Opinion
CV146045191
01-05-2017
Laurence Parnoff v. Aquarion Water Company of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACTS
This twenty-five (25) count complaint arises out of an incident which occurred on July 11, 2011, at 3392 Huntington Road, Stratford. The property, which consists of 7.28 acres, is owned by the Plaintiff, Laurence Parnoff, and his wife Barbara Parnoff.
The property was acquired by its current owner via two conveyances. A 4.39-acre parcel was conveyed to Laurence and Barbara Parnoff by warranty deed in 1985. The deed was recorded on January 18, 1985, at Volume 604, Pages 882-85 of the Land Records of the Town of Stratford (Ex. 4, Tab J).
The second parcel, consisting of 2.89 acres, was acquired by Laurence Parnoff via a warranty deed dated August 24, 2005. The deed was recorded at volume 2716, Pages 155, 157 of the Stratford, and Records on September 6, 2005 (Ex. 5, Tab J).
Both parcels can be traced to a common grantor, the Bridgeport Hydraulic Company (Ex. 4; Ex. 5). The Aquarion Water Company, a named Defendant in this action, is the successor to the Bridgeport Hydraulic Company (Ex. 6).
The 1985 deed, which conveyed title to the 4.39-acre segment of the parcel to Laurence Parnoff, is subject to easement rights, enjoyed by the Bridgeport Hydraulic Company. The conveyance is expressly subject to:
" Easements, reservations and exceptions contained in a quit-claim deed from the Bridgeport City Trust Company, Trustee, to the Bridgeport Hydraulic Company dated May 14, 1930 and recorded in Volume 134, Page 753 of the Stratford Land Records and in deed from Bridgeport Hydraulic Company to Loch Lenidow Realty Corp., dated September 9, 1930 and recorded in Volume 134, Page 657 in the Stratford Land Records."
The deed from the Bridgeport Hydraulic Company to Loch Lenidow Realty Company (Ex. 4, Tab A), references a " 30 inch transmission line from Trap Falls Reservoir" and the water utility excepted and reserved from the conveyance " . . . all transmission lines, pipe lines and pipe line equipment . . ." (Ex. 4, Tab A, p. 600-01). Because title to the pipes, lines and equipment remained the property of the grantor, the Bridgeport Hydraulic Company reserved " . . . rights of entry, inspection, maintenance, repair and reconstruction . . ." concerning its property (Ex. 4, Tab A, p. 659).
The 2.89-acre parcel, which was acquired in 2005, remains unimproved. The parcel is subject to the same conditions, however, as were described in the 1985 deed (Ex. 5, Tab J, p. 157, condition 4).
A single-family dwelling and a shed are located on the property. 3392 Huntington Road contains a long driveway leading to the home which is situated in the rear of the property.
On July 11, 2010, two employees of the Aquarion Water Company, Kyle Lavin and David Lathlean, drove, in separate vehicles, to 3392 Huntington Road. The vehicles, which were parked in the driveway, were white, and were identified as property of the Aquarion Water Company. Both Lavin and Lathlean had identification badges, and were wearing yellow safety shirts emblazoned with a logo, containing the words " Aquarion Water Company." (Ex. 1.)
Lavin, who later became a Stratford Police Officer, was employed on July 11, 2011 as a meter reader and intern. Lathlean was a senior utility worker, whose responsibilities included hydrant maintenance, and leak detection in water pipes.
When Lavin, who was the first Aquarion employee to arrive, had difficulty locating a fire hydrant, he phoned Lathlean, and requested assistance. The hydrant was ultimately located in a wooded area near a garage, and adjacent to an open-ended canopy tent.
According to both Lavin and Lathlean, when they located the fire hydrant (Serial Number 04070), they discovered that the front cap was missing. Water was dripping from the hydrant, and the ground around the hydrant was wet. A garden hose was visible nearby.
The open canopy tent, which was approximately ten (10) feet from the hydrant, contained a tractor, a motorcycle and a backhoe. Lavin located the front hydrant cap on the flatboard of the tractor, along with a pipe wrench. Both Lavin and Lathlean observed that a hole had been cut into the hydrant cap, and that a brass hose fitting had been welded over the hole. According to both employees, the cap and the tractor floor appeared to be wet.
A red garden hose was observed. The hose was traced to a " goat pen" on the property. A buried black hose, which was approximately twenty (20) to thirty (30) feet long, was discovered. The hose was buried under leaves.
