Opinion
UWYCV106005674.
11-20-2012
Douglas TOLLES v. The REPUBLICAN-AMERICAN et al.
UNPUBLISHED OPINION
PATTY JENKINS PITTMAN, Judge.
The plaintiff Douglas Tolles brings this civil action against the defendant newspaper The Waterbury Republican-American and the reporter Rick Harrison for money damages for defamation, infliction of emotional distress, and invasion of privacy. The plaintiff alleges that the defendants published an article in the newspaper on October 14, 2009, that reported two false facts: 1) that the plaintiff wanted to punch his daughter's preschool classmate, and 2) that the plaintiff entered a pretrial program for first time offenders. The defendants admit that such an article was published but deny that it contained any defamatory material. They move for summary judgment on the grounds that the statements of which the plaintiff complains are true or substantially true, and further that the statements fall under the privilege of fair comment regarding a matter of public interest or concern, and therefore are not actionable. The plaintiff opposes summary judgment.
The original summons names the defendant as The Republican American (no hyphens); the complaint names the defendant as the American-Republican, Inc. The plaintiff moved without objection to amend the civil process to name the defendant, as in the complaint, as the American-Republican, Inc., which evidently is the corporate name of the entity that runs the newspaper. The court will refer to this defendant throughout this decision simply as the " newspaper."
FACTS
The undisputed facts of this case indicate that the defendants published an article in the newspaper, covering an interim disposition of the plaintiff's criminal case. The plaintiff was arrested upon a warrant dated March 17, 2009, charging him with Disorderly Conduct and False Statement 2d, both misdemeanors.
The warrant contained information developed by Officer Joshua Recupero of the Southbury Police Department in the course of his investigation. Preschool Teacher Allison Peck was the teacher of the Tolleses' four-year-old daughter and a little girl referred to in the warrant affidavit as " RB, " also four years old and a friend of the plaintiff's daughter. Peck told the investigating police officer that during a parent-teacher conference in the fall of 2008, Tolles told Peck several times, " I'd like to punch [RB] in the face ." The parent of another classmate reported to the police officer that during the same time period, Tolles had said to her, " Somebody should take a Bazooka and blow [RB's] head off. Better yet, somebody should pick up a machete and chop her head off." The mother of RB reported to the investigating officer that these statements had come to her attention and that she was concerned.
After his arrest, the plaintiff applied for the Accelerated Rehabilitation (AR) program. Conn. Gen.Stat. § 54-56e. That program is available as a way of disposing of the cases of accused persons whose " crimes or violations are not of a serious nature." Id. To be eligible for the program, the court must find that the accused " (1) ... will probably not offend in the future, (2) ... has no previous record of conviction of a crime ... (3) ... has not been adjudged a youthful offender within the preceding five years ..." and has not previously utilized the AR program. The court may grant or deny the program, in its discretion. Upon satisfactory completion of a period of probation under such conditions as may be set by the court, the accused may apply to the court to have the charges dismissed, or the court on its on motion may dismiss the charges.
After the plaintiff's arrest, the newspaper covered subsequent court proceedings including the hearing on the plaintiff's application for the AR program. The defendant Harrison wrote and published in the defendant newspaper the following article, set forth in full, with the two passages deemed defamatory by the plaintiff emphasized in italics:
Father avoids jail for threats— Man wanted to punch daughter's classmate Bethlehem [CT]— A judge agreed to let a former Bethlehem resident enter an accelerated rehabilitation program Tuesday after the man had been charged with making threatening comments about a 4-year-old girl.
Douglas Tolles, 51, formerly of Bethlehem, was arrested April 8 and charged with misdemeanor disorderly conduct. He is accused of telling a teacher at Southbury's Alef Bet Preschool in February that he would like to punch a then-4-year-old classmate of his then 4-year-old daughter in the face.
According to another child's parent quoted in the arrest warrant, Tolles also suggested other violent acts should befall the pupil.
