Opinion
No. CV 08 5007926
February 20, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #113
The plaintiffs, Timothy Shea, Karen Kurkie, and Lee Levesque, brought this action against the defendants, Neil O'Leary (O'Leary), Michael Jarjura (Jarjura), and the City of Waterbury (Waterbury), filing a forty-four count complaint for allegedly defamatory statements made by the defendants. In an amended complaint dated August 1, 2008, the plaintiffs allege the following facts. The plaintiffs are former police officers for Waterbury and were all granted disability pensions between 2003 and 2005. On October 12, 2006, during a Waterbury retirement board meeting, the defendant O'Leary, the current superintendent of Waterbury's police department, in his capacity as superintendent, stated that the plaintiffs were "making a farce out of [the disability retirement] system" by receiving disability pensions from the city. He went on to say that he thought the plaintiffs' receipt of benefits was "a slap in the face to everybody who pays Waterbury taxes." The statements were then published in a local newspaper, the Waterbury Republican-American.
On the same day, the defendant Jarjura, the mayor of Waterbury, acting in his capacity as the mayor, stated that the plaintiffs appeared to be "gaming" the city's disability pension system. His statements were also published in the Waterbury Republican-American. The complaint further alleges that the statements made by both men were untrue and grossly misleading. On September 11, 2007, the plaintiffs asked both men to retract their statements and requested that they have their retraction published in the Waterbury Republican-American. Both men refused the request.
In June 2006, prior to the hearing, the plaintiff Shea had applied for employment as constable with the city of Woodbury. The plaintiff Levesque had also applied in September 2006 for employment with AKAL Security as a security guard. Neither plaintiff received offers of employment. The plaintiffs allege that the defendants O'Leary and Jarjura, and the defendant Waterbury through the actions of O'Leary and Jarjura, are liable for their actions based on the following theories: (1) negligent and intentional defamation; (2) negligent and intentional invasion of privacy; (3) negligent and intentional false light; and (4) negligent and intentional infliction of emotional distress. The plaintiffs Shea and Levesque, but not Kurkie, further assert claims of tortious interference of business relations against all three defendants.
Before the court is the defendants' motion to strike the entire complaint on the following grounds: (1) that the statements made by the defendants were made in the course of a quasi-judicial proceeding and therefore privileged; and (2) that the statements were merely opinion and accordingly insufficient to support the plaintiffs' defamation claims. The defendants also seek to strike the plaintiffs' claims for intentional infliction of emotional distress (counts fourteen, twenty-eight, and forty-two) and negligent infliction of emotional distress (counts eleven through thirteen, twenty-five through twenty-seven and thirty-nine through forty-one) on the ground the plaintiffs have not alleged facts demonstrating extreme and outrageous behavior.
At oral argument, the plaintiffs withdrew their objection to this motion to strike on the ground that this is the defendants' second motion to strike.
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 (2003). In ruling on a motion to strike "we construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667 (2000). "Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." Id. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M Services, Inc., 268 Conn. 283, 293 (2004).
CT Page 5356
A Quasi-Judicial Proceedings
The defendants first argue that their statements were made in connection with a hearing before Waterbury's retirement board, which is a quasi-judicial proceeding making the statements privileged and the defendants absolutely immune from liability. The plaintiffs contend that there are not enough facts in the complaint for the court to determine whether the retirement board meeting constitutes a quasi-judicial proceeding and that the onus is on the defendants to provide additional facts in support of such a contention. The plaintiffs further argue that while they allege in their complaint that the defendant O'Leary made his statements during the course of the retirement board meeting, they do not allege that the defendant Jarjura made his statements during the same meeting. Thus, they argue, that because the court is limited to the facts alleged in the complaint, the defendant Jarjura cannot assert privilege at this time because there are no facts in the complaint to support Jarjura's claim that he made the statements during the course of a quasi-judicial hearing."In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein." Field v. Kearns, 43 Conn.App. 265, 271, cert. denied, 239 Conn. 942 (1996). "The effect of an absolute privilege in a defamation action . . . is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 788 (2005).
