Opinion
No. CV09 5005371S
September 15, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#104)
The plaintiff, Amie Morse, has brought an amended ten-count complaint against the defendants alleging numerous causes of action. The defendants have moved to strike claims set forth by the plaintiff as follows: (1) Invasion of Privacy (count one), (2) Intentional Infliction of Emotional Distress (count two), (3) Negligent Infliction of Emotional Distress (count three), (4) Negligence (count four), (5) Recklessness (count five), and (6) Invasion of Privacy — Appropriation of Likeness (count nine).
The opposing arguments of the parties and the court's analysis are set forth below after a summary of the factual basis of the plaintiff's claims.
On October 23, 2009, the plaintiff brought her amended ten-count complaint against the defendants, Connecticut Community for Addiction Recovery, Inc. (CCAR) and Diane Potvin (Ms. Potvin). In it, she alleges the following in paragraphs 1 through 20. CCAR "is a Connecticut non-stock corporation . . . organized to promote recovery from alcohol and other drug addiction, while ensuring that all people in recovery, and people seeking recovery, are treated with dignity and respect . . . Defendant CCAR invites persons in recovery or seeking recovery to access services through its Recovery Community Centers . . ." Ms. Potvin "was employed by defendant CCAR as the manager of its Windham Recovery Community Center [(the Center)]" and "provided counseling and/or `recovery coaching' at [the Center] to visitors and members, which consisted of her serving as a personal guide and/or mentor for people seeking or already in recovery, who experienced difficult emotional and physical states . . . Defendant Potvin used her understanding of substance use and mental disorders, crisis intervention and how to respond in crisis situations to provide said counseling and/or `recovery coaching.'" Defendants "represented that persons who sought counseling and/or `recovery coaching' could disclose private information to [defendant Potvin] that would be kept confidential . . . Defendant Potvin and CCAR represented that persons who sought counseling and/or `recovery coaching' could disclose private information to her that would be kept confidential . . . Plaintiff disclosed to the defendants private information, including that she had relapsed and was incarcerated as a result, and sought counseling and/or `recovery coaching' at [the Center] regarding the same . . . Plaintiff told the defendants that she felt ashamed of her relapse and incarceration . . . The information disclosed to defendants . . . was private and not generally known to the public . . . As part of the defendants' counseling and/or `recovery coaching,' they represented to the plaintiff that the information shared by plaintiff would be kept confidential . . . Thereafter . . . defendant Potvin disclosed the plaintiff's private information to other visitors or CCAR members at [the Center] without plaintiff's knowledge or consent . . . [T]he defendants . . . published . . . CCAR's Annual Summary of Activities [(Annual Summary)] . . . [that] reported that CCAR was engaging in `recovery coaching' and gave examples of `real scenarios' from the Recovery Community Centers . . . As a `real scenario,' the Annual Summary . . . listed `Amie coming back from a relapse and then going to jail.' . . . [T]he defendants . . . published or assisted in publishing the Annual Summary . . . on CCAR's website, which was accessible to the general public . . . [and] [t]hereafter . . . became available on various search engines and websites on the internet . . . At no time prior to publication of the Annual Summary . . . was plaintiff informed that her private information shared in a support group and in counseling/recovery coaching would be published, nor did she give her consent to its publication . . . [T]he plaintiff discovered the existence of the Annual Summary . . . and its publication on the internet when she was approached by persons who informed her of the same . . . It was possible to discern from the information disclosed in the Annual Summary . . . that the plaintiff was the person referenced therein."
The plaintiff claims invasion of privacy, intentional and negligent infliction of emotional distress, negligence, recklessness, breach of fiduciary duty, intentional and negligent misrepresentation, invasion of privacy by appropriation of likeness, and vicarious liability as to CCAR. She alleges damages including "severe mental, physical and emotional distress, requiring treatment by one or more physicians and/or mental health professionals, medical bills, damage to her personal and professional reputations, loss of earning capacity, humiliation and embarrassment . . . and attorneys fees and costs."
The defendants filed their motion to strike (#104) counts one, two, three, four, five and nine of the plaintiff's amended complaint, with a supporting memorandum of law, on December 17, 2009. The plaintiff filed her memorandum in opposition on February 26, 2010. The matter was heard on the short calendar on May 17, 2010. Thereafter, the plaintiff filed her supplemental memorandum in opposition on May 21, 2010.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771 (2002). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . It is fundamental that in determining the sufficiency of a complaint [or a count in a complaint] challenged by a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Doe v. Board of Education, 76 Conn.App. 296, 299-300 (2003).
I. Count One: Invasion of Privacy
The defendants first move to strike count one of the plaintiff's amended complaint for invasion of privacy.
In count one for invasion of privacy, the plaintiff alleges paragraphs 1 through 20 above and further alleges that "[t]he information published by defendants concerned the plaintiff's private life, such that the publication would be highly offensive to a reasonable person and would not be of legitimate concern to the public."
Defendants argue in their memorandum of law that although the plaintiff labels her claim broadly as one for "invasion of privacy," the privacy interest of "unreasonable publicity given to the other's private life" most clearly fits her allegations but fails because disclosure of a someone's relapse and that she went to jail cannot be considered highly offensive to a reasonable person. First, regarding the Annual Summary posted on CCAR's website, only the plaintiff's first name, "Amie," and mention of "relapse" and "going to jail" were posted. The Annual Summary does not specify the nature of the relapse, and even a relapse resulting in incarceration does not support an allegation that the defendants disclosed "highly offensive" information. Furthermore, the facts allegedly disclosed were a matter of public concern because it is public information. The plaintiff cannot claim invasion of privacy where the information disclosed is a public record to which access is actually protected by statute. Moreover, prisoners are public figures who do not enjoy the same privacy rights as other individuals. Because the plaintiff was incarcerated, the act of her "relapse" and incarceration is a matter of public concern.
The plaintiff disagrees, stating that she has alleged a proper claim for invasion of privacy for giving unreasonable publicity to private facts. She is a private citizen who expected that her personal information, which was not known to the general public, would remain private, especially because the defendants, who had specialized skills caring for persons in recovery, repeatedly reassured her that this information would not be shared publicly. She argues that "[t]he information was shared within the confines of a community center which existed to support persons in recovery under the supervision of persons who were alleged to have special skill in caring for persons in recovery." Her "relapse was not known to the general public and the defendants' publication caused others to approach her." Additionally, she maintains that the court cannot resolve the issue of whether the plaintiff's relapse was known to the public on a motion to strike. Even though criminal records are available to the public, there is no indication from General Statutes § 54-142k(c) that any criminal records available to the public included information regarding the plaintiff's relapse. The plaintiff's allegation that her identity could be, and was, determined from the Annual Summary must be credited as true. In addition, the plaintiff's first name "Amie" has a unique spelling and may have assisted in her identification.
"In Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982), we observed that `the law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, 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 . . . The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A [1977] as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other' name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public.' (Internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 127-28." (Citation omitted; internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007).
Section 652D of the 3 Restatement (Second), Torts defines a tort action for the invasion of privacy, specifically, Publicity Given to Private Life. It provides: "One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." 3 Restatement (Second), Torts § 652D. See also Perkins v. Freedom of Information Commission, 228 Conn. 158, 171, 635 A.2d 783, (1993), on remand, Perkins v. Freedom of Information Commission, Superior Court, judicial district of New Britain, Docket No. CV 92 0702929 (February 1, 1994, Maloney, J.).
Comment (a) to § 652D defines "publicity." It provides in relevant part: "Publicity . . . 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 . . . means of communication . . . may be oral, written or by any other means. It is . . . a communication that reaches, or is sure to reach, the public.
"Thus it is not an invasion of the right to privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section." 3 Restatement (Second), Torts § 652D, comment (a).
Comment (c) to Section 652D provides more details about the kind of publicity that is actionable. In relevant part, it provides: "The rule stated in this Section gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable man. The protection afforded to the plaintiff's interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens . . . The ordinary reasonable man does not take offense at a report in a newspaper that he has returned from a visit, gone camping in the woods or given a party at his house for his friends. Even minor and moderate annoyance, as for example through public disclosure of the fact that the plaintiff has clumsily fallen downstairs and broken his ankle, is not sufficient to give him a cause of action under the rule stated in this Section. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises." (Emphasis added.) 3 Restatement (Second), Torts § 652D, comment (c).
