ACCURSO v. GALLO, No. CV-07-5009983S (Dec. 29, 2008)

2008 Ct. Sup. 20518
No. CV-07-5009983SConnecticut Superior Court Judicial District of New Haven at New Haven
December 29, 2008

RULING ON MOTION TO STRIKE (#110)
LINDA K. LAGER, Judge.

This action against Leonard L. Gallo individually and in his official capacity as the Chief of Police of the Town of East Haven (Gallo) and against the Town of East Haven arose from events that are alleged to have occurred on March 27, 2006 when the plaintiff Ralph Accurso (Accurso) was involved in a minor motor vehicle accident on High Street in East Haven, Connecticut. In a revised complaint dated October 16, 2007, claims were made in eight counts against Gallo and in one count against the town. On October 31, 2007, the defendants filed a motion to strike all the counts of the revised complaint. Accurso replied in a memorandum in opposition to the motion to strike filed January 22, 2008. This matter appeared on this court’s December 15, 2008 short calendar docket with a “take papers” marking.

“[A] motion to strike challenges the legal sufficiency of a pleading . . .” (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000); see also Practice Book § 10-39. “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). The court must “assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court must] read the allegations broadly, rather than narrowly. (Citation omitted.)” Macamber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). The court must deny the motion to strike if the facts fairly provable under the allegations of the complaint support a cause of action, but must grant it if they do not. See Doe v. Yale University, supra, 252 Conn. 667 Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

I.
CT Page 20519 The first, second and third counts allege malicious prosecution. The elements of malicious prosecution are well established and include the following: “that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; [and] (2) the criminal proceedings have terminated in favor of the plaintiff.” McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 812 (1982). The Appellate Court has recognized that these, as well as the other elements of malicious prosecution, are “stringent requirements.” “Actions for malicious prosecution are not favored by the courts. Thus, a malicious prosecution action is subject to limitations that are more stringent than those surrounding other kinds of actions, and recovery is allowed only if the requirements have been fully complied with.” (Internal quotation marks and parentheses omitted, internal citations omitted.) Giannamore v. Shevchuk, 108 Conn.App. 303, 311, 947 A.2d 1012 (2008).

Gallo moves to strike the first, second and third counts on the ground that Accurso cannot establish the requisite first element of the tort of malicious prosecution — that a prosecution was initiated against him — and accordingly cannot establish the requisite second element that the prosecution terminated in his favor. Accurso agrees that he was neither arrested nor prosecuted in connection with the motor vehicle accident of March 27, 2006 but maintains that Gallo’s alleged “insistence” on his arrest suffices.

The Supreme Court recently had an opportunity to discuss the first element of the tort of malicious prosecution in Bhatia v. Debek, 287 Conn. 397, 404-08, 948 A.2d 1009 (2008), a case decided after the parties had submitted their memoranda in this matter. Bhatia leaves no doubt that a plaintiff has to have been subjected to the institution of an actual criminal proceeding for the tort to lie. An actual prosecution is required because the “wrongful act is the commencement of an action without legal justification.” Schaefer v. O.K Tool Co., 110 Conn. 528, 532, 148 A. 330 (1930). “[U]nlike a vexatious litigation claim, in which the underlying civil action was filed either by the defendant herself, acting pro se, or by an attorney acting on behalf of the defendant, in a malicious prosecution action, a public official, acting on behalf of the state, institutes the criminal action against the malicious prosecution plaintiff.” Bhatia v. Debek, supra, 287 Conn. 406. Thus, the first element requires that a proceeding of a criminal character has been commenced against the plaintiff. W. Prosser W. Keeton, Torts (5th Ed.) § 119, p. 871 (1984). Since factual allegations to support this requisite element are conceded to be absent, the motion to strike the first, second and third counts must be granted.