"The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of administrative officers, such as boards and commissions, so far as they have the powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character . . . In addition, [the Supreme Court] previously has delineated several factors that assist in determining whether a proceeding is quasi-judicial in nature. These factors include whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders or judgments; (4) affect the personal property rights of private persons; (5) examine witnesses and hear the litigation of issues on a hearing; and (6) enforce decisions or impose penalties . . . Further, it is important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides." (Citations omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84-85 (2004). "[W]hether a particular proceeding is quasi-judicial in nature, for the purposes of triggering absolute immunity, will depend on the particular facts and circumstances of each case." Id., 83-84.
Superior Court decisions have traditionally placed the onus on the defendant to plead and prove privilege by reaching the conclusion that a motion to strike is not the proper vehicle to determine whether an alleged defamatory statement is absolutely privileged. Forgione v. Bette, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001099 (June 2, 2005, Gallagher, J.); see also Stapleton v. Monro Muffler, Superior Court, judicial district of Hartford, Docket No. 98 0580365 (October 22, 1998, Fineberg, J.). They base their reasoning on the Appellate Court's determination that "[p]rivilege is an affirmative defense in a defamation action and must, therefore be specially pleaded by the defendant." Miles v. Perry, 11 Conn.App. 584, 594 n. 8, 592 A.2d 199 (1987); see Meehan v. Yale New Haven Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 95 0320418 (March 12, 1996, Hartmere, J.) (16 Conn. L. Rptr 437).
On the other hand, in Dlugokecki v. Vieira, Superior Court, judicial district of Waterbury, Docket No. CV 04 0184600 (July 7, 2005, Matasavage, J.), aff'd, 98 Conn.App. 252, 259, cert. denied, 280 Conn., 951 (2006), the court determined that "a motion to strike [was] the proper procedure" to bring a privilege defense and on that basis after analyzing the statutory scheme addressing municipal wetlands commissions, found that a municipal wetlands commission proceeding was a quasi-judicial proceeding. On appeal, the Appellate Court did not address the trial court's determination that the motion to strike was the proper vehicle for asserting a privilege claim and declined to reach the issue as to whether the trial court made the correct determination that a municipal wetlands commission proceeding was a quasi-judicial proceeding. Dlugokecki v. Vieira, 98 Conn.App. 252, 255 n. 2 257 cert. denied, 280 Conn. 951 (2006). Additionally, at the trial level, in Dlugokecki v. Vieira, supra, Superior Court, Docket No. CV 04 0184600, the Superior Court went on to cite several cases where motions to strike had been granted on the basis of privilege. In those cases, however, as opposed to the present case, the courts were able to ascertain, on the face of the pleadings as a matter of law that the proceedings in question were quasi-judicial or judicial because (1) the statements were made in an open court proceeding such as a divorce proceeding; see CT Page 5358 Curry v. Turyek, Superior Court, judicial district of New Britain, Docket No. CV 02 517359 (February 26, 2003, Bryant, J.); (2) the appellate courts had already made a determination as to whether the proceeding in question was a quasi-judicial proceeding; see Albert v. Shaikh, Superior Court, judicial district of Hartford, Docket No. CV 03 0825352 (November 25, 2003, Sheldon, J.) (determining that an internal affairs investigation was a quasi-judicial proceeding based on Supreme Court precedent but denying the motion to strike on the basis that it was not apparent from the complaint that the statements were made during an internal affairs investigation); or (3) the proceeding in question was governed by a statutory or regulatory scheme delineating requisite procedures allowing the court to make a determination as the five factors based on law alone. See Dlugokecki v. Vieira, supra, Superior Court, No. CV 05 0184600; see also Raye v. Wesleyan University, Superior Court, judicial district of Middlesex, Docket No. CV 02 0098865 (April 10, 2003, Aurigemma, J.).
