Opinion
No. CV-08-5003753-S
March 7, 2011
RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BACKGROUND
This defamation claim arises out of an incident involving parents and players at a public school youth baseball practice. As a result of the incident itself and several alleged statements made subsequent to the incident, the plaintiff, Lewis Pugliese (Pugliese), filed a six-count defamation claim against the defendants, Mary Grande (Grande) and Trace Maulucci (Maulucci). Counts one and three allege libel and libel per se, respectively, against Grande. Counts two, four, five and six allege libel, libel per se, slander and slander per se, respectively, against Maulucci. Pugliese's claims arise mainly out of four alleged instances where defamatory statements were made by the defendants. Such instances, which are described in more detail below, include: 1) an e-mail from Maulucci to Bolton Middle School principal Phil Lanfranchi, Grande, and Bolton superintendent Mark Winzler; 2) a letter from Grande to Pugliese, copied to Lanfranchi, Winzler, coach Bob Munroe, and athletic director Darryl Rouillard; 3) a phone conversation between Maulucci and state police trooper James Tilley; and 4) a phone conversation between Maulucci and Grande.
For purposes of clarity, Grande and Maulucci will be referred to individually except where it is appropriate to refer to them collectively as "the defendants."
FACTS
There exists a significant dispute as to the facts surrounding the incident at the baseball practice, so the court will view the facts in the light most favorable to the plaintiff. On April 21, 2008, Pugliese, a physical education teacher at Cheney Technical High School in Manchester, Connecticut, was watching his oldest son's school baseball practice when a confrontation ensued between him and Joe Casella (Casella), a father of another player on the team. Casella accused Pugliese of playing a role in the school's decision not to allow uncertified assistant coaches, including Casella, on the baseball field during practices. Players on the baseball team, specifically Pugliese's son, Marcus Pugliese (Marcus), and Maulucci's son, Jason Maulucci (Jason), overheard the confrontation and began to take sides. Jason allegedly told Marcus that he agreed with Casella's point that Marcus' father was the reason Jason's father could not be on the field during practices.
Pugliese testified during his deposition that he approached Coach Robert Munroe (Munroe) once baseball practice had ended and asked in a conversational tone if he could speak with Jason about his comments to Marcus. See deposition of Lewis Pugliese, 39-43. Marcus and his ten-year-old brother, Joshua Pugliese (Joshua), corroborated their father's account, adding that there was never even a conversation between Pugliese and Jason. At some point later that same day, Munroe reported the incident in a phone conversation to Grande, the assistant principal of the school, and in an email to Darryl Rouillard (Rouillard), the school's athletic director. Jason reported the incident to his mother, Maulucci, a member of the school's board of education. Jason told his mother that he felt frightened by Pugliese's actions. See affidavit of Trace Maulucci.
Munroe disputed this account of the events at his deposition, describing Pugliese as "forceful and animated." Munroe testified further that Pugliese "was in a position where it kind of blocked Jason from getting off the field."
The email from Munroe to Rouillard stated, in relevant part: "A couple of things happened during and after yesterday's practice. I thought it serious enough to try to reach Mary Grande at home last night to no avail. Basically, it was parents behaving badly and kids treating each other poorly. One father was castigating another father for putting up roadblocks to allowing other fathers to help out with the team. This got loud enough so that the kids could hear what was being said. The kids picked up on it and some of them commented on what they saw as their father's role in this `dispute.' Immediately after the practice, I was approached by one of the fathers who felt he was being singled out for criticism . . ." See objection to summary judgment, exhibit G.
Later that night, Maulucci sent an e-mail to Phil Lanfranchi (Lanfranchi), the principal of the school, and copied Mark Winzler (Winzler), the school's superintendent, and Grande on the e-mail. Maulucci wrote in the e-mail: "There was an incident at the [Bolton Center School's] baseball practice today involving a parent of a student on the baseball team and another player on the team. The parent approached the team and began yelling at the coach about a player in a manner that was not only disruptive to the team but was viewed as both harassing and threatening to the child. The parent continued his rant even after the coach asked him to stop. This is unacceptable behavior by a parent. Parents should never intimidate students on school grounds, at school functions, under school care or for that matter anywhere. I will come in on Tuesday, April 22, to discuss the details in person and discuss next steps." See objection to summary judgment, exhibit F.
