Opinion
HHDCV135036740S
12-31-2015
Kevin Hall et al. v. Coldwell Banker Residential Real Estate, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kevin G. Dubay, J.
FACTS AND PROCEDURAL HISTORY
On February 13, 2013, the plaintiffs, Kevin Hall and Kathlene Hall, filed a four-count complaint against the defendant, Coldwell Banker Residential Real Estate, LLC, alleging defamation (count one), intentional infliction of emotional distress (count two), interference with use and enjoyment of property (count three), and negligence (count four). The defendant filed a motion to strike on April 12, 2013, challenging the legal sufficiency of the complaint in its entirety. On April 24, 2013 the plaintiffs filed a request to amend the complaint contemporaneously with an amended complaint. The court, Scholl, J., granted the plaintiff's request to amend the complaint on May 20, 2013. Thereafter, on May 21, 2013, the court, Scholl, J., granted the defendant's motion to strike in part. Specifically, the court granted the defendant's motion to strike as to counts two, three, and four. Additionally, it granted the motion to strike as to count one regarding the defamation claim of Kathlene Hall. The court denied the motion to strike the defamation claim in count one as alleged by Kevin Hall. Thus, the only remaining count in the amended complaint is a single count of defamation as alleged by Kevin Hall.
Because the court granted the motion to strike as to all counts except the defamation claim in count one as alleged by Kevin Hall, any reference to " the plaintiff" in this memorandum will refer to Kevin Hall.
The basis for the plaintiff's claim against the defendant is that, in early 2011, Phil Gibson contracted with the defendant to sell his property (Gibson property), which is adjacent to the plaintiff's property. While attempting to sell the Gibson property, Lisa Sweeney, the alleged salesperson for the defendant, made defamatory remarks about the plaintiff to numerous individuals. Sweeney's statements and conduct relate to an incident on or about April 7, 2011, when the plaintiff was riding a dirt bike motorcycle on his property while Sweeney was attempting to show the Gibson property to other individuals (motorcycle incident). The plaintiff alleges that Sweeney made these remarks while " acting on behalf of" the defendant. Moreover, it is also important to note that Gibson filed a lawsuit against the plaintiff in 2011, alleging, inter alia, tortious interference with contractual expectancy and tortious interference with contract (Gibson lawsuit). As alleged, the factual basis for the Gibson lawsuit was, in part, that the plaintiff created loud noises on his property that harassed and/or intimidated invitees of Gibson while Gibson was attempting to sell his property.
In reading count one of the amended complaint, the plaintiff appears to allege that Sweeney made at least six separate statements that were of a defamatory character: (i) statements to the plaintiff (paragraph 6); (ii) statements to Gibson (paragraph 7); (iii) statements to multiple unnamed neighbors and buyers (paragraphs 8 and 9); (iv) statements during a deposition on October 20, 2011 (paragraph 15); (v) statements to John Chavalier (paragraph 20); and (vi) statements to Kim Estep (paragraph 21).
See Gibson v. Hall, Superior Court, judicial district of Litchfield, Docket No. CV-11-6004480-S. This action was eventually withdrawn after Gibson was paid $20,000 by the plaintiff's insurance provider. See (Ex. D, page 6).
On July 15, 2015, the defendant filed a motion for summary judgment with an accompanying memorandum of law and attached various exhibits. On July 28, 2015, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment. The plaintiff did not attach any exhibits to his opposition. This court heard argument on the defendant's motion during the September 8, 2015 short calendar. Thereafter, the defendant submitted a supplemental affidavit and additional exhibits on September 11, 2015. Additional facts will be included as necessary.
-II
DISCUSSION
The standard governing this court's review of the present motion for summary judgment is well settled. " [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015); see also Practice Book § 17-49 (summary judgment standard). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Nodoushani v. Southern Connecticut State University, 152 Conn.App. 84, 90-91, 95 A.3d 1248 (2014). " If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law." Stuart v. Freiberg, supra, 316 Conn. 823.