After finding the detached hydrant cap and pipe wrench, Lathlean telephoned Beverly Doyle, an Aquarion employee who was in charge of " Infrastructure Protection." Doyle's responsibilities included documenting cases involving potential tampering, and securing the property which belonged to Acquarion.
Following his conversation with Beverly Doyle, who arrived at the property shortly thereafter, Lathlean observed the property owner, Laurence Parnoff, coming toward him. Neither Lathlean or Lavin had met Parnoff prior to July 11, 2011.
According to Lavin, as Lathlean was retrieving the altered hydrant cap, Laurence Parnoff approached him and declared " get off my property, you people don't belong here."
As Lavin was walking away from Lathlean, in order to meet with Beverly Doyle, he claims to have heard Parnoff exclaim: " If you go around my shed, I'm going to go inside, get a gun, and f . . . ing kill you."
Lathlean claims that he informed Laurence Parnoff that Aquarion personnel had a right to be on his property. He further indicated to Parnoff, that before leaving the property Aquarion must secure the open connection to the water supply, and determine whether any cross-contamination had occurred as a consequence of the missing hydrant cap.
Parnoff maintains that Lavin and. Lathlean both accused him of " stealing water." and claims that Lavin ran up to him, put a cell phone in his face, and shouted at Parnoff while displaying a picture of the hydrant cap and the wrench on the tractor flatbed.
Parnoff does not claim that Beverly Doyle said anything to him at any time (Ex. 24, p. 43).
Lavin denies telling Parnoff that he was " stealing" water, and denies putting a camera with a photo in Parnoff's face (Ex. 1, p. 6). He also claims that he did not hear any of the other Acquarion employees accuse Laurence Parnoff of stealing water.
No physical altercation between Laurence Parnoff and the Aquarion personnel occurred. However, after the verbal exchange, Lathlean called the Stratford police.
Two Stratford police officers, Officer Glynn McGlynn and Officer Susan Koval responded.
Officer McGlynn spoke to the Acquarion employees and to Parnoff upon his arrival (Ex. 30).
Lathlean informed the officer that Acquarion was conducting scheduled fire hydrant maintenance at 3392 Huntington Road, when it was discovered that a hydrant cap was missing. Lathlean stated that he confronted Parnoff with the " modified cap, " and that Parnoff became angry. He stated that Parnoff ordered him off the Property, and threatened to get a gun. According to the police report (Ex. 30), Lathlean informed Laurence Parnoff that tapping into a fire hydrant was illegal.
Parnoff has denied altering the hydrant cap, or attempting to take water from the hydrant without authorization, and in violation of law. He claims to have discovered the hydrant cap while he was mowing pachysandra in the area, and hit the hydrant cap with the mower. He claims that both the mower and the hydrant cap were damaged as a result of the contact (Ex. 24, p. 11-12. Deposition of Laurence Parnoff, July 19, 2016).
According to the police report, Parnoff admitted that he threatened Lathlean (Ex. 30), and demanded that Officer McGlynn remove the three Aquarion employees from his property. The officer refused the request, and when Laurence Parnoff would not allow McGlynn to speak to the Aquarion employees in private, Parnoff was placed under arrest and charged with four offenses: Threatening 2nd Degree (S. 53a-62, Connecticut General Statutes), Disorderly Conduct (S. 53a-182, Connecticut General Statutes), Interfering With a Police Officer (S. 53a-167a, Connecticut General Statutes), and Criminal Mischief, 1st (S. 53a-115, Connecticut General Statutes). Parnoff was not charged with stealing water.
Subsequent to the July 11, 2011 interaction at 3392 Huntington Road, Stratford, a criminal prosecution of Laurence Parnoff began. In June of 2013, Parnoff was found guilty of disorderly conduct by a jury, in violation of S. 53a-182(a)(1) of the General Statutes. That same jury found him not guilty of criminal mischief in the fourth degree, Section 53a-117a(a)(1) of the General Statutes. The trial court sentenced Parnoff to a suspended three-month jail term, required enrollment in an anger management program, and ordered Laurence Parnoff to write a letter of apology to Lathlean and Lavin. The Connecticut Appellate Court reversed the conviction; State v. Parnoff, 160 Conn.App. 270, 125 A.3d 573 (2015); and the case is pending in the Connecticut Supreme Court.
