Opinion
No. CV 03-0828366
November 30, 2006
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT ( #109, #110)
Before the court are the defendants' motions for summary judgment.
Facts
On May 19, 2004, the plaintiff, Philip E. Lefebvre, filed a four-count amended complaint against the defendants, Joni Zarka, Alexander Zarka, and Adriana Almada. The complaint arises out of an altercation that occurred at the plaintiff's residence in which the defendants claim that the plaintiff assaulted Adriana Almada, a minor. Counts one, two, and three allege that the defendants made false statements to the police that the plaintiff assaulted Almada, leading to the plaintiff's arrest and subsequent criminal prosecution. Count four alleges that during the altercation in question, Almada battered the plaintiff, causing him injuries.
Counts one, two, and three allege malicious prosecution against Joni Zarka, Alexander Zarka, and Adriana Almada, respectively.
On June 16, 2006, after the completion of extensive discovery, Joni and Alexander Zarka (the Zarkas) moved for summary judgment as to counts one and two and on June 27, 2006, Almada moved for summary judgment as to counts three and four. In their motion, the Zarkas state that there are no genuine issues of material fact and they are entitled to judgment as a matter of law because the plaintiff's own statements served as the basis for his arrest and prosecution and because the criminal proceedings did not terminate in the plaintiff's favor. The Zarkas' motion for summary judgment was accompanied by a memorandum of law with supporting exhibits. In her motion, Almada incorporates the Zarkas' motion for summary judgment and accompanying memorandum as to count three, but does not state the ground on which her motion for summary judgment as to count four is based. Since the plaintiff has not objected, the court will review her motion on the grounds stated in her memorandum, namely that the facts establish that Almada did not have intent to batter the plaintiff. On July 19, 2006, the plaintiff filed a memorandum of law in opposition accompanied by exhibits, to which Almada filed a timely reply addressing additional grounds for her motion as to count three.
The standard of review for motions for summary judgment is well settled. "Practice Book § 17-49 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citation omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006).
Malicious prosecution is a cause of action for the bringing of a criminal action with malice and without probable cause. Tort Remedies in Connecticut § 12-3(a). "An action for malicious prosecution against a private person requires the plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff, (2) the criminal proceedings have terminated in favor of the plaintiff, (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982).
The defendants first argue that they are entitled to summary judgment on the malicious prosecution claims because the criminal proceedings against the plaintiff stemming from the defendants' allegedly false statements did not terminate in the plaintiff's favor. This is the case, the defendants argue, because the plaintiff was granted neither an acquittal nor a dismissal, which would indicate his factual innocence, but a nolle prosequi, which indicates only that the prosecution had doubts about the need to prosecute the plaintiff. In their memoranda, the defendants point to the deposition of prosecutor Chris Pelosi, who states: that there was probable cause to pursue the charges against the plaintiff; that the charges were nolled because the plaintiff did not have a record; that the injuries to Almada were minor; that the complaining witness (Almada) had moved to Arizona; that the plaintiff had caused no further problems since this incident; and that the decision not to prosecute was not a result of the lack of probable cause of the plaintiff's guilt. In his opposition, the plaintiff counters that the nolle prosequi the plaintiff received is sufficient to establish favorable termination in a malicious prosecution action. In an action for malicious prosecution, the plaintiff must prove that the underlying action terminated in his favor. See id. Unlike some states, which require full adjudication on the merits, Connecticut permits an action for malicious prosecution to lie where the underlying proceeding was "abandoned or withdrawn without consideration, that is, withdrawn without either a plea bargain or a settlement favoring the parties originating the action." DeLaurentis v. New Haven, 220 Conn. 225, 250, 597 A.2d 807 (1991). The court in DeLaurentis stated that "we have never required a plaintiff . . . to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence . . . so long as the proceeding has terminated without consideration." Id., 251. See See v. Gosselin, 133 Conn. 158, 160, 48 A.2d 560 (1946) ("When we made `discharge' a condition of bringing an action of malicious prosecution, it signified the termination of the particular prosecution. It is not necessary that the accused should have been acquitted. It is sufficient if he was discharged without a trial under circumstances amounting to an abandonment of the prosecution without request from or by arrangement with him"). (Citation omitted.) The record establishes that the plaintiff received a nolle prosequi, a fact that the defendants do not contest. The deposition of prosecutor Chris Pelosi further establishes that this nolle prosequi was a result of a decision made unilaterally by the prosecution without a request from, or arrangement with, the plaintiff. The nolle prosequi received by the plaintiff was, therefore, sufficient to satisfy the "favorable termination" prong of the plaintiff's malicious prosecution claim.
Many courts have taken a more rigid approach to the "termination" requirement. "The . . . most rigid . . . requires that the action have gone to judgment resulting in a verdict of acquittal . . . [while others] permit a vexatious suit action even if the underlying action was merely withdrawn so long as the plaintiff can demonstrate that the withdrawal took place under circumstances creating an inference that the plaintiff was innocent . . ." DeLaurentis v. New Haven, 220 Conn. 225, 250, 597 A.2d 807 (1991). The Connecticut Supreme Court has followed neither line of reasoning.