According to the Restatement, the information disseminated must be highly offensive to a reasonable person. In the present case, although the well-known stigma attached to counseling and therapy is slowly lifting, receiving these kinds of services is still a very personal and private matter. It is reasonable to believe that an average person would not want the public to know she was seeking therapy, let alone that she was frequenting a facility to receive recovery coaching, which is most often associated with drug and alcohol addiction. Putting aside for a moment the defendants' disclosure of the plaintiff's incarceration, the disclosure alone that the plaintiff had visited the Center, and that she had a "relapse" would be highly offensive to a reasonable person because it informs the public that she was an addict at one time, and is likely at the Center for her addiction to drug and alcohol, information that tends to be damaging to one's personal reputation.
As to the "publicity" prong, there are two allegations to consider. First, the plaintiff alleges that "defendant Potvin disclosed the plaintiff's private information to other visitors or CCAR members at [the Center] without plaintiff's knowledge or consent." According to the Restatement, the communication must be "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." 3 Restatement (Second), Torts § 652D, comment (a). Even if the plaintiff's full identity was disclosed along with her private information, that information was shared only "within the community" that is, with visitors to the Center and CCAR members. This is a smallish group of individuals and cannot be said to comprise "the public," as seen in other Superior Court cases. See Handler v. Arends, Superior Court, judicial district of New Britain, Docket No. 0527732 (March 1, 1995, Sheldon, J.) (court granting summary judgment on appropriation of likeness claim for defendant who read a memorandum to a committee of ten persons, a discrete group of the plaintiff's colleagues, at a departmental meeting); Balzac v. Stamford Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0143645 (April 2, 1996, Tobin, J.) [ 16 Conn. L. Rptr. 378] (court finding that "[a]n objectionable statement made in the presence of several persons in the waiting room does not rise to the level of publicity as required in an action for unreasonable publicity given to the other's private life"). The information was shared within CCAR and with those visitors who, presumably, came to the Center to receive services — they may be viewed as a discrete group of persons at the Center to receive recovery, and those overseeing such support. It is unknown the number of visitors or CCAR members to whom the plaintiff's information was disclosed. The plaintiff fails to allege that the defendants disseminated this information to so many people that it was substantially certain to become one of public knowledge. From the allegations, it can be inferred that the information was not even widespread within the Center.
Concerning the "real scenarios" that appeared on CCAR's website, however, such a posting is comparable to a publication in a newspaper or other widely circulated group and amounts to the direct publication of private facts. See Matos v. American Federation of State, County and Municipal Employees, Council 4, Superior Court, judicial district of Hartford, Docket No. CV 98 0578747 (August 13, 2001, Hennessey, J.). However, a question remains as to the public's ability to positively identify the plaintiff based on the scant information posted online. The plaintiff alleges that she "discovered the existence of the Annual Summary . . . and its publication on the internet when she was approached by persons who informed her of the same . . . It was possible to discern from the information disclosed in the Annual Summary . . . that the plaintiff was the person referenced therein."
The Superior Court case of Matos, supra, is instructive regarding the possibility of positive identification absent use of the plaintiff's full name. Matos involved a claim for invasion of privacy by false light, decided at trial in favor of the plaintiff, which has the same "publicity" requirement as the plaintiff's claim here for Publicity Given to Private Life. See 3 Restatement (Second), Torts § 652E, comment (a).
Matos was the Deputy Commissioner of the State of Connecticut Department of Corrections and a member of the Connecticut Hispanic Association of State Employees for invasion of privacy. The text of the article published on the union's homepage was: "preceded by a logo of a brain with a Puerto Rican flag on the brain. Just below the logo, the following appear[ed]:
Anyone that belongs to the Connecticut Hispanic Association of State Employees otherwise known as `Chase' may want to look at where the organizations funds have been going over the past month. We are now in the process of investigating a complaint where a high ranking administrator used his position to acquire funds in order to bond out an inmate who raped an eleven year old. Apparently the inmate, was employed by the DOC as a Captain prior to his arrest. Some speculate that this inmate will likely `jump bond' as he is facing in the neighborhood of approximately 20 years. Yes the press is going to investigate, they have been monitoring this page closely since it came on line in January 98.
"At that time the plaintiff was the president of CHASE and at that time the plaintiff was the only high ranking administrator who was of Puerto Rican descent." Matos v. American Federation of State, County and Municipal Employees, Council 4, supra, Docket No. CV 98 0578747.
Regarding identification of the plaintiff, "[t]hough the article does not name Matos as the person being referred to, enough information was given in the article to permit people who saw it to immediately identify Matos as the person being written about. And, in fact, that is what happened. The very day the article appeared Matos's name was connected to it by a number of persons who contacted Matos directly including his Supervisor, Commissioner of Corrections, Johnson." (Emphasis added.) Matos v. American Federation of State, County and Municipal Employees, Council 4, supra, Docket No. CV 98 0578747.
In the present case, the posting on the CCAR website that listed "Amie coming back from a relapse and then going to jail" is sufficient to show "publicity." However, the plaintiff fails to allege how the bare-boned "real scenario" posted makes her immediately identifiable and to whom. In Matos, supra, those who read the online article knew the subject of the article was the plaintiff and actually contacted him. The plaintiff, in her memorandum in opposition, argues that the defendants' publication caused others to approach her and that her relapse was not known to the general public, but, in fact, the plaintiff merely alleges that she "discovered the existence of the Annual Summary . . . and its publication on the internet when she was approached by persons who informed her of the same." This allegation states nothing more than that she was informed by others about the existence of the Annual Summary, not that they read her information online and could positively identify her.
Regarding the public availability of her criminal records, the plaintiff argues that it is not only the disclosure of her incarceration, but also the fact of her relapse that she expected would not be shared publicly. Even if those outside the Center who read the plaintiff's information online could, with some diligence, learn her full identity through publicly available criminal conviction records, this is not the same as the plaintiff alleging that she was immediately recognizable to the outside world. Without such an allegation, the court cannot assume publicity. The defendants are correct that the information posted about the plaintiff does not rise to the level of widespread dissemination to the public at large required by the Restatement.
The defendants' argument that prisoners, as public figures, do not enjoy the same privacy rights as other individuals, and because the plaintiff was incarcerated, the act of her relapse and incarceration are a matter of public concern, fails. In Travers v. Paton, 261 F.Sup. 110, 117 (D.Conn. 1966), the court found that "[e]ven if the facts might be held to constitute an invasion of the privacy of a full-fledged citizen, an average member of the community, no actionable invasion occurs if the subject of such publicity is a prisoner. A prisoner becomes a public figure by virtue of his crime and subsequent trial. Restatement, Torts § 867, Comment c. He remains a public figure during his imprisonment or until he has ` reverted to the lawful and unexciting life led by the great bulk of the community.'" (Emphasis added.) Id. The court then found that the plaintiff had no claim for invasion of privacy.
The court, therefore, GRANTS the defendants' motion to strike count one of the plaintiff's amended complaint for invasion of privacy.
II. Count Two: Intentional Infliction of Emotional Distress
The defendants next move to strike count two of the plaintiff's amended complaint for intentional infliction of emotional distress.The plaintiff incorporates by reference paragraphs 1 through 20 above and further alleges that "[t]he aforesaid conduct on the part of defendants constitutes intentional infliction of emotional distress in that defendants' actions were extreme and outrageous and in that said defendants intentionally and unreasonably subjected plaintiff to severe emotional distress which they knew or should have known was likely to result in illness or other bodily harm."
The defendants argue that the alleged disclosure in the Annual Summary that someone named "Amie" had a "relapse and then went to jail" does not go beyond all bounds of decency. Furthermore, a Connecticut court has granted a motion to strike a claim of intentional infliction of emotional distress where the plaintiff alleged that the defendant disclosed his criminal record to all of the other owners in the plaintiff's condominium complex. The defendants add that the plaintiff's complaint lacks factual allegations to support her conclusory statement that her distress is severe.
The plaintiff maintains that the conduct alleged meets the standard for outrageous conduct sufficient to support a claim for intentional infliction of emotional distress because conduct may become extreme and outrageous in character where the actor knows the victim is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. The plaintiff states that the defendants were aware of her need for support, and their representations that privacy would be maintained acknowledges their understanding that privacy was important to those receiving services. The plaintiff's revelations that she was ashamed of her relapse and incarceration put the defendants on notice that she was in a vulnerable position and was susceptible to emotional distress. Furthermore, there is a question of fact as to whether the plaintiff's relapse was a matter of public knowledge or public interest. There is no indication from the Connecticut statute making conviction records available to the public for any purpose that any such records would necessarily have included information regarding the plaintiff's relapse, so the allegation that her relapse was unknown must be credited as true.
