Opinion
FSTCV135015533S
08-04-2016
Sylvester Traylor v. Eric S. Parker et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE THE MOTION TO STRIKE OF CERTAIN DEFENDANTS (#184)
Robert L. Genuario, J.
I. Introduction
The plaintiff brings this action against six remaining defendants. The operative complaint dated April 29, 2016 (#226) alleges, in eight counts, different legal theories of recovery against the various defendants all of which arise out of statements made by the various defendants which the plaintiff claims were defamatory, invaded his privacy by casting him in a false light or were otherwise tortious. Five of the defendants, collectively referred to as the Meredith defendants, consist of the Meredith Corporation d/b/a Channel 3 Eyewitness News, Eric Parker an employee and reporter of the Meredith Corporation and three other employees of the Meredith Corporation who are alleged to have had responsibilities, supervisory in nature, over the defendant Parker and the subject broadcast which contained the allegedly defamatory statements. The sixth defendant Wyatt Kopp is alleged to be a former temporary assistant clerk of the New London courthouse and is alleged similarly to have made statements that were defamatory or otherwise tortious in nature relating to the plaintiff. The defendant Kopp is not involved in the subject motion.
The plaintiff originally brought this action against five other defendants as well. The case had been removed to federal district court where the claims against those five defendants had been dismissed. After adjudicating the federal claims against those five defendants the federal district court remanded this case back to state court for adjudication of the state law claims against the remaining six defendants.
The operative complaint is dated after and was filed after the subject motion to strike. This unusual situation is the result of a prior order of the court (docket number 181.1) which required the plaintiff to file a revised complaint which revisions were specifically detailed by the court. That order included a court determination that the substantive issues raised by the Meredith defendants already filed motion to strike would not be impacted by the revisions required by the court and that the court would hear the Motion to Strike. This court, consistent with that prior court order, ruled that it would hear the previously filed motion to strike as contemplated against the subsequently filed revised complaint. This court also permitted the plaintiff to file any additional response to the motion to strike subsequent to the filing of the April 29, 2016 revised complaint. (See docket number 235.01.)
II. The Motion to Strike
The Meredith defendants move to strike the complaint in its entirety on the grounds that (1) they are protected under the first amendment to the United States Constitution; (2) the plaintiff has not alleged facts to show that the Meredith defendants made any factual statements at issue with knowledge that such statements were false or with reckless disregard of whether they were false or not; (3) the subject news cast was accurate as a matter of law; and (4) the news cast was a statement of protected journalistic opinion. The Meredith defendants also assert that the plaintiff has failed to plead a prima facie case of negligent misrepresentation, negligence or negligent infliction of emotional distress.
III. Motion to Strike-Standards
" The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). Connecticut Practice Book Section 10-39 provides that " a motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof to state a claim upon which relief can be granted; or (2) the legal sufficiency of any prayer for relief in any such complaint . . ." Of course " 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 facts necessarily implied from the allegations are taken as admitted." Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006) (internal quotation marks omitted.) " If any facts provable under the express and implied allegations the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
" A motion to strike admits all facts well-pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997) (emphasis in original; internal quotation marks omitted.) " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003) (internal quotation marks omitted.) The complaint in the case at bar contains several exhibits which are attached thereto. In considering a motion to strike a complaint or count thereof the court must consider the exhibits since " a complaint includes all exhibits attached thereto." Tracey v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280 cert. denied 284 Conn. 910, 931 A.2d 935 (2007).
IV. The Complaint
The complaint sounds in eight counts which are entitled as follows: First count, false light invasion of privacy and the right to be let alone; Second count, defamation of character under common law, libel; Third count, slander & libel; Fourth count, malicious editing of the plaintiff's exhibits in his pending action; Fifth count, Eric Parker and Wyatt Kopp knowingly broadcast the false conclusion that the plaintiff's pending lawsuits are frivolous; Sixth count, negligent misrepresentation; Seventh count, negligence action; Eighth count, negligent infliction of emotional distress. The complaint alleges the following facts.