Waterbury Superior Court Judge Peter Emmett Wiese granted Tolles' request to enter an adult pretrial program for first-time offenders, continuing the case for nine months. Should Tolles complete the program without incident, his case would likely be dismissed, according to his New Haven-based attorney, Hugh Keefe.
" It's a disposition both sides could live with, " Keefe said.
In addition, Wiese ordered Tolles to avoid contact with the alleged victim and undergo sensitivity training if deemed necessary by the probation department, Keefe said. Keefe told the judge Tolles had been seeing a psychologist.
Tolles, who now lives in Vermont but appeared in court Tuesday, declined to comment.
A Web site begun by Tolles featured a post in April accusing Jewish people in Southbury and Oxford of lying and persecuting an innocent man, echoing accusations against Jews for killing Jesus Christ that local religious leaders considered anti-Semitic.
The preschool in Southbury is run by a Jewish organization, and the parent who reported Tolles' statements to police lives in Oxford.
According to the arrest warrant, Tolles told police in a written statement that his daughter was assaulted by the other girl at least 10 times. The school's director and a teacher dismissed any contact between the two as only " assaults of love and hugs, " and common interaction between 4-year-olds trying to play, the warrant said.
The teacher, the director, and the other girl's father said she and Tolles' daughter were good friends at school and that they had no idea why Tolles would say what he's accused of saying, the warrant said.
In paragraph 6 of his complaint, the plaintiff identifies two items as constituting false facts: " a) that Plaintiff Tolles wanted to punch his daughter's preschool classmate; and b) that Plaintiff Tolles entered a pretrial program for first-time offenders." He alleges that these statements are false and that the publication of them constitute the torts of libel, negligent or intentional infliction of emotional distress, and false light invasion of privacy.
In his opposition to summary judgment, the plaintiff argues that the statement that he was the founder of a website that published anti-Semitic material is also untrue and defamatory. Because he did not make that claim in his complaint, the court declines to consider it.
The defendants move for summary judgment on the grounds that the statements are true or substantially true, and that true or not, the statements are insulated by the fair comment privilege. They also move for summary judgment on the grounds that the plaintiff has suffered no damages.
THE STANDARDS FOR SUMMARY JUDGMENT
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the party is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
In supporting or opposing summary judgment, Conn. P.B. § 17-45 requires that a party file affidavits and other documentary evidence sufficient to establish or refute the existence of a disputed issue of fact. Unadmitted allegations in the pleadings are not considered competent evidence and do not constitute proof of a material fact. New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Rather, in moving for or opposing summary judgment, a party must submit documentation that would form the basis for evidence admissible at trial. Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). See also Conn. P.B. § 17-46. A party's conclusory statements may not be sufficient to establish the existence of a material disputed fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
THE LAW OF LIBEL
Libel is the unprivileged written publication of a false and defamatory statement. Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). Truth is an absolute defense to an action for libel, Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112, 448 A.2d 1317 (1982), although as a matter of practice the plaintiff must prove falsity as part of its direct case. Id., at 112, n. 4. Connecticut law makes clear that in determining the scope of the alleged statement, and further in determining its truth or falsity, context is important and sometimes even dispositive. See, generally, Lega-Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 880 A.2d 195, certification denied, 267 A.2d 901 (2003).
Moreover even if the statement is defamatory, it may be found to be privileged because it was fairly reported by the news media, a concept usually called the fair comment privilege. The fair comment privilege provides a defense to a defendant who writes a report of an official proceeding open to the public that deals with a matter of public concern. Burton v. American Lawyer Media, Inc., 83 Conn.App. 134, 137-38, 847 A.2d 1115, certification denied, 270 Conn. 914, 853 A.2d 526 (2004).
