Opinion
No. CV-05-4003643S
April 6, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The plaintiff has brought this action seeking damages for slander per se (Count One), libel per se (Count Two), negligent and intentional infliction of emotional distress (Counts Three and Four). The defendant has moved for summary judgment on the grounds that she is entitled to absolute immunity for all statements made to the court, to court personnel and in pleadings and on the grounds that the alleged defamatory statements were substantially true, and, therefore, neither defamatory nor outrageous.
Facts
The defendant has submitted an affidavit in which she states that on June 9, 2004 she and her daughter went to the plaintiff's house at 80 Park Road in Haddam, Connecticut. The defendant had been living with the plaintiff for approximately one year. She told the plaintiff that she was moving out of his house and breaking off their relationship. The plaintiff began crying and threatened to commit suicide by shooting himself. He grabbed one of his shotguns and loaded it with ammunition. He stuck the barrel of the shotgun in his mouth and walked outside. The defendant called 911. While on the telephone with the emergency dispatcher the defendant heard the shotgun fire and thought the plaintiff had killed himself The plaintiff had not killed himself, and instead, walked back into the house, reloaded his gun and told the defendant to get off the telephone with the police. The plaintiff again threatened to kill himself and threatened to kill the police. The plaintiff went back outside with the gun in his hands and then returned without that gun. When he came back inside, the plaintiff got another gun that was located inside the house. During this time the defendant was able to get back on the telephone with the police and eventually she was able to leave the house and meet the police in the driveway.
The plaintiff has submitted the police report of the June 9th incident in opposition to the Motion for Summary Judgment. In that report Trooper John Mesham indicates that on June 9, 2004, he was dispatched to a complaint of a suicide with a shotgun at 80 Park Road in Haddam. When Trooper Mesham arrived at the plaintiff's residence the plaintiff shouted, "F — you, get off my property," and stated that he had a "real gun." The defendant's twenty-two year old daughter emerged from the house and was signaled to walk towards the trooper and another State trooper who was also present. Then the defendant emerged from the house and advised the troopers that the plaintiff was inside with a gun.
Captain Martin telephoned the residence and the plaintiff answered. Captain Martin told the plaintiff to exit the house, but the plaintiff refused. He told Captain Martin that unless the defendant was sent back to the house, he was coming out with the gun and further stated that he would "Go through the police." The plaintiff also stated that when he came out with the gun, the police would have to kill him or he would kill them. After this, the plaintiff ran away from the house and into the woods where the troopers eventually captured him and arrested him for Threatening, in violation of Connecticut General Statutes § 53a-62, Reckless Endangerment, in violation of Connecticut General Statutes § 53a-63, Breach of Peace, in violation of Connecticut General Statutes 53a-181, Illegal Discharge of a Firearm, in violation of Connecticut General Statutes 53-203 and Interfering with an Officer, in violation of Connecticut General Statutes § 53a-167a. The troopers found a Mossberg pump shotgun, a rifle, and six boxes of ammunition at the plaintiff's residence.
According to the plaintiff, after the arrest, the court issued a restraining order. On January 26, 2005, the parties agreed to continue the restraining order. On May 16, 2005, at a hearing in superior court as to whether the restraining order should be continued, the defendant allegedly stated to the court that the plaintiff had held her hostage on June 9, 2004.
The plaintiff further claims that he was awarded $2,668.52 in damages in a small claims action against the defendant and that on May 16, 2005, the defendant filed a Motion to Reopen the small claims matter. The plaintiff has appended a copy of this motion to his opposition. The motion states:
1. The complaint in this matter was mailed to the defendant's place of employment.
2. The defendant is the victim of domestic violence perpetrated by the plaintiff. The plaintiff was arrested for holding the defendant hostage at gunpoint during a standoff with the State Police.
3. In January 2005, when the defendant appeared in Superior Court, Judicial District of Middlesex at Middletown for the continuation of the restraining order against the plaintiff, the defendant was under the impression that all matters between the parties, including the claim in this case for money allegedly owed to the plaintiff, were resolved.
4. At no time was the defendant advised that the plaintiff intended to go forward with this action.
5. The defendant has a good and valid defense to this claim, including that no money is owed to the plaintiff
The plaintiff has submitted his own affidavit in which he references the police report referred to above, and admits that the defendant was at his house on June 9, 2004, did tell him that she wanted to leave him, that he stated he wanted to kill himself, went outside and discharged a fire arm. The plaintiff adds that he was two hundred feet from the defendant when the shotgun went off a distance he describes as "not near" to the defendant.
The plaintiff has produced no evidence to counter the defendant's statement in her affidavit that she did not tell anyone other than her attorney that the plaintiff had held her hostage. Therefore, there is no evidence to support the plaintiff's allegations that the defendant made any statements "to acquaintances."
Discussion of the Law and Ruling
Practice Book § 17-49 (formerly § 384) provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A,2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
At common law, "communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986). "The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation marks omitted; citations omitted). Id. at 246. Statements that fall under the protection of absolute privilege are completely immune from any defamation liability even if the statements are false and malicious. See Kelley v. Bonney, 221 Conn. 549, 565, 606 A.2d 693 (1992). In the present case the defendant made her allegedly actionable statements in open court or in a written pleading. Clearly those statements were made in the course of judicial proceedings and are absolutely privileged as long as they are pertinent to the proceedings.
Count One alleges that the defendant has made statement "to acquaintances and court personnel." However, the plaintiff has produced no evidence of statements other than those made in court.
