Opinion
CV156054289S
11-24-2017
TENG WANG v. Sultan ALSOLAMI et al.
UNPUBLISHED OPINION
OPINION
Sybil V. Richards, Judge
This is a nuisance action filed by the plaintiff against the defendants. In count one of her three-count complaint, the plaintiff alleges that the defendants violated a certain lease provision referred to as the " quiet consideration times" clause (" quiet times") by engaging in certain activities that caused excessive noise during the prohibited hours set forth therein. In her second count, the plaintiff alleges that the defendants falsely accused her of threatening them. And, finally, the plaintiff makes a claim for negligent infliction of emotional distress caused by the defendants’ conduct and their allegation that she threatened them. At a two-day trial beginning on July 12, 2017, the court heard testimony from both of the parties and the defendants’ two witnesses. The court also admitted evidence during the trial. Subsequently, the court requested briefs from counsel. Based upon the credible and relevant evidence presented and the court’s observation of the demeanor of the witnesses, the court finds the following facts.
The first of the defendants’ witnesses was the property manager who worked for the landlord during the relevant times and the second witness called by the defendants was the arresting officer, a police sergeant.
Facts
Each party leased an apartment in a post World War II multi-family building located at 200 Elm Street, West Haven, Connecticut. The plaintiff testified that she came from China to attend a local college full time and major in legal studies. She also used the word " loud" to describe her manner of speech, which description will become clearer later on in this decision with respect to the dispute between the parties. The plaintiff occupied unit 310 from September 1, 2014 to June 30, 2015. The defendant husband and the defendant wife are from Saudi Arabia and are Muslim, which description of their nationality and religion is significant in connection with the parties’ disagreement. The defendants occupied unit number 410, above the plaintiff’s unit, prior to the plaintiff’s occupancy and resided there until August of 2015. There is no consensus about when exactly the plaintiff began lodging her complaints with the defendants and with the property manager for the building. According to the property manager’s testimony, the plaintiff filed complaints with her 2-3 times and one of those times was during the period when the defendants were abroad. The plaintiff testified that the noise began on the very first day of her lease term. However, the parties do agree that, on the very first occasion, the plaintiff went upstairs to the defendants’ apartment to discuss noises. During that visit, the defendant wife denied that there was any excessive noise emanating from the defendants’ unit but shared her contact information with the plaintiff so the plaintiff could reach out to her about any future noise complaints. The defendant wife also informed the plaintiff that the defendants were going to host a party, although the parties disagree about the precise time for which the party was scheduled. The defendants testified that the party was scheduled between 5 p.m. and 10 p.m. but the plaintiff testified that the partying extended well beyond those hours. After this initial encounter, the defendants became wary of the plaintiff. Subsequently, the plaintiff tapped on the ceiling of her unit and banged loudly on the defendants’ apartment door. In response, the defendants refused to open their door to talk to the plaintiff about her noise complaints any longer. On February 25, 2015, the defendant husband called the police about someone banging on his door and reported that he believed it was the plaintiff. The police report indicates that no arrest was made that day. The police report further indicates that both defendants were at home, the unit appeared to be quiet and that neither a television nor a radio was turned on. Further, it is noted in the police report that the plaintiff approached them as they were exiting the building to complain about noise from the defendants’ unit and mentioned that she would speak to the property manager again about possibly relocating to the highest floor in the building (the 4th floor).
The court, in its observation of this witness in particular, notes that the plaintiff’s voice volume did indeed project throughout the entire courtroom during her testimony and that there was, for the most part, no modulation in her voice. She also appeared to be animated during her testimony.
The court, in its observation of the demeanor of these two witnesses in particular, notes that, in stark contrast to the plaintiff’s voice, both of the defendants spoke in a significantly lower tone of voice. They also appeared to be calm during their testimonies.
The conflict between the parties came to a climax on the evening of March 3, 2015, when the police arrested the plaintiff on a misdemeanor charge of breach of peace. According to the plaintiff, she went to the defendants’ unit that day to request that they stop making noise during the quiet times and was suffering from an emotional breakdown caused by the defendants’ loud talking, heavy walking and loud lovemaking sounds in violation of the quiet times clause. The defendants’ version of the course of events that day differs. They reported that the plaintiff was kicking and banging on their door and that she was out of control. The defendants further claim that the plaintiff made derogatory remarks about their nationality and religion during this incident. The plaintiff vehemently denied that she made those remarks and claimed that she has friends who come from Saudi Arabia. She acknowledged that the property manager offered to move her to the 4th floor but declined the offer because the property manager would not cover all of her incidental moving expenses such as disassembling her furniture.
According to the police report, the plaintiff referred to the defendants as " Saudis" and stated, in so many words, that they think they can do anything.
