Opinion
No. CV 07-5010745-S
March 22, 2011
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
In this case, plaintiff Maggie Greene, a resident of Bloomfield, Connecticut who at all times relevant to this case was employed by the State of Connecticut Department of Children and Families ("DCF"), initially sued the Town of Bloomfield and two sworn members of its Police Department, Officer Mark Samsel and Chief Betsy Hard, to recover money damages for alleged tortious interference with her employment contract, defamation and intentional infliction of emotional distress in connection with Officer Samsel's June 15, 2004 report to DCF that the plaintiff was suffering from delusions and neglecting or otherwise harming her minor son. In her nine-count Amended Complaint dated April 15, 2008, the plaintiff alleges that Officer Samsel made his challenged report to DCF, with the connivance and cooperation of Chief Hard, after she had sent the Police Department a letter on June 12, 2004 complaining of certain unlawful activities that were allegedly occurring at or near her Bloomfield home. Although the defendants did not respond directly to the plaintiff's complaint and assertedly did not believe or have reasonable cause to believe that their allegations against her were true, they not only made such allegations to DCF but met with representatives from DCF, including a representative from DCF Human Resources, to elaborate upon them.
As a result of the defendants' above-described conduct which they assertedly engaged in with malice or reckless disregard for the plaintiff's rights, the plaintiff claims that she has suffered loss of promotion and other adverse job actions at DCF, with resulting economic losses. On that basis, she claims that she is entitled to recover damages from the defendants for tortious interference with her employment contract.
The plaintiff further claims that the defendants' allegedly malicious or reckless publication to her employer of false statements concerning her character and mental state, and thus her ability to perform her job for DCF, constituted acts of defamation for which they are liable to pay her both general damages for harm to her reputation, embarrassment and humiliation and special damages for all of her resulting economic losses.
Finally, alleging that the defendants published their false and defamatory allegations against her with the intent to cause her emotional distress and that, by so doing, they in fact caused her such emotional distress, the plaintiff claims that she is entitled to recover damages from them for intentional infliction of emotional distress.
After this Court, Robaina, J., struck all three of the plaintiff's claims against the defendant Town of Bloomfield, as previously pleaded in the plaintiff's Revised Complaint, the individual defendants answered the plaintiff's Amended Complaint, which was filed while the defendants' motion to strike was still pending, by denying all claims of wrongdoing against them and interposing three special defenses to each such claim. Answer to Amended Complaint (6/26/08). Their special defenses are as follows: (1) that each of the plaintiff's claims fails to state a claim upon which relief can be granted; (2) that each such claim is barred by the statutory immunity granted to mandated reporters of child abuse, as set forth in General Statutes § 17a-101e(b); and (3) that each such claim is also barred by the doctrine of governmental immunity, both as established at common law and as codified in General Statutes § 57-557n.
On May 25, 2010, the individual defendants moved this Court for summary judgment on each of the plaintiff's claims against them on the following grounds. First, they challenge each such claims on the ground that they are immune from liability therefore under General Statutes § 17a-101e(b) because they made their challenged report about the plaintiff to DCF in their capacity as statutorily mandated reporters of child abuse and neglect. Secondly, they challenge each such claim on the ground that, in the circumstances in which they acted, their decision to contact DCF regarding the welfare of the plaintiff's child was a discretionary determination for which they are entitled to governmental immunity. Thirdly, they challenge the plaintiff's separate claims against them on the following discrete and separate legal basis: as for the plaintiff's claims of tortious interference, that their alleged conduct was not tortious and, in any event, that it did not cause the plaintiff any actual loss or injury; as for the plaintiff's claims of defamation, that their alleged statements to DCF were not defamatory, and in any event that such statements were privileged; and as for the plaintiff's claims of intentional infliction of emotional distress, that their alleged conduct is not actionable because it was not extreme and outrageous, as the law requires, and because any emotional distress resulting from it was not, and is not even claimed to have been, severe. The defendants initially supported their motion by an accompanying memorandum of law and twelve attached exhibits.
The exhibits are as follows: a letter from the plaintiff to Edie Latney, dated March 4, 2004; an e-mail from the plaintiff to the Commissioner of Children and Families, dated December 14, 2004; a letter from Lynn Patton to the plaintiff, dated December 16, 2004; an incident report from Officer Isaac Medina, dated December 22, 2004; a DCF results report dated January 27, 2005; a report of suspected child abuse filed with DCF; and various Superior Court cases.
