Gleason v. Smolinski , 149 Conn. App. 283 ( 2014 )

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MADELEINE GLEASON ET AL. v.
JANICE SMOLINSKI ET AL.
(AC 34990)
Alvord, Bear and Sheldon, Js.
Argued November 20, 2013—officially released April 8, 2014
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J. [motions to strike, summary
judgment; judgment]; Hon. Thomas J. Corradino, judge
trial referee [judgment].)
Steven J. Kelly, pro hac vice, with whom were Anne
T. McKenna, pro hac vice, and Christopher DeMarco,
for the appellants (named defendant et al.).
John R. Williams, for the appellee (named plaintiff).
Opinion
SHELDON, J. The defendants Janice Smolinski and
Paula Bell1 appeal from the trial court’s judgment in
favor of the plaintiff Madeleine Gleason2 on her claims
of intentional infliction of emotional distress and defa-
mation arising from the defendants’ conduct following
the disappearance in 2004 of Bill Smolinski, who is
Janice Smolinski’s son and Bell’s brother. The defen-
dants make six arguments as to why the judgment of
the court should be reversed: (1) the court erred in
failing to bar the plaintiff’s claims under the first amend-
ment to the United States constitution; (2) the trial
judge exhibited bias and partiality that constituted plain
error; (3) the court erred in relying on hearsay state-
ments to determine that the defendants intended to
inflict emotional distress upon the plaintiff; (4) there
was insufficient evidence to support the finding of inten-
tional infliction of emotional distress; (5) there was
insufficient evidence to support the finding of defama-
tion; and (6) the court erred in awarding compensatory
and punitive damages to the plaintiff. For the following
reasons, we disagree with the defendants and affirm
the judgment of the court.
The following facts and procedural history, as set
forth by the trial court in its memorandum of decision
filed August 10, 2012, are relevant to our resolution of
the foregoing claims. ‘‘The plaintiff Madeleine Gleason
is and was at the time of the events central to this case
a school bus driver. For a time, the young man whose
disappearance has never been explained worked at the
same company. They met there and [the plaintiff] began
dating the young man whom the court will refer to as
Bill Smolinski.3 Both of his parents and sister constantly
referred to him as ‘Billy,’ which, for the court, at least
underlines the affection in which he was held as [the]
only son to Mr. William Smolinski and Janice Smolinski,
the parents; and the only brother to Paula Bell. Janice
Smolinski and Paula Bell are the defendants in the case,
which was initiated by [the plaintiff] almost two years
after the disappearance of Bill Smolinski. . . .
‘‘[S]hortly after the disappearance of their son on
August 24, 2004, Mr. and Mrs. Smolinski and their daugh-
ter Paula Bell, started putting up missing persons post-
ers4 in various parts of the state. They then noticed
some of the posters were being torn down or vandalized
and discovered the plaintiff and a friend were engaged
in this activity. The two defendants . . . then pro-
ceeded to follow [the plaintiff] and videotaped her activ-
ities in this regard. [The plaintiff] claims the posters
were placed along her school bus route and generally
where she lived, worked, and conducted some of her
life activities. Eventually some of these activities led to
the plaintiff going to the Woodbridge police station,
where the defendants soon followed. A confrontation
took place between the parties.
‘‘[The plaintiff] claims the defendants’ activities inter-
fered with and damaged her monetarily by interfering
with her business of operating a school bus for a living.
She also says she was defamed by the defendants who
had characterized her as a murderer. She also states
that her right to privacy was invaded and that generally
the defendants intentionally inflicted great emotional
stress on her, causing her much anxiety and torment.
‘‘The defendants countered the allegations by saying
[that the] alleged actions critical of them were, generally
speaking, all lies. They deny entering a bus which [the
plaintiff] was driving or going on school property to
post a missing persons poster at a school where [the
plaintiff] brought and dropped off students. They deny
calling [the plaintiff] a murderer or harassing her on
the phone. The plaintiff and the defendants trade mutual
accusations about being followed by their respective
antagonists.’’
The court found that the defendants’ conduct consti-
tuted intentional infliction of emotional distress and
that their statements that the plaintiff was a murderer
or was involved in murder constituted defamation. The
court awarded the plaintiff compensatory damages of
$32,000 on her claim of intentional infliction of emo-
tional distress and $7500 on her claim of defamation,
for a total compensatory damages award of $39,500.
The court also awarded the plaintiff punitive damages
on both claims in an amount equal to one-third of the
plaintiff’s total compensatory damages award (i.e., one
third of $39,500, or $13,166.67). This appeal followed.
Additional facts will be set forth as necessary. We will
address each of the defendants’ claims separately.
I
FIRST AMENDMENT CLAIM
We turn first to the defendants’ argument that the
plaintiff’s claims are barred by the first amendment to
the United States constitution, which was not preserved
by the defendants at trial. The defendants argue that
their unpreserved claim nonetheless is properly before
this court because the requirements of State v. Golding,
213 Conn. 233, 567 A.2d 823 (1989), have been satisfied.
We disagree.
In Golding, our Supreme Court held that ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation clearly exists and
clearly deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail.’’ (Emphasis in original; footnote omitted.) Id., 239–
40. We conclude that the record is adequate for review
and that the defendants’ claim is of constitutional mag-
nitude because it alleges a violation of the fundamental
right to free speech under the first amendment to the
United States constitution.5 Thus, we turn our attention
to the third prong of Golding, namely, whether the
alleged constitutional violation clearly exists and
clearly deprived the defendants of a fair trial.
In support of their argument that a constitutional
violation clearly exists, the defendants claim that their
conduct constituted protected speech and that the court
should have dismissed the plaintiff’s claims against
them as barred by the first amendment. The defendants
assert that their speech related to a matter of public
concern because the missing person posters were
designed to uncover information about Bill Smolinski’s
disappearance, and to assist with the ongoing investiga-
tion and potential prosecution of a crime. The defen-
dants cite to Snyder v. Phelps, U.S. , 131 S. Ct.
1207, 179 L. Ed. 2d 172 (2011), in support of this asser-
tion. Such comparison to the public speech described
in Snyder, however, is unconvincing.
