Opinion
FSTCV145014277S
05-26-2016
Robert Pritsker v. Jo-Ann Keating et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (No. 140)
Hon. Charles T. Lee, J.
Before the court is the defendants' motion for summary judgment. Only July 15, 2014, the self-represented plaintiff, Robert Pritsker, filed a two-count complaint against the defendants, Jo-Ann Keating (Weston Board of Education Director of Finance/Operation), David Lustberg (Weston Board of Education Transportation Coordinator), John Troxell (Weston Chief of Police), Jose Mogollon (Weston Police Officer) (collectively, the individual defendants), the Town of Weston (Town), and the Weston Board of Education (BOE) alleging intentional and negligent infliction of emotional distress arising out of his arrest on July 10, 2011 on the basis of six charges, including risk of injury to a child. The arrest warrant, signed by Judge Dennis on July 1, 2011, alleged that, on Thursday, June 2, 2011, Mr. Pritsker had been practicing tennis at the Weston town courts, which are located adjacent to the Weston Intermediate School, when he sought to exit at or about the time of dismissal of the children from their classes. Finding the access road blocked by the school buses, which were waiting for the children, and that the bus drivers were unwilling to move their buses, Mr. Pritsker allegedly drove around the right side of the buses on the sidewalk in order leave the scene. On Monday, June 6, 2011, school officials, after discussing the incident with Mr. Pritsker, notified the police, who investigated the charges, and Mr. Pritsker was eventually arrested.
The plaintiff has indicated that he was admitted to practice law in Massachusetts, but not Connecticut.
On April 15, 2015, the defendants filed a motion for summary judgment in which they argued that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. As to the intentional infliction of emotional distress claim, the defendants argue that: (1) as to Keating and Lustberg, the claim is time-barred; (2) as to the individual defendants, the conduct alleged does not meet the level of outrageousness that an intentional infliction of emotional distress claim requires; and (3) as to the Town and the BOE, governmental immunity acts as a bar to liability for intentional torts. In support, the defendants submitted the application for the plaintiff's arrest warrant, including Officer Mogollon's affidavit, voluntary statements from five eyewitness bus drivers, and the signed arrest warrant.
On June 8, 2015, the court granted the motion for summary judgment as to negligent infliction of emotional distress on statute of limitations grounds.
On May 6, 2015, the plaintiff responded to the defendants' motion. In his opposition, he argues that (1) as to Keating and Lustberg, the claim is timely because his arrest triggered the three year statute of limitations period of General Statutes § 52-577; (2) as to the individual defendants, false accusations of a felony offense are sufficiently outrageous; and (3) as to the Town and the BOE, the court already denied the claim of governmental immunity when it granted the plaintiff's motion to strike. The plaintiff did not submit evidence in support of his opposition. On June 8, 2015, the court denied the defendants' motion for summary judgment without prejudice as to the statute of limitations argument, in order to permit plaintiff to conduct discovery as to the timing of the actions of Keating and Lustberg, which plaintiff declined to do. The court reserved decision on whether the alleged acts constitute the requisite level of outrageous conduct and with respect to governmental immunity.
The special defense of governmental immunity was repled in the Amended Complaint dated May 1, 2015, and the court denied the subsequent motion to strike the defense by order no.148.01, dated September 28, 2015.
On March 10, 2016, pursuant to court instruction, the defendants filed a motion to reargue/reconsider, to which the plaintiff objected on March 14, 2016. In support, the plaintiff submitted his affidavit asserting the validity of the following documents, which he attached: (1) the application for the arrest warrant, including an annotated copy of Officer Mogollon's affidavit indicating what plaintiff considered to be fraudulent, and the signed arrest warrant; (2) a letter from Sergeant Patrick Daubert of the Weston Police Department describing communications to the police department on June 2 and June 6 of 2011; (3) an annotated version of the Weston Police Department incident report; (4) a document representing calls made on June 6, 2011 to the Weston Call Center regarding the plaintiff; (5) a hand drawn map of the area including the school, the tennis court driveway, the plaintiff's car, and the buses; (6) a photograph of a " do not block driveway" sign, (7) a photograph of the sidewalk at dismissal; (8) two internet articles about video cameras on Weston school buses; (9) the BOE policy regarding video and audio recording on school buses; and (10) a photograph of a " no parking fire lane" sign.