For the privilege to apply, the report must be accurate and complete or be a fair abridgement of the occurrence reported. Id.; see also, 3 Restatement (Second) Torts, § 611, p. 297 (1977). As a conditional privilege, the defense will fail if the publisher of the statement does not give a fair and accurate report of the official proceeding, Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 477 A.2d 1005 (1984), or if the publisher acts with malice. Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985). Usually, the determination of whether a newspaper article comes within the fair comment privilege is a question of law for the court. Burton, supra, at 138.
With these principles in mind, the court must analyze the two statements at issue— the " first time offender" statement, and the statement in the headline that " Man wanted to punch daughter's classmate" — to determine if the undisputed facts support summary judgment for the defendants as to either statement.
" First Time Offender"
The initial question is whether this term is defamatory, as used in the newspaper article. The court finds that it is not. In considering the term itself as well as the context in which it was used, the court rejects the plaintiff's contention that the term Offender suggests the equivalent of a Convicted Person, for a number of reasons.
First, contrary to the plaintiff's assertion that the word Offender always means Convicted Person, that is simply not the case, either in common usage or in legal usage. Even the definition cited by the plaintiff suggests otherwise. The plaintiff cites to merriam-webster.com for the definition of " offend" as meaning " to transgress the moral or divine law" or " to violate a law or rule." Nowhere is the connotation of a criminal conviction or adjudication implied in this definition. Secondly, in their papers in support of summary judgment, the defendants cite numerous usages of the term " first-time offender" in common parlance and in news reports that equate first-time offense or offender to mean no more than one who stands accused but who has never before been convicted of any offense, the same situation in which the plaintiff found himself.
As for legal usages, the Connecticut statutes themselves make clear in a number of contexts that Offender does not mean Convicted Person. First the AR statute's use of the term " offend, " as in " probably will not offend in the future, " does not compel a meaning that Offender is equivalent to a Convicted Person, as the plaintiff suggests. Secondly the reference in the AR statute to the Youthful Offender statute, Conn. Gen.Stat. § 54-76b et seq., is significant. A Youthful Offender is patently defined as one who " (A) is charged with the commission of a crime ... and (B) has not previously been convicted of a felony in the regular criminal docket of the Superior Court ..."
Aside from the definition of the word Offender provided in the General Statutes, the Connecticut Supreme Court has used " first-time offender" to encompass one who has applied for the Accelerated Rehabilitation program. See State v. Tucker, 219 Conn. 752, 761, 595 A.2d 832 (1991) (" the defendant [who applied for the AR program] was a first time offender ..."). Ranging more broadly, the Second Circuit Court of Appeals and other federal courts in Connecticut have long adopted the common usage of " first-time offender" as an accurate description of those admitted to the AR program in cases in which it was clear that the offender had not been convicted of a crime. See, Roesch v. Otarola, 980 F.2d 850, 852 (1991); Konon v. Fornal, 612 F.Supp. 68, 72 (D.Conn.1985).
And finally and perhaps most importantly, the very next sentence in the newspaper article, following the phrase that uses the term " first time offender, " states with clarity that the charges are subject to dismissal upon successful completion of the AR program. Well-settled precedent teaches that the law of libel does not mandate that one word or phrase be extracted from the text of the statement as a whole and analyzed in isolation. On the contrary, the law requires that the statement be read in context to extract its true meaning and to determine whether it is false. To determine the meaning of an allegedly defamatory communication, the " publication must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it." Washington Post Co. v. Chaloner, 250 U.S. 290, 293, 39 S.Ct. 448, 63 L.Ed. 987 (1919); see also, Brown v. K.N.D. Corporation, 205 Conn. 8, 15, 529 A.2d 1292 (1987).
The court finds that the undisputed facts compel the conclusion that the use of the term " first time offender" to refer to the plaintiff's application for AR was true, The court finds that the term " first time offender, " either read alone or in the context of the preceding and subsequent sections of the article, is not, as a matter of law, false or defamatory.