This allegedly defamatory statement is the basis of counts two and four of Pugliese's revised complaint.
On April 22, 2008, Maulucci called Grande at the school to discuss the incident from the day before. According to Grande's notes from the conversation, Maulucci described the events from the day before, describing Pugliese as a "threat to students emotionally . . . directly or indirectly threatening . . . [That he had] indirectly intimidated a minor . . . [was in an] enraged condition threatening wanting to speak [with Jason] by himself." See objection to motion for summary judgment, exhibit H. Maulucci also contacted state police trooper James Tilley and allegedly made defamatory statements, including an accusation that Pugliese made a "threat" to her son, and that he had also directly approached her son in an "irrational manner" after baseball practice. See complaint, paragraph 9; objection to motion for summary judgment, exhibit H.
These allegedly defamatory statements are the bases of counts five and six of Pugliese's revised complaint.
In a letter addressed to Pugliese, dated April 25, 2008, Grande referenced the incident and Pugliese's request to address Munroe after practice. Grande indicated that, following her investigation of the incident, "it was clear that your comments were construed as threatening to the child in question." The letter went on to explain that all future baseball practices would be closed to Pugliese and to all other parents. See objection to motion for summary judgment, exhibit I.
This allegedly defamatory statement is the basis of counts one and three.
DISCUSSION Summary Judgment Standard
"[Summary judgment] shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the [nonmoving party] . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, 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 . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . ." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
Law of defamation generally
"Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). "Before a party will be held liable for libel [or slander], there must be an unprivileged publication of a false and defamatory statement." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984). "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004). Finally, in all defamation cases, the plaintiff must also prove the requisite degree of fault. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974).
In the seminal U.S. Supreme Court decision, New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964), the court, pursuant to the First Amendment to the United States Constitution, limited the power of a state to award damages for libel in actions brought by public officials against critics of their official conduct. Specifically, the court held: "The constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id., 279-80. This standard has since been applied in Connecticut cases as well. "[I]f the plaintiff is a public figure, [he] would need to prove actual malice; . . . but if [he] is a private individual, [he] need only prove, by a preponderance of the evidence, negligence in the failure to investigate the facts properly prior to publication." (Citations omitted.) Miles v. Perry, 11 Conn.App. 584, 588-89, 529 A.2d 199 (1987).
Whether the plaintiff is a public official for defamation purposes
In their memorandum of law in support of their motion for summary judgment, the defendants argue that the plaintiff, as a public school teacher, is a public official for defamation purposes, and therefore, in order to sustain an action for defamation, the plaintiff must prove that the defendants acted with actual malice. In his memorandum in opposition to the defendants' motion for summary judgment, the plaintiff contends that, under the facts of the present case, he is not a public figure. Specifically, the plaintiff argues that, at all relevant times relating to the defamatory statements, he was not acting in his capacity as a teacher, he was not a teacher in the town where the events which were the subject of the defamation lawsuit took place, and the defamatory statements made by the defendants made no reference to the plaintiff's job as a public school teacher and bore no relation to his job as a public school teacher.
The U.S. Supreme Court extended the "actual malice" standard to include public figures in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Thus, despite the plaintiff's use of the term public figure, the court will treat the plaintiff's argument as an opposition to both his designation as a public official and a public figure.
The New York Times decision did not specifically define who qualified as a public official for defamation purposes. See New York Times Co. v. Sullivan, supra, 376 U.S. 283 n. 23 ("We have no occasion here to determine how far down into the lower ranks of government employees the `public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included"). What is clear is that not every public employee is a public official for defamation purposes. See Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). "[The] designation applies [however] at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Whether public school teachers in Connecticut are designated as public officials for defamation purposes was decided in Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693 (1992), and thus, the legal principles of that decision are applicable to the present case.
