Opinion
No. CV 06 5006438 S
December 5, 2008
MEMORANDUM OF DECISION
The three plaintiffs in this case have filed a twelve-count civil complaint seeking compensatory damages, punitive damages, double and triple damages, attorneys fees and unspecified injunctive relief. The plaintiffs are Zachary O'Connor and his parents Daniel O'Connor and Cynthia O'Connor. The defendants are Amanda Meyer and her parents Larrie Meyer and Carolyn Meyer. All of the parties are residents of Madison, Connecticut.
The events that gave rise to this litigation allegedly occurred between September 2004 and April 2005, during which time Zachary and Amanda were 14-or 15-year-old freshmen attending Daniel Hand High School (Hand) in Madison. Counts one and two, respectively, allege claims of intentional infliction of emotional distress against Carolyn Meyer and Amanda on behalf of all of the plaintiffs. Counts three and four, respectively, allege claims of libel per se against Carolyn Meyer and Amanda on behalf of Zachary. Counts five and six, respectively, allege claims of defamation against Carolyn Meyer and Amanda on behalf of Zachary. Count seven alleges a claim of invasion of privacy as against Carolyn Meyer on behalf of Zachary. Count eight alleges a claim of vexatious litigation against Carolyn Meyer on behalf of Zachary. Counts nine and ten, respectively, allege claims of parental liability pursuant to Connecticut General Statutes § 52-572, and common-law parental liability, as against Larrie Meyer on behalf of all of the plaintiffs. Counts eleven and twelve, respectively, allege claims of parental liability pursuant to § 52-572, and common-law parental liability as against Carolyn Meyer on behalf of all of the plaintiffs.
The answer of the defendants admits only that Carolyn and Larrie Meyer are residents of Madison, and that they are the parents of Amanda. In addition the defendants have filed eight "affirmative defenses" alleging that the complaint fails to state a claim upon which relief can be granted, res judicata, collateral estoppel, unclean hands, that the plaintiffs are not entitled under law to recover the damages they seek, that the court lacks subject matter jurisdiction, laches, and that the action is barred by the statute of limitations. All of the affirmative defenses have been denied by the plaintiffs.
There is also pending in this court the case of Meyer et al. v. O'Connor et al., Docket Number CV-05-401 1945S in which Carolyn Meyer and Amanda have sued the three O'Connors seeking money damages for what they claim occurred at Hand between September 2004 and April 2005. Each side has filed motions to consolidate the two cases alleging that they both arise from the same series of transactions and both involve the same parties, except that Larrie Meyer is not a plaintiff in the suit brought by Carolyn Meyer and Amanda. The Meyer case has been claimed to the jury while the instant case is a court case and therefore the two cases were not consolidated for trial.
The instant case was tried before this court on December 14, 2007, and January 2, 3, 4, 7, 9, 10 and 11, 2008. The plaintiffs' witnesses were Zachary, Detective Sergeant Trent Fox of the Madison police department, Barbara Britton, the principal of Hand, Francis Thompson, assistant principal of Hand, Dr. H.K. Griffin, superintendent of schools in Madison, Cynthia and Daniel O'Connor, and Chief Paul Jakubson of the Madison police department. The defendants' witnesses were Carolyn Meyer and Amanda. Thirty-four exhibits were presented. Each side has filed post-trial briefs.
The court finds the following facts and reaches the following conclusions. Zachary, who was born on November 23, 1989, and Amanda, who was born on March 23, 1990, were both 14 years old at the start of their freshman year at Hand in September 2004. They had attended school together since kindergarten and were friends. When he was in the seventh grade, Zachary publicly disclosed that he was gay. The day before school started in September 2004, they were with two or three other friends in downtown Madison when they had an argument over politics. Amanda, who was politically conservative, was offended when Zachary, who was politically liberal, compared Ronald Reagan to Adolph Hitler. They had a verbal argument on that subject. Amanda became hysterical and called her mother, Carolyn Meyer, who drove downtown and took her home.
The next day was the first day of the school year. While they were at school a friend told Amanda that when they were in the cafeteria, Zachary had made an obscene gesture towards Amanda. Amanda had not seen the gesture, sometimes referred to as "giving the finger" or "flipping someone off." Amanda came home in tears and reported to her mother what she had been told. Carolyn Meyer later that day went to the O'Connors' home to discuss what Amanda had told her. She engaged in a conversation with Cynthia O'Connor and Zachary who told her that Zachary had been directing the obscene gesture at another student who had been harassing him about his sexual orientation. Zachary apologized for the misunderstanding. During the course of the conversation Carolyn Meyer made several derogatory remarks about Zachary's sexuality and told Mrs. O'Connor that she wanted Zachary to stay away from Amanda.
