanied by her son,' police said. She ran barefoot through the snow to waiting police officers. She and the children were taken to Trumbull headquarters." The story went on to describe police efforts to protect neighbors and to resolve the standoff without violence and the eventual discovery of Dominguez's body lying on the floor next to his service pistol with a gun shot wound to his head. The article then quotes remarks made by the defendant: "`It's really very sad. It didn't work out the right way at all. But we did all that was humanly possible,' said Bridgeport Police Chief Wilbur Chapman. `I guess he was so upset he felt this was his only choice. It's unfortunate.' `This is two people who were doing great professionally but could not get it together personally.' Chapman said."
"Chapman said Burns and Dominguez's relationship was `very stormy' over the last three to four years. Dominguez was previously married and is the father of two girls and a boy from the marriage. Chapman said the domestic dispute between Dominguez and Burns on Sunday apparently began as an argument over child support. The couple, he said was breaking up and Burns apparently was concerned about support for the baby."
"Sources said Burns may have begun a relationship with another Bridgeport police officer. Chapman said the relationship between Burns and Dominguez was `punctuated by a series of heated outbursts. It was an off-and-on relationship,' he said." The story went on to recount a 1999 incident at a parking lot in Fairfield when Dominguez was threatening to kill himself with his service weapon.
The story concluded: "Asked if the Bridgeport Police Department has rules prohibiting relationship between its officers, the chief said there is a ban on `fraternization.' But, he added if the relationship does not interfere with officer's jobs, no action is usually taken. The chief said Dominguez worked in the department's training center, while Burns worked on the West Side. Their relationship was maintained after working hours, he said. Chapman said the two are not the only `romance in the Bridgeport Police Department. It's a close-knit society and there are lots of relationships, but they usually don't involve taking a husband from a family. When there is an issue of safety or conduct, we move them apart. In this case, they were already separated.' Chapman said."
In each of the four counts of her complaint the plaintiff alleges that certain comments attributed to the defendant and published in the January 20, 2004 edition of the Connecticut Post were defamatory, invaded her privacy, placed her in a false light and negligently inflicted emotional distress on her. The defendant's comments which the plaintiff deems actionable include: 1) The plaintiff and Dominguez "could not get it together personally." 2) The plaintiff's relationship with Dominguez was "very stormy." 3) The couple was engaged in a "domestic dispute . . . apparently over child support." 4) The plaintiff's relationship with Dominguez was "punctuated by a series of heated outbursts" and was "an off-and-on relationship." 5) The clear implication that the plaintiff had taken "a husband from a family."
The plaintiff testified at length concerning her relationship with Dominguez, the events of January 18 and 19, 2004, the publication of the January 20, 2004 Connecticut Post article and the impact she claimed the publication had on her life, both personally and financially. The plaintiff first met Dominguez in March 1997 when he was assigned to training academy where the plaintiff was being trained as a new police officer. At that time Dominguez was married and living with his wife and two children in Shelton. By June 1997, Dominguez and the plaintiff had started a relationship. Dominguez told the plaintiff he was separated from his wife. She later learned that he continued to live at the family home and that his wife was expecting a third child in September 1997. Dominguez's marriage was terminated by dissolution in February 1999.
Shortly prior to entry of the judgment dissolving Dominguez's marriage, the plaintiff called the Fairfield Police to report that Dominguez was about to attempt to take his own life. Dominguez had left his personal effects in the plaintiff's condominium and went to live with his brother in Shelton. Dominguez became despondent over the lack of visitation with his children and called the plaintiff from a commuter lot in Fairfield threatening to end his life with a firearm. The plaintiff met the Fairfield Police at the lot. Together they were successful in disarming Dominguez and taking him to Bridgeport Hospital where he was held for 72 hours for treatment of his depression. After release from the hospital Dominguez immediately returned to duty as a Bridgeport police officer. The incident apparently had no effect on the duties assigned to Dominguez by the department.
In June 2002, the plaintiff purchased her home in Trumbull and moved in with her son and mother. Shortly thereafter, Dominguez joined her and lived in the house until November 2002, when he moved out and went to live with his parents in Shelton. During the five months Dominguez lived with the plaintiff he was controlling and suspicious of the plaintiff. He would frequently scream at the plaintiff. Dominguez developed a loathing for the plaintiff's mother when she objected to the manner in which Dominguez treated her daughter. Dominguez vowed not to return to the plaintiff's house as long as the plaintiff's mother resided there. During this period the relationship between the plaintiff and Dominguez included frequent heated outbursts and rages by Dominguez. There were often discussions of ending the relationship and concerns expressed by Dominguez that the plaintiff was either considering leaving the relationship or was becoming romantically involved with another police officer.
Despite the departure of Dominguez from the plaintiff's home, the two continued to see each other. In October 2003, Dominguez returned to reside with the plaintiff at her Trumbull home, just prior to the birth of their daughter in November. The plaintiff testified that on Sunday January 18, 2004 she was at home with Dominguez and her children. There had been a heavy snowfall that weekend and Dominguez had decided not to travel to his parents house in Shelton to have dinner with his three children who were visiting there. Dominguez received several telephone calls from his brother who tried to convince him that he had an obligation to see his children. Dominguez did not want to make the trip because of snow on the highways. He did not want to talk to his brother any more and instructed the plaintiff not to answer the phone. The plaintiff testified that during the afternoon Dominguez became "sad, withdrawn, agitated and upset." In the evening, the plaintiff put her children to bed and returned to discuss with Dominguez the effect which his attitudes and moods were having on the family.