By September 30, 2010, the plaintiff filed an objection to the defendants' motion for summary judgment together with an opposing memorandum of law and an unsigned, unsworn document labeled "Affidavit of Maggie Greene." The defendants later responded to these submissions by filing a reply memorandum in further support of their motion dated November 9, 2010. The motion was argued before the Court on December 13, 2010.
ANALYSIS I.
"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. The courts hold the movant to a strict standard. To satisfy [its] 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
II.
The defendants move for summary judgment on the ground that they are statutorily immune from liability because they are mandated reporters of suspected child abuse and neglect. The defendants argue that General Statutes § 17a-101e(b) affords them immunity because defendant Samsel had reasonable cause to suspect that the plaintiff had abused or neglected her child and on that basis, in good faith, made a report to DCF concerning his suspicion. In his June 15, 2004 incident report, defendant Samsel wrote that the Bloomfield Police Department had received a letter from the plaintiff containing allegations that a task force was conducting surveillance on her and her family. In that letter, dated June 12, 2004, the plaintiff made also numerous allegations of improper conduct by the Bloomfield Police Department, including: that police officers were breaking into her house during the day and at night and were taking her personal possessions; that police officers were modifying her plumbing so that they could take random samples of water from her toilet, sink and shower; that her home security system had been modified to include a motion detector in her garage; that one morning she had turned on her lights and discovered a white powered substance on the floor at the entrance of her home; that police officers had placed a metal chain on her lawn to portray an image of slavery and imprisonment; that drug paraphernalia had been placed in her driveway; that she had awakened several mornings to find her right arm and the fingers of her left hand extremely sore, leading her to believe that police officers had entered her house at night and drugged her; and that she was under constant surveillance by police officers in unmarked vehicles and helicopters. The letter also stated that the plaintiff was a single mother whose seven-year-old son, who lived with her, had become too afraid to leave his bed at night because he had heard people moving around near or above his room at night.
The defendants also assert the following grounds, which are not considered in this memorandum: the plaintiff has not put forth evidence proving that the defendants' actions were tortious or that she suffered actual loss as a result of their conduct; the defendants' statements were not defamatory and were privileged; the plaintiff cannot prove that the defendants' conduct was extreme and outrageous or that she suffered from severe emotional distress; and that the defendants are entitled to government immunity.
In his affidavit in support of the instant motion, defendant Samsel avers that, prior to receiving the June 12, 2004 letter from the plaintiff, he was aware that she had previously made numerous similar reports to the Bloomfield Police Department, which, upon investigation, had revealed no criminal activity. Against that background, defendant Samsel maintains that, based upon the contents of the plaintiff's letter, he was reasonably concerned for the plaintiff's mental health and thought that she might be suffering from delusions. Since, moreover, the plaintiff had stated in her letter that her seven-year-old son was living with her and there were no other adults in the house, defendant Samsel was also concerned about the adverse effect the plaintiff's suspected mental condition might be having on her son. Specifically, since the letter stated that her son had complained of hearing and being afraid of sounds near or above his room, defendant Samsel suspected that the plaintiff's delusions might have begun to have a negative effect upon him. Defendant Samsel thus contacted DCF, discussed with them the plaintiff's letter and the references made in it to her son, and submitted a report of suspected child abuse or neglect.
The plaintiff argues in response that the defendants are not entitled to statutory immunity from suit in connection with defendant Samsel's report to DCF because they did not have reasonable cause to suspect child abuse or neglect, as required by General Statutes § 17a-101a. On this score, she argues that such reasonable cause was lacking because the defendants had no direct evidence that she had abused her son, that her son had suffered any nonaccidental physical injury or that her son was in imminent risk of serious harm. The plaintiff also asserts that defendant Samsel did not have good faith to suspect that she suffered from delusions. In her unsigned, unsworn "Affidavit," the plaintiff asserts that defendant Samsel's claim that she had a long prior history of making unfounded complaints to the Bloomfield Police Department was false, because on at least one prior occasion, when she had made a complaint of vandalism, the investigating officer from the Bloomfield Police Department found that a screen on one of her windows had been slashed.
III.
General Statutes § 17a-101(a) provides: "The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family." General Statutes § 17a-101a provides, in relevant part: "Any mandated reporter . . . who in the ordinary course of such person's employment . . . has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected . . . shall report or cause a report to be made . . . [to DCF]." The statute provides a comprehensive list of mandated reporters, including police officers. See General Statutes § 17a-101(b). Any person who makes a good faith report of child abuse pursuant to General Statutes § 17-101a is immune from liability, both civil and criminal. General Statutes § 17a-101e(b). If a person makes a false report of child abuse or neglect, that person can face a fine of up to $2,000 and/or a year in prison. General Statutes § 17a-101e(c).