"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 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 . . . Whether 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 disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . ." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
"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, comment (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 upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
"Extreme and outrageous conduct is an essential element in the tort of intentional infliction of emotional distress. See 1 Restatement (Second), Torts § 46. Mere insults, indignities, or annoyances that are not extreme or outrageous will not suffice. Id., comment (e). Such conduct may, however, give rise to a cause of action where the defendant is aware of the peculiar sensitivities of the plaintiff. `The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition, or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.' Id., comment f; see also Prosser, Torts, (4th Ed.) § 12, p. 58." Brown v. Ellis, 40 Conn.Sup. 165, 167 (1984).
In Minichino v. HB Management Corp., Superior Court, judicial district of New Haven, Docket No. CV 08 502191 (December 31, 2008, Cronan, J.), cited by the defendants, the court was presented with a motion to strike a count for intentional infliction of emotional distress where the plaintiff alleged that the defendant anonymously mailed a copy of the plaintiff's criminal arrest record to all owners of the condominium complex where the plaintiff resided. The court looked at General Statutes § 54-142k, entitled "Availability of conviction in formation and nonconviction information," of which subsection (c) provides: "Conviction information shall be available to the public for any purpose." It held that under the statute, "any purpose would seem to include unkind, inconsiderate or unprofessional. A person's criminal record and the release of it cannot therefore reach the level of extreme or outrageous." Id. In the present case, the defendants' disclosure that the plaintiff was incarcerated does not rise to the level of outrageous conduct seen in Minichino, in part because her records were not actually posted on the internet, and only her first name was used as an identifier.
It is not merely the reference to "incarceration," however, by which the plaintiff defends her claim. She maintains that even though her criminal conviction records are publicly available, they would not necessarily have included information regarding her relapse, and it is the disclosure of that information that can be classified as outrageous.
Key Superior Court cases demonstrate the level of outrageousness required for a claim sounding in intentional infliction of emotional distress. In Brown v. Ellis, supra, 40 Conn.Sup. 165, the court was presented with a motion for summary judgment on a claim for intentional infliction of emotional distress. In that case, the plaintiff alleged that his defendant supervisor knew of his disability — a fear of heights — and "assigned the plaintiff to work involving photography at such heights." Id., 166. The court found the defendant's behavior as alleged was sufficient to state a claim for intentional infliction of emotional distress and to survive a motion for summary judgment. Id., 167-68.
In another Superior Court case, Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 20 (1991), the plaintiff alleged that his defendant-employer "knew, prior to his employment, that he had the disease of alcoholism, that he was a recovering alcoholic with approximately eleven years of continuous abstinence from alcohol . . ." His employer "taunted and harassed the plaintiff about his alcoholism and recovery, urging the plaintiff to handle his alcohol and go get drunk; that he indiscriminately yelled and screamed at the plaintiff regarding his recovery from alcoholism, telling the plaintiff no one cares about the plaintiff's recovery and admonishing the plaintiff not to speak about his recovery to any customers; that he harassed the plaintiff concerning the plaintiff's free time, frequently telephoning the plaintiff at home, on days off, and or vacation days; that he frequently threatened the plaintiff with the loss of the plaintiff's job; that he expressed numerous resentments and ill feelings directly and indirectly to the plaintiff; and that he harassed the plaintiff concerning the plaintiff's health, attacking his need to seek medical tests in the summer of 1987 and attacking his medical treatment following the plaintiff's fall on the job in September 1989." (Internal quotation marks omitted.) Id., 21. The court found that "[w]ithin the context that [the defendant] supervised the plaintiff and knew of his disease of alcoholism, [the defendant's] conduct reached the required threshold of outrageousness." Id.
In the present case, while it may have been upsetting for the plaintiff to learn that any of her private information was shared after being assured it would be treated confidentially, the actions of the defendants do not rise to the level of "outrageous." This is so, in large part, because care was taken to keep the plaintiff's information within the Center and not to include sufficient details to disclose her full identity in the Annual Summary to those outside the Center. Although it is conceivable that someone could learn her true full identity through publicly available criminal conviction records, the actions of the defendants in no way resemble the level of harassment seen in Brown, supra, and Mellaly, supra. The plaintiff's allegations do not demonstrate the "indignity" required to survive a claim for intentional infliction of emotional distress.
Regarding the plaintiff's argument that the conduct may be outrageous if it arises from the actor's abuse of a relation with the other which gives him power to affect the other's interests, such that lesser conduct may rise to the level of extreme because a special relationship dictates a higher standard of conduct the relationship between the plaintiff and the defendants in the present case does not resemble the kind of special relationship presented in Mellaly, supra, an employer-employee relationship, or in Le v. Saporoso, Superior Court, judicial district of Hartford, Docket No. CV 09 5028391 (October 19, 2009, Domnarski, J.), a landlord-tenant relationship.,
The plaintiff notes a case from Ohio, holding that a business owner stands in a special relationship to members of the public which necessitates respectful and decent treatment. Even if this were the law in Connecticut, the actions of the defendants cannot be said to be overly disrespectful or indecent.
The plaintiff also cites case law that social context should be a factor when evaluating whether the defendants' conduct is outrageous, and here, because the conduct does not involve the rigors of living in society like the employment setting, but rather the disclosure of personal information by a "confidential support organization," the defendants' disclosure reaches the level of outrageous. It is true that "individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. There are few things more central to a person's life than a job, and the mere fact of being demoted or denied advancement may be extremely distressing. This is simply an unavoidable part of being employed." Perodeau v. Hartford, 259 Conn. 729, 757-58, 792 A.2d 72 (2002), summary judgment granted by Perodeau v. City of Hartford, WL 1543 198 (D.Conn., 2004). As demonstrated by Perodeau, the standard for "outrageous" conduct is not so different from inside as opposed to outside the employment setting.
The plaintiff's claim for intentional infliction of emotional distress does not contain allegations of extreme and outrageous conduct.
The court, therefore, GRANTS the defendants' motion to strike count two of the plaintiff's amended complaint for intentional infliction of emotional distress.
III. Negligent Infliction of Emotional Distress
The defendants next move to strike count three of the plaintiff's amended complaint for negligent infliction of emotional distress.
The plaintiff incorporates by reference paragraphs 1 through 20 above and further alleges that "[t]he aforesaid conduct on the part of the defendants was unreasonable and created an unreasonable risk of forseeable emotional harm . . . The defendants knew or should have known that their actions were likely to result in illness or other bodily harm."
The defendants argue that the plaintiff does not allege any conduct on the part of the defendant that created an unreasonable risk of causing emotional harm, because pursuant to General Statutes § 54-142k(c), "[c]onviction information shall be available to the public for any purpose," and it cannot be unreasonable to disclose information that is required by statute to be available to the public for any purpose.
The plaintiff takes the position that the defendants' disclosure created an unreasonable risk of causing emotional distress because the defendants knew she was emotionally vulnerable and ashamed of the information she disclosed to the defendants. She trusted the defendants, only to be confronted with the very information she entrusted to them. Her distress was forseeable because her vulnerability to this emotional harm should have been recognized by the defendants in light of their special training and their knowledge of the plaintiff's shame surrounding her relapse and incarceration. Furthermore, the plaintiff's emotional response is not unreasonable simply because a member of the community could have allegedly discovered her incarceration through his or her own independent efforts. Furthermore, there is a question of fact about whether the plaintiff's relapse was discoverable as there is no evidence before the court as to the particular contents of any criminal records available to the public and whether they would have included information concerning the plaintiff's relapse.
"To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress . . .' Davis v. Davis, 112 Conn.App. 56, 68, 962 A.2d 140 (2009)." Stancuna v. Schaffer, 122 Conn.App. 484, 490 (2010).
"This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). The court must first decide whether the defendants owed a duty of care to the plaintiff such that she is capable of maintaining his claim of negligent infliction of emotional distress. See Witt v. Yale New-Haven Hospital, 51 Conn.Sup. 155, 169 [ 46 Conn. L. Rptr. 486] (2008).
Subsection (c) of General Statutes § 54-142k, entitled "Availability of conviction information and nonconviction information," provides: "Conviction information shall be available to the public for any purpose."