In preparation for her discussion with Dominguez the plaintiff wrote a two-page note in a notebook. (Ex. 24) The note read as follows:
I am not happy. I have two beautiful children. I am thankful for them. They make me happy and they are the reason I get up every day. I am not happy with much else. I do not like the life I've chosen, I do not like where my life is going.
I try to talk to you and you just yell. I tell you I don't like something and you point out many things you don't like about me. You are always miserable, or it seems that way. We fight and nothing gets resolved. You call me ungrateful. You point out that I should be thankful and grateful for you cleaning off my car and shoveling the driveway. I do not feel comfortable talking to you about things that concern me. I'm afraid of you and you make me feel like an idiot. You take offense at everything I say. You say whatever you want. No matter how hurtful it is and never apologize.
You just hug me a day later and ignore what was said or done. You have no interest in communicating and I think you are mean. You are quick to yell and curse at me, but when I do the same I'm wrong. You worry about saying the wrong thing and creating problems with other people, but you'll say what you want to or about me. Anything goes. I don't understand why. You've said that you're not happy with anything. In turn, I feel that it's just a matter of time before you leave or something happens. If you don't want to be here, you've got to make a choice. You say way too quickly and too often that you're moving out. I don't like the threat. I never know what's happening from day to day. I don't feel that I am important to you.
(Ex. 24.)
When the plaintiff returned from putting her children to bed, Dominguez was in the living room playing on Christopher's play station. Instead of giving Dominguez her note, the plaintiff decided to discuss her concerns with Dominguez directly. The discussion did not proceed very far before Dominguez told the plaintiff he was leaving her. The plaintiff told Dominguez that he never wants to deal with issues, that she was sick of his threats to leave and that if he wanted to go he should leave and not come back. The plaintiff and Dominguez engaged in exchange of insults which ended when the plaintiff called Dominguez a "loser." Dominguez than left the living room and began to pack his clothes in trash bags.
In a Trumbull Police Report (Ex. 21) the plaintiff is quoted as saying that this was a "low blow" to Dominguez "because he gives almost his whole paycheck to pay his child support and alimony and he would love to give more everyone if he could."
The plaintiff claims that at this time Dominguez made a number of statements to her which led her to believe that he was under the delusion that he was addressing his ex-wife. "I never should have married you and given you all my money." "You don't keep our children clean." The plaintiff went to her bedroom. After a while she heard the sound of breaking glass and figured that Dominguez was breaking china and other contents of a breakfront or china cabinet. The plaintiff picked up her infant daughter and went to her son's bedroom. By this time Dominguez had become silent. While in her son's room the plaintiff heard the phone ring and, after a time, pounding on the front door and the door bell on the side door ringing.
The plaintiff claims that she did not call the police. However, when she heard pounding on the front door she was pretty certain that the police were at the house. She assumed that the neighbors had heard the noise from the argument and the destruction of property and called the Trumbull police. Because Dominguez had failed to answer either the phone or the doors, the plaintiff concluded that he had hurt himself.
The plaintiff did not answer the front door because she was afraid to leave her children alone. She woke up her son opened the window to the bedroom which was on the ground floor. She then helped her son to the ground, and handed her infant daughter to her son and left the bedroom through the window. After walking barefoot through the snow to the police officers, the plaintiff and her children were placed in a police car and driven to the Trumbull police station. Before leaving the house, the plaintiff warned the officers on the scene that Dominguez had access to firearms and might be suicidal.
Prior to encountering the plaintiff, the officers at the scene had been knocking on the front door and ringing the side door bell without success. They had observed a broken china cabinet with smashed pieces on the floor, through a window. After the plaintiff was taken to Trumbull Police Headquarters, officers walked to the rear of the house where they observed five to seven bullet holes in a window. (Ex. 31.) When the Trumbull Regional Emergency Response Team ("ERT") arrived on the scene, neighboring homes were evacuated in order to protect the inhabitants. A number of attempts to contact the house by phone were made, but without initial success. (Ex. 32.)
At 11:12 a.m. on January 19, the police heard four to five shots fired at the residence. At 1:30 p.m. an attempt was made to deploy a microphone into the house by breaking a window. Shortly after that attempt a single gun shot was heard. Thereafter, tear gas was deployed several times without any result. After a period of time a robot was sent into the house. Eventually Dominguez's body was discovered in his bed, dead of a single self-inflicted gunshot wound to his head.
While at the Trumbull police headquarters the plaintiff was interviewed by a Trumbull police officer. The plaintiff told the officer that she and Dominguez had "a minor verbal argument over nothing." She also informed the officer that Dominguez was a Bridgeport police sergeant who had a lot of guns in the house. She further stated that Dominguez was very depressed and had expressed a desire to die many times. The plaintiff claims that she told the Trumbull police that she believed that Dominguez had mistaken her for his ex-wife and was otherwise suffering from delusions. The plaintiff gave a sworn written statement to the Trumbull Police while at Trumbull headquarters. (Ex. 23.) However, nothing in her statement or in the numerous police reports contain any reference to the plaintiff telling anyone that Dominguez was delusional.
