Summary
granting summary judgment on an IIED claim where only the characterization of allegedly "false" events was disputed, not that they actually occurred
Summary of this case from Acevedo v. SklarzOpinion
No. X10-UWYCV01-40102269S.
November 20, 2006
MEMORANDUM OF DECISION
Before the court is defendant's motion for summary judgment on the complaint which sounds in intentional infliction of emotional distress filed by the plaintiff, Richard Mauzy. These claims arise from plaintiff's arrest subsequent to a June 7, 1996 complaint to the police filed by the defendant Trisha Robinson. The plaintiff filed a memorandum in opposition and a hearing was held on the matter. For the reasons set forth herein, the motion for summary judgment is granted.
Although the defendant's motion for summary judgment requests the court to dismiss the malicious prosecution claim, the court does not read the complaint as claiming malicious prosecution in light of the federal court dismissing that claim with prejudice.
This is defendant's third motion for summary judgment, the prior motions were denied.
The following facts are not in dispute. Mr. Robinson, Trisha Robinson's husband, and Richard Mauzy are cousins. Mr. Robinson inherited the property adjacent to Mauzy from their grandmother. After inheriting the property the Robinsons tore down the grandmother's house and rebuilt. The adjacent lots are each nonconforming and the houses are no further apart than approximately 10 feet. The events leading to the arrest of Mauzy started around May of 1996. Upset that Trisha Robinson would set her car alarm at night awakening him, Mauzy made a day time telephone call to the Robinson home to awaken Mr. Robinson, who worked at night and slept during the day. Mr. Robinson did not answer the call and Mauzy, after initially saying hello several times to the answering machine started banging a hammer on a piece of metal train track, hoping to wake Mr. Robinson. After several minutes of banging on the train track with no response from Mr. Robinson, Mauzy stated "this will continue tomorrow." At that point Mr. Robinson appeared at his door. According to Mauzy, Robinson stated "[y]ou're harassing me." Mauzy then explained how Mrs. Robinson's car alarm disturbed his sleep and Robinson said she forgets to set the alarm when she gets home from work and subsequently sets it later.
Mauzy alleged, in his deposition taken October 18, 1999, that once set the alarm would "ding" 20 times a minute.
On June 7, 1996 around 1:30 a.m. Trisha Robinson was awakened by the sound of bottles breaking outside her bedroom window. She opened her window and inquired of Mauzy what was going on. She alleges that Mauzy stated that her air conditioner had awakened him and that the temperature was too cool for the air conditioner to be running. The next morning Mauzy appeared at the store, Shoetique, where the defendant worked. Although he wanted to speak to her he was unable since she hid when she saw him entering the store. She requested that the store's manager, Lora Kohloff, tell him that she did not wish to speak to him. Upon being told this, Mauzy stated that he would take "legal routes."
Subsequently the defendant called her attorney who knew of the incidents between the two parties. He advised her to call the police which she did. Officer DelPivo of the Branford Police Department was sent to the store where he interviewed both the defendant and Lora Kohloff. Delpivo then attempted to interview Mauzy but he was unable to interview him. After consulting the lieutenant and the deputy chief with the information gathered through his investigation DelPivo was authorized to draft an application for a warrant. The application was then reviewed by the lieutenant and deputy chief and sent to the prosecutor with a copy of the taped phone message. On August 30, 1996, after the arrest warrant was issued, Mauzy turned himself in to be arrested. On January 17, 1997 the criminal charges were nolled.
Officer Delpivo, in his deposition testimony, states then when he attempted to speak to Mauzy about his side of the story Mauzy "became loud and belligerent" Mauzy claims, in his deposition of May 8, 2003, that Delpivo called and yelled "[i]f you ever set foot in Shoetique again, you will be arrested." Mauzy then stated that he couldn't talk at that moment since he was waiting for his attorney to return his call.
13 months after a nolle has been entered in Superior Court all police, court, and prosecuting attorney records pertaining to the charges shall be erased. C.G.S. § 54-142(a)(c).
The plaintiff's initial complaint, dated August 21, 1998, alleged three causes of action against the defendant; it sounded in malicious prosecution, intentional infliction of emotional distress and a 42 U.S.C. § 1983 claim arising from a burping incident. The § 1983 claim was also asserted against Lt. Kohloff. The case was removed to federal court where, after discovery, the § 1983 claims were dismissed on summary judgment. The claims for malicious prosecution were dismissed with prejudice based on the plaintiff's admission that the prosecution was insufficient to permit a malicious prosecution claim. The court declined to exercise pendent jurisdiction over the state law claim for intentional infliction of emotional distress. In state court, a second complaint dated June 18, 2001 was filed by the plaintiff against Trisha Robinson. The complaint is in one count sounding in intentional infliction of emotional distress. Defendant filed an answer, a counter-claim for vexatious litigation as provided for in C.G.S. § 52-568 and asserted a special defense of statute of limitations. Subsequently defendant amended her special defenses adding: defendant's reliance on counsel; qualified privilege and immunity; res judicata and collateral estoppel.