II. CT Page 20520
The fourth and fifth counts allege selective enforcement of the laws in violation of the federal and state constitution. Selective enforcement is a subcategory of selective treatment. “A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person . . . [When a plaintiff] does not allege selective treatment based upon his race, religion, or any intentional effort by [the] defendants to punish him for exercising his constitutional rights, [the plaintiff] must demonstrate that [the] defendants maliciously singled [him] out . . . with the intent to injure him.” (Internal citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 393, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000). With respect to the first element, a plaintiff must “identify and relate specific instances where persons situated similarly in all relevant
aspects were treated differently . . .” (Emphasis in original.) Id., 240 Conn. 402.

Gallo asserts that the fourth and fifth counts are legally insufficient because, among other things, Accurso has failed to identify how other similarly situated individuals were treated differently from him. Accurso responds that since it is alleged that Gallo treated him differently from the other driver who was involved in the March 27, 2006 accident, the complaint is sufficient. The cause of action, however, requires a more precise comparison. See Cadlerock Properties v. Commissioner, 253 Conn. 661, 670-73, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001) (Plaintiff’s failure to compare itself “to similarly situated current owners of the property who were not directly responsible for the pollution” failed to satisfy the first prong of selective enforcement); Alexander v. Commissioner, 86 Conn.App. 677, 684-85, 862 A.2d 851 (2004) (Complaint’s lack of allegations comparing plaintiff inmate “and other inmates who also received inheritances but against who the state chose not to impose liens” made it insufficient to support equal protection claim).

Furthermore, since it is generally accepted that “as a practical matter, police departments, operating with limited resources, may on occasion adopt policies of selective enforcement in cases involving relatively minor infractions of the motor vehicle laws,” Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 343, 555 A.2d 406
(1989), in this case the first prong of the selective enforcement claim had to be precisely alleged because the motor vehicle collision was CT Page 20521 minor (Revised Complaint, common ¶ 6). While the complaint identifies a long list of individuals to whom it is alleged Gallo or the town of East Haven accorded preferential treatment after they had been involved in motor vehicle accidents in the town because those individuals were “senior Town officials or related to senior Town officials or friends of senior Town officials” (Fourth and Fifth Counts, ¶ 18), Accurso does not fall within any of those categories of individuals. The complaint does not identify, however, the ways in which Gallo allegedly unfairly targeted Accurso to the exclusion of the relevant comparison group: other drivers who may have been involved in motor vehicle accidents with those alleged to have been given preferential treatment. Additionally, even if Accurso had sufficiently alleged that he was similarly situated to other drivers, the absence of any actual enforcement action taken against him makes it impossible to prove that he was treated differently in violation of his right to equal protection.[1] Accordingly, the fourth and fifth counts must be stricken.

III.
The sixth count alleges intentional infliction of emotional distress. Gallo moves to strike the sixth count on the ground that it fails to allege a requisite element: conduct that was extreme and outrageous. Extreme and outrageous conduct is “conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Emphasis in original; internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 254, n. 5, 510 A.2d 1337 (1986) quoting W. Prosser W. Keeton, Torts (5th ed. 1984) § 12, p. 60. “Whether the defendant’s conduct and the plaintiff’s resulting distress are sufficient to satisfy . . . these elements is a question, in the first instance, for [the] court.” (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 712, 746 A.2d 184 (2000). “Only where reasonable minds disagree does it become an issue for the jury.” Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).

“Liability 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 the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional CT Page 20522 distress.” (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).

Gallo’s alleged conduct must be measured against these standards. Accurso alleges that Gallo interrupted the officers who were at the scene investigating the motor vehicle accident (¶ 10) and “repeatedly ordered the officers to arrest the plaintiff, referring to Mr. Accurso as a `mutt.'” (¶ 12.) He further alleges that Gallo’s conduct was a form of preferential treatment for the other driver involved in the accident (¶ 18) and his actions towards Accurso were taken without a rational basis or motivated by ill will (¶ 19). Reasonable persons could not disagree that these alleged facts fail to meet the requisite level of extreme and outrageous conduct necessary to support a claim for intentional infliction of emotional distress. See Carrol v. Allstate Insurance Co., supra, 262 Conn. 438-44 (false conclusion that fire at plaintiff’s home was arson, based on inadequate and non-neutral investigation, insufficient); Appleton v. Board of Education, supra, 254 Conn. 211-12
(condescending and humiliating remarks insufficient); Carnemolla v. Walsh, 75 Conn.App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003) (false accusation of criminal conduct insufficient); Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001) (public admonishment insufficient). Accordingly, the sixth count must be stricken.