‘‘The Free Speech Clause of the First Amendment
. . . can serve as a defense in state tort suits, including
suits for intentional infliction of emotional distress.’’
Id., 1215. Whether the first amendment prohibits hold-
ing the defendants liable for their speech in this case
‘‘turns largely on whether that speech is of public or
private concern, as determined by all the circumstances
of the case. [S]peech on matters of public concern . . .
is at the heart of the First Amendment’s protection.
. . . The First Amendment reflects a profound national
commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.
. . . That is because speech concerning public affairs
is more than self-expression; it is the essence of self-
government. . . . Accordingly, speech on public issues
occupies the highest rung of the hierarchy of First
Amendment values, and is entitled to special protec-
tion. . . .
‘‘[N]ot all speech is of equal First Amendment impor-
tance, however, and where matters of purely private
significance are at issue, First Amendment protections
are often less rigorous. . . . That is because restricting
speech on purely private matters does not implicate
the same constitutional concerns as limiting speech on
matters of public interest: [T]here is no threat to the
free and robust debate of public issues; there is no
potential interference with a meaningful dialogue of
ideas; and the threat of liability does not pose the risk
of a reaction of self-censorship on matters of public
import.’’ (Citations omitted; internal quotation marks
omitted.) Id., 1215–16.
‘‘Speech deals with matters of public concern when
it can be fairly considered as relating to any matter of
political, social, or other concern to the community
. . . or when it is a subject of legitimate news interest;
that is, a subject of general interest and of value and
concern to the public. . . . The arguably inappropriate
or controversial character of a statement is irrelevant
to the question whether it deals with a matter of public
concern. . . .
‘‘Deciding whether speech is of public or private con-
cern requires us to examine the content, form, and
context of that speech, as revealed by the whole record.
. . . [T]he court is obligated to make an independent
examination of the whole record in order to make sure
that the judgment does not constitute a forbidden intru-
sion on the field of free expression. . . . In considering
content, form, and context, no factor is dispositive, and
it is necessary to evaluate all the circumstances of the
speech, including what was said, where it was said, and
how it was said.’’ (Citations omitted; internal quotation
marks omitted.) Id., 1216.
In Snyder, members of the defendant church congre-
gation stood on a plot of public land about 1000 feet
from a church and picketed the military funeral for the
plaintiff’s son by holding signs reflecting the defendant’s
views about homosexuality and the death of soldiers.
Id., 1213. The United States Supreme Court described
the defendant’s speech as follows: ‘‘The content of [the
defendant]’s signs plainly relates to broad issues of
interest to society at large, rather than matters of purely
private concern. . . . The placards read ‘God Hates the
USA/Thank God for 9/11,’ ‘America is Doomed,’ ‘Don’t
Pray for the USA,’ ‘Thank God for IEDs,’ ‘Fag Troops,’
‘Semper Fi Fags,’ ‘God Hates Fags,’ ‘Maryland Taliban,’
‘Fags Doom Nations,’ ‘Not Blessed Just Cursed,’ ‘Thank
God for Dead Soldiers,’ ‘Pope in Hell,’ ‘Priests Rape
Boys,’ ‘You’re Going to Hell,’ and ‘God Hates You.’ . . .
While these messages may fall short of refined social
or political commentary, the issues they highlight—the
political and moral conduct of the United States and
its citizens, the fate of our Nation, homosexuality in
the military, and scandals involving the Catholic
clergy—are matters of public import. The signs cer-
tainly convey [the defendant]’s position on those issues,
in a manner designed . . . to reach as broad a public
audience as possible. And even if a few of the signs—
such as ‘You’re Going to Hell’ and ‘God Hates You’—
were viewed as containing messages related to [the
plaintiff] or [the plaintiff’s family] specifically, that
would not change the fact that the overall thrust and
dominant theme of [the] demonstration spoke to
broader public issues.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Id., 1216–17.
The defendants argue that their challenged speech
pertaining to the search for information to assist with
a missing person investigation and potential prosecu-
tion of a crime relates to a matter of public concern,
and thus is protected by the first amendment. They
argue that their speech related to a matter of public
concern because all of the posters were located on
public grounds and none of the posters mentioned the
plaintiff by name. Insisting that their conduct consti-
tuted constitutionally protected speech, they argue that
the court erred by rendering a judgment of liability
against them. The plaintiff argues that the defendants’
conduct did not constitute speech, nor did it address
a matter of public concern. The plaintiff asserts that,
unlike in Snyder, the defendants’ conduct in posting
and displaying the challenged posters was not designed
or intended to communicate about a matter of public
concern to a broad public audience, but rather to target,
harass and upset the plaintiff personally in order to
‘‘break her.’’ Having heard testimony that the defen-
dants targeted the plaintiff by placing large quantities
of posters near where the plaintiff was residing at the
time, the court agreed with the plaintiff and found that:
‘‘[The plaintiff] lived with [her friend, Melissa DePallo]
for a short time . . . on a dead-end street, and her
house was definitely bombarded with flyers. There were
no other flyers on the whole street; the pole in front
of her house had twenty posters placed on it. When
they were taken down, they went up the next day; it
went on not just for the few months [that the plaintiff]
lived with DePallo, it went on for a year according to
her. [The plaintiff] testified that she lived with another
friend, who testified on her behalf, and that person’s
house was saturated with posters. . . . [The plaintiff]
also testified that when she returned to her own home
in Woodbridge, it, too, was saturated with posters—
the same pattern repeated itself at all three places where
she lived. The posters would go up, they would be taken
down and then appear the next day. [The plaintiff] also
testified that the defendants followed her and [that]
whenever they saw her called her insulting names. . . .
This evidence leads the court to credit the testimony
of the plaintiff [and] her friends . . . .’’ (Internal quota-
tion marks omitted.)
The court’s findings of fact support its conclusion
that the defendants’ placement of many of the posters
was targeted specifically at the plaintiff, for the defen-
dants’ admitted purpose of ‘‘trying to break [the plain-
tiff] . . . until [she] breaks down and gives them
information as to the whereabouts of their son and
brother who had been missing since August 24, 2004.’’