On or about September 26, 2013 the Meredith defendants broadcast to the public on its TV station a story entitled " Frivolous Lawsuits are the Basis for a New Law." A transcript of the broadcast was also posted on the website of the defendant Meredith Corporation. The plaintiff alleges that the broadcast was in retaliation for his challenging the constitutionality of C.G.S. section 52-190a (a statute setting forth specific requirements necessary in order to bring a medical malpractice action) and for exposing wrongful conduct of then Judge Thomas Parker (there is no alleged relationship between the defendant Parker and former Judge Parker). The plaintiff alleges that the defendants used his name and likeness without his authorization. He also alleges that the broadcast: stated or suggested that he had filed nine frivolous lawsuits; characterized his lawsuits as varied and imaginative; stated that one of his lawsuits sought $45,000,000 in damages; stated that the plaintiff's lawsuits contained illustrations showing various people that he had sued; stated that his lawsuits were frivolous; unfairly compared him to another individual Cecilia Lebby who had filed seventy lawsuits when he had only filed nine; and stated that in response to a request for comment by the defendant Parker the plaintiff stated that if the defendants contact him again or use his name without his permission that he would sue the defendants. The plaintiff further alleges that the title of the broadcast " Frivolous Lawsuits Are the Basis for a New Law" implies that any indigent person who applies for a fee waiver is bringing a frivolous lawsuit.
Additionally the plaintiff alleges the Meredith defendants intentionally omitted certain facts including that his original medical malpractice lawsuit attached a " certificate of merit" signed by an individual with appropriate medical, academic and psychiatric credentials; that the broadcast ignored the affidavit of a clerk in the New London superior court which the plaintiff claims substantiated some of the claims made in his nine lawsuits and that the broadcast ignored certain federal court decisions which did not dismiss certain claims of the plaintiff. The plaintiff also alleges that the defendant Parker failed to disclose that he had a conflict of interest because his wife is an employee of the Hartford Hospital (an exhibit to the complaint indicates that the defendant Parker's wife is a nurse at the Hartford Hospital) knowing that the Hartford Hospital had an interest in and in part financed lobbying efforts regarding changes to C.G.S. section 52-190a.
V. Discussion
A. The Defamation Counts (Counts 2 and 3)
In the leading case of Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982) the Connecticut Supreme Court dealt with the standards necessary for a plaintiff to prevail in an action for defamation under Connecticut law when measured against the constitutional protections of the first amendment to the Constitution of the United States. In Goodrich the Supreme Court began " with a critical determination of whether, as a matter of law, the allegedly libelous assertions can reasonable characterize as either fact or an opinion . . ." Goodrich at 110-11. The distinction is critical because
The First Amendment to the Constitution of the United States says: " Congress shall make no law respecting an establishment of a religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." This, of course, was applied to the states by the Fourteenth Amendment to the Constitution.
under the first amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in a false statement of fact.
Goodrich at 117 quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). To the extent the complaint alleges that the Meredith defendants made statements that are, as a matter of law, opinions the complaint fails to state a cause of action as to those statements; to the extent that the complaint alleges statements that can be construed as statements of fact further analysis is required. The alleged defamatory statements contained in the complaint can be itemized as follows: (1) that he brought multiple frivolous lawsuits; (2) that his lawsuits were characterized by the Meredith defendants as " varied" and " imaginative"; (3) that the plaintiff sought $45,000,000 in damages against certain defendants in one of his lawsuits; (4) that the title of the broadcast " Frivolous Lawsuits Are the Basis for New Law" implies that anyone seeking fee waivers is bringing a frivolous lawsuit; (5) that the broadcast compared him to another self-represented indigent plaintiff Cecilia Lebby who had brought seventy lawsuits, implying that his lawsuits were of little merit; and (5) that the Meredith defendants reported that when the plaintiff was asked by the defendant Parker to comment for the story " he declined by email and told [the Meredith defendants] never to contact him ever again and said that if [the Meredith defendants] mentioned his name on television [they would] be sued."
The Meredith defendants in their brief provided the court with what they claim is the entire transcript of the broadcast " for background purposes only." The court, however, is limited in its consideration of the present motion to the allegations set forth in the complaint based upon the previously cited standards governing the court's decision on a motion to strike and cannot consider the transcript provided by the Meredith defendants.
In determining whether an allegedly defamatory statement is a statement of fact or of an opinion Goodrich advises that the " 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." Goodrich at 111-12. See also Traylor v. Kopp, 2015 WL 4727120 (July 2, 2015) (Zemetis, J.)
