Opinion
No. CV 03 0195684 S
June 16, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#112)
Christopher Stanwich has filed a twelve-count first revised complaint against several defendants, including Adrienne G. Smaller, in which he alleges the following facts. The plaintiff and his wife, Holly Ann Stanwich, have an action for divorce pending in the Connecticut Superior Court. The defendant made disparaging remarks about the plaintiff in correspondence dated April 1, 2002, to Rueben Midler, the attorney representing Holly Ann Stanwich in the divorce action. In that correspondence, the defendant made the following statements: Statement #1: "At the request of Mrs. Holly Stanwich I am writing in regard to my concerns regarding the safety of Madison Stanwich while in the custody of her father, Mr. Stanwich." Statement #2: "There have been a number of incidents, culminating with the hospitalization of her brother, Christopher that has lead to these concerns." In counts one, three, five and seven of the revised complaint the plaintiff alleges defamation, libel per se, intentional infliction of emotional distress and negligent infliction of emotional distress, respectively, against the defendant. Each of these claims is based on the publication of the written statements made by the defendant in the April 1, 2002, correspondence to Attorney Midler.
Several other parties are named as defendants, but the motion now before the court is brought by defendant Adrienne G. Smaller only. Any reference to the defendant is solely to Adrienne G. Smaller.
The defendant filed a motion to strike counts one, three, five and seven of the plaintiff's first revised complaint, contending that count one for defamation and count three for libel per se are legally insufficient because the statements at issue are opinions and absolutely privileged. Additionally, the defendant moves to strike count three on the ground that the plaintiff failed to allege that the statements charged that the plaintiff committed a crime or related to the plaintiff's profession. The defendant asserts that count five for intentional infliction of emotional distress must fail because the conduct alleged does not rise to the level of extreme and outrageous conduct. Finally, the defendant claims that count seven for negligent infliction of emotional distress must also fail because the defendant did not owe a duty of care to the plaintiff.
It is well established that "[t]he purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). A motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court "take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Bhinder v. Sun, Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., supra, 292.
Defamation
The defendant moves to strike count one of the first revised complaint for defamation on the ground that the statements are not defamatory because they are a statement of her opinion, not statements of fact. The defendant also moves to strike count one on the ground that the statements are protected by absolute privilege in that they were made in the course of a judicial proceeding. In opposition, the plaintiff maintains that the alleged statements are statements of fact, not opinion. Additionally, the plaintiff argues that the statements are not absolutely privileged in that they were unsolicited and not made during the course of a judicial proceeding.
"Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill, or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc., v. St. Germaine, 77 Conn. App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003). "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
For a statement to be considered defamatory, it "must convey an objective fact, as generally, a defendant cannot be held liable for expressing mere opinion." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). A threshold issue, therefore, is whether the statements made by the defendant are statements of fact or mere opinion.
"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, 448 A.2d 1317 (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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 111-12.
In the present case, the defendant's expression of concern in Statement #1 is an opinion that is based on the statement of fact in Statement #2 that Christopher Stanwich has been hospitalized several times. An ordinary person reading these statements in conjunction would understand them as the opinion of the defendant, rather than a statement of existing fact, and therefore the court grants the motion to strike count one of the first revised complaint. Because the statements made were an expression of opinion rather than fact, it is unnecessary for the court to address the defendant's remaining grounds for striking count one of the complaint.
Libel Per Se
The defendant next moves to strike count three of the first revised complaint for libel per se on the same ground that the statements were opinions and absolutely privileged and, in addition, that the plaintiff inadequately pleads libel per se because he fails to allege that the statements charged the plaintiff with a crime or related to his profession or business. He merely claims that the statements are libel per se because they disparage the plaintiff's "reputation and integrity as a parent and a human being." The plaintiff once again argues that the statements were not privileged because they were unsolicited and not made during the course of a judicial proceeding. The plaintiff further asserts that the statements clearly imply that he has placed his child at risk of physical injury, a crime which is classified as a felony under the laws of the State of Connecticut.