The court credited the evidence and testimony pre-
sented by the plaintiff and her witnesses, and found
that the defendants’ conduct was ‘‘extreme and offen-
sive . . . [and] cannot be accepted in a society built
on law.’’ The defendants argue that the context of the
speech and its connection to the plaintiff do not make
the subject of the speech any less about a matter of
public concern. While the content of the posters makes
no specific reference to the plaintiff, the court con-
cluded, and we agree, that the context and placement
of the posters was designed to ‘‘hound’’ the plaintiff
into providing the defendants with information about
the disappearance of Bill Smolinski, rather than to raise
a matter of public concern.
Because the defendants’ conduct, insofar as it tar-
geted the plaintiff, is not protected speech, their claim
of a constitutional violation resulting in the deprivation
of a fair trial fails to satisfy the third prong of Golding.
II
JUDICIAL BIAS CLAIM
The defendants next claim that the judge exhibited
bias by: (1) publicly committing himself, on the record
during trial, to the defendants’ liability and wrongdoing;
(2) admitting and relying upon hearsay evidence prof-
fered by the plaintiff; (3) holding in-chambers hearings
to protect the reputation of a local politician and wit-
ness Christian Sorensen; and (4) refusing to permit the
defendants’ repeated offers of evidence as to the
defense of truth, motive and witness credibility. The
defendants argue that this court’s failure to reverse the
judgment because of these alleged instances of judicial
bias would result in manifest injustice. We disagree.
The plaintiff asserts that the defendants’ claims must
fail because they did not file a motion for disqualifica-
tion pursuant to Practice Book §§ 1-22 and 1-23. Ordi-
narily, a ‘‘defendant’s claim of judicial bias must fail
because he did not file a motion for disqualification in
the trial court. We have repeatedly refused to consider
claims of trial court bias in the absence of such a motion.
. . . The fact that a trial court rules adversely to a
litigant, even if some of these rulings were to be deter-
mined on appeal to have been erroneous, does not dem-
onstrate personal bias.’’ (Citations omitted.) Bieluch v.
Bieluch, 199 Conn. 550, 552–53, 509 A.2d 8 (1986). This
court may, however, when presented ‘‘with an accusa-
tion of prejudice against a judge, which strikes at the
very core of judicial integrity and tends to undermine
public confidence in the established judiciary . . .
invoke [its] authority in the interests of justice to review
plain error not properly preserved in the trial court.’’
(Citation omitted; internal quotation marks omitted.)
Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d
915 (1982).
‘‘No more elementary statement concerning the judi-
ciary can be made than that the conduct of the trial
judge must be characterized by the highest degree of
impartiality. If he departs from this standard, he casts
serious reflection upon the system of which he is a
part. . . . In whatever he does, however, the trial judge
should be cautious and circumspect in his language and
conduct. . . . A judge should be scrupulous to refrain
from hearing matters which he feels he cannot approach
in the utmost spirit of fairness and to avoid the appear-
ance of prejudice as regards either the parties or the
issues before him. . . . A judge, trying the cause with-
out a jury, should be careful to refrain from any state-
ment or attitude which would tend to deny the
defendant a fair trial. . . . It is his responsibility to
have the trial conducted in a manner which approaches
an atmosphere of perfect impartiality which is so much
to be desired in a judicial proceeding.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 168–69.
It is evident when reviewing the record before us
that no such departure occurred in the trial court. The
defendants specifically claim that the following state-
ment made by the judge demonstrates judicial bias
because he publicly committed himself to the conclu-
sion that the defendants inflicted trauma on the plain-
tiff, causing her damage: ‘‘[T]he fact that it—that it
follows her wherever she goes and whatever she does,
just like they followed her wherever she went and what-
ever she did, that’s part of what’s happened to this
woman, and it’s part of the trauma that they’ve inflicted
upon her.’’ The defendants argue that this statement
reflects that the judge, prior to the conclusion of the
presentation of all of the evidence, credited the plain-
tiff’s testimony over that of the defendants and their
witnesses, and constitutes judicial bias.
When this statement is viewed in the proper context,
however, it is apparent that this statement was not
made by the court, but rather, was made by the plain-
tiff’s counsel. The context of the allegedly biased state-
ment, which occurred during the direct examination of
the plaintiff by her counsel, is as follows:
‘‘Q. Now, what, if any, reaction did you have to all
of these things that were being done to you?
‘‘A. Well—well, I thought it was over with in the
beginning, but every three months to maybe every four
and five months my name was in the paper and how
my children died, every single time. Every single time
I had to read how my daughter died and how my son
died. And when I called the Waterbury Police Depart-
ment about my son’s death, all they were concerned
with was Billy Smolinski; they didn’t even give a darn
about my son’s death. All I read in the paper is Madeleine
Gleason, how many times I was married and how many
children died; what did that have to do with their son
missing? My children—my daughter died before he
went missing, and two of my children died after he
went missing; of all people, I would know what it’s like
to lose a child, but these people all they do is keep
following me, harassing me. Every time I turn on the
news, it’s Madeleine Gleason, what does she have to
hide? And if you watch on the show, The Disappearance,
my name seventy times on the show. And all these
newspapers and these television shows are going by
what the Smolinskis are telling them; they’ve never
come to me and asked me what my story is. I never even
knew I was going to be on television until I watched it.
All these things that they say, it’s a love triangle. The
reason why Bill and I broke up, and they know this, is
because I was older than him, and I could not handle
the age difference. That’s the reason, it has nothing to
do with the other man. The other man and I had broken
up months before Billy and I even started seeing
each other.
‘‘Q. Now, how—how did these feelings that you had
affect your daily life?
‘‘A. They affected everything. My daughter died, she
has a daughter, I went to go get custody of my grand-
daughter, their lawyer used the Smolinski case for me
not to get my granddaughter. Then they—then they said
for me to go to counseling because there’s no way that
I could have my granddaughter. It took me—I’m up to
seven years fighting for custody of my granddaughter,
and it always brings up the Smolinski case, that the
reason why—it’s questionable whether I did any killing
or not.
