Opinion
No. CV 04 4001019S
May 25, 2005
MEMORANDUM OF DECISION
This matter came before the court on March 21, 2005 on a motion to strike filed by the defendants, Northwestern Connecticut Young Men's Christian Association, Inc. (NWCYMCA), Gregory J. Brisco (Brisco), Patrick Marchand (Marchand) and Jeffrey K. Williams (Williams). The defendants move to strike all eighteen counts of the second amended complaint filed by the plaintiff; Wendy Snow-Crane, as well as the corresponding prayer for relief. For the reasons stated below, the motion to strike is denied as to counts one though nine and granted as to counts ten though eighteen. The motion to strike the prayer for relief is denied.
FACTS
On January 28, 2005, the plaintiff filed an eighteen-count amended complaint against the defendants. This action arises out of injuries and losses allegedly sustained by the plaintiff as a result of being fired from her job as a swim coach at the NWCYMCA. The plaintiff alleges that defendants Brisco and Williams, individually and in their official capacities, spoke and/or published statements via letter and email to the parents of the members of the swim team she coached saying that she was "combative and ineffective" as a swim coach and that Marchand willfully and maliciously contacted her other employer seeking a swim coach recommendation with knowledge that she was the only swim coach at that facility. She contends that these actions harmed her professional reputation and caused her public and professional humiliation. The plaintiff contends that the three defendants were acting within the scope of their employment with NWCYMCA and that NWCYMCA is therefore vicariously liable for her damages.
Counts one through three of the second amended complaint allege slander per se against Williams (individually and in his official capacity) and NWCYMCA. Counts four through six state claims for libel per se against Brisco (individually and in his official capacity) and NWCYMCA. Counts seven through nine allege libel per quod against Brisco (individually and in his official capacity) and NWCYMCA. Counts ten through eighteen sound in intentional infliction of emotional distress and are directed at Brisco, Williams and Marchand (in their individual and official capacities) and NWCYMCA.
On February 15, 2005, the defendants filed a motion to strike the second amended complaint, accompanied by a memorandum of law in support. The plaintiff filed a memorandum in opposition to the motion to strike on March 7, 2005. On March 17, 2005, the defendants submitted a reply to the plaintiff's memorandum in opposition.
DISCUSSION
"The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action," (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.26 859 (1997). For the purpose of ruling upon a motion to strike, the facts alleged in the complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
The defendants argue that the slander per se, libel per se, libel per quod and intentional infliction of emotional distress claims should all be stricken because, as a matter of law, the defendants' alleged defamatory statements that the plaintiff was "proven to be combative and ineffective" are constitutionally protected opinion statements. The defendants also contend that counts one though three alleging slander per se are legally insufficient because the plaintiff failed to allege that the defamatory statements charge improper conduct or lack of skill and integrity or that they were of such a nature that they were calculated to cause injury to the plaintiff in her profession. Regarding counts four though six, the defendants state that the complaint merely asserts conclusions of law and not the facts necessary to sustain a claim of' libel per se. Lastly, the defendants argue that counts ten though eighteen sounding in intentional infliction of emotional distress should be stricken because the plaintiff has failed to allege that the defendants engaged in extreme and outrageous conduct.
The plaintiff responds that the alleged defamatory statements were not opinion but rather asserted by the defendants as factual statements, making them defamatory as a matter of law. Regarding counts one through three (slander per se) and counts four through six (libel per se), the plaintiff argues that the facts pleaded and those implied from the allegations are sufficient to sustain a cause of action. She contends that motion to strike counts ten through eighteen should be denied because the determination of whether the conduct alleged is extreme and outrageous should be left to the jury. She also states that the personal and professional humiliation she suffered as a result of the defendants' behavior rises to the level of extreme and outrageous conduct.
