Opinion
No. MMX CV09-6000884 S
January 19, 2010
MEMORANDUM OF DECISION
On October 9, 2009, the plaintiff Judith Decker moved for a prejudgment remedy ("PJR") against Kim E. Martin in the amount of $10,000.00. The plaintiff subsequently moved to amend the amount of her request to seek a PJR of $20,000.00, which the court denies because of lack of notice to the self-represented defendant prior to the hearing. But see Rafferty v. Noto Bros. Construction, LLC, 68 Conn.App. 685, 689, 795 A.2d 1274 (2002) holding that the court did not abuse discretion in allowing plaintiffs to orally amend their prejudgment remedy application, and Burton v. City of Stamford, 115 Conn.App. 47, 59-60, 971 A.2d 739 (2009).
General Statutes § 52-278d provides in part that
. . . The hearing shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff.
In a recent decision Judge Shortall noted that General Statutes § 52-278d "clearly mandates that, in seeking a prejudgment remedy, a plaintiff must show probable cause that a judgment will issue in an amount equal to, or greater than, the amount of the prejudgment remedy sought." (Emphasis added.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 147 (2008). "Section 52-278d(a) requires that a trial court make a probable cause determination as to both the validity of the plaintiff's claim and the amount of the remedy sought." Id., 145-46.
Weber v. Schultz, 2009 Ct.Sup. 19322, 19323, No. CV 09 5014210, Superior Court, Judicial District of New Britain at New Britain (Shortall, J.T.R., November 30, 2009).
On November 19, 2009, the plaintiff filed a seconded amended complaint containing three counts setting forth claims of vexatious litigation, defamation by libel and invasion of privacy. At the PJR hearing that occurred on November 23, 2009, the plaintiff relied on the allegations of her second and third counts as a basis for the PJR. Such counts are as follows:
COUNT TWO: JUDITH DECKER VS. KIM E. MARTIN A/K/A KIM COLAVITO: Defamation By Libel
1. On May 11, 2009, in Middletown, Connecticut, the Defendant Kim E. Martin a/k/a Kim Colavito (hereafter referred to as "Defendant") brought a Small Claims action against the Plaintiff herein, Mrs. Judith Decker, in which she had no standing to sue Mrs. Decker and presented no justiciable controversy for the Superior Court to hear.
2. The Defendant, in her Complaint, published the words that the Plaintiff, Mrs. Judith Decker, has been engaged in "tax evasion for more than 3 years."
3. That publication was false and malicious.
4. On May 15, 2009 the Defendant, by the use of a written e-mail to Mr. Jeremy Shingleton, the First Selectman of the Town of Cromwell, Connecticut, published a communication purporting to be written by her boyfriend, James Tedeschi, in which she published the words that the Plaintiff, Mrs. Decker (along with her husband), implicating the payment of taxes, is "cheating the Town of Cromwell."
5. That publication was false and malicious.
6. On May 21, 2009 the Defendant published in a letter to Neil A. Scarfo, Mrs. Decker's employer, the following words concerning the Plaintiff: Mrs. Decker "has not paid her fair share of taxes for many years, the Tax Assessor's office is now involved." "Ms. Decker is a dis-honest person, the State Attorney General now has a case file on her." "Ms. Decker is in jeopardy of losing her license."
7. That publication was false and malicious.
8. On Monday, October 6, 2009 the Defendant, by the use of a written e-mail to Mr. Richard E. Maloney, the Director of Trade Practices of the State Consumer Affairs Agency, published a communication purporting to be written by her boyfriend, James Tedeschi, publishing the following words concerning the Plaintiff, Judith Decker: that she is "a tax delinquent"; "she is a realtor with Neil Century 21 in Cromwell." and that "you should pull her lic. Immediately before she can steal more from her clients."
