Opinion
HHDCV145037719S
03-08-2016
Christopher Tierinni v. Mike Savino et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT #200
Hon. John J. Nazzaro, J.
On April 16, 2014, the plaintiff, Christopher Tierinni, filed a one-count complaint against the defendants, Mike Savino and the Journal Inquirer. As a result of the court's ruling on the defendants' request to revise, the plaintiff filed a second amended complaint on August 28, 2014. The plaintiff 0alleges the following facts. In the January 30, 2014, edition of the Journal Inquirer, Mike Savino wrote an article (JI article) about the plaintiff regarding the verdict of his trial that took place on January 27, 2014, at Rockville Superior Court. The plaintiff alleges that the facts contained in the JI article are false and therefore libelous.
On November 13, 2015, the defendants filed a motion for summary judgment on the grounds that there are no genuine issues of material fact and the defendants are entitled to judgment as a matter of law. The motion is accompanied by a memorandum of law and exhibits. The plaintiff filed an objection and memorandum of law in opposition to the motion for summary judgment on December 17, 2015. This matter was heard at short calendar on January 25, 2016.
STANDARD
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " [T]he party moving for summary judgment ... is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014).
" [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).
DISCUSSION
The defendants argue that the JI article written by Savino reports on the plaintiff's conviction and summarizes the contents of an affidavit by the Vernon Police Department, which was used in support of the plaintiff's arrest (the arrest warrant application), and court records. The documents produced by the defendants, upon which the JI article was based, demonstrate that the article is substantially true. Because the JI article substantially summarizes and paraphrases the arrest warrant application and attributes such information to it, the defendants argue that they are protected by the fair reporting privilege. Further, to the extent that there are minor inaccuracies in the JI article, the defendants argue that the JI article remains substantially true and such minor inaccuracies are not the type that would harm the plaintiff's reputation or standing in the community. Moreover, the defendants argue that the plaintiff, as a public figure, is required to establish that the defendants acted with actual malice.
The plaintiff counters that genuine issues of material fact exist because: (1) the defamatory statements made by the defendants are either false or substantially false; (2) the defamatory statements do not accurately report on the plaintiff's conviction and does not summarize the contents of the affidavit by the Vernon Police Department; (3) the documents produced by the defendants do not demonstrate that the JI article was substantially true; (4) the plaintiff has allegedly shown actual malice by clear and convincing evidence; (5) any and all negligible inaccuracies in the JI article are of the type that would harm the plaintiff's reputation; (6) the defendants are not protected by the fair reporting privilege because they failed to add it to their answer as a special defense and now cannot use it in their motion for summary judgment; and (7) the plaintiff has alleged actionable injury to his reputation and has in fact asserted necessary elements of a defamation claim.
" 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 . . . Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation." (Citation omitted; internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 296-97, 955 A.2d 550 (2008). " Truth is an absolute defense to an allegation of libel." Id., 301.
" [N]otably, our courts have held that only substantial truth need be shown by a defendant . . . A defendant may show only that the main charge, or gist, of the libel is true . . . If he succeeds, he does not have to further justify statements that do not add to the sting of the charge." (Citation omitted; internal quotation marks omitted.) Gianetti v. Connecticut Newspaper Publishing Co., 136 Conn.App. 67, 76, 44 A.3d 191, cert. denied, 307 Conn. 923, 55 A.3d 567 (2012). " [W]here minor inaccuracies [are] immaterial to the sting or harm suffered by the plaintiff . . . [or] where the inaccuracies [are] of a technical nature that conveyed the same meaning as the true facts would have in the eyes of the average reader, summary judgment may be appropriate." (Internal quotation marks omitted.) Mercer v. Cosley, supra, 110 Conn.App. 303-04.
" In a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense . . . Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification . . . It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable . . . The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced." (Internal quotation marks omitted.) Mercer v. Cosley, supra, 110 Conn.App. 304.
Moreover, according to the fair reporting privilege, " [e]ven when there is a defamatory statement, [t]he publication of defamatory matter concerning another in a report of an official action or proceeding . . . is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported. 3 Restatement (Second), Torts, Report of Official Proceeding or Public Meeting, § 611, p. 297 (1977); see also Wang v. Frankl, Superior Court, judicial district of New Haven, Docket No. 391493, (October 18, 1999) (publication of public proceeding, record thereof privileged as long as report is fair, accurate representation of event). According to the comments to § 611, the basis of the privilege is the public's interest . . . in having information made available to it as to what occurs in official proceedings and public meetings . . . If the report is accurate or a fair abridgment of the proceeding, an action cannot constitutionally be maintained for defamation." (Citations omitted; internal quotation marks omitted.) Burton v. American Lawyer Media, Inc., 83 Conn.App. 134, 137-38, 847 A.2d 1115, cert. denied, 270 Conn. 914, 853 A.2d 526 (2004).
