Summary
noting that allegations of wiretapping and eavesdropping have been held sufficient to state an offensive intrusion
Summary of this case from CARO v. WEINTRAUBOpinion
No. CV05-4009939
October 5, 2006
MEMORANDUM OF DECISION
The plaintiff, Michael Cavallaro, and the defendant, David Rosado were adjoining property owners in Hamden, Connecticut. During the time they were neighbors, the plaintiff claims that the defendant subjected him to "harassment, intimidation and threats," over a "lengthy time." Second Revised Complaint, dated June 29, 2006, Count One. Mr. Cavallaro also claims that he was forced to sell his home and relocate because of the "fear, terror, anxiety, stress, mental and emotional distress, loss of the right of quiet enjoyment of his home, and other ascertainable economic and non-economic loss" (sic) the defendant caused him to suffer. Second Revised Complaint, dated June 29, 2006, Count One.
In a six-count Revised Complaint, Mr. Cavallaro asserts various causes of action. The defendant moves to strike counts four, five and six. The defendant also moves to strike a portion of the plaintiff's prayer for relief. The parties briefed and argued their positions regarding the motion. They agree that count four asserts a claim for invasion of privacy based upon the intrusion upon seclusion category; count five asserts a defamation per se claim; and count six states an invasion of privacy claim based upon the category entitled "publicity that unreasonably places one in a false light in public." After considering the arguments articulated by both parties this court grants the defendant's motion and orders that counts four, five and six be stricken. Also, the court orders that a portion of the prayer for relief be stricken.
The pertinent factual allegations in the complaint are contained in Counts One, Four, Five and Six.
"On several occasions . . . including June 6, 2002, the defendant permitted his large dog to roam free and to enter the property of the plaintiff and ferociously confront the plaintiff and his family. The defendant has even permitted his large dog to roam free and to enter the plaintiff's house without the permission of the plaintiff." Second Revised Complaint, dated June 29, 2006, First Count, paragraph 10.
"On other occasions . . . the defendant falsely claimed to a third party that the plaintiff had engaged in an (sic) confrontation with him, and falsely claimed that such nonexistent event placed him in fear . . ." Second Revised Complaint, dated June 29, 2006, First Count, paragraph 11.
"By and through the actions of the defendant as herein alleged, the defendant has caused an intrusion upon the plaintiff's seclusion and private affairs." Second Revised Complaint, dated June 29, 2006, Fourth Count, paragraph 13.
"The actions of the defendant caused the plaintiff to be held up to public scorn and ridicule, caused him loss of reputation and standing in the community and economic loss, including, but not limited to business income, cost of litigation and relocation expenses and caused the plaintiff extreme fear, anxiety, and physical and emotional distress." Second Revised Complaint, dated June 29, 2006, Fifth Count, paragraph 13.
"The statements made by the defendant, the defendant (sic) that the defendant (sic) falsely claimed to a third party that the plaintiff had engaged in an (sic) confrontation with him, and falsely claimed that such nonexistent event placed him in fear, inter alia, were false and defamatory and known to be such at the time that they were made." Second Revised Complaint, dated June 29, 2006, Fifth Count, paragraph 14.
"The said statements were made maliciously . . ." Second Revised Complaint, dated June 29, 2006, Fifth Count, paragraph 15.
". . . [T]he defendant defamed the plaintiff." Second Revised Complaint, dated June 29, 2006, Fifth Count, paragraph 16.
"The oral statements of the defendant articulated above constitute slander." Second Revised Complaint, dated June 29, 2006, Fifth Count, paragraph 17.
"The actions of the defendant articulated above caused the plaintiff to be held up to public scorn and ridicule . . ." Second Revised Complaint, dated June 29, 2006, Sixth Count, paragraph 13.
"The statements, that the defendant falsely claimed to a third party that the plaintiff had engaged in an (sic) confrontation with him, and falsely claimed that such nonexistent event placed him in fear, inter alia, made by the defendant concerning the plaintiff portrayed him in a false light and were known to do so at the time that they were made." Second Revised Complaint, dated June 29, 2006, Sixth Count, paragraph 14.
"The oral statements of the defendant portrayed the plaintiff in a false light." Second Revised Complaint, dated June 29, 2006, Sixth Count, paragraph 17.