First, Minichino v. HB Management Corp., Superior Court, supra, Docket No. CV 08 502191 (December 31, 2008, Cronan, J.), cited by the defendants, is insufficient persuasive authority to strike the plaintiff's count. This is because the court in Minichino held that General Statutes § 54-142k precludes recovery for intentional infliction of emotional distress; it did not address a claim for negligent infliction of emotional distress.
In the present case, although the plaintiff's conviction record is indeed discoverable as public information, those records would not necessarily disclose the fact of her relapse, which is another basis for the plaintiff's claim for negligent infliction of emotional distress.
Looking to the elements of a claim for negligent infliction of emotional distress, a duty to the plaintiff is created by statute which forms the basis of negligence per se. See part IV. A. below. Furthermore, the harm that ensued to the plaintiff is forseeable because a manager-counselor like Ms. Potvin, who understands the process of recovery coaching and has knowledge of fragile emotional states, should understand how disclosing certain of the plaintiff's confidential information to others could negatively affect the plaintiff. Normally, the level of harm that ensued might be unforseeable because disclosing the plaintiff's information within a community of people recovering from addictions, where sharing information and emotions is part of the road to recovery, would not necessarily raise particular concerns to Ms. Potvin, and disclosing a person's first name and fact of her relapse on the internet would not be enough information to ascertain her identity. However, in the present case, by disclosing the plaintiff's uniquely spelled first name, along with the fact of her incarceration, the defendants have supplied sufficient details to those reading the Annual Summary to potentially learn the plaintiff's true identity by investigating publicly available criminal records. It is not the disclosure of the content of the criminal records that satisfies the forseeability requirement, but rather the defendants' knowledge of the plaintiff's particularly fragile emotional state of mind, coupled with the very real possibility that someone could learn her true identity; i.e. that she is the "Amie" mentioned online who relapsed. It is not unreasonable for a recovering individual to experience mental and physical harm as a result of emotional stress brought on by a feeling of being publicly shamed. Because the plaintiff's distress is reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress to the plaintiff.
The court, therefore, DENIES the defendants' motion to strike count three of the plaintiff's amended complaint for negligent infliction of emotional distress.
IV. Count Four: Negligence
The defendants next move to strike count four of the plaintiff's amended complaint for negligence, arguing that the plaintiff does not allege facts to support that a duty was owed to her.
The plaintiff incorporates by reference paragraphs 1 through 20 above and further alleges that "[t]he aforesaid acts and omissions on the part of defendant Potvin and CCAR were negligent in that [they] breached a duty of care owed to the plaintiff in one or more of the following ways: a. In that defendants . . . assumed the duty to maintain the confidentiality of the plaintiff's information, and subsequently disclosed said information to others without the plaintiff's consent; b. In that defendants . . . violated the ethical tenets, policies and procedures of `recovery coaching'; c. In that defendant Potvin violated the rules, policies and procedures applicable to her employment with the defendant CCAR; and d. In that defendants violated federal statutes and regulations concerning the confidentiality of alcohol and drug abuse patient records, 42 U.S.C. § 290dd-2, 42 C.F.R. 2.1 et seq."
The plaintiff argues that a duty is created under a number of different theories: breach of federal 42 U.S.C. § 290dd-2, 42 C.F.R. 2.1 et seq., negligence per se based on federal 42 U.S.C. § 290dd-2, 42 C.F.R. 2.1 et seq., professional malpractice permitted against those possessing specialized training, and gratuitous assumption of a duty. Each is analyzed in turn.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Citations omitted; internal quotation marks omitted.) Nazami v Patrons Mutual Ins. Co., 280 Conn. 619, 630, 910 A.2d 209 (2006). "A duty of care can be established by a contract, a special relationship, or through a two-pronged forseeability and public policy analysis as defined by the Supreme Court in CT Page 18129 Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 479, 823 A.2d 1202 (2003)." Zappone v. Cavallo, Superior Court, judicial district of Waterbury, Docket No. CV 03 0178837 (November 19, 2004, Matasavage, J.) [( 38 Conn. L. Rptr. 302)].
"The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court." Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 137, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).
A. Violation of Federal Confidentiality Statute 42 U.S.C. § 290dd-2 and Negligence per Se Based on Federal Confidentiality Statute 42 U.S.C. § 290dd-2Defendants argue in their memorandum that there is no private right of action for violations of the confidentiality statute 42 U.S.C. § 290dd-2 and its regulations, and, therefore, it cannot serve as the basis of a negligence claim.
The plaintiff counters that regardless of whether a private right of action exists under the statute, the statute can still provide the standard of care for a negligence per se claim. In her supplemental memorandum of law, she also argues what appears to be a direct violation of 42 U.S.C. § 290dd-2 and 42 C.F.R. 2.1 et seq., in that the defendants were prohibited from disclosing any of the plaintiff's drug and alcohol abuse treatment information but did so anyway and is negligent on that basis.
Federal statute 42 U.S.C. § 290dd-2 provides: "Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section."
The plaintiff's claim based on a direct violation of the statute cannot stand without the existence of a private right of action. Connecticut appellate courts have not directly addressed whether 42 U.S.C. § 290dd-2 provides a private right of action. See Skakel v. Benedict, 54 Conn.App. 663, 686 n. 41, 738 A.2d 170 (1999), cert. denied, 549 U.S. 1030; 127 S.Ct. 578 (2006) ("In reaching this conclusion, it is necessary to emphasize that we determine only whether our legislature, by mandating in § 17a-688(c) that all persons, hospitals, treatment facilities and the department of mental health and addiction services shall not violate `federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto,' impliedly authorized a private right of action for injunctive relief. Because we conclude that § 17a-688(c) confers a private right of action affording injunctive relief, it is unnecessary for us to determine whether 42 U.S.C. § 290dd-2 or the corresponding federal regulations authorize a private right of action"). Other courts, however, have found that 42 U.S.C. § 290dd-2 creates no private right of action. See Ellison v Cocke County, Tennessee, 63 F.3d 467 (6th Cir. 1995); Chromium Process v. Yankee Gas Service Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 038532 (June 23, 1995, Comerford, J.); Briand v. Lavigne, Civil Action No. ME 0240PH (D. Maine 2002).
The plaintiff argues that even if no private right of action is created by 42 U.S.C. § 290dd-2 there is an actionable duty based on negligence per se.
"[U]nder general principles of tort law, a requirement imposed by statute may establish a duty of care. Gore v. People's Savings Bank, 235 Conn. 360, 375 (1995), on remand, 40 Conn.App. 219, 670 A.2d 332 (1996). "Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation as been violated. If it has, the defendant was negligent as a matter of law." (Internal quotation marks omitted.) Id., 376. See Commerical Union Ins. Co. v. Frank Perrotti Sons, Inc., CT Page 18131 20 Conn.App. 253, 260, 566 A.2d 431 (1989) ("[The defendant's] argument . . . that it did not have a duty to inspect the trash in order to separate the flammable material from other trash, and that it was unaware of the presence of the cans of combustible liquid, is irrelevant. If a violation of the ordinance had been proved, the jury could have concluded that the violation constituted negligence per se"). "[I]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, supra, 235 Conn. 360, 375-76.
Courts have found that the existence of a private right of action is not essential to maintaining an action in negligence per se. See Walker v. Barrett, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0169673 (November 8, 1999, D'Andrea, J.) [ 25 Conn. L. Rptr. 665]; Wilson v. Bradley, 50 Conn.Sup. 234 (2007); Parker v. Nelson, Superior Court, judicial district of New London, Docket No. 107376 (June 16, 1997, Booth, J.) ( 19 Conn. L. Rptr. 616). But see Bourbeau v. Alpha Q., Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4015076 (June 15, 2007, Miller, J.).
Assuming that a private right of action is not essential to bringing a negligence per se claim, the plaintiff must still meet the two-part test for negligence per se outlined above.
Section 2.11 of title 42 of the Code of Federal Regulations provides necessary definitions. Patient is "any individual who has applied for or been given diagnosis or treatment for alcohol or drug abuse at a federally assisted program and includes any individual who, after arrest on a criminal charge, is identified as an alcohol or drug abuser in order to determine that individual's eligibility to participate in a program." A program is "[a]n individual or entity (other than a general medical care facility) who holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment . . ." Diagnosis is "any reference to an individual's alcohol or drug abuse or to a condition which is identified as having been caused by that abuse which is made for the purpose of treatment or referral for treatment." Records is "any information, whether recorded or not, relating to a patient received or acquired by a federally assisted alcohol or drug program." Treatment is "the management and care of a patient suffering from alcohol or drug abuse, a condition which is identified as having been caused by that abuse, or both, in order to reduce or eliminate the adverse effects upon the patient." 42 C.F.R. 2.11.