‘‘[The Defendants’ Counsel]: Your Honor, I just want
to put in the air that the custody disposition, whatever
it may or may not be, is just not relevant.
‘‘[The Plaintiff’s Counsel]: It’s clearly part of the col-
lateral consequences.
‘‘[The Defendants’ Counsel]: It’s a completely differ-
ent tribunal, completely different setting; who knows
what facts they’re looking at.
‘‘[The Plaintiff’s Counsel]: You set in motion a chain
of events, and you’re responsible for the consequences.
‘‘[The Defendants’ Counsel]: If I may finish my objec-
tion that she’s supposing the basis for it.
‘‘The Court: I mean—I mean, do I take judicial notice
of what some other court did regarding custody?
‘‘[The Plaintiff’s Counsel]: No, I’m not asking that,
your Honor.
‘‘The Court: I can’t. Well, I can’t go there.
‘‘[The Plaintiff’s Counsel]: What I’m asking you to take
note of is her testimony that the subject was brought up
during that hearing, too, that she can’t get away from
what these people have done.
‘‘The Court: Yeah, But I can’t deduce—
‘‘[The Plaintiff’s Counsel]: I’m not asking—
‘‘The Court:—what—the reason she didn’t get the
granddaughter.
‘‘The Court [The Plaintiff’s Counsel]: Absolutely not.
I’m not asking you to. But the fact that it—that it follows
her wherever she goes and whatever she does, just like
they followed her wherever she went and whatever she
did, that’s part of what’s happened to this woman, and
it’s part of the trauma that they’ve inflicted upon her.
‘‘[The Plaintiff]: Plus, the kids on my bus—
‘‘The Court: Okay. There’s no question pending. I—
I’m not going to deduce from that that because of—
she’s just saying at a separate hearing—there could be
a hearing—I don’t want—this is a very stressful case,
but it could be a hearing in front of a—so, I don’t mean
to belittle what’s going on, it could be a hearing in front
of the zoning board where this is mentioned, so, I don’t
attach any importance to she’s not getting her grand-
daughter because of anything these people allegedly
did.’’ (Emphasis added.)
Although the transcript notes that this statement was
made by the court, common sense and context compel
the conclusion that the actual speaker of this statement
was the plaintiff’s counsel, as evidenced by the speak-
er’s explanation in support of the introduction of the
plaintiff’s testimony about a custody hearing, the out-
come of which the plaintiff relates to the defendants’
alleged conduct.6 Further, the speaker of the statement
immediately preceding the statement in question was
the court, which also supports the conclusion that the
identification of the court as the speaker of the state-
ment in question appears to be a scrivener’s error.
The actual statement made by the court during this
colloquy in no way demonstrates judicial bias. Rather,
the judge remained unbiased and neutral when stating,
‘‘I’m not going to deduce from that that because of—
she’s just saying at a separate hearing—there could be
a hearing—I don’t want—this is a very stressful case,
but it could be a hearing in front of a—so, I don’t mean
to belittle what’s going on, it could be a hearing in front
of the zoning board where this is mentioned, so, I don’t
attach any importance to she’s not getting her grand-
daughter because of anything these people allegedly
did.’’ (Emphasis added.) Contrary to the defendants’
assertion, the judge did not publicly commit himself to
the defendants’ liability and wrongdoing prior to the
conclusion of the presentation of all of the evidence.
In fact, the judge’s statement favors the defendants
because he declares that although the plaintiff testified
about the result of the custody hearing, he will not
attach any weight to any alleged impact of the defen-
dants’ alleged conduct on the outcome of that hearing.
The remainder of the defendants’ claims asserting
judicial bias on the basis of the judge’s alleged introduc-
tion of allegedly hearsay statements, in-chambers rul-
ings, and refusal to permit evidence as to the defense
of truth, motive and witness credibility are equally
unsupported by the record and do not constitute judicial
bias warranting reversal. The defendants, for instance,
claim that it is ‘‘astounding that, when the defendants
sought to introduce evidence of [the nolle prosequi]
disposition’’ of Janice Smolinski’s arrest for hanging
missing person posters, ‘‘the court refused to admit it
. . . .’’ (Citation omitted.) The defendants’ citation to
this portion of the trial transcript reveals, once again,
that when viewed in the entire context of the colloquy
regarding the evidence of the disposition of that arrest,
the defendants misconstrue the judge’s ruling in a base-
less attempt to support their claim of judicial bias. The
judge properly did not permit Woodbridge police Offi-
cer James Sullivan to testify on cross-examination
about the result of Janice Smolinski’s arrest on the
ground that such testimony would be hearsay. The
defendants completely disregard the fact that the judge,
did, however, inform counsel that ‘‘[y]ou can get an
official record’’ of the disposition of the arrest. Thus,
contrary to the defendants’ argument, the judge did not
refuse to admit evidence of the disposition of Janice
Smolinski’s arrest, but rather, he ensured that any such
evidence was admitted properly as an official record.
III
HEARSAY CLAIM
The defendants next claim that the court erred by
relying on alleged hearsay statements to find that the
‘‘hanging of posters in areas where the plaintiff lived
and worked [was] for the sole purpose of intimidating
and harassing the plaintiff.’’ The defendants assert that
such a finding was based on (1) Janice Smolinski’s
alleged statement to police that she was ‘‘trying to
break’’ the plaintiff; (2) Smolinski’s statements to the
Waterbury Observer; (3) and telephone calls to B and
B Transportation, Inc., the plaintiff’s employer, com-
plaining about the plaintiff. The plaintiff asserts that
the court’s findings were not based on inadmissible
evidence, and that the evidence about which the defen-
dants complain was either introduced by the defendants
themselves, or when offered by the plaintiff, was not
objected to by the defendants. We agree with the
plaintiff.
‘‘We have held generally that [t]he trial court has
broad discretion in ruling on the admissibility [and rele-
vancy] of evidence. . . . The trial court’s ruling on evi-
dentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion. . . .