To be sure the plaintiff alleges in his complaint that the Meredith defendants knew or should have known that his lawsuits were not frivolous and alleges certain facts when read in the manner most favorable to the plaintiff could provide a basis for that conclusion (for example the plaintiff alleges that he attached a certificate of merit to his medical malpractice lawsuit signed by a doctor with appropriate credentials). However to the extent that the complaint alleges certain statements that as a matter of a law would fall into the category of pure opinions as opposed to statement of facts it does not matter what the Meredith defendants knew or should have known or whether or not they acted with reckless disregard of the truth. To the extent the subject broadcast contained matters that are properly characterized as pure opinion those statements " are guaranteed virtually complete constitutional protection. Expressions of 'mixed' opinion, however are privileged only where made (1) by members of the press or news media; (2) about matters of public interest or concern; and (3) without knowingly or recklessly distorting the facts upon which they are based." Goodrich at 118-19 citing Gertz & New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
The court reviews the various statements in light of these standards. Against these standards the court must conclude that any statements contained in the broadcast to the effect that the plaintiff's lawsuits were frivolous, or that they were varied or imaginative are statements of pure opinion. Courts in this state and others, as well as federal courts, have consistently determined that characterizing a lawsuit as frivolous, foolish or in some other derogatory manner constitute matters of opinion. See Traylor v. Kopp supra; Mozzochi v. Hallas, Superior Court, docket number CV95-0556163-S, (January 6, 1998 Rittenband, J.). See also Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 493 (5th Cir. 2013) (calling a lawsuit " foolish and frivolous" is a " [statement] of opinion, not fact and therefore will not give rise to an action for libel"). Similarly, any claim of defamation or libel based upon a comparison of the plaintiff's nine lawsuits with Cecilia Lebby's seventy lawsuits, likewise cannot stand scrutiny. Notably the plaintiff does not allege any inaccurracy in the number of lawsuits reportedly instituted by himself or Lebby. Reading the complaint in the manner most favorable to the plaintiff he implies that such a comparison would give rise to the impression in the public that his lawsuits were frivolous because they were multiple in number. But that implication can only be an implication of opinion and not of fact.
Moreover, the statements of opinion contained in the broadcast are protected by the common-law privilege to express an opinion or otherwise comment on matters of public interest. Charles Parker Company v. Silver City Crystal Company, 142 Conn. 605, 615, 116 A.2d 440 (1955). As recognized in Goodrich this privilege was given constitutional status in cases like New Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), Gertz and their progeny. The privilege attaches only when the opinion concerns a matter of public or general interest. There can be no doubt that the subject was a matter of public interest. It concerned a bill that was recently passed into law by the Connecticut General Assembly and any reference to Mr. Traylor was based on lawsuits that he had filed within the Judicial Branch of government and which were matters of public record. Information contained in court filings is information that is and remains in the public domain. By instituting lawsuits within the courts of the state of Connecticut the matters contained in the plaintiff's filings become matters of public record
the freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the states may not impose sanctions on the publication of truthful information contained in official records open to public inspection.Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).
Because the portions of the broadcast that state or suggest that the plaintiff's lawsuits are frivolous, varied or imaginative or in any way demean their substantive merit or value constitute statements of opinion on matters of public interest they cannot be considered defamatory or otherwise actionable consistent with the guarantees of the first amendment.
Certain other statements, however, which the plaintiff alleges were contained in the broadcast appear to be statement of fact and require further analysis. Specifically the plaintiff alleges that the defendants broadcast contained three statements which appear to be statements of fact: (1) that the plaintiff sought $45,000,000 in damages in a certain lawsuit; (2) that the plaintiff attached to his complaints illustrations of the various defendants that he had sued; (3) that upon being contacted by the defendant Parker for comment on the story the plaintiff responded that he would sue if the Meredith defendants used his name without his permission.
Because there is no allegation that the third statement of fact was false the plaintiff cannot base a cause of action upon it. However the plaintiff does allege that the first and second statements are false.
With regard to the statement that the plaintiff sought $45,000,000 in damages in a particular lawsuit the Meredith defendants asked the court to take judicial notice of the case of Traylor v. State of Connecticut, Superior Court for the judicial district of Norwich/New London at New London, docket number CV135014624. The Meredith defendants argue that in that case the plaintiff expressly sought $15,000,000 in damages but because the plaintiff included a count under certain statutes which allows treble damages, the complaint actually sought $45,000,000 in damages. The Meredith defendants argue that the statement therefore is true and cannot be actionable. The court is not willing in this procedural setting to draw that conclusion. First the subject complaint could be construed as seeking $15,000,000 in damages after the treble damages claim is applied. Given the allegations in the complaint in the case at bar that the broadcast was false and taking that allegation in the manner most favorable to plaintiff, the court is not inclined to draw the conclusion that the allegation that the plaintiff sought $45,000,000 was technically and 100% accurate.