Laurance Parnoff is a practicing attorney. Therefore, the Statewide Grievance Committee began an investigation following the July 11, 2011 incident. (Ex. 9.)
The three Aquarion Company employees were all asked to provide testimony during the course of the criminal trial, and the Grievance Committee proceedings.
Lavin gave a statement to the Stratford Police Department on the day of the incident (Ex. 26). He also took photos at the scene, and testified at both the Grievance Committee hearing, and the criminal trial. He gave no other statements, written or oral, and was never interviewed by any media outlet (Ex. 1. p. 7).
Lathlean gave a statement to the police (Ex. 27) and testified in the criminal trial, held in October of 2013 at Geographic Area (GA) #2 in Bridgeport (Ex. 2). He was never interviewed by any newspaper or news organization.
Doyle provided the Stratford Police Department with photographs, and gave a statement as part of the police investigation. (Ex. 28.) She testified in the criminal trial, and was contacted by the Grievance Committee. At the request of the State's Attorney, she gave a statement (Ex. 10).
According to Beverly Doyle, neither the Aquarion Company nor any of its employees, filed a complaint against Laurence Parnoff with the Statewide Grievance Committee. She was never interviewed by any newspaper or other media outlet.
All three Aquarion Company employees stated that they never went into the Parnoff residence at 3392 Huntington Road, and did not enter the closed garage. Their presence was confined to the driveway, and the area immediately adjacent to the hydrant, including the canopy in which the modified hydrant cap and the wrench were located.
Parnoff's twenty-five (25) count complaint dated May 23, 2016 recites claims against the Aquarion Water Company and its employees, Kyle Lavin, David Lathlean and Beverly Doyle.
Also named as Defendants are Officer Glynn McGlynn, the Town of Stratford Police Department, and former Chief of Police Patrick Ridenhour.
Claims include allegations of trespass, negligent infliction of emotional distress, intentional infliction of emotional distress, and invasion of privacy against the Aquarion Company and its three employees. A claimed violation of the Connecticut Unfair Trade Practices Act (CUTPA) is pled as against the Aquarion Company.
Claims of invasion of privacy, negligent and intentional infliction of emotional distress, negligence and false arrest are pled against Officer McGlynn and the Town of Stratford. Two counts allege violations of 42 U.S.C. S. 1983.
The Aquarion Company and its employees have moved for summary judgment (#230) as to counts 1 through 17. Officer McGlynn and the Town of Stratford (#225) have moved for summary judgment concerning the remaining counts, 18 through 25. All claim that no genuine issue of material fact remains between the Defendants and the Plaintiff, Laurence Parnoff, and that judgment should enter as a matter of law.
SUMMARY--STANDARD OF REVIEW
Connecticut Practice Book Section 17-49 provides that summary judgment shall be rendered forthwith, if the pleadings, affidavits and other proof submitted demonstrate that no genuine issue as to any material fact remains between the parties, and that the moving party is entitled to judgment as a matter of law, Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995).
The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact. D. H. R. Constr. Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003). A material fact has been defined as one which will make a difference in the result. Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002); Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990).
Although the burden is on the party seeking to obtain summary judgment, the party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000); Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 713 A.2d 820 (1998). Mere assertions of facts are insufficient to establish the existence of a material fact, and cannot refute evidence properly presented in support of a motion for summary judgment. Bruttornesse v. Northeastern Connecticut Sexual Assault Crisis Services Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997).
The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to he tried. Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970). The test for granting summary judgment is whether the moving party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).
ALL DEFENDANTS ENTITLED TO SUMMARY JUDGMENT ON TRESPASS CLAIMS
Laurence Parnoff asserts that Kyle Lavin, David Lathlean and Beverly Doyle trespassed on his property, 3392 Huntington Road, Stratford. He further alleges that the trespass occurred, during the course of their employment by the Aquarion Water Company.
These claims fail to resonate.
The essential elements of an action for trespass to real property are: 1) ownership or a possessory interest in land by the plaintiff, 2) an invasion or intrusion or entry by the defendant affecting the plaintiff's possessory interest, 3) done intentionally, and 4) causing direct injury. Bristol v. Tilcon Minerals, 284 Conn. 55, 87-88, 931 A.2d 237 (2007); Rickel v. Komaromi, 144 Conn.App. 775, 781-82, 73 A.3d 851 (2013): Boyne v. Town of Glastonbury, 110 Conn.App. 591, 601, 955 A.2d 645 (2008). Actual damages need not be proven, and an award of nominal damages may be appropriate based upon a trespass claim. Hardie v. Mistriel, 133 Conn.App. 572, 576 n.11, 36 A.3d 261 (2012).