Finally, " [a] party in a civil case has a right to file a motion for summary judgment at any time with certain exceptions." (Emphasis in original.) Holcomb v. Commissioner of Correction, 39 Conn.App. 485, 489, 664 A.2d 1199 (1995). As amended in January 2014, Practice Book § 17-44 provides in relevant part that " [i]f a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order . . ."
It is important to call this court's attention to the relevant scheduling order in the present case. On July 10, 2014, the court, Vacchelli, J., provided a scheduling order that required the parties to submit motions for summary judgment by April 1, 2015. Subsequent to that order, the parties filed a joint motion for modification of the scheduling order on April 14, 2015, requesting that motions for summary judgment be filed by July 15, 2015. This request was granted by the court, Robaina, J., on April 17, 2015. On July 15, 2015, the defendant filed the motion for summary judgment that is presently before the court (#137). Thus, the present motion for summary judgment was filed in compliance with the amended scheduling order that the parties agreed to, and which the court authorized on April 17, 2015.
The defendant argues that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law based on various grounds. Among other grounds, the defendant argues that the plaintiff has failed to make out a prima facie showing for a claim of vicarious liability against the defendant. Specifically, the defendant argues that Sweeney was an independent contractor of the defendant and, therefore, the defendant cannot be held liable for Sweeney's alleged defamatory conduct. Second, the defendant argues that the plaintiff has failed to raise a genuine issue of material fact as to the prima facie elements of a defamation claim. Specifically, the defendant argues that the plaintiff has failed to produce sufficient evidence that he suffered harm to his reputation as a result of the alleged defamatory statements. In response, the plaintiff generally asserts that his defamation claim is based on various eyewitness accounts and their testimony, and that the defendant claims facts that are not true. Critically, the plaintiff's sole legal argument in his memorandum of law in opposition to the motion for summary judgment is that, because depositions can be admitted at trial to save time, effort, and money, statements made during a deposition can properly be used as a basis for a defamation claim.
Additionally, the defendant argues (i) that the alleged defamatory statements made by Sweeney during the October 20, 2011 deposition are absolutely privileged, (ii) that the alleged statements to Gibson are absolutely privileged to the extent that they were extrapolated from Sweeney's deposition testimony, (iii) that the plaintiff has failed to produce evidence that any alleged statements to Gibson were false, and (iv) that the plaintiff has failed to plead with specificity the alleged defamatory statements made to Chavalier, Estep, and other neighbors or other prospective buyers. The court need not address these additional arguments because the plaintiff has failed to make out a prima facie claim of vicarious liability against the defendant and because the plaintiff has failed to create a genuine issue of material fact as to an injury to his reputation. Moreover, even when read in a favorable light, the plaintiff's memorandum of law in opposition to the motion for summary judgment only addresses the defendant's argument that Sweeney's statements during the October 20, 2011 deposition are absolutely privileged. Thus, he does not respond to any of the additional arguments presented by the defendant.
The defendant argues that the court should grant judgment in favor of the defendant based on the following: (I) the defendant has met its initial burden of demonstrating that no genuine issues of material fact exist, (ii) which the plaintiff has failed to rebut, and (iii) the defendant is also entitled to judgment as a matter of law because the defendant cannot be held vicariously liable for the conduct of Sweeney or, alternatively, because the plaintiff has failed to produce evidence that his reputation was injured as a result of the allegedly defamatory statements made by Sweeney.
A
As an initial matter, it is important to note that the present case is necessarily predicated on a theory of vicarious liability. In its memorandum of law, the defendant simultaneously argues that the plaintiff's amended complaint does not include a claim of vicarious liability, but, to the extent that the amended complaint is premised on such a claim, the defendant argues that the plaintiff fails to make out a prima facie case of vicarious liability based on the grounds that Sweeney was an independent contractor and there is no evidence that the defendant exerted any control over Sweeney.
