Opinion
No. CVH 6091
November 22, 1999 CT Page 14809
MEMORANDUM OF DECISION
This is an action in five counts brought by a former tenant against her former landlord. The first count alleges an entry and detainer as defined in General Statutes §§ 47a-43 (2), (3), and (4). The remaining counts assert actions for wrongful entry in violation of General Statutes § 47a-16; emotional distress; theft pursuant to General statutes § 52-564; and unfair trade practice, pursuant to General Statutes 110a, et seq.
Sec. 47a-43. (Formerly Sec. 52-546). Complaint and Procedure: Forcible entry and detainer; entry and detainer. (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.
(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.
(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.
(d) If, after service of the summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present.
Sec. 47a-16. When landlord may enter rented unit.
(a) A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed to repairs, alterations or improvements, supply necessary or agreed to services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.
(b) A landlord may enter the dwelling unit without consent of the tenant in case of emergency.
(c) A landlord shall not abuse the right of entry or use such right of entry to harass the tenant. The landlord shall give the tenant reasonable written or oral notice of his intent to enter and may enter only at reasonable times, except in case of emergency.
(d) A landlord may not enter the dwelling unit without the consent of the tenant except (1) in case of emergency, (2) as permitted by section 47a-16a, (3) pursuant to a court order, or (4) if the tenant has abandoned or surrendered the premises.
Sec. 52-564. Treble damages for theft.
Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.
The pertinent provisions of which are as follows:
Sec. 42-110a. Definitions.
As used in this chapter:
(3) "Person" means a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, and any other legal entity;
(4) "Trade" and "commerce" means the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.
Sec. 42-110b.
(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a) (1) of the Federal Trade Commission Act ( 15 U.S.C. § 45 (a)(1)), as from time to time amended.
(d) It is the intention of the legislature that this chapter be remedial and be so construed.
Sec. 42-110g. provides in pertinent part:
(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. . . .
(c) Upon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complaint to the Attorney General and the Commissioner of Consumer Protection and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the Attorney General and the Commissioner of Consumer Protection.
(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys' fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys' fees. In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief. . . .
(g) In any action brought by a person under this section there shall be a right to a jury trial except with respect to the award of punitive damages under subsection (a) of this section or the award of costs, reasonable attorneys' fees and injunctive or other equitable relief under subsection (d) of this section.
The defendant has answered and specifically denied that its actions constituted violation of enumerated statutes or that its action caused the plaintiff emotional distress. As to all other allegations, the defendant has pled insufficient knowledge and left the plaintiff to her proof.
At trial, only the plaintiff and her mother testified. I found them to be credible witnesses. The plaintiff, Tawana Conaway (hereinafter sometimes "Conaway"), sustained her burden of proof as to the following facts: On November 18, 1998, the plaintiff entered into an oral lease with the defendant's superintendent, Joaquim Perez (hereinafter sometimes "Perez") for apartment A-6 at 84 Forest Street in Hartford. Conaway was responding to a newspaper ad which identified Perez as the person to contact.
Two weeks after the plaintiff took possession with her two-year old daughter, the apartment's toilet became inoperable. The plaintiff contacted Perez, who lived across the hall from her, and she requested repair of the toilet as soon as possible. Perez said that he would call a plumber the next day, but the toilet was not repaired. On December 17, 1997, Conaway moved in with the plaintiff's mother until the toilet could be repaired. The plaintiff took some clothing with her, but left all of her furniture and other belongings in the apartment. While living with her mother, the plaintiff kept in contact with Perez on an almost daily basis about the toilet repair. Perez also called the plaintiff and told her that he needed the rent for January before the repair would be made. Conaway frequently checked in on her apartment and collected her mail. In one such visit to her apartment, approximately a month and a half after the toilet ceased to operate, she discovered a different name on the mailbox and that her key to the apartment no longer worked. Perez was contacted, and he admitted that he had removed the plaintiff's furniture and belongings and had leased the apartment to another tenant. The police were called and arrived within a short time. Perez stated that the plaintiff owed a month's rent, that he should have served papers, that he had moved the property out of the apartment and that he "did it the wrong way." Perez also talked on his cell phone in the presence of Conaway stated, "I did it the wrong way.
Conaway spoke to a person at the defendant's management office who told her that Perez was the superintendent. She was also told that management had no knowledge that she was in the apartment and had thought the apartment was empty.
The defendant did not controvert evidence that Perez was its superintendent, but rather the defendant contends that it is not liable for the actions of Perez because there is no evidence that he acted within the scope of his employment or that his actions were condoned or authorized by the defendant.