Assuming that CCAR receives some kind of federal assistance to come under the ambit of 42 U.S.C. § 290dd-2, the plaintiff, allegedly one who suffers from alcohol or drug abuse, is receiving recovery counseling, which is viewed as a necessary component of drug and alcohol addiction treatment. As a recipient of the defendants' services, the plaintiff is the very person meant to benefit from the statute's protections. In addition, the harm allegedly done to the plaintiff is of the type the statute was meant to prevent. Section 2.3(b)(2) of title 42 of the Code of Federal Regulations provides: "These regulations are not intended to direct the manner in which substantive functions such as research, treatment, and evaluation are carried out. They are intended to insure that an alcohol or drug abuse patient in a federally assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment." (Emphasis added.) Section 2.13(a) of title 42 of the Code of Federal Regulations provides: "The patient records to which these regulations apply may be disclosed or used only as permitted by these regulations and may not otherwise be disclosed or used in any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority. Any disclosure made under these regulations must be limited to that information which is necessary to carry out the purpose of the disclosure." Subsection (b) of that section requires unconditional compliance with the regulations. 42 C.F.R. 2.13.
Section 2.13(b) of title 42 of the Code of Federal Regulations provides: "Unconditional compliance required. The restrictions on disclosure and use in these regulations apply whether the holder of the information believes that the person seeking the information already has it, has other means of obtaining it, is a law enforcement or other official, has obtained a subpoena, or asserts any other justification for a disclosure or use which is not permitted by these regulations."
Although there is an emphasis on protection of records from being used in official proceedings, the statute clearly contemplates any individual being made more vulnerable as a result of her patient record being made available. The statutory protection is in place so that the individual can receive the help she needs without outside interference, such as, in this case, disclosure that leads to emotional harm. The defendants, then, have a duty not to disclose to those outside of CCAR or the Center that the plaintiff has utilized their programs, or that she is a drug or alcohol abuser. Providing the plaintiff's information to members of CCAR and visitors to the Center can be viewed, essentially, as disclosures to those within the recovery community, and defendants have not violated the statute. However, the information posted on the internet that listed "Amie coming back from a relapse and then going to jail" can be viewed as a disclosure that the plaintiff was a drug or alcohol user because the word "relapse" was used. While normally such disclosures about the plaintiff would not equate to a statutory violation because only the plaintiff's first name is used, here, the plaintiff's first name and the fact that she was incarcerated were disclosed, which creates an inference that people could gain access to public criminal records and learn her identity. For purposes of a motion to strike, the plaintiff has alleged enough to show that she was identifiable, and as a result, that there was a statutory violation.
The court, therefore, DENIES the defendants' motion to strike count four of the plaintiff's amended complaint for negligence as the violation of a federal statute serves as a basis for negligence per se.
B. Analysis of Other Potential Bases for Finding of a Duty 1. Forseeability and Public Policy Analysis
A duty also exists under a traditional forseeability and public policy analysis. The two-prong analysis "for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of forseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001).
"In order to satisfy the legal requirement of duty, a plaintiff, in addition to demonstrating forseeability, must further demonstrate, based upon policy considerations, that a defendant's responsibility for the consequences of its negligence, should extend to the particular consequences suffered by a particular plaintiff. Even though a particular harm is forseeable, for policy or pragmatic reasons, recovery may not be allowed." Maloney v. Conroy, 208 Conn. 392, 400-01, 545 A.2d 1059 (1988).
As discussed in Section III, above, a manager-counselor like Ms. Potvin who understands the process of recovery coaching and has knowledge of fragile emotional states should understand how disclosing certain of the plaintiff's confidential information to others could negatively affect the plaintiff. Normally, the level of harm that ensued might be unforseeable because disclosing the plaintiff's information within a community of people recovering from addictions, where sharing information and emotions is part of the road to recovery, would not necessarily raise particular concerns to Ms. Potvin, and disclosing a person's first name and relapse on the internet would not be enough information to ascertain her identity. However, in this case, by disclosing the plaintiff's uniquely spelled first name, along with the fact of her incarceration, the defendants have supplied sufficient details to those reading the Annual Summary to learn the plaintiff's true identity by investigating publicly available criminal records. It is not the disclosure of the content of the criminal records that satisfies the forseeability requirement, but rather the defendants' knowledge of the plaintiff's particularly fragile emotional state of mind, coupled with the very real possibility that someone could learn her true identity; i.e. that she is the "Amie" mentioned online who relapsed. The plaintiff's tenuous emotional state, coupled with the very real possibility that someone could learn her true identity, renders the harm to the plaintiff forseeable.
As to public policy supporting the finding of the duty, our legislature has enacted legislation to protect confidential communications between certain professionals and their patients. General Statutes § 52-146d, entitled "Privileged communications between psychiatrist and patient," however, does not apply to non-licensed professionals, and, according to our Supreme Court, does not extend to records relative to drug-dependency treatment. See State v. White, 169 Conn. 223 (1975). General Statutes § 52-146q provides that disclosure of confidential communications between a social worker and person consulting such social worker is prohibited, and in 1995, our legislature redefined "social worker," changing reference to "certified independent" social workers to "licensed clinical" social workers. General Statutes § 52-146q. The plaintiff has not alleged that Ms. Potvin is a licensed professional. There does exist, however, protection for patients under the federal confidentiality statute, 42 U.S.C. § 290dd-2, and its regulations, all of which protect the disclosure of a patient's drug and alcohol treatment records. As previously discussed in Section IV. A. above, the plaintiff can claim the protections of this federal statute. As such, public policy supports the finding of a duty.
2. Breach of Confidence/Malpractice
The defendants argue that Connecticut courts have not recognized an actionable duty of confidentiality outside of an attorney-client relationship. Additionally, the plaintiff does not allege sufficient facts to give rise to a duty to her based on violations of the policies and procedures of recovery coaching and CCAR because she does not allege that the policies and procedures create an implied contract.
The plaintiff clarifies that she does not bring a claim for breach of confidence, but instead a claim in negligence based on the disclosure of confidential information, and the tenets, policies and procedures of recovery coaching serve as the professional standard of care that the defendants violated. She cites Skrzypiec v. Noonan, 228 Conn. 1, 633 A.d 716 (1993), which involves a claim brought by a patient against her psychiatrist and social worker. In Skrzypiec, the claim was for statutory breach and professional negligence, Id., 3-4, which is frequently defined as "the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . ." (Internal quotation marks omitted.) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990). The plaintiff here cannot label her claim as one for professional negligence in the traditional sense because there is no professional here. She has not alleged that Ms. Potvin is a licensed social worker or other professional who typically finds herself the object of a malpractice claim.
The plaintiff also attempts to find support in Santopietro v. New Haven, 239 Conn. 207, 682 A.2d 106 (1996), where the court implied that malpractice actions need not be confined to those licensed to practice a professional skill. The court dealt with the issue on appeal of whether the trial court had properly granted a directed verdict for the defendants, and specifically whether the plaintiffs proved by expert testimony that the defendants breached a duty of care to prevent an unreasonable risk of the injuries suffered by the plaintiff.
The court in Santopietro, supra, discussed the nature of professional negligence, stating that "[w]e note that the plaintiffs' claims in the present case are akin to allegations of professional negligence or malpractice, which we have previously defined as `the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.' (Internal quotation marks omitted.). Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990). As [defendant] Brennan testified, he possesses specialized knowledge as an umpire that is greater than the average person's knowledge. An umpire obtains, through formal training and experience, a familiarity with the rules of the sport, a technical expertise in their application, and an understanding of the likely consequences of officiating decisions." (Citation omitted.) Santopietro v. New Haven, supra, 239 Conn. 226-27.
However, "[t]he plaintiffs do not articulate clearly the Umpire's duty upon which they base their claim. The plaintiffs principally rely upon the testimony of [defendant] Shepard that an umpire's duty is `to maintain control on the field so it does not spill over to spectators.' Thus, the plaintiffs appear to postulate a duty owed by the umpires to maintain control of the game in such a way as to prevent harm to others. On appeal, [defendants] Brennan and Shepard do not concede that such a duty exists, but argue that even if we were to assume its existence, the plaintiffs failed to define the duty. Our research indicates that no other jurisdiction has explicitly considered whether to impose or how to define such a legal duty.
