Debra L. Papapietro v. Town of Glastonbury et al.

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Superior Court of Connecticut.

Debra L. Papapietro v. Town of Glastonbury et al.

CV105014953

Decided: October 22, 2010

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, # 126

The plaintiff, Debra L. Papapietro, amended her complaint pursuant to a Request to Revise, on July 6, 2010, against the town of Glastonbury and Glastonbury Police Officer Anthony Pagliughi, (Pagliughi), alleging defamation, negligent infliction of emotional distress and intentional infliction of emotional distress.1  The defendants, town of Glastonbury and Officer Pagliughi (collectively, “the defendants”) have filed a motion for summary judgment, together with a memorandum and supporting documentation, on the grounds that there exists no genuine issue of material fact as to the liability of these defendants and they are entitled to judgment as a matter of law.2

The defendants submitted with their memorandum of law in support of the motion, the following documentary exhibits:  A-Affidavit of Anthony Pagliughi, dated June 22, 2010;  B-Incident Report, dated March 6, 2010;  C-Telephone Communications Transcriptions, dated March 6, 2010;  D-Telephone Communications Transaction, dated March 6, 2010;  E-Harassment complaint e-mail, dated March 12, 2010;  F-E-mail response, dated March 15, 2010;  G-Notification of Complaint, dated March 16, 2010;  H-Memorandum dated May 5, 2010;  I-Case/Incident report, dated September 7, 2007;  J-Disc of March 6, 2010 telephone communications transcribed in Exh. C;  and K-Disc of communications transcribed in Exh. D. The plaintiff filed an objection to the motion for summary judgment, but did not provide any other documentation.

I

FACTS

On March 6, 2010, Officer Pagliughi responded to a 911 report of a female stalker trespassing at 2118 New London Turnpike, Glastonbury.3  When he arrived at the scene, he met Christopher Kohnle, who had called 911 when he observed the plaintiff's vehicle parked in his father, Ken Kohnle's driveway.   Christopher told Officer Pagliughi that his father had called him that day from New Hampshire after receiving a text message from the plaintiff which stated, “I'm at your house.”   Officer Pagliughi then spoke with Ken Kohnle who expressed concern for his safety, because the plaintiff, a former employee of his Farmington based business had previously harassed him in 2007 for a period of time.   Although he had not had any contact with her for some time, she had been calling him “non-stop” for several hours that afternoon.   Kohnle described the plaintiff's behavior as “fatal attraction shit.”   Kohnle then provided Officer Pagliughi with the plaintiff's cell phone number, and asked Officer Pagliughi to notify her that he did not want her to contact him.

Officer Pagliughi contacted the plaintiff on her cell phone, identifying himself as a Glastonbury police officer.   After some discussion, Officer Pagliughi conveyed Ken Kohnle's wishes that the plaintiff not contact him in any manner or return to his property.   Officer Pagliughi advised the plaintiff that if she attempted to do either, she would be subject to arrest for trespassing and/or harassment.   She acknowledged the warnings, but refused to provide Officer Pagliughi with the correct spelling of her name or her date of birth.4

Following that conversation, the plaintiff called the Glastonbury police department, asking to speak with the officer who had called her.   Officer Pagliughi spoke to her and reiterated Kohnle's request that she not contact him or return to his property.   The plaintiff expressed her desire to speak with Kohnle regarding “a case which I have pending right now,” but Officer Pagliughi expressed to her that he did not want to “get into the middle of a tussle” between her and Kohnle and that he was just conveying Kohnle's wishes.

The plaintiff again called Officer Pagliughi, and told him that Kohnle had called her, and said he never contacted the Glastonbury police.   Shortly thereafter Officer Pagliughi received a call from Kohnle, complaining that the plaintiff had somehow called his unlisted number, flatly denying that he had called the plaintiff, and expressing his fear that she “could be halfway up to New Hampshire by now” because she was “fricking crazy.”   Officer Pagliughi told Kohnle if he had concerns, he would need to contact New Hampshire authorities.

Six days later, the plaintiff e-mailed a complaint to the Glastonbury police chief, Thomas Sweeney, claiming that:  (1) Pagliughi was “guilty of harassing me, stalking me, hindering justice, libel, and, obviously, for causing me mental anguish, etc.;” (2) Pagliughi's “entire ‘Incident Report’ contradicts the taped telephone conversation that I had with Pagliughi;” (3) Ken and Christopher Kohnle did not call the Glastonbury police department as indicated by Pagliughi;  and (4) Pagliughi's incident report “proves the stalking, harassing, etc., by certain police departments in Connecticut via Comcast and TracFone.”   Sweeney replied by e-mail to the plaintiff, informing her that he was referring the matter for a complete investigation, and asked her to contact the Glastonbury police department to schedule a convenient time to discuss the complaint.   Although the plaintiff never acknowledged or responded to Sweeney's e-mail, an internal investigation of Officer Pagliughi's conduct in handling the Kohnle complaint was initiated.

On May 5, 2010, having received no cooperation or evidence from the plaintiff to substantiate her claims, the Glastonbury police department closed its investigation of her complaint.

II

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issues of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  Id.

The plaintiff's amended complaint against the town of Glastonbury and Glastonbury Police Officer Pagliughi purports to assert three causes of action:  defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress.   All three counts appear to be against both defendants.   The defendants contend that the plaintiff's material allegations are not only insufficient to state a claim or a cause of action, but are also categorically false, and they are entitled to judgment in their favor as to all three counts in the plaintiff's amended complaint.

“Defamation is comprised of the torts of libel and slander.   Defamation is that which tends to injure reputation in the popular sense;  to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him ․ slander is oral defamation ․ libel is written defamation.”  Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).