Additionally, before a party is entitled to a new trial
because of an erroneous evidentiary ruling, he or she
has the burden of demonstrating that the error was
harmful. . . . The harmless error standard in a civil
case is whether the improper ruling would likely affect
the result.’’ (Citation omitted; internal quotation marks
omitted.) Urich v. Fish, 261 Conn. 575, 580–81, 804 A.2d
795 (2002).
In its memorandum of decision, the court noted that
the evidence before it on the plaintiff’s claim of inten-
tional infliction of emotional distress ‘‘include[d] not
only the trial testimony presented by both sides, but
police reports and several articles from the Waterbury
Observer, which reported on the disappearance. The
defendants did not object to the introduction of these
exhibits and in fact introduced Woodbridge and Water-
bury Police Department reports, which, in part,
repeated some of the information contained in the
police reports introduced by the plaintiff.’’ The court
advised that ‘‘[t]he newspaper articles will only be
referred to insofar as they contain explicit admissions
by the defendants. Interestingly enough, the transcript
indicates that her lawyer asked [Janice] Smolinski if a
couple of newspapers introduced into evidence had
been read by her. She said she had read them. She was
then asked if the articles were ‘substantially true and
accurate to the best of (her) knowledge’—answer, ‘A.
Absolutely. Yes.’ ’’ The court was justified in relying
upon such evidence, which was either introduced or
not objected to by the defendants and consisted of
damaging admissions by them.
As an example of such evidence, the defendants claim
that the judge relied upon hearsay statements contained
in Sullivan’s police report that Janice Smolinski was
hanging the missing person posters in an attempt ‘‘to
break’’ the plaintiff into giving her information about
her son’s disappearance. The defendants claim that they
‘‘objected to any testimony by Sullivan regarding what
was reported to him based on hearsay, but the court
allowed it.’’ The defendants conveniently disregard the
fact that after Sullivan testified, the plaintiff’s counsel
renewed his offer of Sullivan’s report as an exhibit, to
which the defendants’ counsel withdrew his previous
objections thereto. The court admitted the police report
as a full exhibit, to which the defendants’ counsel stated
that he ‘‘ha[d] no objection.’’ At trial, the defendants’
counsel abandoned his objection to the introduction of
this evidence, of which he now complains on appeal.
Such a claim that the court erred by relying on this
evidence is without merit.
IV
INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS CLAIM
The defendants next claim that the court misapplied
the law and facts relating to the plaintiff’s claim of
intentional infliction of emotional distress. Specifically,
the defendants assert that the evidence was insufficient
to establish the requirements of intentional infliction
of emotional distress and that the court erred by ignor-
ing the defendants’ justification for their alleged con-
duct. The defendants claim that the court erred by
relying solely on lay testimony to establish that the
defendants’ conduct was the cause of the plaintiff’s
distress and that such distress was severe. They argue
that where there are alternative theories as to the possi-
ble cause of a plaintiff’s emotional distress, the plaintiff
must rely on expert testimony to establish causation.
They also argue that the court erred by not considering
the possibility that there were alternative causes of the
plaintiff’s emotional distress.7 We disagree.
‘‘[W]here the factual basis of the court’s decision is
challenged we must determine whether the facts set
out in the memorandum of decision are supported by
the evidence or whether, in light of the evidence and
the pleadings in the whole record, those facts are clearly
erroneous. . . . In a case tried before a court, the trial
judge is the sole arbiter of the credibility of the wit-
nesses and the weight to be given specific testimony.
. . . On appeal, we will give the evidence the most
favorable reasonable construction in support of the ver-
dict to which it is entitled. . . . A factual finding may
be rejected by this court only if it is clearly erroneous.’’
(Internal quotation marks omitted.) Murphy v. Lord
Thompson Manor, Inc., 105 Conn. App. 546, 552, 938
A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976(2008).
‘‘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 plain-
tiff’s distress; and (4) that the emotional distress sus-
tained by the plaintiff was severe.’’ (Internal quotation
marks omitted.) Watts v. Chittenden, 301 Conn. 575,
586, 22 A.3d 1214 (2011). The evidence presented sup-
ports the court’s finding that the defendants’ conduct
inflicted severe emotional distress on the plaintiff. As
the court properly stated, it is not necessary for the
plaintiff to produce expert testimony in order to prove
the existence of emotional distress. See Oakes v. New
England Dairies, Inc., 219 Conn. 1, 14–15, 591 A.2d
1261 (1991) (‘‘we have previously rejected the proposi-
tion that proof of the existence of emotional distress
requires expert testimony’’ [citations omitted]).
The court concluded, on the basis of the evidence
before it, that the defendants engaged in ‘‘the hanging
of posters in areas where the plaintiff lived and worked
for the sole purpose of intimidating and harassing the
plaintiff. . . . This went on for months.’’ This conclu-
sion was supported amply by the testimony of the plain-
tiff’s employer, Brad Cohen, her friend, DePallo, and
the plaintiff herself. Specifically, the court recounted
Cohen’s testimony that ‘‘in traveling around several
towns, the posters were generally ‘well spaced out’—
at different poles.’ However, on [the plaintiff’s] school
bus run and at the house where she lived, ‘there were
multiple posters on each and every telephone pole, on
guardrails.’ He said you could easily do a run (school
bus route) by following the posters—‘they led down
every street, every side street, every nook and cranny
of—of these places.’ . . . Cohen also testified that
posters were placed at the entrance to his school bus
transportation business on either side of the driveway—
a driveway the plaintiff would have to enter and exit
at least four times daily.’’
The court also recalled the testimony of DePallo, who
works for another school bus company, and who stated
that the plaintiff’s ‘‘[school bus] run was definitely tar-
geted with flyers.’’ For a short time, the plaintiff lived
at DePallo’s home, about which DePallo testified, is
‘‘on a dead-end street, and her house ‘was definitely
bombarded with flyers.’ There were no other flyers on
the whole street; the pole in front of her house had
twenty posters placed on it. When they were taken
down, they went up the next day; it went on not just
for the few months [the plaintiff] lived with DePallo, it
went on for a year according to her.’’ The court also
summarized the plaintiff’s testimony ‘‘that when she
returned to her own home in Woodbridge, it, too, was
saturated with posters—the same pattern repeated
itself at all three places where she lived. The posters
would go up, they would be taken down and then appear
the next day. [The plaintiff] also testified that the defen-
dants followed her and [that] whenever they saw her
called her insulting names.’’