General Statutes § 53-21 provides in relevant part: "(a) Any person who (1) willfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child to under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony for a violation of subdivision (1) . . . of this subsection and a class B felony for a violation of subdivision (2) of this subsection."
"Libel per se . . . is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of damages." Lega Siciliana Social Club, Inc., v. St. Germaine, supra, 852. Such statements may not be "varied or enlarged by innuendo." Proto v. Bridgeport Herald Corp., 136 Conn. 557, 565, 72 A.2d 820 (1930). "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 or calling." Id., 565-66.
As a preliminary matter, however, "[b]efore a party will be held liable for libel, there must be an unprivileged publication of a false and defamatory statement." (Emphasis added.) Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984). Because, as already discussed, the statements at issue are mere opinions rather than statements of fact, they are not defamatory. The motion to strike count three of the first revised complaint is granted. Since the statements are not defamatory, and, therefore, not libelous per se, it is unnecessary for the court to address the defendant's remaining grounds for striking count three.
Intentional Infliction of Emotional Distress
The defendant next moves to strike count five of the first revised complaint on the ground that her conduct does not rise to the level of extreme and outrageous conduct required for a claim of intentional infliction of emotional distress. In count five, the plaintiff alleges that the defendant sent a letter to Attorney Midler with the knowledge that the statements contained therein were false and that they would cause the defendant emotional distress. The plaintiff further alleges that the defendant made a recommendation that he be kept away from his minor child without having met or spoken to the plaintiff prior to making that recommendation.
To "maintain a cause of action for intentional infliction of emotional distress, the plaintiff must establish four elements. 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 likely the result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Berube v. Nagle, 81 Conn. App. 681, 697-98, 841 A.2d 724 (2004).
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society." (Internal quotation marks omitted.) Id., 698. "Liability . . . has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004).
There can be no doubt that an accusation, whether express or implied, of child abuse against a parent is an insulting and upsetting experience. Likewise, a suggestion from a mental health professional that a child may be unsafe in his parent's care is hurtful to the parent. Nonetheless, "[c]onduct 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." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003) (finding that an insurance company investigator did not act in an extreme and outrageous manner when he failed to conduct a thorough investigation, determined that the plaintiff had deliberately set fire to his own home, and made negative comments about the plaintiff which could have been construed as racially motivated). Because the conduct of the defendant does not exceed all bounds usually tolerated by decent society, the motion to strike count five is granted.
Negligent Infliction of Emotional Distress CT Page 9739
Lastly, the defendant moves to strike count seven of the revised complaint on the ground that she owes no duty of care to the plaintiff and, therefore, cannot be liable for negligent infliction of emotional distress. The plaintiff argues that as the representative of his minor child the defendant has a duty not to cause the plaintiff injury while treating his child.The elements of a claim of negligent infliction of emotional distress are: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., supra, 444. "There can be no actionable negligence, however, unless there exists a cognizable duty of care." Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). "Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).
In Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997), the Connecticut Supreme Court held that mental health professionals engaged to evaluate whether there has been sexual abuse owe no duty of care to the suspected abuser. The court acknowledged the hardship placed on those falsely accused, but stated that the focus must be on the individual being evaluated. Id., 563-64. "The primary responsibility of such professionals is to determine whether the child has been sexually abused. They should not be distracted from their duty by the specter of the potential liability to the suspected abuser in the event their assessment of the child eventually turns out to be incorrect but honest." Id., 564.
In the present case, the defendant was hired by, and the statements made at the request of, Holly Ann Stanwich. Although the defendant was not hired to specifically evaluate the Stanwich children for indicia of sexual abuse, the defendant's duty nonetheless ran to the children she was treating, not the plaintiff. As in Marvasti, a therapist should not be restricted in expressing her concern for a patient's safety because of the possibility of liability to the person causing that concern. Moreover, a therapist should not be restricted in expressing her concern for her minor patient's safety simply because the cause for concern is the minor's parent.
The defendant may, in fact, have suffered injury as a result of the statements made by the defendant. "While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 45-46, 675 A.2d 852 (1996). Since the defendant owed no duty of care to the plaintiff, the motion to strike count seven of the first revised complaint is granted.
D'ANDREA, J.T.R.