A cause of action for defamation requires that the plaintiff plead and prove 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.  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004);  Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984).

The plaintiff's revised complaint is devoid of the necessary facts to establish a cause of action for defamation or libel.   She did not plead any of the elements necessary for an action in defamation or libel.   Her claim is premised on her disbelief that Ken and Christopher Kohnle called the Glastonbury police department to complain about her, and based upon that disbelief, the plaintiff avers that Officer Pagliughi's documentation of the complaints in his incident report are “libelous.”   She does not allege the facts necessary to state a legally sufficient defamation claim as to these defendants.   The undisputed facts and evidence in this case prove that there are no false statements of facts contained in the Incident Report.5  The defendants are entitled to summary judgment on any claim for defamation, slander or libel.

The plaintiff claims negligent inflection of emotional distress, and labels it as count two.   In order to claim negligent infliction of emotional distress, a plaintiff must plead the following elements:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the 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 Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).   Unlike general negligence claims, in negligent infliction of emotional distress claims, foreseeability of the precise “nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found ․” Maloney v. Conroy, 208 Conn. 392, 398, 545 A.2d 1059 (1988).   In other words, the plaintiff must allege that the defendant should have realized that their conduct involved an unreasonable risk of causing emotional distress, and that such distress, if in fact it were caused, might result in her illness or bodily harm.

The plaintiff fails to plead or allege any of the elements necessary for a claim of negligent infliction of emotional distress.   Even in viewing the plaintiff's allegations in the best possible light, there are simply no facts alleged to substantiate a claim for this cause of action.   Moreover, the overwhelming evidence indicates that Officer Pagliughi merely received and investigated the harassment complaint made by Ken and Christopher Kohnle, and notified the plaintiff that she should not contact Kohnle.

The plaintiff also fails in her attempt to set forth such a claim of intentional infliction of emotional distress.   To prevail on a claim for intentional infliction of emotional distress, a plaintiff must plead and prove that (1) 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) the conduct was extreme and outrageous;  (3) the defendant's conduct was the cause of the plaintiff's distress;  and (4) the emotional distress sustained by the plaintiff was severe.  Diamond v. Yale University, 66 Conn.App. 764, 765-66, 786 A.2d 518 (2001).

The plaintiff has not plead nor alleged any of the elements of a claim for intentional infliction of emotional distress.   Moreover, the overwhelming evidence demonstrates that Officer Pagliughi received and documented the complaints made by Christopher and Ken Kohnle and notified the plaintiff that she was not to contact Kohnle or return to his property.

Officer Pagliughi had never met, spoken with, or had any knowledge of the plaintiff prior to the complaint being made by the Kohnles, and has had no contact with her since.   The evidentiary exhibits submitted by the defendants reveal that Officer Pagliughi's conduct in investigating this matter were well within the bounds tolerated by decent society.   See, Valentine v. LaBow, 95 Conn.App. 436, 488, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).   As such, the plaintiff is unable to prevail on this matter under such a theory of liability.   Accordingly, the defendant is also entitled to summary judgment for a potential claim for intentional infliction of emotional distress.

III

CONCLUSION

Accordingly, the defendants have met their burden, as the movants, to show the absence of genuine issues of material fact.   The defendants' motion for summary judgment as to counts one, two, and three of the revised complaint is granted.

Swienton, J.

FOOTNOTES

1.  FN1. The action is also being brought against the town of Farmington and Farmington Police Officer Kenneth P. Miller.   This memorandum only address counts one, two and three against the Glastonbury defendants.

2.  FN2. The defendants had previously filed a motion for summary judgment on the original complaint dated April 23, 2010.   However, because the plaintiff filed a revised complaint subsequent to the filing of the motion for summary judgment, the court denied the motion without prejudice in order to avoid a procedural quagmire.  (Swienton, J.) Although the defendants' motion itself addresses count one, defamation, and count three, intentional infliction of emotional distress, their memorandum of law in support of the motion for summary judgment states:  “Plaintiff's amended complaint purports to assert defamation and negligent and intention (sic) infliction of emotional distress claims against Officer Pagliughi.”   In a footnote, they also contend that “[a]s in her original complaint, Plaintiff's Amended Complaint improperly combines these purported causes of action in a single count with three separate headings.   Nonetheless, the evidence submitted herewith demonstrates that the plaintiff cannot sustain any claim against Officer Pagliughi or the Town, whether pled properly or not, based upon the events ․” (Defendant's Memorandum of Law in Support of Motion for Summary Judgment, n.6).   The court will, therefore, address all three counts against them.

3.  FN3. All of the telephone conversations that took place in connection with this action were automatically recorded by the Glastonbury police department recording system.   Transcriptions of these recorded communications were attached as Exhibits C and D. The defendants have provided the plaintiff with a disc containing the audio versions of these and other recorded communications.

4.  FN4. The Glastonbury police department dispatcher contacted the Farmington police department, based upon Kohnle's statement that he had previously reported the plaintiff to the Farmington police, and the dispatcher was able to obtain the correct spelling of the plaintiff's last name and her date of birth.  (Defendant's Exh. C, Tab 4.)

5.  FN5. Moreover, any statements published in the Incident Report could be claimed as privileged.   The undisputed facts establish that (1) there was an interest to be upheld in that Officer Pagliughi was documenting a harassment complaint made to him by a third-party civilian;  (2) the incident report is limited in scope to serve this interest;  (3) Officer Pagliughi prepared the Incident Report in good faith;  (4) Officer Pagliughi prepared the Incident Report at the proper occasion, following his investigation;  and (5) Officer Pagliughi did not publish the Incident Report to any improper parties.   See, Miles v. Perry, 11 Conn.App. 584, 595, 599 A.2d 199 (1987).

Swienton, Cynthia K., J.

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