On March 21, 2016, the defendants submitted their reply brief. In support, the defendants attached: (1) the affidavit of Officer Mogollon describing his investigation of the incident and his application for the arrest warrant; (2) the affidavit of David Lustberg; and (3) a portion of the plaintiff's certified deposition. The defendants also submitted DVDs of recordings from two buses. The court heard oral argument on March 28, 2016. Following oral argument, on March 30, 2016, the plaintiff submitted a surreply.
According to Practice Book § 11-10(c): " Surreply memoranda cannot be filed without the permission of the judicial authority." Although, in the present case, the plaintiff did not obtain permission before submitting his surreply, because the plaintiff is self-represented, the court will consider the substance of his memorandum.
As is more fully discussed below, the defendants' motion for summary judgment is granted. There are no genuine issues of material fact and, because (1) the action is time-barred as to Keating and Lustberg, (2) neither Mogollon nor Troxell acted sufficiently outrageously, and (3) the Town and the BOE are immune from suit, the defendants are entitled to judgment as a matter of law.
I. BACKGROUND
The following background facts, assembled from unchallenged allegations of the plaintiff's complaint and evidence presented by the parties, provide the foundation for the resolution of this motion. Prior to school dismissal, at around 3:00 in the afternoon, school buses line up next to the sidewalk along the roadway in front of the Weston Intermediate School. Each bus is separated by a few feet. When aligned in such a fashion, the buses block the driveway to the nearby Town tennis courts, which is perpendicular to the roadway. Upon dismissal, students leave the school building and proceed on the sidewalk to their designated buses. Students whose buses are parked at the front of the line must walk past the tennis court driveway. Once the students load onto the buses, the buses depart and the driveway to the tennis courts is again unobstructed.
On June 2, 2011, the plaintiff was practicing tennis at the Town courts. At approximately 3:15 in the afternoon, after the buses had lined up, the plaintiff ended his tennis session, entered his car, and attempted to exit the tennis court driveway and access the roadway. The plaintiff was unable to do so, however, because a school bus, parked in line with the other buses, blocked his exit. According to the plaintiff, he gestured to Helen Lapore, the driver of the problematic bus, to ask her to back up her bus to make room for the plaintiff's car. Lapore refused to move the bus. The plaintiff then exited his car and approached Lapore to ask her to do the same. Lapore again refused. A high school student, Julian Jacobs, allegedly came upon the scene on his way to the bus that was parked behind Lapore's bus. The plaintiff asked Jacobs to ask the driver of that bus, Maria Zapata, to move her bus. Zapata refused. Having been refused multiple times, the plaintiff returned to his car and proceeded to turn right out of the tennis court and drive in a direction away from the school on the sidewalk running parallel to the roadway on which the buses were parked. This is the same sidewalk that the students exiting the school used to access their buses. Once past a total of four buses (including Lapore's bus), the plaintiff turned into the roadway. Soon after the plaintiff drove off, the bus drivers discussed plaintiff's conduct with frightened children who had seen the plaintiff drive on the sidewalk in front of them.