The following day Carolyn Meyer returned to the O'Connor home. She was upset because an upset Amanda had reported that a friend told her that Zachary that day had made another obscene gesture towards her, and also because Zachary had told his friends about Mrs. Meyers' visit to the O'Connor home the day before. Zachary denied making the obscene gesture and said he had not seen Amanda that day. Carolyn Myer was very upset because Zachary had told his friends about her previous visit and told Cynthia and Daniel O'Connor that they were bad parents. She was yelling at them and was asked to get off the property. As she left, Carolyn Meyers continued to yell and she said in substance, "what did I want her to do, call DCF and get a restraining order and take your kids away?"
Between October 2004 and March 2005 Mrs. Meyer came to the school on numerous occasions to complain about Zachary's conduct towards Amanda. She believed that Zachary was bullying and harassing Amanda. The school investigated her periodic complaints and did not find that Zachary had been bullying or harassing Amanda. The basic problem between the two high school freshmen was that they had the same circle of friends, and once they had their political argument in September and were no longer friendly, the friends tended to associate more with Zachary than they did with Amanda. This would upset Amanda and she would tearfully complain to her mother. Mrs. Meyer complained to the school authorities that Zachary had made faces at Amanda, or that he was in the cafeteria or in a classroom when Amanda was there and he was not supposed to be there, even though Amanda had not seen him. The various incidents involving Amanda and Zachary which were reported to her by Amanda, and which caused Mrs. Meyer to come to the school to complain about were the typical freshmen peer relations issues that are common with 14-and 15-year-old children. The unfriendly relationship between Zachary and Amanda was exacerbated by Mrs. Meyer's negative feelings towards Zachary and by her and Amanda's overreacting to the incidents. In the course of making her complaints to the school authorities, and on occasion to the police department, Mrs. Meyer, on more than one occasion, would refer to Zachary's sexual orientation even though that subject had nothing to do with her complaint.
In October 2004, Zachary placed a message in his profile on the internet in which he referred to Amanda as a "shit." The message was accessible only to those who knew Zachary's screen name. The contents of the profile came to Amanda's attention, she was very upset about it, and complained to her mother. Mrs. Meyer then complained to the Madison Police Department and to Mrs. Britton. When confronted by Mrs. Britton about the profile Zachary initially denied that he had posted the message but later that day he admitted that he had done it. He apologized to Amanda, and his parents punished him by denying him the use of his computer for several days. The school and the police department did not take any action against Zachary.
In the fall of 2004, based on some of the incidents involving Amanda and Zachary and the frequency and vehemence of Mrs. Meyer's complaints, the school administration suspended Zachary for two days. Subsequently the superintendent of schools, Dr. Griffin, determined that the suspension was not warranted and it was removed from Zachary's record.
In the summer of 2004, Mr. And Mrs. O'Connor had given Zachary permission to attend a gay summer carnival in Provincetown, Massachusetts. He went with two adult gay men who were friendly with the O'Connors. In November 2004, Zachary brought three photographs to school that had been taken at the carnival of him and the two men in costumes, and he was showing them to other students. Amanda had not seen the photographs but she complained to her counselor, Patty Judson, that she was very upset because Zachary was showing photographs that she found to be offensive. This information was communicated to Mrs. Britton who looked into the matter and concluded that the photographs were not offensive or inappropriate. The three photographs are in evidence and they are not offensive or inappropriate in any way. Mrs. Britton concluded that no action should be taken against Zachary. Amanda then told her mother that she was upset because Zachary had brought offensive photos to school, although she said that she had not seen the photos.
Shortly thereafter Carolyn Meyer came to the school complaining to Mrs. Britton that the school had not taken any action against Zachary in connection with the photographs which she claimed were offensive, even though, like Amanda, she had not seen them. Mrs. Britton advised Mrs. Meyer that the photographs were not offensive and that no action would be taken against Zachary. Mrs. Meyer then took her complaint about the photographs to Dr. Griffin, the superintendent of schools. She told Dr. Griffin that the pictures were of gay people and were offensive. She also indicated that she had a negative feeling about Zachary's sexuality and that she did not want Zachary inviting Amanda to go to certain events. Dr. Griffin took no action against Zachary with respect to Mrs. Meyer's complaint.
Mrs. Meyer was dissatisfied with what she perceived to be the lack of any action by the school authorities or the superintendent of schools with respect to the alleged offensive photographs which neither she nor Amanda had ever seen. On November 10, 2004, Mrs. Meyer filed a formal complaint with the Madison police department alleging, among other complaints, that Zachary had brought pornographic photographs of nude men having sex with other men to school and shown them to Amanda and other students. This was not true. Zachary did not bring any pornographic photographs to school. The investigating police officer saw the photographs, found them inoffensive, and no police action was taken against Zachary.