"Therefore, for the purposes of this appeal, we assume, without deciding, that umpires such as [defendants] Brennan and Shepard have a duty, essentially as postulated by the plaintiffs, to exercise reasonable judgment as umpires in order to maintain control of a game so as to prevent an unreasonable risk of injury to others." (Emphasis added.) Santopietro v. New Haven, supra, CT Page 18137 239 Conn. 227-29.
In sum, the court in Santopietro, supra, found that a claim for professional malpractice might apply if, as in the case of an umpire, a degree of specialized knowledge would place the defendants in a class akin to a professional.
Few Connecticut courts have explored Santopietro's result. In Satagaj v. Portland, Superior Court, judicial district of Middlesex, Docket No. CV 06 5001169 (February 20, 2009, Taylor, J.) ( 47 Conn. L. Rptr. 268), the court defined malpractice as "generally distinguishable from ordinary negligence in that it involves the breach of a standard of care or a duty imposed by the specialized knowledge of a tortfeasor, generally proven by expert testimony." Id., 277 n. 10. "[ T]he cause of action is founded upon the breach of a duty imposed by the state building code and professional standards applicable to municipal building officials, and is therefore based upon professional malpractice." (Emphasis added.) Id. 273.
Discussing the breadth of professional malpractice cases, the court stated that "[a]lthough it would be logical to assume that professional malpractice is limited to traditional professions, such as doctors, lawyers, accountants, architects and engineers, Connecticut's definition appears to be more encompassing. However, professional malpractice is not necessarily limited to these traditional professions. `Professional persons in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability.' (Emphasis added.) W. Prosser W. Keeton, Torts, 5th Ed. 1984) § 32, p. 185." Satagaj v. Portland, supra, 47 Conn. L. Rptr. 274.
"In every professional malpractice action, the plaintiff is required to prove that (1) the defendant was obligated to conform to a recognized standard of care, (2) the defendant deviated from that standard, (3) the plaintiff suffered some injury, and (4) the defendant's act in departing from the standard of care caused the plaintiff's injury . . . No matter how negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable." (Citations omitted; internal quotation marks omitted.) Satagaj v. Portland, supra, 47 Conn. L. Rptr. 274.
"If the exercise of discretion or a `judgment call' by an umpire in a softball tournament may form the basis for professional malpractice under Connecticut law, the court sees no reason for generally excluding building officials from the scope of this cause of action. Serious injuries may result from the breach of a duty by either of these officials. The issuance of a [certificate of occupancy] . . . by a building official is the condition precedent imposed for closing title, from which the benefits and obligations of new home ownership arise. The [certificate of occupancy] therefore allowed for a significant investment to be made by the plaintiffs and the financial institution to which they were now obligated. Given its tremendous legal and financial importance, the court considers the issuance of a [certificate of occupancy] to involve too important a `judgment call' to escape professional responsibility." Satagaj v. Portland, supra, 47 Conn. L. Rptr. 274.
Similarly, in Villano v. Pomeroy, Superior Court, judicial district of New Haven, Docket No. 380018 (February 2, 1998, Blue, J.) ( 21 Conn. L. Rptr 263), the court extended professional malpractice to apply to an exterminator, finding that the plaintiff's "negligence claim . . . [was] akin to an allegation of professional negligence or malpractice . . . and the evidence [established] that exterminators possess specialized knowledge that is greater than the average person's knowledge. They are also licensed by the state." (Emphasis added.) Id. 263.
Unlike Santopietro, supra, and the cases flowing from it, the plaintiff here has not alleged that Ms. Potvin underwent formal training and possesses a specialized knowledge and expertise to the same degree as would an umpire, a building inspector or other official. The plaintiff alleges only that Ms. Potvin "used her understanding of substance use and mental disorders, crisis intervention and how to respond in crisis situations to provide said counseling and/or `recovery coaching.'" Furthermore, the plaintiff alleges the "defendants . . . violated the ethical tenets, policies and procedures of `recovery coaching.'" Unlike Satagaj, supra, where the court noted that the building official's duty flowed from the professional standards applicable to municipal building officials and from the state building code, here, the plaintiff points nebulously to "ethical tenets, policies and procedures of recovery coaching" but not to any comparable professional code.
Additionally, in deciding to analyze the case as one for professional malpractice, the court in Villano, supra, talked broadly about the specialized knowledge of the defendant not possessed by an ordinary person but also that the defendant exterminator was licensed by the state. Here, there is no allegation that Ms. Potvin is a licensed individual.
Therefore, the plaintiff's claim does not sound in professional negligence.
Duty by Gratuitous Undertaking
The plaintiff clarifies in her oppositional memorandum that the duty to keep confidential the information she disclosed to the defendants arises from the defendants' voluntary assumption of a duty to the plaintiff to maintain the privacy of matters she disclosed in recovery coaching and during on site support groups. The duty assumed was to provide services to the plaintiff, which included but was not limited to a guaranty of respect for her privacy, and is independent of any contractual agreement. She argues that concomitant to that gratuitous undertaking, defendants represented that they would not share the information disclosed in the support group or in the recovery coaching setting.
The defendants do not directly address this argument.
"If one undertakes to perform an act and performs it negligently . . . it makes no difference whether . . . the act was performed gratuitously . . ." Zalkin v. Katz, 126 Conn. 445, 450, 11 A.2d 843 (1940). While the plaintiff does not directly cite to the 2 Restatement (Second), Torts § 323 Negligent Performance of Undertaking to Render Services, that section is appropriate here. It provides: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking."
There are scant few Connecticut cases applying the duties set forth in 2 Restatement (Second), Torts § 323 Negligent Performance of Undertaking to Render Services. See Ibamatic Corp. v. United Technologies, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 96 337099 (July 16, 2002, Mottolese, J.) (court finding gratuitous undertaking when defendant investigated claims, something it was not previously bound to do by contract); Kitchens v. Kramer, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 0287229 (January 26, 2006, Shluger, J.) (court entertains voluntary assumption of duty where plaintiff argues the defendant owed him a duty `because he voluntarily exerted supervision over the guests' but ultimately determines the plaintiff did not provide any such evidence); Victoria v. Wilson, Superior Court, judicial district of New London, Docket No. 543819 (September 21, 1999, Corradino, J.) [ 25 Conn. L. Rptr. 502] (court denying summary judgment where plaintiff claimed gratuitous undertaking to plow snow worsened conditions in area where plaintiff fell); Chicago Title Ins. Co. v. Bologna, Superior Court, judicial district of Hartford, Docket No. CV 03 0825830 (November 9, 2006, Keller, J.) ( 42 Conn. L. Rptr. 379, 383) (court stating that "[a]ttorneys have been held liable to non-clients when they have expressly, voluntarily assumed a gratuitous undertaking. In such cases, the lawyer volunteers to perform a definitive service on behalf of the non-client").
Federal case law sheds some light on what, precisely, constitutes a gratuitous undertaking. In Massachusetts Asset v. Harter, Secrest, 430 F.3d 59 (1st Cir. 2005), the court noted that "in order to determine whether a duty of care has been breached, we must first determine whether the duty was gratuitous or not. In a number of cases, Massachusetts courts have undertaken the task of distinguishing gratuitous and nongratuitous acts. An important factor is whether there was a `social nature in the relations of the parties.' Beaulieu v. Lincoln Rides, Inc., 328 Mass. 427, 104 N.E.2d 417, 418 (1952). A gratuitous act is more likely to occur when an act is of a social nature rather than a business nature. See Id.
"The line between gratuitous and nongratuitous acts is relatively clear in the social context. In a social context, when a person does a favor for another person, whether a friend or a stranger, and receives no consideration other than `those intangible advantages arising from mere social intercourse,' Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 589 (1934), the act will be gratuitous. For example, in Bagley v. Burkholder, the plaintiff and defendant were both truck drivers for different trucking companies, and plaintiff sued defendant for injuries that occurred while defendant was helping plaintiff move his truck. 337 Mass. 246, 149 N.E.2d 143, 144 (1958). The court found that defendant's act was gratuitous because the evidence showed no business purpose and `no immediate advantage to the defendant of his helpful action.' Id. at 146. Similarly, in a personal context, when a person offers to give another person a ride without any consideration, the act will be gratuitous. See Ruel v. Langelier, 299 Mass. 240, 12 N.E.2d 735, 736 (1938); Massaletti, 118 N.E. at 177; cf. Taylor v. Goldstein, 329 Mass. 161, 107 N.E.2d 14 (1952) (finding the giving of a ride to be a nongratuitous act where the objective of the ride was to benefit the driver and not the passenger). Finally, when a host receives a guest `as a visitor for social purposes,' the act will be gratuitous. O'Brien v. Shea, 326 Mass. 681, 96 N.E.2d 163, 164 (1951).
