Opinion
No. CV 05 4007480 S
March 9, 2011
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#144, #146, #148, #150, #152 #154)
PRELIMINARY STATEMENT
This case arises out of the plaintiff's termination from employment as an engineer in the information technology department of the Board of Education for the Town of Fairfield. Defendants include the Town of Fairfield (the Town), the Board of Education (the Board) and four individuals: Margaret Mary Fitzgerald, the assistant superintendent and director of human resources; Dr. Howard Zwikler, business manager for the Board; Nancy Nash, manager of the information technology department for the Board; and Donna Quirk, a network engineer in the information technology department of the Board. The complaint avers various causes of action against the defendants in various combinations. Each defendant has moved for summary judgment on a variety of grounds as to each count in which they appear. The specific allegations of the complaint will be set forth as necessary in the body of this decision. For the reasons set forth below:
Although each defendant filed a separate motion for summary judgment, there is substantial overlap in the arguments made and the court therefore issues a single memorandum of decision.
The motion for summary judgment filed by the Town of Fairfield is GRANTED.
The motion for summary judgment filed by the Board of Education is GRANTED.
The motion for summary judgment filed by Howard Zwikler is GRANTED in part, DENIED in part.
The motion for summary judgment filed by Mary Margaret Fitzgerald is GRANTED in part, DENIED in part.
The motion for summary judgment filed by Nancy Nash is GRANTED in part, DENIED in part.
The motion for summary judgment filed by Donna Quirk is GRANTED in part, DENIED in part.
PROCEDURAL HISTORY
On or about March 1, 2005, the plaintiff commenced an action in the Fairfield Judicial District, Dkt. No. 05-4006524 S ( Singhaviroj I) against the Town, the Board, Zwikler and Fitzgerald. In Singhaviroj I, the plaintiff alleged both state and federal due process violations in the manner through which he was terminated from his employment.
On or about April 4, 2005, the plaintiff commenced a second action in the Fairfield Judicial District, (the instant matter), Dkt. No. CV 05 4007480 S, against the Town, the Board, Zwikler, Fitzgerald, Nash and Quirk, in which he avers a variety of common-law claims, each stemming from his employment and termination therefrom.
The Amended Complaint in the instant matter, dated April 5, 2007, initially contained 22 separate counts against the various defendants. The defendants filed a motion to strike which was granted in part by the court (Radcliffe, J.). As a result, only 13 counts averring a variety of claims remain for consideration in these motions.
Upon motion of the defendants, Singhaviroj I was consolidated with the instant matter on February 7, 2006.
The complaint in Singhaviroj I was the subject of five separate motions to strike, filed seriatum, with each successive amended complaint. The first motion to strike was granted on August 10, 2005 (Skolnick, J.). Thereafter, the plaintiff made multiple attempts at curing the inadequacies in the pleadings which were identified by the court in the first and in each subsequent decision striking the complaint. The fifth and final motion to strike the then Fourth Amended Complaint in Singhaviroj I was granted by the court (Gilardi J.) on December 12, 2007. The plaintiff did not re-plead. Upon motion of the defendants, judgment entered in favor of the defendants on March 10, 2008 in Singhaviroj I.
Before the instant matter was to go to trial, the defendants filed the motions for summary judgment now under consideration, claiming, inter alia, that this action is barred by the doctrine of res judicata and collateral estoppel. The court (Tobin, J.) denied the motions although stating that it was not making any findings, one way or another, as to the existence of any genuine issue of material fact or the merits of any of the proposed defenses. The court ruled in this fashion after learning that the trial would not be continued and thus determining that there was insufficient time to render a decision. The defendants were permitted an interlocutory appeal. The Appellate Court held that it was error not to hear the motions for summary judgment and remanded the matter with direction to do so. Singhaviroj v. Town of Fairfield, 124 Conn.App. 228, 236-37 (2010).
This court heard argument on the motions on November 1, 2010.
Subsequent to the remand of this matter, the plaintiff filed a supplemental memorandum in opposition to the motions for summary judgment. The plaintiff argues that the failure of the defendants to plead res judicata or collateral estoppel as special defenses, precludes them from seeking summary judgment thereon. However, the Appellate Court specifically held that the plaintiff had waived any objection to the defenses being raised when the plaintiff briefed and argued the merits of those defenses previous to the appeal. Singhaviroj v. Board of Education, 124 Conn.App. 228, 234 (2010). The Appellate Court, having so held, then remanded the case with specific direction that the motions for summary judgment, to include the claim preclusion defenses, be considered by the Court. This court declines the plaintiff's invitation to essentially ignore the Appellate Court's holding and mandate.
STANDARD OF REVIEW
A party seeking summary judgment has the very heavy burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law. PB § 17-44; Appleton v. Board of Education, 254 Conn. 205 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Id. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).
Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. PB § 17-46. Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great Country Bank v. Pastore, 241 Conn. 423, 436 (1997).
DISCUSSION
I. Res Judicata
All defendants seek summary judgment on the ground that this action, being brought separately from and subsequent to Singhaviroj I is barred by the doctrine of res judicata. The claim is, in essence, that all of the claims in this action could have been brought in Singhaviroj I; that all of the parties in this action are the same or were in privity to the parties in Singhaviroj I; that Singhaviroj I resulted in a judgment on the merits against the plaintiff; and that therefore the doctrine of res judicata serves as a bar to litigating this cause of action.