Next, the defendants argue that they are entitled to summary judgment on the malicious prosecution claims because the plaintiff's own statements were sufficient to support probable cause for his arrest and prosecution. In their supporting memorandum, the Zarkas point to the deposition of the investigating officer, Patrick Smith, in which he states: that the defendants called the police and reported that the plaintiff had assaulted Almada; that he went to the Zarka residence and took a statement from each defendant; that he noticed an abrasion and minor bruising on Almada's right elbow and red marks on her upper left arm; that he then went to the plaintiff's residence to talk to the plaintiff; that the plaintiff largely confirmed the story the defendants had told; that the plaintiff made a hand-written statement confirming the details of the altercation; and that, based on the plaintiff's statements, he felt that a criminal violation occurred. In his opposition, the plaintiff counters that the decision to arrest the plaintiff was made by the judge issuing the arrest warrant, so what the officer did and why are irrelevant. What is relevant, the plaintiff argues, is the arrest warrant, which includes the allegedly false statements of the defendants.
To maintain an action for malicious prosecution, "the plaintiff is required to show that a criminal proceeding against him was commenced and prosecuted and he must also establish that the defendant caused the proceeding to be instituted. A person is deemed to have initiated a proceeding if his direction or request, or pressure of any kind by him, was the determining factor in the officer's decision to commence the prosecution." (Emphasis added.) Zenik v. O'Brien, 137 Conn. 592, 592, 79 A.2d 769 (1951); see Fatone v. DeDomenico, 161 Conn. 576, 577, 290 A.2d 324 (1971) (holding that in an action for malicious prosecution against a private individual, proof that the defendant initiated or procured the institution of the underlying criminal proceedings is an essential element, and failure to satisfy it will defeat the plaintiff's claim). In Zenik, the court, in finding that there were reasonable grounds to conclude that the defendant instituted the action against the plaintiff, stated that "[t]he jury could reasonably have found that the defendant not only expressed to the officer his opinion of the plaintiff's guilt but that he was also insistent that the plaintiff should be arrested for the crime." Zenik v. O'Brien, supra, 137 Conn. 596. If the decision to prosecute is entirely in the hands of the public officer, however, the private individual reporting the information cannot be held liable for malicious prosecution. McHale v. W.B.S. Corp., supra, 187 Conn. 446.
In this case, the initiation and prosecution of the charges against the plaintiff were not a result of the defendants' insistence or direction. In fact, statements given by the plaintiff to Officer Smith provided probable cause for his arrest and prosecution. Officer Smith's sworn deposition, uncontested by the plaintiff, clearly establishes as much. In his deposition, he states that Joni Zarka "just told me what happened and didn't request any action," and "even without the discrepancy" between the defendants' and the plaintiff's statement, that he "would have applied for the same charges." Further, prosecutor Chris Pelosi stated in his deposition, also uncontested, that based solely on the facts revealed by the plaintiff's own statement, there was enough to subject him to charges of reckless endangerment, breach and unlawful restraint. The plaintiff has offered no facts tending to contradict these statements.
To establish a cause of action for malicious prosecution, the plaintiff is required to prove that the defendants instituted this action. This action was clearly instituted by Officer Smith, and prosecuted by Chris Pelosi, based on not only information provided by the defendants, but on the corroborating story from the plaintiff's own mouth. Even without the defendants' actions and statements, the plaintiff would have been subject to both arrest and prosecution on largely the same counts. As such, the defendants are entitled to judgment as a matter of law on the plaintiff's malicious prosecution claims.
The defendant, Almada, argues that she is entitled to summary judgment on the battery claim alleged in count four because the record shows that she did not have the "intent" required for battery. In her memorandum, Almada points: to the plaintiff's own statement that he and Almada "collided head-on"; to her own statement that the plaintiff "dove on top of me"; to plaintiff's supplemental statement, made two days after the altercation, when the plaintiff allegedly knew he was about to be arrested, that Almada "ran at me in an attempt to flee the scene, knocking me down"; and to the fact that Almada was thirteen years old and less than 100 pounds when she allegedly battered the plaintiff. The plaintiff's memorandum does not respond to Almada's motion for summary judgment as to count four.
In order for Almada to be liable to the plaintiff for battery, the plaintiff must prove that she had intent. The definition of "intent" in the Restatement (Second) of Torts § 8A requires "that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it." It is not sufficient that Almada intended the particular bodily movement that resulted in the offensive or harmful contact with the plaintiff, it can hardly be said that if she were attempting to escape the plaintiff's presence, that she would not be acting intentionally in an effort to do so. What is relevant to the intent calculus is whether Almada intended the consequences of such bodily movement, in this case, the harmful contact with the plaintiff. See Comment a of Restatement (Second) of Torts § 8A ("`[i]ntent' is limited . . . to the consequences of the act"). Even considering the facts most favorably to the plaintiff, there is no genuine issue as to whether Almada intended to cause a harmful or offensive contact with the plaintiff. The facts, uncontested by the plaintiff, were: that the plaintiff was across the street from his house in the bushes watching Almada ring his doorbell; that Almada saw the plaintiff and ran away, presumably to escape his presence; that the plaintiff simultaneously ran towards Almada in an effort to confront her; and that at that time, the plaintiff and Almada collided. The facts, at very most, establish that Almada was aware that her acts might result in contact with the plaintiff, but these facts cannot establish, as a matter of law, that she intended such a contact. As such, the defendant's motion for summary judgment as to count four of the plaintiff's amended complaint should be granted.
"An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact . . . or an imminent apprehension of such a contact." (Emphasis added.) Restatement (Second) of Torts § 13.
Conclusion
For the grounds stated herein, the defendants' motions for summary judgment are granted in their entirety.