9. That publication was false and malicious.
10. The Plaintiff claims damages.
11. On October 12, 2009 the Defendant published an e-mail to Neil A. Scarfo, Mrs. Decker's employer, using the following words concerning the Plaintiff "Mr. Scarfo, I intend to file a complaint with the EBB, concerning Judith Decker and the deceptive approach she employs as a means to "close" deals." "You employ this women [sic]. I regret to inform you she is not honest. I have documents to back my statement." "She has caused harm to her clients."
12. That publication concerning Mrs. Decker's professional and business practice, honesty and integrity, was false and malicious.
13. The Defendant has filed a number of papers with the clerk of the Superior Court making claims which support the ill will and evil motive of the Defendant which provide evidence from which the court may infer actual malice.
14. The publications were wilful, wanton, and made in reckless disregard of Mrs. Decker's rights.
15. The Plaintiff claims punitive damages.
COUNT THREE: JUDITH DECKER VS. KIM E. MARTIN A/K/A KIM COLAVITO: (Invasion of Privacy)
1.-13. The Plaintiff herein incorporates paragraphs 1-13. of the Second Count and makes them paragraphs 1-13. of this, the Third Count.
14. On May 21, 2009, in the letter the Defendant published to Mr. Scarfo, the Plaintiff's employer, she published the following additional words concerning Mrs. Judith Decker: "do you want a person like this to represent your name?" "I hope you will consider her employment with your firm." "I have also reported Ms. Decker to Century 21 Headquarters."
15. The above publications by the Defendant constitute an invasion of the Plaintiff's right to privacy by placing Mrs. Decker in a false light in the public eye, in that the matter published (1) is not true, and (2) is a major misrepresentation of her character, history, beliefs and activities.
16. The defendant has disseminated her publications to the general public.
17. The publications were highly offensive to Mrs. Decker, and the publications were false and malicious.
18. The Defendant's publications have caused Mrs. Decker to undergo emotional and mental anxiety, distress and mental suffering; and harm to her interest and privacy.
19. The Plaintiff, Mrs. Decker, claims damages.
20. The publications were willful, wanton, and made in reckless disregard of Mrs. Decker's rights.
21. The Plaintiff claims punitive damages.
General Statutes § 52-237, entitled "Damages in actions for libel," provides that
In any action for a libel, the defendant may give proof of intention; and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, the plaintiff shall recover nothing but such actual damage as the plaintiff may have specially alleged and proved.
No evidence was presented that the plaintiff had demanded a retraction pursuant to General Statutes § 52-237 of any of the defendant's allegedly defamatory statements. The plaintiff did not "specially allege" any actual damages in any of the three counts. However, the plaintiff has established that there is probable cause that the defendant acted with malice in fact and thus the plaintiff if successful in proving the allegations with respect to her employer at trial would be entitled to general damages.
General Statutes § 52-237 has been interpreted, explained and/or discussed in some trial court decisions. In Dellacamera v. New Haven Register, 2002 Ct.Sup. 13647, 13651-52, No. CV 00-0436560, Superior Court, Judicial District of New Haven at New Haven (October 28, 2002 Arnold, J.), Judge Arnold stated that the phrase "special damages" means actual pecuniary losses:
The phrase special damages in § 52-237 means actual pecuniary losses, by contrast to the concept of general damages, which may, in appropriate cases, include general harm to reputation, injured feelings or mental anguish. Holbrook v. Casazza, 204 Conn. 336, 360, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006 (1988); Monczport v. Csongrodi, 102 Conn. 448, 452, 129 A. 41 (1925); Miles v. Perry, 11 Conn.App. 584, 600-01, 529 A.2d 199 (1987). The plaintiff's only pecuniary loss claimed, are the fees he paid to his attorneys. The attorneys fees to represent the plaintiff on criminal charges do not qualify as special damages, as they were incurred as a result of the plaintiff's arrest, not the defendant's publication of an article reporting the arrests. Any additional attorneys fees to prosecute the instant action . . . do not qualify as special damages as a matter of law. Theodore D. Bross Line Construction Corp. v. Ryan Crane Serv. Corp., 32 Conn.Sup. 181 (1975). See also, Peterson v. City of Norwalk, 152 Conn. 77, 80 (1964); Kaybee Corp. v. Sanders, 1985 WL 263949 at *6 (Conn.Super. August 23, 1985). "To recover special damages, the plaintiff must prove that he suffered economic loss that was legally caused by the defendant's defamatory statements, even where the defamation is per se." De Vito v. Schwartz, 66 Conn.App. 228, 238, 784 A.2d 376 (2001); See 3 Restatement (Second), Torts § 622 (1977).
