Summary
rejecting tortious interference claim because "there [was] insufficient evidence to show [defendant] had a statutory or contractual obligation" to accede to plaintiff's wishes
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CV166070583S
05-31-2018
Michael GERRISH v. Paul HAMMICK, et al.
UNPUBLISHED OPINION
REVISED MEMORANDUM OF DECISION UPON REARGUMENT/RECONSIDERATION MOTIONS FOR SUMMARY JUDGMENT (# 133, # 135) MOTIONS TO STRIKE (# 143, # 169)
See order granting reargument issued on May 1, 2018 (# 181.87).
PECK, JTR
In a five-count complaint, filed on August 17, 2016, against the defendants Paul Hammick, Matthew Willauer and the Town of Bloomfield (the town), the plaintiff, Michael Gerrish, alleges tortious interference (count one); breach of implied contract (count two); defamation (count three); negligent infliction of emotional distress (count four); and intentional infliction of emotional distress (count five). The complaint sets forth the following factual allegations: The plaintiff retired from his position as police sergeant for the town of Bloomfield Police Department on June 1, 2012. Upon retirement, all police officers receive a retirement badge and identification card. On October 1, 2012, Quinnipiac University (Quinnipiac) hired the plaintiff as a public safety officer. In August 2014, Quinnipiac decided to arm some of its public safety officers, including former police officers. In furtherance of this initiative, Quinnipiac sought information from the Bloomfield Police Department about the plaintiff. On August 19, 2014, Hammick, Chief of Police of the Bloomfield Police Department, and Willauer, Lieutenant and Commander of the Professional Standards Division of the Bloomfield Police Department, communicated to the plaintiff’s employers at Quinnipiac that the plaintiff was not entitled to a retirement identification card and badge because he was found to have committed misconduct at the time of his retirement. The statements made by Hammick and Willauer were false and defamatory and were made with malice or in reckless disregard of the truth. Upon receipt of this information, Quinnipiac terminated the plaintiff’s employment on August 14, 2014. In their answer to plaintiff’s complaint, the defendants denied the plaintiff’s allegations and asserted several special defenses including that counts one, two, three, and four fail to state a claim upon which relief can be granted; counts two and three are barred by the applicable statute of limitations; and count four is barred by the doctrine of governmental immunity.
On October 2, 2017, the defendants filed a motion for summary judgment, memorandum of law, and fifteen exhibits addressed to all counts of the plaintiff’s complaint. On October 3, 2017, the plaintiff filed a motion for summary judgment as to counts one, two, and three of his complaint accompanied by a memorandum of law and seven exhibits, including the plaintiff’s affidavit. Each side filed opposing memoranda including exhibits to the other side’s motion for summary judgment. In addition, the defendants moved to strike the plaintiff’s exhibits 4, 6, and 13, as well as portions of the plaintiff’s affidavit submitted in support of his own motion for summary judgment. All of the foregoing motions have been fully briefed and were heard at the short calendar held on November 13, 2017.
On March 12, 2018, the court issued its memorandum of decision, granting the defendants’ motion for summary judgment as to counts two, four, and five for all of the defendants. The court also granted the motion as to count one, tortious interference, for Hammick and the town. The court, however, denied the motion for count one for Willauer and for count three, defamation, for all of the defendants. The court also denied the plaintiff’s motion for summary judgment. On April 2, 2018, the defendants filed a motion to reargue pursuant to Practice Book § § 11-11 and 11-12, arguing the court misconstrued facts and law in partially denying the motion for summary judgment. On April 27, 2018, the plaintiff filed a reply, arguing the defendants’ motion was untimely and the court’s decision was correct. On May 1, 2018, the court granted the defendants’ motion for reargument and heard the matter on May 8, 2018. Upon reargument, the court allowed the plaintiff to file a supplemental brief, which he did on May 14, 2018, accompanied by exhibits. The defendants filed a reply on May 16, 2018, accompanied by exhibits. Upon reargument and reconsideration, the court grants the defendants’ requested relief and grants the motion for summary judgment as to the remaining counts of the plaintiff’s complaint. For the benefit of the parties and clarity of the record, the court hereby vacates its memorandum of decision issued on March 12, 2018 (# 171), and issues the following revised memorandum of decision.
In addition, the defendants’ motions to strike were also granted in part and denied in part.
The plaintiff also filed a motion to strike portions of Hammick’s affidavit in the defendants’ original motion for summary judgment to which the defendants objected. The court declines to rule on that motion because it is now moot upon issuance of this revised memorandum of decision granting the defendants’ motion for summary judgment in its entirety.