To the extent that the defendant expressly denies that the plaintiff's suit is premised on a theory of vicarious liability, it appears that the defendant discredits the nature and purpose of a writ of summons. " [T]he identities of the parties [in a case] are determined by their description in the summons. See General Statutes § 52-45a; Practice Book § 8-1(a)." (Footnotes omitted.) Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002); see also Brock v. A-1 Auto Service, Inc., 45 Conn.Supp. 525, 529, 728 A.2d 1167 (1998) (Blue, J.) (summons describes parties to lawsuit with particularity).
Here, the writ of summons lists a single defendant: Coldwell Banker Residential Real Estate, LLC. Moreover, the amended complaint only names Coldwell Banker Residential Real Estate, LLC as the defendant and, at various points, refers to Sweeney as " acting on behalf of" Coldwell Banker Residential Real Estate, LLC when she made the alleged defamatory statements. To the extent that the defendant argues in its memorandum of law that the plaintiff's suit is not premised on a theory of vicarious liability, such an argument is without merit; the plaintiff's defamation claim in his amended complaint is necessarily predicated on a theory of vicarious liability because Sweeney is not a named party to this civil action. Thus, the court will address the defendant's alternative argument that it is entitled to judgment as a matter of law based on the grounds that Sweeney is an independent contractor and there is no evidence that the defendant exerted any control over Sweeney.
At oral argument, the defendant also acknowledged that the only named defendant in this action was Coldwell Banker Residential Real Estate, LLC.
Generally, a party that hires an independent contractor cannot be held liable for the tortious conduct of the independent contractor. Spring v. Constantino, 168 Conn. 563, 571-72, 362 A.2d 871 (1975); Tiplady v. Maryles, 158 Conn.App. 680, 702, 120 A.3d 528, cert. denied, 319 Conn. 946, 125 A.3d 527 (2015); Gurland v. D'Adamo, 41 Conn.Supp. 407, 410, 579 A.2d 144 (1990) (Berdon, J.). Although the general rule is that an employer or hirer of an independent contractor is not liable for torts allegedly committed by an independent contractor, the law recognizes certain exceptions. " [Courts] have long held . . . that [t]o this general rule there are exceptions, among them these: If the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518, 825 A.2d 72 (2003).
Moreover, " [i]t has long been established that the fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work . . . The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent . . . An independent contractor has been defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work." (Citations omitted; internal quotation marks omitted.) Tianti, ex rel. Gluck v. William Raveis Real Estate, Inc., 231 Conn. 690, 696-97, 651 A.2d 1286 (1995). " The controlling consideration in the determination whether the relationship of master and servant exists or that of independent contractor is: Has the employer the general authority to direct what shall be done and when and how it shall be done--the right of general control of the work?" (Internal quotation marks omitted.) Commission on Human Rights and Opportunities v. Echo Hose Ambulance, 156 Conn.App. 239, 248, 113 A.3d 463 (2015).
Lastly, " [u]nder the doctrine of respondeat superior, a master is liable for the wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business . . . 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." 2 National Place, LLC v. Reiner, 152 Conn.App. 544, 557-58, 99 A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d 1112 (2014).
As was previously indicated, the plaintiff's amended complaint is necessarily predicated on a theory of vicarious liability. Thus, as a matter of law, the defendant can only be liable for the acts committed by Sweeney under limited circumstances: (I) if she was an employee for the defendant or, (ii) if she is an independent contractor, then an exception to the general rule that an employer of an independent contractor cannot be held liable for torts committed by the independent contractor must apply.