Parnoff does not claim any damage to the realty as a consequence of the July 11, 2011 event.
Construing all facts most favorably to the Plaintiff, Laurence Parnoff, no cause of action can he sustained.
The Aquarion Water Company as successor to Bridgeport Hydraulic Company, has an express easement to enter upon the property at 3392 Huntington Road, for the purpose of maintaining and repairing its property, and safeguarding the public water supply. A water line runs through the Plaintiff's property. The water line services customers in Stratford.
The entry on July 11, 2011 was confined to the driveway, and the exterior of the property, where the hydrant is situated. The only " under cover" entry concerned a canopy, in which the modified hydrant cap and a wrench were located.
No attempt was made to wander aimlessly about the property by any Aquarion employee, and neither the closed garage nor the Parnoff residence were entered.
Even in the absence of the express easement by deed, entry by Aquarion Company employees is permitted by the Department of Public Utilities Control (DPUC) (Ex. 7). The evidence reveals that the employees were merely doing their jobs on July 11, 2011, and were at all times acting within the confines of the law, and applicable regulations. None of the employees was acquainted with the Plaintiff, Laurence Parnoff, prior to July 11, 2011, and none entered the property with any improper motive.
The motion for summary judgment, as to Counts 1, 2, 3 and 4, is therefore granted.
CLAIMS OF ALLEGED INVASION OF PRIVACY CANNOT WITHSTAND SUMMARY JUDGMENT
In Counts 13, 14, 15 and 16, Laurance Parnoff has attempted to set forth a cause of action for invasion of privacy against the Aquarion Company and its three employees. Invasion of privacy claims against Officer McGlynn and the Town of Stratford are also advanced on counts 24 and 25 of the Revised Complaint.
None of these efforts will avail the Plaintiff, Laurance Parnoff.
Connecticut recognizes a cause of action for invasion of privacy, which mirrors the four categories defined in S. 652A of the Restatement (Second) of Torts. Venturi v. Savitt, Inc., 191 Conn. 588, 591, 468 A.2d 933 (1983). The four categories are 1) unreasonable intrusion upon the seclusion of another, 2) appropriation of the name or likeness of another, 3) unreasonable publicity given to one's private life, and 4) publicity that unreasonably places another in a false light before the public. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 126-28, 448 A.2d 1317 (1982) Restatement (Second), Torts, S. 652A (1977).
In this case, Laurence Parnoff claims that Officer McGlynn, and/or one or more of the Aquarion Company employees, unreasonably intruded upon his seclusion. These claims are utterly unsupported by the facts, even when viewed in the light most favorably to the Plaintiff.
The Aquarion Water Company employees entered upon 3392 Huntington Road for a lawful purpose--the maintenance of a hydrant located on the property. Their entry was confined to the driveway area, and a wooded section of the 7.28-acre parcel, where the hydrant was situated. At no time did they enter the residence or a closed garage.
The open canopy was exposed to public view, and entry was made solely for the purpose of discovering the missing hydrant cap. The cap was located inside the canopy, a short distance from the hydrant.
The fact that the property owner, Laurence Parnoff, took exception to the presence of the Aquarion Company employees on the property does not remotely support a claim for invasion of privacy.
Officer McGlynn was summoned to the property, in his capacity as a Stratford police officer. His presence was requested both by the Aquarion Water Company employees, and the owner of the property. His investigation was confined to the exterior of the property, and he never entered the residence or the garage.
Furthermore, Officer McGlynn allowed the presence of Aquarion personnel on the property, because he determined, as part of his investigation, that they had a right to be there. He also determined that repairs to the hydrant were necessary, in order to safeguard the quality of the public water supply.
Summary judgment must therefore be granted as to Counts 13, 14, 15, 16, 24 and 25, because there is no genuine issue of any material fact which would support a verdict for the Plaintiff.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS ARE NOT VIABLE
In Counts 9, 10, 11 and 12, Laurence Parnoff maintains that the Aquarion Water Company, acting through one or more of its employees, intentionally inflicted severe emotional distress upon him on July 11, 2011. A similar complaint is lodged against Officer Glynn McGlynn in count 21.