When determining whether the defendants’ conduct
constituted intentional infliction of emotional distress,
the court did not consider only the plaintiff’s testimony
and witnesses, but also the defendants’ testimony deny-
ing such conduct. Ultimately, the court ‘‘credit[ed] the
testimony of the plaintiff, her friends, and Mr. Cohen,’’
because although the defendants testified that they did
not engage in the conduct of hanging missing person
posters in order to harass the plaintiff, ‘‘other evidence
presented . . . [showed] that the defendants had a
strong motive to act in the way it was alleged by the
plaintiff.’’ The court’s conclusion that the defendants’
conduct caused the intentional infliction of emotional
distress of the plaintiff is supported by the record and
is not clearly erroneous.
The defendants also claim that the court erred by
rejecting their justification for their conduct. The defen-
dants assert that their intent was not to harm the plain-
tiff, but rather to uncover answers concerning Bill
Smolinski’s disappearance, about which they believed
the plaintiff had knowledge. There was, however, ‘‘no
evidence . . . presented as to why [the defendants]
could in fact believe it was a necessary aid to the loca-
tion of Bill Smolinski to hang posters along [the plain-
tiff’s] bus route.’’ The court carefully balanced the
evidence presented and even went so far as to remark
that ‘‘the [defendants] are to be admired for their persis-
tent efforts to bring Bill Smolinski’s disappearance and
their complaints to the highest levels of state govern-
ment and the federal authorities. One cannot help sym-
pathizing with their pain and frustration.’’ The court
added, however, that ‘‘what is unacceptable here and
worthy of finding of outrageous and extreme behavior
is the continuing aggravated nature of the defendants’
activity in hounding [the plaintiff] where she lived and
worked and engaged in the ordinary activities of life.
. . . Posters of a missing person were placed so as to
indicate to [the plaintiff] that the very purpose of the
poster campaign was to underline her supposed knowl-
edge of the criminal disappearance of Bill Smolinski.’’
(Citation omitted.)
The court’s finding that the defendants’ conduct was
extreme and outrageous and constituted intentional
infliction of emotional distress was not clearly errone-
ous on the basis of the record before it. Thus, we con-
clude that the court properly held that all of the
elements of the plaintiff’s claim of intentional infliction
of emotional distress were established.
V
DEFAMATION CLAIM
The defendants next claim that the court erred in
finding that certain statements made by the defendants
regarding the plaintiff constituted defamation. They
argue that none of the elements of defamation were
established by the evidence presented. We disagree.
As set forth in part IV of this opinion: ‘‘[W]here the
factual basis of the court’s decision is challenged we
must determine whether the facts set out in the memo-
randum of decision are supported by the evidence or
whether, in light of the evidence and the pleadings in
the whole record, those facts are clearly erroneous.’’
(Internal quotation marks omitted.) Murphy v. Lord
Thompson Manor, Inc., supra, 105 Conn. App. 552.
The court found three statements made by the defen-
dants to be defamatory. Specifically, it found two sets
of statements made to the plaintiff’s friends, Fran Vrabel
and DePallo, to be defamatory: (1) ‘‘Janice Smolinski
told [Vrabel] on several occasions that [the plaintiff]
‘did something to her son’ and that ‘she believes that
either [the plaintiff] or someone in her family murdered
her son’ ’’; and (2) ‘‘Janice Smolinski approached
[DePallo] and said you do not know what [the plaintiff]
is capable of; she said she does not believe [the plaintiff]
killed her son, personally, but she knows where he is
and [Janice] Smolinski thought ‘she’s involved.’ ’’ The
court also found the following statement made by the
defendants to an unidentified man at the plaintiff’s gym
to be defamatory: ‘‘[The plaintiff] drove to her gym, the
defendants were following her, and [the plaintiff] says,
‘a guy came and said those people (referring to the
Smolinskis) just followed you in and said you were a
murderer.’ ’’ As to the statements made to Vrabel and
DePallo, the defendants claim that these statements
merely represent Janice Smolinski’s opinion and there-
fore, cannot constitute defamation. As to the statement
to the man at the plaintiff’s gym, the defendants argue
that the court erred by admitting the statement because
it is hearsay and the identity of the speaker is unclear.
‘‘To establish a prima facie case of defamation, the
plaintiff must demonstrate that: (1) the defendant pub-
lished a defamatory statement; (2) the defamatory state-
ment 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.’’ Cweklinsky v. Mobil Chemical
Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). The plaintiff
must also ‘‘prove that the defendants acted with actual
malice . . . . Actual malice requires that the state-
ment, when made, be made with actual knowledge that
it was false or with reckless disregard of whether it
was false. . . . A negligent misstatement of fact will
not suffice; the evidence must demonstrate a purposeful
avoidance of the truth.’’ (Citation omitted; internal quo-
tation marks omitted.) Chadha v. Charlotte Hungerford
Hospital, 97 Conn. App. 527, 537–38, 906 A.2d 14 (2006).
Further, as the court explained, ‘‘defamations per se
are statements charging the plaintiff with commission
of a crime. . . . Traditionally, such statements are
actionable per se only if they charge the commission
of crimes of moral turpitude or infamous penalty . . . .
[W]hen the defamatory words are actionable per se,
the law conclusively presumes the existence of injury
to the plaintiff’s reputation.’’ (Citations omitted; internal
quotation marks omitted.)
‘‘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.’’ Lester
v. Powers, 596 A.2d 65, 69 (Me. 1991) ‘‘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 &
Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999).
‘‘[A]lthough 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 com-
ment 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 writ-
er’s opinion, or as a statement of existing fact.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Goodrich v. Waterbury Republican-Ameri-
can, Inc., 188 Conn. 107, 111–12, 448 A.2d 1317 (1982).
