Opinion
No. CV-04-4002396-S
April 24, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendants, William Hertler and Glenn Morron, have moved for summary judgment on all counts of the complaint dated September 22, 2004, on the grounds that the writings of the defendants were made in relation to an internal affairs investigation by the Middletown Police Department and are, therefore, absolutely privileged, and on other grounds.
Facts
The defendants have produced the following evidence in connection with their Motion for Summary Judgment: Internal Affairs Finding and Report; all reports and letters by the defendants in connection with the internal affairs investigation; Memorandum from Chief of Police Brymer to Michael Timbro; various writings to the defendants concerning the internal affair investigation; affidavit of the defendants.
The affidavit of the defendant William Hertler states, in pertinent part:
3. I am a Police Officer in the Middletown Police Department.
4. I have an exemplary record of service throughout my career with the Middletown Police Department.
5. On December 5, 2003 I was dispatched to investigate a series of motor vehicle accidents and to secure an area of road that was dangerous and icy. Officer Louis Julia, who at the time was a Field Trainee Officer, was with me that evening. The conditions that day consisted of heavy snow and very slick road conditions.
6. Upon arriving at the scene we found the roads to be very dangerous. A fire engine and an ambulance had driven off the road; the fire engine was actually blocking the roadway. We immediately began to try to move the vehicles off the road so that a "Salt" truck could go through the area.
7. Officer Morron arrived at the scene some time late and along with Officer Julia, the three of us began to work to get the vehicles off to the side of the road in order to give a "sand truck" the chance to disperse sand on the road. It was around this time that a man wearing a "hooded" sweatshirt came towards us, questioning why the roads were closed and demanding to be let through to his home. Neither Officer Morron nor myself recognized the man because his face was covered by the "hooded" sweatshirt. We nonetheless advised the man to return to his vehicle and that we would try to get him through as soon as it was safe. It was at this time he uncovered himself, and we realized that the man was Sergeant Michael Timbro, of the Middletown Police Department.
8. Sgt. Timbro asked to be allowed through because he lived around the corner, but we insisted that the road conditions were very slippery and for him to get home he would have to drive through the very area we were trying to clear up. Sergeant Timbro proceeded to scream at officer Morron and me and became very confrontational. This was happening in front of other drivers also detained there by the weather. I felt that a physical confrontation was imminent in light of Sergeant Timbro's behavior, but luckily the situation did not escalate into a physical confrontation.
9. After some time, Sergeant Timbro finally went inside his home and the situation normalized. We went back to our jobs and eventually were able to clear up the road enough where the vehicles could resume driving.
10. On the same day, I advised Sergeants Lozefski and Visconti of the incident. Sergeant Lozefski advised us to write the reports.
11. On 12/8/2003 I approached Lt. Ahlquist (Shift Commander) to find out if he had been informed about the Timbro incident by Sergeant Lozefski or Sergeant Visconti and he indicated he had not. He advised us to try and stay away from Timbro and to prepare "supplement reports" on the incident and request action to defuse any type of possible interaction between us and Sergeant Timbro. Per Lt. Alquist, these supplements were brought up to the internal affairs division.
12. On or about December 18, 2003, we were told that Captain Gervais had recommended an internal affairs investigation be conducted. This investigation was concluded in August 2004.
In the report, dated August 4, 2004, in which he outlined the results of the Internal Affairs Investigation, Deputy Chief of Police Philip J. Pessina found that Sergeant Timbro had violated various regulations of the Middletown Police Department and recommended that Timbro be suspended for three days and that he attend appropriate training for "managing his interpersonal behavior and improving his Supervisory Skills." The report refers to the same conduct outlined in the affidavit of Officer Hertler set forth above. It includes the following findings:
On January 20, 2004, Sergeant David Visconti notarized and submitted the December 5, 2003 Incident Report from Officer William Hertler and Officer Glenn Morron regarding their" Threatening/Breach of Peace/Interfering" Case Report (#03-30845), concerning Sergeant Timbro's off-duty behavior on the night of December 5, 2003.
Sergeant Timbro disregarded the roadblock on Country Club Road, in the vicinity of Moody School; In doing so he became belligerent and disrespectful to Westfield Fire/Police volunteer John Trevisan when he used profane language and made a disrespectful gesture (middle finger) towards him as he drove around the roadblock.
Sergeant Timbro admits to yelling back at Officer Morron and continuing with his verbal argumentative, disrespectful, uncivil, profane remarks, even though he admits Officer Morron did not recognize him, as he was extremely upset that his wife and son were nearly struck by the snowplow truck.
Sergeant Timbro admits to exchanging words with Officers Hertler and Morron, who had approached him, telling him to calm down, as Officer Hertler defended Officer Morron because he (Morron) had not recognized Sergeant Timbro.
Officer Hertler's description of Sergeant Timbro's behavior was one that he had never seen Sergeant Timbro in such a rage or violent anger. In addition, he perceived Sergeant Timbro's comments as threatening to his safety.
The plaintiff has submitted no affidavit or any other documents in opposition to the Motion for Summary Judgment.
Discussion of the Law and Ruling
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]." (Internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 397-98, 757 A.2d 1074 (2000). "A material fact . . . [is] a fact which will make a difference in the result of the case . . . Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
In Count One the plaintiff alleges that on various dates commencing on December 5, 2003, the defendants wrote to various officers in the Middletown Police Department about the conduct of the plaintiff, that the statements in the writings were untrue and that those statements caused injury to the plaintiff's reputation.