On the afternoon of January 19, 2004 the plaintiff learned that Dominguez had ended his life with a shot to his head. The plaintiff was unable to live in her home until the damage caused by the siege, particularly the extensive use of tear gas, was remediated. She and her children resided in an apartment in Trumbull until the house was made habitable several months later. The plaintiff testified that she saw the defendant's remarks to the press printed in the Connecticut Post several days after they were published. She considered those remarks to be lies. The plaintiff testified at length as to which of the defendant's statements she took issue with and explained why she considered each of the statements to be false.
The plaintiff testified that she felt that the statement that she and Dominguez "could not get it together personally" implied that she and Dominguez "were a mess outside of work." She further testified that the statement that her relationship with Dominguez was "`very stormy' over the last three to four years was false and misleading. She testified that while Dominguez had a stormy personality as the result of his mental problems, it was unfair and malicious to describe her relationship with Dominguez as `stormy.'"
The plaintiff testified that the defendant's statement that she was breaking up with Dominguez and that their argument had begun over child support was untrue. She testified that she had never been concerned over finances or child support and that the defendant's statement had led readers to believe that she and Dominguez were fighting. She also testified that the defendant was incorrect when he described the relationship between the plaintiff and Dominguez as an "off-and-on relationship" "punctuated by a series of heated outbursts." The plaintiff testified that she and Dominguez had maintained a stable relationship since they first became a couple in 1997. She acknowledged that Dominguez had moved out of the family home in November 2002 and had lived elsewhere for nearly a year. She maintains that this separation was caused by the presence of her mother in the home and that her relationship with Dominguez continued despite his absence. She testified that Dominguez's mental illness resulted in outbursts initiated by him, but claimed that they did not punctuate their relationship.
Finally, the plaintiff testified that the defendant's statement that she had taken "a husband from a family" was false. She testified that Dominguez initiated the relationship with her and had left his marriage of his own free will. She claimed that Dominguez was separated from his wife when she met him. She further testified that it was Dominguez's wife who filed for divorce.
After Dominguez's death, the plaintiff did not return to work at the Bridgeport Police Department until August 7, 2007, more than two and one-half years after Dominguez's death. During this period she received her base pay as a police sergeant, but was unable to earn the shift differentials, overtime pay and holiday pay which she would have earned had she been on actual duty as a police officer. Immediately after Dominguez's death the plaintiff began treatment with a psychologist, Dr. Liane Poili, for post-traumatic stress disorder. The doctor recorded 32 visits with the plaintiff in 2004, 16 visits in 2005, 11 visits in 2006 and 2 visits each in 2007 and 2008. Doctor Poili's notes report her sessions with the plaintiff in detail. Between January 29, 2005 and September 28, 2004, the plaintiff had 23 visits with Dr. Poili. However, Dr. Poili's notes reflect the mention of distress over press coverage of the incident for first the first time at the September 28, 2004 session. That session took place sixteen days prior to the date that the plaintiff's attorney signed the Summons and Complaint in this matter. Dr. Poili's notes for that date state: "Went over papers concerning Mike's death. Angry at how it was portrayed." The plaintiff conceded that this may have been the only session with Dr. Poili at which media reports of Dominguez's death were discussed.
In 2004 and 2005 the plaintiff also saw her primary care physician, Corina Marcu, M.D., for several visits related to treatment for anxiety. Thereafter she was treated by Sheldon Welcholz, M.D. for the same symptoms. In their treatment notes neither Dr. Marcu nor Dr. Welcholz make any reference to the defendant's statements or to other press coverage regarding the suicide. However, the plaintiff testified that she attributed her anxiety primarily to the statements made by the defendant.
The plaintiff also testified as to the difficulties she experienced following Dominguez's death. Dominguez's ex-wife would not let her children visit their half-sister Julia. On behalf of her children, the ex-wife challenged Julia's paternity and attempted to get her excluded as an heir. A paternity test eventually established that Dominguez was, in fact, Julia's father. On Easter Sunday in 2004, the plaintiff saw Dominguez's parents in a church parking lot and approached them. She claims that Dominguez's father screamed at her, blaming her for his son's death and, while screaming, asserted that he based his accusations on the defendant's statements as quoted in the Connecticut Post.
The plaintiff testified that during the time she was living with her children in an apartment she experienced two disturbing incidents. One night, a stranger attempted to kick down the front door to her apartment. On another day she retrieved her mail from the mailbox at her home and found a handwritten note stating: "Big brother is watching." She attributed both of these incidents to the statements made by the defendant. However, she could not offer any evidentiary or logical support for any such connection.