Here, the court properly concluded that all three
statements made by the defendants regarding the plain-
tiff were defamatory. Specifically, in its memorandum
of decision, the court set forth the necessary elements
of defamation as well as the evidence that it would
and would not rely upon when determining whether
defamation occurred.8 The court evaluated each ele-
ment required to prove defamation and concluded that
the statements were defamatory: ‘‘The statements to
DePallo and Vrabel say directly [that the plaintiff] was
a murderer or involved in the murder of Bill Smolinski.
The statements made to DePallo and Vrabel were obvi-
ously ‘published’ to them. The statement made to the
man at the gym was published to him. In all these
situations, [the plaintiff] was identified to the listener,
and since [the plaintiff] was being accused of murder
or involved with murder, the defamations are per se
accusations since murder clearly involves a crime of
‘moral turpitude’ or ‘infamous penalty.’ We do not have
here mere opinion—[the plaintiff] was said to be a mur-
derer or involved in a situation where murder
occurred.’’
The court went on to determine that the statements
were made with actual malice because ‘‘[t]here was
reckless disregard of whether the statements that were
alleged to have been made were truthful. We do not
have a case of mere negligent utterances not based on
fact but on suspicion and conjecture.’’ Last, the court
considered the defendants’ hearsay argument regarding
the statement to the man at the gym and determined
that ‘‘[s]uch a defamatory statement is not hearsay in
[this] slander action because the issue is whether the
statement was made, not whether it was true . . . .’’
(Citations omitted.) We conclude that the finding by
the court of defamation as to all three statements made
by the defendants clearly established all four elements
of defamation and was not clearly erroneous.
The defendants additionally claim that even if this
court agrees that the trial court properly determined
that these statements were defamatory, such state-
ments do not support a claim for damages because the
plaintiff suffered no resulting reputational harm. Our
Supreme Court has noted that although injury to the
plaintiff’s reputation is an indispensable element of a
defamation action, ‘‘[w]hen the defamatory words are
actionable per se, the law conclusively presumes the
existence of injury to the plaintiff’s reputation.’’ Urban
v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292(1952). In its memorandum of decision, the court
explained that ‘‘[l]ibel and slander divide into the cate-
gories of per quod and per se. Defamations per quod
are statements for which their defamatory character
becomes apparent only through consideration of extrin-
sic facts and circumstances . . . . A statement which
is defamatory by reason of innuendo falls within the
category of defamation per quod. . . . [A] category
encompassing defamation per se are statements charg-
ing the plaintiff with commission of a crime. . . . Tra-
ditionally, such statements are actionable per se only
if they charge the commission of a crime of moral turpi-
tude or infamous penalty . . . .’’ (Citations omitted;
internal quotation marks omitted.) The court con-
cluded, and we agree, that the defamatory statements
made by the defendants here were actionable per se,
and therefore, injury to the plaintiff’s reputation is pre-
sumed. Thus, we agree with the court’s finding of defa-
mation by the defendants and the resulting damages to
the plaintiff.
VI
DAMAGES CLAIM
The defendants last argue that the court erred in
awarding damages to the plaintiff in the absence of any
proffered evidence of damages. They claim not only
that the plaintiff failed to produce any evidence of dam-
ages in discovery or at trial, but also that the court
failed to explain how it arrived at the monetary figures
of its award. We are not persuaded by their argument.
‘‘The assessment of damages is peculiarly within the
province of the trier and the award will be sustained
so long as it does not shock the sense of justice. The
test is whether the amount of damages awarded falls
within the necessarily uncertain limits of fair and just
damages. . . . [W]e cannot disturb the decision of the
trial court unless there are considerations of the most
persuasive character. . . . The trial judge has a broad
legal discretion and his action will not be disturbed
unless there is a clear abuse. . . . The evidence offered
at trial must be reviewed in the light most favorable
to sustaining the verdict.’’ (Internal quotation marks
omitted.) Commission on Human Rights & Opportu-
nities ex rel. Arnold v. Forvil, 302 Conn. 263, 283, 25
A.3d 632 (2011).
‘‘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.’’ (Internal quota-
tion marks omitted.) Lyons v. Nichols, 63 Conn. App.
761, 768, 778 A.2d 246, cert. denied, 258 Conn. 906, 782
A.2d 1244 (2001).
‘‘[I]n order to award punitive or exemplary damages,
evidence must reveal a reckless indifference to the
rights of others or an intentional and wanton violation
of those rights.’’ (Internal quotation marks omitted.)
Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414(1992). ‘‘In awarding punitive damages . . . [t]he trial
court has broad discretion in determining whether dam-
ages are appropriate. . . . Its decision will not be dis-
turbed on appeal absent a clear abuse of discretion.
. . . Punitive damages are awarded when the evidence
shows a reckless indifference to the rights of others or
an intentional and wanton violation of those rights.’’
(Citation omitted; internal quotation marks omitted.)
Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009(2008). ‘‘Punitive damages, which in Connecticut are
limited to attorney’s fees less taxable costs . . . may
be awarded whether the defamation is actionable per
se or per quod. . . . Such damages, however, are not
awarded as a matter of right, but rather as a matter
of discretion, to be determined by the [court] upon a
consideration of all the evidence . . . .’’ (Citations
omitted; internal quotation marks omitted.) DeVito v.
Schwartz, 66 Conn. App. 228, 236, 784 A.2d 376 (2001).
The damages awarded in this case were clearly within
the province of the judge and fell within the ‘‘necessarily
uncertain limits of fair and just damages.’’ (Internal
quotation marks omitted.) Commission on Human
Rights & Opportunities ex rel. Arnold v. Forvil, supra,302 Conn. 283. The court, after thoroughly stating its
relevant findings of fact and bases upon which it found
the defendants liable to the plaintiff for the intentional
infliction of emotional distress and defamation, set
forth its award. As to the plaintiff’s claim of intentional
infliction of emotional distress, the court awarded com-
pensatory damages in the amount of $32,000, and as to
her claim of defamation, the court awarded compensa-
tory damages in the amount of $7500, for a total com-
pensatory damages award in the amount of $39,500.