On or around July 7, 1996 Mauzy was instructed by Lt. Kohloff not to burp at Mrs. Robinson after she allegedly complained to the police about Mauzy burping at her. This incident was not the basis for Mauzy's arrest.
"Practice Book § 17-49 provides that 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. 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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . ." (Internal citations and quotation marks omitted.) Cantonbury Heights Condominium Ass'n, Inc. v. Local Land Development, LLC, 273 Conn. 724, 733, 873 A.2d 898 (2005).
The defendant makes several arguments in support of her motion for summary judgment. She contends that her reliance on the advice of counsel is an absolute defense to civil liability; that she is entitled to a qualified privilege regarding her criminal complaint and is immune from liability; and that the privileges applicable to plaintiff's malicious prosecution claim also bar his claim for intentional infliction of emotional distress. Finally she asserts that her conduct was not outrageous and plaintiff's distress was not severe and therefore the intentional infliction of emotional distress claim must fail regardless of her special defenses. Plaintiff in opposing the summary judgment motion argues that defendant's accusations to the police were false and such conduct is among the type that has been held to be "extreme and outrageous" therefore meeting the requirement to impose liability for intentional infliction of emotional distress. Plaintiff did not respond to defendant's special defenses in his brief in opposition to the motion for summary judgment.
To prevail on a claim of intentional infliction of emotional distress, "[i]t must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the 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." Hiers v. Cohen, 31 Conn.Sup. 305, 329 A.2d. 609 (1973); 1 Restatement (Second), Torts § 46; Murray v. Bridgeport Hospital, 40 Conn.Sup. 56, 62, 40 A.d2, 610 (1984).
In his complaint the plaintiff claims the defendant maliciously made false accusations to persuade Officer DelPivo that there was probable cause to arrest and prosecute the plaintiff while concealing her own harassing and abusive behavior towards the plaintiff. The plaintiff contends that the aforementioned actions of the defendants were "extreme and outrageous." Inevitably then the court must revisit the incident to determine if there remains a question of fact as to whether defendant's conduct was malicious, thus allowing this element of plaintiff's claim of intentional infliction of emotional distress to survive the current motion.
In claiming the defendant's conduct was malicious the court considers that standard reposed in the last two elements of a malicious prosecution claim. "An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." McHale v. W.B.S. Corporation, 187 Conn. 444, 448, 446 A.2d. 815 (1982). "In Goodrich v. Warner, 21 Conn. 432, 436 (1852), the court noted that if an informant fairly and honestly lays before arresting authorities his belief of the commission of a crime and has no other connection with the prosecution, he is not liable." LaFontaine v. Family Drug Stores, 33 Conn.Sup. 66, 76, 77, 360 A.2d 899 (1976).
Although it may have been foreseeable to the defendant that filing a complaint with the police could cause the plaintiff emotional distress, she did nothing more than seek to enforce her rights. To sustain a claim based upon the facts would be poor public policy. Whether her complaint would result in an arrest warrant being issued was not in the control of the defendant. Although the plaintiff claims the defendant persuaded DelPivo that there was probable cause to arrest him, Delpivo, in his deposition, notes that the defendant did not pressure him to arrest the plaintiff and that the defendant did not want the plaintiff arrested for fear of how he would react. DelPivo explained how the decision was in his discretion and how he primarily relied on the taped message of the banging where the plaintiff states "this will continue tomorrow" and Ms. Kohloff's corroboration of the events at Shoetique. DelPivo also sought review from his lieutenant and deputy chief after drafting his complaint. He sought review for the application for a warrant and then he sent the warrant and a copy of the tape to a prosecutor who sent it to a judge who made the determination to issue an arrest warrant.
"A person is guilty of harassment in the second degree when: . . . (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm." C.G.S. § 53a-183(a)(3). Based upon Mauzy's May 8, 2003 deposition testimony where he stated "[t]he communication was that I wanted him to experience the effects I was getting all night long trying to sleep, being prevented from sleeping and to abruptly wake him up out of his sleep . . ." and the tape recording, where he bangs a hammer on a piece of metal train track and states "this will continue tomorrow," there was probable cause for an arrest under C.G.S. § 53a-183(a)(3) for this one incident. Indeed, a warrant for Mauzy's arrest would not have been issued without a finding of probable cause by a judge.