Construing all facts in the manner most favorable to the Plaintiff, Laurence Parnoff, no claim for intentional infliction of emotional distress can be maintained, and all Defendants are entitled to judgment as a matter of law.
In order to establish a claim for intentional infliction of emotional distress, a plaintiff must establish four (4) elements: 1) that the actor intended to inflict emotional distress and knew or should have known that emotional distress would result from his conduct, 2) that the conduct was extreme and outrageous, 3) that the actor's conduct caused the plaintiff to suffer emotional distress, and 4) that the distress sustained by the plaintiff was severe. Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012); Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).
Liability for intentional infliction of emotional distress must involve conduct which exceeds all bounds usually tolerated by a decent society. Bombalicki v. Pastore, 71 Conn.App. 835, 839-40, 804 A.2d 856 (2002). The question is whether a reasonable fact finder, construing all facts most favorably to the non-moving party, could find the conduct complained of extreme and outrageous--that is, atrocious and utterly intolerable in a civilized society. Perez-Dickson v. City of Bridgeport, supra, at 527; Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569-70, 922 A.2d 280 (2007); Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006). Conduct which is merely insulting, or displays bad manners, is insufficient to form the basis of an action for intentional infliction of emotional distress. Appleton v. Board of Educ., 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
When assessing claims of intentional infliction of emotional distress, the court exercises a gatekeeper function. It must determine, in the first instance, whether a reasonable fact finder could find the conduct extreme and outrageous. Davis v. Davis, 112 Conn.App. 56, 66, 962 A.2d 140 (2009).
Here, no creditable claim can be made against any of the Aquarion Water Company employees, or Officer McGlynn.
Confronted with a fire hydrant with a missing front cap, coupled with the discovery of a wet hydrant cap and a wrench nearby under a canopy, wet ground around the hydrant, and two garden hoses, one of which led to a goat pen, the Aquarion employees acted reasonably, and with restraint.
Even assuming, arguendo, that Lathlean informed Laurence Parnoff that stealing water was a crime, and that Lavin confronted Parnoff with pictures coupled with an accusation of theft, the conduct, given the circumstances, does not even approach the threshold for extreme and outrageous conduct.
Furthermore, even conceding that Officer McGlynn was brusque and somewhat abrupt, when taking Parnoff into custody, his conduct was in no way extreme and outrageous.
None of the Defendants was acquainted with Parnoff prior to July 11, 2011. All interacted with him on that date in the course of their employment. Again assuming, arguendo, that Laurence Parnoff suffers from severe emotional distress, that assumption is not sufficient to salvage his claim of intentional infliction of emotional distress.
The motions for summary judgment, as to Counts 9, 10, 11, 12 and 21, are therefore granted.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
In Counts 5, 6, 7 and 8, Laurence Parnoff alleges that the Aquarion Water Company, and its employees, negligently caused him to suffer emotional distress as a result of the July 11, 2011 incident. In count 20, he claims that Officer McGlynn, by allowing the Aquarion employees to trespass on his property, negligently caused him to suffer emotional distress.
In order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove 1) that 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 distress. Hall v. Bergman, 296 Conn. 169, 182 n.8, 994 A.2d 666 (2010); Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
A plaintiff must prove that the particular defendant should have realized that his conduct involved an unreasonable risk of causing emotional distress, and that the distress, if caused, might result in bodily harm. Scanlon v Connecticut Light & Power, Co., 258 Conn. 436, 446, 782 A.2d 87 (2001); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).
There was no threat of physical violence directed at Parnoff, by any of the Aquarion Water Company employees. The only threat of potential violence originated with Parnoff, who threatened to go into his house and get a gum.
Beverly Doyle never spoke to Laurence Parnoff on July 11, 2011. Her mere presence on the property, and her response to government agencies for information subsequent to July 11, 2011, provide no evidence of conduct creating an unreasonable risk of causing emotional distress, or any reasonable expectation by Parnoff that bodily harm would result. Therefore, the motion for summary judgment as to count 5, must be granted.
The fact that Officer McGlynn allowed Aquarion employees to remain at 3392 Huntington Road, when they had a lawful right to be on the property within the scope of their employment, and were intent on preventing potential contamination of the public water supply due to a defective hydrant, cannot form the basis of a claim of negligent infliction of emotional distress.