It should also be noted that the doctrine of apparent authority is not a viable ground to hold a principal vicariously liable for harm caused to third parties by the alleged servant or agent of the principal. See, e.g., Mullen v. Horton, 46 Conn.App. 759, 771-72, 700 A.2d 1377 (1997) (" In other states, the doctrine of apparent authority has been used to hold a principal, who represents that another is his servant or agent and thereby causes a third person to rely justifiably on the care or skill of such agent, vicariously liable for harm caused to the third person by the lack of care or skill of his servant or agent. See 1 Restatement (Second), Agency § 267, pp. 578-79 (1958); see also Mehlman v. Powell, 281 Md. 269, 272-75, 378 A.2d 1121(1977); Sanders v. Rowan, 61 Md.App. 40, 50-58, 484 A.2d 1023 (1984); McClellan v. Health Maintenance, 413 Pa.Super. 128, 135-39, 604 A.2d 1053 (1992). In Connecticut, however, the doctrine of apparent authority has never been used in such a manner.")
A thorough review of the evidence submitted by the parties reveals that there are no genuine issues of material fact surrounding the nature of the relationship between Sweeney and the defendant. Sweeney claims in her affidavit, which was submitted by the defendant, the following: (I) she was an independent contractor affiliated with the defendant; (ii) she retained sole discretion and judgment as to the manner and means of accomplishing the desired result of listing, selling, leasing, exchanging, or renting real estate; (iii) the defendant did not direct or control the means by which she conducted her activities; (iv) she was never paid a salary by the defendant and only received a share of the commissions for a particular real estate transaction; and (v) any statements made by her, as alleged, were her own observations and sentiments of the plaintiff's conduct, and were not made for the benefit of the defendant or in furtherance of her affiliation with the defendant. Moreover, the defendant also submitted a copy of the agreement between the defendant and Sweeney, which echos Sweeney's statements in her affidavit. Significantly, in subsection (B) of paragraph (2), the agreement indicates that the defendant would not direct or control the conduct of Sweeney, beyond assuring that the defendant operated in conformity with the law, and that Sweeney " shall retain sole discretion and judgment as to the manner and means of listing, selling, leasing, or renting real estate as well as promoting and selling related real estate settlement services hereunder."
Although the plaintiff alleges that Sweeney was acting on behalf of the defendant when she made the defamatory remarks, he has not submitted any counterevidence to rebut the defendant's evidence that Sweeney was an independent contractor hired by the defendant. Moreover, the plaintiff has failed to submit any counterevidence to demonstrate that the defendant did, in fact, control Sweeney's conduct. Thus, there are no genuine issues of material fact that Sweeney was an independent contractor whose conduct the defendant did not control.
Accordingly, the defendant would be entitled to judgment as a matter of law unless an exception to the general rule that an employer of an independent contractor cannot be held liable for torts allegedly committed by the independent contractor applies. Spring v. Constantino, supra, 168 Conn. 571-72. Here, the contracted work relates to listing, selling, leasing, or renting of real estate. Such work does not fall under any of the viable exceptions. See Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 518. Moreover, the plaintiff neither presented any evidence nor argued that an exception applies. Although the court is mindful that the plaintiff is a self-represented litigant and thus construes the rules of practice liberally in his favor, " the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." Tonghini v. Tonghini, 152 Conn.App. 231, 240, 98 A.3d 93 (2014).
Here, the plaintiff has not submitted any counterevidence that would create a genuine issue of material fact as to the nature of Sweeney's relationship with the defendant. Moreover, the general rule is that a party that hires an independent contractor cannot be held liable for torts allegedly committed by that independent contractor. Spring v. Constantino, supra, 168 Conn. 571-72; Gurland v. D'Adamo, supra, 41 Conn.Supp. 410. Accordingly, summary judgment enters in favor of the defendant.
B
Although summary judgment is entered in favor of the defendant based on the grounds that there is no genuine issue of material fact that Sweeney is an independent contractor and that, as a matter of law, the defendant cannot be held liable for torts allegedly committed by an independent contractor, one additional argument advanced by the defendant is worth mentioning. Specifically, the defendant argues that the plaintiff has failed to produce sufficient evidence that he suffered harm to his reputation as a result of the alleged defamatory statements.
" Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation." Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). Slander is subdivided into two categories: slander per se and slander per quod. See, e.g., Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952) (distinguishing between requisite damages in slander per se and slander per quod); Miles v. Perry, 11 Conn.App. 584, 601-03, 529 A.2d 199 (1987) (comparing libel and slander per se to simply " defamatory" statements); Bonito Manufacturing, Inc. v. Criscuolo, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10-CV-10-6010297 (October 21, 2014, Dooley, J.) (same). " Whether words are actionable per se is a question of law for the court." Miles v. Perry, supra, 602.
" Although defamation claims are rooted in the state common law, their elements are heavily influenced by the minimum standards required by the [f]irst [a]mendment . . . At common law, [t]o establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement . . . 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." (Citations omitted; footnote omitted; internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 430, 125 A.3d 920 (2015). Moreover, " [e]ach statement furnishes a separate cause of action and requires proof of each of the elements for defamation." Gleason v. Smolinski, supra, 319 Conn. 394, 431 (2015); see also Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004) (" With each publication by the defendant, a new cause of action arises").
1
Whether the Alleged Defamatory Words are Actionable Per Se or Per Quod
Although only briefly mentioned by the defendant in its memorandum of law, it is critical to initially define the nature of the alleged defamatory statements made by Sweeney. This is so, because slander per se relieves a plaintiff of the burden of establishing a particular injury to his or her reputation by producing evidence of special damages. " When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. He is required neither to plead nor prove it . . . The rule is different, however, when the defamation is actionable per quod. There, the law indulges no such presumption. For this reason, injury to the reputation must be alleged and proved as an essential link between the slanderous utterance and the special damage which constitutes the basis of recovery in actions per quod . . . The special damage . . . must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and that conduct must be directly caused by the publication of the slander." (Citations omitted.) Urban v. Hartford Gas Co., supra, 139 Conn. 308; see also Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999) (" To prevail on a common-law defamation claim, a plaintiff must prove that the defendant published false statements about [the plaintiff] that caused pecuniary harm").
" [S]lander . . . [is] actionable per se where the utterance falsely charges a crime involving moral turpitude or to which an infamous penalty is attached . . . Moral turpitude . . . is a vague and imprecise term to which no hard and fast definition can be given . . . A general definition . . . is that moral turpitude involves an act of inherent baseness, vileness or depravity in the private and social duties which man does to his fellow man or to society in general, contrary to the accepted rule of right and duty between man and law." (Citations omitted.) Moriarty v. Lippe, 162 Conn. 371, 383, 294 A.2d 326 (1972). " The modern view of this requirement is that the crime be a chargeable offense which is punishable by imprisonment . . . The allegation that a person committed a crime need not be as specific as in an indictment, but it must bear some reasonable relation to the legislative definition of a crime." (Citation omitted.) Battista v. United Illuminating Co., 10 Conn.App. 486, 493, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987); see also Silano v. Cooney, Superior Court, judicial district of Fairfield, Docket No. CV-12-5029873-S (October 13, 2015, Bellis, J.).
Moreover, " [s]poken words are actionable per se only if they charge a general incompetence or lack of integrity. They are not slanderous per se if they charge no more than specific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity." (Emphasis added; internal quotation marks omitted.) Moriarty v. Lippe, supra, 162 Conn. 384. " The general rule has long been that such words of general abuse, regardless of how rude, uncouth or vexatious are not slanderous per se and cannot support recovery in a slander action in the absence of a showing of special damages." Id., 385. Finally, " [t]he words used . . . must be accorded their common and ordinary meaning, without enlargement by innuendo." Miles v. Perry, supra, 11 Conn.App. 603.
