Opinion
No. CV 02 0087357S
August 27, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
The matter before the court is the defendants' motions for summary judgment. The plaintiff town official claims that the defendants defamed him by writing a critical letter to the editor, which the defendants caused to be published in two local newspapers. The letter accused the plaintiff of being dishonest and deceitful or incompetent and derelict in his duties as Chairman of the Kent Board of Education. Specifically, the defendants wrote that the plaintiff's statements concerning a school building project were "so obviously false that it is laughable." They charged that the school construction planning process was "fatally damaged by those in charge," implicitly including the plaintiff. They rhetorically asked: if the plaintiff can "make such an obviously false statement directly to the faces of over a hundred people at a town meeting, who can trust any other allegation of fact, estimate, cost, condition, etc., made by him?" The letter stated that the public could not have confidence in the plaintiff because he threw about "widely divergent" figures whenever convenient. The defendants sent identical letters to two newspapers, but one of the newspapers edited the letter, by changing the phrase "obviously false statement" to "seemingly false statement." The plaintiff had been a member of the school board for many years at the time of the publication and resigned his position after the publication of the letters. During his tenure he was asked to assume leadership roles, including chairing the school building committee. The school construction project was a hotly contested issue in the town. The plaintiff contends that the defendants challenged his statements based on a factually incomplete document. He claims that by writing the two letters, the defendant not only libeled him, but did so with the intent to inflict upon him emotional distress.
The defendants admit they wrote the letters, but insist that they are entitled to summary judgment on several bases. They claim they were exercising their First Amendment right of free speech, that the plaintiff cannot prove malice in that they did not know the plaintiff and therefore did not act maliciously, and finally, that the letter was not extreme and outrageous. Both motions are addressed on this decision.
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton v. Board of Education, 254 Conn. 205, 209 (2000) (internal citations omitted). "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Beers v. Bayliner Marine Corp., 236 Conn. 769, 771 n. 4 (1996). "The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence." 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 567 (1994). "If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." Id. (Internal quotation marks omitted).
The defendants argue that courts do not hesitate to grant summary judgment on defamation claims such as the instant case, citing as examples Strada v. Connecticut Newspapers, Inc., 193 Conn. 313 (1984) (affirming summary judgment for the defendant on defamation claim where the record substantiated the truth of the allegedly defamatory statement). The truth of the claims are not substantiated by the record in this case. The defendant also cites Lyons v. Heid, No. CV 9403 111755, 1998 WL 309797 (Conn.Super. May 29, 1998) (Stevens, J.) ( 22 Conn. L. Rptr. 45), in which the court granted summary judgment on defamation claim where the plaintiff failed to show by clear and convincing evidence that the defendant acted with actual malice in publishing allegedly defamatory statements about a public official. In that case the defendant was a publisher of a newspaper and the language was not inflammatory. In this case the allegations of dishonesty, deceit, incompetence and unreliability are purely gratuitous and highly inflammatory. The defense cites Lizotte v. Welker, 45 Conn.Sup. 217 (1996), in which the court granted summary judgment for a newspaper on a defamation claim. In that case, the court described the allegedly offensive language as "suggestive, raising an inference of bribery." Id. at 217. "The alleged defamation in this case is not suggestive, but rather a series of direct accusations challenging the plaintiff's honesty, ethics, competency and diligence. The defense also cites Goodrich v. Waterbury Republican-American Inc., 188 Conn. 107 (1982), in support of summary judgment, but that case involved a directed verdict not a motion for summary judgment. All of the other cases cited were from other jurisdictions. All of the precedents relied upon are distinguishable.
The defense argues that the Plaintiff's defamation claims in counts one and two fail because there are no untrue statements of fact contained in either letter. The defendant correctly asserts that in order to prevail the statement complained about must be an unprivileged publication of a false and defamatory statement." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316 (1984), citing Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781 (1974). "Truth is an absolute defense to an allegation of libel." Id. "Moreover, the words must be viewed in the context of the entire statement and the surrounding circumstances." Lyons v. Held, supra, citing Woodcock v. Journal Publishing Co., 230 Conn. 525, 554 (1994). The plaintiff claims that the statements made in the letter are untrue and were made recklessly, without regard to the truth or falsity, with the intent to harm the plaintiff. Whether the statements are true is a question of fact. Therefore the defendants are not entitled to summary judgment on this basis.
"Under the first amendment to the United States constitution, a public official, in order to recover damages for a defamatory falsehood relating to his or her official conduct, must prove that the statement was made with actual malice." Id., citing New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26 (1964). "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." Id., citing Sullivan, 376 U.S. at 279-80, 84 S.Ct. at 725-26. "Moreover, a public official must prove actual malice by clear and convincing evidence in order to prevail in a defamation action." Id. see also, Abdelsayed v. Narumanchi, 39 Conn.App. 778-81 (1995).
The defendants assert that even assuming arguendo that any of the statements contained in either letter were false, the plaintiff's defamation claim nonetheless fails because he can produce no evidence — let alone evidence to meet the "clear and convincing" evidence standard, as required by a public official claiming he was defamed — that the plaintiff made the statements with actual knowledge of their falsity or with reckless disregard of whether they were false. Furthermore, the defendants argue that to the extent the plaintiff is claiming that the defendant falsely implied that the plaintiff was lying or fabricating statistics (see Complaint, ¶ 11-13), and assuming, arguendo, that such implications, in the absence of any direct statement that the plaintiff lied or fabricated statistics, can suffice to support a defamation claim, the plaintiff must show that the defendant knew that the plaintiff did not lie or fabricate statistics, or else recklessly disregarded whether it was true that the plaintiff lied or fabricated statistics. In support of this argument, the defendant makes factual denials upon which the court cannot rely and are merely indicative of the existence of genuine issues of material fact as the plaintiff's claims are contrary to the defendant's asserted facts. The tone and tenor of the letters in and of themselves reasonably could be interpreted as clear and convincing evidence of "actual malice" on the part of the defendants or reckless disregard for the truth.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Appleton v. Board of Education, 254 Conn. 205, 210 (2000); quoting Petyan v. Ellis, 200 Conn. 243, 253 (1986). It should be noted that Petyan v. Ellis involved the absolute immunity of statements made in judicial and quasi-judicial proceedings and the affirmance of a motion for a directed verdict and not a motion for summary judgment where the court lacks the benefit of evidence concerning disputed factual claims. "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 upon intentional infliction of emotional distress . . . [T]here is liability for conduct exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a serious kind." Mellaly v. Eastman Kodak Company, 42 Conn.Sup. 17, 19-20 (Conn.Super. July 11, 1991) (Berdon, J.), quoting W. Prosser W. Keaton, Torts (5th Ed. 1984), § 12, p. 60. "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." Id., quoting Restatement (Second), Torts § 46, comment (d).
"The plaintiff has alleged and it is conceivable that he could prove conduct considerably more egregious than that experienced in the rough and tumble of everyday life." Whelan v. Whelan, 41 Conn.Sup. 519, 522, 3 Conn. L. Rptr. 135 (Conn.Super, Jan. 15, 1991) (Blue, J.). "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." Id. at 523.
The Connecticut Supreme Court and the Connecticut Appellate Court have both clearly held that it is for the court to determine in the first instance whether alleged conduct of a defendant may, as a matter of law, be found to satisfy the elements of an intentional infliction claim. See Appleton v. Board of Education, 254 Conn. 205, 210 (2000) (reinstating trial court's grant of summary judgment on intentional infliction claim after Appellate Court initially reversed, stating, "[w]hether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds [may] disagree does it become an issue for the jury"); Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 712 (2000) ("whether the defendant's conduct and the plaintiff's resulting distress are sufficient to satisfy . . . these elements is a question, in the first instance, for [the] court"), quoting Bell v. Board of Education, 55 Conn.App. 400, 409-10, 739 A.2d 321 (1999).
Viewed in a light most favorable to him, the pleadings and the affidavit filed by the plaintiff substantiate his claim that there are genuine issues of material fact with respect to his claim of libel. The defendant's respective motions for summary judgment are denied.
By the Court
Hon. Vanessa L. Bryant