Opinion
KNLCV126011937
06-02-2016
Tracy R. Swain v. Edward R. Haberek, Jr. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE TOWN OF STONINGTON'S MOTION FOR SUMMARY JUDGMENT
Timothy D. Bates, J.
INTRODUCTION
On April 23, 2012, the plaintiff, Tracy R. Swain, filed a revised complaint in this matter alleging that the defendant, Edward Haberek, Jr., while serving as First Selectman of the Town of Stonington (hereinafter " the Town"), had negligently afflicted emotional distress upon her. The second and third counts of her complaint named the Town as a defendant. She alleged in the Second Count that pursuant to C.G.S. Sec. 7-465 and the doctrine of respondeat superior, the Town was liable for the acts of its agent, Haberek, and therefore, was responsible for her injuries. In the Third Count, she alleged that the Town had acted negligently and was thereby liable for her injuries.
The factual allegations against Haberek in the First Count were largely incorporated by reference in the Second and Third Counts against the Town. The plaintiff alleged that, " On various dates prior to January 12, 2010, the defendant had telephonic and electronic discussions with the plaintiff and sent her numerous electronic communications, including emails, text messages and Facebook messages from his computer and telephone and/or Blackberry device." Para. 3. She then charged, " On January 12, 2010, after the plaintiff chose to end the said email correspondence and Facebook messages and told the defendant to cease and desist from sending such communications, the defendant sent her a sexually graphic photo of himself ..." Para. 4. As a result of these communications, she asserted that she had suffered " emotional distress" and " physical illness, including migraine headaches ..." Para. 8. She also claimed she has incurred medical expenses and her enjoyment of life has been impaired. Para. 10. Further, she alleged some of these injuries and damages are permanent in nature. Para. 11.
In the Second Count, Swain alleged that Haberek's actions " ... were done using equipment owned by the Town of Stonington" and with " a telephone number assigned to the Town." Para. 12. In Paragraph 14, the plaintiff alleged that Habarek, as First Selectman, was--in using the equipment for the sending of the disturbing texts and photos--" ... acting as an agent of the Town and/or within course and scope of his agency and/or employment ..." Para. 14. She further claimed that the Town " ... assumed liability for Haberek's act in sending the photograph ..." when it appeared in " ... a legal action, entitled Swain v. Cellco Partnership ... and averred or implied that the defendant Haberek was an agent of the Town at the time of said occurrences." Para. 15. Based on this alleged " agency" of the Town, the plaintiff stated that the Town had become legally responsible for the damages suffered.
The Third Count incorporated certain allegations from the first two counts, and then asserted the claim that the injuries and damages incurred were caused by the " ... Town, its agents, servants and/or employees, in one or more of the following ways, in that they:
a. allowed Mr. Haberek to contact the plaintiff inappropriately and to transmit a graphic photo(s) via Town equipment;
b. failed to monitor the First Selectman's electronic and/or telephonic communications with third parties such as the plaintiff;
c. failed to have a policy or enforce its own policy regarding proper use of Town telephones and/or Blackberry, computers, emails, text messaging or other electronic means of communication;
d. failed to have or enforce an ethics policy regarding use or abuse of Town equipment or resources. Para. 10.
The Town now moves for summary judgment on Counts Two and Three, claiming that the facts as pled do not establish the Town's liability.
ANALYSIS
1. Did the Plaintiff File a Timely Notice of Claim Against the Defendant Town in Compliance with C.G.S. Section 7-465?
In support of its Motion for Summary Judgment, the Town claims that the plaintiff Swain did not comply with the mandatory notice requirements of C.G.S. Sec. 7-465. The Town contends that municipalities are generally protected from damage claims, such as this one, by the doctrine of sovereign immunity. However, the plaintiff claims the benefit of a statutory exception to sovereign immunity, C.G.S. 7-465, which allows personal injury suits to be brought against a municipality within two years of the alleged injury. But the defendant Town notes that to take advantage of this exception, a notice of the claim must have been " ... filed with the clerk of such municipality within six months after said cause of action has accrued." Id.
In this case, the act complained of--the forwarding of sexually explicit photographs--occurred on January 12, 2010. See complaint, 1st count, para. 4. Notice of the claim against the Town, however, was not provided until January 4, 2012 (See Exhibit A of Town's brief), well beyond the six-month deadline. Because the statute, C.G.S. 7-465, creates a right of action in derogation of the common law, it is strictly construed. See Perodeau v. City of Hartford, 259 Conn. 729, fn.8, page 734, 792 A.2d 752 (2002). The notice requirement amounts to a judicial prerequisite. See Derfall v. Town of West Hartford, 25 Conn.Supp. 302, 203 A.2d 152 (1964) and Sanzone v. Board of Police Commission, 219 Conn. 179, 193, 592 A.2d 912 (1991). Accordingly, the plaintiff is time-barred by the notice requirements of the statute from including the Town in this action.
The Plaintiff claims that the involvement of Habarek and the Town in a related legal action, Swain v. Cellco Partnership, Dkt #CV11-6011210S, extended the tortious conduct of the Defendant beyond the January 12, 2010 date, making the January 4, 2012 notice to the town timely. In Swain v. Cellco Partnership, supra., the plaintiff brought a Bill of Discovery against Cellco, a cell phone carrier, seeking copies of the photographs emailed by Habarek. The Town joined with Haberek, intervening in this claim and opposing the request.