A few days later, on June 6, 2011, back at the tennis court, the plaintiff was approached by Keating and Lustberg. The three discussed the June 2 incident. On the same day, Dan Clark, the facilities manager for the Weston School District, reported the incident to the police. Subsequently, Officer Mogollon conducted an investigation of the incident. He interviewed bus drivers, including Lapore and Zapata, watched recordings from two buses, and spoke with the plaintiff and Lustberg. Plaintiff admitted that he had driven on the sidewalk around the school buses at or about the time of dismissal. Officer Mogollon did not speak to Julian Jacobs. On June 29, 2011, Officer Mogollon applied for an arrest warrant, which Judge Dennis signed on July 1, 2011. On July 10, 2011, the plaintiff was arrested at his home in front of his family. He was charged with violating six sections of the General Statutes, including General Statutes § 53-21(a), which makes it a felony to cause risk of injury to a child. After the arrest, two of the lesser offenses were dropped. The plaintiff accepted accelerated rehabilitation for the remaining charges, and Judge Wenzel determined that plaintiff failed to make the preliminary showing sufficient to obtain a hearing as to the validity of his arrest, as provided by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
General Statutes § 53-21(a) provides, in relevant part: " Any person who . . . wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of . . . a class C felony . . ." " To convict a defendant of risk of injury to a child [pursuant to § 53-21], a court must find that the defendant acted wilfully and that he either intended the resulting injury to the victim, or he knew that the injury would occur, or that his conduct was of such a character that it demonstrated a reckless disregard of the consequences." (Internal quotation marks omitted.) State v. Guitard, 61 Conn.App. 531, 543, 765 A.2d 30, cert. denied, 255 Conn. 952, 770 A.2d 32 (2001). " Section 53-21(a)(1) does not require proof of actual injury to the health or morals of a child, but prohibits conduct which is likely to do so." State v. Samms, 139 Conn.App. 553, 559, 56 A.3d 755 (2012), cert. denied, 308 Conn. 902, 60 A.3d 287 (2013).
According to the plaintiff, his arrest was the culmination of a conspiracy undertaken by Keating, Lustberg, Troxell, and Mogollon in furtherance of Keating's animosity toward the plaintiff. The details of the alleged conspiracy provide the basis for this lawsuit. According to the plaintiff, in furtherance of the conspiracy, Keating, his accuser, and Lustberg, the custodian of material evidence, allowed for the destruction of recordings from school bus cameras and tampered with the recordings that were preserved and transferred onto DVDs. For his part, Officer Mogollon allegedly prepared and presented an erroneous warrant affidavit to Judge Dennis in which he lied about material facts (such as the timing of the incident report and how he came to know the plaintiff's license plate number), provided the incorrect license plate number, and contradicted himself numerous times. By his fraudulent activities, and by being purposefully vague, Officer Mogollon misled Judge Dennis into issuing the arrest warrant. Chief Troxell's role was to inflict emotional distress by speaking with a local newspaper about the plaintiff's arrest and releasing his arrest photograph to the publication. This conspiracy caused the plaintiff severe emotional distress, reputational harm, and loss of business and employment opportunities. Accordingly, the plaintiff filed suit.
II. CONTENTIONS OF THE PARTIES
All six defendants join in the motion for summary judgment in which they make the following arguments. As to Keating and Lustberg, the action is time-barred under General Statutes § 52-577, which provides a three-year statute of limitations for intentional torts. The defendants contend that the act or omission complained of triggers the statute of limitations; because Keating and Lustberg last acted more than three years prior to the day on which the action was commenced, the action is untimely. As to the individual defendants, no one acted with the level of outrageousness that an intentional infliction of emotional distress claim demands. Officer Mogollon had probable cause to arrest the plaintiff and the arrest itself was not outrageous. Similarly, Chief Troxell's speaking to the press and releasing the plaintiff's photograph, Keating's alleged initiation of the conspiracy, and Lustberg's alleged destruction of evidence are not sufficiently outrageous. As to the Town and the BOE, the two are immune from liability for intentional torts under General Statutes § 52-577n, which provides governmental immunity.
In their motion for summary judgment, the defendants incorrectly refer to General Statutes § 52-584. They correctly identify § 52-577 in their memorandum of law in support of their motion and in subsequent filings.
The plaintiff counters with arguments to each of the defendants' points. As to the statute of limitations argument, the plaintiff avers that: (1) the statute began running at the time of his arrest and (2) in any event, the continuing course of conduct doctrine tolled the statute until the time of his arrest because neither Keating nor Lustberg did anything to stop the process of false accusation and arrest. As to whether the defendants' conduct was sufficiently outrageous, although plaintiff admits that he drove around the school buses on the sidewalk at or about the time of dismissal of the children, the plaintiff contends that Officer Mogollon lied and omitted information in the warrant application, that Judge Dennis could not have found probable cause to arrest the plaintiff based on a true set of facts, and that the other individual defendants partook in the campaign to falsely accuse and arrest the plaintiff. As to the application of governmental immunity, the plaintiff again relies on the lack of probable cause and asserts that, under General Statutes § 52-557n(b)(5), immunity does not apply when a judicial proceeding is commenced or prosecuted without probable cause.