IV.
Gallo moves to strike the seventh count which alleges negligent infliction of emotional distress solely on the ground of governmental immunity. In response, Accurso asserts that a motion to strike is not the proper procedural vehicle to raise governmental immunity. As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because “governmental immunity must be raised as a special defense in the defendant’s pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50]. Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.” (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188
(2006).

Gallo maintains that because he was engaged in a discretionary function CT Page 20523 involving police activity, he and the town are immune from liability for negligence. However, there is an exception to discretionary act immunity “when the alleged conduct involves malice, wantonness or intent to injure.” Doe v. Peterson, 279 Conn. 607, 615, 903 A.2d 191 (2006). A finding of malice is sufficient to defeat a defense of qualified immunity. Mulligan v. Rioux, 229 Conn. 716, 732, 643 A.2d 1226 (1994). In the seventh count, Accurso alleges that Gallo acted with intent to cause emotional distress and other penalties to Accurso (¶ 14(E)) and that his actions were motivated by ill will towards Accurso (¶ 19). These allegations suffice to prevent the court from considering the issue of discretionary act immunity at the motion to strike stage in this case. Accordingly, the motion to strike the seventh count must be denied. Additionally, the motion to strike the ninth count must be denied because the ninth count alleges an indemnification claim, General Statutes § 7-465, derived from the negligence alleged in the seventh count.

V.
The eighth count, which incorporates the allegations of paragraphs 1 through 14 of the first count, alleges slander. Gallo moves to strike this count asserting that the complaint fails to allege any of the essential elements of this tort.

Slander is oral defamation and the elements of the tort of defamation must be alleged. “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.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856
A.2d. 372 (2004). “[A] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom.” (Quotation marks omitted; citations omitted.)Chertkova v. Connecticut General Life Insurance Co., Superior Court, Judicial District of New Britain, Docket No. 98-0486346S (July 12, 2002, Berger, J.) These requirements are satisfied by the allegations that Gallo communicated with the investigating officers who were at the scene of the accident and “repeatedly ordered the officers to arrest the plaintiff, referring to Mr. Accurso as a `mutt.'” (¶¶ 10, 11, 12.)

However, unless a complaint alleges slander per se, a plaintiff must CT Page 20524 plead and prove actual damages. Lowe v. Shelton, 83 Conn.App. 750, 767, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). The alleged defamatory statement, that Gallo referred to Accurso as a “mutt,” does not rise to the level of slander per se. It is akin to the words “clown,” “big fat ape,” “smart aleck,” “big fat oat” and “stupid son of a bitch,” that have been found to be “merely gross and vulgar expressions of abuse. The general rule has long been that such words of general abuse, regardless of how rude, uncouth or vexatious are not slanderous per se and cannot support recovery in a slander action in the absence of a showing of special damages.” Moriarty v. Lippe, 162 Conn. 371, 385, 294 A.2d 326 (1972).

“An indispensable element of an action of slander is injury to the reputation of the person defamed . . . The action fails unless that element is present. When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff’s reputation. He is required neither to plead nor to prove it . . . The rule is different, however, when the defamation is actionable per quod. There, the law indulges in no such presumption. For this reason, injury to the repatation must be alleged and proved as an essential link between the slanderous utterance and the special damage which constitutes the basis of recovery in actions per quod . . . The special damage, to which we now refer, must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and that conduct must be directly caused by the publication of the slander.” Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952). Since the revised complaint is devoid of factual allegations for this requisite element, the eighth count must be stricken.

VI.
For the reasons stated above, the motion to strike the first, second, third, fourth, fifth, sixth and eighth counts of the revised complain is granted. The motion to strike the seventh and ninth counts of the revised complaint is denied.

CT Page 20525