In reviewing the Town's actions in the Cellco litigation, it is apparent that its actions were incidental to the legal action then being considered by Swain and not an independent tortious act on the part of Harabek. In the Cellco proceeding Swain was seeking confirmation of evidence she already had--the illicit photographs which were the basis of the claim she was pursuing. The Town intervened and argued that, under the particular claim she had made, she was not entitled to the production of Cellco's copies. Citing In re Michael Mancini, 2007 WL 4410241 (2007) (Silbert, J.) . Apparently agreeing with the Town's position, she withdrew the Cellco action. The actions of Habarek and the Town in this legal proceeding did not constitute a new tort and therefore, did not extend the notice deadline beyond six months after January 12, 2010. Accordingly the claim against the Town pursuant to C.G.S. Sec. 7-465 is time barred.
2. Would the Granting of Summary Judgment Violate the Law of the Case?
The plaintiff argues that to grant summary judgment in favor of the Town would violate the law of the case as established by Judge Martin in his dismissal of the Town's Motion to Strike. (See pleading #107, 9/6/12.) The Town, in the Motion to Strike, sought to eliminate Count 2, but limited its motion to the 7-465 claim and did not address the " respondeat superior" allegation in that count. Judge Martin accordingly ruled that a Motion to Strike had to apply to the entire count or it could not be granted. In the motion currently before this court, the defendant Town is seeking summary judgment on all claims in Counts 2 and 3, including the respondeat superior claim in Count 2. Therefore, a ruling in favor of the defendant on this motion would not be contrary to the ruling of Judge Martin.
3. Is the Town Liable Under the Theory of " Respondeat Superior" ?
The plaintiff has pled in Count 2 that the Town is liable for damages due Swain because Haberek was acting as an agent of the Town when he sent the photographs. " 'The underlying rationale of the modern doctrine of respondeat superior ... is that 'every man who prefers to manage his affairs though others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority.' ... But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." Gutierrez v. Thorne, 13 Conn.App. 493, 499, 537 A.2d 527 (1988). In that case, the plaintiff claimed that the employer was liable for the inappropriate sexual behavior of an employee. However, the court found that the alleged conduct " had no connection to the defendant's business ... Since there were no facts before the court from which it could conclude that ... (the employee) ... was furthering the defendant's interests, the defendant's non-liability under a respondeat superior theory was properly determined as a matter of law." Id., p. 499. The same principle applies to this case. There is no evidence or claim that Haberek, by engaging in the conduct he is accused of, was in any way furthering the Town's interests or performed in the interests of the town as part of his duties as First Selectman. Accordingly the Town is not liable under the principle of respondeat superior.
4. Is the Town Directly Liable for the Injuries Caused the Plaintiff Under C.G.S. Section 52-577n?
Under Count 3, Swain seeks to recover damages directly from the Town pursuant to the statutory authority of C.G.S. Sec. 52-577n which waives the sovereign immunity of municipalities in certain negligence actions, stating, in pertinent part:
(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person and 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 ...
In subsection (a)(2), the statute exempts from claims:
... damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
As noted above, Swain claims she is entitled to damages under this statute because, the Town and its agents (1) allowed Habarek to contact the plaintiff inappropriately and to transmit the graphic photos; (2) failed to monitor his use of the telephone and other communication devices; (3) failed to enforce its own policy regarding use of such devices; and (4) failed to have or enforce an ethics policy.
In making these claims, the plaintiff runs into several statutory road blocks. First, there is no proof that the activities between Habarek and Swain were in any way performed as part of his scope of employment or official duties. " ... [T]he legislature has imposed liability on a town for the negligence of its employees and officials and waived its common-law immunity to that extent. However, a municipality is still immune from liability for the intentional torts of its employees and officials." Sammartino v. Turn, Dkt. #CV 99070151, 2003 WL 1090673 . Also see Coe v. Board of Education, 301 Conn. 112, 19 A.3d 640 (2011). Second, Section 52-577n expressly exempts municipalities from claims of damages arising out of " ... willful misconduct ..." and sending salacious photographs over the internet would appear to be an activity of that nature. See Martin v. Town of Westport, 108 Conn.App. 710, 729-30, 950 A.2d 19 (2008). Further, to the extent this action alleges Harbarek's invasion of privacy as the basis of the claim against the Town, the Connecticut Supreme Court has held that unless the claim involves individuals under the special care of the municipality--such as students in town schools--invasion of privacy is considered an intentional tort and not an act of negligence covered by the statute. Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004). Under the terms of Sec. 52-557a, " ... a municipality is still immune from liability for the intentional torts of its employees and officials." Sammartino v. Turn, Dkt #CV-99070151, (Conn.Super. February 28, 2003) .
Swain cites the apparent violation by Habarek of the Town's Computer Systems, Internet and Remote Access Policy (See Plaintiff's Exhibit 2 attached to Plaintiff's Objection to Motion for Summary Judgment) as a basis for claiming liability on the part of the Town. That document forbids " Any form of harassment via email, telephone or paging ..." However, while that document established certain protocols for acceptable use, it does not specify any particular enforcement penalties for " unacceptable use, " leaving enforcement up to the discretion of the Town. And to the extent that the consequences of violations of the policy are " discretionary, " the failure of the Town to enforce them does not constitute a basis for action under C.G.S. 52-557n, because the statute exempts " ... omissions which require the exercise of judgment or discretion ..." Further a municipality is not liable to the victim if it had no knowledge of the individual defendant's action, See Ugrin v. Town of Cheshire, 307 Conn. 364, 54 A.3d 532 (2012)), and in this case there is no claim that the Town was aware of the First Selectman's activities. See also Coe v. Board of Education, supra., p. 2.
Accordingly, the Town of Stonington's Motion for Summary Judgment on Counts 2 and 3 is granted.