In response, the defendants argue that the plaintiff has not met his evidentiary burden. He cannot rely on unauthenticated documents and allegations from his pleadings to defeat summary judgment. Assuming that the plaintiff did supply sufficient evidence, the defendants aver that, substantively: (1) the plaintiff has not denied that he drove his car on the sidewalk alongside buses during the time when students were being dismissed from school, (2) the claims of conspiracy are nonsensical because the plaintiff does not explain the motivation behind the alleged conspiracy, (3) Officer Mogollon's omissions were inadvertent, immaterial, and did not destroy the existence of abundant probable cause, and (4) the plaintiff's argument is based on assumptions and speculation. The defendants point to the DVD footage as proof of the existence of probable cause.
At oral argument, the plaintiff argued that his arrest was not based on probable cause. The essence of his argument is that, without a child on the sidewalk in front of his car, he cannot be considered to have risked injury to a child. According to the plaintiff, the risk of injury to a hypothetical child, or to society in general, does not meet the requirements of § 53-21(a). The plaintiff reiterated this argument in his surreply. The defendants countered by stating that the act of driving on the sidewalk, past buses, at dismissal time, is reckless. The defendants point to the bus DVDs as proof that children were walking on the sidewalk seconds before and seconds after the plaintiff passed the buses.
III. DISCUSSION
A. Standard of Review
" The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " Summary judgment is appropriate where no genuine issue of material fact exists, and the defendant is entitled to judgment as a matter of law, with respect to any one element that the plaintiff is required to prove in order to prevail at trial." Tyler v. Tyler, 151 Conn.App. 98, 105, 93 A.3d 1179 (2014). " [T]he 'genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.
A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . ." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " A party may not . . . rely on mere speculation or conjecture as to the true nature of the facts to overcome . . . summary judgment." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 558. " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005).
B. Statute of Limitations
" The question whether a party's claim is barred by the statute of limitations is a question of law . . ." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 469, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). " Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 313.
" Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues . . . General Statutes § 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. [The Appellate Court] has determined that [s]ection 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs . . . Moreover, our Supreme Court has stated . . . that the history of [the] legislative choice of language [in § 52-577] precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred . . . The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Citation omitted; internal quotation marks omitted.) LaBow v. Rubin, supra, 95 Conn.App. 468-69. " When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." (Internal quotation marks omitted.) Id., 470.
" [T]he continuing course of conduct doctrine [tolls] the statute of limitations for a claim of intentional infliction of emotional distress without requiring the existence of an original duty . . . [A]lthough [the Connecticut Supreme Court] recognize[s] the continuing course of conduct doctrine in cases of intentional infliction of emotional distress, [the court] further recognize[s] that at some point there must be a limitation on the ability to file an action to recover for such conduct. Therefore, in such cases, if no conduct has occurred within the three year limitations period set forth in § 52-577, the plaintiff will be barred from recovering for the prior actions of intentional infliction of emotional distress. If, however, additional actions occur within the limitations period, the ability to bring an action will be further extended." Watts v. Chittenden, 301 Conn. 575, 596, 22 A.3d 1214 (2011). For purposes of an intentional infliction of emotional distress claim, Connecticut courts have found that the failure to act is " not so atrocious as to trigger liability . . ." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003) (finding that failure of a defendant insurance company to conduct a thorough and neutral fire investigation did not trigger intentional infliction of emotional distress claim); Del Core v. Mohican Historic Housing Associates, 81 Conn.App. 120, 126, 837 A.2d 902 (2004) (finding that the defendant's failure to notify the plaintiff in a timely fashion of her brother's death did not constitute a basis for an intentional infliction of emotional distress claim); Jackson v. Kos, Superior Court, judicial district of New Haven, Docket No. CV-11-6019945-S (July 27, 2012, Young, J.) [54 Conn.L.Rptr. 395, ] (" The absence of the allegation of an affirmative act is fatal to the claims of intentional infliction of emotional distress"); Dyson v. Colon, Superior Court, judicial district of New Haven, Docket No. CV-10-6016063-S (September 15, 2011, Wilson, J.) [52 Conn.L.Rptr. 613, ] (finding that " allegations of nonfeasance or lack of affirmative conduct . . . [are] not legally sufficient to state a claim for . . . intentional infliction of emotional distress"); Kaya v. New London, Superior Court, judicial district of New London, Docket No. CV-05-4004203-S, (December 20, 2010, Cosgrove, J.) (granting summary judgment for defendants on an intentional infliction of emotional distress claim where " all of the conduct alleged to be extreme and outrageous are failures by the defendants to take affirmative action").