On March 9, 2005, Brittany, a student at Hand, told Amanda while they were in school that she had just overheard a conversation in study hall involving several students, including one named Craig, and Zachary. The alleged conversation concerned the troubled relationship between Amanda and Zachary, Craig referred to a shotgun, and Zachary responded. Amanda immediately went to the school office and telephoned her mother and told her what Brittany had related. Mrs. Meyer then called the Madison police department and reported that her daughter's life had been threatened and she then came to the school with two police officers. Mrs. Meyer wanted Zachary arrested for what she claimed was a death threat against Amanda. The police department investigated what had happened and concluded that no one had made a death threat against anyone. Mrs. Meyer was advised within one day with respect to the conclusion reached by the police. The school authorities also looked into the matter and concluded that there had not been a death threat. Craig was suspended from school for three days for bringing up the subject of a shotgun. The school found that Zachary had done nothing wrong and he was not disciplined. Mrs. Meyer was advised of the results of the school investigation. Mrs. Meyer was not satisfied with the conclusions of the Madison police and the school authorities that no one, including Zachary, had threatened Amanda's life. Mrs. Meyer was not told by anyone that he or she heard Zachary threaten Amanda's life.
On March 15, 2005 Mrs. Meyer went to the Superior Court in New Haven and filed an application for relief from abuse, pursuant to Connecticut General Statutes Section 46b-15, on behalf of Amanda, who did not accompany her mother. She was seeking a court order imposing various restraints upon Zachary. The application stated that Zachary was "a person with whom I (Amanda) have (or recently had) a dating relationship." This allegation was false, and Mrs. Meyer knew it to be false. Amanda and Zachary did not have a dating relationship at that time or recently. In the absence of a dating relationship, presently or recently, the Superior Court did not have jurisdiction to enter a restraining order for relief from abuse.
Mrs. Meyer also asked that the requested restraining order be made effective immediately ex-parte alleging that "there was an immediate and present physical danger" to Amanda. In order to establish there was an immediate and present physical danger to Amanda and thus obtain an ex-parte order, Mrs. Meyer filed an affidavit alleging that Zachary has made a threat during school to "get a gun and kill her" referring to Amanda. Zachary had not made such a threat and Mrs. Meyer had no basis to allege that he had. She also stated in her affidavit that the police and the school have been notified of the threat. However, although she knew then that the police and the school had concluded, after investigation, that no such threat had been made to anyone, she did not mention that in the affidavit.
Not surprisingly, the judge handling the relief from abuse matters, when presented with the aforementioned affidavit, issued an ex-parte restraining order, and ordered that a hearing be held on the application for relief from abuse on March 29, 2005. The application and order was then served on Zachary by a state marshal. The order restrained Zachary, inter alia, from coming within 100 yards of Amanda. Cynthia O'Connor, Zachary's mother, realized the difficulty caused by the 100-yard restriction since Amanda and Zachary attended the same high school and Zachary was about to take some examinations. Mrs. O'Connor drafted a motion to amend the restraining order, came to the courthouse the next day, and the court deleted the 100-yard restriction, thus allowing Zachary to attend school. He was required by the school to take his two examinations in the school office.
On March 23, 2005 Amanda called her mother from the school office at about 8:30 a.m. and said that she had seen Zachary three times that morning and that he had glared at her. Mrs. Meyer then contacted the Madison police department and demanded that Zachary be arrested for violating the restraining order. She also went to the school to complain. The police and the school refused to take action against Zachary. Mrs. Meyer then went to the Superior Court and filed a motion to hold Zachary in contempt for violating the restraining order when he allegedly passed Amanda three times and glared at her on each occasion. The court issued an order that Zachary attend a hearing at the Superior Court the next day and show why he was not in contempt. This motion for contempt was served on Zachary at his home by a state marshal. The next day the court agreed that the motion for contempt would be heard on March 29, 2005, when the application for relief from abuse was scheduled to be heard.
On March 29, 2005 the parties appeared before the Court (Munro, J.), and offered evidence in connection with the application for relief from abuse and the contempt motion. At the hearing the petitioner, Amanda Meyer, was represented by Mrs. Meyer, and the respondent, Zachary O'Connor, was represented by Attorney Maureen Murphy. After hearing several witnesses the court concluded that Zachary and Amanda had never had a dating relationship and therefore the court had no jurisdiction pursuant to Section 46b-15. The restraining order was terminated and the motion for contempt was denied.
