DocketNumber: No. CV 01-0095518S
Citation Numbers: 2002 Conn. Super. Ct. 2729
Judges: SHAPIRO, JUDGE OF THE SUPERIOR COURT.
Filed Date: 3/5/2002
Status: Non-Precedential
Modified Date: 7/5/2016
The plaintiffs brought a seven count complaint dated June 15, 2001 against the defendants alleging five counts of defamation, one count of invasion of privacy and one count of intentional infliction of emotional distress.
On October 29, 2001, the defendants filed the instant motion to strike (#103) each of the seven counts of the complaint. The defendants claim that the first, second, third, fourth and fifth counts fail to allege statements that can be considered defamatory as a mailer of law and that these counts fail to allege any reputational or special damage. As to the sixth count, the defendants claim that it should be stricken for failure to allege conduct highly offensive to a reasonable person, failure to allege appropriation of plaintiffs' names or likenesses for defendants' advantage and failure to allege intrusion upon the plaintiffs' seclusion. Finally, as to count seven, the defendants claim that the plaintiffs have failed to allege conduct that can be considered outrageous as a mailer of law and have failed to allege that the defendants intended or knew that emotional distress might result from their conduct.
On November 7, 2001, the plaintiffs filed their brief in opposition to the motion to strike (#104). On November 29, 2001, the defendants filed their reply memorandum in support of the motion to strike (#105). The court heard oral argument at short calendar on December 3, 2001, and after reviewing the pleadings submitted by the parties concerning the motion, and considering their arguments, now issues this memorandum of decision.
In opposition, the plaintiffs claim that those counts which allege that the defendants falsely accuse the plaintiffs of operating an illegal boarding kennel constitute libel per se because the subject allegations can be construed to imply that the plaintiffs are guilty of larceny by taking money from consumers under false pretenses. Therefore, the plaintiffs argue that allegations of special damages are not required. Further, the plaintiffs contend that by alleging that the plaintiffs suffered humiliation, embarrassment and emotional distress, and incurred economic loss, they have alleged special damages.
"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. [The] court has delineated specific categories of speech deemed actionable per se where the defamatory meaning of [the speech] is apparent on the face of the statement. . . ." (Citations omitted; internal quotation marks omitted.) DeVito v. Schwartz,
The plaintiffs do not allege that they have suffered injury to their reputation. Since this is one of the required elements for a prima facie case of defamation, counts one and three are legally insufficient.
Additionally, the plaintiffs have failed to plead a cause of action for slander per se. "When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation. He is required neither to plead nor to prove it." (Internal quotation marks omitted.) Olivas v. DeVivo Industries, Inc., Superior Court, judicial district of Danbury, Docket No. 335908 (February 26, 2001, Hiller, J.) "We have recognized slander to be actionable per se where the utterance falsely charges a crime involving moral turpitude or to which an infamous penalty is attached." Moriarty v. Lippe,
Connecticut General Statutes §
"When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs' reputation. He is required neither to plead not to prove it . . . The rule is different, however, when the defamation is actionable per quod. There, the law indulges in no such presumption. For this reason, injury to the reputation must be alleged and proved as an essential link between the slanderous utterances and the special damage which constitutes the basis of recovery in actions per quod." (Citations omitted.) Urban v. HartfordCT Page 2733Gas Co.,
Since the plaintiffs have failed to allege a cause of action for defamation per se and have failed to plead any damage to their reputation, the plaintiffs have failed to allege legally sufficient causes of action in counts one and three. The motion to strike counts one and three is granted.
Just as with counts one and three, the plaintiffs have failed to allege any injury to their reputation in counts two, four and five. Therefore, unless these counts constitute defamation per se, they too are legally insufficient.
General Statutes §
Furthermore, "[t]o 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.,
Accordingly, the causes of action for defamation alleged in each of counts two, four and five are legally insufficient. The motion to strike counts two, four and five is granted.