In the Kelley case, a public school teacher brought, inter alia, a defamation action against the local board of education, board members, a student, parents, and a local resident, alleging that the defendants published defamatory material. See Kelley v. Bonney, supra, 221 Conn. 552-56. In deciding whether to classify the plaintiff as a public official under the New York Times rule, the Connecticut Supreme Court analyzed the policy considerations discussed by the New York Times court. "In determining whether a particular individual holds the status of a public official, courts have remarked on various significant considerations. The United States Supreme Court indicated that the underlying purpose of limiting an individual's ability to protect his reputation was to allow citizens to voice their opinions more freely on matters of public concern . . . [D]ebate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials . . . [T]he public official designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs . . . Additionally, it is important to consider whether a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and importance of all government employees . . . Further, it has been postulated that public figures require less protection from defamation because they tend to enjoy greater access to the media for purposes of rebutting any defamatory publication." (Citations omitted; internal quotation marks omitted.) Id., 581.
"Taking into account these considerations, we conclude that a public school teacher is a public official for defamation purposes. Robust and wide open debate concerning the conduct of the teachers in the schools of this state is a matter of great public importance . . . [T]eachers' positions, if abused, potentially might cause serious psychological or physical injury to school aged children. Unquestionably, members of society are profoundly interested in the qualifications and performance of the teachers who are responsible for educating and caring for the children in their classrooms. Further, teachers exercise almost unlimited responsibility for the daily implementation of the governmental interest in educating young people. In the classroom, teachers are not mere functionaries. Rather, they conceive and apply both policy and procedure. As a result of that significant public interest, it is also likely that the media would not only provide a teacher about whom allegations have been made with an opportunity to respond, but that the media would encourage comment by the teacher." Kelley v. Bonney, supra, 221 Conn. 581-82.
The plaintiff does not dispute that he is a public school teacher. Instead, he argues that Kelley is inapplicable to the particular facts of the present case because the defamatory statements by Grande and Maulucci were not made in relation to his official capacity as a public school teacher. Rather, the plaintiff asserts, the defamatory statements were made about him in his role as a private individual.
The New York Times case stated, unequivocally, that "[t]he [federal constitution] . . . prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' . . . (Emphasis added.) New York Times Co. v. Sullivan, supra, 376 U.S. 279. That same year, the court elaborated on the "official conduct" portion of the New York Times rule. See Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), overruled on other grounds, Curtis Publishing Co. v. Butts, 388 U.S. 130, 134, 18 L.Ed.2d 1094, 87 S.Ct. 1975 (1967). In that case, the court reversed a conviction for criminal libel of an appellant district attorney who, following a dispute with eight judges, held a press conference at which he issued a statement disparaging their judicial conduct. He accused the judges of being inefficient, taking excessive vacations, opposing official investigations of vice, and for being subject to "racketeer influences." Garrison v. Louisiana, supra, 379 U.S. 65-66. The Louisiana Supreme Court, in affirming the verdict, held that these statements were "not criticisms of . . . the manner in which any one of the eight judges conducted his court when in session. The expressions charged contain personal attacks upon the integrity and honesty of the eight judges . . ." Id., 76, quoting Louisiana v. Garrison, 154 So.2d 400 (La. 1963). The U.S. Supreme Court reversed, however, holding: "Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness [to be a judge] than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." (Emphasis added.) Id., 77.
Despite this clarification of the term "official conduct," there remains no clear rule as to how or when a public official's conduct in his or her private life may simultaneously touch on his or her fitness for office. The Restatement has attempted to provide some clarification. "The extent to which a statement as to [a plaintiff's] private conduct should be treated as affecting him in his capacity as a public official cannot be reduced to a specific rule of law. The determination depends upon both the nature of the office involved, with its responsibilities and necessary qualifications, and the nature of the private conduct and the implications that it has as to his fitness for the office." (Emphasis added.) Restatement (Second) of Torts § 580A(b) (1977). No Connecticut court has specifically adopted this provision; however, the Restatement (Second) of Torts § 580A has, in general, been cited by several courts in this state. See, e.g., Woodcock v. Journal Publishing Co., 230 Conn. 525, 646 A.2d 92 (1994); Holbrook v. Casazza, 204 Conn. 336, 528 A.2d 774 (1987); Abdelsayed v. Narumanchi, supra, 39 Conn.App. 778.
