Opinion
No. CV02-0462113-S
April 8, 2004
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The only remaining count in this case is the third count which lies in defamation. It alleges that the plaintiff was employed by the defendant but on January 23, 2001 was "wrongfully" and in "bad faith" discharged from his position. On that date, the complaint goes on to allege, "the defendant through its servants, agents and/or employees intentionally and/or recklessly reported to the New Haven Police Department that the plaintiff had committed a larceny and wrongfully discharged him from its employment." Paragraph 4 goes on to state "this reporting . . . was false and malicious." As a result the plaintiff "has suffered in his reputation."
The defendant has filed a motion for summary judgment. The standards to be applied in deciding such a motion are well known. If the court finds there is a material issue of fact on which the claim rests, it cannot decide that issue but must leave its resolution to the trier of fact because parties have a constitutional right to a trial. On the other hand if no such material issue of fact is presented and the motion can be decided as a question of law then the court should grant the motion if such action is warranted since parties should not have to unnecessarily undergo the aggravation, stress, and expense of unmerited litigation.
The defendant makes three arguments (1) the defamation claim fails because the exact words that form the basis of the defamation claim are not alleged; (2) the standard of defamation is not met because to be actionable under that theory the statement in question must convey an objective fact and not a mere opinion; and (3) the defendant was privileged to report the theft to the police.
(1) CT Page 6055
The defendant refers to the language of the complaint and argues that the claim must fail because the exact words of the alleged defamation are not set forth — the plaintiff just alleges that defamation took place because of the intentional or reckless reporting to the police "that the plaintiff had committed a larceny." The case of Pro Performance Corp. Serv. v. Goldman, 2003 Conn. Super. Lexis 2414 (Lewis, J.), is cited. That case relies on other trial court decisions and says: "In order to sufficiently state a claim for defamation, the specific statements, the exact words must be alleged . . . `a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by, who, and to whom' . . . `in defamation actions especially, words count, and a premium is placed on the precise words employed.'" In Pro Performance the court was dealing with a motion to strike a defamation claim in a count where a false light claim was also being made so the court denied the motion because the defamation claim was not set forth in a separate count. The paragraphs alleging defamation state that conversations were recorded and contained "negative information" regarding the defendant and knowing the tapes contained "false information" they were played for his clients thus harming the claimant's reputation.
Based on the foregoing Pro Performance is not helpful to the defendant's first argument. For one thing it underlines the fact that as to this argument the defendant is really attacking the legal sufficiency of the complaint which should more properly be done by means of a motion to strike not a motion for summary judgment. As the commentary to § 17-44 in Connecticut Superior Court Civil Rules, 2004 ed. Horton Knox points out there is a "conflict" as to whether the legal sufficiency of a complaint can be attacked by means of a motion for summary judgment at the trial court and perhaps even appellate level. As a case cited therein decides the court will simply treat this aspect of the motion as a motion to strike, see page 758 of Horton and Knox.
From this perspective the court does not find the defendant's argument persuasive. We do not have here vague references to "negative" or "false" statements; the complaint explicitly alleges in so many words that the defendant's agents falsely reported to the police that the plaintiff had committed a larceny, see par. 3 of count one.
For motion to strike purposes that is exact enough to determine whether defamation has been sufficiently alleged. In Miles v. Perry, 11 Conn. App. 584, 602 (1987), the court said: "Statements accusing a plaintiff of theft are libelous or slanderous per se . . .," also see 50 Am.Jur.2d, "Libel and Slander," § 185, page 465.
