Opinion
No. CV-02-0459655 S
January 25, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#124)
In this lawsuit, the plaintiff, Hanna-Ian Faraclas ("Faraclas"), seeks damages for emotional distress and breach of contract allegedly sustained by her while she was a student at the University of Bridgeport College of Naturopathic Medicine. The pending complaint is in seven counts. The first, second and third counts allege intentional infliction of emotional distress against three of plaintiff's classmates — defendants Jennifer Botwick, Susan Pataky and Isadora Guggenheim. The fourth count alleges negligent infliction of emotional distress against defendant Anthony Ross, associate dean of the College of Naturopathic Medicine (hereinafter "College"). The fifth count alleges breach of contract as to the University of Bridgeport ("University") and the sixth count alleges violation of the Connecticut Unfair Trade Practices Act ("CUTPA") as to the University. Finally, the seventh count alleges violation of the Connecticut Fair Employment Practices Act against the University and defendant Peter Martin (dean of the College).
All defendants have moved for summary judgment on all counts. The plaintiff objects to the motion as to the first through sixth count but does not object to the granting of summary judgment as to the seventh count.
For the reasons set forth below, summary judgment is granted as to the first, second, fourth, sixth and seventh counts and denied as to the third and fifth counts.
BACKGROUND
The parties have submitted voluminous materials in support of and in opposition to the present motion. For example, the plaintiff's appendix to her brief consists of a factual narrative 65 pages long. See #126. It is apparent from these materials that the plaintiff's experience at the College was pervasively affected by conflicts with both her fellow students and the College administration. Ultimately, on May 24, 2001, the University administratively withdrew her registration. Thereafter, the present lawsuit was filed.
Connecticut law is clear that summary judgment should be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209 (2000). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1988).
DISCUSSION A. Intentional Infliction of Emotional Distress
The first three counts of the complaint allege intentional infliction of emotional distress by Jennifer Botwick (first count), Susan Pataky (second count) and Isadora Guggenheim (third count). Construed in plaintiff's favor, the conduct of these three persons may be summarized as follows:
Jennifer Botwick
Botwick "hissed" whenever Faraclas participated in class discussions or asked questions. Specifically, in April 2000, Botwick hissed when another student made an inappropriate joke in class. The "joke" was directed at Faraclas. Faraclas felt panic due to Botwick's conduct.
In March 2000, Faraclas asked a question during a Clinical Diagnosis class. After posing the question to the professor, Botwick interjected that the information Faraclas requested was not of interest to her and asked the professor to move on.
On May 12, 2000, Botwick continually screamed at Faraclas during a dissection laboratory despite the professor's request for her to stop. Botwick's shouting continued through four more requests to stop by the professor.
Susan Pataky
On August 24, 2000 during a class that featured an exercise on patient interviewing techniques, Faraclas asked one question of the professor (who was playing the role of the patient) and then followed up with a second question. At that point, Pataky interrupted the professor stating that Faraclas could not ask more than one question during the exercise.
After class, Faraclas approached Pataky about the matter. Pataky screamed obscenities and made threats toward Faraclas. The next day, August 25, 2000, Pataky, in front of Dr. Anthony Ross, admitted making the outburst.
On a date in December 2000, Pataky encountered Faraclas on school property. She stepped in front of her preventing Faraclas from passing and stated "What the f do you think you are doing."
On January 31, 2001, Faraclas asked a question in class that was responded to by the professor. The question was somewhat long and the professor's response was brief. After this exchange, Pataky commented, "All that for five words." Faraclas responded, "Susan please do not editorialize my question." Faraclas then proceeded to ask another question. Pataky then stated, "You can't ask more than one question." When the professor allowed Faraclas to pose her question, "Pataky jumped up stating, "I'm not going to stand for this."
On February 27, 2001, Pataky approached Faraclas while Faraclas was walking in the hallway. Pataky fixed Faraclas with an "angry stare" and moved to her side of the hallway. Faraclas had to "flatten" herself against the wall as Pataky passed by.