A trial court may correct legal errors on reargument. Hudson Valley Bank v. Kissel, 303 Conn. 614, 624-25, 35 A.3d 260 (2012).
DISCUSSION
I. Defendants’ Motion to Strike
The defendants move to strike paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 17, 21, 27, 28, 29, and 32 of the plaintiff’s affidavit (Exhibit 3), in support of his motion for summary judgment on the grounds that it is does not comply with the requirements of Practice Book § 17-46 in that it is not based on personal knowledge, contradicts the plaintiff’s previous deposition testimony or is conclusory. The defendants further move to strike paragraphs 4, 6, 10, 13, 14, 16, 17, 20, 28, 32, 33, 35, 36, 37, 38, 40, and 41 of the plaintiff’s affidavit (Exhibit 4), in opposition to the defendants’ motion for summary judgment on those same grounds. Additionally, the defendants move to strike paragraphs 6, 9, 11, 12, 13, 14, 15, 17, 20, 21, and 22 of the affidavit of Sean Cecchini, a former police officer for the Bloomfield Police Department (Exhibit 6), in opposition to the defendants’ motion for summary judgment on the grounds that it is irrelevant, not based on personal knowledge, conclusory, and contains hearsay. Finally, the defendants move to strike the text messages between Hammick and Willauer (Exhibit 13) in opposition to the defendants’ motion for summary judgment on the ground that those messages are inadmissible under the Connecticut Code of Evidence. The plaintiff only opposes the first motion to strike.
Although the motion states it is addressed to the entire affidavit, the memorandum focuses on the enumerated paragraphs. Based on the arguments presented in the memorandum, the court declines to strike the entire affidavit based on timeliness. The defendants have also not demonstrated any prejudice.
Because the motion to strike itself is directed toward specific paragraphs of the Cecchini affidavit and not the entire affidavit, the ruling addresses only those paragraphs.
Connecticut Code of Evidence § 4-8 provides: "(a) Evidence of an offer to compromise or settle a disputed claim is inadmissible on the issues of liability and the amount of the claim. (b) This rule does not require the exclusion of: (1) [e]vidence that is offered for another purpose, such as proving bias or prejudice of a witness, refuting a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution, or (2) statements of fact or admissions of liability made by a party."
"A motion to strike is the proper method to attack a counteraffidavit that does not comply with the rules." 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 569 n.3, 636 A.2d 1377 (1994). "[I]f an affidavit contains inadmissible evidence it will be disregarded." Id., 569. "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn.App. 140, 158, 888 A.2d 141 (2006). "Moreover, mere conclusions are insufficient as evidence which would be inadmissible upon the trial, such as hearsay." (Emphasis omitted; internal quotation marks omitted.) Id.
In the present case, the plaintiff’s exhibit 3 contains legal conclusions, statements made without personal knowledge, and statements that conflict with the plaintiff’s deposition. Accordingly, the defendants’ motion to strike is granted as to paragraphs 4, 8, 9, 21, 27, 28, 29, and 32 of the plaintiff’s exhibit 3. The plaintiff’s exhibit 4 further contains legal conclusions, statements made without personal knowledge, and hearsay. Accordingly, the defendants’ motion to strike is granted as to paragraphs 4, 6, 10, 17, 28, 32, 33, 35, 36, 37, 38, 40, and 41 of the plaintiff’s exhibit 4. The plaintiff’s exhibit 6 also contains statements made without personal knowledge, legal conclusions, and hearsay. Accordingly, the defendants’ motion to strike is granted as to paragraphs 12, 13, 14, 15, 17, 20, 21, and 22 of the plaintiff’s exhibit 6. The plaintiff’s exhibit 13 contains text messages between Hammick and Willauer regarding a potential settlement offer with the plaintiff. Because those messages focus solely on the settlement offer and do not reveal any bias, prejudice, or admission by the defendants, the evidence is barred by § 4-8 of the Connecticut Code of Evidence. Accordingly, the defendants’ motion to strike the plaintiff’s exhibit 13 is also granted.
The court denies the defendants’ motion to strike as to paragraphs 5, 6, 7, 10, 11, 13, 14, 17, as idle statements in those paragraphs are based on the plaintiff’s personal knowledge.
The court denies the defendants’ motion to strike as to paragraphs 13, 14, 16, and 20 as the statements in those paragraphs are based on the plaintiff’s personal knowledge.