The doctrine of res judicata, also known as claim preclusion, "prevents a litigant from reasserting a claim that has already been decided on the merits . . . Under claim preclusion analysis, a claim — that is, a cause of action — includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made . . . Scalzo v. Danbury, 224 Conn. 124, 127-28, 617 A.2d 440 (1992); see DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991); Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 43, 526 A.2d 1329 (1987). The doctrine of res judicata [applies] . . . as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction; Wade's Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980); and promotes judicial economy by preventing relitigation of issues or claims previously resolved. Scalzo v. Danbury, supra, 127; Carothers v. Capozziello, 215 Conn. 82, 94, 574 A.2d 1268 (1990)." (Emphasis added; internal quotation marks omitted.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 188, 629 A.2d 1116 (1993).
DiPietro v. Farmington Sports Arena, 123 Conn.App. 583 (2010).
Connecticut has adopted a "transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." DiPietro v. Farmington Sports Arena, supra., citing Orselet v. DeMatteo, 206 Conn. 542, 545-46, 539 A.2d 95 (1988).
A threshold determination, as noted by the Appellate Court when it remanded this matter, is whether the judgment entered in Singharivoj I was a judgment "on the merits." Singhaviroj v. Town of Fairfield, 124 Conn.App. 228, 237 (2010). This court holds that it was not.
If the judgment in Singharivoj I was not a judgment "on the merits," the myriad of issues otherwise vigorously contested, i.e. whether the transactional test favors a bar under res judicata, need not and therefore are not decided by this court.
There have been occasions when a judgment rendered following the granting of a motion to strike has been held to be a judgment "on the merits." Tirozzi v. Shelby Insurance Co., 50 Conn.App. 680 (1998); Hughes v. Bemer, 206 Conn. 491 (1988). There have also been occasions when a judgment rendered following the granting of a motion to strike was held not to be a judgment "on the merits." Bridgeport Hydraulic Company v. Pearson, 139 Conn. 186 (1952); In re Xavier D., 113 Conn.App. 478 (2009). This case is more akin to those circumstances presented in the Bridgeport Hydraulic and the Xavier cases, and distinguishable from the circumstances presented in Tirozzi and Hughes.
In Hughes, the plaintiff brought a negligence action which was subject to a motion to strike. Plaintiff did not respond and the motion was taken up and granted on its merits. Judgment entered thereafter when the plaintiff failed to file a substitute pleading. Then existing practice book provisions provided for the granting of a motion to strike in the event that no opposition is filed. On appeal, the judgment was affirmed in reliance upon this then existing practice book provision. Thereafter, the plaintiff brought a largely identical suit pursuant to the so-called "accidental failure of suit statute" CGS § 52-592. The second suit was dismissed because the first action was heard on its merits and therefore Section 52-592 did not save the second suit. The plaintiff appealed.
On appeal, the plaintiff conceded that the judgment rendered by the trial court on the motion to strike was "on the merits" because the decision "determined that no right of action existed" and therefore "the judgment was as final and complete as a judgment following a trial on the merits." Id. at 494, citing Carvette v. Fidelity Deposit Co., 152 Conn. 697, 699 (1964); Brennan v. Berlin Iron Bridge Co., 71 Conn. 479, 490 (1899). Thus, the specific issue presented here was not before the Supreme Court. At issue was whether the fact that the appeal was resolved by virtue of the practice book provision, rendered CGS 52-592 applicable insofar as the Appellate Court did not decide the case "on the merits." The Supreme Court held that the practice book provision construed a failure to file a memorandum in opposition to a motion to strike to be "consent" by the plaintiff to the granting of the motion. Id. at 495. The Court further held that judgments entered upon "consent [are] in effect an admission by the parties that the decree is a just determination of their rights on the real facts of the case had they been found." Id. The dismissal was affirmed.
The Carvette decision provides no further guidance. There, the nature of the underlying claim and the decision to sustain the demurrer are not addressed in detail. All that is gleaned is that the decision sustaining the demurrer was a determination that "no right of action existed." The nature of the claimed action and the inadequacy of the complaint are nowhere discussed.
In Tirozzi v. Shelby Insurance Co., 50 Conn.App. 680 (1998), the Appellate Court also held that the judgment entered following the granting of a motion to strike was a decision "on the merits" for purposes of res judicata analysis. The plaintiff in Tirozzi brought an initial action against his employer's underinsured motor vehicle insurer as a result of injuries he sustained while operating a motor vehicle during the course of his employment. He had made a claim against the tortfeasor and had recovered the entirety of the tortfeasor's insurance policy. When he brought an action against his employer's underinsured carrier, the carrier filed a motion to strike on the ground that CNA Insurance Co. v. Colman, 222 Conn. 769 (1992) held that the Workers' Compensation Act precluded any action against an employer's underinsured motor vehicle insurer. The motion to strike was granted and judgment entered thereon. Subsequently, the legislature amended CGS § 38a-336 so as to permit claims against an employer's underinsured motor vehicle carrier. The plaintiff brought a second action in reliance upon the change in the law. Summary judgment entered against the plaintiff on the basis that the doctrine of res judicata barred the subsequent action.
The Brennan decision, cited by the Court in Hughes, is instructive as well. There, the plaintiff commenced a personal injury action to which the defendant demurred on numerous grounds. Brennan v. Berlin Iron Bridge Co., 71 Conn. 479 (1899). One such ground, that the plaintiff's injuries "were received through the negligence of those who stood in the relation of fellow-servant to the plaintiff," attacked the validity of the right of action. Other grounds included that the complaint did not include adequate or sufficient factual allegations to support the causes of action. The trial court sustained the demurrer "on each and every ground" raised, following which judgment entered. Thereafter, the plaintiff brought a largely identical suit and the defendants suffered a default. However, the defendants raised res judicata as a bar to the award of substantial damages at the ensuing hearing in damages. The Supreme Court held that the entire second action was barred by the doctrine of res judicata.