The defendants reply that the alleged defamatory statements were personal opinions about the plaintiff's conduct, qualifications and character and are constitutionally protected. They also contend that a motion to strike is the proper vehicle for determining whether the conduct alleged is extreme and outrageous and that no reasonable person could conclude that the defendants acted in a way that was outside the bounds of what is tolerable in a civilized society.
"Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill, or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003), "Slander is oral defamation . . . Libel . . . is written defamation." Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 850, 863 A.2d 735 (2004). "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004). "[D]efamation is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business." Moriarty v. Lippe, 162 Conn. 371, 384, 294 A.2d 326 (1972).
The law of defamation distinguishes between statements of fact and opinion. For an assertion to be defamatory, "the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). "A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . [S]uch statements of fact usually concern a person's conduct or character . . . An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact." (Emphasis in original; citations omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111,438 A.2d 1317 (1982). This distinction is "somewhat nebulous," but "[t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact." (Internal quotation marks omitted.) Id., 112.
Construing the alleged defamatory statements in the manner most favorable to sustaining their legal sufficiency, the court finds that the statements are not mere opinion, but were asserted as fact. "Th[e] distinction between fact and opinion cannot be made in a vacuum . . . for although an opinion may appear to be in the form of a factual statement, it remains all opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated." (Emphasis in original; internal quotation marks omitted.) Id., 111. The plaintiff alleges in her second revised complaint that defendants Brisco and Williams stated and wrote that she had "proven to be combative and ineffective" as a swim coach and that as a result of that statement, she was fired and suffered irreparable harm to her professional reputation. The use of the phrase "proven to be" indicates that the defendants were making a factual statement as opposed to expressing an opinion. An ordinary person hearing or reading such a statement may think that it was a fact, especially considering the context of the situation, i.e. the plaintiff's firing.
The defendants argue that even if the alleged defamatory statement is not found to be an opinion, counts one through three alleging slander per se against Williams and NWCYMCA should be stricken because they are legally insufficient. The defendants contend that the plaintiff failed to allege that the defamatory statements charge improper conduct or lack of skill and integrity or that they were of such a nature that they were calculated to cause injury to the plaintiff in her profession. The plaintiff responds that the facts pleaded and those implied from the allegations are sufficient to sustain a cause of action.
Slander "is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business . . . Under this category, spoken words are not slanderous per se if they charge no more than specific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity." (Citation omitted; internal quotation marks omitted.) Zeller v. Mark, 14 Conn.App. 651, 655, 542 A.2d 752 (1988). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). The allegation that the plaintiff was "proven to be combative and ineffective" in her capacity as a swim coach and that she was fired as a result of that statement is legally sufficient. Such facts do challenge the plaintiff's job skills and question her professional capability. As such, the motion to strike counts one through three is denied.
The defendants also argue that counts four through six are legally insufficient because they merely assert conclusions of law and not the facts necessary to sustain a claim of libel per se. Specifically, the defendants point to paragraph thirteen of counts four through six which states: "On its face, the false defamatory statement written by the defendant, Gregory J. Brisco, asserts improper conduct, lack of skill and lack of integrity in Coach Snow-Crane's profession and business as a swim coach and instructor of children, and is of such a nature that it was calculated to cause injury to Coach Snow-Crane in her profession and business as a swim coach."
"[L]ibel is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business." Lowe v. Shelton, 83 Conn.App. 750, 766-67, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). The plaintiff, in addition to paragraph thirteen, made the same allegations as to the specific statements made by the defendants in counts four through six. As stated above, the statement that the plaintiff was "proven to be combative and ineffective" as a swim coach, that she was fired from her coaching position as a result of that statement and that her professional reputation has been irreparably harmed is legally sufficient to survive a motion to strike. Therefore, the motion to strike counts four through six is denied.
Counts seven through nine allege libel per quod. The only argument set forth by the defendants regarding these counts is that the alleged libelous statements are opinions rather than facts. As the court has already concluded that the statements alleged are factual, the motion to strike is denied with respect to counts seven through nine.