On March 16, 2005, the day after obtaining the ex-parte restraining order from the Superior Court, Mrs. Meyer sent a letter to Dr. Betty Steinberg, the State of Connecticut Commissioner of Education, in which she recited her complaints about the alleged harassment of Amanda by Zachary. Copies of this letter were sent to Attorney General Richard Blumenthal, Bob Hale, Chairperson of the Madison Board of Education, Dr. Griffin, Mrs. Britton, Francis Thompson and the Madison Police Department. The letter referred to her previous reports on the matter and stated that "the situation continues and has escalated into a threat to my daughter's life," and that "m(M)y daughter's life was threatened by two students, one of whom is on suspension for making the threat and the other, Zachary O'Connor, is not." The letter indicated her dissatisfaction with the handling by the school authorities in Madison of the alleged harassment of her daughter and the alleged death threat. However, the letter did not indicate that the school and the police department had investigated the alleged death threat and both had concluded that no one had threatened Amanda's life. In response to this letter, Attorney General Blumenthal wrote to Chief Jakubson and Mrs. Britton indicating his extreme concern for the safety of the students at Hand.
The first two counts of the complaint allege claims of intentional infliction of emotional distress on behalf of the three O'Connor plaintiffs. The first count is directed at Carolyn Meyers and the second at Amanda. The plaintiffs' claim that the evidence in this case clearly supports their claims of intentional infliction of emotional distress. Our Supreme Court has recently articulated the elements which a plaintiff must prove in order to establish such a claim. "We recently reviewed the elements of a cause of action for intentional infliction of emotional distress in Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000)." In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986)." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 210.
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Petyan v. Ellis, supra, 200 Conn. 254 n. 5, quoting W. Presser W. Keeton, Torts (5th Ed. 1984) § 12, p. 60. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress. Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 19, 597 A.2d 846 (1991)." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 210-11. Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, (footnote omitted).
The court finds that Zachary has proven his claim of intentional infliction of emotional distress against Carolyn Meyer as alleged in the first count. Most of the complaints made by Amanda about Zachary's conduct were an overreaction on her part and were based on what she saw Zachary do or what she was told by someone else that Zachary had done. She would then complain, usually in tears, to her mother and the school office, and her mother would then overreact and complain to the school and others about Zachary's conduct. Mrs. Meyer believed that Zachary was harassing Amanda and she wanted him disciplined.
In connection with the photographs taken in Provincetown, Mrs. Meyer complained to Mrs. Britton that the pictures were of gay people and were offensive. The photographs were, in fact, pictures of gay people, but they were not offensive or inappropriate. However, Mrs. Meyer did not limit her complaints to a claim that she found the photographs offensive. On November 10, 2004 she filed a formal complaint with the Madison police department accusing Zachary of bringing pornographic photographs to school and showing them to Amanda and other students. The photographs were not pornographic. By this complaint she accused Zachary of committing the criminal act of obscenity even though she had never seen the photographs and she had never been told by anyone that the photographs were pornographic. The court finds that this conduct was extreme and outrageous. Zachary was very upset that a formal complaint accusing him of committing a crime had been made to the police department.
The conduct of Mrs. Meyer following the "gun incident" on March 9, 2004 was extreme and outrageous. Despite the fact that she knew that no one who had heard any part of the conversation between Craig and Zachary had claimed that Zachary had said he would "get a gun and kill" Amanda, she filed a false affidavit making this statement in order to get an immediate ex-parte restraining order. It was extremely upsetting to Zachary, a 15-year-old high school freshman, to be served with an order issued by a Superior Court judge which restricted his movements. He cried and felt helpless in being served with an order which he felt was based on lies. As a result of the restraining order he was required to take two final examinations in the school office which was very upsetting to him. He was escorted as he moved around the school. He was further upset when he was served with the motion to hold him in contempt for allegedly violating the order which had been issued based on a false affidavit filed by Carolyn Meyer. Mrs. Meyer repeated the claim that Zachary had threatened Amanda's life when she sent copies of her letter to the various officials as referred to earlier.
The court finds that when Mrs. Meyer filed a false complaint with the Madison police department alleging that Zachary, a 15-year-old high school freshman, had brought pornographic photographs to school and shown them to other students, which conduct constitutes the crime of obscenity (C.G.S. 53a-194), and when she falsely accused Zachary of threatening (C.G.S. 53a-62(a)1) in her application for relief from abuse, and when she persisted in falsely accusing Zachary of the crime of threatening in her letters to various officials, that she intended to inflict emotional distress upon Zachary or that she knew or should have known that emotional distress was the likely result of her conduct, that her aforesaid conduct was extreme and outrageous, that her aforesaid conduct was the cause of Zachary's distress and that the emotional distress sustained by Zachary was severe. The court awards Zachary the sum of $15,000 as fair, reasonable and just damages on the first count.
The court finds that Cynthia O'Connor and Daniel O'Connor have failed to prove their claims of intentional infliction of emotional distress as against Carolyn Meyer as alleged in the first count. While the court believes that they did suffer emotional distress as a result of Mrs. Meyer's accusations directed at Zachary, the court is unable to find that they have proven that such emotional distress rose to the level of severe as is required to prove such a claim.