During an office meeting with Dean Anthony Ross, Faraclas overheard Pataky state that Faraclas was a "mental case" and "psychotic."
Isadora Guggenheim
Guggenheim organized a "shunning" and slandering campaign against Faraclas that consisted of (a) interruptions during class, (b) making threatening comments to Faraclas about shunning, (c) advocating a policy of no contact with Faraclas and (d) stating "Something needs to be done about Hanna."
In addition, in connection with a report jointly submitted by Guggenheim and Faraclas, Guggenheim plagiarized her portion of the joint report. In retaliation for Faraclas' confrontation on her plagiarism, Guggenheim made a false claim to the campus security office that Faraclas had stolen her lab report. She intentionally provided false information on a campus security report in order to discredit Faraclas.
On November 16, 1999, Guggenheim "stalked" Faraclas by following her around for 1 1/2 hours.
In September 1999 during a Physiology class, Faraclas asked a question. Guggenheim then interjected, "This discussion is not of interest to me. I would like to move on."
On February 27, 2001, Faraclas objected when Guggenheim sought to change the date for a midterm examination. Afterward Guggenheim yelled at Faraclas, made accusations against her and demanded answers.
As to the conduct of Botwick, Pataky and Guggenheim, Faraclas states that as a result of each of their conduct, she was caused to suffer severe emotional distress.
The defendants assert that their conduct, even when considered in the light most favorable to Faraclas, is not sufficiently extreme and outrageous to satisfy the requirements of intentional infliction of emotional distress. Faraclas, on the other hand, asserts that the cumulative effect of each defendants' conduct meets the required standard of outrageousness.
In order for a plaintiff to prevail in a case for intentional infliction of emotional distress, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of the actor's conduct; (2) that the distress was extreme and outrageous; (3) that the defendant's conduct was the cause of plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe. Petyan v. Ellis, 200 Conn. 243, 253 (1986). Whether the defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Bell v. Board of Education, 55 Conn.App. 400, 410 (1999). Only where reasonable minds disagree does it become an issue for the jury. Id.
Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by a decent society. Appleton v. Board of Education, supra 254 Conn. 210. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" 1 Restatement (Second) Torts § 46, commend (d), p. 73 (1965). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based on intentional infliction of emotional distress. Appleton v. Board of Education, supra, 254 Conn. 211.
Applying the above standard to the present case, the court finds that the conduct of Botwick and Pataky is not sufficiently extreme and outrageous to meet the requirement for intentional infliction of emotional distress. While such conduct may be insulting, rude and display poor manners, it is not tortious.
The conduct of Isadore Guggenheim is different. Construed in favor of the plaintiff, such conduct presents an issue of fact for the trier on the element of extreme and outrageous conduct. Of particular significance is Faraclas' sworn statement that Guggenheim made a false complaint of theft against Faraclas to campus security. Absent this, the conduct falls short of the level of extreme and outrageous. A false complaint of theft (an offense of moral turpitude) against a professional school student, however, could be viewed as outrageous. While the defense asserts that upon investigation by the University this claim was determined to be unfounded, for purposes of the present motion the facts must be viewed in plaintiff's favor.
Whether there was an official determination that the theft complaint was unfounded is unclear from the record. The exhibit referenced by the defendants in their brief, Exhibit 9, is the finding of the Disciplinary Committee that Faraclas' complaints were unfounded, it does not mention Guggenheim's complaint.
Accordingly, as to the claims of intentional infliction of emotional distress, summary judgment is granted as to the first count (Botwick) and second count (Pataky) but denied as to the third count (Guggenheim).
B. Negligent Infliction of Emotional Distress
In the fourth count, the plaintiff alleges negligent infliction of emotional distress against Anthony Ross, associate dean of the college ("Dean Ross"). The plaintiff states that Dean Ross engaged in the following conduct.