A cause of action for defamation requires four essential elements: (1) a false statement of fact; (2) unprivileged publication of the statement; (3) publication caused by negligent or intentional conduct; and (4) injury to reputation. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984); Torosyan v. Boehringer Ingelheim Pharm., Inc., 234 Conn. 1, 27, 662 A.2d 89 (1995). Truth is a complete defense to a suit for defamation. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984).
At common law, "communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986). "The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation omitted; Citations omitted). Id. at 246.
"The effect of an absolute privilege in a defamation action [however] is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously . . . [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature . . . Once it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition." (Citations omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 565-66, 606 A.2d 693 (1992).
Our courts have specifically applied the absolute immunity of quasi-judicial proceedings to police internal affairs investigations. Craig v. Stafford Construction, Inc., 217 Conn. 78, 96, 856 A.2d 372 (2004). The Court in Craig relied on the factors it had delineated in Kelley to determine that the internal affairs investigation at issue was a quasi-judicial proceeding:
In addition, this 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 and judgments; (4) affect the personal property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties." Id., 567. "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." Id. [ Kelley v. Bonney, supra, at p. 566].
Craig v. Stafford Construction, Inc., supra, at p.
The defendants argue that the internal affairs investigations satisfies all of the factors delineated in Craig and Kelley. The plaintiff does not argue to the contrary. He agrees that all statements made in connection with a police internal affairs investigation do enjoy an absolute privilege. However, he argues that various writings made by the defendants were not related to the internal affairs investigation. Unfortunately, the plaintiff has not produced these writings, nor has he filed an affidavit in which he swears that the statements made about him by the defendants were false. A party opposing summary judgment must substantiate his adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).
The plaintiff has not offered any evidence of the alleged defamatory statements by the defendants. However, assuming that the documents referred to by the plaintiff are those which the defendants have appended to their Motion for Summary Judgment, it appears that all of those documents were related to the defendants' initial complaint about the plaintiff's conduct on December 5, 2003 and the internal affairs investigation about that conduct. Once a proceeding is determined to be quasi-judicial in nature, then the absolute privilege applies to every step of the proceeding until final disposition. Kelley v. Bonney, supra.
The defendants' statements are absolutely privileged and, therefore, they cannot be made the basis for an action in slander, libel, tortious interference, or negligent or intentional infliction of emotional distress. DeLaurentis v. New Haven, 220 Conn. 225, 264-65, 597 A.2d 807 (1991); Alexandru v. Dowd, 79 Conn.App. 434, 438 n. 4, 830 A.2d 352 (2003).
The defendants advance the plaintiff's failure to state a cause of action for intentional infliction of emotional distress as an additional basis for the summary judgment on Count Three. To sustain a claim for intentional infliction of emotional distress, a plaintiff must establish; "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that the 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." Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). The question of whether a defendant's conduct is sufficient to satisfy the extreme and outrageous element is in a first instance for the court. Carnemolla v. Walsh, 75 Conn.App. 319, 331, 815 A.2d 1251 (2003).
"[L]iability 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 to 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 omitted.) Appleton v. Board of Education, 254 Conn. 205, CT Page 7432 210-11, 757 A.2d 1059 (2000).
In the case of Carrol v. Allstate Insurance Co., 262 Conn. 433, 815 A.2d 119 (2003), the plaintiff insured brought action against his insurer to recover for breach of contract and infliction of emotional distress arising from the insurer's treatment of him during its investigation after a fire. The plaintiff presented evidence of poor and impulsive investigation as well as evidence that the inspectors' determination of arson might have been influenced by the fact that the plaintiff was an African-American. Id. at 441. The plaintiff overheard one of the inspectors say "the son of bitch is mine" when he was told that the homeowner was black. Id. at 441. There was harassment from frequent interviews and recurrent inspections of the house. Additionally, the plaintiff was made to feel like a criminal by offensive questions insinuating criminal behavior during the interviews. Id. Nevertheless, the Court ruled that the conduct was not sufficient for a jury to reasonably conclude that the defendant's conduct in its fire investigation was extreme and outrageous. Id. at 443. "The plaintiff produced evidence that the defendant did not conduct a thorough or reasoned investigation and may have decided too quickly that the fire had been set deliberately. As distressing as this insurance investigation may have been to the plaintiff, however, it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress." Id. at 444.
In Carnemolla v. Walsh, supra, the Appellate Court held that the defendant's action of accusing the plaintiff of embezzling company funds and requesting that the plaintiff sign resignation and release forms in front of the plaintiff's coworker was not outrageous and extreme conduct. The Court compared the conduct of the defendant to conduct which occurred in Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001), where the defendants hypercritically scrutinized every aspect of the plaintiff's work and personal life, publicly admonished her and organized a plan to force her to resign. The foregoing conduct was not held to be outrageous or extreme. Carnemolla, at 333. The Court also looked at Appleton v. Board of Education, supra, where the plaintiff was subjected to condescending comments by the employer, subjected to two psychiatric evaluations, escorted off the employer's premises by police and forced to resign. Nonetheless, the defendant's conduct was determined to be not outrageous or extreme. Carnemolla, at 333. In this case the defendants filed police incident reports about the plaintiff's conduct on the evening of December 5, 2003. Neither the filing of those reports, nor the defendants' supplemental reports and requests for information about the internal affairs investigation, constitute extreme and outrageous conduct.
For the foregoing reasons, summary judgment may enter in favor of the defendants, William Hertler and Glenn Morron, as to all counts of the Complaint.