The second count alleges claims of intentional infliction of emotional distress by the three O'Connor plaintiffs as against Amanda. The court finds that these claims have not been proven. At the time the events which form the basis of the claims in the second count occurred, Amanda was a 15-year-old high school freshman. She did not participate in all of the conduct that her mother engaged in. Amanda was upset because the mutual friends that she and Zachary had before their falling out seemed to be gravitating towards Zachary and away from her. This caused her to overreact to certain conduct by Zachary and to complain to her mother and to the school authorities, which probably exacerbated the rift between her and Zachary. However, her conduct did not rise to the level of intentional infliction of emotional distress.
The third count and fourth counts, respectively, allege claims of libel per se on behalf of Zachary as against Mrs. Meyer and Amanda, and the fifth and sixth counts, respectively, allege claims of defamation on behalf of Zachary as against Mrs. Meyer and Amanda. The term "defamation" includes libel. "Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him . . . Slander is oral defamation." (Citation omitted; internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn.App. 228, 234, 784 A.2d 376 (2001). Libel, which we are concerned with in the present case, is written defamation. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 611, 116 A.2d 440 (1955).
"While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod . . . A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication . . . When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover . . .
"Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . The distinction between libel per se and libel per quod is important because [a] plaintiff may recover general damages where the defamation in question constitutes libel per se . . . 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 to prove it . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him . . . Whether a publication is libelous per se is a question for the court." (Citations omitted; internal quotation marks omitted.) Battista v. United Illuminating Co., 10 Conn.App. 486, 491-92, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987).
"Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached." (Citations omitted.) Proto v. Bridgeport Herald Corp., 136 Conn. 557, 565-66, 72 A.2d 820 (1950).
"Moral turpitude, [our Supreme Court has] observed, is a vague and imprecise term to which no hard and fast definition can be given . . . A general definition applicable to the case before us 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). Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, p. 851-53 (2003).
The statements by Carolyn Meyer to the Madison police department concerning the photographs accused Zachary of conduct which constituted the crime of obscenity, and her false affidavit filed with the Superior Court, and her letters to various public officials claiming that he threatened to kill Amanda, were accusations of the crime of threatening. Obscenity and threatening are crimes which are punishable by imprisonment and are crimes involving moral turpitude. The plaintiff Zachary has proven his claim of libel per se as alleged in the third count as against Carolyn Meyer. The court awards Zachary the sum of $10,000 as fair, reasonable and just damages on the third count.
The court finds that the fifth count filed by Zachary as against Carolyn Meyer alleging defamation is duplicative of the third count and it is dismissed.
The court finds that Zachary has failed to prove his claim of libel per se and defamation as against Amanda as alleged in the fourth and sixth counts.
The seventh count alleges a claim of invasion of privacy by Zachary against Mrs. Meyer. It is alleged that Mrs. Meyer published what she knew were false statements regarding Zachary, that these statements placed Zachary in a false light that is highly offensive to a reasonable person, and that she acted with reckless disregard as to the falsity of the statements she published and the false light in which Zachary would be placed.
Our Supreme Court recognized a cause of action for invasion of privacy in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127 (1982). While the court adopted the four categories of invasion of privacy which are set forth in the 3 Restatement (Second) Torts Section 652A, the one which is applicable to the instant case is "publicity that unreasonably places the other in a false light before the public." "A number of state and federal courts have applied the Restatement rule that a false light invasion of privacy occurs if `(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.'" 3 Restatement (Second), Torts 652E; see Varnish v. Best Medium Publishing Co., supra; Logan v. District of Columbia, 447 F.Sup. 1328, 333 (D.D.C. 1978); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076, 100 S.Ct. 1024, 62 L.Ed.2d 759 (1980); Harrison v. Washington Post Co., 391 A.2d 781, 784 (D.C.App. 1978); McCormack v. Oklahoma Publishing Co., supra. This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, "or in other words, otherwise than as he is." 3 Restatement (Second), Torts 652E, comment b. The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true; id.; and (2) is such a "major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position." Id., comment c. Goodrich v. Waterbury Republican-America, Inc., 188 Conn. 107, p. 131 (1982).