After Dominguez's death the plaintiff learned that, during the standoff, he had made a number of cell phone calls to officers of the Bridgeport police department. The plaintiff went to the Trumbull police department and reviewed a list of telephone calls made from and to Dominguez's phone during the stand-off. She recognized some phone numbers. She copied down other numbers so that she could identify people who had spoken to Dominguez during the stand-off. One of the numbers belonged to police officer Kimberly Biehn a/k/a Kimberly Kiamer. When the plaintiff contacted that officer she was told, "You killed my friend."
The plaintiff testified that following Dominguez's death she spoke with several members of the Bridgeport Police Department regarding her return to work. They informed her that she would not find a friendly atmosphere at the department. A number of officers in the department apparently felt that the plaintiff was responsible, at least in part, for Dominguez's death. The plaintiff testified that she feared returning to work in such an environment. She testified that neither the defendant, as police chief, nor any of his deputies, lieutenants, or sergeants contacted her following Dominguez's death to encourage her to return to duty. She went to Dominguez's funeral service, but her presence as the mother of one of his children was not acknowledged. These events made her "feel horrible."
Several police officers testified in support of the plaintiff's claims. Officer Tiffany Cuminotto-Reis testified that she has known the plaintiff since high school and has served as a Bridgeport police officer for ten years. Prior to January 20, 2004 the plaintiff enjoyed an excellent reputation for professional competence among her fellow officers. However, after that time she lost the respect of her subordinates and fellow officers. Comments were made that the plaintiff's daughter could not be Dominguez's child since she did not resemble him. A number of officers believed that the plaintiff was responsible for Dominguez's tragic fate. The department would not have welcomed the plaintiff's return to duty as a result of these feelings. Cumminotto-Reis testified that she was known to be the plaintiff's friend and that during the first months following Dominguez's death, conversations, obviously concerning the plaintiff and Dominguez, would cease when she was within earshot.
Cumminotto-Reis testified that she did not read the Connecticut Post article of January 21, 2004 because she was too upset. She knew that the plaintiff was upset about the article. She agreed with the plaintiff that the defendant should not have made any comments to the press which might be construed as critical of an officer of the Bridgeport police department. She was aware that Dominguez had spoken by phone directly to several members of the department during the standoff but has not been told what he said. She testified that Dominguez was generally well thought of in the department, but that neither she nor her co-workers were aware of his volatile temperament.
Sergeant Steven Lougal of the Bridgeport Police testified that he knew both Dominguez and the plaintiff for many years. Prior to Dominguez's death the plaintiff had a reputation in the Bridgeport Police Department as one who spoke her mind. There were officers who didn't like her, but her subordinates did. After Dominguez's death Lougal heard other officers refer to her as a "home wrecker," a "murderer," and a "black widow." After reading the Connecticut Post article Lougal was upset because he felt that it placed both the plaintiff and Dominguez in a bad light. He went to the president of the police union to complain about the defendant's statements, as quoted in the press. It appears that nothing resulted from that complaint. Prior to Dominguez's death, many officers were unaware of the relationship between the plaintiff and Dominguez. After his death the atmosphere at the department was decidedly hostile to the plaintiff. Lougal could not say whether the statements made by the defendant contributed to this hostility. There was also a prevalent feeling in the department that the defendant, as chief, should not have made any statements to the press which could be construed as critical of any member of the department.
The plaintiff also testified as to rejections which she felt that she suffered at her son's school and at her church as a result of the defendant's statement to the press. This testimony was support by Karen Caisse, a member of the plaintiff's church. She testified that after the publication of the Connecticut Post story, the plaintiff's formerly good reputation suffered greatly. She testified that she never saw the plaintiff and Dominguez fight over anything except the plaintiff's mother. She could not imagine them fighting over child support. She testified that she read the Connecticut Post article and remembered feeling that the remarks made by the defendant were inappropriate whether they were true or not. Caisse agreed that Dominguez was very controlling and would not let the plaintiff go out unless he approved. She acknowledged that she may have first heard of a fight over child support in the Trumbull Times article rather than the Connecticut Post. (Ex. 26.)
Detective Sergeant Shawn Sember testified that he was a police negotiator who was in charge of the negotiator command post at the Trumbull police headquarters. He arrived at headquarters shortly after midnight and set up the command post. Attempts to reach Dominguez by phone were initially unsuccessful. However, the team was able to determine that Dominguez was using his cell phone to make calls. The team received reports from Bridgeport police officers who had been in contact with Dominguez. They reported that Dominguez had stated, "This isn't going to end well" and had threatened "suicide by cop" — apparently intended to come out of the house with a drawn weapon and thereby force the officers surrounding the house to kill him. (Ex. 27.) Sember was able to make contact with Dominguez at 7:30 a.m. on January 19, 2004. Dominguez reported that he was not injured. Sember tried to talk with Dominguez about his children and other members of his family in an effort to dissuade him from taking his own life. Later in the morning Sember received reports from Bridgeport police officers who had spoken with Dominguez. It was reported that Dominguez stated that, "he had two guns on his lap and it's going to end soon." At 9:05 a.m. the team heard from officer Kimberly Kaimer, who formerly had a romantic relationship with Dominguez. She reported that Dominguez had called her telling her that he loves her and misses her.