Furthermore, as to any claim of negligence against Officer McGlynn, that claim is barred by the provisions of S. 52-584 of the General Statutes
" No action to recover damages for injury to the person . . . caused by negligence or reckless or wanton misconduct . . . shall be brought but within two years from the date when injury is first sustained or discovered, or in the exercise of reasonable care should have been discovered, and except that no action may be brought more than three years from the date of the act or omission complained of . . ."
Although this action was begun within the three-year period of repose contained in S. 52-584, it was not begun within two years of July 11, 2011.
The limitation period in S. 52-584 begins to run when a plaintiff has knowledge of sufficient facts to bring a cause of action against a defendant. Lagassey v. State, 268 Conn. 723, 743, 846 A.2d 831 (2004). The statute of limitations begins to run, when a plaintiff has reasonable opportunity to discover his injury, and the identity of the alleged tortfeasor. Tarnowsky v. Socci, 271 Conn. 284, 296-97, 856 A.2d 408 (2004). This is known as actionable harm.
Here, as to Officer McGlynn, Laurence Parnoff was aware of all of the elements of a potential cause of action on July 11, 2011. Suit was not instituted within two years of that date.
The motion for summary judgment, as to count 20, must therefore be granted.
Parnoff claims that both Lathlean and Lavin accused him of stealing water, and did so in an offensive and unreasonable manner. He states that Lavin pushed a phone up to his face, claiming to have proof of criminal conduct.
Both Lavin and Lathlean deny those allegations.
Assuming all facts and evidence most favorably to Laurence Parnoff, it is conceivable that a trier of fact might find that the conduct of Lathlean and/or Lavin created an unreasonable risk of causing Parnoff emotional distress. A trier might also find, that actionable harm was not sustained, until sometime after July 11, 2011, when the extent of Parnoff's alleged distress became known.
Recognizing that the Plaintiff must establish, by a preponderance of the evidence, that the distress caused was so severe that bodily harm might result, and that such proof can be described as very problematic, it must nevertheless be found that a genuine issue of material fact remains concerning the actions of Lathlean and Lavin on July 11, 2011, and the date on which actionable harm was sustained.
The motion for summary judgment, as to counts 6, 7 and 8, must therefore be denied.
CONNECTICUT UNFAIR TRADE PRACTICES (CUTPA) CLAIM NOT PROVEN
In count 17, Laurence Parnoff claims that the Aquarion Water Company violated the Connecticut Unfair Trade Practices Act (CUTPA). This claim is without merit.
Section 42-110b(a) of the General Statutes, provides,
No person shall engage in unfair methods of competition and unfair or deceptive trade practices in the conduct of any trade or commerce.
A party seeking to recover damages pursuant to CUTPA, must meet two (2) requirements; 1) he must establish that the conduct at issue constitutes an unfair or deceptive trade practice, and 2) he must prove that he has suffered ascertainable loss. Beverly Hills Concepts Inc. v. Schatz, Schatz, Ribicoff & Kotkin, 247 Conn. 48, 78-79, 717 A.2d 724 (1998), Reader v. Cassarino, 51 Conn.App. 292, 298-99, 721 A.2d 911 (1998).
A private cause of action, pursuant to S. 42-110(a) of the General Statutes, is available to one who " suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by Section 42-110g(b) . . ." The ascertainable loss requirement is a threshold barrier which limits the class of persons who may prosecute a CUTPA claim. Marinos v. Poirot, 308 Conn. 706, 713, 66 A.3d 860 (2013).
In determining whether a practice violates CUTPA, Connecticut has adopted the threefold test known as the " cigarette rule." 1) does the practice offend public policy, within a common-law, statutory or other concept of fairness, 2) is it immoral, unethical, oppressive or unscrupulous, and 3) does it cause substantial injury to consumers. Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367-68, 736 A.2d 824 (1999).
The evidence, construed most favorably to the Plaintiff, Laurence Parnoff, fails to establish any ascertainable loss. Furthermore, Parnoff has utterly failed to raise any genuine issue as to any material fact, concerning any of the three criteria contained in the " cigarette rule."
The Aquarion Water Company, acting through its employees, expressed proper and appropriate concern for the maintenance of its equipment. The evidence also reveals a valid concern for the potential contamination of the public water supply, due to a defective hydrant.