The conduct on the part of Mrs. Meyer which Zachary alleges proves his claim of invasion of privacy by false light are the statements made to the school and to the Madison police department that Zachary was showing pornographic photographs to other students at Hand, and her false affidavit in court stating that Zachary had threatened to "kill" Amanda, which she repeated in her letters to the various officials. To be accused of that conduct would be highly offensive to a reasonable person. In addition, neither Mrs. Meyer nor Amanda had seen the photographs and Mrs. Meyer knew or should have known that if the photographs were in fact pornographic that the school authorities and the police would have taken some action. She had been told by both the school authorities and the police that no one had threatened Amanda's life and no one told her that such a threat had been made. To make these accusations against Zachary under all the circumstances demonstrates that Mrs. Meyer acted in reckless disregard as to the falsity of the publicized matters and the false light in which Zachary would be placed. When Mrs. Meyer made the false statements to the police, filed the false affidavit with the Superior Court, and when she made the accusations about death threats in the letters which she sent to the various officials, she gave publicity to the false charges. The court finds that the plaintiff Zachary has proven the allegations of the seventh count as against Carolyn Meyer. The court awards Zachary the sum of $10,000 as fair, reasonable and just damages on the seventh count.
The eighth count alleges a claim of vexations litigation by Zachary as against Carolyn Meyer. It is alleged that the application for relief from abuse filed by Mrs. Meyer on behalf of Amanda in the Superior Court constituted the institution of a civil action, that it was filed without probable cause, and with malice, and that said civil action was terminated in Zachary's favor.
The primary claim made by the defendants in their brief with respect to the vexatious litigation claim is that the proceedings in the Superior Court with respect to the application for relief from abuse do not constitute a "civil action" as that term has been discussed by our appellate courts. Our Supreme Court recently discussed the law concerning vexatious litigation in a case in which it ultimately concluded that an application for a prejudgment remedy is not a civil action.
"We begin with a brief review of the law of vexatious litigation in this state. The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages. Verspyck v. Franco, 81 Conn.App. 646, 647, 841 A.2d 267 (2004), rev'd on other grounds, 274 Conn. 105, 874 A.2d 249 (2005); see 8 S. Speiser, C. Krause A. Gans, American Law of Torts (1991) § 28:20, p. 113 ("The action for malicious prosecution 6 is a recognition of the right of an individual to be free from unjustifiable litigation . . . [and] has been extended into the field of wrongful initiation of civil suits . . . The purpose of the action is to compensate a wronged individual for damage to his reputation and to reimburse him for the expense of defending against the unwarranted action." [Citation omitted.]). In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. Both the common law and statutory causes of action "[require] proof that a civil action has been prosecuted . . ." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001). Additionally, to establish a claim for vexatious litigation at common law, one must prove "want of probable cause, malice and a termination of suit in the plaintiff's favor." Falls Church Group, Ltd v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). The statutory cause of action for vexatious litigation exists under § 52-568, 7 and "differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages." Id. In the context of a claim for vexatious litigation, "the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991).
"Because the prosecution of a civil action is a prerequisite to the filing of a viable vexatious litigation claim, we next consider what is required for the initiation of a civil action in this state. General Statutes § 52-45a provides the following procedure for initiating a civil action: "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable." 8 See Practice Book § 8-1(a) ("Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.").
"That civil actions must be commenced with a signed writ of summons or attachment is a matter of significance. As this court previously has opined, "[t]he subject of signing and issuing process in civil actions is one of consequence. Such signing is one of the processes of law by which a man may be deprived of his liberty and property. It is carefully guarded. It is not to be done indiscriminately . . . The signing of a writ by a person as a commissioner of the Superior Court is not a mere ministerial act . . . The canons of professional ethics require that a lawyer decline to institute an action if he is convinced that it is intended to harass or injure the opposite party or work an oppression or wrong." (Citations omitted.) Sharkiewicz v. Smith, 142 Conn. 410, 412-13, 114 A.2d 691 (1955); see Feldmann v. Sebastian, 261 Conn. 721, 729, CT Page 19381 805 A.2d 713 (2002) (noting that "writ of summons `shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable'"); Hillman v. Greenwich, 217 Conn. 520, 524-25, 587 A.2d 99 (1991) (This court noted that "[a] summons is part of a citation . . . [which] is a command to a duly authorized officer to summon the [defendant] . . . to appear in court on a specific day to answer the [complaint] . . . [T]he citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . . Without it, the officer would be little more than a deliveryman." [Citations omitted; emphasis added; internal quotation marks omitted.]); Brunswick v. Inland Wetlands Commission, 25 Conn.App. 543, 547, 596 A.2d 463 (1991) (noting that due process of law requires that writ commencing action be signed "by . . . a . . . commissioner of the Superior Court . . . or a . . . clerk of the court to which it is returnable" [internal quotation marks omitted]), rev'd on other grounds, 222 Conn. 541, 610 A.2d 1260 (1992); Sargent v. Capital Airlines, Inc., 96 Conn.App. 320, 325, 901 A.2d 55 (2006) (referring to "fatal [defect]" in case in which plaintiff failed to sign both writ of summons and complaint)." Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, pp. 553-56, (2008).