"Wherefore, on each of the aforesaid counts, the plaintiff seeks compensatory damages, punitive damages, economic and non-economic damages, double and treble damages, attorneys fees, costs and such other relief available to him in law and equity as applicable to each cause of action." Second Revised Complaint, dated June 29, 2006.
The defendant moves to strike the Fourth, Fifth and Sixth Counts on the grounds that each of them is insufficiently pled, as a matter of law. The defendant also moves to strike the prayer relief on the grounds that it seeks impermissible damages and compensation. The plaintiff objects to the defendant's motion, arguing that each count properly states a cause of action for which the plaintiff can recover damages. The plaintiff concedes that his recovery under law would be limited to compensatory damages and attorneys fees.
The motion to strike requires the court to consider the facts pled by the plaintiff in the light most favorable to the plaintiff. "`In reviewing the legal sufficiency of the plaintiff's complaint, [the court] assume[s] the truth of the facts alleged and construe[s] them in the light most favorable to sustaining the sufficiency of the complaint.' Bouchard v. People's Bank, 219 Conn. 465, 467 (1991). A motion to strike `admits all facts well-pleaded; [but] it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleading.' (Emphasis omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985). [I]f facts provable under the allegations would support a . . . cause of action, the motion to strike must fail. Ferryman v. City of Groton, 212 Conn. 138, 142 (1989)." CT Page 18034 Fields v. Kihar, Superior Court, judicial district of Tolland, Docket Number 9454868 (May 2, 1995, Klaczak, J.).
I.
The plaintiff has asserted two claims based upon the invasion of privacy cause of action. In the Fourth Count the plaintiff asserts an invasion of privacy claim based upon intrusion upon seclusion. In the Sixth Count, the plaintiff states an invasion of privacy claim based upon publicity that places one in a false light in public. The defendant moves to strike both of those counts. Because both counts derive from the invasion of privacy cause of action, the court will address them in sequence.
Connecticut recognizes a cause of action for invasion of privacy pursuant to which, a plaintiff may make claims based upon intrusion upon seclusion and/or publicity placing one in a false light in public. "The Connecticut Supreme Court recognized the action [for invasion of privacy] in the early 1980s. `The law of privacy developed not as a single tort, but as a complex of four distinct kinds of invasion . . . which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff `to be let alone.' Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 448 A.2d 1317 (1982), citing Prosser, Torts (4th ed. 1971) 117, p. 804. The four categories of invasion of privacy are set forth in the 3 Restatement (Second) of Torts Section 652A as follows: Section 652B — unreasonable intrusion upon the seclusion of another; Section 652C — appropriation of the other's name or likeness; Section 652D — unreasonable publicity given to the other's private life; and Section 652E — publicity that unreasonably places the other in a false light before the public. Venturi v. Savitt, Inc., 191 Conn. 588, 468 A.2d 933 (1983)." (Emphasis added.) Pickering v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket Number 054002947 (June 29, 2005, Eveleigh, J.).
A.
The defendant argues that an action asserting intrusion upon seclusion, "requires an invasion of the plaintiff's physical or personal seclusion." Memorandum in Support of Defendant's Motion to Strike, p. 2. The plaintiff counters that it is not necessary for him to allege physical intrusion. Memorandum of Law in Support of Objection to Motion to Strike. Both parties focus on whether or not physical intrusion is required in the pleadings, apparently suggesting that such an allegation of physical intrusion is lacking in this case. In the instant matter, there is, in fact, an allegation of physical intrusion — by the defendant's dog. However, this allegation, as currently pled, is insufficient to adequately state a claim for unreasonable intrusion upon seclusion.
"The Connecticut Appellate Courts have not yet set forth the necessary elements of a claim for unreasonable intrusion upon seclusion." Gallagher v. Rapoport, Superior Court, judicial district of Stamford, Docket No. 96-0149891 (May 6, 1997, D'Andrea, J.) ( 19 Conn. L. Rptr. 474). However, an unreasonable interference claim [requires] . . . [o]ne who intentionally intrudes, physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person." (Emphasis added.) Silva v. Warecke, Superior Court, judicial district of Danbury, Docket No. CV 040351625 (July 23, 2004, Richard, J.).
A Connecticut trial court (Nadeau, J.) has held that "an allegation of physical contact is not necessary to successfully state a claim for invasion of privacy via an unreasonable intrusion upon the seclusion of another." Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford, Docket No. 99066602 (February 4, 2000, Nadeau, J.) ( 26 Conn. L. Rptr. 368). Therefore, the mere fact that the complaint may be devoid of reference to physical contact does not necessarily determine the outcome of a motion to strike an invasion of privacy claim based upon unreasonable intrusion.