As a general matter, Dean Ross refused to take action as to Faraclas' complaints and pressured her to drop or not pursue some complaints. In particular. Faraclas had made a complaint against another student, Marina Franzoni, who allegedly had threatened to kill her. Ross pressured Faraclas to drop her complaint stating: "You wouldn't want to go ahead with the hearing would you if it meant you would get dismissed from the program, would you?"
After Faraclas had attended an unassigned laboratory class in order to make up for a missed laboratory class, Ross sent her a "strongly worded" note that she was not to go to an unassigned lab. It was customary for students to make up lab work in this way.
Ross refused to take action regarding Guggenheim's behavior toward Faraclas. Ross slammed his fist on his desk when Faraclas said that she intended to go outside the school regarding Guggenheim's allegedly false theft complaint.
On March 8, 2000, Ross confronted Faraclas in a public stairwell of the school regarding her absence from a mid-term exam. Other students were in the vicinity. During this confrontation, Ross accused Faraclas of intentionally failing to check her mailbox and "twisting things."
Ross did not take any action regarding a student's inappropriate joke directed at Faraclas nor regarding Botwick's "hissing."
On August 25, 2000, Ross accused Faraclas of unprofessional behavior and handed her a notice of a disciplinary hearing. Faraclas believed that Ross was "persecuting" her for her prior complaints of harassment against some of her classmates.
In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345 (1978), our Supreme Court recognized for the first time that recovery for unintentionally caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact. A defendant, however, is not liable unless the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm. Id. Applying this tort to cases like the present one, the central issue is whether the defendant's conduct was sufficiently wrongful such that the defendant should have realized that the conduct involved an unreasonable risk of causing emotional distress and that such distress, if caused, might result in illness or bodily injury. Perodeau v. Hartford, 259 Conn. 729, 751 (2002). Moreover, an individual making an emotional distress claim must show that a reasonable person would have suffered emotional distress that might result in bodily harm. Id., 755; see 3 F. Harper, F. James O. Gray, Torts (2d Ed. 1986) 18.4, p. 691 ("Generally defendant's standard of conduct is measured by the [emotional] reactions to be expected of normal persons . . . Activity may be geared to a workaday world rather than the hypersensitive.")
Contrary to plaintiff's statement her deposition testimony and other items in the record establish that Dean Ross and the University did investigate the so-called death threat complaint. The result of that investigation was that the complaint was determined to be exaggerated with no actual threat of physical violence, but Ms. Franzoni was reprimanded for using inappropriate language.
Dean Ross asserts that no reasonable jury could find his conduct negligent such that it involved an unreasonable risk of causing emotional distress. In addition, Dean Ross asserts that as a matter of public policy imposing tort liability based on a university administrator's decisions would be disruptive to the educational process. Dean Ross urges the court to apply the reasoning used by our Supreme Court when, in the employment context, it restricted application of negligent infliction of emotional distress to conduct occurring during the termination process. See Perodeau v. Hartford, 259 Conn. 729 (2002).
Whatever the merits of Dean Ross' public policy argument, this court is not basing its decision on that ground. The court finds, however, that even when construed in plaintiff's favor, Dean Ross' conduct is not sufficiently wrongful such that it involved an unreasonable risk of causing emotional distress that might result in illness or bodily harm. In the educational context, administrators make decisions that may distress students, but more is required to make such distress actionable in tort. The administrator's decision must be so wrongful that emotional distress involving illness or bodily harm was foreseeable. Dean Ross' alleged conduct does not meet this standard.
Summary judgment is granted as to count four.
C. Breach of Contract
In the fifth count, Faraclas seeks damages for breach of contract asserting that she was terminated as a student in violation of the due process procedures contained in the contract (both written and implied) between her and the University. By letter dated May 24, 2001, Dean Peter Martin terminated Faraclas from the College by administratively withdrawing her registration. This letter followed a Disciplinary Committee proceeding where Faraclas' complaints against seven students were considered and found to be without merit. No hearing was conducted relating to Faraclas' administrative termination.