Connecticut General Statutes § 46b-15 is the statutory authority for the court proceeding which is the basis of the claim of vexatious litigation. That statute provides in part: "Any family or household member . . . who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section." Thus, by its terms, relief pursuant to this statute is limited to persons who have been physically abused or have been threatened with physical abuse by a family or household member, or by a person who has, or recently has had dating relationship with the applicant.
Adopting the reasoning of the Supreme Court in Bernhard-Thomas, wherein the court found that an application for a prejudgment remedy was not a civil action which would support a claim of vexatious litigation, the defendant compares the instant application with a prejudgment remedy application. The court finds that they are significantly different and that an application for relief from abuse process is a "civil action."
The process under § 46b-15 is initiated by a complainant, or someone on behalf of the complainant, as in this case, filing an application under oath for relief from abuse with the Superior Court. The affiant swears that the person seeking the relief has been physically abused or threatened with physical abuse by a person who is a family or household member, or a person who has, or recently had, a dating relationship with the applicant. By way of relief the applicant may seek a court order that the respondent refrain from imposing a restraint, from entering a dwelling, from threatening, harassing or assaulting the applicant, and to remain at least 100 yards removed from the applicant. If the applicant is seeking immediate relief she must allege in her affidavit that she is in immediate and present physical danger. The applicant must state the conditions from which she seeks relief. In this case Carolyn Meyer stated, "Respondent has made a threat during school to `get a gun and kill her.' Police have been notified as well as school."
If the documents are properly completed the court will order a hearing on the application not more than 14 days from the date of the application, and, if appropriate, grant the application ex parte. The complainant is ordered to serve a notice of the date and time of the hearing, a copy of the application, affidavit, and ex parte order if one was issued, on the respondent not less than five days before the hearing. The parties then appear at the hearing and present evidence with respect to the application. After hearing the evidence the court may dismiss the application, or issue such restraining orders as the court finds appropriate for a period of up to six months. Although the court is limited to a six-month period for any orders it issues, the statute provides that orders of the court "may be extended by the court upon motion of the applicant for such additional time as the court deems necessary." The violation of an order restraining the respondent from entering or remaining in a building or other premises constitutes the crime of criminal trespass in the first degree (Section 53a-107).
The respondent may appeal the issuance of a § 46b-15 restraining order, and the expiration of the restraining order does not make such appeal moot because of the "significant collateral consequences for the person subject to the order." See Putnam v. Kennedy, 279 Conn. 162 (2006). The Putnam case discusses at length the potentially serious consequences to a person who is the subject of a 46b-15 restraining order.
The Supreme Court has found that certain proceedings which have not been initiated in the manner in which a typical "civil action" is brought may be the basis for claims of vexatious litigation. In DeLaurentis v. New Haven, 220 Conn. 225, 248-49 (1991), the mayor of New Haven instituted proceedings to remove the plaintiff from his office as chairman of the New Haven parking authority, and then abandoned the removal proceedings after some evidence had been presented. The plaintiff thereafter brought suit against the mayor on various theories, one of which was vexatious suit. One of the defendants' claims was that such an administrative proceeding is not a "civil action" and therefore could not be the basis for a vexatious suit claim. The court rejected this claim and found that the administrative proceeding could adversely affect the legal rights of the plaintiff and that it qualified as a "civil action."
In Zeller v. Consolini, 235 Conn. 417 (1995), the plaintiff filed an action against the defendants seeking money damages based on a claim of vexatious litigation. The plaintiff was the owner of a large tract of land which had been the subject of a series of applications by the plaintiff before the Torrington planning and zoning commission and the Torrington inland wetland commission in an effort to construct a shopping mall on the property. Each of these applications were opposed, unsuccessfully, by the defendants before the commissions, at trial, and on appeal. The defendants then filed an application with the planning and zoning commission to rezone the plaintiff's property, which was the same property involved in the previous appeals, so as to prevent the construction of the shopping mall. The plaintiff then filed a protest against the defendants' application for a zone change of the plaintiff's property. The planning and zoning commission denied the application, the defendants appealed from that denial to the Superior Court, the plaintiff was granted permission to intervene in that appeal, and the appeal was dismissed by the trial court. The Supreme Court had no hesitation in finding that the zoning proceeding in which the defendants attempted to have the plaintiff's property rezoned was a civil action which had terminated in the plaintiff's favor.