And, Connecticut trial courts have allowed causes of actions asserting unreasonable intrusion based upon claims of non-physical conduct. For instance, the court in Bonanno v. Dan Perkins Chevrolet concluded that such a cause of action may be based upon pleadings which asserted that the defendants made statements about the plaintiff's sex lives. Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99066602 (February 4, 2000, Nadeau, J.) Also, the court in Delorge v. U.S. Fire Ins. Co., found that allegations claiming that the defendant wiretapped, taped and eavesdropped in the plaintiff's home were sufficient to support an invasion of privacy claim. Superior Court, judicial district of New London, Docket No. CV 116794 (August 15, 2002, Hurley, J.T.R). And, in WVIT, Inc. v. Gray, Superior Court, judicial district of Hartford-New Britain, Docket No. 547689 (October 25, 1996, Lavine, J.) ( 18 Conn. L. Rptr. 203), the court held that an allegation that an employee secretly tape recorded another employee was sufficient to support a claim for invasion of privacy.
Even though verbal statements or non-physically intrusive conduct may adequately support a claim for intrusion upon seclusion, there are no such statements or non-physically intrusive conduct in the plaintiff's complaint. Therefore, it is not immediately clear why both parties spent an inordinate amount of time briefing and arguing this issue. And, it is unclear why the plaintiff relies upon and refers to the trial court decisions in Gallagher v. Rapoport and Fields v. Kihar, which both involve allegations of sexual assault. This case does not involve allegations of surveillance; allegations that the defendant investigated or examined matters of private concern to the plaintiff or allegations that there was sexual misconduct. Neither does this action involve the forcible physical entry into the residence or private domicile of the plaintiff by the defendant.
The trial courts in Connecticut have long held that such claims of sexual assault or misconduct, whether involving private or public conduct, can support a claim for invasion of privacy cause of action. Gallagher v. Rapoport, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 960149891 (May 6, 1997, D'Andrea, J.); Schwartz v. Royal, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 950553218 (May 20, 1996, Hennessey, J.); Fields v. McCoy, Superior Court, judicial district of Tolland, Docket No. CV 9454868 (May 2, 1995, Klaczak, J.). "Even in a public place, there may be some matters about the plaintiff, such as the most intimate parts of her body, that are not exhibited to the public, and there may still be an invasion of privacy when there is intrusion upon these matters . . ." Gallagher v. Rapoport, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV96 0149891 (May 6, 1997). See, also, Schwartz v. Royal, Superior Court, judicial district of Hartford-New Britain, Docket No. CV95 0553218 (May 20, 1996, Hennessey, J.) ("The defendant's alleged grabbing, hitting the buttocks of, and constant staring at the chest of, the plaintiff, would, if proven, amount to an intrusion upon the private affairs or seclusion of the plaintiff even though such conduct occurred in the presence of others).
Both the plaintiff and the defendant failed to address the one claim of physical entry in the complaint in their briefs or during oral arguments. In Count One, paragraph 10, the plaintiff states that "[o]n several occasions . . . including June 6, 2002, the defendant permitted his large dog to roam free and to enter the property of the plaintiff . . . The defendant has even permitted his large dog to roam free and to enter the plaintiff's house without the permission of the plaintiff." So, the issue for this court to decide is whether this allegation of physical entry is sufficient to support a claim for invasion of privacy based upon the intrusion upon seclusion category. A review of the law persuades the court that it is not.
Just as intrusion upon seclusion does not require physical contact, the mere presence of an allegation of physical entry into the private areas of the plaintiff does not automatically state a viable claim for invasion of privacy based upon that seclusion category. To successfully state an unreasonable intrusion, "plaintiffs must prove an intentional physical intrusion [by the defendant] upon the private affairs or concerns of the plaintiffs which would be highly offensive to a reasonable person." (Emphasis added.) Tapia v. Sikorsky Aircraft, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95327761 (May 28, 1998, Stodolink, J.). See, also Mastroberti v. Hall, Superior Court, judicial district of Litchfield, Docket No. CV 058336 (February 18, 1993, Pickett, J.) ( 8 Conn. L. Rptr. 740). In Tapia v. Sikorsky, the court considered insufficient the plaintiff's revised pleading which stated that, while the plaintiff was suspended from work, the defendant destroyed the lock on the plaintiff's locker, entered the plaintiff's locked locker, and inventoried the contents therein. In Mastroberti v. Hall, the court concluded that assertions that the defendant trespassed on the business property of the plaintiff, photographed from the trespassed areas, and illegally obtained statements of the plaintiff's financial finances were insufficient to support the plaintiff's intrusion upon privacy claims.