JUDGE SWIFT says (1 Swift's Dig. S. P. 639) `In the case of demurrers, judgment is rendered in chief, and will be a bar to another action brought for the same matter, cause and thing, except where the first action failed, for some defect of form, or for want of some essential allegation, which can be supplied in a new action.' The principle is too well established to admit of discussion, that a judgment upon a demurrer to a complaint, deciding not that some formal defect exists in the pleading which can be cured by amendment, or that some material allegations has been omitted which can be supplied in another action, but that upon the facts no right of action exists against the defendant, is final upon the question of the defendant's liability upon the facts alleged and is as complete a bar to another action upon such facts as if the judgment had been rendered upon proof of the truth of the averments of the complaint.
Brennan, 79 Conn. at 490. Insofar as the demurrer was sustained on each and every ground raised, and because one ground asserted that no right of action existed, the judgment following the demurrer barred the second action. Id. at 491.
In each of these cases, the question presented and decided on the motion to strike or demurrer was whether the cause of action averred was viable as a matter of law. In each case, the determination was that it was not.
Conversely, in those cases where the judgment rendered following a motion to strike (or a demurrer) was deemed not to be a judgment "on the merits" the motion to strike was premised upon inadequate factual allegations or failure to prosecute. In Bridgeport Hydraulic v. Pearson, 139 Conn. 186 (1952), the plaintiff sought and obtained an injunction against the defendant precluding her from instigating or pursuing any more litigation. The defendant was involved in numerous suits in connection with the plaintiff's efforts to condemn and acquire two properties for purposes of creating a reservoir. The trial court granted the injunction finding that the defendant had brought and threatened to pursue vexatious litigation against the plaintiff and that all of her claims had previously been adjudicated and were barred by res judicata. The Supreme Court examined the prior litigation to determine the res judicata issue. One of the previous law suits — Number 62118 — was filed by the defendant and claimed that two previous lawsuits and two pending lawsuits resulted in a taking without right her property interests. A demurrer to the complaint was granted. "After several fruitless attempts on her part to amend her complaint again and after the case had been stricken from the docket in 1944 and 1945 and each time restored, it was finally stricken upon the annual call of the docket in 1946." Id. at 192.
As to Number 62118, the Court stated, with respect to its res judicata analysis,
"Case No. 62118, which was terminated by being stricken from the docket, may at once be eliminated from consideration. An order striking a case from the docket for failure to prosecute is a final judgment in that case . . . It is not, however, a judgment on the merits. It does not conclude the parties as to the cause of action involved in the case, because it is not a final determination of the substantive rights of the parties . . . Nor is a ruling sustaining a demurrer a final judgment which binds the parties . . . It follows that Mrs. Pearson's claimed causes of action were not adjudicated in case No. 62118.
Id. at 196-97, (citations omitted).
Similarly, in In re Xavier D., 113 Conn.App. 478 (2009), the Appellate Court held that the dismissal of a petition for the termination of parental rights following an order granting a motion to strike the underlying neglect petition, was not a judgment on the merits for purposes of res judicata. The neglect petition, by virtue of clerical error, had the box for physical abuse checked as the basis for the petition rather than the box for so-called "conditions injurious" as the basis for the petition. The trial court denied the request to make a technical correction to the petition, struck the neglect petition and dismissed the petition to terminate parental rights which was premised thereon. The Appellate Court held that "the decision was based entirely on procedural grounds. [The judge] granted the motion to strike without holding an evidentiary hearing and without making findings of fact. There may well be close cases on whether a court has rendered a judgment on the merits, but this is not one of them." Id. at 482.
Here, there has never been a claim that the causes of action contained in Singhaviroj I were not cognizable under Connecticut law or that there "existed no right of action." Rather, the court's decision, striking the Fourth Amended Complaint makes clear that the court's determination was not that no right of action existed, but that the plaintiff did not allege sufficient facts to support the named causes of action.
Regarding his due process claim, the court (Gilardi, J.) stated: "It is noted that the plaintiff has yet to plead facts sufficient to allege a property interest in his employment;" "Moreover, as a matter of law, the plaintiff fails to plead sufficient facts to show that he had a property interest in his job pursuant to General Statutes § 10-151." With respect to his "class of one equal protection claim," the court stated: "In this case, the plaintiff does not plead any facts which would suggest that, as a comparative measure, he was discriminated against on the basis of any of the most basic of normative classifications normally recognized by the courts of the United States, e.g. race, religion, gender, etc. Moreover, the plaintiff fails to plead facts which are sufficient to support even the mere assumption that there was another person, whose situation was prima facial identical to his own, whose differential treatment made the plaintiff's own termination a violation of his equal protection. The plaintiff merely alleges that he was the only one investigated for a crime. Without more, the count based on equal protection is insufficient." Singhaviroj v. Town of Fairfield, judicial district of Fairfield, Dkt. No. CV 054007480 (December 12, 2007 (Gilardi, J.).
Under these circumstances, the judgment rendered upon the motion to strike was not a judgment "on the merits." Res judicata is not a bar to the present action.
The defendants' reliance on Karam v. McDonald's Restaurant, judicial district of New Britain, Dkt. No. CV 054004038, (July 6, 2005) (Robinson, J.) is misplaced. There, the court held that a prior suit that went to judgment following a motion to strike being granted, barred a subsequent action under the "transactional test." It did so however without discussion of the issue presented here, which does not appear to have been raised. The court did note that the plaintiff failed to re-plead following the granting of the motion to strike. To the extent that this was determinative of the issue, the case does not help the defendants here. While they do rely upon the plaintiff's failure to replead in Singhaviroj I so as to include the allegations in this complaint, to do so would have been absurd. This action was already pending and had been consolidated with Singhaviroj I when the last motion to strike was granted.