Shortly thereafter Sember was able to re-establish contact with Dominguez. In that conversation Dominguez reported his dissatisfaction with his service as a police officer and expressed racist and antisemitic sentiments. Sember was able to get Dominguez to engage in serious discussion for ending the stand-off, promising that Dominguez would be able to preserve his dignity and visit his children. The team received reports that Dominguez had phone conversations with his sister and with his cousin, Bridgeport police officer George Zwally. Later that morning the team was notified that Dominguez had been on the phone with the Trumbull Times.
In defense of the plaintiff's claims, the defendant introduced into evidence copies of reports which appeared in the local press and on-line web pages within one or two days of Dominguez's death. None of these reports quoted the defendant as a news source. The on-line version of the Trumbull Times reported that Dominguez had taken the plaintiff and her children as hostages and that shots had been fired. It was further reported that the Trumbull police had received a report of a "domestic disturbance" at the plaintiff's house "in which a man was threatening his girlfriend with a 9mm pistol. (Ex. 25.)
The web page for wfsb.com Eyewitness News for January 19, 2004 reported Dominguez's suicide. The report stated "Trumbull police responded to a 911 hang-up call at 10:30 pm, when they found the man's former girlfriend, also a member of the Bridgeport police, and two children outside the home on Country Lane. The despondent officer was inside, holed up in the home, because of an apparent fight that had taken place between him and his ex-girlfriend earlier in the evening." (Ex. 16.) The web page for Fox News 12 for January 19, 2004 included the statement that, "The incident reportedly began as a domestic dispute between the officer and the woman." (Ex. 17.)
The on-line edition of the ConnPost.com for January 21, 2004 contains quotes attributed to Deputy Chief Thomas Keily of the Trumbull Police Department. In relevant part, they include the following statement regarding the actions of Trumbull police officers: "`Based on what [Burns] said, they got back,' he said, adding Burns said the couple had been arguing over child support." (Ex. 18.)
The defendant also produced records of the Trumbull Police Department recording the initial report on the late evening of January 18, 2004 as a "Family Violence Offense Report." (Ex. 22.)
To refute the plaintiff's claim that the bad feelings between the plaintiff and Dominguez's family arose because of the defendant's comments to the press, the defendant produced a police report which states that shortly after Dominguez's death, his sister had to be physically restrained from approaching the plaintiff at the Trumbull Police headquarters. (Ex. 33.)
The defendant testified that he initially learned of the stand-off while he was in Washington, D.C. He kept in contact with several high ranking officers in his department and with Deputy Chief Thomas Keily of the Trumbull Police Department. Through this contacts he learned that the standoff had begun as a domestic dispute between Dominguez and the plaintiff. He also learned that there were packed bags in the home, indicating that either the plaintiff or Dominguez was planning to leave the other. He was informed of the telephone calls which Dominguez placed to other members of the Bridgeport Police Department. After the death of Dominguez he was informed of the contents of the plaintiff's note (Ex. 24.) which had been discovered at the home. The defendant claimed that he was aware of the relationship between the plaintiff and Dominguez prior to January 18, 2004. He testified that at some time between the end of 2000 or the beginning of 2002, in the course of a discussion involving a training assignment, Dominguez told him that he was in an on and off relationship with the plaintiff and asked not to be assigned to duties with her.
The defendant testified that he was motivated to comment to the press about the incident because it was extremely newsworthy and involved two members of his department. He believed that it was important for the public to understand that the incident was not related to the official duties of either Dominguez or the plaintiff. He wanted to make sure that the public understood that the incident was an isolated one that just happened to involve two individuals who were employed as police officers.
Deputy Chief Keily of the Trumbull Police Department testified, confirming that he had been in contact with the defendant and had informed him that the standoff with Dominguez had begun as a domestic dispute involving child support. He could not remember his precise source of this information.
Detective Kimberly Biehn testified that she had known Dominguez since she joined the Bridgeport Police Department in 1990. She had a brief romantic relationship with him, but remained his friend. She testified that Dominguez had called her on the morning of January 19, 2004 while he was in the plaintiff's house. During the course of that morning they had several additional telephone conversations. In these conversations, Dominguez told her what he was thinking and feeling. Dominguez reportedly told her that he had received a letter from the plaintiff telling him that their relationship was over, that he believed that the plaintiff had been unfaithful to him, that he was certain that the plaintiff's infant daughter was his child, and that the plaintiff was very concerned about getting support for her daughter from him. Biehn confirmed that after Dominguez's death she had spoken to the plaintiff and Biehn told her that she was responsible for what had happened. She said that this opinion was not, in any way, influenced by the defendant's statements as reported in the press.
DISCUSSION
In her first count the plaintiff alleges that the defendant's statements are defamatory. In the second count she alleges that the same statements invaded her privacy. In the third count she claims that the defendant's statements invaded her privacy and placed her in a false light. Finally, in the fourth count she claims that the defendant's statement negligently inflicted emotional distress upon her.
FIRST COUNT — LIBEL
The elements of a claim for defamation are: 1) the defendant published a defamatory statement to a third person; 2) the defamatory statement identified the plaintiff to a third person; and 3) the plaintiff's reputation suffered injury as a result of the statement. Craig v. Stafford Construction, Inc., 271 Conn. 78, 84 (2004); Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217 (2004). "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." Craig v. Stafford Construction, Inc., Id.
