Opinion
No. CV-10-6004385
July 15, 2011
MEMORANDUM OF DECISION
I. Background
The plaintiff, Carrie C. Zello, alleges in a two-count complaint that the defendant, Avis Birk, caused her injury in libel per se and slander per se and through intentional infliction of emotional distress. Based on the trial testimony and exhibits, the court finds the following facts.
On January 14 and 15, 2010, the plaintiff conducted a first aid course at Pratt and Whitney, where she was employed. Pratt and Whitney authorized the course, which the American Heart Association (AHA) sponsored. Three employees of Pratt and Whitney attended the course: Kirk Rosemond, Elim Pinado and the defendant.
After the conclusion of the course, on January 17, 2010, the defendant wrote a letter (Pl.s Ex. 1) that she sent to the AHA and Jeff Brooks, a manager at Pratt and Whitney. In the four-page letter, the defendant made derogatory statements about the plaintiff's professional abilities and physical capacities including, among other things, the plaintiff's incapacity to teach according to the video that she showed the students and her inability to function because of her disabilities. (Pl.'s Ex. 1.) The defendant also suggested that the AMA should monitor the plaintiff and cancel her instructor license because of her failure to teach proper techniques. (Pl.'s Ex. 1.) Additionally, the defendant wrote that the plaintiff was "very unprofessional and a liar." (Pl.'s Ex. 1.) The defendant concluded the letter by writing that the plaintiff "needs to be stopped as soon as possible." (Pl.'s Ex. 1.)
The defendant admits writing this letter, and both parties agreed to admit the letter into evidence.
Prisco Monico, the plant protection officer and union steward for Pratt and Whitney in Middletown, testified that he had conversations with the defendant, in which she discussed the contents of the letter. He testified that he had a copy of the letter but was uncertain as to how he received it.
The two other employees who attended the course besides the defendant also testified at trial. Rosemont testified that the plaintiff communicated clearly and answered questions. Pinado did not think the plaintiff was a liar or unprofessional. At the conclusion of the course, they both filled out evaluation forms and gave the plaintiff the highest possible ratings. (Pl.'s Ex. 2 and 3.)
At trial, Rosemont and Pinado identified their respective evaluation forms.
The plaintiff testified at trial that the statements in the defendant's letter affected her in a number of ways both physically and mentally. She became physically ill, experienced episodes when she would throw up and had panic attacks. Additionally, she had nightmares and could not sleep. Furthermore, the plaintiff was affected mentally and had to see a psychiatrist. She was unable to work and did not work for a period of six months because of her mental and physical condition.
II. Discussion Libel Per Se and Slander Per Se
The plaintiff alleges that the defendant committed two torts of defamation: libel per se and slander per se.
Our courts have defined the elements of prima facie defamation. "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement . . . Additionally, to recover punitive damages, a plaintiff must prove actual malice . . ." (Citations omitted; internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009). "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." Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999).
"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 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111-12, 448 A.2d 1317 (1982).
The court makes the following findings. The defendant's letter stated, among other things, that the plaintiff was a liar and unprofessional and taught the class contrary to the video. (Pl.'s Ex. 1.) Additionally, the letter stated that the AHA should cancel her instructor license and that the plaintiff should be stopped as soon as possible. (Pl.'s Ex. 1.)
The defendant argues that the statements in the defendant's letter were true. The court disagrees and makes the following findings. There was no evidence presented at trial that any of the allegations made in the defendant's letter were true. In fact the testimony and the evaluations of the other students established quite the opposite — that the plaintiff was professional. There was absolutely no evidence presented by anyone that the plaintiff was a liar. The defendant, who also testified at trial, disagreed with some of the things that the plaintiff may have said but there certainly was no evidence that the plaintiff lied.
The court finds that the statements about the plaintiff that the defendant published in her letter to the AHA and Brooks were defamatory, that they could only be intended to injure her reputation since the letter called for her instruction license to be cancelled, that her reputation was injured, and that the plaintiff herself was injured as a result. The court accepts the credible testimony of the plaintiff as to how this letter and the allegations both written and spoken affected her physically and mentally.