In the alternative the Meredith defendants argue correctly that
contrary to the common law rule that requires the defendant to establish the literal truth of the precise statements made, the modern rule is that only substantial proof need to be shown to constitute the justification. Johnson v. Whipple, 117 Conn. 599, 601-02, 169 A. 619 (1933); Stow v. Converse, 4 Conn. 17, 33 (1821). 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 manner by itself actionable." Orr v. Argus-Press Co., 586 F.2d 1108, 1112 (6th Cir. 1978). The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced. Griffin v. Clemow, 28 Conn.Supp. 109, 111, 251 A.2d 415 (1968), citing Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537 (1934) (some internal citations and quotations omitted).Goodrich at 112-13. However in order to determine whether the defense of truth, particularly when the defendant argues that " the gist" of the broadcast was true, the statement must be read in context. The court, in this procedural context cannot read anything but the allegations of the complaint. The court can only consider the allegations of the complaint which are to the effect that the broadcast statement that the plaintiff sued for $45,000,000 was false. Moreover there are numerous allegations in the complaint that, when taken in the manner most favorable to the plaintiff, could give rise to an implication that the Meredith defendants pursued the story with ulterior motives giving rise to a further implication that their false statements was made with actual knowledge that it was false or with reckless disregard for the truth. Thus, without the full context of the statements the court cannot determine whether " the gist" of this particular statement contained in the broadcast was substantially true.
See footnote 4.
Similarly, the second statement, that the plaintiff attached illustrations of various defendants to his complaints is alleged to be false. The plaintiff alleges that he did not attach illustrations of various defendants but only of one defendant, Judge Thomas Parker. The Meredith defendants did not comment on this allegation. While their oversight may be just that, given the length of the complaint, the complaint nonetheless alleges that the Meredith defendant's broadcast a false statement of fact, along with facts which could give rise to an implication that those defendants acted with knowledge of its falsity or reckless disregard for the truth. Once again without the full context of the article the court cannot make a determination as to whether or not the gist of the broadcast was true. Since these two allegedly false statements run throughout counts two and three the motion to strike must be denied with regard to those two counts.
In this regard this case is distinguishable from Traylor v. Kopp, supra . Within the context of a motion for summary judgment, the court therein determined that there was no genuine issue of material fact that all of the alleged defamatory statements of facts contained in the newspaper article that was the subject of that case were true. The court cannot make that determination in this procedural setting.
B. Count One--False Light Invasion of Privacy
To begin with the plaintiff seems to be under the erroneous impression that because he did not give his permission to use his name that that lack of permission adds some substance to his claim of false light invasion of privacy. It does not. The plaintiff chose to bring nine lawsuits against various defendants and therefore voluntarily entered the public domain. While there is no assertion by the defendants that the plaintiff is a " public figure" as discussed in New York Times v. Sullivan, supra, the Meredith defendants do assert that the broadcast concerned a matter of public concern. Whether a publication involves a matter of public concern is a question of law. Rankin v. McPherson, 483 U.S. 378, 385-86, 107 S.Ct. 2891, 97 L.Ed.2d 315 and n.9 (1987). " [T]he first and fourteenth amendments command nothing less than the states may not impose sanctions on the publication of truthful information contained in official records open to public inspection." Cox Broadcasting Corp. supra . Accordingly any claim by the plaintiff that the Meredith defendants invaded his privacy by publically stating true facts or opinions about matters contained in his lawsuits must fail.
This principle of course is even more amplified in the case at bar when the article while making reference to the lawsuits that the plaintiff had initiated also concerned matters recently considered and acted upon by the General Assembly of the State of Connecticut in passing a new law.
In recognizing the tort of " false light invasion of privacy" the Goodrich court recognized that " the essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true; and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position." Goodrich at 131. The Restatement rule recognized by the Court required that when the publication concerned a matter of public interest that the false light invasion of privacy claim would lie
if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor 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 (2nd), tort section 652E.Goodrich at 131.
The plaintiff has alleged that the defendants broadcast false statements of fact. The complaint also alleges facts when taken together could imply that the false facts were highly offensive to a reasonable person and there are underlying facts which could lead to the conclusion that the broadcasters acted with knowledge of the falsity or with reckless disregard as to the truth of the matters contained in the broadcast. Accordingly the motion to strike count one is denied.
