2006 Ct. Sup. 12878
No. CV05 00 02 03SConnecticut Superior Court Judicial District of Ansonia-Milford at Milford
July 14, 2006
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
MICHAEL HARTMERE, JUDGE.
The minor plaintiff, Heather Zulawski, brings this suit through her mother, the plaintiff, Tina Selitte, against the defendant Ronald A. Stancil, Sr., the principal of West Haven High School.[1] The plaintiffs filed a three-count revised complaint on November 1, 2005, alleging that the defendant “falsely and maliciously accused the plaintiff of sexually harassing a group of high school boys.” On the same date, the defendant suspended the plaintiff from school for a period of five days. Count one alleges a claim of libel. Count two alleges a claim for intentional infliction of emotional distress. Count three alleges a claim pursuant to 42 U.S.C. § 1983 for the deprivation of the plaintiff’s procedural due process rights guaranteed by the fourteenth amendment to the United States Constitution.
Before the court is the defendant’s motion for summary judgment filed pursuant to Practice Book § 17-44 et seq. on all counts of the plaintiffs’ complaint. In support of his motion, the defendant files a memorandum of law, together with the following documents: (1) an affidavit of Robert A. Stancil, Sr.; (2) a notice of suspension dated June 9, 2005, addressed to the parent/guardian of Heather Zulawski; and (3) a certified copy of portions of the plaintiff’s deposition testimony.
On April 26, 2006, the plaintiffs filed a brief in opposition to the motion for summary judgment in which they withdraw the third count of their complaint, conceding that the evidence no longer supports this count. The plaintiffs do not submit any supporting documents with their brief. Oral argument was held on the motion for summary judgment on May 30, 2006.
“Summary judgment is a method of resolving litigation when CT Page 12879 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.” (Citation omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. A material fact . . . [is] a fact which will make a difference in the result of the case.” (Citation omitted; footnote omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 559-60, 783 A.2d 993 (2001).
In count one, the plaintiffs allege, inter alia, that “the defendant defamed the plaintiff by stating in writing on June 9, 2005, in a letter to the plaintiff’s unnamed `parent/guardian’ with copies to Patricia B. Libero, Patricia E. Whitney, Kurt C. Ogren and an unnamed `school counselor’ that the plaintiff had committed `sexual harassment’ in that ‘Heather entered the boys lav at 9:41:26 and exited at 9:50:06 with several boys.” The defendant raises several grounds in support of his contention that he is entitled to summary judgment as to count one. The defendant claims the following: (1) the alleged defamatory libel does not as a matter of law constitute libel per se; (2) there is no genuine issue of material fact as to whether the alleged defamatory statement was true; (3) there is no genuine issue of material fact as to whether the plaintiff suffered any actual damages as required in an action for libel per quod; (4) there is no genuine issue of material fact as to whether the alleged libelous statement was protected by a conditional privilege; and (5) there is no genuine issue of material fact as to whether the alleged defamatory statement was made with malice.
In response, the plaintiffs argue that harassment is a crime in Connecticut, referring the court to General Statutes §§ 53a-182b
and 53a-183, and that sexual harassment, therefore, qualifies as a crime involving moral turpitude. As to the claim of qualified CT Page 12880 privilege, the plaintiffs contend that it is undisputed the plaintiff entered the boys’ lavatory to retrieve a $20 bill stolen from her. The plaintiffs argue that the defendant did not make the statement in good faith because he knew that the plaintiff had not committed the crime of sexual harassment.
“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.” (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
In general, there are two classes of libel that are actionable per se: “(1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached.” (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 853, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003). “The modern view of this requirement is that the crime be a chargeable offense which is punishable by imprisonment.” Battista v. United Illuminating Co., 10 Conn.App. 486, 493, 523 A.2d 1356 (1987), cert. denied, 204 Conn. 802, 525 A.2d 965 (1987).
In the present case, the court agrees with the plaintiff that the alleged defamatory statement as a matter of law falls into the category of libel per se. “An accusation that one has engaged in criminal behavior which involves moral turpitude constitutes [libel] per se.” Snyder v. Cedar, Superior Court, judicial district of New Haven, Docket No. CV 01 0454296 (February 16, 2006, Pittman, J.); see Battista v. United Illuminating Co., supra, 10 Conn.App. 493. In Connecticut, harassment is a crime recognized by the General Statutes. See, e.g., General Statutes §§ 53a-182b, 53a-183. An allegation of sexual harassment is therefore considered libel per se. CT Page 12881 With regard to the defendant’s argument as to whether the plaintiff suffered any actual damages as required in an action for libel per quod, this court has just determined that count one alleges an action for libel per se. “Under Connecticut law, when a party is a victim of libel per se, he is presumed to be injured and is entitled to general damages without proof of actual damages.” Battista v. United Illuminating Co., supra, 10 Conn.App. 491. Consequently, the plaintiff is not required to prove any special or economic damages as claimed by the defendant.