(2)
The defendant next argues that the defamation claim is not viable because what the defendant's agent, Beebe, did here was merely state an opinion and did not make a statement of fact as to the plaintiff. Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795 (1999), is cited where it says: "To be actionable (in defamation), the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Then the court quoted a portion of the charge with apparent approval: "a statement must be an expression of fact such as he is a thief . . . A statement cannot be an opinion such as I think he is a thief or a question such as is he a thief," id. page 796. As previously noted the basis of the defamation claim as set forth in the complaint is that the defendant through its agent "intentionally or recklessly reported to the New Haven Police Department that the plaintiff had committed a larceny." (Emphasis added.) Relying on this allegation the defendant has attached to its motion a police report unaccompanied by an affidavit authenticating it. The report indicates it was completed by an officer investigating the complaint of a theft from the defendant company and contains statements from Mr. Beebe, the defendant's employee, about the possible involvement of Mendez in the theft. The report is dated January 23, 2001 which is the date set forth in the complaint as the date when the defendant, acting through an agent made a defamatory report to the New Haven Police Department that the plaintiff Mendez was involved in a larceny. The defendant has several objections to the propriety of the court reviewing the police report and its relevance to the issues before the court. But the defendant does not dispute the fact that the police report was prepared in conjunction with the theft referred to in the complaint. The report indicates that it represented the first contact the police had with the defendant regarding this matter.
Mr. Beebe is said to have told the policeman that a laptop was stolen from his office while he was not there. The police report, referring to Beebe as "Scott," then says:
CT Page 6057 Scott said the plant has a video monitor and he had the person who took the laptop computer on Saturday, on videotape. Scott said he was almost positive that the person on the tape was a Samuel Mendez (the plaintiff), an employee of the company.
The police report goes on to say that: "The tape showed a pick-up truck backing into the rear lot of the building." It then goes on to say, referring to the tape:
It then showed a subject walking into the area where Scott's office was. The subject then walked into the office. It showed the person bending over the desk and removing something from the desk. The subject then walked out of the building. Scott said Samuel Mendez owns a pick-up truck. He then showed me another videotape from last week. It showed Samuel Mendez backing into the lot and getting out of his truck.
The officer then said: "While the trucks looked similar, I could not tell if they were the same trucks (sic). The camera could not get close enough to get a clear picture of the person in the building." The policeman then indicates his contact with Mendez and his mother to try to establish his whereabouts at the time of the theft — which happened sometime after 9:45 a.m. on Saturday, January 20, 2001. The report then says that "Scott told me that he was going to take the videotape and attempt to have it enhanced and try to get the license plate on the truck or to get the face of the subject enhanced." The report concludes with the statement that: "At this time no further action was taken."
The defendant has offered the contents of this report as embodying the "reporting" activity of the agent of the defendant which it argues forms the factual basis for the defamation count.
As noted the defendant maintains that what Beebe told the police is not defamatory at common law since it constitutes mere opinion and is not a statement of fact. Before addressing this substantive claim the court will try to address certain objections raised by the plaintiff as to (1) whether as an evidentiary matter the police report is properly before the court and (2) and whether even aside from that the defendant can rely on it to establish its argument that defamation cannot be established in this case.
First the plaintiff says the court should not be able to consider the report for any purpose. The plaintiff argues that the police report is "inadmissible hearsay" and cites Fogarty v. Rashaw, 193 Conn. 442, 444 (1984), for the proposition that "the police report is hearsay and inadmissible on a motion for summary judgment." That was certainly true of Fogarty. There the defendant filed a motion for summary judgment in a motor vehicle accident case based on negligence. A police report with accompanying statements from several witnesses was attached to the motion. The court ruled the witness statements were obviously hearsay but the personal observations of the police officer reflected in the police report were not. Id.
Turning to this case, the court has referred to the report. Those portions that reflect the personal observations of the police officer, for example on viewing the videotape are not hearsay. Beebe's statement that he was going to try to have the tape enhanced are hearsay. But Beebe's comments that the figure in the tape shown to be taking the laptop was almost positively the plaintiff and his comments about the pick-up track are not hearsay. The plaintiff represents that these statements form the basis of the defamation action against the defendant. In Tait, Handbook of Connecticut Evidence, § 8.8 "Verbal Acts" at page 575, it says: "Defamatory statements are not hearsay in a slander suit because the only issue is whether they were made, not whether they are true. See Hayward v. Maroney, 86 Conn. 261, 262 . . . (1912)."