The plaintiff relies on the quiet times clause in the parties’ lease agreement as the basis for her claims. It provides as follows:
The quiet consideration times clause is in the lease agreement signed by the plaintiff and the defendants, respectively.
" You agree that the hours of 10:00 p.m. (2200) through 7:00 a.m. (0700) are designated quiet consideration times! Please refrain from any indoor or outdoor activities, including but not limited to constant or excessive walking or running, children playing, playing loud music or television, closing of doors, loud talking or yelling, and dropping things or banging which may prevent your neighbors from enjoying a peaceful night’s sleep."
I. Standard of Law
A. Nuisance
" [I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional ... or the result of the defendant’s negligence ... Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case." (Citations omitted.) Pestey v. Cushman, 259 Conn. 354, 361, 788 A.2d 496 (2002).
" In balancing the interests, the fact finder must take into consideration all relevant factors including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff’s use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable." Id., at 361, 788 A.2d 496.
" The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable ... Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all the circumstances of the particular case, without being compensated." (Citations omitted.) Id., at 361-62, 788 A.2d 496.
Based upon the facts found by the court, the court finds that the plaintiff failed to sustain her burden of proof that there was a private nuisance caused by the defendants and that such nuisance interfered with her rights as a tenant. What the plaintiff demonstrated on an evidentiary level is that she had complaints about sounds that were allegedly coming from the defendants’ apartment. The record also reflects that she approached the defendant wife in person on one occasion, complained to the property manager 2-3 times and repeatedly banged on and kicked the defendants’ door a few times. From the record, the court also finds that the plaintiff was invited to be relocated several times but she declined because she believed that the landlord would not pay for her moving-related expenses. Further, the court finds that the two police reports in evidence lack any reference to excessive or any type of loud sounds coming from the defendants’ apartment. Additionally, the court finds that the property manager’s testimony did not confirm the plaintiff’s claims. In fact, the property manager testified that there were no complaints, prior to the plaintiff’s, about the defendants as tenants. All in all, the plaintiff’s nuisance allegations are simply unsubstantiated and denied by the defendants. Thus, the court concludes that the plaintiff’s first count fails.
B. Defamation
" Although defamation claims are rooted in the state common law, their elements are heavily influenced by the minimum standards required by the [f]irst amendment ... At common law, [t]o establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory state; (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. 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 ... It is well settled that for a claim of defamation to be actionable, the statement must be false ... and under the common law, truth is an affirmative defense to defamation ... the determination of the truthfulness of a statement is a question of fact for the jury ... Each statement furnished a separate cause of action and requires proof of each of the elements for defamation." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 430-32, 125 A.3d 920 (2015).
" Defamation is comprised of the torts of libel and slander: slander is oral defamation and libel is written." Skakel v. Grace, 5 F.Supp.3d 199, 206 (D.Conn. 2014). " An indispensable element of an action of slander is injury to the reputation of the person defamed ... The action fails unless that element is present. When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff’s reputation. He is required neither to plead nor prove it ... The rule is different, however, when the defamation is actionable per quod. There, the law indulges in no such presumption. For this reason, injury to the reputation must be alleged and proved as an essential link between the slanderous utterance and the special damage which constitutes the basis of the recovery per quod ... The special damage ... must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and that conduct must be directly caused by the publication of the slander ... For example, if a third person, because he believes the slander or because of an unwillingness to employ one whose reputation has been impaired by it, withdraws his previous offer to hire that person, the latter’s loss of reasonable expectation of gainful employment would amount to special damage." (Citations omitted.) Urban v. Hartford Gas Co., 139 Conn. 301, 308-09, 93 A.2d 292 (1952). " Slander is actionable per se if it charges incompetence or dishonesty in office, or charges a professional person with general incompetence ... [S]lander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached." (Internal quotation marks omitted.) Silano v. Cooney, Superior Court, judicial district of Fairfield, Docket No. CV-12-5029873-S (August 17, 2015, Bellis, J.) (60 Conn.L.Rptr. 850, 851), citing Miles v. Perry, 11 Conn.App. 584, 602, 529 A.2d 199 (1987).
The court will next address the plaintiff’s second count of defamation. The plaintiff contends that the defendants slandered her on March 3, 2015 by telling the police that she threatened them when the police responded to calls about the incident in which the plaintiff was kicking the defendants’ door. She denies threatening either defendant. Yet, the plaintiff failed to meet any of the four, fundamental criteria to establish defamation. She did not even satisfy the first criteria; that is, the plaintiff did not prove that the defendants published a defamatory statement. The March 3rd police report contains no such language that was attributed to the defendants but it does reflect that the plaintiff " ... opened the [defendants’] apartment door and began yelling ..." Therefore, like her nuisance allegation, the plaintiff failed to present any credible evidence to the court that the defendants uttered a word, words or a statement to that effect. So, the plaintiff’s defamation count fails as well.