The term "reasonable cause to suspect," as it is used in General Statutes § 17a-101a, has been interpreted by our Supreme Court to mean "reasonable suspicion." See Manifold v. Ragaglia, 272 Conn. 410, 429, 862 A.2d 292 (2004) (finding that a physician, who like a police officer is a mandated reporter of child abuse and neglect under § 17a-101a, had "complied with [the statute] when he relayed his findings, namely that there was a reasonable suspicion of child abuse, to [DCF] both orally and via written documentation") "Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion . . . Thus, [r]easonable and articulable suspicion is . . . based not on the officer's inchoate and unparticularized suspicion or hunch, but [on] the specific reasonable inferences which he is entitled to draw from the facts in light of his experience . . . What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances." (Internal quotation marks omitted.) State v. Hernandez, 87 Conn.App. 464, 470, 867 A.2d 30, cert. denied, 273 Conn. 920, 871 A.2d 1030 (2005).
In the present case, defendant Samsel averred that he was aware that the plaintiff had made several unsubstantiated reports of police misconduct against her and her property when he made his report to DCF. Considering that evidence, together with the allegations the plaintiff made in her June 12, 2004 letter to the Bloomfield Police Department, a reasonable person — not just a police officer — could reasonably suspect that the plaintiff might be suffering from some sort of mental illness which caused her to have delusions. Further, the plaintiff stated in her letter that she lived alone with her son and that he was afraid to leave his bed at night because of the noises he heard near and above his room. The child's alleged report of such fears to his potentially delusional mother, all reportedly based upon the hearing of noises seemingly caused by the same kinds of unseen, unknown intruders about whom the plaintiff was then complaining in her letter to the Bloomfield Police Department, could certainly lead a reasonable person to suspect that the plaintiff's suspected delusions had been communicated to and were frightening, and thus adversely affecting, her son.
As for the plaintiff's argument that defendant Samsel had no direct evidence of abuse or neglect of, or nonaccidental physical injury or imminent risk of harm to, her son, and thus no reasonable cause to suspect that she had abused or neglected him, nothing in General Statutes § 17a-101a requires a mandated reporter to have such direct evidence in order to have "reasonable cause to suspect" that a child has been abused or neglected. If direct evidence of abuse, neglect, nonaccidental physical injury or imminent risk were required to satisfy the reasonable cause to suspect requirement, the General Assembly would not have used the word "suspect" in drafting the statute. Indeed, requiring such direct evidence of abuse or neglect, as opposed to circumstantial evidence supportive of reasonable cause to suspect abuse or neglect, as a precondition to reporting would defeat the underlying purpose of the statute, which is to encourage the reporting of suspected child abuse or neglect to DCF so that its team of child welfare professionals can conduct a full investigation and, as necessary, take suitable action forthwith. In that way, the child can promptly and appropriately be protected from further abuse or neglect if the reporter's reasonable suspicion of abuse or neglect is confirmed or the cloud of suspicion can promptly be lifted from anyone suspected of abuse or neglect if the reporter's suspicion, however reasonable at the outset, is not confirmed. See General Statutes § 17a-101(a).
Further, with respect to the plaintiff's claim that she did not have a history of making unsubstantiated reports to the Bloomfield Police Department, the defendants submitted an incident summary report dated February 25, 2004, in which Sergeant Lostimolo responded to a call from the plaintiff in which she complained that she was being followed by police. In that report, Sergeant Lostimolo reported that he had reviewed each of the twenty-two prior cases in which the plaintiff had made reports to the Bloomfield Police Department and that each instance was satisfactorily investigated by the police with no positive results.
On the basis of the above-described submissions, the defendants have presented ample evidence to this Court tending to establish, as an objective matter, that when defendant Samsel made his reports to DCF concerning the plaintiff's potentially delusional mental state and her son's potential danger in her care, he had reasonable cause to suspect that the child was then and there being abused or neglected by her. The concern was not that she was beating her son or depriving him of food, clothing or shelter, but that she, as one who was quite possibly delusional, was sharing her delusions with her son and thus causing him to have frightful delusions of his own. This concern was certainly reasonable under all of the circumstances presented at the time of defendant Samsel's report, including, particularly, the contents of her recent letter considered in the light of her prior unsubstantiated claims of criminal activity on or near her home.
