Opinion
No. CV 06-4021332
August 1, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this four-count second revised complaint, plaintiff alleges that he was required to take a urine drug test at defendant's laboratory; that a "quick test" showed traces of PCP which was reported to his employer CM Warehouse; that as a result he was terminated the same day but later reinstated after an arbitration proceeding; that it was inappropriate for the defendant to inform plaintiff employer of the drug test results and that the test results were inaccurate. The first count alleges defamation; the second count alleges violation of privacy by way of publicity that placed him in a false light; the third count alleges intentional infliction of emotional distress; the fourth count alleges negligent infliction of emotional distress.
By motion dated February 28, 2006 defendant moved to strike the second and third counts, as well as the second, third and fourth claims for relief.
I.
The Connecticut Supreme Court has adopted a two-prong test for a cause of action in false light: "(a) 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." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 131, 438 A.2d 1317 (1982), quoting 3 Restatement (Second), Torts § 652E, p. 394 (1977).
A finding of reckless disregard requires "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." Woodcock v. Journal Publishing Co., 230 Conn. 525, 546, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995).
The plaintiff alleges that the defendant's technician acted wholly improperly when he disclosed the test results to the plaintiff's employer because the results "were not based upon sound scientific practices and/or procedures and were inaccurate." On the other hand, the plaintiff fails to allege that the defendant knew that the results were false, nor does the plaintiff allege any possibility of recklessness on the part of the defendant in his complaint.
In Herring v. Radding Signs, Superior Court, judicial district of New Haven, Docket No. CV 99-0427523 (February 9, 2000, Alander, J.), the court, citing Woodcock v. Journal Publishing Co., supra, 230 Conn. 525, found that "[t]he standard governing the tort of false light invasion of privacy is similar to the standard governing the tort of defamation concerning a public official or public figure." Id.
The court in Herring granted the defendant's motion to strike on the ground that the plaintiff failed to allege any facts that showed that the defendant knew that the published material concerning the plaintiff was false or that it published the material with reckless disregard for its falsity.
II.
Furthermore, a cause of action in false light requires allegations that the words were published. See Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 131; 3 Restatement (Second) Torts, Invasion of Privacy § 652D, comment (a), pp. 384-85 (1977).
According to 3 Restatement (Second) Torts, Invasion of Privacy § 652D, comment (a), pp. 384-85 (1977), whereas "`publication' includes any communication by the defendant to a third person[,] `[p]ublicity' . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication . . . It is one of a communication that reaches, or is sure to reach, the public . . . The distinction . . . is one between private and public communications . . . Therefore, `publication' can involve communication that is made in private or public. But, `publicity' can only involve communication that is made in public. Where a plaintiff fails to allege facts relating to publicity, the complaint will fail for insufficiently pleading a cause of action for invasion of privacy by false light . . . While there is no `magic number' of persons which constitute a public audience for purposes of invasion of privacy causes of action, there must be some claim that false and highly offensive information about the plaintiff was made in public, and not merely that it was published." Kindschi v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 06-4022391 (November 28, 2006, Robinson, J.).
Here, the plaintiff alleges that the information was released to one person, Giordano.
At least one Superior Court decision has granted a motion to strike where plaintiff has failed to allege the requisite element of publicity. Senior v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 01-0808241 (January 14, 2002, Peck, J.) (31 Conn. L. Rptr. 268).
It is concluded that the allegations in the second count are insufficient to sustain a cause of action for "false light."
III.
The third count, alleging intentional infliction of emotional distress is insufficient because it fails to allege that defendant intended to inflict emotional distress on the plaintiff and because the conduct alleged cannot be considered extreme or outrageous.
Appleton v. Board of Education, 254 Conn. 205, 210 (2000).
Motion to strike second and third counts is granted.
IV.
Plaintiff's second, third and fourth claims for relief have no basis in Connecticut law and are therefore stricken.