Absent special damages, the plaintiffs in order to prevail, must prove that the defendant published the article with malice-in-fact." "Malice is not restricted to hatred, spite or ill will against a plaintiff, but includes any improper or unjustifiable motive." Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985); See, e.g. Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 564, 72 A.2d 820 (1950); Corsello v. Emerson Bros., Inc., 106 Conn. 127, 132, 137 A. 390 (1927); Haxhi v. Moss, 25 Conn.App. 16, 19, 591 A.2d 1275 (1991). Connecticut courts have described the "malice-in-fact" standard as requiring proof that the statement "was . . . known to be false," or that it was otherwise made by the defendant with "entire indifference whether [it was] true or false . . ." Haxhi v. Moss, supra at 19-20. The defendant properly argues, therefore, that the term "malice in fact" as used in General Statutes § 52-237 is synonymous with the term "actual malice." The substance of both the actual malice and malice in fact inquiries is the same: did the defendant act with subjective knowledge that a statement was false or with reckless disregard or entire indifference to whether the statement was true or false. St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Woodcock v. Journal Publishing Co., supra at 537; See also Brown v. K.N.D. Corp., 205 Conn. 8, 10, 529 A.2d 1292 (1987).
Judge Arnold also discussed false light privacy claims and he noted that the tort of defamation provides redress for injury to reputation, while the tort of a false light claim invading one's privacy provides redress for emotional and mental anguish resulting therefrom:
Although the court's findings above are principally directed against the plaintiff's Count One libel claim, the court agrees with the defendant that they also apply to the two remaining counts of the complaint. False light privacy claims and libel claims differ with respect to the injury claimed. Defamation protects injury to reputation, while false light protects against emotional and mental anguish. However, in other respects they are essentially the same. The arguments concerning the "fair report" privilege and the retraction statute apply with equal force to the false light claim. See, e.g. Restatement (Second) Torts, § 652G (privileges applicable to defamation claim, such as fair report privilege, also apply to false light claim); Sack on Defamation § 12.3.4.2 at 12-25 to 12-26.
Id., 13652.
In Anderson et al. v. McLaughlin et al., 1992 Ct.Sup. 10023, 10025, 8 CSCR 32, No. CV92-505475, Superior Court, Judicial District of Hartford-New Britain at Hartford (Aurigemma, J., November 3, 1992) [ 7 Conn. L. Rptr. 873], the court noted that General Statutes § 52-237 "does not require a request for a retraction where the plaintiff alleges malice in fact."
In the PJR hearing the defendant did not assert that her statements to the employer of the plaintiff were privileged. In Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984) the Supreme Court set forth that "[b]efore a party will be held liable for libel, there must be an unprivileged publication of a false and defamatory statement." The requirement that such a statement not be privileged was also noted by Judge Berdon in his concurring decision in Woodcock v. Journal Publishing Co., 230 Conn. 525, 553, 646 A.2d 92 (Berdon, J., concurring) (1994):
"A defamation action is based on the unprivileged communication of a false statement that tends either to harm the reputation of another by lowering him or her in the estimation of the community or to deter others from dealing or associating with him or her." 1 D. Pope, Connecticut Actions and Remedies: Tort Law (1993) 10:03, p. 10-10.