This court concludes that the Second Revised Complaint does sufficiently allege a physical intrusion by the defendant's "large dog." Given the dog's reported antagonistic history with the plaintiff and the plaintiff's family, the court also concludes that the intrusion could be deemed highly offensive to a reasonable person. However, the plaintiff's complaint fails to assert that the intrusion by the dog was the result of intentional conduct by the defendant. Rather, the complaint states that the dog was "permitted" to enter the plaintiff's residence. Such passivity will not support the intentional tort of invasion of privacy based upon the intrusion upon seclusion category. Also absent from the complaint is an allegation that the plaintiff objected to the intrusion and communicated his objection to the defendant. Without an allegation that the defendant intentionally acted in a way which directly led to the intrusion, and without a claim that the plaintiff objected to the intrusion to the defendant, the Fourth Count fails to adequately state a cause of action for unreasonable intrusion upon seclusion.
B.
The defendant moves to strike Count Six of the Plaintiff's Second Revised Complaint which asserts an invasion of privacy claim based on the false light tort, arguing that the plaintiff's complaint fails to allege "publicity." The statement that purportedly casts the plaintiff in a false light is the one in which the defendant allegedly told a third party that the plaintiff had engaged in a confrontation with the defendant which left the defendant in fear.
The plaintiff claims that "the `publicity' requirement of the tort of false light is met here." Memorandum of Law In Support of Objection to Motion to Strike, p. 8. During oral argument, plaintiff's counsel conceded that he relies on only one statement to assert the false light tort. But, the plaintiff maintains that telling a third party a falsehood is enough to meet the "publicity" requirement.
"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 . . . 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 . . . 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 . . . comment c. Goodrich v. Waterbury Republican-American, Inc., supra, 131; Jonap v. Silver, supra, at 558." (Internal quotation marks omitted.) Apicella v. Driver Logistic Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV01 0450101 (August 19, 2002, Arnold, J.).
In Connecticut, "[t]o establish invasion of privacy by false light, the [plaintiff is] required to show that (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. (Internal quotation marks omitted.) Honan v. Dumyan, 52 Conn.App. 123, 132-33, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999)." Senior v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 010808241 (January 14, 2002, Peck, J.) ( 31 Conn. L. Rptr. 268). Therefore, the court must consider whether the plaintiff's false light claim meets the two-prong test.
First, the court considers whether the statement of the defendant would be deemed "highly offensive to a reasonable person." Though this statement, accusing the plaintiff of being confrontational and causing fear in the defendant, portrays the plaintiff in a negative light, it is not, on its face "highly offensive." If this statement is false, it would certainly be offensive. But, any false statement about a person is potentially offensive. The false light tort requires more than mere offense. It requires that false statement(s) be highly offensive. It requires that the falsity be a major misrepresentation, which is an offense to a person's character. A pattern of falsehoods might meet this requirement, or at least call into question whether the required level of offensiveness had been met. But, in this case the one isolated negative statement, even if false, does not meet the requirement for highly offensive behavior.
Second, the court considers whether the defendant sufficiently publicized the falsity. Section 65E is entitled "publicity that unreasonably places the other in a false light before the public." As the title of this category suggests, in a false light action, the defendant's false statement must be made public. The falsity must be given "publicity." No Connecticut Appellate Court has decided what constitutes "publicity" in the context of an action for invasion of privacy. Pickering v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 054002947 (June 29, 2005, Eveleigh, J.); and Evans v. Blanchard, Superior Court, judicial district, Docket No. CV03 0177251 (January 11, 2005, Matasavage, J.) ( 38 Conn. L. Rptr. 547). "The courts which have addressed this issue have almost universally adopted the definition of "publicity" contained in section 652D, Comment a of the Restatement." Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV03 0399811 (January 30, 2004, Doherty, J.) This discussion in Section 652D is relevant to the false light category in Section 652E because "3 Restatement (Second) Torts, Invasion of Privacy section 652E, comment a, pp. 394-95 (1977), incorporates the discussion on the difference between publication and publicity found in section 652D." Senior v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 010808241 (January 14, 2002, Peck, J.).