Furthermore, one court outside of this jurisdiction, although not citing § 580A(b), has elaborated on its underlying principles, and therefore, the case is instructive. In Clawson v. Longview Publishing Co., 589 P.2d 1223 (Wa. 1979), the court stated: "The `actual malice' standard is applicable to any aspect of a public official's life which might touch on an official's fitness for his position . . . With officials wielding general power and exercising broad discretion, the scope of that standard is necessarily comprehensive, encompassing virtually all of the public official's life . . . In essence, we find two pertinent variables [as to whether statements regarding private conduct go to a public official's fitness for office]: (1) the importance of the position held, and (2) the nexus between that position and the allegedly defamatory information — specifically, how closely the defamatory material bears upon fitness for office." (Citation omitted; emphasis added.) Applying these variables, the court ultimately held that an administrator of a county's motor pool was a public official for purposes of his claim alleging defamation for a newspaper article discussing financial improprieties committed by him because of the very strong nexus between that position and the allegedly defamatory information. Id.
Though neither the Restatement nor Clawson is binding on this court, both authorities provide persuasive guidance to resolving the present case. The defamatory statements here were not made specifically with regard to the plaintiff's ability or capacity to teach. In fact, the statements were made in relation to the plaintiff's conduct in his private life. The revised complaint alleges that the defendants made defamatory statements, including such remarks as "[the plaintiff is a] safety issue;" he "intimidated students on school grounds;" his actions were viewed by [Jason] as "harassing and threatening;" the plaintiff was or is a "threat" to the child. The question is whether these aspects of the plaintiff's private life are related to the plaintiff's ability to perform his official functions as a public school teacher.
Though not directly analogous, the facts and circumstances of the present case are similar to those in Izzo v. Deafenbaugh, Superior Court, judicial district of New Haven, Docket No. 392311 (September 23, 1998, Blue, J.), ( 22 Conn. L. Rptr. 650). In that case, the plaintiff, a public school teacher, sued the defendant, the school's director of staff placement, evaluation and development, for defamation relating to a letter allegedly containing defamatory statements that he sent to the plaintiff and copied to the superintendent of schools, the director of high school education, the principal of the school, and the president of the New Haven federation of teachers. The letter stated, "Please report to the [p]ersonnel [o]ffice on Tuesday . . . to discuss your recent arrest and the charges filed against you. I have notified [the school] that you will not be reporting for work . . . You have the right to have a union representative present." As it turned out, it was another person with same name as the plaintiff who had been arrested. Nevertheless, the court granted the defendant's motion for summary judgment, stating, "[The plaintiff's] inability to establish the element of malice required by the First Amendment is fatal to his cause. [A] public school teacher is a public official for defamation purposes . . . When, as here, the plaintiff [in a defamation case] is a public [official], he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not." (Citation omitted; internal quotation marks omitted.) Id.
The defamatory statement, though made by a fellow colleague who had control and/or influence over the plaintiff's teaching position, was related to the plaintiff's actions outside his actual functions as a teacher. Nevertheless, the court in that case categorized the plaintiff as a public official and applied the heightened actual malice standard. Similarly, in the present case, the statements by Grande and Maulucci relate to the plaintiff's conduct outside his actual functions as a teacher. In contrast to the Izzo case, however, the alleged defamatory statements regarding the plaintiff in the present case are substantially more closely related to his conduct as a school teacher. Not only did the statements concern the plaintiff's conduct in the presence of school children, but specifically at a school function. Whether the plaintiff caused a scene at that function and whether his comments "were construed as threatening to [a] child" or "viewed as both harassing and threatening [a] the child" sufficiently relate to the plaintiff's role as a public school teacher as required by the New York Times rule.
In fact, the plaintiff's revised complaint lays out the close connection between the allegedly defamatory statements and the plaintiff's official capacity. The revised complaint states, inter alia, "[I am] a teacher at the Howell Cheney Technical High School in Manchester, Connecticut." It alleges further, "Defendant Maulucci intended . . . to interrupt the Plaintiff's professional position [as a public school teacher] . . ." Additionally, it alleges, "the statement that the Plaintiff had made threatening statements to a minor child at the after school baseball practice charges lack of integrity in the Plaintiff's profession and violation of the Connecticut Code of Professional Responsibility for Teachers." Next, it alleges, "[the plaintiff] has irretrievably lost his good reputation for his capacity to serve as a teacher." Finally, it alleges, "Grande's libelous statement was especially damaging given her position with the school and the Plaintiff's profession." Each of the six counts in the revised complaint contain references, either directly or indirectly, to the impact that the allegedly defamatory statements had upon the plaintiff's position as a public school teacher. The plaintiff's own repeated acknowledgments of the close connection between the defamatory remarks and his job as a school teacher contradict his attempt now to avoid summary judgment by claiming there is no such connection.