" Father Avoids Jail for Threats— Man Wanted to Punch Daughter's Classmate"
Unlike the previous statement in which the facts were undisputed, the statement " Man wanted to punch daughter's classmate" is the subject of a number of disputed facts. First the plaintiff asserts that he never made such a statement. Although the police report on which the arrest was based contains the statements of several witnesses who claim to have heard the plaintiff make that statement, in deciding a Motion for Summary Judgment, the court cannot decide which set of facts to credit. That being so, there is initially a genuine question of fact about whether the statement is false.
When read in the context of the article, the headline is a substantially accurate statement derived from a court proceeding involving the plaintiff. To be sure, the headline does not use the more expansive phrase " is accused of" or the qualifier " alleged" when it speaks of the plaintiff's threats or intentions. Rather, the substance of the article refers to and quotes from the arrest warrant, which, on the basis of several witness's statements, recites that the plaintiff is accused of making threats concerning his daughter's school friend and accused of saying that he wanted to punch, and indeed decapitate, the little girl.
Beyond a determination of whether the headline is substantially true, the issue becomes whether the headline is subject to the fair comment privilege, since it is derived from the contents of an official proceeding open to the public. Despite the denial by the plaintiff that he ever made such a statement, the court finds as a matter of law that the headline falls within the fair comment privilege, particularly when the article is read in conjunction with the headline. The fair comment privilege allows for a fair reading of the statement, in context, to determine if it constitutes a substantially accurate report of the official proceeding. As the court held in Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 320-21, 477 A.2d 1005 (1984):
Any deviations from or embellishments upon the information obtained from the primary sources relied upon were minuscule and can be attributed to the leeway afforded an author who attempts to recount and popularize an ... event ... The author's job is not simply to copy statements verbatim, but to interpret and rework them into the whole ... A fussy insistence upon literal accuracy would condemn the press to an arid, desiccated recital of bare facts. (Citations omitted; internal quotation marks omitted.)Burton v. American Lawyer Media, Inc., 83 Conn.App. 134, 140-41, 847 A.2d 1115, certification denied, 270 Conn. 914, 853 A.2d 526 (2004), quoting from Strada, supra.
Having found that the headline is subject to the fair comment privilege, the court must determine if any set of admissible facts has been put forward that could constitute an abuse of the privilege. A conditional privilege such as fair comment can be defeated if the defendant acts with malice in publishing the statement. Bleich v. Ortiz, supra, at 504. Malice is not restricted to hatred, spite or ill will against a plaintiff, but includes any improper or unjustifiable motive. Id.; see also Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 564, 72 A.2d 820 (1950).
The plaintiff argues that his relationship with the newspaper's editor and with Harrison had grown " rancourous" in the months before the newspaper article was published. As evidence that the defendants bore him ill will, or at least held him in low regard such that they wanted to embarrass him or make him appear foolish, the plaintiff has submitted emails of the defendants in which they refer to him in less than glowing terms. He has also submitted evidence that the defendants were under the impression, rightly or wrongly, that the plaintiff caused to be published unflattering and frankly obscene material about the defendant Harrison on a website before the newspaper article appeared. The plaintiff suggests that there is evidence from which a trier of fact could conclude that the decision to cover the plaintiff's arrest and to publish an account of the court proceedings, including publishing the eye-grabbing headline, and was done out of malice because the defendants did not like him.
Malice is rarely subject to proof by direct evidence but is often proved only by inference through an accumulation of circumstantial evidence. Berry v. Loiseau, 223 Conn. 786, 805, 614 A.2d 414 (1992). The court is not entitled to use its own evaluation of the strength, or lack thereof, of this evidence to decide whether there was an absence of malice on the part of the defendants.
Also it is best left to another forum to consider the policy implications of allowing mere provocative comments or conduct from a critic of a news publisher to constitute sufficient evidence to overcome the fair comment privilege.