After reviewing the pleadings and the evidence submitted to the court, it is clear that the plaintiff's defamation claim is one premised on slander. In paragraph 17 of count one of his amended complaint, the plaintiff indicates that Sweeney " defamed [him] by falsely and negligently telling the [plaintiff's] neighbor, Phil Gibson that [the plaintiff] harassed and intimidated her." (Emphasis added.) In paragraph 18 of that same count, the plaintiff refers to statements made by Sweeney during a deposition that the plaintiff claims to be defamatory. In paragraph 20, the plaintiff alleges that " Sweeney defamed [the plaintiff] by going to the neighbor of [the plaintiff], John Chavalier and told him that [the plaintiff] was harassing people on the Gibson property." (Emphasis added.) In paragraph 21, the plaintiff alleges that " Sweeney defamed [him] by making defamatory statements to Kim Estep, who are [sic] the new owners of Gibson property and neighbors of [the plaintiff]." Indeed, at no point during the plaintiff's deposition in connection with this case, which was submitted by the defendant, does the plaintiff refer to any written statements by Sweeney; each of the alleged defamatory remarks are oral statements made by Sweeney.
Moreover, the challenged statements do not suggest that the plaintiff committed a crime involving moral turpitude or to which an infamous penalty is attached, and they do not charge a general incompetence or lack of integrity. Put succinctly, the allegedly defamatory statements are that Sweeney told various individuals that the plaintiff's conduct during the motorcycle incident on or about April 7, 2011, was perceived to be harassing and intimidating to Sweeney. Even if Sweeney's statements are read to be assertions that the plaintiff committed the crime of harassment on or about April 7, 2011, the law requires that such allegations " bear some reasonable relation to the legislative definition of a crime." (Citation omitted.) Battista v. United Illuminating Co., supra, 10 Conn.App. 493. Here, Sweeney's alleged statements about the plaintiff's conduct as being harassing or intimidating do not bear any reasonable relation to how the legislature has defined " harassment." See General Statutes § § 53a-182b, 53a-183.
General Statutes § 53a-183 provides in relevant part: " (a) A person is guilty of harassment in the second degree when: (1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm." General Statutes § 53a-182b provides in relevant part: " (a) A person is guilty of harassment in the first degree when, with the intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by telephone, or by telegraph, mail, computer network, as defined in section 53a-250, or any other form of written communication, in a manner likely to cause annoyance or alarm and has been convicted of a capital felony under the provisions of section 53a-54b in effect prior to April 25, 2012, a class A felony, a class B felony, except a conviction under section 53a-86 or 53a-122, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, 'convicted' means having a judgment of conviction entered by a court of competent jurisdiction."
Giving the words their common and ordinary meaning; Miles v. Perry, supra, 11 Conn.App. 603; the challenged statements, as alleged, are words of " general abuse, " requiring the plaintiff to make a showing of special damages. Moriarty v. Lippe, supra, 162 Conn. 385. Accordingly, the plaintiff's defamation claim is one of slander per quod, not slander per se.
2
Evidence of Injury to Plaintiff's Reputation as a Result of the Statement
As part of his prima facie case of slander per quod, the plaintiff was required to produce evidence that he suffered special damages to his reputation. Urban v. Hartford Gas Co., supra, 139 Conn. 308. Moreover, once a defendant has presented sufficient evidence that no genuine issue of material fact exists, a plaintiff is required to demonstrate that he possesses sufficient counterevidence to create a genuine issue of material fact as to any element of his cause of action. Stuart v. Freiberg, supra, 316 Conn. 823.
In support of its motion for summary judgment, the defendant attached the plaintiff's deposition in relation to the present lawsuit against the defendant. During the plaintiff's deposition, the plaintiff was asked how Sweeney's comments caused harm to his reputation. The following excerpts from the deposition transcript are relevant:
" [Question]: How did this [Gibson] lawsuit damage you? What damages were caused to you by this statement? " [Answer]: It's just another lawsuit. It's just another lawsuit to be put on the record. I don't know how employers look at people's backgrounds when they do checks of employment, if they look at lawsuits. Just to go through another lawsuit like this and just to have everybody knowing that another lawsuit's being created and to have it based off a lie is ridiculous. It's her fault."(Ex. D, page 15.)