Nevertheless, even had the plaintiff not made numerous allegations in the revised complaint concerning the impact of Grande and Maulucci's statements on his profession, the result would be the same. Clearly the statements made by Maulucci and Grande, though not directly made about the plaintiff's capacity to teach, satisfied the CT Page 6075 New York Times rule as it has been discussed in subsequent cases and in the Restatement. In the present case, it is undisputed that the plaintiff is a public school teacher. The importance of the job of public school teacher cannot be disputed either. This was emphasized by the court in Kelley v. Bonney. Finally, it is equally clear that there was a sufficient nexus between the allegedly defamatory statements and the plaintiff's role as a public official to satisfy the "in his official capacity" language of the New York Times rule. Consequently, the "actual malice standard" should be applied in the present case.
Whether there is evidence of actual malice
"A public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves by clear and convincing evidence that the falsehood was published with actual malice." New York Times Co. v. Sullivan, supra, 376 U.S. 279. "The phrase `actual malice' is unfortunately confusing in that it has nothing to do with bad motive or ill will." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666 n. 7, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Actual malice means that the statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times v. Sullivan, supra, 279-80. "[A]t a minimum, actual malice requires that there be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the publication." (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., 230 Conn. 525, 537 (1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995), quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 26 (1968). "[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." St. Amant v. Thompson, supra, 731.
"However, proof that a defamatory falsehood has been uttered with bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice . . . although such evidence may assist in drawing an inference of knowledge or reckless disregard of falsity . . . Evidence of ill will or bad motives will support a finding of actual malice only when combined with other, more substantial evidence of a defendant's bad faith . . . In Holbrook v. Casazza, [ 204 Conn. 336, 528 A.2d 774 (1987), the] court affirmed a finding of actual malice where evidence of ill will in accusing a public official of misconduct was corroborated by the defendant's failure: (1) to read the statutes with which she charged the official in question of having violated; (2) to investigate the facts; (3) to seek advice from other knowledgeable persons; and (4) to publish a retraction after learning that the official was exonerated. Similarly, in Harte-Hanks Communications, Inc. v. Connaughton, [ 491 U.S. 657, 667, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)] the United States Supreme Court found actual malice in [a] publisher's failure to consult a key witness and in its failure to listen to a readily available tape recording of a conversation in question in order to verify an informant's `highly improbable' charges, on which five other witnesses had cast serious doubt." (Citations omitted; internal quotation marks omitted.) Woodcock v. Journal Publishing Co, Inc., supra, 230 Conn. 544.
"The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." St. Amant v. Thompson, supra, 390 U.S. 732.
Finally, "the `clear and convincing evidence' standard is relevant in ruling on a motion for summary judgment in a defamation action brought by a public official. In ruling on a motion for summary judgment in this context, `the judge must view the evidence presented through the prism of the substantive evidentiary burden' . . . Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not." (Citation omitted; internal quotation marks omitted.) Izzo v. Deafenbaugh, supra, Superior Court, Docket No. 392311, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In the present case, the plaintiff simply has not put forth clear and convincing evidence that the defendants' statements were made with actual malice. Taking the evidence in the light most favorable to the plaintiff, as the court is required to do on a motion for summary judgment, there is an absence of evidence in the record of malicious conduct by Grande and Maulucci. There has been a considerable amount of discovery by the parties in this matter. The plaintiff submitted as evidence portions of five depositions, including that of Grande, Maulucci, Munroe, Trooper Tilley, as well as his own. In addition, he submitted two affidavits, one from each of his two sons, Joshua and Marcus Pugliese. The plaintiff also submitted several other pieces of evidence, including the email from Maulucci to Grande, the email from Munroe to Rouillard, Grande's telephone notes from her conversations with the plaintiff and with Maulucci, the letter from Grande to the plaintiff, a letter from the Recreation Department for the Town of Bolton to the plaintiff, and a statement from Munroe.