The plaintiff claims that the oral statements given by the defendant to the press constitutes libel per quod. Libel per quod is not libelous on the face of the communication, but become libelous in light of extrinsic facts known by the recipient of the communication. Lowe v. Shelton, 83 Conn.App. 750, 765, cert. denied, 271 Conn. 915 (2004); DeMorais v. Wisniowski, 81 Conn.App. 595, 603-04, cert. denied, 268 Conn. 923 (2004). In contrast to libel per se, which requires no proof of actual damages, the plaintiff in an action based on libel per quod must allege and prove actual damages. Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 852, cert. denied, 267 Conn. 901 (2003).
The defendant contends that the evidence shows that his statements to the press are true. "In a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense. Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification. It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that `the main charge, or gist, of the libel' is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable. The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced." (Internal quotation marks omitted, Internal citations omitted) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112-13 (1982). "Before a party will be held liable for libel, there must be an unprivileged publication of a false and defamatory statement . . . Truth is an absolute defense to an allegation of libel." (Citation omitted. Internal quotation marks omitted.) Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316 (1984).
The first allegedly libelous statement attributed to the defendant is that the plaintiff and Dominguez "could not get it together personally." The evidence shows that the plaintiff and Dominguez had lived together until Dominguez left after a few months because of conflicts with the plaintiff's mother. After his return to the plaintiff's home in November 2003, Dominguez apparently threatened to leave on a number of occasions. (Ex. 24.) The court finds the statement of the defendant to be essentially truthful.
The second allegedly libelous statement is that the plaintiff's relationship with Dominguez was "very stormy." In her testimony the plaintiff conceded that Dominguez had a stormy personality, but denied that their relationship was stormy. The plaintiff testified that her note of January 18, 2004 (Ex. 24) was an attempt to make an honest appraisal of her relationship with Dominguez and then use the note as a basis for a discussion with him.
That note describes a relationship which could be accurately characterized as stormy. "I try to talk to you and you just yell. I try to tell you I don't like something and you point out many things you don't like about me. You are always miserable or it seems that way. We fight and nothing gets resolved. You call me ungrateful." "I do not feel comfortable talking to you about things that concern me. I'm afraid of you and you make me feel like an idiot. You take offense at everything I say. You say whatever you want. No matter how hurtful it is and never apologize." "You have no interest in communicating and I think you are mean. You are quick to yell and curse at me, but when I do the same I am wrong." "You've said that you're not happy with anything. In turn, I feel that it's just a matter of time before you leave or something happens. If you don't want to be here you've got to make a choice. You say way too quickly and too often that you're moving out. I don't like the threat. I never know what's happening from day to day. I don't feel that I am important to you." The court finds that the defendant's statement that the plaintiff had a very stormy relationship with Dominguez was truthful.
The third alleged libelous statement was that the plaintiff and Dominguez were engaged in a "domestic dispute . . . apparently over child support." The plaintiff testified that there was no discussion of child support on the evening of January 18, 2004 or at any other time. However, there can be no doubt that there was a domestic dispute between them. The plaintiff's note indicates the grievances she tried to discuss with Dominguez. She testified that rather than engaging in a productive discussion, Dominguez began angrily packing his belongings to leave the house. His anger led him to damage the plaintiff's personal possessions, including china and furniture.
Prior to his death the plaintiff had a number of conversations with members of the Bridgeport Police Department, including Detective Kimberly Beihn. Beihn testified that Dominguez told her that his dispute with the plaintiff included demands from her that he contribute to the support of his infant daughter. This information was apparently passed on to Deputy Chief Kiley and the defendant. The court finds that the statement that the plaintiff and Dominguez were engaged in a domestic dispute is accurate. There is conflicting testimony as to whether child support was an issue in that dispute. The plaintiff testified that Dominguez was upset with her about money and asked her what she was doing with their daughter. She claims that she interpreted these remarks as a delusional reference to Dominguez's ex-wife. Nevertheless, she never disclosed either the remarks or her interpretation of them in her statements to the police. Based on Beihn's testimony, it appears that Dominguez felt that one of the issues being discussed with the plaintiff was his financial obligations to his daughter. The court finds that it is more likely than not that child support was, in fact, one of the issues in the dispute between the plaintiff and Dominguez.
Even if the dispute did not include the issue of child support, the court would be compelled to find that there is nothing defamatory about stating that a mother of an infant child was asking the father of the child for support. If anything, seeking such support demonstrates commendable parental concern rather than actions which would expose the plaintiff to criticism. The court finds no basis for the plaintiff's claim that the statement that the plaintiff and Dominguez were engaged in a domestic dispute over child support constitutes actionable libel.