The court denies the defendants’ motion to strike as to paragraph 9 of exhibit 6, which states: "In May 2012, I heard Willauer boasted to me that ‘[the plaintiff’ will never get a badge or s- from this place, f- him," because, although profane, it is a statement by a party opponent. See Conn. Code Evid. § 8-3(1). The court denies the defendants’ motion to strike as to paragraphs 6 and 11 as those paragraphs are based on Cecchini’s personal knowledge and observations.
II. Defendants’ Motion for Summary Judgment
The defendants move for summary judgment on the grounds that the plaintiff’s claims fail as a matter of law. In opposition, the plaintiff argues that there are genuine issues of material fact that prevent the court from granting the defendants’ motion for summary judgment.
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Nash v. Stevens, supra, 144 Conn.App. 15.
"[A]s a general matter, summary judgment is considered inappropriate when an individual’s intent and state of mind are implicated ... At the same time, even with respect to questions of ... intent ... the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." (Citation omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 130, 968 A.2d 956 (2009). "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 ..." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). "[O]nly [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [does] the burden [shift] to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ... Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013).
A. Count One: Tortious Interference
The defendants move for summary judgment in favor of Hammick and Willauer on count one, tortious interference, on the ground that there is an absence of any genuine issues of material fact and the claim fails as a matter of law. The plaintiff argues there are genuine issues of material fact that prevent the court from granting the defendants’ motion.
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants’ knowledge of that relationship, (3) the defendants’ intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants’ tortious conduct." (Internal quotation marks omitted.) Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 864, 124 A.3d 847 (2015). "[I]t is not necessary for a plaintiff to prove that a contract was in fact breached in order to recover on a claim of tortious interference." Id., 866. "[F]or a plaintiff successfully to prosecute [an action for tortious interference] [he] must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously ... The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification ... Whether a defendant’s interference is tortious is a question of fact for the jury." (Citations omitted; internal quotation marks omitted.) Id., 868-69.
The defendants argue that Hammick never communicated with Quinnipiac concerning the plaintiff; Willauer did not act tortiously; the plaintiff did not suffer a loss based on a statement by Willauer; and, the defendants are protected by qualified privilege. The plaintiff argues in response that there are genuine issues of material fact concerning whether Hammick communicated with Quinnipiac through Willauer, Willauer acted maliciously, the plaintiff suffered a loss when Quinnipiac terminated his employment, and the defendants’ alleged actions defeats qualified privilege.
I. Defendants’ Tortious Acts
The defendants Hammick and Willauer contend that they are entitled to summary judgment because there is an absence of a genuine issue of material fact that they did not act tortiously. The plaintiff counters that there is a genuine issue of material fact as to whether Hammick and Willauer acted tortiously when they allegedly denied the plaintiff the retirement badge and identification card.
"[T]o substantiate a claim of tortious interference ... there must be evidence that the interference resulted from the defendant’s commission of a tort." (Internal quotation marks omitted.) Brown v. Otake, 164 Conn.App. 686, 710, 138 A.3d 951 (2016). "The burden is on the plaintiff to plead and prove at least some improper motive or improper means ... on the part of the [defendant]." (Citation omitted; internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 488, 998 A.2d 1221 (2010). "Where a tortious interference claim stems from the defendant’s passive conduct, common sense dictates that a court should inquire whether the defendant was under any obligation to do what it refrained from doing." (Internal quotation marks omitted.) PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc., 172 Conn.App. 688, 694, 161 A.3d 596, cert. denied, 326 Conn. 911, 165 A.3d 1252 (2017).
In the present case, the defendants have met their burden of showing an absence of a genuine issue of material fact in that there is no evidence that Hammick interfered with the plaintiff’s employment with Quinnipiac. Although Cecchini stated in his affidavit that Hammick said in 2012 "as you peel back the layers of the onion, it’s becoming clear that [the plaintiff is] not truthful" and that he had "no use for [the plaintiff]" in a condescending tone, there is no evidence demonstrating that Hammick interfered with the plaintiff’s employment with Quinnipiac. Pursuant to the police department’s policy, Hammick had the sole discretion of determining whether the plaintiff retired in good standing. Although the plaintiff argues that Hammick acted arbitrarily when he denied a retirement badge and card to the plaintiff while awarding them to other officers under investigation, there is insufficient evidence to show Hammick had a statutory or contractual obligation to award the badge and card. Cf. PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc., supra, 172 Conn.App. 694 (defendant had statutory obligation to release lis pendens). Consequently, there is insufficient evidence for a trier of fact to conclude that Hammick tortiously interfered with the plaintiff. Accordingly, Hammick is entitled to summary judgment on count one.