In the plaintiff's operative complaint, he sets out thirteen alleged facts that constitute defamation. After reviewing each allegation, the court agrees with the defendants, that each is substantially true and, therefore, not libelous. Although the plaintiff disagrees, each statement is clearly taken from the arrest warrant application and court records. " The most persuasive evidence that a [purportedly libelous] statement is accurate is the existence of a public record confirming the information reported." (Internal quotation marks omitted.) Mercer v. Cosley, supra, 110 Conn.App. 301. In each of the plaintiff's thirteen alleged facts that constitute defamation, he makes arguments that go to the substantive issues of the underlying criminal case. The court finds that each statement in the JI article is an accurate report of the statements in the arrest warrant application and court records. See Fuller v. The Day Publishing Co., 89 Conn.App. 237, 240, 872 A.2d 925, cert. denied, 275 Conn. 921, 883 A.2d 1244 (2005) (" Our review of the evidence, as well as our careful examination of the newspaper articles in their entirety, permits no reasonable conclusion other than that the publications of which the plaintiff complains constituted fair and accurate reporting and commentary related to her criminal trial, a matter of public interest. The plaintiff has failed to demonstrate the existence of any issue of material fact related to the allegedly libelous statements of which she complains").
It is worth nothing that the plaintiff has failed to produce any evidence to counter the defendants' evidence. " [T]he existence of [a] genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, supra, 151 Conn.App. 632-33. " Mere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). " Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, supra, 151 Conn.App. 636. " It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party, whether raised at oral argument or in written pleadings; such allegations must be supported by counteraffidavits or other documentary submissions that controvert the evidence offered in support of summary judgment." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 178, 73 A.3d 742 (2013). In order to oppose the defendants' motion for summary judgment, the plaintiff needed to properly submit evidence that countered the defendants' evidence. Because the plaintiff has not done so, no genuine issue of material fact has been raised.
Moreover, the plaintiff has not made an argument as to whether he is a public figure nor has he alleged or argued that the defendants acted with actual malice. " Individuals who have been accused or convicted of crimes may be classified as public figures." Skakel v. Grace, 5 F.Sup.3d 199, 211 (D.Conn. 2014). " A prisoner becomes a public figure by virtue of his crime and subsequent trial . . . He remains a public figure during his imprisonment or until he has reverted to the lawful and unexciting life led by the great bulk of the community." (Citation omitted; internal quotation marks omitted.) Travers v. Paton, 261 F.Supp. 110, 117 (D.Conn. 1966). " [P]risoners are public figures who do not enjoy the same privacy rights as other individuals." Amie Morse v. Connecticut Community for Addiction Recovery, Inc., Superior Court, judicial district of Windham, Docket No. CV-09-5005371-S, (September 15, 2010, Riley, J.).
" [I]f a plaintiff claiming defamation is a public figure, he must prove that the defamatory statement was made with actual malice, such that the statement, when made, was made with actual knowledge that it was false or with reckless disregard of whether it was false . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth." (Citation omitted; internal quotation marks omitted.) Skakel v. Grace, supra, 5 F.Sup.3d 206. " The United States Supreme Court has indicated that, at a minimum, actual malice requires that there be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., 230 Conn. 525, 537, 646 A.2d 92 (1994) (in suit by public figure against media defendant, finding of actual malice permissible when there is " sufficient evidence to permit the [inference] that the defendant in fact entertained serious doubts as to the truth of his publication").
In Fuller v. The Day Publishing Co., the court noted that " the plaintiff failed to demonstrate that a genuine issue of material fact existed concerning her allegation that the defendants acted with actual malice. The defendants submitted evidence that the opinions and the information about the plaintiff's criminal trial expressed in the articles were accurately based on court records, interviews with persons associated with the plaintiff's trial and the opinions of persons with knowledge of the trial and the issues subsumed therein. The plaintiff failed to rebut this evidence with any relevant evidence." Fuller v. The Day Publishing Co., supra, 89 Conn.App. 240 n.2.
In the present case, the plaintiff's operative complaint makes no allegation that the defendants acted with actual malice. There are no allegations that the defendants made any statements with knowledge that those statements were false or that they had acted with reckless disregard of whether they were false. The plaintiff solely alleges that the JI article was false. Moreover, the court does not find that actual malice could be inferred from any of the allegations.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted.
It is so ordered.