II. The Statute of Limitations — Counts eleven and twelve (and derivatively nineteen and twenty)
The defendants assert that the causes of action brought in counts 11, 12, 19 and 20, are barred by the statute of limitations. Counts eleven and nineteen allege negligent misrepresentation against the individual defendants as well as the Town and the Board. Counts 12 and 20 allege indemnification against the Board and the Town as a result of the conduct of the individual defendants contained in counts 11 and 19.
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute." Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984).
The statute of limitations for negligent misrepresentation is two years as set forth in CGS § 52-584. See, Lombard v. Peters, 79 Conn.App. 290 (2003). See also, Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559 (1995); Goncalves v. Superior Plating Co., Judicial District of Fairfield, at Bridgeport, Dkt. No. CV 085015711 (September 9, 2010) (Arnold, J.) (Claim of negligent misrepresentation in connection with employment and termination therefrom was barred by applicable two-year statute of limitations); Aponte v. Alinabal, Inc., 45 Conn. L. Rptr. 818 (May 29, 2008) (Levin, J.) (The statute of limitations applicable to negligent misrepresentation claims is set forth in CGS § 52-584); KGM Corp. v. Parillo, Judicial District of New Haven, Dkt. No. CV 044001596 (December 27, 2005) (Devlin, J.) (same); Brule v. NERAC Corporation, Judicial District of Hartford, Dkt. No. HHD CV X04 085023811 (December 9, 2009) (Shapiro, J.) (same).
Plaintiff argues that CGS § 52-577, the statute of limitations for tort actions applies. This court disagrees.
General Statutes § 52-584 provides, in pertinent part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."
"The limitation period [under § 52-584] . . . begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered . . . In this regard, the term injury is synonymous with legal injury or actionable harm. Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm . . . Furthermore, actionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm . . ." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 793-94, 849 A.2d 839 (2004).
Reich v. Spencer, Judicial District of Hartford, Dkt. No. HHD CV 075012682 (December 10, 2010) (Peck, J.)
The alleged statements upon which these two counts are based occurred prior to the plaintiff's termination on April 8, 2004. Counts eleven and nineteen were not brought until April 5, 2007, with the filing of the amended complaint. Under the analysis set forth above, the actionable harm occurred upon the plaintiff's termination on April 8, 2004. It is on that date that the plaintiff had "knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of' the defendants. Therefore, counts eleven and nineteen are time barred unless they relate back to the date of the original complaint, which was served on the defendants in March 2005.
"[I]t is well settled that an amended complaint relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action . . . Thus, an amendment cannot allege a new cause of action that would be barred by the statute of limitations if filed independently." (Citation omitted.) Miller v. Fishman, 102 Conn.App. 286, 298, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008) . . ."A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which `establish the existence of that right and that delict constitute the cause of action . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001).
Wright v. Teamsters Local 559, 123 Conn.App. 1, 5-7 (2010). See also, Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789 (2008). "To summarize, in determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence." Sherman v. Ronco, 294 Conn. 548, 556 (2010). Thus, the original complaint and amended complaint must be compared within the parameters set forth. Id. at 557.
The original complaint contained ten counts stemming from the plaintiff's termination from employment. Count One alleged libel against the individual defendants for the publication of documents in which the plaintiff was alleged falsely accused of causing disruption to the computer network of the Board. Count Two alleged indemnification arising out of the allegations in count one. Count three alleged slander against the individual defendants for statements made by them that the plaintiff caused the disruptions of the Board's computer network. Count four alleged indemnification arising out of the allegations in count three. Count five alleged wrongful discharge against the individual defendants as a result of an improper investigation into the disruptions of the Board's computer network. Count Six alleged indemnification arising out of the allegations in count five. Count Seven incorporated the same factual allegations as the preceding counts and alleged intentional infliction of emotional distress against the individual defendants. Count eight alleged indemnification arising out of the allegations in count seven. Count nine incorporated the allegations from the preceding counts and alleged negligent infliction of emotional distress against the individual defendants, the Town and the Board. Count ten alleged indemnification arising out of the allegations in count nine.
Of the counts contained in the original complaint, only counts one, three, nine and ten remain. The others were stricken by the court (Radcliffe, J.).
Broadly stated, the original complaint stems from the plaintiff's alleged wrongful termination as a result of false accusations made against him that he had caused disruptions to the Board's computer network. The original complaint includes causes of action for defamation arising out of the publication of those allegations and emotional distress causes of action, intentional and negligent, stemming from the both the termination as well as the defamation.
Turning to the amended complaint, as indicated, counts eleven and nineteen allege negligent misrepresentation. Specifically, the plaintiff asserts that following an investigation into the disruptions in the computer network, defendant Zwikler, and others unnamed, told him that he was not responsible for the computer problems. He alleges reliance to his detriment on this representation. Thereafter, he avers, the defendants accused him of causing the disruptions and terminated his employment. In count nineteen, the plaintiff alleges that the individual defendants told him that he would not be terminated without just cause; that he would be afforded the same treatment as an employee whose employment is subject to CGS § 10-151; that as long as he satisfactorily performed his job, he would not be terminated without just cause. He alleges reliance to his detriment on these statements. He alleges he was terminated without just cause.
The negligent misrepresentation claims do not relate back to the original complaint and the allegations and causes of action contained therein. Counts eleven and nineteen contain different causes of action; a different set of facts which give rise to the alleged injury; a different "primary right in the plaintiff" and a different "invasion of that right by some delict on the part of the defendant." In sum, "the facts which establish the existence of that right and that delict" are different in the amended complaint and therefore constitute a different cause of action.