The plaintiff has several other arguments which basically question the defendant's ability to rely on this police report to support its position that what was reported to the police cannot be defamatory because it was a statement of opinion. The court will try to summarize the plaintiff's observations; he notes that (1) at the trial of this case the jury might conclude from hearing the police officer or Beebe that "certain statements" Beebe made were not included in the police report; (2) Beebe's credibility as to what statements he made or did not make and his intention when he made the statements is for the jury; (3) no evidence has been put before the court to indicate Beebe "never stated that the plaintiff stole the computer"; (4) the jury might conclude the statements in the police report were not true; (5) the fact that the videotape "mysteriously" disappeared might indicate it never existed or if it ever existed did not show Mendez or even anyone at all.
The problem with the plaintiff's observations is underlined by the excellent commentary to P.B. § 17-45 in the Horton Knox volume on our civil practice from which the court obtained the following cases, of which there are several more to the same effect. In Kakadelis v. DeFabritis, 191 Conn. 276, 281 (1983), it was held that a party cannot oppose a summary judgment motion by referring to mere assertions of fact in a complaint or a brief. In Farrell v. Farrell, 182 Conn. 34, 39 (1980), the court said: "A party must substantiate (its) adverse claim by specifically showing there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue," cf. Barile v. Lenscrafters Inc., 74 Conn. App. 283, 285 (2002).
The points made by the plaintiff are not supported by any deposition testimony of Beebe or the police officer or any affidavit from the officer. It is not the defendant's burden to show Beebe never made some other statement, not reflected in the police report, that Mendez in fact stole the laptop — it is the plaintiff's burden to show that is the case. Neither is such knowledge in the exclusive possession of Beebe or the defendant. It is the plaintiff who bases his whole defamation claim on defamatory reporting — reporting to whom? The reporting would have to be to the police apparatus. The plaintiff in opposing this motion had access to the officer who made this report or any other member of the department to try to produce other statements Beebe or anyone else associated with the defendant might have made as "reporters" to the police regarding this incident. As regards the suggestion or speculation that there was no videotape at all, it is said the defendant did not turn it over to Mendez when he requested it. But a cursory reading of the police report indicates the police officer himself viewed the tape and nothing is offered to indicate this assertion could be untrue or mistaken.
More fundamentally other observations by the plaintiff to the effect that the jury might conclude Beebe lied to the officer regarding his statements, besides not being supported by anything to warrant such a conclusion, are not really relevant to the argument made by the defendant. In other words if the court were to conclude Beebe's statements were opinion not statements of fact there would be no defamation in any event. As noted at § 162 of the "Libel and Slander" article in 50 Am.Jur.2d, page 452, "A simple expression of opinion based on disclosed or assumed non-defamatory facts, no matter how unjustified and unreasonable, is not sufficient for an action of defamation"; also on this point see Daley at 249 Conn. page 796.
The court will now try to address the argument raised by the defendant to the effect that under Connecticut law mere opinion cannot form the basis of a defamation action, there must be a statement of fact. This rule is stated in Daley but that case's reference to Mr. Chow of N.Y. v. Ste Jour Azur S.A., 759 F.2d 219 (CA 2, 1985), and Hotchner v. Castillo-Puche, 551 F.2d 910 (CA 2, 1977), makes clear that our state follows the full statement of the objective fact not mere opinion rule as a basis for defamation. That rule is completely stated in Sections 565 and 566 of the Restatement (Second) Torts.
"Topic 3. Types of Defamatory Communication
§ 565 Statements of Fact
A defamatory communication may consist of a statement of fact.