In another decision, Dickinson v. Lovely, 2006 Ct.Sup. 6603, 6607, No. CV-05-4003643S, Superior Court, Judicial District of Middlesex at Middletown (Aurigemma, J., April 6, 2006), Judge Aurigemma set forth the elements of an action for defamation including unprivileged publication of each allegedly defamatory statement:
A cause of action for defamation requires four essential elements: (1) a false statement of fact; (2) unprivileged publication of the statement; (3) publication caused by negligent or intentional conduct; and (4) injury to reputation. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984); Torosyan v. Boehringer Ingelheim Pharm., Inc., 234 Conn. 1, 27, 662 A.2d 89 (1995).
General Statutes § 52-597 provides that an action for libel can be brought within two years of each allegedly defamatory statement:
No action for libel or slander shall be brought but within two years from the date of the act complained of.
General Statutes § 52-279 provides that
Attachments may be granted upon all complaints containing a money demand against the estate of the defendant, both real and personal. No attachment shall be made in any action for slander, libel or invasion of privacy except upon order of the court to which the writ is made returnable . . .
There is probable cause to believe that the statements made by the defendant in exhibits 1 and 3 submitted to the court during the PJR hearing contain libel per se and that the defendant acted with malice in fact when she made such statements:
"Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached." (Internal quotation marks omitted). Lega Siciliana Social Club, Inc. v. Germaine, supra, 77 Conn.App. 853. To fall within the category of libels that are actionable per se because they injure a man's profession, it must be a statement that "charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business." Lowe v. Shelton, 83 Conn.App. 750, 766-67, cert. denied, 271 Conn. 915 (2004).
Shea v. City of Waterbury, 2009 Ct.Sup. 5354, 5361, No. CV 08 5007926, Superior Court, Judicial District of New Britain at New Britain (Tanzer, J., February 20, 2009). If the plaintiff in this case proves libel per se, she is entitled to general damages:
"Libel per se . . . is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation . . . 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 quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, supra, 77 Conn.App. 851-52. Id.
With respect to at least some of her statements and those of her boyfriend that she composed or facilitated and then published to local and state officials the defendant may have a qualified privilege. To determine whether a qualified privilege attaches, the court must conduct a two-part test:
[w]hen considering whether a qualified privilege protects a defendant in a defamation case, the court must resolve two inquiries . . . The first is whether the privilege applies, which is a question of law . . . The second is whether the applicable privilege nevertheless has been defeated through its abuse, which is a question of fact. Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009); Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 615, 116 A.2d 440 (1955).
First, the court must determine whether a qualified privilege applies:
The essential elements of [a qualified privilege] defense are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and publication in a proper manner to proper parties.
Terry v. Hubbell, 22 Conn.Sup. 248, 256, 167 A.2d 919 (1960); Miles v. Perry, 11 Conn.App. 584, 595, 529 A.2d 199 (1987).
As previously set forth, whether a qualified privilege applies is a question of law:
For the defense of [qualified] privilege to attach, a defendant must assert an objective interest sufficiently compelling to warrant protection of an otherwise defamatory communication.
Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); Strode v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 99 0432459 (November 8, 2002, Zoarski, J.T.R).
Additionally, "[a] qualified or conditional privilege arises out of an `occasion,' such as, when one acts in the bona fide discharge of a public or private duty." Miles v. Perry, supra, 11 Conn.App. 594 n. 8; Strode v. Hamden, supra, Superior Court, Docket No. CV 99 0432459.
Additionally, the party accused of libel bears the burden of proving, by a fair preponderance of the evidence, that a qualified privilege exists. State v. Gardner, 112 Conn. 121, 124, 151 A. 349 (1930); cf. Zupnik v. Day Publishing Co., Superior Court, judicial district of Hartford, Docket No. CV 95 0549864 (March 8, 1996, Hennessey, J.) (burden on party accused of libel to produce evidence showing he or she acted in good faith). During the PJR hearing, the self-represented defendant did not raise either the issue of qualified privilege or whether she acted in good faith.