C. Negligent Infliction of Emotional Distress
" To prevail on a claim of negligent infliction of distress, the plaintiff is required to prove that (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." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 182 n.8, 994 A.2d 666 (2010). Thus, " [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) McNamara v. Tournament Players Club of Connecticut, Inc., 270 Conn. 179, 197, 851 A.2d 1154 (2004).
" [A] pivotal difference between claims for emotional distress based on intentional conduct and those based on negligent conduct is that an essential component of an intentional infliction claim is that the defendant’s alleged behavior must be extreme and outrageous. A claim based on the negligent infliction of emotional distress requires only that the actor’s conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm. Thus ... a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior." Olson v. Bristol -Burlington Health District, 87 Conn.App. 1, 7, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).
In applying these legal principles to the facts of this action in relation to the plaintiff’s claim of negligent infliction of emotional distress, the court concludes that the plaintiff did not satisfy her burden of proving any of the factors necessary to support such a claim. The facts found by the court do not establish that the plaintiff proved that the defendants engaged in conduct that created an unreasonable risk of emotional distress to the plaintiff. Again, in short order, the facts proven merely demonstrate that the plaintiff had a face to face encounter with the defendant wife once regarding the plaintiff’s noise complaints, complained to the property manager 2 to 3 times regarding noise the plaintiff heard from the defendants’ unit and was arrested for breach of peace. Hence, the plaintiff failed to prove count three of her complaint as well.
II. Defendants’ Motion for Judgment of Dismissal
After the plaintiff rested her case, the defendants made an oral motion for judgment of dismissal for failure to make a prima facie case. The court reserved its ruling until the time of its decision. The applicable law regarding such a motion is as follows.
Practice Book § 15-8 provides: " If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has introduced evidence and rested, a defendant may move for a judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made." " [A] motion for judgment of dismissal has replaced the former motion for nonsuit [pursuant to General Statutes § 52-210] for failure to make out a prima facie case ... In evaluating such a motion, the question is whether sufficient facts were proved to make out a prima facie case." (Citation omitted; internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 700 n.9, 900 A.2d 498 (2006).
" The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it ... For the court to grant the motion for judgment of dismissal pursuant to Practice Book § 15-8, it must be of the opinion that the plaintiff has failed to make out a prima facie case. In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which is adduced to prove ... [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff’s] favor ... Whether the plaintiff has made out a prima facie case is a question of law ..." (Citation omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Moss v. Foster, 96 Conn.App. 369, 378, 900 A.2d 548 (2006).
The legal standard above " appl[ies] only in cases where the court’s dismissal prevents the plaintiff from presenting his case to the factfinder for consideration on the merits ... In such cases, [the] court considers only whether there [is] sufficient evidence to allow the fact finder to consider the claim." (Internal quotation marks omitted.) Fort Trumbull Conservatory, LLC v. New London, 135 Conn.App. 167, 178, 43 A.3d 679, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012). Where the case is tried to the court, however, " the question ... is not whether the evidence [is] sufficient to present a claim to the finder of fact, but whether, having presented [his] case to the factfinder at trial, the plaintiff sustained [his] burden of proof. In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ... Accordingly, in such instances a trial court confronted with a motion to dismiss for failure to establish a prima facie case is permitted to conclude that the plaintiff did not sustain [his] burden of proof." (Citation omitted; internal quotation marks omitted.) Id.
In light of the court’s decision in relation to all three of the plaintiff’s counts in her complaint, the court finds that the plaintiff further failed to make out a prima facie case in this action. Although the defendants presented their case to the court after the plaintiff rested, the court need not reach the merits of the defendants’ rebuttal case under these circumstances except as otherwise addressed herein.
Conclusion
For the foregoing reasons, the court hereby grants the defendant’s oral motion for a judgment of dismissal pursuant to Practice Book § 15-8 as the court has found, as detailed in this decision, that the plaintiff failed to satisfy any of her evidentiary burdens of proof with respect to her nuisance, defamation or negligent infliction of emotional distress allegations in her complaint and, therefore, did not make out a prima facie case. As for the issue presented by the court that was responded to by the parties in their briefs, the court notes that it considered their arguments and agrees with the defendants that the plaintiff’s motion to strike was not properly before the court as it was not marked " ready" in accordance with Practice Book § 11-18(a)(1). Further, the court notes that both the plaintiff’s trial management report and the parties’ joint trial management report represented that no motions were pending in advance of the trial. With respect to the defendants’ request for attorneys fees and punitive damages, the court declines to award any attorneys fees or damages to the defendants as there was no finding by the court that the defendants sustained their burden of proof.