All maintenance and inspection efforts were in the interest of consumers of public water. No evidence demonstrates that the presence of Aquarion personnel at 3392 Huntington Road, was due to any improper or unscrupulous motive.
The motion for summary judgment as to count #17 is granted.
CLAIMS OF FALSE ARREST AND VIOLATION OF 42 U.S.C. S. 1983 CANNOT STAND
In count 18, the Plaintiff appears to claim that he was falsely arrested by Officer McGlynn. A related claim is pled as against Officer McGlynn and the Stratford Police Department in counts 22 and 23, which are brought pursuant to 42 U.S.C. S. 1983.
42 U.S.C. S. 1983--" Every person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ."
False arrest is the unlawful restraint by one person of the physical body of another. Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982); Nodoushani v. S. Conn. State Univ., 152 Conn.App. 84, 92, 95 A.3d 1248 (2014).
The analysis required of a common-law false arrest claim and a claim brought under 42 U.S.C. S. 1983 are virtually identical. However, a S. 1983 claim must be carried out under color of state law. Nodoushani v. Southern Connecticut State University, supra, 91-92.
The Defendants argue that the defense of qualified immunity, which protects public officials from civil actions where they are performing discretionary functions, precludes recovery under S. 1983.
This claim is applicable to these facts, and is well taken.
Whether an official, in this case a police officer, is protected by qualified immunity depends upon the objective legal reasonableness of his actions. The proper inquiry is not the officer's personal belief, but the objective analysis of what a reasonable officer in the defendant's position would believe. Ham v. Greene, 248 Conn. 508, 520, 729 A.2d 740 (1999). Lack of probable cause is a critical element of both, a common-law false arrest claim, and one brought pursuant to S. 1983. Beinhorn v. Saraceno, 23 Conn.App. 487, 491, 582 A.2d 208 (1990).
In making a finding of probable cause, it must be determined, drawing all inferences most favorable to the person arrested, that it is objectively unreasonable to believe that probable cause did not exist. Ham v. Greene, supra, 522.
No genuine issue of material fact exists, concerning Officer McGlynn's belief that probable cause existed on July 11, 2011, for the arrest of Laurence Parnoff.
The Plaintiff, Laurence Parnoff, had refused to stand apart from Officer McGlynn and the Aquarion Water Company employees, so that the officer could speak to the Aquarium personal in private, and could conduct his investigation.
Officer McGlynn confirmed that Parnoff had threatened to get a gun from his home, and threatened to use it, if the Aquarion employees did not leave his property.
Furthermore, there was physical evidence demonstrating that Aquarian Company property had been damaged, and that repairs were needed to protect the public water supply, and avoid contamination.
Nor was Officer McGlynn under any legal obligation to remove the Aquarion Company employees from the property known as 3392 Huntington Road.
There is no genuine issue of material fact concerning the objective evidence of probable cause for the arrest of Laurence Parnoff on July 11, 2011.
The motion for summary judgment, as to counts 18, 22 and 23 is therefore granted.
CLAIM UNDER S. 52-557n CAN NOT SURVIVE SUMMARY JUDGMENT
The remaining claim in count 19, involves a claim by Laurence Parnoff that Officer McGlynn engaged in willful and malicious conduct on July 11, 2011. This allegation is without merit.
It is beyond question, that the actions of Officer McGlynn on July 11, 2011, involved the exercise of judgment or discretion by a sworn police officer. Therefore, he may avail himself of the doctrine of qualified immunity.
No fair reading of the voluminous materials submitted along with the motions for summary judgment would reveal that the actions of Officer McGlynn were motivated by ill will or malice. A motion to strike was previously granted (Arnold, J.) concerning the allegations of wanton and malicious behavior. Nothing has been revealed by way of discovery or additional material, to alter the previous analysis.
There is no evidence that Officer McGlynn abused Parnoff. He used appropriate force in applying handcuffs.
Summary judgment is granted as to count 19 on the issue of qualified immunity, and the law of the case.
CONCLUSION
The motion for summary judgment filed by the Aquarian Water Company and its three (3) employees, (#230) is GRANTED, as to Counts 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, and 17.
The motion for summary judgment (#230) is DENIED, as to Counts 6, 7, and 8.
The motion for summary judgment filed by the Defendants Glynn McGlynn, Patrick Ridenhour and the Town of Stratford (#225), is GRANTED as to Counts 18, 19, 20, 21, 22, 23, 24 and 25.