§ 566 Expressions of Opinion
A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.Lester v. Powers, 596 A.2d 65, 69 (Me. 1991), put it in less long winded fashion:
A defamation claim requires a statement — i.e., an assertion of fact, either explicit or implied, and not merely an opinion, provided the opinion does not imply the existence of undisclosed defamatory facts.
Also see Mr. Chow of New York, supra at 759 F.2d at p. 225, and Hotchner, supra at 551 F.2d p. 913. Mr.Chow and Hotchner both relied upon by our case, Daley v. Aetna Life Casualty Co., supra. It should be noted that both these federal cases preface their statement of the foregoing rule with the observation that "an assertion that cannot be proved false cannot be held libelous," id., and Mr. Chow of New York adds a further qualification . . . "we held that direct accusations of criminal misconduct, even when the underlying facts are disclosed, are not protected as opinion," citing Cianci v. New Time Publ. Co., 639 F.2d 54, 65 (CA 2, 1980), also see Edwards v. Nat'l Audubon Society, 556 F.2d 113, 121 n. 5 (CA 2, 1977).
Having said all that it must be added that one of Am.Jur.'s greatest understatements is its comment in the "Libel and Slander" article at 50 Am.Jur.2d, § 161, page 452 to the effect that "Deciding whether a statement expresses `fact' or `opinion' is not always an easy task." Making any such decision at the summary judgment or directed verdict stage of the litigation is rendered more difficult by another factor. Thus while the Am.Jur. article at § 161 page 452 says that: "The determination whether an allegedly defamatory statement is a statement of fact or opinion is a question of law," the Daley opinion at 249 Conn. pp. 795-96 seems to indicate this is a question for the jury.
The court will try to analyze Beebe's statements in the police report in light of the foregoing discussion and in deciding the initial opinion versus statement issue relies on the common sense observation in Lester v. Powers, supra, where the court said: "A comment is an opinion if it is clear from the surrounding circumstances that the maker of the statement did not intend to state an objective fact but intended rather to make a personal observation of the facts," 596 A.2d at page 71.
It is difficult to construe what Beebe told the officer as reflected in the report as anything other than an opinion as to the plaintiff's possible involvement in a theft. Beebe told the police his laptop was taken, the report indicates these events were recorded on a videotape, Beebe told the officer he was "almost positive" the man on the tape was the plaintiff, the tape also showed the perpetrator was operating a pick-up truck and Beebe said that Mendez owned a pick-up truck. That's it. He did not tell the officer Mendez was a thief which a reading of the approved instruction in Daley, as noted, would suggest constitutes a defamatory statement of fact. At most he opined that Mendez very well might be the thief. "Almost positive" does not translate into "positive." Beebe was thus doing nothing more than making "a personal observation of the facts." Neither does this "opinion," such as it is, "imply the existence of undisclosed defamatory facts," Lester v. Powers, supra. Beebe's opinion was confined to and based on what he saw on the tape, and that must have been clear to the officer who viewed the tape himself. If that was not so, why did the officer feel it was necessary to note that Beebe indicated that he intended to have the tapes enhanced. If Beebe intended to brand Mendez as a thief by the opinion he expressed to the officer about the "almost positive" identification of Mendez in the context of the reported theft, why on earth would he not have disclosed additional defamatory facts and information to achieve his purpose.
Neither can the opinion be characterized as a direct accusation of criminal activity and thus unprotected by the opinion rule as interpreted by the Second Circuit in Mr. Chow and Cianci — a direct accusation of crime cannot be watered down to an "almost positive" observation.
The court concludes there is sufficient ground under the reasoning of Daley and the mere opinion rule it adopts (as fully set forth) to find that the defamation count is not viable. Although it is said in that case that the determination as to whether an alleged defamatory utterance is one of fact or mere opinion is a question for jury, where no supportable evidence is presented by the party contending that a statement of fact is involved, surely a court can hold as a matter of law that a question for the jury is not presented.