C. Intentional Infliction of Emotional Distress and Probable Cause
" 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 . . . Therefore, in assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint, counterclaim or cross complaint set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Citations omitted.) Hartmann v. Gulf View Estates Homeowners Ass'n, 88 Conn.App. 290, 295, 869 A.2d 275 (2005).
" Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . [I]t is the intent to cause injury that is the gravamen of the tort . . ." (Internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 492, 998 A.2d 1221 (2010). " 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! . . . 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." (Internal quotation marks omitted.) Id., 492-93. In general, " [c]ourts in Connecticut have been reluctant to allow a claim for intentional infliction of emotional distress." Carone v. Mascolo, United States District Court, Docket No. 3:06CV01094 (DJS), (D.Conn. August 14, 2007) (citing to Connecticut Supreme Court, Appellate Court, and Superior Court cases); Gillians v. Vivanco-Small, 128 Conn.App. 207, 213, 15 A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 726 (2011) (claim that " defendants vindictively conspired to terminate the plaintiff's employment" not sufficient to allege extreme and outrageous conduct); Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001) (supervisors engaging in concerted and successful plan to force plaintiff to resign by, among other things, publicly admonishing her not sufficiently outrageous); Huston v. Cossette, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-11-6003351-S, (January 22, 2015, Fischer, J.) (chief of police's releasing information from a police officer's personnel file to the local newspaper not sufficiently outrageous).
Connecticut courts have indicated that when there is probable cause for an arrest, a claim sounding in intentional infliction of emotional distress based on the arrest will not be supported. Brooks v. Sweeney, 299 Conn. 196, 209, 210 n.14, 9 A.3d 347 (2010) (" We conclude that the plaintiff's arrest was supported by probable cause and, therefore, that [the defendant] is entitled to judgment as a matter of law on the . . . intentional . . . infliction of emotional distress [claim]"); see also Washington v. Blackmore, 119 Conn.App. 218, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010) (affirming trial court's finding that the existence of probable cause for a warrantless arrest precluded the plaintiff's recovery on an intentional infliction of emotional distress claim); Acker v. Wall, Superior Court, judicial district of Fairfield, Docket No. CV-12-6025830-S, (February 13, 2013, Sommer, J.) (" [A]s a matter of law . . . an otherwise lawful arrest that is supported by probable cause does not rise to that level of extreme and outrageous conduct required to support a claim for intentional infliction of emotional distress"). " Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he [or she] has reasonable grounds for prosecuting an action." (Internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 739, 643 A.2d 1226 (1994). " [T]he issue of the existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. Probable cause deals with probabilities, not hard certainties." (Internal quotation marks omitted.) Washington v. Blackmore, supra, 223-24. Stated otherwise, " [p]robable cause [to justify an arrest] exists when there are facts and circumstances within the officer's knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been . . . committed." (Internal quotation marks omitted.) State v. McCullough, 88 Conn.App. 110, 120, 868 A.2d 757, cert. denied, 273 Conn. 933, 873 A.2d 1002 (2005).
" When information is received from . . . an eyewitness, probable cause exists . . . unless the circumstances raise doubt as to the person's veracity." Crawford v. New London, United States District Court, Docket No. 3:11CV1371 (JBA), (D.Conn. January 16, 2014) (Finding that officers' statements that they interviewed several eyewitnesses coupled with videotape footage established probable cause for arrest). " As a general rule, in assessing whether a police officer had probable cause to make an arrest, courts consider only information [the officer] relied on in concluding there was probable cause and whether it was reasonable, based on that information, for the officer to conclude that probable cause existed . . . An officer is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest . . . [O]nce [an arresting officer] ha[s] a reasonable basis for concluding there [is] probable cause to arrest, he [does] not need to conduct further inquiries or take the statements of additional witnesses." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Stone v. Westport, 411 F.Supp.2d 77, 87-88 (D.Conn. 2006) (officer had probable cause to arrest plaintiff notwithstanding failure to investigate plaintiff's asserted alibi and failure to obtain written statements from other witnesses).