The court finds on the eighth count that Zachary has proven that the proceedings in the Superior Court on the section 46b-15 application adversely affected his legal rights and constituted a civil action, and that Carolyn Meyer filed an affidavit with the Superior Court seeking an order restraining Zachary's conduct which she knew was false with respect to the claimed dating relationship between Zachary and Amanda, and which she knew was false with respect to the allegation that Zachary had threatened to "kill" Amanda. The affidavit was filed by Carolyn Meyer without probable cause, with malice towards Zachary, and the civil action was terminated in Zachary's favor. Zachary has proven his claim of vexatious litigation as alleged in the eighth count. Zachary has proven that the sum of $4,502.42 in attorneys fees was expended on his behalf by his parents in providing necessary counsel for him with respect to the § 46b-15 proceedings before the Superior Court. The court awards treble damages of $13,507.26 to Zachary on the eighth count.
The ninth count alleges a violation of Connecticut General Statutes § 52-572, (parental liability for torts of minors), and the tenth count alleges a common law negligence claim, both counts on behalf of the three plaintiffs as against Larrie Meyer. The eleventh and twelfth counts make similar claims as against Carolyn Meyer. All four counts are premised on allegations of misconduct by Amanda for which misconduct the plaintiffs seek to hold her parents responsible in damages. The court finds that the plaintiffs have failed to prove the allegations of counts nine, ten, eleven and twelve.
In each of the twelve counts of the complaint the plaintiffs are seeking, inter alia, punitive damages from the defendants. The plaintiffs claim that under the facts of this case they are entitled to punitive damages. "The occasion for awarding punitive damages is quite different from that of awarding compensatory damages under our `long-standing rules governing the award of punitive damages.' Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982). In Alaimo, we reiterated that rule: `Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional or wanton violation of those rights . . . If awarded, they are restricted to cost of litigation less taxable costs of the action . . .' Id., quoting Vandersluis v. Weil, 176 Conn. 353, 358-59, 407 A.2d 982 (1978); Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., supra, 238, Hall v. Smedley Co., 112 Conn. 115, 119-20, 151 A. 321 (1930). Moreover, punitive damages generally have the flavor of punishment against a defendant for the quality of his conduct and of deterrence to a defendant or others against such conduct in the future. See, e.g., W. Prosser, Torts (4th Ed. 1971) 2, p. 9; D. Dobbs, Remedies (1973) 3.9, pp. 204-05; Restatement (Second), Torts 908, comment a (Tent. Draft No. 19, 1973); D. Owen, `Punitive Damages in Products Liability Litigation,' 74 Mich. L.Rev. 1257 (1976). Such damages are, therefore, not doctrinally duplicative of compensatory damages, but rather serve `special, limited purposes other than compensation.' D. Dobbs, supra, 3.1, p. 135."
The court finds that the plaintiffs Daniel and Cynthia O'Connor have failed to prove that they are entitled to punitive damages. The court further finds that Zachary O'Connor has failed to prove that he is entitled to punitive damages as against Amanda Meyer or Larrie Meyer.
Zachary O'Connor has proven that he is entitled to an award for punitive damages as against Carolyn Meyers. The conduct of Carolyn Meyers towards Zachary as described throughout this memorandum demonstrated a reckless indifference to the rights of Zachary O'Connor or an intentional or wanton violation of his rights. These damages will consist of the cost of this litigation less taxable costs.
As referred to earlier, the defendants have filed eight "affirmative defenses" to the complaint. No credible evidence was offered in support of any of the special defenses and they have not been briefed by the defendants. The defendants have failed to prove any of the alleged special defenses.
In defense of the claims of intentional infliction of emotional distress and defamation the defendants in their brief have claimed that the statements of Carolyn and Amanda Meyer are absolutely privileged because they were made in furtherance of a judicial or quasi — judicial proceeding. They also have claimed in their brief that the alleged defamatory statements are factually true and that the defense of truth is an absolute defense to an allegation of defamation. Neither of these defenses have been specially pleaded by the defendants.
Privilege is an affirmative defense and must be specially pleaded and proved by the defendants. Miles v. Perry, 11 Conn.App. 584, 594 n. 8 (1987). State v. Whiteside, 148 Conn. 208 (1961). See Practice Book Section 10-50. Truth is also an affirmative defense and must be specially pleaded and proved by the defendants. Goodrich v. Waterbury Republican American, Inc., 188 Conn. 107 (1982), Dacey v. Connecticut Bar Association, 170 Conn. 520, 538 (1976), Bartlett v. Flaherty, 155 Conn. 203 (1967). See Practice book § 10-50. The court will not consider the defenses of privilege or truth because they have not been specially pleaded.
The court will not enter judgments at this time. In connection with punitive damages, the plaintiff Zachary O'Connor is ordered to file an affidavit with respect to attorneys fees and costs on or before December 15, 2008. The court will hear argument on the plaintiff's submission on December 19, 2008 at 2:00 p.m. in Courtroom 4D. If the parties are not in dispute with respect to the submission or have agreed on some alternative amount, they should so advise the court prior to the hearing date.