None of the aforementioned scenarios exist in the present case. The appellate courts have not made a determination as to whether a municipal retirement board is a quasi-judicial proceeding, and there is no statutory scheme governing municipal boards in which the court can assess the five factors and make a determination. See Turner v. Dannenhoffer, Superior Court, judicial district of New Haven, Docket No. CV 05 5001048 (July 25, 2007, Robinson, J.). Simply put, the court cannot evaluate the proceeding in light of the five factors laid out by our Supreme Court on the face of the complaint. Thus, because the court is limited to the facts in the complaint; Faulkner v. United Technologies Corp., supra, 240 Conn. 580; and because the defendants must specially allege privilege and the "[f]acts which are consistent with [statements in the complaint] but show, notwithstanding, that the plaintiff has no cause of action . . ."; Practice Book § 10-50; the defendants' motion to strike the complaint on this ground is denied. The court does not reach the plaintiffs' argument regarding the defendant Jarjura's presence at the meeting because the motion to strike has been denied on an alternative ground.
B Fact v. Opinion
The defendants next argue that in order to prevail on a claim for defamation the plaintiffs must show that the statements made by the defendants were statements of fact. The defendants argue that the statements made by the defendants were opinion statements rather than factual statements and because opinion statements are not defamatory, the plaintiffs have not met the requisite elements necessary for a defamation claim. In response, the plaintiffs do not characterize the statements as factual statements, instead, they argue that opinion statements can be actionable if the statements imply that undisclosed defamatory facts were the basis for the opinion statements. Specifically, the plaintiffs argue that the statements made by the defendants are actionable because they imply the existence of undisclosed defamatory facts that formed the basis for those statements.
"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.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846 (2005). Additionally, "[t]o be actionable, 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 (1999).
"A statement can be identified 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 . . . In a libel action, such 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." (Citations omitted; emphasis in original.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111 (1982). "This distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains an 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 . . . Thus, while this distinction may be somewhat nebulous . . . [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." (Citation omitted, internal quotation marks omitted.) Id., 111-12.
"A defamatory communication may [however] consist of a statement in the form of an opinion [and] a statement of this nature is actionable . . . if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." Restatement (Second), Torts, Expressions of Opinion, § 565, p. 170 (1976); see also Kimber v. Bancroft, Superior Court, judicial district of New Haven, Docket No. CV 01 0455708 (June 25, 2004 Corradino, J.). The Supreme Court, albeit in the different context of "fair comment," noted that an "an opinion must be based upon facts; if the facts are neither known nor stated, then a defamatory opinion implies that there are undisclosed defamatory facts which justify the opinion . . . The damage of such an implication is that the person defamed becomes the victim of the prejudiced and distorted judgment of not only the defamer, but also of everyone who hears and believes the opinion without knowing it is based on incorrect and untrue facts." (Citations omitted.) Goodrich v. Waterbury Republican American, Inc., supra, 188 Conn. 118 (1982). In short, "expressions of `pure' opinion (those statements based upon known or disclosed facts) are guaranteed virtually complete constitutional protection." Id. On the other hand, opinion statements that "imply knowledge of existing facts" are not protected and can ultimately be considered as defamatory as pure factual statements. Santoro v. Storm, Superior Court, judicial district of New Haven, Docket No. CV 05 4011040 (January 10, 2007, Licari, J.).
In the present case, it is not apparent from the face of the complaint the context in which the statements were made and whether the statements made by the defendants were based on facts that were stated or known thereby transforming them into pure opinion statements. Because the court is limited to the facts in the complaint and because, as pleaded by the plaintiffs and as read in a light most favorable to them, the statements alleged in the complaint are not necessarily pure opinion statements, the defendants' motion to strike is denied.
C Defamation Per Se
The defendants argue that the plaintiffs have not alleged the requisite elements in support of their claims for defamation per se because they have not alleged that the defendants made statements conferring criminal acts upon the plaintiffs or statements that would injure the plaintiffs' profession. The plaintiffs argue that the statements are defamatory per se because they diminish the esteem, respect, goodwill or confidence in which the plaintiffs are held, and they excite adverse, derogatory, or unpleasant feelings or opinions against them. The plaintiffs cite the appellate court case Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851-52, cert. denied, 267 Conn. 901 (2003) in support of this contention.