C. Count 4--" Malicious Editing of the Plaintiff's Exhibits"
The motion to strike count four however is granted. The title of count four is " Malicious Editing of the Plaintiff's Exhibits." Essentially the plaintiff alleges in count four that in reproducing exhibits to the plaintiff's complaint in their broadcast the defendant reproduced them at a size in which all of the texts was not readable or omitted certain items that the plaintiff claims they should have included. These claims run headlong into the constitutional principle that " the choice of material to go into a newspaper and the decisions made as to the limitations on the size and content of the paper, and treatment of public issues and public officials--whether fair or unfair--constitute the exercise of editorial control and judgment." Goodrich at 132 quoting Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). Accordingly the plaintiff cannot maintain a claim for omissions in the Meredith defendants broadcast; nor can he maintain a claim because he did not like the size of the copies of his illustrations.
The court also observes that the plaintiff has cited no case in Connecticut or otherwise recognizing a tort of " malicious editing" and it is likely that the Miami Herald principles would prohibit such a claim. The motion to strike the fourth count is granted.
D. Count 5--" Eric Parker and Wyatt Kopp knowingly Broadcast the False Conclusion that the Plaintiff's Lawsuits are Frivolous"
In the fifth count the plaintiff seeks damages for the Meredith defendants knowingly broadcasting that the plaintiff's lawsuits were frivolous. For the reasons previously stated any such broadcast would constitute a matter of pure opinion on a matter of public interest and accordingly would be completely protected under the principles previously discussed. Moreover to the extent the plaintiff alleges in count five that the defendant failed to include certain facts such as the " certificate of merit" attached to his prior medical malpractice claim the decision to omit such items would be protected by Miami Herald Publishing Co., supra . Accordingly the motion to strike the fifth count is granted.
E. Sixth Count--Negligent Misrepresentation
In his sixth count the plaintiff alleges that the Meredith defendants made material misrepresentations concerning the plaintiff and his broadcast. The Meredith defendants correctly state the essential elements of a claim for negligent misrepresentation as " (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Centimark Corp. v. Vill. Manor Assocs. Ltd. P'ship, 113 Conn.App. 509, 518, 967 A.2d 550 (2009), quoting Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). The defendants also correctly assert that the sixth count of the complaint contains no allegation as to the essential element that the plaintiff reasonably relied on the misrepresentation. Accordingly, the sixth count of the complaint cannot survive the Meredith defendants' motion to strike.
Moreover the first amendment protections to which the Meredith defendants are entitled apply regardless whether or not the form of the claim is defamation, false light invasion of privacy or some other alleged tortious conduct such as common-law negligence, negligent misrepresentation or negligent infliction of emotional distress. See Dongguk University v. Yale University, 734 F.3d 113, 127-29.
This is because " the freedom to speak one's mind is not only an aspect of individual liberty, and thus a good unto itself, but also is essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 503-04, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). " Under the first amendment there is no such thing as a false idea." Gertz at 339. Still there is such a thing as a false statement of fact and a " careless error [does not] materially advance society's interest in uninhibited, robust, and wide-open debate on public issues." Id. at 340 (internal quotation marks omitted). " While the erroneous statement of fact is not worthy of constitutional protection it is nevertheless inevitable in free debate" id. (internal quotation marks omitted). Thus because " punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press; [t]he first amendment requires that we protect some falsehood in order to protect speech that matters." Id. at 340-41.
Dongguk University at 128-29. When a broadcast addresses a matter of public concern it is entitled to heighten first amendment protections. And accordingly under those protections liability will not lie for simple negligence but will only lie when the false statements are made with knowledge of their falsity or with reckless disregard for the truth. For all these reasons the motion to dismiss count six is granted.
F. Count Seven--Negligence Action
Similarly count seven must also be dismissed because it fails to include the essential allegation required in a negligence count that the Meredith defendants owed a particular duty to the plaintiff and because the broadcast was entitled to a first amendment protections and therefore liability for simple negligence will not lie.
G. Count Eight--Negligent Infliction of Emotional Distress
Count eight must also be stricken because it fails to contain allegations that allow the plaintiff to overcome the first amendment protections enjoyed by the Meredith defendants and also because count eight fails to allege all of the essential elements of negligent infliction of emotional distress. The essential elements of a claim for negligent infliction of emotional distress are: " (1) the defendant's conduct created a unreasonable risk of causing the plaintiff's 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 Company, 262 Conn. 433, 444, 815 A.2d 119 (2003). The plaintiff does not allege the facts from which it could be determined that the plaintiff's distress was foreseeable or that the emotional distress was severe enough that it might result in illness or bodily harm. Absent these allegations a claim for negligent infliction of emotional distress cannot stand and the eighth count is therefore stricken.
VI. Conclusion
Accordingly the motion to strike the first, second and third count is denied; the motion to strike the fourth, fifth, sixth, seventh and eighth counts is granted insofar as those counts are directed against the Meredith defendants.