"The underlying rationale of the modern doctrine of respondeat superior . . . is that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority." (Internal quotation marks omitted.) Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968); Gutierrez v. Thorne, 13 Conn. App. 493, 498, 537 A.2d 527 (1988).
The Supreme Court "ha[s] long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business." A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69. "The master is not held on any theory that he personally interferes to cause the injury. It is simply on the ground of public policy, which requires that he shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with the orders which he has given them on the subject." (Internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500, 656 A.2d 1009 (1995). "[I]t must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine [of respondeat superior] to apply." A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 208. "[T]he vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business. . . ." Id., 210.
In Pelletier v. Bibiles, 154 Conn. 544, 227 A.2d 251 (1967), the Supreme Court held that a jury could reasonably conclude that a store employee, who assaulted a customer who had blown a straw wrapper onto the floor, was acting within the scope of his employment. Id., 548-49. The court stated that the employee's behavior was "an extremely forceful, although misguided, method of discouraging patrons of the [store], including the plaintiff, from causing disturbances on the premises." Id., 548.
In Mullen v. Horton, 46 Conn. App. 759, 700 A.2d 1377 (1997), a priest, who was also a psychologist, began a sexual relationship with a woman who received counseling from him both at his church office and at his office in a therapy center. There the court held that "the trier of fact could reasonably have found that Horton's sexual relations with the plaintiff during their pastoral-psychological counseling sessions, were a `misguided effort' at psychologically and spiritually counseling the plaintiff, rather than an abandonment of the counseling." Id., 767. The court compared the case to Glucksman v. Walters, 38 Conn. App. 140, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995), in which the court reversed the trial court's directed verdict in favor of the defendant, the Young Men's Christian Association (YMCA). In Glucksman, a YMCA employee, who was not on duty, assaulted a basketball player who committed a foul on the YMCA court. Id., 141-48. The court held that "a jury could have found that Walter's attack arose out of his responsibilities as an employee of the YMCA." Id., 148.
By contrast, in A-G Foods, Inc. v. Pepperidge Farm, Inc., supra 216 Conn. 200, the plaintiff, a food store chain, sued the defendant, a distributor of bakery goods, alleging that one of the defendant's drivers, Anthony Spinelli, had charged the plaintiff for goods Spinelli had not delivered. Id., 202. The Supreme Court concluded that the trial court did not abuse its discretion by ruling in favor the defendant as a matter of law because "there was no evidence to indicate that Spinelli, by his theft, intended to serve Pepperidge Farm's interests at all."
Similarly, in Gutierrez v. Thorne, supra, 13 Conn. App. 493, the Appellate Court affirmed the trial court's grant of summary judgment where an employee of the commissioner of mental retardation sexually assaulted a mentally ill woman whom he was supposed to assist with errands. The court stated, "it is clear that Jones was not furthering the defendant's business interests when he sexually assaulted the plaintiff." Id., 499.
I find that like the agents in Pelletier, Mullen, andGluckman, Perez was attending to the defendant landlord's affairs. He acknowledged, however, that he did it the wrong way when he removed the plaintiff's property and should, instead, have served her with papers. The superintendent's actions, when the plaintiff failed to pay rent for January, were a "misguided effort" to further his principal's interests. See Mullen v. Horton, supra, 46 Conn. App. 767.. Pelletier, Mullen, andGluckman do not require that the principal authorize, condone or know of the misguided effort.
As to liability, I find in favor of the plaintiff on her claims set forth in Count One (Entry and Detainer), Count Two (Wrongful Entry pursuant to General Statutes § 47a-16) and Count Three (Emotional Distress). The plaintiff's original possession of the premises was rightful; the only proper mode of eviction available to the defendant was that of summary process; the plaintiff had not abandoned the premises; Perez violated General Statutes §§ 47a-16 and 47a-43 when he removed her personal property from her apartment, changed the locks and gave possession to another tenant.
I find in favor of the defendant on Counts Four and Five. As to Count Four, claiming treble damages for theft in violation of General Statutes § 52-564, that statute applies to any person who "steals" property of another, or "knowingly" receives and conceals "stolen" property. The plaintiff failed to sustain her burden that the defendant landlord stole or knowingly received and concealed her property.
As to Count Five, claiming an unfair trade practice in violation of General Statutes § 42-110a et seq., the plaintiff failed to sustain her burden to prove that the defendant authorized Perez's tortuous conduct.