It does not seem that any Connecticut court has specifically addressed the issue of whether a defendant accused of libel can assert a defense of qualified privilege for reporting a plaintiff's alleged tax evasion to a town selectman. However, some courts have recognized that complaints reporting crimes to the police, if made in good faith and without malice, are sufficiently compelling to warrant a qualified privilege. See Gallo v. Barile, 284 Conn. 459, 471-73, 935 A.2d 103 (2007) (qualified privilege attaches to statements of complaining witness); Flanagan v. McClane, 87 Conn. 220, 223-24, 87 A. 727 (1913) (qualified privilege attaches to communication reporting crime to authorities).
However, in a 2003 decision Judge Hurley observed that
[t]ax evasion . . . is a public concern. While this court is not prepared to hold that all violations of law implicate public policy, violation of the tax code robs the government of revenue, affecting its ability to deliver services to the public and places a greater tax burden on law abiding tax payers.
Raible v. Essex Yacht Club, Inc., Superior Court, judicial district of New London, Docket No. CV 03 0564783 (August 19, 2003, Hurley, J.T.R.) ( 35 Conn. L. Rptr. 295, 298).
Second, this court must determine whether the qualified privilege has been defeated through its abuse:
A conditional or qualified privilege may be abused or lost if the defendant published or broadcast the defamatory remarks with malice, improper motive, or bad faith . . . [T]he presence of a qualified privilege does not preclude a subsequent finding that the defendant did not act in good faith.
Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545 n. 24, 733 A.2d 197 (1999) Furthermore, the legitimacy of the defendant's interest is not a shield for malicious action:
Even when a legitimate interest is at stake, a claim of conditional privilege is defeated if the defendant acts with malice in making the defamatory communication at issue. For purposes of our law of defamation, malice is not restricted to hatred, spite or ill will against a plaintiff, but includes any improper or unjustifiable motive . . . An assertion of conditional privilege also fails if the defamatory communication is addressed to a party whose knowledge of the matter is not reasonably believed to be necessary to protect the defendant's interest or if the content of the publication is excessive.
Bleich v. Ortiz, supra, 196 Conn. at 504. The plaintiff bears the burden of showing that the privilege was abused. Saliby v. Kendzierski, CT Page 3149 407 F.Sup.2d 393, 400 (D.Conn. 2006).
If the privilege is abused it can be lost whether the standard is actual malice or malice in fact:
Consistent with this broad view . . . this court has concluded that a qualified privilege is lost upon a showing of either actual malice, i.e., publication of a false statement with actual knowledge of its falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive.
Gambardella v. Apple Health Care, Inc., supra, 291 Conn. at 630.
As set forth above, actual malice requires actual knowledge of the falsity of a statement:
Actual malice requires that the statement, 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.
Hopkins v. O'Connor, 282 Conn. 821, 846, 925 A.2d 1030 (2007) (internal quotation marks omitted). Additionally, "[a]ctual malice is not necessary to be proven by extrinsic evidence. The defamatory communication made and the circumstances leading up to and surrounding the making are to be considered by the trier in determining this question." Ely v. Mason, 97 Conn. 38, 42, 115 A. 479 (1921).
"Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives." Hopkins v. O'Connor, supra, 282 Conn. at 847 (internal quotation marks omitted); Corbeti v. Register Publishing Co., 33 Conn.Sup. 4, 7, 356 A.2d 472 (1975). Furthermore, malice in fact may be inferred from a failure to reasonably investigate the facts prior to publishing them. Id., 8.
The defendant's statements in any judicial or quasi-judicial proceeding are absolutely privileged so long as they are in some way pertinent to the subject of the controversy. See Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986).