The court next addresses the defendant’s argument that there is no genuine issue of material fact as to whether the alleged defamatory statement was true. In her complaint, the plaintiff alleges that the defendant had no factual basis for his actions. According to her deposition testimony, the plaintiff entered the boys’ lavatory in an effort to retrieve a $20 bill previously stolen from her by one of the boys. The defendant stated, however, in his suspension letter that the plaintiff was suspended for “sexual harassment.” The truth of the matter is unclear here and there are genuine issues of material fact as to whether the defamatory statement was true. The motion for summary judgment as to count one is denied.[2]
In count two, the plaintiffs incorporate the following allegations of count one. The defendant “falsely and maliciously accused the plaintiff of sexually harassing a group of high school boys.” The defendant summarily suspended the plaintiff from school for five days with no factual basis for his actions. The defendant did not afford the plaintiff any opportunity to defend herself or provide the plaintiff with any evidence against her. As a result, the plaintiff suffered severe emotional distress. The defendant defamed the plaintiff in writing by stating that she had committed “sexual harassment” by entering the boys’ lavatory. Lastly, the plaintiffs allege that “[t]he conduct of the defendant . . . was extreme and outrageous and was carried out with the knowledge that it probably would cause the plaintiff to suffer emotional distress.”
In support of his motion for summary judgment on this count, the defendant claims that: (1) there is no genuine issue of material fact as to whether the alleged conduct was extreme and outrageous; and (2) there is no genuine issue of material fact as to whether the emotional distress sustained by the plaintiff was severe. In response, the plaintiffs cite cases to show that CT Page 12882 whether a defendant’s conduct is extreme and outrageous and whether a plaintiff’s distress is severe are genuine issues of material fact for the jury.
To sustain a claim for intentional infliction of emotional distress, a plaintiff must establish: “(1) that the actor intended to inflict emotional distress; or that he knew or should have known that the emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe.” Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). “Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury.” (Citation omitted.) Hartmann v. Gulf View Estates Homeowners Ass’n., 88 Conn.App. 290, 295, 869 A.2d 275 (2005).
The court first examines the defendant’s argument that there is no genuine issue of material fact as to whether the alleged conduct of the defendant is extreme and outrageous. “[L]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!” (Internal quotation omitted.)Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
“A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions.” (Internal quotation marks omitted.) Longo v. Waterbury Hospital Health Center, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176553 (January 14, 2005, Matasavage, J.).
The Connecticut Supreme Court has held that “[c]onduct on the part of the defendant that is merely insulting or displays bad CT Page 12883 manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Internal quotation marks.) Appleton v. Board of Education, supra, 254 Conn. 211. Extreme and outrageous conduct, however, “may arise from an abuse by the actor of a position, or a relation with the other which gives him actual or apparent authority over the other, or power to affect his interests . . . In particular police officers, school authorities, landlords, and collecting creditors have been held liable for extreme abuse of their position.” (Emphasis added.) 1 Restatement (Second), Torts § 46, comment (e) (1965).
Based on the allegations in count two, the court finds that reasonable minds could differ as to whether the defendant’s conduct was extreme and outrageous. The court cannot say that such conduct by a school principal, using the authority of his position is not extreme and outrageous as a matter of law. Thus, the issue of whether the defendant’s actions rise to the level of extreme or outrageous conduct is an issue for the jury.
The court next examines whether there is a genuine issue of material fact as to whether the emotional distress sustained by the plaintiff was severe. The defendant relies on the plaintiff’s deposition testimony indicating that she did not receive any kind of counseling or medical treatment in connection with her claimed anxiety and emotional distress. Furthermore, the defendant claims that most, if not all, of the emotional distress experienced by the plaintiff was due to rumors spread by other students, not her suspension. In response, the plaintiff cites case law to demonstrate that the failure to seek medical treatment does not alone defeat the plaintiff’s claim for severe emotional distress.
A plaintiff “can recover for intentional infliction of emotional distress only if they have incurred severe emotional distress, including all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea . . . Generally, courts find liability only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity.” (Citation omitted; emphasis in original.) Rizzo v. New Haven Register,
Superior Court, judicial district of New Haven, Docket No. CV 02 467267 (October 7, 2005, Martin, J.). CT Page 12884 It is not clear whether the failure to seek medical treatment precludes a showing of severe emotional distress sufficient to establish a claim of intentional infliction of emotional distress. The defendant relies on the case of Almonte v. Coca-Cola Bottling Company of New York, 959 F.Sup. 569 (D.Conn. 1997), to support his proposition that in the absence of any medical treatment or counseling, the distress alleged by the plaintiff can not be considered severe. In Almonte v. Coca-Cola Bottling Company of New York, supra, however, the court recognized that “[i]t [was] not clear whether a plaintiff must seek treatment to maintain a claim of severe emotional distress under Connecticut law.” Id. at 575. Here, the plaintiff concedes in her deposition that she did not seek any counseling or medical treatment. “[T]he absence of treatment does not preclude proof of severe emotional distress.” Birdsall v. Hartford, 249 F.Sup.2d 163, 175 (D.Conn. 2003).
The plaintiff contends that she suffered from emotional distress and that she was “crying a lot.” Emotional distress is severe when it reaches a level “which no reasonable [person] could be expected to endure.” 1 Restatement (Second), Torts § 46, comment (j) (1965); Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 21, 597 A.2d 846 (1991). Here, the plaintiff’s emotional distress reaches a level that a reasonable jury could find for her on this claim. Because genuine issues of material fact exist regarding the plaintiff’s claim of intentional infliction of emotional distress, the defendant’s motion for summary judgment with respect to count two is denied.
Based on all of the foregoing, the defendant’s motion for summary judgment is denied.
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