The statement that the plaintiff had held her hostage at gunpoint was pertinent to the proceedings in which the defendant attempted to have the protective order continued. That statement was also pertinent to the defendant's effort to reopen the small claims judgment obtained against her by the plaintiff. It was an integral part of the defendant's explanation of why she had not responded to the plaintiff's lawsuit earlier and why the plaintiff's suit against her might be motivated by spite rather than based on truth.
Since the defendant's statement are absolutely privileged, they cannot be made the basis for an action in slander, libel, or negligent or intentional infliction of emotional distress. DeLaurentis v. New Haven, 220 Conn. 225, 264-65, 597 A.2d 807 (1991); Alexandru v. Dowd, 79 Conn.App. 434, 438 n. 4, 830 A.2d 352 (2003).
The defendant argues that the plaintiff's failure to establish a claim for defamation is an additional ground for the summary judgment on Count One and Count Two.
A cause of action for defamation requires four essential elements: (1) a false statement of fact; (2) unprivileged publication of the statement; (3) publication caused by negligent or intentional conduct; and (4) injury to reputation. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984); Torosyan v. Boehringer Ingelheim Pharm., Inc., 234 Conn. 1, 27, 662 A.2d 89 (1995).
Truth is a complete defense to a suit for defamation. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984). The defendant argues that in light of the plaintiff's conduct on June 9, 2004, her statement that she had been held hostage by the plaintiff on that date was substantially true. Merriam Webster's Collegiate Dictionary, Tenth Edition, defines hostage as: "a person taken by force to secure the taker's demands; one that is involuntarily controlled by an outside influence."
The plaintiff does not dispute that on June 9, 2004, when the defendant said she was leaving the plaintiff, he threatened to kill himself. The plaintiff does not dispute that while the plaintiff was in his house after he threatened to kill himself, he went outside and discharged a shotgun. The plaintiff himself provided the court with the police report concerning the June 9, 2004 encounter. According to that report the defendant did not leave the plaintiff's house until the police arrived. The plaintiff's affidavit states that he never pointed a gun at the defendant. That does not change the fact that on June 9, 2004, the plaintiff engaged in conduct that the defendant reasonably perceived as holding her hostage. The defendant's statements to that effect were substantially true and, therefore, not defamatory.
The defendant also argues that based on the undisputed facts, Counts Three and Four do not state claims for negligent or intentional infliction of emotional distress.
To sustain a claim for intentional infliction of emotional distress, a plaintiff must establish; "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that the emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendants conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). The question of whether a defendant's conduct is sufficient to satisfy the extreme and outrageous element is in a first instance for the court. Carnemolla v. Walsh, 75 Conn.App. 319, 331, 815 A.2d 1251 (2003).
"[L]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which recitation of the facts to an average member of the community would arouse his resentment against the actor; and lead him to exclaim, `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; internal quotation omitted.) Appleton v. Board of Education, 254 Conn. 205, CT Page 6609 210-211, 757 A.2d 1059 (2000).
In the case of Carrol v. Allstate Insurance Co., 262 Conn. 433, 815 A.2d 119 (2003), the plaintiff insured brought action against his insurer to recover for breach of contract and infliction of emotional distress arising from the insurer's treatment of him during its investigation after a fire. The plaintiff presented evidence of poor and impulsive investigation as well as evidence that the inspectors' determination of arson might have been influenced by the fact that the plaintiff was an African-American. Id. at 441. The plaintiff overheard one of the inspectors say "the son of bitch is mine" when he was told that the homeowner was black, Id. at 441. There was harassment from frequent interviews and recurrent inspections of the house. Additionally, the plaintiff was made to feel like a criminal by offensive questions insinuating criminal behavior during the interviews. Id. Nevertheless, the Court ruled that the conduct was not sufficient for a jury to reasonably conclude that the defendant's conduct in its fire investigation was extreme and outrageous. Id. at 443. "The plaintiff produced evidence that the defendant did not conduct a thorough or reasoned investigation and may have decided too quickly that the fire had been set deliberately. As distressing as this insurance investigation may have been to the plaintiff, however, it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress." Id. at 444.
In Carnemolla v. Walsh, supra, the Appellate Court held that the defendant's action of accusing the plaintiff of embezzling company funds and requesting that the plaintiff sign resignation and release forms in front of the plaintiff's coworker was not outrageous and extreme conduct. The Court compared the conduct of the defendant to conduct which occurred in Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001), where the defendants hypercritically scrutinized every aspect of the plaintiff's work and personal life, publicly admonished her and organized a plan to force her to resign. The foregoing conduct was not held to be outrageous or extreme. Carnemolla, at 333. The Court also looked at Appleton v. Board of Education, supra, where the plaintiff was subjected to condescending comments by the employer, subjected to two psychiatric evaluations, escorted off the employer's premises by police and forced to resign. Nonetheless, the defendant's conduct was determined to be not outrageous or extreme. Carnemolla, at 333. The elements of negligent and intentional infliction of emotional distress differ as to the state of mind of the actor and not to the conduct claimed to be extreme and outrageous. Muniz v. Kravis, 59 Conn.App. 704, 709, 757 A.2d 1207 (2000).
In light of his conduct on June 9, 2004, to which the plaintiff has admitted, the defendant's statements to the court that the plaintiff held her hostage were neither extreme, nor outrageous. Counts Three and Four do not state valid causes of action for intentional or negligent infliction of emotional distress.
For the reasons set for above, summary judgment may enter in favor of the defendant on all counts of the complaint.