While the entirety of the amended complaint arises out of the plaintiff's termination from employment, these counts go well beyond the scope of the allegations concerning defamation and emotional distress stemming from false accusations as to his involvement in the computer network disruptions. The defendants were not put on "fair notice" with the filing of the original complaint that they would be defending claims of negligent misrepresentation. Indeed, the factual allegations regarding the alleged statements appear nowhere in the original complaint. They comprise no part of the original cause of action commenced. The "mere fact that the new . . . allegations arose in connection with [the same event] is not sufficient to bring those allegations within the scope of [the plaintiff's] original complaint." Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 808-09 (2008) (trial court properly denied request to amend complaint where original complaint alleged various departures from applicable standard of care in performing plaintiff's back surgery, and proposed amended complaint alleged that defendant should not have performed surgery because proposed amendment would have required presentation of different evidence). See also, Alswanger v. Smego, 257 Conn. 58, 67, 776 A.2d 444 (2001) (trial court properly concluded that allegations regarding informed consent in amended complaint did not relate back to original complaint where defendants would have been required "to gather different facts, evidence and witnesses to defend the amended claim" [internal quotation marks omitted]); Keenan v. Yale New Haven Hospital, 167 Conn. 284, 286, 355 A.2d 253 (1974) (Amended complaint sounding in assault and battery did not relate back to an original complaint sounding in negligence).
Plaintiff simply avers that the amended complaint "relates back" because the "original complaint contained the factual basis upon which the Plaintiff's negligent misrepresentation claims are based." He provides no analysis beyond this conclusory statement. As indicated, the original complaint does not contain any reference to any misrepresentations made by the defendants to the plaintiff or his reliance thereupon.
Summary judgment as to counts eleven and nineteen will enter in favor of the defendants. As the claims based upon indemnification pursuant to CGS § 7-465 contained in counts twelve and twenty are wholly derivative of counts eleven and nineteen, Brooks v. Sweeney, 299 Conn. 196, 222 (2010), summary judgment as to counts twelve and twenty will enter in favor of the Town and the Board.
III. Governmental Immunity — Counts nine, eleven, nineteen (and ten, twelve and twenty as derivative causes of action)
The individual defendants and the Town and the Board next claim that they are, as to various causes of action, protected by governmental immunity. Specifically, all defendants assert immunity as to the ninth count (negligent infliction of emotional distress); the eleventh count (negligent misrepresentation); and the nineteenth count (negligent misrepresentation). The Town and the Board further argue that insofar as all defendants are protected by government immunity as to these substantive counts, the claims for indemnification found in counts ten, twelve and twenty also fail as a matter of law.
Although the court has already determined that counts eleven and nineteen were not timely filed, the court includes those counts in its governmental immunity analysis, which must be undertaken to address the ninth count in any event.
Generally, a municipality or its employees "shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties." CGS § 52-577n(a). However, our common law as well as our statutes confer immunity for those acts deemed governmental or discretionary, as opposed to acts which are deemed ministerial. Violano v. Fernandez, 280 Conn. 310, 320 (2006). Specifically, CGS § 52-557n(a)(2)(B) provides that municipalities and their employees will not be liable for damages caused by `negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.'"
Our Supreme Court has "discussed extensively the difference between a ministerial and a discretionary act. `A municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.'" (Internal citations omitted). Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68 (1988).
"The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Bonington v. Westport, 297 Conn. 297, 307-08 (2010). See also, Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49 (2005). Whether an act is discretionary or ministerial can be a question of law for the court to decide. See, Redfearn v. Ennis, 28 Conn.App. 398, 401 (1992).
Here, the individual defendants, in their respective capacities were participating in an internal investigation regarding problems with the computer network. Each was acting within the scope of their employment in connection with what was clearly a discretionary function. How to investigate the computer disruptions and what course of action to follow during and after the investigation required, considered judgment and decision making as well as a broad degree of discretion. There is no "How To" manual which proscribes the manner by which such an investigation must be undertaken nor the precise method and terminology required when communicating with those involved. The plaintiff points to no statutory or other scripted methodology applicable to the events at issue, to include his termination. Indeed, the overseeing or running of the technology department of the Board of Education and the hiring, firing and disciplinary issues that arise on a regular basis is quintessential governmental function. See e.g. Lingos v. Town of Clinton, Judicial District of Middlesex at Middletown, Dkt. No. CV 04104139 (October 11, 2005) (Silbert, J.) (Connecticut courts have oft held that the manner in which an employee is investigated is a discretionary function.); Morse v. Norwich, Judicial District of New London, Dkt. No. CV 09-6001313 (December 20, 2010) (Cosgrove, J.) (The manner by which a dog pound was operated or how its personnel and animal clients were supervised was a discretionary governmental function); Gervais v. West Hartford Board of Education, 17 Conn. L. Rptr. 383, 385 (July 25, 1996, Lavine, J.) ("Considerations of who to hire, how to train such people, and how to supervise employees are decisions requiring the use of judgment and discretion"). See also, Martin v. Town of Westport, 108 Conn.App. 710 (2008) (governmental immunity barred claims for emotional distress in connection with wrongful termination claim).
Having determined that the defendants were engaged in discretionary acts, the plaintiff's claims must fail unless he establishes that an exception to governmental immunity applies.
The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.
Evon v. Andrews, 211 Conn. 501, 505 (1989) (citations omitted). The plaintiff avers that the "imminent harm" exception applies in this case.
The imminent harm exception, "applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.
Benedict v. Norfolk, 296 Conn. 518, 519, n. 1 (2010). See also, Violano v. Fernandez, 280 Conn. 310, 329 (2006). These requirements are to be "analyzed conjunctively." Doe v. Petersen, 279 Conn. 607, 620 (2006). "Demonstration of less than all of these criteria is insufficient." Id.