Probable cause is a question that may be resolved on a motion for summary judgment if there is no dispute of material fact regarding the pertinent events and knowledge of the officers. Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir. 1995), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996). " [F]or purposes of summary judgment, the determination of whether factual disputes are material to the resolution of the issue . . . is made by applying the same affidavit correction test used in a Franks hearing." Mulligan v. Rioux, supra, 229 Conn. 734. The test, which comes from Franks v. Delaware, supra, 438 U.S. 154, is as follows: " [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." State v. Dolphin, 195 Conn. 444, 456, 488 A.2d 812 (1985). In other words, " [u]nder that test, factual disputes are immaterial to the resolution of the issue . . . if the affidavit accompanying the warrant is sufficient, after correcting for material misstatements or omissions, to support a reasonable officer's belief that probable cause existed . . . Only if the corrected affidavit did not support an objective finding of probable cause would the factual disputes be material to resolving the issue of probable cause. In that case, summary judgment [appropriately would] be denied . . ." (Citations omitted; internal quotation marks omitted.) Mulligan v. Rioux, supra, 229 Conn. 734; accord Ham v. Greene, 248 Conn. 508, 522, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S.Ct. 326, 145 L.Ed.2d 254 (1999) (" Nonetheless, if the evidence, viewed in the light most favorable to the plaintiffs, discloses no genuine dispute that a magistrate would have issued the warrant on the basis of the 'corrected affidavits, ' then . . . [summary judgment] . . . must be upheld").
" [T]here is an underlying presumption of validity with respect to the affidavit supporting a warrant . . . Consequently, Franks type hearings are mandated only when a defendant makes a substantial preliminary showing of deliberate or reckless falsehood by the affiant and of the materiality of the falsehood to the warrant. The . . . requisite offer of proof [should] take the form of affidavits or other reliable statements of witnesses." State v. Dolphin, supra, 195 Conn. 457. Although the Franks analysis originally applied to search warrants, in State v. Dolphin, supra, 444, the Connecticut Supreme Court applied the test to an arrest warrant.
D. Governmental Immunity
" The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006). " General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages." (Footnote omitted.) Id., 614. Under § 52-557n(a)(2)(A): " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . [a]cts or omissions of any employee, officer or agent which constitute . . . wilful misconduct . . ." " Wilful" is synonymous with " intentional." Avoletta v. Torrington, 133 Conn.App. 215, 224, 34 A.3d 445 (2012). Accordingly, " a municipality may not be held liable for the intentional acts of its employees . . . including intentional infliction of emotional distress." Martin v. Westport, 108 Conn.App. 710, 730, 950 A.2d 19 (2008). Section 52-557n(b)(5) grants immunity to " a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties . . . for damages to person or property resulting from . . . the initiation of a judicial . . . proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause." The doctrine of governmental immunity, when applicable, protects towns and school boards of education. See Heigl v. Board of Education, 218 Conn. 1, 587 A.2d 423 (1991).
IV. ANALYSIS
A. Statute of Limitations
The only facts material to this issue are the date of the wrongful conduct alleged in the complaint and the date the action was filed. These facts are not in dispute. It is undisputed that the last affirmative action alleged to be taken by Keating (speaking with the plaintiff at the tennis courts) occurred on June 6, 2011, that the last alleged affirmative action taken by Lustberg (editing a DVD version of a bus recording) occurred on June 8, 2011, that the plaintiff was arrested on July 10, 2011, and that this lawsuit was commenced on June 27, 2014.