(3)
Even if the court's foregoing conclusion is not correct and Beebe's statement to the police can be construed as one of fact or somehow the opinion in the context in which it was made suggests undisclosed defamatory facts, there is even a more persuasive reason why this defamation action will not lie.
As stated in Fridovich v. Fridovich, 598 So.2d 65, 67 (Fla. 1992), although "an unsworn statement to a municipal police officer in regard to an alleged crime is not accorded an absolute privilege which will bar, as a matter of law, a subsequent action for slander based on such a statement" (quoting from an earlier case), the court went on to note that "Turning to other jurisdictions, it appears that a majority of states that have addressed this issue have embraced a qualified privilege" (in this situation), see general rule to this effect as stated in 50 Am.Jur.2d, "Libel and Slander," § 293 pp. 583, et seq. In Fridovich Florida adopted this qualified privilege and one of the cases it cited for the majority view is Flanagan v. McLane, 87 Conn. 220, 224 (1913); also see Moriarity v. Lippe, CT Page 6063 162 Conn. 371, 387, fn.2. Connecticut thus adopts the qualified privilege for such communications or reports to the police, cf. analogous privilege when negligence action is brought against citizen informer whose reporting to police of a crime led to an arrest and charges which were later thrown out, LaFontaine v. Family Drug Stores, 33 Conn. Sup. 66, 76 (1976), relying in part on Goodrich v. Warner, 21 Conn. 432, 436 (1852).
Once a qualified privilege is established: (To overcome) "a qualified privilege a plaintiff would have to establish by a preponderance of the evidence that the defamatory statements were false and uttered with common law malice." Id. at 598 So.2d page 69. The above referenced Am.Jur. article says at § 293 page 583 ". . . the general rule has been said to be that defamatory statements voluntarily made by private individuals to the police . . . prior to the institution of criminal charges are presumptively qualifiedly privileged (emphasis added).
Our state follows this law when dealing with allegations of defamation based on libel or slander and our court holds generally that conditional privileges are defeated when "abused" because a statement was made with "actual malice — that is with knowledge of its falsity or reckless disregard as to its truth," Torysan v. Boehringer Ingelheim Pharmaceutics, Inc., 234 Conn. 1, 29 (1995) (relying on § 600 of Restatement (Second) Torts (Vol. 3). The burden would be on the plaintiff, of course, to show the abuse of any conditional privilege, cf. Bleich v. Ortiz, 196 Conn. 498, 504-05 (1985), Corsello v. Emerson Brothers, Inc., 106 Conn. 127 (1927), which says at page 132 ". . . an occasion of privilege having been shown, the liability of the defendant turns upon whether the plaintiff has established that the defamatory article was published by the defendant with malice in fact." Flanagan v. McLane, supra puts the same burden on a plaintiff in a libel case where a conditional privilege to report to the police is found, 87 Conn. at page 222. In other words the plaintiff must present evidence that the privilege was abused. In holding the trial court erred in directing a verdict in a libel action, the court held that on an occasion of privilege "the defendant had adduced sufficient evidence to enable the jury to find the defendant had abused her conditional privilege," Bleich v. Ortiz, supra at 196 Conn. page 505.
The position of a trial court in deciding a motion for summary judgment has been analogized to that of a court deciding a motion for directed verdict after actual trial has commenced. Scott v. Burns, 245 Conn. 419, 424 (1999).
Applying the foregoing to the facts of this case there appears to be no question that the defendant, acting through Mr. Beebe, had a qualified privilege to report the alleged theft to the police — the whole basis of the defamation action as set forth in the complaint is the alleged defamatory reporting of a theft to the police implicating the plaintiff in a larceny. This communication is presumptively privileged and the burden shifts to the plaintiff to present evidence raising a material issue of fact as to whether the qualified privilege was abused.