The fourth allegedly libelous statement was that the plaintiff's relationship with Dominguez was "punctuated by a series of heated outbursts" and was "an off-and-on relationship." The court finds this statement to be truthful. It appears that the plaintiff and Dominguez co-habited at the plaintiff's condominium at or about the time of his January 1999 suicide attempt/gesture. After that incident he resided elsewhere. In June 2002 Dominguez moved into the plaintiff's house in Trumbull. He resided there until he left in November 2002, because of his inability to get along with the plaintiff's mother. Dominguez lived with relatives until he moved back to the plaintiff's house in October 2003, shortly before the birth of his infant daughter. On the night of January 18, 2004, Dominguez packed his belongings in preparation for leaving the plaintiff once more. Given these facts the court finds that the plaintiff's relationship with Dominguez could accurately be described as "off-and-on."
The plaintiff's note (Ex. 24) describes her relationship with Dominguez in her own words. The yelling and cursing on both sides as well as the apparently frequent fights could accurately be described as "heated outbursts." The court finds that the statement that the relationship was off and on and punctuated by frequent outbursts is true in all essential respects.
The fifth statement which the plaintiff alleges is defamatory is that she had taken a husband from his family. The actual statement made by the defendant was "Chapman said the two are not the only `romance in the Bridgeport Police Department. It's a close-knit society and there are lots of relationships, but they usually don't involve taking a husband from a family." The defendant does not dispute that his words imply that the plaintiff was the person who had taken "a husband from a family." The plaintiff denies that the defendant's statement is true. She claims that Dominguez left his marriage of his own free will and that she did not "take" him or otherwise force him to leave that relationship.
The evidence shows that when the plaintiff met Dominguez in March 1997, he was married and the father of two children. His wife was expecting a third child in September 1997. The plaintiff and Dominguez began their relationship in June 1997, however he did not move out of the home he shared with his wife and children until May 1998. A judgment dissolving his marriage was entered in February 1999. The court finds that the statement that the plaintiff was involved with "taking" Dominguez from his family is literally untrue. The court finds that plaintiff's testimony that Dominguez willingly entered into his relationship with the plaintiff is entirely credible. The plaintiff also testified that from the start she was a willing participant in her relationship with Dominguez, knowing that he was a married man with children. It appears that the plaintiff did not realize that Dominguez was continuing to live with his wife and family until she was already committed to the relationship.
However, the word "taking" when used in the particular context of the plaintiff's statement does not connote that the plaintiff allegedly forced Dominguez to do anything against his will. In context the statement was meant to convey no more than that the plaintiff and Dominguez had willingly entered into a relationship while he was a married man with children. Viewed in that light the "gist" of the statement is truthful and accordingly cannot furnish the basis for a claim of libel.
Since none of the defendant's statements were false or untrue in any meaningful respect, the court finds the issues on the first count for the defendant.
INVASION OF PRIVACY — GENERALLY
The plaintiff's second and third counts both allege invasions of privacy. However, the causes of action are entirely different. "[W]e note that the law of privacy has not developed 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 left alone. The four categories of invasion of privacy are set forth in 3 Restatement (Second) Torts 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to another's private life; (d) unreasonably places the other in a false light before the public." Goodrich v. Waterbury Republican American, 188 Conn. 107, 128 (1982). In her second count the plaintiff claims damages for public disclosure of private facts. In her third count she claims damages for placing her in a false light.
SECOND COUNT — INVASION OF PRIVACY
In her second count the plaintiff alleges that the statements made by the defendant constituted an invasion of her privacy by publicly disclosing personal and private information. Section 652D of the Restatement (Second) of Torts, "defines a tort action for the invasion of personal privacy as being triggered by public disclosure of any matter that `(a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public."
Comment (b) of § 652D describes the types of personal and private information that are given protection under the law of torts: "Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest."
However, Section 652D gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable person. "Even minor and moderate annoyance . . . is not sufficient to give him a cause of action under the rule stated in this Section. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises." Id. comment c on clause (a). Finally, the Restatement recognizes that there is no invasion of a right to privacy when the subject matter of the publicity is of legitimate public concern, Id. comment d.
In relevant part, comment d states: "When the matter to which publicity is given is true, it is not enough that the publicity would be highly offensive to a reasonable person. The common law has long recognized that the public has a proper interest in learning about many matters. When the subject-matter of the publicity is of legitimate public concern, there is no invasion of privacy."
The defendant claims that he is entitled to qualified immunity with respect to all of his statements to the press. He relies on the analysis set forth in Sargeant v. Serrani, 866 F.Sup. 657 (1994). In that case the court held that a defendant need to prove three elements in order to establish the defense of qualified immunity: "(1) that the statements were made when [the public official] was upholding a public interest, such as the discharge of a duty of his position . . .; (2) that his statements were made in a proper manner to proper parties only, and that the statements were limited in scope to the public interest he sought to advance; and (3) that he acted in good faith or relied on matters that solely existed in the public record." Id., 665.
The defendant claims that all of the defendant's statements relate to matters of legitimate public concern. With one exception, the court agrees. The defendant, as chief of the Bridgeport Police Department, was entitled to make public statements regarding the tragic chain of events which ended with Michael Dominguez's suicide. The public had a legitimate interest in learning that the gunfire and ensuing standoff were unrelated to the duties of either the plaintiff or Michael Dominguez. The statements regarding the troubled relationship between the plaintiff and Dominguez and the origins of the domestic dispute were proper subjects for public comment under the circumstances.