The Bloomfield Police Department Manual of Policy and Procedure provides in relevant part: "The issuance of a retirement identification card and badge is at the discretion of the Chief of Police. In general, sworn officers who meet the criteria listed below are eligible to receive a retirement badge and identification card, as a token of appreciation from the department. 1. Good Standing: Is defined in this policy as retirement or resignation that was (a) not the result of or avoidance of, any current or past disciplinary or punitive action, work performance or criminal matter, and (b) combined with one of the following: 2. Retirement: When the officer has 15 or more years of service with the Bloomfield Police Department and is currently receiving retirement benefits ..." (Internal quotation marks omitted.)
As to Willauer, the defendants have also met their burden of showing an absence of a genuine issue of material fact because there is no evidence that Willauer tortiously interfered with the plaintiff’s employment with Quinnipiac. The plaintiff’s claim for tortious interference is based upon the plaintiff’s allegation that Willauer "falsely communicated to Quinnipiac University that plaintiff was not entitled to retirement identification and falsely stated that he was found to have committed misconduct at the time of his retirement." Thus, the purported underlying tort is defamation. The defendants, however, have demonstrated that Willauer made no false communication to Quinnipiac because there is no evidence that Willauer told Quinnipiac that the plaintiff committed misconduct. Keith never referenced such an accusation in her report and there is no other evidence that Willauer communicated this information to Quinnipiac. Rather, in response to a question by Keith as to whether the plaintiff would ever get a letter of good standing, Willauer only replied, "No," which is substantially true. Accordingly, there is insufficient evidence that Willauer committed an underlying tort providing the requisite basis for the plaintiff’s tortious interference claim. See Brown v. Otake, supra, 164 Conn.App. 710. Thus, Willauer is entitled to summary judgment on count one.
See part II.C. of this memorandum.
Although the plaintiff argues there is a genuine issue of material fact of whether the plaintiff suffered a loss due to Willauer’s conduct, there first must be tortious conduct by Willauer. See Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 805, 734 A.2d 112 (1999) ("[f]or a plaintiff successfully to prosecute such an action [for tortious interference] it must prove that the defendant’s conduct was in fact tortious" [internal quotation marks omitted.] ). Because the plaintiff has failed to show a genuine issue of material fact of whether Willauer’s conduct was tortious, the court does not reach the issue of the plaintiff’s loss.
ii. Governmental Immunity for the Town
The defendants argue that count one is barred by the doctrine of governmental immunity.
The plaintiff argues Willauer’s malicious acts defeat that immunity. "Although, at common law, a municipality generally was immune from liability for any tortious acts, our Supreme Court has long recognized that governmental immunity may be abrogated by statute ... General Statutes § 52-557n(a)(1) provides in relevant part: Except as otherwise provided by law, a political subdivision of the state 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 ... This language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents." (Citations omitted; internal quotation marks omitted.) Washburne v. Madison, 175 Conn.App. 613, 622, 167 A.3d 1029 (2017).
As a preliminary matter, the parties argue whether Willauer’s actions were discretionary or ministerial. This dispute, however, is off the mark because the plaintiff alleges an intentional tort- tortious interference- not negligence. "When a plaintiff alleges an intentional tort that is governed by the immunity provided in § 52-557n(a)(2)(A), it is immaterial whether the acts were ministerial or discretionary." Avoletta v. Torrington, 133 Conn.App. 215, 225, 34 A.3d 445 (2012). "Section 52-557n(a)(2)(A) expressly provides that a political subdivision of the state shall not be liable for acts or omissions of its employees that constitute criminal conduct, fraud, actual malice or wilful misconduct ... There is no dispute that the [town] is a political subdivision, and our Supreme Court has held that the term wilfulness is synonymous with intentional." (Emphasis omitted; internal quotation marks omitted.) Id., 224. The tort of tortious interference is an intentional tort involving malice. Landmark Investment Group, LLC v. CALCO Construction & Development Co., supra, 318 Conn. 868-69. A "municipality may not be held liable for the intentional acts of its employees pursuant to § 52-557n(a)(2)(A) ..." Martin v. Westport, 108 Conn.App. 710, 730, 950 A.2d 19 (2008). Accordingly, because the plaintiff alleges an intentional tort, and because Hammick and Willauer allegedly acted with actual malice or wilful misconduct, the town is not liable pursuant to § 52-557n(a)(2)(A) unless an exception by law provides otherwise.