The defendants argue that the three-year statute of limitations as set forth in General Statutes § 52-577 begins to run on the date of the act or omission complained of. Therefore, the right to bring any action based on Keating's conduct expired on June 6, 2014 and the right to bring any action based on Lustberg's conduct expired on June 8, 2014. Because the action was commenced on June 27, 2014, after the statute had run, the two are entitled to judgment as a matter of law. The plaintiff does not dispute these facts, but argues that, as a matter of law, the three-year statute of limitations under § 52-577 began to run at the time of his arrest on July 10, 2011, and therefore his right to bring this action expired on July 10, 2014. Accordingly, as to Keating and Lustberg, the action is timely. Alternatively, even if the June 6 and June 8 wrongful conduct triggered the limitations period, plaintiff contends that, under the continuing course of conduct doctrine, the statute would be tolled by the failure of Keating and Lustberg to act to stop the progression of the arrest. Therefore, as to Keating and Lustberg, the statute of limitations expired on July 10, 2014, and this action is timely.
As is discussed above, General Statutes § 52-577 is a statute of repose; the relevant date is the date when the conduct of the defendant occurs, not the date when the plaintiff first sustains damage. Here, Keating allegedly engaged in affirmative wrongful conduct up until June 6, 2011. Therefore, the statute of limitations was triggered on that date and expired three years later on June 6, 2014. Lustberg allegedly engaged in affirmative wrongful conduct up until June 8, 2011. Therefore, the statute of limitations was triggered on that date and expired three years later on June 8, 2014. As a matter of law, without tolling the statute of limitations, the action against Keating and Lustberg is untimely.
The continuing course of conduct doctrine does not save this lawsuit because plaintiff does not aver that either Keating or Lustberg engaged in any additional affirmative conduct after June 6, 2011 and June 8, 2011; instead, he asks the court to consider their omissions as wrongful conduct sufficient to toll the statute until his July 10, 2011 arrest. Because the failure to act does not constitute conduct for purposes of an intentional infliction of emotional distress claim, the plaintiff's argument fails as a matter of law. Watts v. Chittenden, 301 Conn. 575, 596, 22 A.3d 1214 (2011). For these reasons, as to Keating and Lustberg, the defendants' motion for summary judgment is granted.
B. Intentional Infliction of Emotional Distress and Probable Cause
The question to be answered as to the charges against Officer Mogollon and Chief Troxell is whether their alleged conduct was atrocious enough to satisfy the high level of outrageousness that an intentional infliction of emotional distress claim demands. As the authorities discussed above demonstrate, this question is to be answered by the court in the exercise of its gatekeeper function. Further, applicable case law holds that an arrest is not sufficiently outrageous if supported by probable cause. See Brooks v. Sweeney, supra, 299 Conn. 209, 210 n.14.
As is explained in the preceding section, the cause of action against Keating and Lustberg is barred by the statute of limitations. Therefore, the court will not analyze whether their conduct supports an intentional infliction of emotional distress claim.
Here, plaintiff contends that Officer Mogollon's affidavit in support of the warrant application was so riddled with errors as to be fraudulent. Plaintiff points to the following primary issues in the affidavit:
1. The date of the school's complaint was incorrectly stated as June 2, 2011 instead of June 6, 2011;
2. The suspect's license plate was documented as CT 732 MLS and the plaintiff's license plate is CT 792 MLS;
3. Officer Mogollon misleadingly stated that Mr. Pritsker drove on the sidewalk " while children were walking towards their buses";
4. No testimony was taken or used from a witness named Julian Jacobs; and
5. The videotapes from the school buses that Officer Mogollon may have reviewed were automatically erased after thirty days, and the downloads to DVDs must have been altered.