Imminent harm is "harm ready to take place within the immediate future." Tryon v. North Branford, 58 Conn.App. 702, 712, 755 A.2d 317 (2000). "Imminent is defined as something about to materialize of a dangerous nature . . . Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future . . . In order to meet the imminent harm prong of this exception . . . the risk must be temporary and of short duration . . . Such conditions that have been identified as imminent include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door.
Cady v. Tolland, Superior Court, judicial district of Tolland, Docket No. CV 05 5000054 November 30, 2006) (Peck, J.) (citations omitted).
"An individual may be identifiable for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition." (Internal quotation marks omitted.) Cotto v. Board of Education, 294 Conn. 265, 275-76 (2009). This is a narrowly drawn exception to qualified governmental immunity. Grady v. Somers, 294 Conn. 324, 350-51 (2009).
Within these parameters, the court finds that the imminent harm exception does not apply here. The imminent harm alleged in count nine is the plaintiff's emotional distress. Counts eleven and nineteen allege unspecified economic harm or damages. These harms are not "of a dangerous nature," and are not a type of injury that can be described as "about to materialize." Indeed, they are the very types of harm excluded from this exception because they are a type of harm "which might occur, if at all, at some unspecified time in the future."
Notably, the court has not located any case in which the "harm" alleged was something other than actual physical threat of injury. Plaintiff cites no case in which the "imminent harm" was emotional distress or economic harm as is alleged in counts nine, twelve and nineteen. Expanding the notion of "harm" to include such type of injury would substantially broaden an otherwise narrowly tailored exception.
Summary judgment will enter in favor of the defendants as to counts nine, eleven and nineteen.
As the claims based upon indemnification pursuant to CGS § 7-465, in counts ten, twelve and twenty are wholly derivative of counts nine, eleven and nineteen. Brooks v. Sweeney, 299 Conn. 196, 222 (2010), summary judgment as to counts ten, twelve and twenty will enter in favor of the Town and the Board.
IV. THE FENNEL DOCTRINE — Counts thirteen, seventeen and twenty-one
The Town and the Board, the only defendants named in counts thirteen (promissory estoppel), seventeen (breach of contract) and twenty-one (promissory estoppel), claim that the doctrine set forth in Fennell v. City of Hartford, 238 Conn. 809 (1996), serves as a bar to each of these counts.
In Fennell v. City of Hartford, 238 Conn. 809 (1996), the Supreme Court held that absent actual authority as set out in the Town Charter, contractual promises made by town employees are void as a matter of law. Fennell involved a claim by former police officers that their pension benefits should have been calculated based upon a sum that included accrued sick leave, which was paid out upon retirement. The basis of their claim was language contained within a benefits manual created and provided by the police commission.
The Court first discussed the parameters of municipal contract law.
It has been well established that a city's charter is the fountainhead of Municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised . . . Agents of a city, including its commissions, have no source of authority beyond the charter . . . In construing a city charter, the rules of statutory construction generally apply . . . Id. at 813, quoting Stamford Ridgeway Assoc. v. Bd. Of Representatives, 214 Conn. 407, 423 (1990) . . . The officer, body or board duly authorized must act on behalf of the municipality, otherwise a valid contract cannot be created. Generally the power to make contracts on behalf of the municipality rests in the council or governing body . . . Generally, no officer or board, other than the common council, has power to bind the municipal corporation by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate its powers . . . It follows that agents of a city, including its commissions, have no source of authority beyond the charter. Their powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language.
(Internal citations omitted.) Fennell, 238 Conn. at 813-14.
The court, finding that the Hartford Charter did not delegate the determination of pension benefits to the commission which had created the manual on which the officers relied, held that the commission could not bind the municipality.
[A]ll who contract with a municipal corporation are charged with notice of the extent of the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract."
Fennell v. Hartford, supra, 238 Conn. at 813 (citations omitted, emphasis added).
The Court also set forth the substantial policy considerations which informed the Court's decision. "Courts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel . . . We believe that implied contract claims in the public sector, based upon pension or employee manuals, would only invite endless litigation over both real and imagined claims of misinformation by disgruntled citizens [and employees], imposing an unpredictable drain on the public fisc . . . Absent a clear legislative indication, we are loathe to attribute an intent to the legislature to draw down the public fisc in favor of those with no substantive entitlement thereto." (Citations omitted; internal quotation marks omitted.) Fennell v. City of Hartford, supra, 238 Conn. at 816.
After Fennell, it appears clear that a municipality cannot be contractually bound by a representation made by its agent unless the agent had actual authority to make the representation pursuant to the General Statutes, the municipal charter or another valid delegation of authority.
Since Fennell was decided, both the Appellate Court and Superior courts have applied the Fennell doctrine to bar a variety of claims brought against municipalities. In Biello v. Watertown, 109 Conn.App. 572, cert. denied, 289 Conn. 934 (2008), the Appellate Court, in affirming the trial court, determined that an employee's claim of implied contract for specified wages was barred under Fennell. See also, Ferrucci v. Middlebury, 49 Conn. L. Rptr. 767 (May 3, 2010) (Cronan, J.) ( Fennell doctrine precluded cause of action where plaintiff, a former police officer claimed that an implied contract was created for benefits when he received a letter from the finance director of the municipality as well as its actuarial contractor, because neither the finance director nor the actuarial had authority to confer benefits); Flaherty v. Naugatuck, judicial district of Waterbury, Dkt. No. CV 05 4004400 S (Gormley, J.T.R.) (October 9, 2007) (Former fire chief's claims for, inter alia, breach of contract and promissory estoppel barred by Fennell doctrine.) Padula v. Weston Board of Education, Judicial District of Ansonia Milford, at Milford, Dkt. No. CV 06 4014462 5 (June 9, 2009) (Bellis, J.) (Court held that a claim of implied contract by Plaintiff, a former grounds supervisor for the Weston Board of Education, was barred by Fennell doctrine); Kenny v. Town of Orange, 51 Conn.Sup. 506, 512 (2011) affirmed per curiam, 126 Conn.App. 351 (2011) (Although case was determined based upon other reasoning, the court noted that to the extent the plaintiff was claiming an implied contract or estoppel based upon his receipt of a letter regarding the start date of his pension benefits, such communications "ordinarily cannot bind the town" under Fennell). The doctrine applies to promissory estoppel claims as well. Vollemans v. Wallingford, judicial district of New Haven, Docket No. CV 03 0283760 (June 26, 2007) (Taylor, J.).