The defendants also argue the town is immune under General Statutes § 7-465. Nevertheless, "§ 7-465, which requires the damage to have not been the result of any wilful act, does not apply here, as the plaintiff alleges ... that the defendants committed the wilful [act] of ... tortious interference ..." Lippolis v. Panagoulias, Superior Court, judicial district of New Haven, Docket No. CV-13-6041292-S (November 17, 2014, Nazzaro, J.).
The plaintiff argues the town is exempt from governmental immunity under the identifiable person-imminent harm exception. That exception, however, only applies to actions sounding in negligence, not intentional torts. See Grady v. Somers, 294 Conn. 324, 349, 984 A.2d 684 (2009) ("imminent harm exception to employees’ qualified immunity applies to the immunity afforded to municipalities for the negligent performance of discretionary acts ..." [emphasis added] ). Accordingly, because the plaintiff alleges an intentional tort and because the discretionary or ministerial act characterization does not apply, the exception abrogating the town’s governmental immunity is inapplicable. When a plaintiff fails to cite any statute that abrogates the immunity set forth in § 52-557n(a)(2), the general rule that a municipality is immune from liability applies. See O’Connor v. Board of Education, 90 Conn.App. 59, 65 n.4, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005). Thus, the defendants’ motion for summary judgment for the town on count one on the ground that it barred by governmental immunity is granted.
B. Count Two: Breach of Contract
The defendants move for summary judgment on count two, breach of contract, on the ground that the claim fails as a matter of law because there is an absence of a genuine issue of material fact in that the defendants were not contractually obligated to provide the plaintiff with a retirement badge and identification card in return for his service with the Bloomfield Police Department. The plaintiff argues there is a genuine issue of material fact of whether the police department’s policy created an implied contract that was breached by the defendants.
"[W]hether [a] contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent ... A true implied [in fact] contract can only exist ... where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words." (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016). "A contract implied in fact, like an express contract, depends on actual agreement." (Internal quotation marks omitted.) Id. "Whether the parties have entered into such an agreement is a question of fact ... It is the plaintiff’s burden to prove, by a preponderance of the evidence, that the defendants had agreed by either words or deeds to recognize and undertake a contractual commitment ... Absent specific contract language, whether there was a contract, and the terms of that contract, are questions of fact." (Citations omitted; internal quotation marks omitted.) Burns v. RBS Securities, Inc., 151 Conn.App. 451, 457, 96 A.3d 566, cert. denied, 314 Conn. 920, 100 A.3d 851 (2014). "[T]he exchange of promises is sufficient consideration to support a finding of the existence of a contract." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 641, 882 A.2d 98, cert. denied, 276 Conn. 925, 888 A.2d 92 (2005).
In the present case, the defendants have met their burden of showing an absence of a genuine issue of material fact that they did not agree to undertake a contractual commitment. There is no evidence demonstrating that the defendants expressly promised the plaintiff the badge and card. There is also no evidence showing the parties’ conduct impliedly created a contract that the plaintiff would receive a badge and card upon his retirement. Rather, pursuant to the police department’s policy, Hammick had the discretion to issue them and the plaintiff was only eligible to receive them. Mere eligibility to receive does not equate to a promise to receive. Cf. Russell v. Russell, supra, 91 Conn.App. 641 (exchange of promises sufficient for a contract). The plaintiff has failed to provide evidence showing there exists a genuine issue of material fact that he had a contract claim against the defendants. Therefore, the defendants’ motion for summary judgment as to count two is granted.
See footnote 11 of this memorandum.
C. Count Three: Defamation
The defendants move for summary judgment on count three, defamation, on the ground that the claim fails as a matter of law because there is an absence of any genuine issue of material fact indicating that Hammick published any defamatory statement to Quinnipiac concerning the plaintiff and Willauer’s statement was truthful and protected by qualified privilege. The plaintiff responds, arguing there are genuine issues of material fact as to whether Hammick acted with malice, and, further, Willauer’s statement was false and he acted with malice.