"In the business context, the line between gratuitous and nongratuitous acts is more difficult to discern. The dispositive question is whether the allegedly gratuitous act had a business purpose. See Onofrio v. Dept. of Mental Health, 408 Mass. 605, 562 N.E.2d 1341, 1346 (1990) ("[Defendant] was furthering its own business interests . . ."); Falden v. Crook, 342 Mass. 173, 172 N.E.2d 686, 688 (1961) ("[Defendant] was doing a kind act rather than building up good will for his business"); Beaulieu v. Lincoln Rides, Inc., 328 Mass. 427, 104 N.E.2d 417, 418 (1952) ("[T]here is nothing in the record to indicate that the defendant, a business corporation, undertook to give the plaintiff a pure gratuity"); Foley v. McDonald, 283 Mass. 96, 185 N.E. 926, 927 (1933) ("[A] business purpose could be found in the transportation of the plaintiffs by the defendants in the course of an attempt by the defendants to sell an automobile to the plaintiffs . . .").
"For an act to have a business purpose it need only be `incidental to the [defendant's] business.' Foley, 185 N.E. at 926-27. For example, when a car salesman drove a prospective buyer home, the court found that the act was incidental to the business purpose of selling automobiles and therefore nongratuitous. Id. at 926-27. In contrast, where an ice cream truck driver gave a customer a ride home, the act was not incidental to the defendant's business as the court found that the driver "was doing a kind act rather than building up good will for his business." Falden, 172 N.E.2d at 688.
"For an act to be nongratuitous, `it is only necessary for a jury to find some business advantage to the defendant.' Beaulieu, 104 N.E.2d at 418. In Beaulieu, the defendant was the operator of an amusement park ride who gave free rides before 2:00 p.m. and charged for rides after 2:00 p.m. Id. at 417-18. The court found that a "jury could find that the purpose of giving free rides . . . was merely to interest customers and increase business." Id. at 418. A "conjectural future benefit," however, will not establish an otherwise nonexistent business purpose. Bailey, 149 N.E.2d at 146. In Bailey, the plaintiff truck driver argued that the defendant truck driver's assistance was not gratuitous because, had he not given assistance, the defendant would receive a bad reputation and other truck drivers would not help the defendant in the future. Id. at 145. The Bailey court found this karmic claim merciless. Id. at 146.
"An act may have a business purpose even though "no pecuniary benefit actually resulted to the defendants." Foley, 185 NE at 927. It is enough that "the object of the [act] was pecuniary benefit to the defendants and this fact if found would take the [act] out of the category of gratuitous transactions." Id. For example, in Foley, a car salesman gave a potential buyer a ride home, and the court found a business purpose even though the sale was merely prospective and not ultimately made. Id. at 926-27. Similarly, the operator of an amusement park ride who gave free rides to children had the business purpose of enticing more paying customers even though he had no guarantee of success. See Beaulieu, 104 N.E.2d at 417-18 . . .
"See Taylor, 107 N.E.2d at 15 ("Although the most obvious benefit to a defendant is one of a direct pecuniary nature, an indirect pecuniary benefit or an undertaking which holds out the hope of a pecuniary benefit may be sufficient to entitle the plaintiff to recover for ordinary negligence"); Beaulieu, 104 N.E.2d at 418 ("[It is only necessary for a jury to find some business advantage to the defendant"). Massachusetts Asset v. Halter, Secret, supra, 430 F.3d 62-63.
The defendants here are in the business of recovery coaching and counseling. This unique business of the defendants has a naturally gratuitous feel to it because it involves providing a type of social service, and, presumably, those receiving services do not pay directly for them. However, the defendants still need to retain clients or patients in order to stay in the business they are in, and undertaking to help the plaintiff with her recovery issues does have a commercial benefit, that is, to increase the number of visitors to the Center and increase awareness of CCAR and its programs in the community that it serves. The work of the defendants here is different from the undertakings in the cases above because the defendants advertise that they offer the service of recovery coaching. CCAR appears to exist for this very purpose, and it is unlikely that Ms. Potvin works for free. It is fair to say that helping the plaintiff is not an entirely gratuitous undertaking. In addition, Ms. Potvin's assurances to the plaintiff that her information would be kept confidential cannot easily be viewed independently as separate gratuitous undertakings because these assurances are part and parcel of the overall recovery coaching services offered by the defendants.
V. Count Five: Recklessness
The defendants next move to strike count five of the plaintiff's amended complaint for recklessness.
The plaintiff incorporates by reference paragraphs 1 through 20 above, restates her allegations from count four for negligence, and further alleges that "[t]he foregoing actions on the part of the defendants were willful, in that they are taken intentionally and/or with a reckless disregard for the plaintiff's rights."
The defendants argue that, absent a duty, there can be no claim for recklessness. The plaintiff merely repeats her allegations of negligence, they say, but adds the words "reckless" and "recklessness," which is insufficient because the plaintiff must allege specific acts of reckless conduct. Publishing the Annual Summary with a cursory mention of a "relapse" associated with the plaintiff's first name cannot be considered an extreme departure from ordinary care or a situation where a high degree of danger is apparent. The same is true of Ms. Potvin's disclosure to others at CCAR that the plaintiff was incarcerated.
The plaintiff takes the position that a claim of recklessness does not need to contain additional language that is not included in a negligence count, so long as the plaintiff alleged facts demonstrating both egregious conduct and the state of mind for recklessness. She has pleaded recklessness because she was promised that her privacy would be maintained, and then her information was published on the internet without any regard to the effect on her, and she was emotionally vulnerable at the time she came to the Center.
"Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . ." Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).
"[A] brief reference to recklessness, contained within a count which otherwise is clearly limited to ordinary negligence is [not] sufficient to raise a claim of reckless and wanton misconduct. Simply using the word `reckless' or `recklessness' is not enough." (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn.App. 158, 170-71, 884 A.2d 12 (2005). "Some additional factual allegations are necessary to alter the nature of the conduct complained of from an action for negligence to an action for wilful and wanton conduct . . . If the plaintiff merely reiterates the facts from the negligence count and inserts the word `reckless,' a motion to strike is properly granted . . . If, however, the factual allegations in the negligence count are detailed and specific enough to support a claim of recklessness, the motion to strike may be denied . . . To state a claim of recklessness . . . the [plaintiff] must allege facts demonstrating both egregious conduct and the requisite state of mind . . ." (Internal quotation marks omitted.) Webster v. Bell, Superior Court, judicial district of New London, Docket No. CV 06 5000865 (September 22, 2006, Hurley, J.T.R.). "Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." Craig v. Driscoll, supra, 262 Conn. 312.
The cases addressing recklessness demonstrate serious departures from ordinary negligence. See Montanaro v. Baron, Superior Court, judicial district of New Haven, Docket No. CV 06 5006991 (March 28, 2008, Robinson, J.) (court finding that "[i]f a pediatrician falsely accuses a patient's mother of theft, falsely announces that the mother suffers from a severe mental illness in front of other patients and employees, and then reports this false diagnosis of illness to other doctors in order to prevent further medical treatment, a reasonable person may conclude that the doctor conducted himself in a manner that was extreme and outrageous"); Stafford v. Roadway, Superior Court, judicial district of New London, Docket No. CV 09 5013225 (March 8, 2010, Cosgrove, J.) (court finding that "plaintiff's allegations that defendants knew or should have known of the danger presented by allowing the plaintiff to continue to consume alcohol and sit and/or stand near the bonfire" where plaintiff eventually passed out and became severely burned presented a reckless disregard for the plaintiff's safety); Diduca v. Longo, Superior Court, judicial district of New Haven, Docket No. CV 09 5030747 (April 27, 2010, Keegan, J.) (court finding that "a maxillofacial surgeon who had been put on notice as to . . . which teeth were to be extracted and that injury would incur from extracting certain of the teeth, to essentially ignore that information is reckless"); Giovanelli v. Cantor, Floman, Gross, Kelly Sacramone, Superior Court, judicial district of New Haven, Docket No. CV 07 5010641 (January 30, 2008, Robinson, J.) ( 44 Conn. L. Rptr. 802) (court finding that legal representation where the defendant attorneys did not keep the plaintiffs apprised knowing that the plaintiffs' rights would be jeopardized and likely lead to the loss of their home to foreclosure was sufficiently reckless). But see Morales v. Labor Ready, Inc., Superior Court, judicial district of Hartford, Docket No. CV 08 5023651 (March 19, 2010, Scholl, J.) (court holding "allegations that the defendant allowed [employee] to work with persons who had a criminal record and failed to conduct background checks of its employees to avoid [assault and battery] from happening" was not reckless).