The plaintiff has presented no such evidence. He refers to his own deposition wherein he testified he asked to see the videotape but was refused by being told the defendant did not have to show him the tape. From this he argues the jury might deduce no such videotape existed and thus the statement to the police was false. But the officer in his report indicates he viewed the tape so it did exist at the time the allegedly defamatory remark was made. It will not do to then argue, as the plaintiff does, that it is really up to the jury to decide whether Beebe "acted maliciously in relying on this non-existent, unproduced videotape." How could a rational jury conclude that failure to hand over a tape to someone to whom they had no obligation to deliver the tape means the tape did not exist in the first place even apart from what the officer said in his report about viewing the tape?
The only other "evidence" of malice presented by the plaintiff is that, as stated in his deposition, when he went to speak to Beebe on some work-related matter after the theft and after the contact with the police "he gave me a very negative look." Beebe then asked whether Mendez had been to the job over the weekend (when the theft occurred). How is this any evidence of malice? In fact the argument is circular — if no independent or extraneous evidence is presented that Beebe's statement that he was "almost positive" that the man in the tape who presumably stole the laptop was Mendez was based on malice, how can any "negative look" be said to be based on anything other than a belief the employee being addressed is a possible thief.
The conditional privilege would be destroyed if, after a police contact to report a crime, negative looks or attempts to avoid contact with the person informed on were to be considered evidence of malice. The whole point of the privilege is to encourage a free flow of information to the police regarding possible criminal activity without having citizens providing such information being deterred by prospective lawsuits in defamation or negligence and then those people have to live in the real world. Besides what if Beebe gave Mendez a cordial smile or even acted quite passively or neutrally after reporting the man's possible involvement in a crime — would the argument then be made that somehow a jury could conclude malice was afoot at the time of the police contact? After all if you suspected someone had stolen your property would you not give them a negative look? How could you act as if nothing happened? Isn't this proof nothing happened?
Furthermore there is nothing to indicate that Beebe believed the information he was providing was false or acted recklessly as regards to the truth. If that was his object why did he not tell the officer Mendez was in fact the man shown on the tape, why did he say only he was "almost positive." In fact as the defendant notes Beebe did in fact review the videotape and to further investigate even talked to Mendez about the matter. There is nothing presented to indicate his statements to the officer were made falsely or recklessly. The plaintiff concludes his brief by saying
Therefore, the defendant has not put forth any evidence which establishes that there is no genuine issue of material fact that the defendant acted with no "falsity or reckless disregard of the truth," such that any applicable conditional privilege was surrendered as a matter of law.
But the point is that once an occasion of privilege is established, the burden shifts to the plaintiff to show that the defendant cannot rely on the privilege because it was abused. That is, the burden does not lie on the plaintiff to disprove that he acted with malice, the burden lies on the plaintiff to prove that the defendant did so act and evidence must be presented to that effect.
It is true that the Flanagan court at page 222 says in dicta and quoting from a federal Supreme Court case that in proving malice on an occasion of privilege the plaintiff may rely on extrinsic evidence but the plaintiff "still has the right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is malice on the face of it," id. A literal reading and application of this notice would render this conditional privilege of being able to report crime to the police meaningless. Of course on the face of it the citizen reports his suspicion of crime — if no extrinsic evidence of malice is necessary but just the reporting will suffice for the jury to find malice where is the protection. Even more broadly speaking in a later case, State v. Whiteside, 148 Conn. 208, 212 (1961), the court said also no extrinsic evidence of malice beyond the statement itself need be offered by the plaintiff to defeat the privilege but malice can be found by reference to the statement itself. But the court then examined the statement in detail, catalogued its "scurrilous, abusive, and offensive" nature and the repetition of the same charges in other statements. Here Beebe said the laptop was stolen, he was "almost positive" the man on videotape who stole the laptop was Mendez and Mendez also drove a pick-up truck which the thief was seen to be operating on the same tape. These statements cannot establish malice in fact or allow a reasonable jury to make such a finding absent a rule of law emasculating the conditional privilege of reporting crime to the police.
The motion for summary judgment is granted.
Corradino, J.