In addition to her contention that defendant Samsel did not have reasonable cause to suspect abuse or neglect, the plaintiff argues that a jury could reject the defendants' claim of statutory immunity if they found that defendant Samsel lacked good faith when making his report to DCF. In support of this contention, she argues, to reiterate, that defendant Samsel made his report to DCF without ever interviewing her or her son, without coming to her house to see if her son was in iniminent danger, and without consulting an expert in psychiatry or psychology.
In their reply to the plaintiff's opposition, the defendants first assert that General Statutes § 17a-101(b) does not require a mandated reporter to undertake an investigation and that an investigation will be done by the agency that receives the report. Secondly, the defendants assert that the plaintiff ignores the fact that, prior to her June 12, 2004 letter, defendant Samsel was aware of the numerous unsubstantiated claims the plaintiff had made and that the plaintiff had not refuted any of the statements made in her letter, which led defendant Samsel reasonably to believe that the plaintiff suffered from delusions and that such delusions were affecting her son. The defendants assert that it is undisputed that defendant Samsel was concerned for the mental health of the plaintiff's child, and thus his objectively reasonable report of suspected abuse or neglect to DCF was certainly made in good faith.
"[Good faith] is a subjective standard of honesty of fact in the conduct or transaction concerned, taking into account the person's state of mind, actual knowledge and motives . . . Whether good faith exists is a question of fact to be determined from all the circumstances . . . [H]owever, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact, even with respect to motive, intent or good faith." (Citations omitted; internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 359-60, 783 A.2d 28 (2001). "In common usage, the term `good faith' has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation." (Internal quotation marks omitted.) Kendzierski v. Goodson, 21 Conn.App. 424, 429, 547 A.2d 249 (1990).
The plaintiff has failed to put forth any evidence that would suggest that defendant Samsel did not act in good faith when he made the report of suspected child abuse to DCF. The fact that defendant Samsel took it upon himself to file a report with DCF in no way suggests that he did not act with good faith. To the contrary, such conduct comports with the purpose of the statute. As made clear by General Statutes §§ 17a-101 and 17a-101a, protecting children from child abuse is of such great concern to the state that the General Assembly has mandated that specific individuals, based upon their professions, report suspected child abuse to DCF. The purpose of affording mandated reporters statutory immunity is to encourage and facilitate the reporting of suspected child abuse and neglect. See Manifold v. Ragaglia, supra, 272 Conn. 421; see also Zamstein v. Marvasti, 240 Conn. 549, 559, 692 A.2d 781 (1997) (noting legislature's express purpose of encouraging the reporting of actual and suspected child abuse).
Regarding the plaintiff's claim that Samsel did not conduct an investigation, "[n]othing in the General Statutes requires a mandated reporter to undertake such further investigation . . . [General Statutes § 17a-101g(a)] provides that the investigation will be made by the agency receiving the report, not by the reporting [officer]." (Internal quotation marks omitted.) Morales v. Kagel, 58 Conn.App. 776, 781-82, 755 A.2d 915 (2000); see also Parisi v. Johnsky, Superior Court, judicial district of New Haven, Docket No. CV 054009374 (February, 20, 2007, Cosgrove, J.) (recognizing that mandated reporters do not have duty to undertake investigations). Imposing a duty upon mandated reporters to investigate "would necessarily run contrary to the state's policy of encouraging the reporting and investigation of suspected child abuse, as expressed in § 17a-101"; Zamstein v. Marvasti, supra, 240 Conn. 561; and would create the risk that reporters would simply conclude that no abuse had occurred out of fear of potential liability to suspected abusers. Id., 560-61; see also Ward v. Greene, 267 Conn. 539, 561, 839 A.2d 1259 (Palmer, J., concurring) ("The legislature provided for such immunity because of the highly sensitive, and necessarily discretionary, nature of the reporting requirement"). Accordingly, the fact that defendant Samsel did not undertake any investigation before making a report to DCF does not create a genuine issue of material fact as to whether he acted in good faith when making his report.
IV.
Since the evidence presented by the defendants establishes that defendant Samsel acted in good faith, with reasonable cause to suspect child abuse or neglect, when he made his report concerning the plaintiff and her son to DCF, and the evidence presented by the plaintiff does not raise a genuine issue of material fact as to whether Samsel had such reasonable cause or acted in good faith, the defendants are immune from liability pursuant to General Statutes § 17a-101e(b).
For the foregoing reasons, the defendants' motion for summary judgment must be GRANTED. IT IS SO ORDERED this 22nd day of March, 2011.