As to the counts alleging defamation, the plaintiff is entitled to present this disputed evidence to a trier of fact and to allow that trier to determine 1) whether it is true or not true that the plaintiff uttered the headline statement attributed to him, and 2) if the plaintiff is found not to have uttered the statement, whether the headline attributing the statement to the plaintiff was published out of malice, such that the privilege of fair comment ordinarily available to the defendants as a defense is unavailable in this case.
The Issue of Damages for Libel
The defendants argue that the plaintiff has presented no admissible evidence of damages to fulfill that element of a cause of action for libel. See discussion, infra, on damages in THE EMOTIONAL DISTRESS CLAIMS. Certain categories of defamation are deemed actionable per se, that is, without evidence of actual injury or pecuniary loss. They are ones in which the defamatory meaning of the speech is apparent on the face of the statement. Battista v. United Illuminating Co., 10 Conn.App. 486, 491-92, cert. denied, 204 Conn. 802 (1987). An accusation that one has engaged in criminal behavior which involves moral turpitude constitutes defamation per se Id., at 493.
Because there is no other evidence of pecuniary loss that has been submitted in opposition to summary judgment, the plaintiff can only prevail if the libel falls under the rubric of libel per se. Whether a publication is libelous per se is a question of law for the court. Flanagan v. McLane, 87 Conn. 220, 222, 88 A. 96 (1913). Although a statement that one has engaged in or threatened to engage in a simple assault is usually not considered to rise to the level of behavior involving moral turpitude, see Drazen v. New Haven Taxicab Co., 95 Conn. 500, 508, 111 A. 861 (1920), the same is not true for a threat to commit an assault on a child. The court finds that a statement that one intends to " punch" a child, if untrue, constitutes libel per se, and is actionable without evidence of pecuniary loss.
FALSE LIGHT INVASION OF PRIVACY
In order to prove that his privacy was invaded by placing the plaintiff in a false light, the plaintiff must prove that (a) the false light in which he was placed would be highly offensive to a reasonable person, and (b) the defendants had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. 3 Restatement (Second), Torts 652E; see Goodrich v. Waterbury Republican American, Inc., supra. It is essential to this theory of liability that the material published concerning the plaintiff is not true. 3 Restatement (Second), Torts 652E, comment a; Jonap v. Silver, 1 Conn.App. 550, 559, 474 A.2d 800 (1984). For that reason, as found above, the court considers only the statement in the headline as potentially actionable here.
The tort of false light invasion of privacy requires the plaintiff to prove that the defendants knew or should have known that the statement was false or acted in reckless disregard of whether the statement was true. Id. This is different from the tort of defamation, in which the defendant's knowledge of the truth or falsity of the statement is usually immaterial.
Here, that would mean that the plaintiff must prove that the defendants could have no reasonable belief that the statement was true, and that they published it nonetheless. Although whether a defendant has published a false statement with reckless disregard for its truth is not easily captured in a simple definition, the Connecticut Supreme Court has held that reckless disregard may be found when an individual publishes defamatory statements " with a high degree of awareness of ... probable falsity ... or ... entertained serious doubts as to the truth of [the] publication ..." Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 639, 969 A.2d 736 (2009) (citations and internal quotation marks omitted).
That the plaintiff actually made the statement was supported by the arrest warrant and by the statements of the witnesses that were interviewed as part of the police investigation. This is not something that these defendants made up out of whole cloth. To be sure, there was a denial by the plaintiff that he said it. But the very existence of the warrant and the statements of the witnesses who were interviewed by the police show that there was credible evidence, certainly to the level of probable cause, that the plaintiff did in fact make the statement attributed to him. And there is no evidence from which it may be inferred that the defendants had any reason to know that the evidence assembled by the police was false. The fact that there was evidence that the plaintiff denied making the statement— indeed that too was in the arrest warrant— is not material given the nature of the evidence on which the defendants were entitled to rely, the signed arrest warrant.