Oral defamation, such as alleged in this case, is slander; written defamation is libel. See Lega Siciliana Social Club, Inc. v. St. Germaine, supra, 77 Conn.App. 852.
"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, supra, 77 Conn.App. 851-52. "While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod . . . A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication . . . When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover." Id., 582. The damages "must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed and that conduct must be directly caused by the publication . . ." Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952).
"Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St Germaine, supra, 77 Conn.App. 851-52.
"Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached." (Internal quotation marks omitted). Lega Siciliana Social Club, Inc. v. St. Germaine, supra, 77 Conn.App. 853. To fall within the category of libels that are actionable per se because they injure a man's profession, it must be a statement that "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, cert. denied, 271 Conn. 915 (2004).
In Lega Siciliana Social Club, Inc., the Appellate Court found that statements made by the defendant indicating that the plaintiff had ties to the mafia and that the plaintiff rubber stamped whatever the mafia desired constituted libel per se. The court stated that the statements were "of the type that will diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against [it]." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc., supra, 77 Conn.App. 854-55.
In the present case, the defendant Jarjura stated that the plaintiffs were "gaming" the city's disability pension system. This is the type of statement, similar to the statements in Lega Siciliana Social Club, Inc., that diminishes the "esteem, goodwill or confidence in which the plaintiff is held, or excite adverse, derogatory, or unpleasant feelings or opinions against him." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, supra, 77 Conn.App. 851-52. The phrase "gaming" carries negative connotations akin to improper conduct or lack of integrity on the part of the plaintiffs that could cause injury to their professional reputation. The root word "game" is defined in Webster's Dictionary as an "illegal or shady scheme or maneuver." Merriam-Webster's Collegiate Dictionary (10th Ed. 1998). It is further defined as "to take dishonest advantage of" and is synonymous with the word "cheat." Merriam-Webster's Collegiate Dictionary (11th Ed. 2006). Indeed, one Superior Court has determined that the word "cheat" is "libelous per se." Thorpe v. Inflopulse, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0193922 (April 22, 2004, Grogins, J.). Other courts have reached similar conclusions that statements insinuating dishonest or unethical behavior are indicative of alleging improper conduct or a lack of integrity, and constitute libel per se. See Miles v. Perry, 11 Conn.App. 584, 604 (allegations that plaintiff misappropriated or mismanaged funds while employed as accountant could be construed as allegations of improper conduct or insinuations that plaintiff lacked integrity, thus damaging her professional reputation); Ambrozaitis v. Lord, Superior Court, judicial district of Waterbury, Docket No. CV 05 4004557 (March 21, 2007, Gilligan, J.) (determining that allegations by defendant that attorney plaintiff obtained documents from incompetent client called into question plaintiff's trustworthiness and portrayed him as attorney who engaged in improper conduct).
Admittedly, the court is aware that this is a close question, and that such a statement could carry other meanings that do not necessarily have the same derogatory implications. Nevertheless, the court is required to construe the pleadings in favor of the plaintiffs; Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997); and, in doing so, the court concludes that the statements are legally sufficient to support a claim of defamation per se. Accordingly, the plaintiffs have alleged enough facts to support their claims for defamation per se against the defendants Jarjura and Waterbury (through Jarjura's actions) and the defendants' motion to strike the plaintiffs' claims for defamation per se against Jarjura and Waterbury is denied as to counts three, four, five, seventeen, eighteen, nineteen, thirty-one, thirty-two and thirty-three is denied.