However, the court cannot find any legitimate public interest in the fact that the plaintiff's relationship with Dominguez began while he was still married to another person and involved "taking a husband from a family." The court finds that this comment, in fact, gave high publicity to a private aspect of the plaintiff's life that would be highly offensive to a reasonable person and which was not of legitimate public concern.
Section 652H of the Restatement (Second) Torts states: "One who has established a cause of action for invasion of his privacy is entitled to recover damages for (a) the harm to his interest in privacy resulting from the invasion; (b) his mental distress proved to have been suffered if it is of the kind that normally results from such an invasion and (c) special damages of which the invasion is a legal cause." This standard for damages is recognized by Connecticut. Jonap v. Silver, 1 Conn. App, 550, 561 (1984).
The court finds that the evidence does not support the plaintiff's claim that she lost income as a result of the defendant's comments. The court finds that the plaintiff's inability to return to work as a police officer for three years following the death of Michael Dominguez was the result of the trauma she suffered on January 18 and 19, 2004, and not the result of the defendant's comments to the press.
The court also finds that the medical and therapy bills incurred by the plaintiff for her treatment were unrelated to the defendant's comments. The evidence shows that the plaintiff had been in treatment with her counselors for over six months before she mentioned the subject of the Connecticut Post article as a possible matter of concern for her. This mention coincided with the filing of the present litigation against the defendant.
In considering the damages to be awarded to the plaintiff on the second count, the court notes that the plaintiff and Dominguez did not keep their relationship a secret from many members of the Bridgeport Police Department. However, there were members of the department who were unaware that they had a personal relationship until after the tragic events of January 18 and 19, 2004. Moreover, there was no evidence of the fact that the plaintiff had started her relationship with Dominguez while he was still married to his first wife, was generally known.
The court finds that the plaintiff is entitled to damages on her second count for the harm to her interest in privacy resulting from the invasion of her privacy by the defendant. The court further finds that the defendant has not proven either that the mental distress from which she suffered was caused by the defendant's actions or that she suffered any special damages.
The court finds the issues on the second count for the plaintiff and awards damages in the amount of $5,000.00 as appropriate compensation for the defendant's gratuitous statement to the press regarding the circumstances under which the plaintiff's relationship with Dominguez began.
THIRD COUNT — INVASION OF PRIVACY — FALSE LIGHT
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. This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is. 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." (Internal quotation marks omitted. Internal citations omitted) Jonap v. Silver, 1 Conn.App, 550, 557-58 (1984).
In connection with its findings on the first count, the court has already determined that each of the statements made by the defendant to the Connecticut Post were essentially true. In light of these findings, the court finds that the plaintiff cannot prevail on her claim of being placed in a false light and finds the issues on the third count for the defendant.
FOURTH COUNT — NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CT Page 19792
To establish 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 defendants conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003); Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552 (2008).
The evidence presented by the plaintiff shows that following the events of January 18 and 19, 2004, she suffered from extreme emotional distress. She was in treatment for that distress for a period of several years. However, the evidence established that the emotional distress was caused by: 1) the breakdown of her relationship with Michael Dominguez, 2) the suicide of Michael Dominguez at her home, 3) the subsequent hostile reaction of the Dominguez family, including a challenge to the paternity of her daughter, and/or 4) the hostility to the plaintiff on the part of certain officers of the Bridgeport Police Department. The court finds that the defendant's comments to the Connecticut Post were not a factor in causing any of the above circumstances or in directly causing the plaintiff emotional distress.
The court does not credit the plaintiff's testimony that the comments made by Dominguez's family to her on the Easter Sunday following his death were motivated by the defendant's comments to the press. The Dominguez family was aware of the plaintiff's relationship with Dominguez and its troubled nature long before the defendant was quoted in the press. On at least two occasions, Dominguez had left the plaintiff's residence to reside with his relatives. On the day of Dominguez's death, prior to the publication of any statements made by the defendant, Dominguez's sister exhibited a marked hostility toward the plaintiff at Trumbull Police headquarters. Moreover, the animosity of the Dominguez family seemed to be centered on of the plaintiff's infidelity to Michael and concerns that he might not have been the father of the plaintiff's infant daughter. Those concerns were not part of the defendant's comments to the press.
The court further finds that the comments of the defendant did little to create a hostile environment toward the plaintiff in the Bridgeport Police Department. Some members of the department felt that it was inappropriate for the defendant, as police chief, to make any comments concerning the plaintiff or Dominguez which might be construed as negative. However, these officers did not allow these comments to create a negative impression of the plaintiff or to cause them to want to make her feel unwelcome at the police department. A number of other police officers, were aware of the plaintiff's relationship with Dominguez and its troubled nature. Some of these officers received telephone calls from Dominguez during the siege in which he reported that the plaintiff was ending their relationship. Some of these officers placed the blame for Dominguez's death squarely on the plaintiff. The court finds that the defendant's remarks to the press did not significantly contribute to any hostility toward the plaintiff in the police department. The court further finds there is no credible evidence establishing a causal relationship between the emotional distress experienced by the plaintiff and the defendant's remarks. Accordingly, the court finds the issues on the fourth count for the defendant.
Judgment may enter in accordance with this memorandum of decision.