"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 ..." (Internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 431, 125 A.3d 920 (2015). "[T]o 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.) Id., 430. "Slander is oral defamation." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). "Slander is actionable per se if it charges incompetence or dishonesty in office ..." Miles v. Perry, 11 Conn.App. 584, 602, 529 A.2d 199 (1987). "When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff’s reputation." (Internal quotation marks omitted.) Lowe v. Shelton, 83 Conn.App. 750, 766, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). "Additionally, to recover punitive damages, a plaintiff must prove actual malice, regardless of whether the plaintiff is a public figure." Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009). "To find that the defendants were liable for defamation ... the jury [is] required to find that the defendants published false statements that harmed the [plaintiff], and that the defendants were not privileged to do so." Kelley v. Bonney, 221 Conn. 549, 563, 606 A.2d 693 (1992). "[F]or a claim of defamation to be actionable, the statement must [also] be false ... and under the common law, truth is an affirmative defense to defamation ... the determination of the truthfulness of a statement is a question of fact for the jury." (Citations omitted; internal quotation marks omitted.) Gleason v. Smolinski, supra, 319 Conn. 431.
In the present case, the defendants have met their burden showing an absence of a genuine issue of material fact that no defamatory statement was made. There is no evidence showing Hammick published a defamatory statement to Quinnipiac because there is no evidence that Keith and Hammick spoke to each other or that Hammick spoke to anyone else from Quinnipiac. Although Hammick allegedly made a defamatory statement to Cecchini in 2012, that is not the basis of the plaintiff’s cause of action. The plaintiff’s complaint alleges that Hammick "communicated false information about the plaintiff to Quinnipiac University regarding the plaintiff’s character and professional reputation." Yet, there is no evidence that Hammick communicated any such information to Quinnipiac. See Kelley v. Bonney, supra, 221 Conn. 563. "Publication is a key element of defamation, and failure to establish publication is fatal to a plaintiff’s case." Ramirez v. Costco Wholesale Corp., Superior Court, judicial district of New Haven, Docket No. CV-11-6020832-S (May 9, 2014, Burke, J.). Accordingly, because there is no evidence of publication, Hammick is entitled to summary judgment as to count three.
Hammick allegedly stated to Cecchini in 2012 that "as you peel back the layers of the onion, it’s becoming clear that [the plaintiff is] not truthful" and that he had "no use for [the plaintiff]" in a condescending tone.
Regarding Willauer, the defendants have also met their burden of showing an absence of a genuine issue of material fact that no defamatory statement was made by Willauer to Quinnipiac. As previously stated herein, the only statement that Willauer could have made was in responding, "No," to Keith’s question of whether the plaintiff would ever receive a letter of good standing from the department. Nevertheless, the statement was "substantially true" because Hammick previously determined that the plaintiff had not retired in good standing and was ineligible for the badge and the card. "Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification ... It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable ... The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced." (Citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112-13, 448 A.2d 1317 (1982). Here, Willauer has shown, by way of Hammick’s determination that the plaintiff did not retire in good standing, that his response of "No" was substantially true and the answer did not add any sting or additional matter that would make the answer itself actionable. Accordingly, because Willauer’s statement is substantially true and truth is an affirmative defense to defamation, Willauer is entitled to summary judgment as to count three.
Willauer’s alleged defamatory statement made to Cecchini in 2012 that "[the plaintiff] [would] never get a badge or s- from this place, f- him," is not the basis of the plaintiff’s cause of action in this count.
Despite the plaintiff’s contention that the substantially true argument was never raised, the defendants did raise it, albeit briefly, in their original motion for summary judgment.
I. Governmental Immunity for the Town
The defendants argue that count three is barred by the doctrine of governmental immunity. A "municipality may not be held liable for the intentional acts of its employees pursuant to § 52-557n(a)(2)(A) ..." Martin v. Westport, supra, 108 Conn.App. 730. "Defamation is an intentional tort." Lippolis v. Panagoulias, Superior Court, judicial district of New Haven, Docket No. CV-13-6041292-S (November 17, 2014, Nazzaro, J.). Accordingly, because the plaintiff alleges an intentional tort and fails to cite any statute that abrogates the immunity set forth in § 52-557n(a)(2), the general rule that a municipality is immune from liability applies. See O’Connor v. Board of Education, supra, 90 Conn.App. 65 n.4. Thus, the defendants’ motion for summary judgment for the town on count three on the ground that it barred by governmental immunity is granted.
D. Count Four: Negligent Infliction of Emotional Distress
The defendants next move for summary judgment on count four, negligent infliction of emotional distress, on the ground that the defendants are protected by governmental immunity. The plaintiff responds by arguing the defendants’ acts were ministerial, and, even if those acts were discretionary, the identifiable person-imminent harm exception applies, defeating their immunity.