In Connecticut, "[t]he class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings, and acts of State." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 855, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003). "It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy . . . The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously . . . The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation marks omitted.) Id., 855-56; see also Petyan v. Ellis, 200 Conn. 243, 245-46, 251-52, 510 A.2d 1337 (1986). "Whether a communication is published in the course of a judicial proceeding, so as to obtain the benefit of the absolute privilege, is a question of law for the court to decide, and our review is, therefore, plenary." McManus v. Sweeney, 78 Conn.App. 327, 334, 827 A.2d 708 (2003). Watts v. Chittenden, 115 Conn.App. 404, 413-14, 972 A.2d 770 (2009).
In the plaintiff's second and third counts, she alleges that the defendant published her false and defamatory statements in a small claims complaint, to the plaintiff's employer and to some public officials. The essential elements of invasion of privacy by false light are as follows:
"To 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. Dimyan, 52 Conn.App. 123, 132-33, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999). Furthermore, "[t]his form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is . . . 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."
Jonap v. Silver, 1 Conn.App. 550, 558, 474 A.2d 800 (1984) (citation omitted; internal quotation marks omitted).
[A]ny false statement about a person is potentially offensive. The false light tort requires more than mere offense. It requires that false [statements] 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 . . . one isolated negative statement, even if false, does not meet the requirement for highly offensive behavior.
Cavallero v. Rosado, Superior Court, judicial district of New Haven, Docket No. CV 05 4009939 (October 5, 2006, Robinson, J.).
The tort of false light invasion of privacy requires publicity to the public at large or to enough persons so that the false and defamatory statements must be substantially certain to become public knowledge:
[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 . . . Nevertheless, while publicity requires that the falsity reach the public, [t]o allow the cause of action to be premised on any conduct of the defendant which could foreseeably result in media publicity putting the plaintiff in a bad light, would expand the concept of invasion of privacy beyond manageable limits." (Citation omitted; internal quotation marks omitted.)
Winters v. Concentra Health Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5012082 (March 5, 2008, Thompson, J.); see also Grigorenko v. Pauls, 297 F.Sup.2d 446, 448 (D.Conn. 2003).
Unlike the limited publication required to state a claim for defamation, the publicity element of a false light invasion of privacy claim requires publication of the allegedly false matter to the public at large or to so many persons as to make it substantially certain that the matter will become public knowledge.
In Cavallero v. Rosado, supra, Docket No. CV 05 4009939 (October 5, 2006, Robinson, J.). Judge Robinson discussed and summarized the requirement of public knowledge as follows:
No Connecticut Appellate Court has decided what constitutes "publicity" in the context of an action for invasion of privacy . . . The courts which have addressed this issue have almost universally adopted the definition of "publicity" contained in section 652D, [c]omment a of the Restatement.
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 . . . Therefore, publication can involve communication that is made in private or public. But, publicity can only involve communication that is made public . . .
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.
(Citations omitted; internal quotation marks omitted.) In the PJR hearing the plaintiff did not establish that there was probable cause that highly offensive information about the plaintiff was disseminated to the general public in a way that it must be regarded as substantially certain to become a matter of public knowledge.
There is probable cause for the court to determine that the defendant's statements to the plaintiff's employer are unprivileged, defamatory, libel per se, that they were made with malice in fact and that the plaintiff will be awarded general damages at least in the amount of the prejudgment remedy initially sought, $10,000, or in a greater amount and the plaintiff is granted a prejudgment remedy in the amount of $10,000.
One or more of the defendant's statements to one or more of the public officials may be subject to a qualified or other privilege but the court did not receive any information from or claim by the self-represented defendant concerning any such privilege. Instead, the defendant seemed to be defending herself based on the alleged truth of such statements. The court leaves such issues and the false light invasion of privacy claim for further proceedings in this case.
A prejudgment remedy in the amount of $10,000.00 in favor of the plaintiff against the property of the defendant described in the plaintiff's motion is hereby ordered.