The defendants also move to strike counts ten through eighteen sounding in intentional infliction of emotional distress, claiming that the plaintiff has not alleged extreme and outrageous conduct. The plaintiff counters that the determination of whether the conduct alleged is extreme and outrageous should be left to the jury. She also states that the personal and professional humiliation she suffered as a result of the defendants' behavior rises to the level of extreme and outrageous conduct.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the 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." (Internal quotation marks omitted.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). "All four elements must be pleaded in order to survive a motion to strike." (Internal quotation marks omitted.) Burney v. Downer Funeral Home, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0175648 (August 13, 2001, Lewis, J.).
In determining what behavior constitutes 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 the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Carrol v. Allstate Insurance Co., supra, 262 Conn. 443. "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.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
The plaintiff alleges in counts ten through fifteen that defendants Brisco, Williams and NWCYMCA intentionally caused her emotional distress by speaking and/or publishing defamatory statements about her capabilities as a swim coach to the parents of the members of the swim team she coached. In counts sixteen and seventeen, the plaintiff alleges that defendant Marchand willfully and maliciously contacted her other employer seeking a swim coach recommendation with knowledge that she was the only swim coach at that facility and with knowledge that such inquiry would cause the plaintiff's employer to question why she was terminated from her coaching position at NWCYMCA. Count eighteen states that NWCYMCA is vicariously liable for Marchand's actions because he was acting within the scope of his employment when he placed the phone call to the plaintiff's other employer.
Courts have placed a very high burden on those claiming extreme and outrageous conduct. In DeLeon v. Little, 981 F.Sup. 728, 738 (D.Conn. 1997), the court stated that "[w]hile [d]efendant's alleged conduct may have been rude, inappropriate, or even criminal, it does not rise to the level of extreme and outrageous as required by Connecticut common law." In the present case, the same principle applies. While the statements and actions of the defendants may have been rude, inappropriate and potentially harmful to the plaintiff's career as a swim coach, their behavior does not rise to the level of extreme and outrageous conduct. As such, the motion to strike counts ten through eighteen is granted.
The last issue the court must address is the motion to strike the plaintiff's prayer for relief seeking punitive damages, attorney fees and costs. The defendants argue that to award punitive damages, the evidence must reveal a reckless indifference to the rights of others and an intentional and wanton violation of those rights. They contend that the pleadings in the present case do not establish that they acted with reckless indifference toward the plaintiff. The plaintiff responds that she did plead that the conduct of the defendants was wilful and malicious and that Connecticut courts have historically found punitive damages to be appropriate in libel actions.
"Both nominal and punitive damages . . . may be awarded where the defamatory material is [defamation] per se. Where the court has found that the plaintiff has suffered a technical legal injury, the plaintiff is entitled to at least nominal damages." (Emphasis in original, internal quotation marks omitted.) Devito v. Schwartz, 66 Conn.App. 228, 235, 784 A.2d 376 (2001). "Punitive damages, which in Connecticut are limited to attorneys fees less taxable costs . . . may be awarded whether the defamation is actionable per se or per quod . . . Such damages, however, are not awarded as a matter of right, but rather as a matter of discretion, to be determined by the jury upon consideration of all the evidence. (Citations omitted; internal quotation marks omitted.) Id., 236. As the plaintiff has pleaded adequately claims for slander per se, libel per se and libel per quod, her prayer for relief is valid. Whether to award punitive damages is to be left to the jury's discretion. Therefore, the motion to strike the plaintiff's prayer for relief is denied.
CONCLUSION
The motion to strike is denied as to counts one through nine. The plaintiff has pleaded sufficient facts to maintain causes of action for slander per se, libel per se and libel per quod. Counts ten through eighteen fail to allege extreme and outrageous conduct. Therefore, the motion to strike counts ten through eighteen is granted. The motion to strike the plaintiff's prayer for relief seeking punitive damages, attorneys fees and costs is denied.
BY THE COURT,
Bozzuto, J.