The defendants have moved to strike this count, arguing that this count is legally insufficient because it "fails to allege conduct that is highly offensive to a reasonable person, fails to allege the appropriation of the plaintiffs' names or likenesses for the defendants' benefit or advantage and fails to allege intrusion upon the plaintiffs' physical seclusion or solitude." (Defendants' motion to strike, p. 1.) In opposition to the motion to strike, the plaintiffs claim that their allegations in count six are identical to those in Goodrich v. WaterburyRepublican-American, Inc.,
"Connecticut first recognized the tort of invasion of privacy inGoodrich v. Waterbury Republican-American, Inc.,
"Our Supreme Court has described the four types of invasion of privacy: (1) appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's physical solitude or seclusion; (3) publicity, of a highly objectionable kind, given to private information about the plaintiff even though it is true and no action would lie for defamation; and (4) publicity which places the plaintiff in a false light in the public eye." (Internal quotation marks omitted.) Honan v. Dimyan,
In Count six, the plaintiffs vaguely allege publicity "to third persons whose identities are presently unknown to the plaintiffs." (Paragraph four). "[I]t is not an invasion of the right of privacy . . . to communicate a fact concerning the plaintiffs private life to a single person or even to a small group of persons." Olivas v. DeVivo Industries,Inc., Superior Court, judicial district of Danbury, Docket No. 335908 (February 26, 2001, Hiller, J). While this count does not sufficiently allege publicity in order to be a legally sufficient cause of action for invasion of privacy, the defendants do not state this as a ground for their motion to strike. The defendants do mention it in their memorandum of law in support of motion to strike complaint (#103.50), but this is not enough to support the granting of a motion to strike this count for this reason. Bouchard v. People's Bank,
The defendants do argue in their motion to strike that the plaintiffs fail to allege conduct highly offensive to a reasonable person. Therefore, the court must first determine if the information allegedly publicized would be protected such that its publication would be considered highly offensive to a reasonable person. There is a "three-part test to determine whether a reasonable person would consider information to be a private fact: (1) whether the plaintiff voluntarily revealed the information or actively sought to keep it private; (2) whether the matter involves some social value, nature of which is decided by the fact finder; and (3) whether the information is of any relevance to any ongoing public debate."Smith v. Hartford, Superior Court, Complex Litigation Docket at Tolland, Docket No. 70792 (July 14, 2000, Bishop, J.)
The Connecticut Supreme Court has "listed the following as examples of personal and private information that are given protection: sexual relations; family quarrels; many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters; most details of a man's life in his home and some of his past history that he would rather forget." CT Page 2736 Id., citing Perkins v. Freedom of, Information Commission,
The sixth count is vague in that this court cannot determine exactly what the defendants allegedly videotaped. The court also cannot determine from the pleadings how the plaintiffs sought to keep this information private, how it involves social value or how the information allegedly videotaped was relevant to any ongoing public debate. The plaintiffs have not alleged the videotaping of any of the aforementioned enumerated examples of protected personal and private information. For example, the plaintiffs have alleged the "videotaping of the plaintiffs and their property," but have not alleged that the defendants videotaped any details of the plaintiffs' lives in their home, as specified on the list of protected information. The plaintiffs have not alleged that the defendants have publicized any protected conduct of the plaintiffs. Therefore, the defendants' alleged conduct cannot be considered highly offensive to a reasonable person. As this is a prerequisite to any invasion of privacy claim, the motion to strike count six is granted.
"Our Supreme Court recently reiterated the elements which a plaintiff must prove in order to establish a claim for the intentional infliction of emotional distress. In Appleton v. Board of Education of Stonington,
The plaintiffs do allege in count seven and in those allegations from earlier counts that are incorporated by reference into count seven that the alleged conduct was extreme and outrageous, that the conduct was the cause of the plaintiffs' emotional distress and that the emotional distress sustained was severe. Nevertheless, even taking the pleadings in their most favorable light, the plaintiffs have not alleged that the defendants intended to inflict emotional distress or that they knew or should have known that emotional distress was likely to result. It is this intentional element that is the linchpin of a claim for intentional infliction of emotional distress. Without this allegation of intentional behavior, this cause of action for intentional infliction of emotional distress is legally insufficient. The motion to strike the seventh count is granted.5
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT