Opinion
No. CV09-5010392S
December 1, 2010
MEMORANDUM OF DECISION
FACTS
The Plaintiff, Pasquale Civitella, brings this action on behalf of his minor son, Joseph Civitella, against the Pop Warner Football Team of Shelton, Ct, Inc., and three individuals who are associated with the youth football program.
During the 2009 football season, Joseph Civitella participated in the Pop Warner "Midget" Football program, a program which involves boys ages twelve through fourteen. The Defendant Anthony Branca was the team's coach.
In his complaint, the Plaintiff alleges that Coach Branca on many occasions between September 2009 and December 31, 2009, directed disparaging, degrading, and insulting comments toward the minor Plaintiff, Joseph Civitella, some of which contained ethnic slurs and sexual references.
Among the insults hurled at Joseph Civitella by Anthony Branca, according to the complaint, were "Italian Bastard," "Prick," "Shit for Brains," ". . . half-sided Italian Prick" and "other equally offensive, malicious and inappropriate names."
The complainant alleges that the offending statements were made "with malicious motives," and were designed to discredit Joseph Civitella in the eyes of his teammates and friends. He claims to have suffered emotional trauma and distress as a result of the offensive, degrading and malicious comments.
In addition to The Pop Warner Football Team and Anthony Branca, the Plaintiff has named Frank Camerino, the League's Director of Football and Edward Brighindi, the League President, as defendants in this action.
Count one of the First Revised Complaint dated March 23, 2010, claims that Coach Branca slandered Joseph Civitella, while Count two alleges that the coach intentionally inflicted emotional distress upon the minor Plaintiff. Counts three through eight claim that the Defendants, Frank Camerino, Edward Brighindi, and the Pop Warner Football Team, are vicariously liable, because they took no action against Coach Branca, and made no effort to correct his abusive behavior.
All of the Defendants now move to strike the entire complaint, claiming that the allegations in the First Revised Complaint fail to set forth a cause of action.
STANDARD OF REVIEW — MOTION TO STRIKE
The purpose of a motion to strike is to test the legal sufficiency of a pleading. Faulkner v. United Technologies, 240 Conn. 576, 580 (1997); Ferryman v. Groton, 212 Conn. 138, 142 (1989); Practice book § 39. The motion assumes all well-pleaded facts to be true, and, if the facts as deemed proven in the complaint would support a cause of action, then the motion to strike must be denied. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2000); Waters v. Autuori, 236 Conn. 820, 825-29 (1996).
In ruling upon a motion to strike, a court's inquiry is limited by the facts alleged in the complaint. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86 (1982). All facts alleged must be construed in the manner most favorable to sustaining the complaint. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992). However, although all facts contained in a complaint are deemed proven, conclusions of law are not admitted. Maloney v. Conroy, 208 Conn. 392, 394 (1988).
In construing the allegations in the complaint, they should be read broadly, rather than in a narrow or hypertechnical manner. Greco v. United Technologies Corp., 277 Conn. 337, 347 (2006).
WORDS ATTRIBUTED TO COACH ANTHONY BRANCA NOT ACTIONABLE AS SLANDER PER SE
In Counts one, three, five and seven of the First Revised Complaint, the minor Plaintiff claims that the words uttered by Coach Anthony Branca constitute slander per se, and that the cause of action may be maintained without the necessity of pleading and proving special damages.
Slander is actionable per se, if it charges incompetence or dishonesty in office, or charges a person with general incompetence in a trade, business or profession. Moriarty v. Lippe, 162 Conn. 371, 384 (1972); Zeller v. Mark, 14 Conn.App. 651, 655 (1988). Slander is also actionable per se, if it charges a crime of moral turpitude, or accuses a plaintiff of theft. Porto v. Bridgeport Herald Corporation, 136 Conn. 557, 567 (1980); Yavis v. Sullivan, 137 Conn. 253, 259 (1950); Miles v. Perry, 11 Conn.App. 584, 602 (1987).
When defamatory words are actionable per se, the law conclusively presumes the existence of an injury to the plaintiff's reputation. Urban v. Harford Gas Co., 139 Conn. 301, 308 (1982); Battista v. United Illuminating Co., 10 Conn.App. 486, 492-93 (1987). However, a different rule applies where statements involve slander per quod. In those instances, there must be a link between the slanderous utterances, and any special damages sustained by the plaintiff. The special damages must be of a materially, and generally a pecuniary nature. They must result from the conduct of a person other than the defamer or the defamed, and the conduct must be directly caused by the slander. Urban v. Hartford Gas Co., supra, 308.
As a general rule, words which are merely gross and vulgar expressions of abuse, regardless of how rude, uncouth or vexatious they may be, are not slanderous per se. Moriarty v. Lippe, supra, 385.
In this case, the minor Plaintiff was not subject to injury in a trade or business. Nor do the utterances of the coach meet any of the other criteria for slander per se.
Furthermore, while the complaint alleges that the statements were uttered in an attempt to degrade and discredit the minor Plaintiff in front of his teammates, it contains no reference to the conduct of any team member. The only acts pled are those of the alleged defamer, Coach Anthony Branca.
The complaint lacks allegations which are indispensable to a claim of slander per quod. Therefore, counts one, three, five and seven are legally insufficient, and must be stricken.
CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS SETS FORTH A POTENTIAL CLAIM
The Plaintiff maintains that Anthony Branca uttered the offending statements, with the intention of inflicting emotional distress on Joseph Civitella. In order to prevail in a claim of intentional infliction of emotional distress, a plaintiff must show: 1) that the defendant intended to inflict emotional distress upon the plaintiff; or, that he knew or should have known that emotional distress was a likely result of his conduct, 2) that the conduct of the defendant was extreme and outrageous, 3) that the defendant's conduct was the cause of the plaintiff's distress, and 4) that the emotional distress suffered by the plaintiff was severe. Appleton v. Board of Education, 254 Conn. 205, 210 (2000); Peytan v. Ellis, 200 Conn. 243, 253 (1986); Carnemolla v. Walsh, 75 Conn.App. 319, 331 (2003).
Liability for intentional infliction of emotional distress must involve conduct that exceeds all bounds usually tolerated by a decent society. Bombalicki v. Pastore, 71 Conn.App. 835, 839-40 (2002). The question is whether the allegations in the complaint set forth behavior that a reasonable fact finder could find to be extreme and outrageous — meaning atrocious, and utterly intolerable in a civilized society. Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569-70 (2007); Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847 (2006). Conduct which is merely insulting, or displays bad manners or results in hurt feelings is insufficient to form the basis of an action based upon intentional infliction of emotional distress. Appleton v. Board of Education, supra, 210.
Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court. Carnemolla v. Walsh, supra, 331; Bell v. Board of Education, 55 Conn.App. 400, 410 (1999).
Construing all facts as alleged most favorably to the Plaintiff, it cannot be said as a matter of law, that the elements necessary to support a claim of intentional infliction of emotional distress have not been pled.
A situation which involves an adult coach, in a position of command and authority vis-a-vis youngsters ages twelve through fourteen, is analogous to the situation of an employer and an employee. (See Denault v. Connecticut General Life Ins. Co., Superior Court, judicial district of Ansonia/Milford ( 1997 Conn.Super. LEXIS 1926) (Corradino, J.).)
Although generations of high school and college football players can probably recall coaches who employed insensitive, insulting and what would now be politically incorrect language in an effort to motivate and inspire players, that approach is now as obsolete as the single wing offense.
Where once coaches may have enjoyed free rein, and used that latitude to employ equal opportunity insults, in this era of political correctness, speech codes on college campuses, and heightened sensitivity, comments which would have produced a shrug of the shoulders decades ago, may now be considered "outrageous" and unacceptable, without regard to motive or intent.
In the case at bar, it must not be forgotten that the language was employed in the presence of twelve-to fourteen-year-olds, who may not be as prepared to deal with the emotional effects or such berating, as more mature high school or college athletes.
These new attitudes are by no means confined to the gridiron. Norman Lear's award-winning situation comedies All in the Family and The Jeffersons were once considered humorous and were showcased in prime time. Those same shows might today produce gasps, and cries of "outrageous" from the enforcers of political correctness, who are quick to label offensive utterances as "hate speech," and not entitled to First Amendment protection.
At the risk of straying beyond the record, the court might observe that Coach Anthony Branca is possibly (probably?) of Italian-American heritage. Whether his ethnicity, if established, serves to mitigate any outrage, in the way some would excuse, explain and rationalize the ubiquitous use of the `N' word by African-Amercan rap artists, cannot be determined as a matter of law.
Nor can it be determined at this time, whether any emotional distress suffered by the minor Plaintiff was severe, or whether a desire to motivate and encourage players was the intent of Coach Branca, rather than an intent to inflict emotional distress. A motion to strike is not the appropriate vehicle for such inquiry.
Courts have been loathe to grant motions to strike, when the offending language involves ethnic slurs or stereotypes. (See Leone v. New England Communications, Superior Court, judicial district of New Britain ( 32 Conn. L. Rptr. 72, 2002 Conn.Super. LEXIS 1361), Quinn, J., and Savage v. Andoch, Superior Court, judicial district of New Haven ( 2008 Conn.Super. LEXIS 882) (Bellis, J.).
The allegations contained in Counts two, four, six and eight of the First Revised Complaint, when construed most favorably to the Plaintiffs, set forth a viable cause of action.
CONCLUSION
The motion to strike Counts one, three, five and seven of the First Revised Complaint, is GRANTED.
The motion to strike Counts two, four, six and eight of the First Revised Complaint, is DENIED.