Had the defendants, for example, posted the complete name and address of the plaintiff on the CCAR website, along with in-depth details concerning the personal details of what she shared in her counseling sessions, there might be enough to support a claim in recklessness. Additionally, it would likely take some effort for someone who viewed online the plaintiff's first name, Amie, and that she was incarcerated, to ascertain her full identity through publicly available criminal conviction records. And while the plaintiff has alleged enough to maintain her claim for negligence, the defendants' particular disclosures in this PAGE 51] case do not resemble the serious departures from negligence found in the cases cited above needed to sustain a claim for recklessness.
The court, therefore, GRANTS the defendants' motion to strike count five of the plaintiff's amended complaint for recklessness.
VI. Count Nine: Appropriation of Likeness
Lastly, the defendants move to strike count nine of the plaintiff's amended complaint for invasion of privacy by appropriation of likeness.
The plaintiff incorporates by reference paragraphs 1 through 20 above and further alleges that her "name was appropriated by defendants Potvin and CCAR for their commercial use and/or to increase defendants' prestige and standing in the community."
The defendants argue that the plaintiff's name was not used in the Annual Summary to take advantage of the plaintiff's "reputation, prestige, or other value" associated with her. The plaintiff's actual identity or likeness was not revealed, rather, only her first name. According to the Restatement, the protected interest in an appropriation of likeness claim is "the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others," and the plaintiff here cannot argue that she derives any benefit from the fact of her relapse and jail time.
The plaintiff counters that courts have held that defendants may appropriate a plaintiff's likeness even where for commercial purposes there is no reputation or prestige to appropriate. In other words, it does not matter that the plaintiff is not a person who has prestige such as a public figure.
"Although the Supreme Court has never provided the courts with the elements required to state a claim sounding in appropriation of name or likeness, it has acknowledged the tort's existence under the law of Connecticut. Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 127; Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983) (seeming to accept the plaintiff's contention that the elements required for this tort under the law of Connecticut are provided by the Restatement)." CT Page 18147 Gleason v. Smolinski, Superior Court, judicial district of New Haven, Docket No. CV 06 5005107 (July 20, 2009, Wilson, J.).
Pursuant to 3 Restatement (Second), Torts § 652C, Appropriation of Name or Likeness: "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy." Comment (b) to that section provides: "The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one." 3 Restatement (Second), Torts § 652C, comment (b).
Comment (a) provides that "[t]he interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others." 3 Restatement (Second), Torts § 652C, comment (a).
Furthermore, comment (d) provides in relevant part: "The value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity . . . It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded." (Emphasis added.) 3 Restatement (Second), Torts § 652C, comment (d).
The defendants argue that there is no value to the plaintiff in revealing the fact of her "relapse" and "incarceration." There is little case law on appropriation of likeness in Connecticut. However, one Superior Court case demonstrates that value is measured by the benefit that flows to the defendants. In Herring v. Radding Signs, Superior Court, judicial district of New Haven, Docket No. CV 99 0427523 (February 9, 2000, Alander, J.), the court determined that personal notoriety is not a prerequisite to effectively stating a claim for appropriation of likeness, as long as there is some commercial value attained by the defendant. In Herring, the plaintiff sued on a theory of appropriation of likeness, claiming she was injured when the defendant displayed, without her consent, her photograph on numerous outdoor billboards to advertise welfare to work programs. The defendant in that case argued that "a business entity may use the likeness of an average citizen, who lacks fame or notoriety, for commercial purposes because there is no reputation or prestige to appropriate." Id. The court agreed with the plaintiff after looking closely at the examples in the Restatement, reasoning that "[f]our of these examples involve persons who are ordinary citizens. Notwithstanding the fact that each of these persons lacked fame, notoriety or an acknowledged reputation, the Restatement found the appropriation of their name or identity to be an invasion of privacy. 3 Restatement (Second), Torts § 652C, Illustrations 3 through 6." Id.
Some jurisdictions have found that a person must possess prestige in order to recover on a claim for appropriation of likeness. See Tripp v. United States of America, Civil Action No. 01 506 (EGS) (D.D.C. 2003) ("[p]laintiff's considerable notoriety at the time defendant allegedly `used' Ms. Tripp's name when disclosing to members of the media her response to a particular question on her security clearance form distinguishes this case from those failing to find the existence of a misappropriation claim).
In the present case, the defendants do derive some commercial benefit from using the plaintiff's, albeit sparse, information to, at least indirectly, advertise their product — counseling and recovery coaching — and help them in their professional purpose.
The predominant issue, however, involves "identity" in an appropriation of likeness claim. The Restatement provides some insight by way of examples. In all of them, a person's name or signature is used without his or her permission, or an impersonation is accomplished. "A, a private detective, seeking to obtain information as to the relations of B's wife with C, impersonates B, and so induces others to disclose to him confidential information that they would not otherwise have disclosed. A has invaded B's privacy . . . A, who has been B's mistress, poses as his common law wife, calling herself Mrs. B. A has invaded the privacy of B, and also of his wife, Mrs. B . . . Without the consent of A., B signs A's name to a telegram that he sends to the governor of the state, urging the governor to veto a bill that B finds objectionable. This is an invasion of A's privacy . . . Without the consent of A, B files suit in the name of A as plaintiff, seeking a judgment advantageous to B. This is an invasion of A's privacy." 3 Restatement (Second), Torts § 652C Illustrations 3 through 6.
In other jurisdictions, identity is defined as "any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice." (Internal quotation marks omitted.) CT Page 18149 Toney v. L'Oreal USA, Inc., 406 F.3d 905, 908 (7th Cir. 2005). "The phrase `name or likeness' . . . embraces the concept of a person's character, which is legally protected against appropriation by another for his own use or benefit. The terms are appropriately paired due to their similar purpose and function: identification." Felsher v. University of Evansville, 755 N.E.2d 589, 601 (Ind. 2001). Similarly, in Cheatham v. Paisamio Publications, Inc., 891 F.Sup. 381, 387 (W.D.Ky. 1995), the court was presented with a claim for appropriation of likeness arising out of the alleged unauthorized publishing of the plaintiff's photograph by the defendant and the use of a similar photo design on shirts sold and manufactured by another defendant. Id., 383-84. The claim involved a photograph not of the plaintiff's face but rather a photo of her taken from behind that included her backside from waist to thighs. Id., 387. Part of what the court required the plaintiff prove was the distinctiveness of her identity. Id., 386. The court used a rule from right of publicity claims and required a showing of a property interest in her likeness or designs by proving her image had commercial value. Id. The court denied the motion to dismiss to allow the plaintiff to prove that her image was distinctive enough that her friends and customers recognized the replica drawing on the T-shirt in the photo and identified the drawing as the plaintiff's "image." Id., 386-87. There was a uniqueness factor involved.
In the present case, only the plaintiff's first name was used on the CCAR website. Also, her likeness was not used because her photograph never appeared online. The only other information disclosed is that she relapsed and went to jail. Even if someone could learn her true identity based on the defendants' disclosure of her uniquely spelled name and the scant details of her "relapse" and "incarceration," still, there is nothing implicitly unique in a person's first name, that she relapsed, or that she spent some time in jail such that it is capable of being appropriated.
The court, therefore, GRANTS the defendants' motion to strike count nine of the plaintiff's amended complaint for invasion of privacy by appropriation of likeness.
In summary, the court has ruled as follows with regard to the defendants' motion to strike:
1. Count One: GRANTED (Invasion of Privacy)
2. Count Two: GRANTED (Intentional Infliction of Emotional Distress)
3. Count Three: DENIED (Negligent Infliction of Emotional Distress)
4. Count Four: DENIED (Negligence)
5. Count Five: GRANTED (Recklessness)
6. Count Nine: GRANTED (Invasion of Privacy — Appropriation of Likeness.