It is a general rule of substantive law that corporations, like individuals, are liable for their torts. . . . This liability arises apart from, and is distinguishable, from, liability under the theory of respondeat superior. . . .The theory of respondeat superior attaches liability to a principal merely because the agent committed a tort while acting within the scope of his employment. "It refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 70, p. 502. A principal may be directly liable, however, for the acts of its agents that it authorizes or ratifies. Id., pp. 501-502; 1 Restatement (Second), supra, § 212 (principal liable for authorized conduct) and § 218 (principal liable for ratified conduct). "In order to find that a corporation has committed an intentional act, a court or jury must find that the corporation committed, directed or ratified the intentional act."
Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480 (1995)
"In Connecticut, punitive damages cannot be awarded against a principal where . . . its liability is based solely on a theory of respondeat superior or vicarious liability. Maisenbacker v. Society Concordia, 71 Conn. 369, [ 42 A.2d 67] (1899)." Kalinowski v. Waddell Reed, Inc., Superior Court, judicial district of Waterbury, Docket No. 146924 (October 14, 1998, Sheldon, J.)
In Mullen v. Horton, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 533347 (October 18, 1995, Hennessey, J.), rev'd on other grounds, 46 Conn. App. 759, 700 A.2d 1377 (1997), the court concluded that actual authority was necessary to apply the doctrine of respondeat superior to a CUTPA claim. In that case, the plaintiff alleged that a priest had sexually abused her, and that the defendants, who had employed the priest, were vicariously liable. The court held that "the doctrine of respondeat superior [was] inapplicable as a matter of law . . . to convert [the priest's] conduct into a CUTPA violation. If the plaintiff were to demonstrate that the . . . [d]efendants actually authorized [the priest] to engage in sexual intercourse with the plaintiff, then the alleged actions of [the priest] could indeed be found to have been unfair and actionable under CUTPA." Id.
Furthermore, even where the plaintiff brought a direct action against the principal in the form of a negligent supervision claim, the Supreme Court concluded as a matter of law that such negligence was not an unfair or deceptive practice under CUTPA because it did not satisfy the common law requirements that the alleged unfair act be "immoral, unethical, oppressive, or unscrupulous," and that the act "[cause] substantial injury to consumers [(competitors or other businessmen)]." A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 200.
The plaintiff presented receipts to support her claim for damages. Without itemizing here the individual items, they included receipts for $367.77 to replace her bed, $682.00 to replace clothing for herself and her daughter, $273.00 for children's equipment and toys, and $100.00 for sundries and small appliances.
She has not replaced a microwave oven for which she paid $99.00, her daughter's highchair for which she paid $30.00, two dressers for her child which she purchased new in 1995 at $100.00, a dresser which she had purchased for herself for $20.00, a CD player bought in 1996 for $150.00 and the two CDs she owned and valued at $15.00 each, a used couch which she bought in 1997 for $25.00, a kitchen table and chairs purchased from a neighbor in 1995 for $35.00, a TV-VCR purchased for $75.00 that "worked," dishes, pots and pans which she valued at about $50.00, a black bomber jacket she bought in 1990 for $50.00 and a newer winter coat for $35.00, her little girl's pink coat at $12.00 and two 6' by 9' brown rugs she bought new in 1996 for $79.00 each.
Lost to her were "a lot of sentimental things" including her high school diploma and photographs of her mother's parents. While I cannot put a monetary value on those items, I have considered that loss and the circumstances of her dispossession in awarding her $1000.00 for her emotional distress.
The plaintiff is awarded compensatory damages in the amount of $3,291.00.
I do not award double damages pursuant to General Statutes § 47a-46, nor do I award punitive damages in the nature of attorneys fees pursuant to General Statutes §§ 47a-18a or 42-110g(d). See Maisenbacker v. Society Concordia, 71 Conn. 369, (1899); Kalinowski v. Waddell Reed, Inc., supra.
Sec. 47a-46.. When double damages allowable.
The party aggrieved may recover in a civil action double damages and his costs against the defendant, if it is found on the trial of a complaint brought under section 47a-43 that he entered into the land, tenement or dwelling unit by force or after entry held the same by force or otherwise injured the party aggrieved in the manner described in section 47a-43.
Sec. 47a-18a. Judicial relief if landlord unlawfully enters.
If the landlord makes an entry prohibited by section 47a-16 or 47a-16a, or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may recover actual damages not less than an amount equal to one month's rent and reasonable attorney's fees. The tenant may also obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement.
See Endnote 4, supra.
Tanzer, J.