These assertions do not negate Judge Dennis's finding of probable cause. First, Mr. Pritsker has not made a substantial preliminary showing, via statements from witnesses or other reliable evidence, that Officer Mogollon knowingly, intentionally, or recklessly made false statements in the warrant affidavit. Second, the false statements That Mr. Pritsker points to were not necessary to the finding of probable cause. That Officer Mogollon transcribed the incorrect license plate number and noted the incorrect reporting date is immaterial. These facts are relevant to the identity of the perpetrator and, in a conversation with Officer Mogollon, Mr. Pritsker admitted to being the person who drove down the sidewalk. Removing these statements would not materially change the affidavit presented to Judge Dennis. The statement that children were walking on the sidewalk when Mr. Pritsker drove around the buses is supported by the statements of the bus drivers. Specifically, Zapata stated: " The students were already boarding . . . [when Mr. Pritsker] drove the car over the sidewalk . . ." Bruno, Lepore, Wilson, and Porter all indicated that the students were coming out of the school building and/or walking down the sidewalk at the time of the incident. Officer Mogollon was entitled to rely upon these eyewitness statements. See State v. McCullough, supra, 88 Conn.App. 120. The claim of prejudice from the absence of testimony from Julian Jacobs is entirely unsupported by any admissible evidence as to what Mr. Jacobs would say as no deposition statement was provided. In any event, based on the interviews with the bus drivers and the plaintiff and other evidence, Officer Mogollon had a reasonable basis for concluding probable cause to arrest; he did not need to take the statements of additional witnesses. See Stone v. Westport, supra, 411 F.Supp.2d 77. The concern expressed about erasure of the bus videotapes is based on rank speculation as to what they might show, and the assertion of modification of the video downloads is completely unsupported by extrinsic or expert evidence.
The court acknowledges Mr. Pritsker's contention that these were intentional errors meant to convey a certain level of seriousness to Judge Dennis. However, Mr. Pritsker has not provided any evidence of this motivation
In summary, correcting for the errors and omissions to which the plaintiff points, the affidavit supports an objective finding of probable cause. Officer Mogollon interviewed witnesses watched video recordings, and spoke with the plaintiff about the incident. The circumstances do not raise doubt as to the eye witnesses' veracity. On the contrary, the DVDs of the bus recordings confirm their statements. The DVD audio, which captures the bus drivers' immediate reactions and descriptions of the plaintiff's behavior, does the same. Most importantly, Mr. Pritsker admits to driving his car on the sidewalk around the school buses at dismissal time.
Based on these circumstances, including the plaintiff's admissions, Officer Mogollon was justified in believing that an offense had been committed. Furthermore, because the act of driving on a sidewalk, past school buses lined up to receive children at dismissal time, constitutes conduct that is likely to risk injury to a child and demonstrates a reckless disregard of consequences, Officer Mogollon was justified in believing that a felony had been committed. As stated above, General Statutes § 53-21(a) " does not require proof of actual injury to the health or morals of a child, but prohibits conduct which is likely to do so." State v. Samms, supra, 139 Conn.App. 559. " [T]he intent to do some act coupled with a reckless disregard of the consequences of that act is sufficient to find a violation of the statute." (Citation omitted; internal quotation marks omitted.) State v. Davila, 75 Conn.App. 432, 438, 816 A.2d 673, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003), cert. denied, 543 U.S. 897, 125 S.Ct. 92, 160 L.Ed.2d 166 (2004). Based on these sources, Officer Mogollon's belief was reasonable and probable cause existed. Accordingly, the plaintiff's claim of intentional infliction of emotional distress based on the arrest cannot be supported. For these reasons, as to Officer Mogollon, the defendants' motion for summary judgment is granted.
In regard to the actions of Chief Troxell, the plaintiff has failed to meet the high standard of outrageousness that an intentional infliction of emotional distress claim requires. Compared to the standard articulated in and the factual scenarios explored by prior case law in the exercise of its gatekeeper function, this court finds that providing a publication with an interview and releasing an arrest photograph cannot be regarded as sufficiently atrocious and utterly intolerable. As a matter of law, as to Chief Troxell, the defendants' motion for summary judgment is granted.
C. Governmental Immunity
The defendants argue that the Town and the BOE are immune from suit for intentional torts and therefore, as a matter of law, they are entitled to judgment. The plaintiff contends that immunity does not cover damages resulting from the initiation of a judicial proceeding that was commenced and prosecuted without probable cause. As is explained in preceding paragraphs, the court finds that defendants are entitled to summary judgment as to the existence of probable cause for the arrest. Therefore, under General Statutes § 52-577n, the Town and the BOE are immune from liability for intentional infliction of emotional distress in this matter and are entitled to judgment as a matter of law on this ground.
V. CONCLUSION
By reason of the foregoing, the defendants' motion for summary judgment is GRANTED.