Opinion
DBDCV186026247S
02-27-2019
Sebastian MARTINEZ v. Douglas S. FUCHS
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Defendant has moved for summary judgment to dismiss the defamation claims against him arguing the statements alleged to be libelous were privileged and merely stated his opinions or are true. For the reasons stated below, the motion is denied.
The Standards for Deciding a Motion for Summary Judgment
"The standards ... [for] review of a ... motion for summary judgment are well established. 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case ..." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60 (2001). (Citations omitted).
Once the movant for summary has satisfied the initial burden of showing the absence of a material issue of fact, the burden shifts to the opponent to establish that there is a genuine issue of material fact: "it is then ‘incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.’" Iacurci v. Sax, 313 Conn. 786, 799 (2014), quoting Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990).
There Are Genuine Issues of Material Fact That Preclude Summary Judgment
Defendant was the Chief of Police of Redding. Plaintiff was an Emergency Medical Technician ("EMT") under the supervision of the Redding Fire Chief. Both parties responded to the scene of an automobile accident on December 27, 2016. On January 3, 2017, plaintiff submitted a written complaint to his supervisor, the Fire Chief, about defendant’s conduct at the scene that plaintiff charged had interfered with his assistance to the accident victim. On February 8, 2017, defendant wrote a memorandum to the Fire Chief about the incident which contained the statements critical of plaintiff that are alleged to be defamatory because they falsely impugned plaintiff’s professional conduct as an EMT.
"It is well settled that a libel is actionable per se if it charges improper conduct or lack of skill or integrity in one’s profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business." Nelson v. Tradewind Navigation, LLC, 155 Conn.App. 519, 532 (2015) (citation omitted).
Defendant asserts the claims must be dismissed because the statements were privileged as a matter of law. "... When considering whether a qualified privilege protects a defendant in a defamation case, the court must resolve two inquiries ... The first is whether the privilege applies, which is a question of law over which our review is plenary ... The second is whether the applicable privilege nevertheless has been defeated through its abuse, which is a question of fact." Crismale v. Watson, 184 Conn.App. 1, 10 (2018) (citation omitted).
Assuming that defendant can demonstrate that a conditional privilege would attach to the memorandum as a matter of law under the test set forth in Miles v. Perry, 11 Conn.App. 584, 595 (1987), that would not end the inquiry because a conditional privilege may be defeated by proof of actual malice. See Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 630 (2015).
"The defendants must sufficiently prove five prerequisites in order to establish the defense of either of the two conditional privileges claimed by them. The essential elements are (1) an interest to be upheld, (2) a statement limited in its scope to this purpose, (3) good faith, (4) a proper occasion, and (5) a publication in a proper manner to proper parties only." Miles, 11 Conn.App. at 595.
" ‘Qualified privileges may be defeated by a showing, by a preponderance of the evidence ... of actual malice, also known as constitutional malice, or malice in fact ... ("[t]he critical difference between common-law malice and constitutional malice, then, is that the former focuses on the defendant’s attitude toward the plaintiff, the latter on the defendant’s attitude toward the truth")’ ...
" ‘[M]alice is not restricted to hatred, spite or ill will against a plaintiff, but includes any improper or unjustifiable motive ... [A] qualified privilege is lost upon a showing of either actual malice, i.e., publication of a false statement with actual knowledge of its falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive ... Indeed ... a showing of either actual malice or malice in fact suffices to defeat a qualified privilege in defamation cases’ ... ‘[A]ctual malice requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth ... A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth ... Further, proof that a defamatory falsehood has been uttered with bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice ... although such evidence may assist in drawing an inference of knowledge or reckless disregard of falsity.’" Crismale, 184 Conn.App. at 10 (citations omitted).
Plaintiff contends that there is evidence that defendant made the statements with malice in retaliation because plaintiff had criticized his conduct at the accident scene. "Malice is rarely subject to proof by direct evidence but is often proved only by inference through an accumulation of circumstantial evidence." Cohen v. Meyers, 175 Conn.App. 519, 547 (2017). A reasonable jury could conclude that the statements were made with actual malice so any conditional privilege may be unavailing at trial.
Defendant also argues that summary judgment is appropriate because the statements were his opinions and any facts asserted were true." ‘To prevail on a common-law defamation claim, a plaintiff must prove that the defendant published false statements about [him] that caused pecuniary harm ... To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion’ ... ‘In a civil action for defamation, where the protected interest is the plaintiff’s personal reputation, the rule in Connecticut is that the truth of the allegedly defamatory statement of fact provides an absolute defense.’" Crismale, 184 Conn.App. at 18 (citations omitted).
To support summary judgment the undisputed evidence must establish the alleged defamatory statement was either an opinion or an uncontested fact. See e.g., Crismale, 184 Conn.App. at 19-20.
"Whether a statement is an assertion of a fact or an assertion of an opinion is a question of law ... ‘A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known ... In a libel action, such statements existed in the past or present and is capable of being known ... In a libel action, such statements of fact usually concern a person’s conduct or character ... An opinion, on the other hand, is a personal comment about another’s conduct, qualifications or character that has some basis in fact ... This distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains an opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated ... Thus, while this distinction may be somewhat nebulous ... [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact.’" 184 Conn.App. at 18-19 (citations omitted).
Review of the alleged defamatory statements reveal that they purport to be based on existing fact rather than pure opinions and the facts are not uncontested. Review of plaintiff’s deposition transcript showed that plaintiff disputed defendant’s version of the incident. Issues of credibility are reserved to the fact finder and may not be resolved on summary judgment. See Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 705 (2016). Under the circumstances defendant has not met his burden of showing there are no genuine issues of material fact to be tried.
"The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact ... The court must view the evidence in the light most favorable to the nonmovant ... In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist." Straw Pond Associates, LLC, 167 Conn.App. at 705 (citation omitted).