***
" [Question]: Okay. How has this comment that Lisa Sweeney stated that you were harassing her on the property [of Gibson], how has that affected your reputation in the community? " [Answer]: Just the social circle of my neighborhood. Those people talk a lot of other people. If that's just one person that heard it, I'm sure other people heard it, and it's just more of the same slandering my name around the neighborhood."(Ex. D, page 18.)
*** " [Question]: So how else has that statement injured your reputation or otherwise damaged you? " [Answer]: Which statement? " [Question]: That John Chavalier told Shane Kinsey that Lisa Sweeney told him that you were harassing people on the property. " [Answer]: Just social circle of somebody saying I'm harassing people. " [Question]: So just people saying you're harassing-- " [Answer]: You're not going to know that. You're not going to know that. People talk behind your back. You're not going to know, which I'm sure they do. You're not going to know what that is.(Ex. D, page 18.)
*** " [Question]: What exactly is your claim on your earning capacity damages? How are you alleging that you were impacted? " [Answer]: Just I feel from the standing of neighbors and from the additional lawsuit."(Ex. D, page 27.)
Moreover, in the plaintiff's response to the defendant's interrogatories, which the defendant also attached to its motion for summary judgment, the plaintiff indicates that he has been employed with the same employer since May of 2006. In fact, the plaintiff indicates that he received a raise in his weekly salary since the time of the alleged defamatory remarks in 2011 (Ex. C, page 4). Additionally, in his deposition in relation to the present lawsuit, the plaintiff indicates that his insurance provider paid the $20,000 settlement for the Gibson lawsuit (Ex. D, page 6).
On the basis of this evidence, the defendant has met its preliminary burden of demonstrating the nonexistence of a material fact vis-a-vis the plaintiff's reputation suffered injury as a result of the alleged defamatory statements. Here, as indicated by the plaintiff, the basis for the alleged injury to his reputation is twofold: (i) Sweeney's comments caused the Gibson lawsuit to be filed against him, which employers might be able to see and consider during background checks; and (ii) Sweeney's comments generally impacted his reputation in the community. In Urban v. Hartford Gas Co., supra, the Supreme Court favorably cited the Restatement of Torts when describing the type of damages that a plaintiff needs to prove in an action for defamation per quod: " For example, if a third person, because he believes the slander or because of an unwillingness to employ one whose reputation has been impaired by it, withdraws his previous offer to hire that person, the latter's loss of reasonable expectation of gainful employment would amount to special damage." (Emphasis added.) 139 Conn. at 308-09, citing 3 Restatement, Torts, § 575, comment (b). The plaintiff has not provided this court with any evidence in the form of affidavits or otherwise that would create a genuine issue of material fact as to the special damages of a pecuniary nature that were allegedly caused by the statements; he has not provided any evidence that employers have considered the lawsuit and withdrew offers to hire him because of it. Moreover, he simply asserts in his memorandum of law that his doctor, Lanny Moskowitz, is able to testify to the harm caused.
Although the plaintiff is a self-represented litigant and thus the court construes the rules of practice liberally in his favor, " the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." Tonghini v. Tonghini, 152 Conn.App. 231, 240, 98 A.3d 93 (2014). Moreover, it is not enough for a party opposing a motion for summary judgment to merely assert the existence of a disputed issue of material fact. Nodoushani v. Southern Connecticut State University, supra, 152 Conn.App. 91. The plaintiff has failed to present sufficient counterevidence that would create a genuine issue of material fact that he suffered special damages to his reputation as a result of Sweeney's alleged defamatory statements to Gibson, Chavalier, Estep, and other neighbors or prospective buyers. Accordingly, in the absence of a genuine dispute that the alleged defamatory statements injured the plaintiff's reputation, the defendant is entitled to judgment as a matter of law on this basis as well.
CONCLUSION
There are no genuine issues of material fact. The defendant is entitled to judgment as a matter of law based on the grounds that (i) Sweeney is an independent contractor and (ii) the plaintiff has failed to produce evidence that he suffered special damages to his reputation. Accordingly, judgment enters in favor of the defendant.