On the other hand, the statements allegedly made by the defendant O'Leary do not, on their face, carry similar connotations. The defendant O'Leary stated that the plaintiffs were "making a farce out of [the disability retirement] system" and that the plaintiffs' conduct was "a slap in the face to everybody who pays Waterbury taxes." Webster's Dictionary defines the word "farce" as synonymous with the word "mockery" and it defines the word "slap" as synonymous with the word "insult." Merriam-Webster's Collegiate Dictionary (10th Ed. 1998). These words, while not becoming to plaintiffs, do not, by definition, imply a similar level of improper conduct or a similar lack of integrity as the words used by the defendant Jarjura. Nor do they carry the same potential of causing injury to the plaintiffs' profession. Nor can it be said that such statements imply that the plaintiffs committed any crimes of moral turpitude. The general rule has long been that such words of general abuse, regardless of how rude, uncouth or vexatious are not slanderous per se and cannot support recovery in a slander action in the absence of a showing of special damages. Moriarty v. Lippe, 162 Conn. 371, 385 (1972). Construing the complaint liberally in favor of the plaintiffs, the statements, at best, are examples of slander per quod but do not rise to the level of slander per se. Thus, the plaintiffs are required to plead special damages. "The special damage, to which we now refer, must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and that conduct must be directly caused by the publication of the slander." Urban v. Hartford Gas Co., 130 Conn. 301, 308 (1952).
In the present case, in their defamation counts, the plaintiffs have pleaded general damages in the form of mental distress, harm to their reputation, anxiety, and humiliation, however, they have failed to plead, in their defamation counts, specific pecuniary harm or a specific economic loss required for a claim of defamation per quod. See Accurso v. Gallo, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 075009983 (December 29, 2008, Lager, J.) (granting motion to strike slander per quod claim where complaint is devoid of factual allegations for requisite element of special damage) See also Santoro v. Storm, Superior Court, judicial district of New Haven, Docket No. CV 054 011040 (January 10, 2007, Licari, J.) (finding that pleading damages in the form of mental distress and harm to their reputation is insufficient to support action of common-law defamation). Compare Ambrozaitis v. Lord, Superior Court, judicial district of Waterbury, Docket No. CV 05 40044557 (October 3, 2006, Brunetti, J.) (denying motion to strike libel per quod claims for failure to allege damages where plaintiff alleged that he suffered economic damages); see also Cavallaro v. Rosado, Superior Court, judicial district of New Haven, Docket No. CV 05 4009939 (October 5, 2006, Robinson, J.) (concluding that allegations of harm to reputation and that plaintiff suffered economic damages were enough to support claim for libel per quod).
In their defamation counts, the plaintiffs have not alleged special damage and, therefore, have failed to sufficiently allege the appropriate damages to support their claims for defamation per quod against the defendant O'Leary in counts one, two, fifteen, sixteen, twenty-nine and thirty. The motion to strike as those counts is granted.
D Intentional Infliction of Emotional Distress
The defendants contend that the plaintiffs' claims for intentional infliction of emotional distress found in counts fourteen, twenty-eight and forty-two are insufficient because the plaintiffs have failed to allege sufficient facts showing extreme and outrageous behavior, a necessary element for intentional infliction claims.
To bring a claim for intentional infliction of emotional distress the plaintiff must show that "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Pathan v. Ellis, 200 Conn. 243, 253 (1986). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him 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.) Appleton v. Board of Education, 254 Conn. 205, 210-11 (2000). "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 . . ." Carnemolla v. Walsh, 75 Conn.App. 319, CT Page 5365 331, cert. denied, 263 Conn. 913 (2003).
The Appellate and Supreme Courts have set a high bar for establishing extreme and outrageous behavior. In Carnmello v. Walsh, supra, 75 Conn. 332-33, the Appellate Court held that the defendant's action of accusing the plaintiff of embezzling funds and requesting that the plaintiff sign a resignation and release was not extreme and outrageous conduct. Similarly, in Dollard v. Board of Education, 3 Conn.App. 550, 552-54 (2001), the Appellate Court determined the defendant employer's actions of publicly admonishing the plaintiff, organizing a plan to force her to resign, and hypercritically examining every detail of the plaintiff's life was not extreme and outrageous.
In Appleton v. Board of Education, supra, 254 Conn. 210-11, the plaintiff was subjected to condescending statements and psychiatric evaluations by her employer, escorted off the defendant's property by police and asked to resign, and yet the Supreme Court determined that this behavior was not extreme and outrageous. Additionally, in Carroll v. Allstate Ins. Co., 262 Conn. 433, 441 444 (2003), the Supreme Court held that where an insurer conducted an impulsive racially motivated investigation against the plaintiff and in the course of the investigation subjected the plaintiff to harassing interviews and inspections insinuating criminal behavior, the insurer was not acting extreme or outrageous.