The University asserts that the College Handbook provides that the college "reserves the right to cancel the admission or registration of individuals whose attendance at the college, in the opinion of the appropriate administrative officers and dean, is not mutually beneficial to the person and to the institution." The University further asserts that this reservation of right fully authorized Dean Peter Martin's decision to administratively withdraw plaintiff's registration.
Faraclas asserts that the Student Handbook for the College of Naturopathic Medicine (Handbook) provides for an array of due process procedures regarding student discipline and termination. Handbook, pp. 23-25. These include notice of charges, a hearing process, and right of appeal. Id. The gist of Faraclas' claim is that she was not accorded any of these rights prior to being terminated.
The University argues that the Handbook also contains a disclaimer that "the policies and procedures defined in the Handbook are subject to change without notice." The University asserts that this disclaimer undermines Faraclas' claim that the Handbook's due process provisions are contractual terms. Hope Academy of Milford v. Fortier, Superior Court (judicial district of Ansonia-Milford at Milford, docket no. CV 03-081072-S (April 13, 2004) (Cremins, J.)). The University also asserts that the rule in Connecticut is that a court should defer to a school's interpretation of its rules. Soderbloom v. Yale University, 5 Conn. L. Rptr. 513 (1992).
On the present record, there exists issues of fact as to whether a contract existed between Faraclas and the University, what its terms were, and whether it was breached. It is notable that the University's decision on its merits is not what is being contested, but rather the process used to reach that decision. This distinguishes the present case from the decisions cited by the University. See e.g., Hope Academy v. Fortier, supra (challenging, as a breach of contract claim, concerning nature of private school's curriculum); Soderbloom v. Yale University, supra (challenging, as a breach of contract claim, termination of wrestling program); Gupta v. New Britain General Hospital, 239 Conn. 574, 590 (1996) (challenging, as a breach of contract claim, quality of residency program). Moreover, whether the disclaimer language cited by the University eviscerates any contractual obligation to adhere to the due process provisions in its Handbook presents an issue of fact. In this regard, the authority relied on by the University considered more explicit disclaimers than that in the Handbook. See 46 A.L.R.S. 5th 581, 604 citing Easley v. University of Michigan Bd. Of Regents, 627 F.Sup. 580, 586 (E.D. Mich. 1986) (language that information in University Bulletin "is subject to change at any time. It is intended to serve only as a general source of information about the Law School and is in no way intended to state a contractual term" precluded student from asserting that statements in Bulletin were contractually binding on school.).
Since there are issues of fact on plaintiff's breach of contract claim, summary judgment must be denied.
D. CUTPA
In the sixth count plaintiff alleges that the University engaged in unfair trade practices for which she seeks damages. Summary judgment must be granted in favor of the defendants on this count for two reasons. First, to the extent the count seeks CUTPA recovery based on educational malpractice, such a cause of action is not recognized in Connecticut. Gupta v. New Britain General Hospital, supra, 239 Conn. 574 (1996). Second, to the extent CUTPA recovery is based on the University's alleged breach of contract, a simple breach of contract does not violate CUTPA. Petro v. K-Mart Corporation, Superior Court, judicial district of Waterbury, docket no. 94 0123768 (October 6, 1997, Pellegrino, J.) 20 Conn. L. Rptr. 498 (collecting cases). Moreover, the court does not find that sufficient aggravating circumstances exist to elevate the breach of contract claim to a CUTPA violation.
Summary judgment is granted on the sixth count.
E. Fair Employment Practices Act
The plaintiff does not object to the entry of summary judgment on the seventh count that alleges violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq.
CONCLUSION
For the reasons set forth above, summary judgment in favor of the defendants is granted as to the first count (intentional infliction of emotional distress — Botwick), second count (intentional infliction of emotional distress — Pataky), fourth count (negligent infliction of emotional distress — Dean Ross), sixth count (CUTPA), and seventh count (Fair Employment Practices Act). Summary judgment is denied as to the third count (intentional infliction of emotional distress — Guggenheim) and fifth count (breach of contract).
So Ordered.
Devlin, J.