First, the plaintiff argues that the defendant's letter was libelous per se. The court agrees. "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 . . . Libel . . . is written defamation . . .
"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.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
"[L]ibel 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 . . . Slander is actionable per se if it charges incompetence or dishonesty in office, or charges a professional person with general incompetence . . . Libel or slander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached." (Citations omitted; internal quotation marks omitted.) Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A.2d 199 (1987).
The court finds the defendant's letter was libelous per se because the defamatory meaning was apparent on the face of the letter and that it charges the plaintiff with improper conduct or lack of integrity. In her letter, the defendant wrote, among other things, that the plaintiff was "very unprofessional and a liar." (Pl.'s Ex. 1.)
The defendant argues that pursuant to General Statutes § 52-237, the plaintiff must prove actual damages because she did not ask the defendant for a retraction and has not proved that the defendant acted with malice in fact. The plaintiff counters that since her action is not a libel action but rather libel per se, the requirement that she request a retraction should not apply. Alternatively, the plaintiff argues that if the court applies the retraction requirement to the present case, she still would not be barred from recovering general damages or punitive damages because she has proved that the defendant published the letter with malice in fact.
Section 52-237 provides: "In any action for a libel, the defendant may give proof of intention; and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, the plaintiff shall recover nothing but such actual damage as the plaintiff may have specially alleged and proved."
"[Section 52-237] provides that a plaintiff in a libel action is entitled to recover only alleged and proven special damages unless she shows `malice in fact' or a failure by the defendant to publish a retraction upon the plaintiff's written request. Where the plaintiff is not a public figure, the plaintiff need only prove a negligent misstatement of fact in order to recover special or actual damages, regardless of whether a retraction was sought." Miles v. Perry, supra, 11 Conn.App. 604-05.
"Under Connecticut law, where the plaintiff proves `malice in fact,' she is entitled to recover general damages, even if no retraction has been demanded, or if special damages have neither been alleged nor proved . . . The plaintiff must prove by a fair preponderance of the evidence `malice in fact' in order to recover general damages . . ."
Moreover, the statute applies only to libel, and not to defamation actions involving slander. (Citations omitted.) Miles v. Perry, supra, 11 Conn.App. 605-06. "Connecticut courts have defined malice in fact as any improper or unjustifiable motive." Haxhi v. Moss, 25 Conn.App. 16, 19, 591 A.2d 1275 (1991).
The court need not address the issue of whether § 52-237 only applies to libel action and not to libel per se actions because the court finds that the plaintiff has proved the defendant acted with malice in fact. Therefore, the plaintiff may recover general damages and does not have to plead or prove actual damages despite the fact she did not seek a retraction.
Next, the plaintiff argues that conversations that the defendant had with Monico regarding the letter constituted slander per se. The court agrees. The court finds that the defendant discussed the contents of the letter with Monico. Because the defendant's letter stated that the plaintiff was "very unprofessional and a liar," it is natural to assume that the defendant charged the plaintiff with general incompetence during her conversations with Monico. Such conversations constitute slander per se.
Intentional Infliction of Emotional Distress
The plaintiff also alleges that the defendant's actions constitute an intentional infliction of emotional distress. "To prove intentional infliction of distress, the plaintiff must demonstrate (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result [from] 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." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 182-83 n. 9, 994 A.2d 666 (2010).
"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!" (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569-70, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
The court finds that the defendant intended to inflict emotional distress, that her conduct was extreme and outrageous, that such conduct was the cause of the plaintiff's distress and that the emotional distress suffered by the plaintiff was severe.
Damages
The court finds that damages incurred by the plaintiff as a result of the defendant's libel per se, slander per se and intentional infliction of emotional distress including punitive damages is $30,000. The court renders judgment in the amount of $30,000.