In the present cage, the alleged behavior is offending than the conduct in Appleton v. Board of Education, supra, 254 Conn. 211, Carroll v. Allstate, supra, 262 Conn. 441 444, or Carnemolla v. Walsh, supra, 75 Conn.App. 332-33. At best, the defendants were directing insults toward the plaintiffs and arguably may have been insinuating immoral or criminal behavior on the part of the plaintiffs. Our Supreme Court, however, has determined that while this type of behavior might be hurtful, it is not extreme and outrageous. See Appleton v. Board of Education, supra, 254 Conn. 211. Accordingly, the plaintiffs have failed to allege facts demonstrating extreme and outrageous behavior on the part of the defendants, and as a result the defendants' motion to strike counts fourteen, twenty-eight and forty-two is granted.
E Negligent Infliction of Emotional Distress
The defendants assert the same basis for striking the plaintiffs' claims for negligent infliction of emotional distress as they do for striking the claims for intentional infliction of emotional distress, that is, failure to provide sufficient facts showing extreme and outrageous behavior. The plaintiffs counter that they have alleged sufficient facts to demonstrate extreme and outrageous behavior. Both parties, however, misstate the standard for alleging and proving negligent infliction of emotional distress claims.
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants conduct, the defendants' should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Emphasis added; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410 (2005).
"Thus, a pivotal difference between claims for emotional distress based on intentional conduct and those based on negligent conduct is that an essential component of an intentional infliction claim is that the defendant's alleged behavior must be extreme and outrageous. A claim based on the negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable harm. Thus, to survive a motion to strike, a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 7, cert. granted, 273 Conn. 914 (2005). "Although there may still be some controversy as to whether `extreme and outrageous' conduct is necessary to support a claim of negligent infliction of emotional distress . . . the trend . . . and . . . the specifically binding authority of Olsen, suggest that the `extreme and outrageous' character of the conduct is not required to prove a claim of negligent infliction of emotional distress." (Citations omitted.) Berte v. Haddam Hills Academy, Inc., Superior Court, complex litigation at Middlesex, Docket No. X04 CV 02 0097138 (December 16, 2005, Beach, J.) [40 Conn. L. Rptr. 565].
Colorable claims for negligent emotional distress have been found where (1) false allegations were made by a defendant in the course of an investigation into the plaintiff's conduct at work; Forgione v. Bette, supra, Superior Court, Docket No. CV 04 4001099; (2) letters containing false and disparaging comments written by a defendant about an attorney's mental health were sent to the bar counsel for the statewide grievance committee; Gaide v. Flanagan, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 03 4022297 (July 27, 2007, Langenbach, J.); or (3) where a defendant "falsely accused the plaintiff of making inappropriate statements while at work" and "told a group of employees that the plaintiff was fired for harassment." (Internal quotation marks omitted.) Lord v. Lowes Home Centers, Superior Court, judicial district Waterbury, Docket No. CV 06 5002569 (July 12, 2007, Upson, J.) Allegations that an employer made false allegations about an information technology employee pertaining to his responsibility for computer problems in the course of his employment have been sufficient to establish a claim for negligent infliction of emotional distress. Singhaviroj v. Fairfield Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV 05 4007480 (October 25, 2007, Radcliffe, J.).
The plaintiffs have alleged the defendants made false statements insinuating the plaintiffs were committing fraud upon the retirement system. These allegations are sufficient to show unreasonable conduct on the part of the defendants. The plaintiffs have set forth the requisite elements of a claim for negligent infliction of emotional distress and on that basis the motion to strike counts eleven though thirteen, twenty-five through twenty-seven and thirty-nine through forty-one is denied.
CONCLUSION
For the foregoing reasons the motion to strike the entire complaint is denied.
Counts 1, 2, 14, 15, 16, 28, 29, 30, 42 is granted.
Counts 3, 4, 5, 11, 12, 13, 17, 18, 19, 25, 26, 27, 31, 32, 33, 39, 40, and 41 is denied.