According to the Restatement comment in section 652D, 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. 3 Restatement (Second) Torts, Invasion of Privacy section 652D, comment a, p. 384 (1977)." Senior v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 010808241 (January 14, 2002, Peck, J.). Therefore, "publication" can involve communication that is made in private or public. But, "publicity" can only involve communication that is made 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. See, Haydu v. Meadows, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 051983 (March 13, 1007, Flynn, J.)" Beveridge v. Bristol Spring Manuf. Co., Superior Court, judicial district of New Britain, Docket No. CV98 0491953 (February 7, 2000, Graham, J.). 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.
In the instant action, there are no facts in the complaint that suggest that the defendant made highly offensive statements about the plaintiff to "the public." The plaintiff only says that the defendant made a negative statement about him to an unidentified third party. This is not sufficient to meet the "publicity" requirement of the invasion of privacy cause of action based upon the false light category.
Accordingly, Count Six of the Revised Complaint fails to adequately state a claim for invasion of privacy based upon unreasonably placing one in a false light in public.
II
The defendant moves to strike Count Five of the Second Revised Complaint which alleges slander per se, arguing that the complaint is insufficient because "[o]n its face, there is no basis for any reasonable trier of fact to conclude that statement had a defamatory meaning apparent on its face and that such a statement would harm the reputation of (sic) social standing of the plaintiff in any way." Brief. p. 3. The defendant argues that the plaintiff can only prevail by showing actual damage to his reputation.
In his objection, the plaintiff argues that the wrongful statement is slander per se in that the defendant accuses the plaintiff of committing a crime.
Though unlabelled, both parties agree that Count Five attempts to state a claim for defamation per se. And, both the defendant and the plaintiff agree that allegedly defamatory statement is the one in paragraph 10 of the First Count, which states that the "defendant falsely claimed to a third party that the plaintiff had engaged in an (sic) confrontation with him, and falsely claimed that such nonexistent event placed him in fear."
"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." Lowe v. Shelton, 83 Conn.App. 750, 775, 851 A.2d 1183 (2004). "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." (Citations omitted; internal quotation marks omitted.) Cwelinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
"Because of the causal way in which slander is uttered, an injured party must allege and prove his actual special damages unless he can show that the slander occurred in one of the . . . categories of slanders per se. D. Wright J. Fitzgerald, Connecticut Law of Torts. (2d Ed. 1968) § 147; see also Moriarity v. Lippe, 162 Conn. 371, 382-83, 294 A.2d 326 (1972); Zeller v. Mark, 14 Conn.App. 651, 654, 542 A.2d 752 (1988)." Wagner v. Feldstein, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 054003866 (February 7, 2006, Ronan, J.T.R.). In Connecticut, "[t]here are several categories of slander which are actionable per se. Moriarity v. Lippe, supra, 383-84. The category applicable to this action is `where the utterance charges a crime.'" Wagner v. Feldstein, Superior Court, judicial district of Ansonia-Milford, Docket No. CV054003866 (February 7, 2006, Ronan, J.T.R.). "The modern view of this requirement is . . . that the crime be a chargeable offense which is punishable by imprisonment." Battista v. United Illuminating Co., 10 Conn.App. 486, 493, 523 A.2d 1356 (1987) cert. Denied, 204 Conn. 802, 525 A.2d 965 (1987).
Though a statement need not cite a specific crime to be slanderous per se, it must make a specific reference to conduct which is understood to be criminal. See, Morgan v. Bubar, Superior Court, judicial district of New London, Docket No. CV 562555 (June 15, 2006, Hurley, J.T.R.) (Court considered the alleged statement by the defendant that "[the plaintiff] put her hands on my neck and choked me so hard I could not feel my feet," sufficient to state a claim of slander per se because it accused the plaintiff of committing what is generally understood to be an assault as is codified in Connecticut General Statutes, section 53a-61).
In the instant matter, the alleged statement of the defendant does not reference a specific crime. And, the defendant argues that "there is nothing within the content of that statement which implies a threat or impending violence or anything else that could be construed as being criminal in nature . . ." Defendant's Reply to Plaintiff's Objection to Motion to Strike, dated September 11, 2006, p. 2.