The plaintiff also claims that the defendant acted maliciously in filing a complaint with the police, however there is no evidence that the defendant acted maliciously. The evidence is that the defendant was fearful and wanted some form of protection. The defendant did not want Officer Delpivo to pursue an arrest for fear of how the plaintiff would react. Ms. Kohloff's testimony notes how the defendant appeared fearful when the plaintiff entered Shoetique, and that the defendant hid to avoid the plaintiff. Lastly the plaintiff argues the defendant made false claims since the car alarm was no longer a problem after May 12, 1996, yet the plaintiff notes she was having problems with her car alarm in a report dated June 7, 1996. That the plaintiff no longer heard the car alarm does not imply that the defendant was falsifying evidence when she reported she was having problems with the car alarm, only that he no longer heard the alarm.
There is no factual issue that remains before the court regarding plaintiff's claim. In his opposition brief Mauzy references deposition testimony where, under oath, he claims that Robinson's accusations against him were false.
Q. Okay. So when you are charged — When you were charged with harassment in the second degree, that related to the incident at Shotik [sic] or did it relate to another incident? Do you know what incident it related to? A. It related to a fictitious incident, a nonexisting incident that never happened. Q. Can you tell me what that nonexistent incident was? A. No, I can't cause it didn't exist.
Mauzy deposition of May 8, 2003, pg. 58. Relying on Gilman v. Gilman, 46 Conn.Sup. 21, 736 A.2d 199 (1999), he contends that the false accusations are precisely the type which have been held as "extreme and outrageous" to impose liability under intentional infliction of emotional distress. However the facts in Gilman v. Gilman, differ materially. In Gilman v. Gilman the defendant knowingly made a false report to the police alleging that her husband, whom she was separated from, was smoking marijuana at home. When the police arrived they found Gilman eating dinner with his girlfriend and after questioning determined that he was not smoking marijuana. In the present case the plaintiff claims the charges leading to his arrest were procured by false incidents, his own testimony confirms that the incidents did occur. The police report referenced three incidents; the car alarm incident which lead to Mauzy calling the Robinson household and leaving the message of a hammer banging on train track; the incident at 1:30 a.m. where he was putting bottles in his recycling bin; and the incident at Shoetique. The plaintiff admits that he did call the Robinson household to get the attention of Mr. Robinson and that failing to get Mr. Robinson to answer the phone he did bang on a piece of metal railroad track. He admits that one night at 1:30 a.m. he did make noise accidentally breaking glass bottles when he tossed them into the recycling bin. And lastly he does admit that he did visit the shop where Mrs. Robinson worked the next day stating something to the effect that she would hear from his lawyer(s). Where the parties differ is in their experience and portrayal of these events. The defendant claimed the bottles were being broken intentionally while the plaintiff claims they broke accidentally while being put in the recycling bin. The plaintiff claims he was stopping by Shoetique because he was in the area and wanted to tell her that he might have a remedy for the air conditioner. The defendant stated that she was frightened because of the events of the previous night and hid when she saw the plaintiff enter the store.
The federal court found, based upon the plaintiff's admission, that the facts do not satisfy all the elements of a malicious prosecution claim. After a review of the uncontroverted facts there is no factual basis for an intentional infliction of emotional distress claim based upon the same conduct. Therefore, although the court need not reach the defendant's special defenses, the court notes that, in any case, the defendant would prevail as a matter of law on her special defense of a qualified privilege under the above uncontroverted facts. The reasonableness of the defendant's belief that led to filing the police report is not relevant for determining whether a qualified privilege exists. In McHale v. W.B.S. Corporation, 187 Conn. 444, 446 A.2d 815 (1982) the reasonableness of the informer's belief was clarified: "[i]n our judgment, a proper concern for private assistance to public law enforcement officers requires immunity from liability for malicious prosecution for the citizen who, in good faith, volunteers false incriminating information. To impose upon such a citizen the burden of having his conduct measured, retrospectively, by the standard of a reasonable person, would necessarily have a chilling effect on the willingness of a private person to undertake any involvement in the enforcement of the criminal laws." Id. at 450. In filing her complaint with the police the defendant's actions were neither extreme nor outrageous. Whether it was reasonable the court need not entertain. What is relevant is that the events the defendant relayed to Officer DelPivo actually did occur. As noted in Peyton v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986): CT Page 21573
The Restatement of Torts (1948 Sup.) 46 provides "[o]ne who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily injury resulting from it." (Emphasis added.) Although 1 Restatement (Second), of Torts (1965) 46 does not contain the same reference to privilege, the issue of privilege, in the context of the intentional infliction of emotional distress, is discussed in comment (g): "The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress." Peyton v. Ellis, Id. at 254-55 (1986).
"The law governing malicious prosecution seeks to accommodate two competing and ultimately irreconcilable interests. It acknowledges that a person wrongly charged with criminal conduct has an important stake in his bodily freedom and his reputation, but that the community as a whole has an even more important stake in encouraging private citizens to assist public officers in the enforcement of the criminal law. 1 F. Harper F. James, Torts (1956) 4.11." McHale v. W.B.S., supra, 147-48.
The motion for summary judgment is granted. The only remaining matter before the court is the defendant's counter-claim alleging vexatious litigation.