In their answer to the complaint, the defendants asserted the doctrine of governmental immunity as a special defense to count four. See Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
I. Governmental Immunity for Hammick and Willauer
"The [common-law] doctrines that determine the tort liability of municipal employees are well established ... Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ... Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ... 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." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). "Municipal officials are immunized from liability for negligence arising out of their discretionary acts ..." (Internal quotation marks omitted.) Id. Where a complaint contains no allegations that the municipal employee was required to perform the duties alleged in a prescribed manner and failed to do so, it is deemed the plaintiff alleges the misperformance of a discretionary duty. Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989).
There are three exceptions to governmental immunity for discretionary acts, only one of which is relevant here: the identifiable person-imminent harm exception. "The identifiable-person imminent harm exception applies [if] the circumstance’s 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 ... This exception has three elements: (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 ... This exception is applicable only in the clearest cases." (Citations omitted; internal quotation marks omitted.) Costa v. Board of Education, 175 Conn.App. 402, 408, 167 A.3d 1152, cert. denied, 327 Conn. 961, 172 A.3d 801 (2017). "[Courts] have stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state." (Internal quotation marks omitted.) Strycharz v. Cady, 323 Conn. 548, 573, 148 A.3d 1011 (2016). "If the [plaintiff fails] to establish any one of the three prongs, this failure will be fatal to [his] claim that [he comes] within the imminent harm exception." (Internal quotation marks omitted.) Id., 573-74. "[W]hether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." Haynes v. Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014).
In the present case, it is undisputed that Hammick’s decision as to whether to award the retirement badge and identification card to the plaintiff was within his discretion as chief of police. The Bloomfield Police Department’s policy states: "The issuance of a retirement identification card and badge is at the discretion of the Chief of Police. In general, Sworn Officers ... are eligible to receive a retirement badge and identification card, as a token of appreciation from the department." (Emphasis added; internal quotation marks omitted.) This language unambiguously states that Hammick, as Chief of Police, had the discretion to decide not to award the retirement badge and identification card to the plaintiff.
Nevertheless, the plaintiff argues the identifiable person-imminent harm exception applies because he was facing an imminent harm of adverse employment action, was an identifiable victim, and Hammick’s conduct likely subjected the plaintiff to the harm of adverse employment action. Based on the facts alleged in count four of the complaint, however, the plaintiff has not and cannot demonstrate that he falls within the imminent harm exception. The act of which the plaintiff complains occurred at the time of his retirement when he was not awarded an identification card and badge by Hammick. Without doubt, he did not face imminent harm of adverse employment action by Quinnipiac at that time. The plaintiff voluntarily left his employment at the Bloomfield Police Department in May 2012, and did not commence his employment with Quinnipiac as a campus security guard until a few months later in October 2012. Because the plaintiff cannot prove imminent harm, he cannot satisfy all three requirements necessary to qualify for the identifiable person-imminent harm exception, and, therefore, it does not apply. Accordingly, the claim of negligent infliction of emotional distress as to Hammick is barred by the doctrine of governmental immunity.
The plaintiff further argues Willauer’s response of "No" to Keith’s question of whether the plaintiff would ever receive a letter of good standing from the Bloomfield Police Department was a ministerial act, and he was negligent in making that statement, thus defeating his special defense of governmental immunity. Nevertheless, Willauer made the statement in response to Keith’s question, and, in formulating his response, he exercised discretion. See Sidorova v. East Lyme Board of Education, 158 Conn.App. 872, 890-91, 122 A.3d 656, cert. denied, 319 Conn. 911, 123 A.3d 436 (2015) (superintendent’s manner of communicating plaintiff’s termination was discretionary). Accordingly, Willauer’s statement was discretionary and he is immune for his alleged negligence, unless the plaintiff has otherwise established that an exception applies.