Moreover, the court acted within its authority to add
punitive damages to the award for attorney’s fees and
costs in an amount equal to one-third of the total com-
pensatory damages award, or $13,166.67.9 The damages
awarded by the court can hardly be considered to
‘‘shock the sense of justice’’ under our standards of law.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also sued John Murray, the owner, publisher and editor of
a monthly newspaper, the Waterbury Observer, for invasion of privacy and
intentional infliction of emotional distress. Murray filed a motion to strike
the claims against him, which the court granted on July 20, 2009. He then
moved for summary judgment because all of the counts directed at him had
been stricken by the court. The court granted Murray’s motion for summary
judgment on January 12, 2010. Thus, none of the claims in this appeal pertain
to Murray.
2
The plaintiff’s employer, B and B Transportation, Inc., was an original
plaintiff in this action, pleading claims against the defendants for trespass,
and tortious interference with business relationships and expectancies. On
July 30, 2011, B and B Transportation, Inc., withdrew its claims against the
defendants and is no longer a party to this action.
3
The plaintiff met Bill Smolinski during their mutual employment as bus
drivers at B and B Transportation, Inc., and began dating. Shortly after
they began dating, Bill Smolinski ended his employment with B and B
Transportation, Inc., and his relationship with the plaintiff. About one year
later, Bill Smolinski and the plaintiff began dating again. The plaintiff eventu-
ally broke up with Bill Smolinski because she ‘‘was older than him and [she]
could not handle the age difference . . . .’’ The plaintiff reported to Water-
bury police Sergeant Edward Apicella on August 3, 2005, during the course
of the police department’s investigation of Bill Smolinski’s disappearance
that ‘‘she [had] met Bill Smolinski and had known him for over a year from
the time that he went missing on 08/24/04, Tuesday. She said that she met
him from driving a bus. She said that during the course of their friendship
she began a relationship with him. She said that prior to her relationship
with Bill she was having an affair with Chris Sorensen and she is currently
continuing to have that affair. She said that she believed Bill suspected/
knew of her having an affair with Chris for a time but she didn’t actually
tell him until she went on a trip to Florida with Bill. She said that it came
to [a head] when they went on a trip to Florida the week prior to August
22, 2004. She said that she was getting phone calls on her cell phone . . .
while they were on a beach in Florida. Bill grabbed the cell phone from her
and was trying to see who was calling her. [The plaintiff] said that when
she tried to get the phone from him he hit her and they had a fight. She
began to yell at people on the beach to call the police because Bill was not
giving her cell phone. She never made a report to the police and she eventu-
ally got her phone back. Bill told her that he wanted to end the relationship
because he wanted more out of it. He didn’t want to be with her if the
relationship was going nowhere. She agreed and they returned from Florida
with Bill on August 22 (Sunday). [The plaintiff] went on to say that she had
been married three times, she liked Bill but she didn’t need to baby-sit a
31 year old guy who liked to drink and fight. She said that Bill used to go
to the Outside Inn (Hamilton Ave.) and get into fights all the time. She also
claimed that Bill started to smoke drugs (did not specify type). She said
she was already involved with Sorensen as well. It was [Bill’s] idea to break
up but she agreed. . . . [The plaintiff] said that she got a call from Chris
saying that someone left a message on his answering machine that said You
better watch your back at all times. [The plaintiff] heard the message and
she said that it was Bill Smolinski.’’ The plaintiff’s testimony conflicts with
the preceding statement that she gave to the police, as she testified that
she and ‘‘[t]he other man . . . had broken up months before [she and] Billy
. . . even started seeing each other.’’
The trial testimony revealed that because of the plaintiff’s alleged affair
with Sorensen, a local, married politician, the defendants formed the belief
‘‘[t]hat [the plaintiff] was in a love triangle with their son and . . . another
fellow . . . and that he had gone missing, and that they assumed and they
thought that [the plaintiff] had done something to him that he had gone
missing.’’
4
The evidence shows that the missing person posters that were hung by
the defendants consisted of photographs and physical descriptions of Bill
Smolinski as well as information about his disappearance, an offer of a
reward, and contact information to report tips to the police.
5
Although the defendants did not expressly invoke the fourteenth amend-
ment to the United States constitution, it is axiomatic that the first amend-
ment applies only to the states through the due process clause of the
fourteenth amendment. For convenience, we will refer to this claim as the
defendants’ first amendment claim.
6
See, e.g., State v. Blue, 230 Conn. 109, 113 n.3, 644 A.2d 859 (1994) (‘‘[T]he
transcript indicate[d] that it was the ‘Court’ that said ‘I understand what
you’re saying, yes.’ It is clear, however, from the response and its context
that this was a typographical error, and that in fact the response was that
of the defendant.’’).
7
The defendants proffer the following theories as alternative causes for
the plaintiff’s emotional distress: the death of the plaintiff’s daughter by
suicide one month before Bill Smolinski’s disappearance; the death of the
plaintiff’s son by drug overdose in the year following the disappearance;
the death of another one of the plaintiff’s children; the plaintiff’s breakup
with Bill Smolinski; and the plaintiff’s publicly revealed relationship with
Sorensen.
8
The court explained that when determining whether defamation occurred
here, it would not rely upon the testimony of Cohen, the plaintiff’s employer
and the owner of B and B Transportation, Inc., in which he described
telephone calls he received from customers of his school bus company
expressing their concerns about the plaintiff because none of these custom-
ers was identified or called as a witness in this case. The court also did
not consider the statements made by the defendants on certain television
programs or to the Waterbury Observer in the plaintiff’s defamation claim
because no transcripts of the television programs were introduced into
evidence and the articles published by the Waterbury Observer do not focus
on the plaintiff ‘‘as the perpetrator of a crime or as one involved in it.’’
9
See DeVito v. Schwartz, supra, 66 Conn. App. 236 (‘‘Punitive damages,
which in Connecticut are limited to attorney’s fees less taxable costs . . .
may be awarded whether the defamation is actionable per se or per quod.
. . . Such damages, however, are not awarded as a matter of right, but
rather as a matter of discretion, to be determined by the [court] upon a
consideration of all the evidence . . . .’’ [Citations omitted; internal quota-
tion marks omitted.]).