Under these circumstances, there are no facts from which a reasonable trier of fact can conclude that the defendants knew or should have known, to the degree necessary for this tort, that the published statement was false. As a matter of law, the plaintiff cannot prevail on the false light invasion of privacy claims.
THE EMOTIONAL DISTRESS CLAIMS
In order for the plaintiff to prevail in an action for intentional infliction of emotional distress, four elements must be established. 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 the 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). 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. Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999).
To prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove: (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 Insurance Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
Because the court has found as a matter of law that the use of the term " first time offender" is not actionable, the conduct giving rise to the claim of emotional distress is the publication of the headline " Man Wanted to Punch Daughter's Classmate." The issue is whether publishing this headline is extreme and outrageous, for the tort of intentional infliction of emotional distress; or whether publishing the headline created an unreasonable and foreseeable, risk of causing the plaintiff emotional distress that was severe enough to cause illness or bodily harm, for the tort of negligent infliction of emotional distress. For either tort, the resolution of the issue rests upon whether there is evidence to suggest that the defendants had any reason to know that they were reporting a false statement.
Given that the arrest warrant application describes the plaintiff as saying precisely what is reported in the headline— that he wanted to punch his daughter's classmate— the publication of the headline cannot rise to extreme and outrageous conduct, particularly since, as in the false light invasion of privacy claim, there is no evidence that the defendants knew that the information was false and published it anyway. Only then could the publication of the statement amount to extreme and outrageous conduct.
As for the negligence claim, while there is a dispute about whether the plaintiff actually made the threat, there is no dispute that several witnesses reported that they heard the plaintiff make the threat. It was upon those statements that the officer based the arrest warrant application, that the warrant was issued by a judge, and that the subsequent court proceedings occurred. The defendants crafted what the witnesses said about the plaintiff into a headline. The defendants had no reason to believe that the witnesses had said otherwise.
As in the context of the intentional infliction of emotional distress claim, there is no evidence to suggest that defendants knew or had reason to know that the witnesses did not say what they were reported to have said. That being so, it was not foreseeable that a further report of what the witnesses said would cause emotional distress. The plaintiff cannot rely on his conflicting account of the events that lead to his arrest, as notice to the defendants that the published headline was false. If that were the case, no newspaper could ever publish a report of a court proceeding in which two or more versions of events are aired. Rather the question is, did the defendants know that the witnesses were not being truthful in reporting what they heard the plaintiff say? The answer is no.
Again these elements are different from those in a libel action in which a defendant may be liable for publishing a false statement, even if the defendant had no reason to believe the statement was false. For the defendants to be found liable on either an intentional or negligent infliction of emotional distress claim, there must be some evidence to suggest that they had reason to believe that the police report was false and published information about it anyway. Since all the evidence is to the contrary, the plaintiff cannot prevail on these counts as a matter of law.
A further element of the tort of negligent infliction of emotional distress is that the distress caused by the offending conduct must be sufficiently severe that it might result in illness or bodily injury. Carroll v. Allstate Ins. Co., supra. The plaintiff has submitted evidence that he saw a psychotherapist to help deal with the stress he was feeling. However he has submitted no further description of his feelings during this time and no evidence at all from the psychotherapist, including the number of treatment sessions and the source of the stress (the arrest and court proceeding on the one hand or the newspaper article on the other). There is a complete lack of evidence that any stress experienced by plaintiff was of a nature that it might result in illness or bodily injury. This lack of evidence is fatal to his emotional distress claims.
CONCLUSION
The defendants are entitled to summary judgment on the following counts:
Negligent Infliction of Emotional Distress Counts— Counts One and Two;
Intentional Infliction of Emotional Distress Counts— Count Three and Four;
Invasion of Privacy Counts— Counts Eight, Nine, and Ten. As to those counts the Motion for Summary Judgment is granted.
The defendants are not entitled to summary judgment on the counts alleging defamation— Counts Five, Six, and Seven. As to those counts, the Motion for Summary Judgment is denied.