Cecelia Lebby v. New Britain Senior High et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANTS

On December 11, 2010, the defendants filed a Motion for Permission to File Summary Judgment.   The court granted permission to the defendants on January 4, 2010, and also granted permission to the plaintiff to present a previously filed Motion for Summary Judgment of her own (# 125).   Each side opposes summary judgment for the other and each has had the opportunity to file papers supporting and opposing the competing motions.   On January 19, 2010, the court heard argument from both sides on these contested motions.

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 the parties to 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.

THE CLAIMS OF THE PLAINTIFF

The operative complaint in this case is the Amended Complaint dated September 22, 2008, # 140.   In it, the plaintiff Cecelia Lebby alleges that from 1990 to 1992 she was discriminated against by the defendant Roxanne LaPlant, a teacher at New Britain Senior High School.   Among the claims of negligence and discrimination against LaPlant are that LaPlant's conduct caused the plaintiff to be “kicked out of school” and that LaPlant did not intervene when the plaintiff was “beaten up” by some male students.   The plaintiff further alleges that in 2007 she received repeated telephone calls from the defendant New Britain Senior High School accusing her of not sending her daughter to school, when in fact the plaintiff's daughter was residing in another school district and was attending an educational program in that district.   These phone calls caused the plaintiff to begin to dwell on her own bad experiences at New Britain Senior High in the early 1990s and thereafter to file this lawsuit.

The plaintiff claims that the negligent conduct of LaPlant and New Britain Senior High constitute defamation, slander, prejudice, and assault.   She claims that she is entitled to one billion one hundred seven million dollars in damages.   The defendants move for summary judgment on multiple grounds which the court will discuss in turn.

THE STATUTE OF LIMITATIONS

The defendants claim that the statute of limitations bars all of the claims against Roxanne LaPlant and any derivative claims against New Britain Senior High. There is no dispute that all of LaPlant's conduct occurred in the early 1990s.   Using either the more liberal three-year statute of limitations for torts such as defamation or the two-year statute for personal injury claims, all causes of action against LaPlant and against New Britain Senior High School for their actions during the plaintiff's high school years are barred.   See Conn. Gen.Stat. § 52-577 and 52-584.   These claims include the ones for assault and discrimination, and for any claims of slander or defamation other than the 2007 phone calls.

THE CLAIMS OF DEFAMATION AND SLANDER

The complaint alleges that there were repeated telephone calls to the plaintiff in 2007 about why the plaintiff's daughter was not enrolled in the New Britain school system.   These phone calls are not actionable as defamation or slander (which is the oral form of defamation).   See DeVito v. Schwartz, 66 Conn.App. 228, 234 (2001), citing W. Prosser & W. Keeton, Torts, (5th Ed.1984), p. 773.   To find the defendants liable for defamation, the court must find that the defendants “published false statements that harmed the [plaintiff] and that the defendants were not privileged to do so.”  Kelley v. Bonney, 221 Conn. 549, 563, 606 A.2d 193 (1992).

First, plaintiff's papers in opposition to summary judgment do not demonstrate that the defendant ever published these statements to a third party, an essential element of the tort.   The plaintiff does not allege publication and she presents no proof of publication.

Second the statements are not defamatory.   The plaintiff states that the defendants accused the plaintiff of not sending her daughter to school in New Britain.   Indeed the plaintiff was not sending her daughter to school in New Britain.   Although it may have been annoying that the New Britain High School authorities did not immediately confirm the plaintiff's claim that her daughter was in school elsewhere, the series of phone calls, as a matter of law, simply do not constitute the kind of false statement that is a necessary element of defamation.

THE REMAINING DEFENSES OF THE DEFENDANTS

The defendants also move for summary judgment on the claims of assault and battery and on the claim of “prejudice” on the grounds that neither the allegations in the complaint nor the supporting papers of the plaintiff set forth a proper cause of action as to any such tort.   The court agrees.

The defendants further assert that the doctrine of municipal immunity cloaks all of the conduct alleged by the plaintiff regardless of when and how the conduct became manifest.   See, e.g., Cotto v. Board of Education, 294 Conn. 265 (2009).   The court does not reach this additional, potentially meritorious assertion of the defendants, because it is clear that the undisputed facts demonstrate that the defendants are entitled to judgment on all of the plaintiff's claims for the reasons previously discussed.

CONCLUSION

The defendants are entitled to judgment as a matter of law on all of the plaintiff's claims.   The Motion for Summary Judgment of the defendants is granted.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.