"An action for promissory estoppel may be brought against a public agency, such as [a] town . . . however, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency . . . As noted, this exception applies where the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents." (Internal quotation marks omitted.) Vollemans v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 03 0283760 (June 26, 2007, Taylor, J.).
Here there is no evidence that any of the individuals identified had direct or delegated authority to enter into express or implied contracts on behalf of the Board or the Town. As such, any express or implied contracts entered into or suggested by their statements do not bind the Town or the Board and are void as a matter of law. Similarly, the claims of promissory estoppel are barred. See, Buttner v. West Hartford, judicial district of Hartford, Dkt. No. CV 065002982 (June 12, 2008) (Miller, J.) (motion for summary judgment granted where plaintiff provided no evidence that the defendant's pension and benefits manager had the authority to bind the Town); Ferrucci v. Middlebury, supra, 49 Conn. L. Rpt. 767 (after defendant established the applicability of Fennell, summary judgment was granted where plaintiff failed to demonstrate that town actors had authority to bind the municipality).
Plaintiff's proffer of evidence on this issue, in the court's view, falls under the category of circumstantial evidence of "apparent authority." As noted above, it is not apparent authority that can bind a municipality, but only "actual authority."
Summary judgment will enter in favor of the Town and the Board as to counts thirteen, seventeen and twenty-one.
V. COUNT FIFTEEN (Invasion of Privacy by False Light)
A. As to the Town and the Board
As to count fifteen, the Town and the Board seek summary judgment on the basis that they are entitled to governmental immunity.
It is now settled that pursuant to CGS § 52-577n(a)(2), a municipality cannot be held liable for the intentional torts of its employees, agents and servants. Pane v. City of Danbury, 267 Conn. 669, 685-86 (2004); O'Connor v. Board of Education, 90 Conn.App. 59, 64 (2005); Miner v. Cheshire, 126 F.Sup. 184, 186 (D.Conn. 2000). The issue here is whether the plaintiff's claim of invasion of privacy by false light is an intentional tort insofar as it alleges "wilful misconduct." To establish a claim of invasion of privacy by false light, a plaintiff must show that (a) the false light into which the plaintiff was placed would be highly offensive to a reasonable person; and (b) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Honan v. Dumyan, 52 Conn.App. 123, 132-33 (1999).
CGS § 52-577n(a)(2) provides: 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) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . ." (Emphasis added).
In O'Connor v. Board of Education, 90 Conn.App. 59 (2005) the Appellate Court held that the invasion of privacy claim, based upon the "intrusion upon seclusion" category of such claims was an intentional tort. Id. at 65. Although the invasion of privacy alleged in count fifteen falls into the "false light" category, O'Connor is instructive. There, the court first noted that the plaintiffs conceded that the invasion of privacy claim sounded in an intentional tort. However, it also noted the intentional nature of the allegations and then held:
On the basis of our review of the record, it is clear that the plaintiff alleged a violation of an intentional tort. Because there is no distinction between "intentional" and "wilful" conduct; see, e.g., Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998); Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996); Dubay v. Irish, 207 Conn. 518, 533 n. 8, 542 A.2d 711 (1988); the plaintiff's allegations of invasion of privacy amount to "wilful misconduct" under the statute and, therefore, § 52-557n(a)(2) provides the defendant immunity from the allegations.
Id.
Here the count alleging invasion of privacy first incorporates the factual allegations of count one which precede the allegations of libel. The plaintiff further avers, similar to the libel count, that the defendants "caused to be published documents in which the wrongfully accused the Plaintiff of causing the network disruptions. The plaintiff further avers that the defendants "knew or acted in reckless disregard as to the falsity of the accusations made against the plaintiff and the false light in which the plaintiff would be placed."
The allegations in count fifteen describe intentional and deliberate, as opposed to accidental or negligent, conduct on the part of the defendants. As to the defendants' mens rea, the plaintiff avers that the defendants "knew or acted with reckless disregard" for the falsity of the accusations made. Under our law, "reckless" conduct equates to "intentional" or "wilful" conduct when classifying tortious behavior. See, Elliott v. Waterbury, 245 Conn. 385 (1998) (Our courts treat as interchangeable concepts of "wanton, reckless, wilful, intentional and malicious); Dubay v. Irish, 207 Conn. 518, 533 (1988) (same).
The allegations in count fifteen are very similar to the allegations in count one, which sounds in libel. Libel is, of course, an intentional tort. See, e.g. Miller v. Egan, 265 Conn. 301, 332 (2003).
This court finds that count fifteen sounds in an intentional tort insofar as it alleges wilful misconduct on the part of the employees. As such, count fifteen against the Board and the Town is barred under CGS § 52-577n(a)(2)(A). See, Pane v. City of Danbury, supra. Summary judgment will enter in favor of the Town and the Board.
B. As to the Individual Defendants
The defendants seek summary judgment as to count fifteen on the grounds that the plaintiff has not established "publicity" as required under this cause of action.
Invasion of Privacy based upon False Light "protects one's interest in not being placed before the public in an objectionable false light or false position . . . 3 Restatement (Second), Torts, 652E, comment b. The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true . . . and (2) is such a `major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position . . .'"