The plaintiff, therefore, has put forth a substantial amount of evidence in an attempt to support his claim. The evidence, however, does not support a finding of actual malice. The plaintiff does not and cannot dispute that Jason left baseball practice the day of the incident and told his mother the version of events as he perceived them as a twelve-year-old child. In response to her son's concerns, Maulucci acted as many parents would have acted after having heard that their son or daughter had felt threatened by another adult. In fact, rather than confront the plaintiff, Maulucci called the school and reported what her son had told her. Thus, a reasonable jury cannot find that Maulucci acted with knowledge that her son's statements to her were false, nor that she acted with reckless disregard for the truth. A failure to investigate, without more, cannot sustain a claim of actual malice.
There is also no evidence that Maulucci harbored serious doubts as to the truth of her son's statements. Maulucci did not ignore other evidence that would have cleared the plaintiff of any wrongdoing. In fact, the only evidence in the record that the plaintiff's conduct did not come across to Jason as threatening is the plaintiff's own deposition and the affidavits of the plaintiff's sons. All of the remaining evidence, including the deposition of Coach Munroe, who witnessed the incident first-hand, suggests that Jason's feelings were warranted, and thus, the report to his mother and her reliance on it were warranted as well.
Similarly, Grande's statements were not made maliciously. None of the evidence in the record suggests that Grande made the statements that she did knowing that they were false or with a reckless disregard for their truth. In fact, it is difficult to see how her statements could even be perceived to have been made negligently. Maulucci's statements prompted Grande to conduct an investigation into the baseball practice incident. Before rendering any decision regarding the incident, Grande stated in her affidavit that she spoke with Coach Munroe, Maulucci, Maulucci's son Jason, Lanfranchi, as well as the plaintiff. The plaintiff does not dispute that Grande spoke with these people, but instead contends that Grande did not perform a full investigation and/or she was not authorized to make the investigation. Neither of these contentions, however, is relevant to the issue of whether Grande made the allegedly defamatory statements maliciously. What is relevant, however, is that it is undisputed that Grande conducted some form of investigation following a report by a parent who was concerned for the safety of her child. If failure to conduct any type of investigation cannot, alone, support a finding of actual malice, then no reasonable jury could find that Grande acted with actual malice either.
Additionally, when asked at oral argument to explain where actual malice could be found in Grande's statements, the plaintiff suggested that Maulucci had influence and power over Grande due to her position on the board of education, and that this relationship indicates that Grande had motivation to go along with Maulucci's claims even if she knew of their falsity. This is sheer speculation on the plaintiff's part.
On a motion for summary judgment, the appropriate question is whether the evidence in the record could support a reasonable jury finding that the plaintiff has shown actual malice by clear and convincing evidence. The plaintiff has failed to satisfy the actual malice standard by clear and convincing evidence because no jury could reasonably find, based upon the evidence submitted, that the statements made by Maulucci or Grande were knowingly false or made with a reckless disregard for the truth.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted as to all counts.
Even if the plaintiff's role as a public official did not invoke the "actual malice standard" in the present case, the plaintiff's complaint would still be unable to survive this motion for summary judgment with respect to two of the allegedly defamatory statements.
First, all of the allegations based on the letter from Grande to the plaintiff would fail because the letter does not contain a defamatory statement. To establish a prima facie case of defamation, the first element a plaintiff must demonstrate is that the defendant published a defamatory statement. Here, Grande simply reported the results of her investigation. All of the facts contained in the letter are undisputed, including the fact that Jason Maulucci construed the plaintiff's comments as threatening. This is admitted in the plaintiff's opposition to the motion for summary judgment. None of the statements contained in the letter, therefore, could reasonably be found to be defamatory, and the defendants are entitled to judgment as a matter of law on counts one and three with relation to this letter.
Additionally, all allegations based on the phone call between Maulucci and Trooper Tilley would fail because such statements are subject to a qualified privilege. Our Supreme Court has held that statements to a police officer are qualifiedly privileged in an action for defamation. Gallo v. Barile, 284 Conn. 459, 477, 935 A.2d 103 (2007). A qualified privilege protects false statements that are not made with actual malice. Id. 464, n. 6. As previously indicated, the plaintiff has failed to prove actual malice by clear and convincing evidence, and the defendants are entitled to judgment as a matter of law on counts five and six with relation to these statements.