During oral argument, plaintiff's counsel contended that the crime which the defendant's statement accused the plaintiff of committing is Threatening in the Second degree. Connecticut General Statute, section 53a-62 provides that "[a] person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury, (2) such person threatens to commit any crime of violence with the intent to terrorize another person, or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror." (Emphasis added.)
In the alleged statement, the defendant accuses the plaintiff of "confrontation" and "causing fear." "Confrontation" is defined as "as challenge; opposition." Merriam-Webster Dictionary (1989). A challenge or an opposition is not synonymous with a threat. So, while the statement might suggest that the plaintiff clashed with, challenged or opposed the defendant, it does not necessarily suggest that the plaintiff threatened the defendant. Nor does it suggest that the plaintiff threatened the defendant physically. Neither does the statement suggest that the confrontation with the plaintiff left the defendant in fear of imminent serious physical injury. Therefore, given the plaintiff's position that the statement is slander per se, the claim in the Fifth Count is insufficient.
The court grants the defendant's motion to strike the fifth count only because the plaintiff argues that this count asserts a slander per se cause of action. The Fifth Count would be sufficient, as presently pled, to assert slander per quod because it alleges that the plaintiff suffered actual special damages. Count Five claims that the defendant's statement caused him "a loss of reputation and standing . . . economic loss . . . [and] business income . . ." Revised Complaint, dated June 29, 2006, Fifth Count, paragraph 13.
"When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover. D. Wright J. Fitzgerald, Connecticut Law of Torts, (2d Ed. 1968) section 146." Olivas Devivo Industries, Inc., Superior Court, judicial district of Danbury, Docket No. CV 990335908 (February 28, 2001, Hiller, J.). Further, "[t]o maintain a claim sounding in libel per quod the Plaintiff must allege special damages. Battista v. United Illuminating Co., supra, 10 Conn.App. 491." Olivas Devivo Industries, Inc., Superior Court, judicial district of Danbury, Docket No. CV 990335908 (February 28, 2001, Hiller, J.) These special damages must include claims that the plaintiff suffered injury to reputation. Coppotelli v. Fairfield Pool Assoc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03402126 (September 15, 2003, Thim, J.) (Court denied motion to strike count which alleged that defendant made various statements in a loud voice to employees customers or others in the same industry which resulted in damage to the plaintiff's reputation). Graff v. O'Connell, Superior Court, judicial district of Middlesex, Docket No. 010095518 (March 5, 2002, Shapiro, J.) (Court struck the count asserting defamation which merely claimed that the defendant said that the plaintiffs operated an illegal boarding kennel, but did not claim that they suffered injury to their reputation).
"A slander per quod is not defamatory on the face of the communication but becomes defamatory in light of extrinsic facts known by the recipient of the communication. Battista v. United Illuminating Co., 10 Conn.App. 486, 491, 523 A.2d 1356 cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987)." Armstrong v. Town of Cheshire, Superior Court, judicial district of New Haven, Docket No. 413481 (August 22, 2001, Blue, J.). The defendant argues that the absence of extrinsic evidence mandates that the count be stricken. But, this is not accurate. The plaintiff may ultimately fail to prove the extrinsic facts required to support a claim for slander per quod. However, the court would not be able to determine the issue of proof at this point in the litigation. To decide the motion to strike, the court need only determine whether the Complaint asserts legally sufficient causes of action.
As required by the law, Count Five alleges that the defendant published a defamatory statement to a third party which statement is specifically included within the complaint and which statement caused the plaintiff to suffer economic damages and damages to his reputation. Further, the complaint contains extrinsic information which may support the plaintiff's claim that the defendant's statement was defamatory: namely that the defendant is a State Trooper. And, although plaintiff must ultimately prove extrinsic facts to establish that the alleged statement is, in fact, defamatory, this court finds no support for the legal proposition that all the existing extrinsic evidence must be specifically alleged, in addition to being proved. Therefore, this court concludes that the Fifth Count, as currently pled, would be sufficient to state a claim for slander per quod.
III.
Finally, the defendant requests that the court strike the plaintiff's claims for double and treble damages as well as for attorneys fees. The plaintiff does not address this in his objection, although at oral argument he conceded that under Connecticut law he would be entitled to recover only punitive damages, which in Connecticut are limited to Attorneys fees. The court, accordingly, grants the defendant's motion to strike the claims for double and treble damages, and for attorneys fees. The plaintiff's claim for punitive damages is sufficient to preserve his claim for counsel fees.