The plaintiff again argues that the identifiable person-imminent harm exception applies to him because he was facing an imminent harm of adverse employment action if he did not get a letter of good standing. Therefore, he was an identifiable victim and Willauer’s conduct likely subjected the plaintiff to imminent harm in the form of adverse employment action. This argument fails, however, because the evidence shows that the plaintiff was not exposed to adverse employment action at the time Quinnipiac was conducting the background check. Quinnipiac never told the plaintiff it would terminate him if he could not obtain a letter of good standing. In fact, when the plaintiff warned Quinnipiac about his likely inability to get a letter of good standing, Quinnipiac still encouraged him to sign the authorization to obtain his employment information from Bloomfield. Because it was not apparent to Willauer that a dangerous condition was so likely to cause harm to the plaintiff such that he (Willauer), had a clear and unequivocal duty to act immediately to prevent the harm, there was no imminent harm. Because the plaintiff cannot prove all three elements required for the identifiable person-imminent harm exception, the exception does not apply. Therefore, the claim of negligent infliction of emotional distress as to Willauer is barred by the doctrine of governmental immunity. Accordingly, the defendants’ motion for summary judgment as to count four is granted in favor of Hammick and Willauer.
ii. Governmental Immunity for the Town
Because governmental immunity bars the plaintiff’s claims as to Hammick and Willauer for count four, negligent infliction of emotional distress, the claim against the town is also barred. See Spears v. Garcia, 263 Conn. 22, 37, 818 A.2d 37 (2003) ("a benefit accrues to the municipality when the employee successfully establishes qualified immunity, by permitting the municipality to avoid liability for indemnification ..."). Moreover, the plaintiff has not cited any statute abrogating municipal immunity for negligent infliction of emotional distress. See Williams v. New Haven, 243 Conn. 763, 769, 707 A.2d 1251 (1998) (defendant city not liable for negligence in performance of governmental function where plaintiff did not rely on any statute abrogating governmental immunity). Accordingly, the defendants’ motion for summary judgment in favor of the town on count four is also granted.
E. Count Five: Intentional Infliction of Emotional Distress
The defendants move for summary judgment on count five alleging intentional infliction of emotional distress, on the ground that the claim fails as a matter of law because the plaintiff cannot prove any of the elements of the claim. The plaintiff argues there is a genuine issue of material fact concerning whether Hammick’s and Willauer’s conduct was extreme and outrageous.
"In order for the plaintiff to prevail in a case for liability ... [alleging 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 ... 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." (Citations omitted; internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012). "The threshold inquiry in an intentional infliction of emotional distress action is ... whether the alleged behavior is sufficiently extreme and outrageous. This high bar for distasteful behavior has been described as requiring conduct ... 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!" (Internal quotation marks omitted.) Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 87, 63 A.3d 1011 (2013).
In the present case, the defendants have met their burden of showing an absence of a genuine issue of material fact in that no reasonable jury could conclude the defendants’ actions were extreme and outrageous. Hammick’s determination that the plaintiff did not leave the police department in good standing was within his discretion as chief of police, pursuant to the police department’s policy, and cannot be said to be extreme and outrageous. Willauer’s statement to Keith was similarly not the type of statement that would cause an average member of the community to exclaim "outrageous!" The plaintiff has not presented any other evidence showing the defendants’ conduct was extreme and outrageous. Accordingly, the defendants’ motion for summary judgment as to count five is granted in their favor.
See footnote 9 of this memorandum.
III. Plaintiff’s Motion for Summary Judgment
The plaintiff also moves for summary judgment on count one, tortious interference; count two, breach of contract; and count three, defamation on the ground that there is no genuine issue of material fact in that the plaintiff has proven his claims.
As a preliminary matter, the defendants have objected to the plaintiff’s motion as untimely for the reason that it was filed beyond the deadline set for filing dispositive motions in the amending scheduling order approved by the court. "If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order." Practice Book § 17-44. The trial court, however, has ample discretion in considering untimely motions for summary judgment. See Grimm v. Fox, 303 Conn. 322, 339, 33 A.3d 205 (2012). In the present case, the plaintiff admits he failed to comply with the amended scheduling order (# 132), requiring all motions for summary judgment to be filed by October 2, 2017. The plaintiff filed his motion for summary judgment on October 3, 2017, one day late. Although the plaintiff did not seek permission of the court to file his motion beyond the operative deadline of October 2, 2017, the court finds that the late filing was excusable and did not prejudice the plaintiff in any respect. Therefore, any objection by the defendants as to the late filing is overruled.
As to the merits of the plaintiff’s motion for summary judgment, it is hereby denied. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). The court finds that the plaintiff has failed to present evidence that demonstrates the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, would entitle him to judgment as a matter of law on counts one, two or three of the complaint.
IV. Conclusion
For the foregoing reasons, the defendants’ motions to strike are hereby granted in part and denied in part. The defendants’ motion for summary judgment is hereby granted as to all counts. Finally, the plaintiff’s motion for summary judgment is hereby denied.