Apicella v. Driver Logistics Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 010450101 (August 19, 2002) (Arnold, J.) (citations omitted).
As noted supra, to establish a claim of invasion of privacy by false light, a plaintiff must show that (a) the false light into which the plaintiff was placed would be highly offensive to a reasonable person; and (b) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Honan v. Dumyan, 52 Conn.App. 123, 132-33 (1999).
According to the Restatement comment in section 652D, whereas `publication' includes any communication by the defendant to a third person[,] `[p]ublicity' . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication . . . It is one of a communication that reaches, or is sure to reach, the public. The distinction is one between private and public communications. 3 Restatement (Second) Torts, Invasion of Privacy section 652D, comment a, p. 384 (1977).'
Senior v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 010808241 (January 14, 2002, Peck, J.) [ 31 Conn. L. Rptr. 268].
Whether the communications at issue in this case reached the public is in dispute. The defendants deny disclosing the plaintiff's alleged involvement with the computer network disruptions to anyone. The plaintiff offers testimony and other evidence from which an inference may be drawn that the allegations were shared with a much larger audience. Thus, there are genuine issues of material fact to be resolved at trial. The motion for summary judgment as to the individual defendants in count fifteen is denied.
VI. COUNT SIXTEEN (Indemnification for Invasion of Privacy by False Light)
Conn. Gen. Stat. § 7-465 precludes indemnification for damages to person or property caused by the acts or omissions of any employee which constituted "wilful or wanton misconduct." For the same reasons as are set forth above, the court finds that the claim of "invasion of property by false light" as to the individual defendants is a claim of "wilful misconduct." Summary judgment will enter in favor of the Town and the Board as to Count Sixteen.
Specifically, CGS § 7-465 provides: "(a) Any town, city or borough . . . shall pay on behalf of any employee of such municipality, . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person or property, . . . if the employee, at the time of the occurrence, accident, physical injury or damage complained of was acting in the performance of his duties and within the scope of his employment and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty." (Emphasis added.)
VII. COUNTS ONE AND THREE (Defamation)
The individual defendants also seek summary judgment as to count one (slander) and count three (libel) on the basis that the alleged defamatory statements are subject to two qualified privileges: the first premised upon plaintiff's status as a public person and the second premised upon the statements being "intracorporate communications." If either privilege applies, the plaintiff must establish that the defendants acted with malice, which, the defendants argue, he cannot do.
To succeed on his defamation claim, the plaintiff must establish that the defendants published false statements that harmed the plaintiff and that the defendants were not privileged to do so. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27 (1995); Kelley v. Bonney, 221 Conn. 549, 563, 606 A.2d 693 (1992).
`There are two facets to the defense of privilege. The occasion must be one of privilege, and the privilege must not be abused. Whether the occasion is one of privilege is a question . . . [W]hether the privilege was abused . . . depends upon whether there was malice in fact . . . in uttering and broadcasting the alleged defamatory matter.' Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 615, 116 A.2d 440 (1955); see also Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985).
Id. at 29.
Communications between managers regarding the review of an employee's job performance and the preparation of documents regarding an employee's termination are protected by a qualified privilege. Such communications and documents are necessary to effectuate the interests of the employer in efficiently managing its business. See 3 Restatement (Second), Torts § 593, and § 596 and comment (d) (1977); W. Prosser W. Keeton, supra, § 115(3), pp. 828-29; R. Smolla, supra, § 15.07[2][a] and cases cited therein; see also Bleich v. Ortiz, supra, 196 Conn. 504 (privilege in acting to protect interest in property); Miles v. Perry, 11 Conn.App. 584, 594 n. 8, 529 A.2d 199 (1987).
Id.
Once it is established that the communications at issue are privileged, the question of whether the defendants acted with malice arises. Id. See also, Bleich v. Ortiz, 196 Conn. 498, 504 (1985) (qualified privilege may be overcome on finding of malice); 4 Restatement (Second), Torts § 600 (1977) (qualified privilege fails if statement made with knowledge of falsity or reckless disregard as to truth). Under the corporate communications privilege, the plaintiff must show either malice in fact, or actual malice. Gambardella v. Apple Health Care, Inc., 291 Conn. 620 (2009).
Here, whether the communications were made in the corporate context for which the privilege applies is in dispute. While many of the communications, no doubt, were made in the context of investigating and evaluating the plaintiff's conduct and employment, the plaintiff alleges publication beyond those persons involved in that process. He provides evidence, to include his own testimony, from which an inference could be drawn that the accusations regarding the computer network were made well beyond the managerial ranks.
Additionally, even if the determination were made that the statements were subject to the qualified privilege, there is a genuine issue of fact as to whether the defendants acted with actual malice, — knowledge of falsity or reckless disregard as to truth, or malice in fact. See, Woodcock v. Journal Publishing Co., 230 Conn. 525, 527 (1994) (in action brought by public figure against media defendant, finding of actual malice was permissible where the evidence permitted an inference that the defendant entertained serious doubts as to the truth of his publication). The plaintiff offers evidence as to improper motive or ill will by Ms. Quirk; documentation regarding whether others doubted the veracity of the allegations; and evidence regarding the adequacy of the investigation. An issue of fact as to malice remains.
This factual issue exists as well under the other claimed privilege, that the plaintiff, as a public figure, must prove actual malice.
The motion for summary judgment as to counts one and three is denied.
In conclusion, the motion for summary judgment filed by the Town and the Board is granted in its entirety.
The motions for summary judgment filed by the four individual defendants are granted as to all counts except counts one, three and fifteen, for which genuine issues of material fact remain for the trier of fact.
SO ORDERED