Donna Valente v. Securitas Security Service U.S.A., Inc., et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT AS TO CLAIMS OF PLAINTIFF DONNA VALENTE FILED BY SECURITAS DATED DECEMBER 15, 2009 (# 146.00)

This Motion for Summary Judgment is addressed to plaintiff's Second Amended Complaint dated October 28, 2009 (# 140.00) in four counts against the defendant, Securitas Security Services U.S.A., Inc. (Securitas).  Securitas provided security services to plaintiff, Donna Valente's employer.   Valente's claims arose out of offensive activity by the other defendant, Joseph Veneri, (Veneri) a security guard employed by Securitas and assigned to the plaintiff's place of business.   The Second Amended Complaint is in six counts:  as to Securitas the four counts are:  invasion of privacy, negligence, negligent supervision, and negligent infliction of emotional distress.   Veneri is joined in the invasion of privacy, negligence and negligent infliction of emotional distress counts and is the sole defendant in two counts of battery and intential infliction of emotional distress.

Securitas' Motion for Summary Judgment dated December 15, 2009 (# 146.00) asks for summary judgment as to counts one, two, three and four;  the four counts above mentioned.   Securitas “submits that there is no material issue of fact that Securitas USA was never made aware, and had no reason to know, of the conduct described in the Plaintiff's complaint and such conduct was actively concealed from Securitas USA by the actions of both the Plaintiff and the Third Party Defendants.   Further, to the extent that any liability should be awarded in favor of the Plaintiff, the actions of the Third Party Defendants are the cause of the Plaintiff's purported damages, as described in detail in the accompanying memorandum.”

The plaintiff's employer is Affinion Group, LLC. Trilegiant Corporation is the parent of Affinion.   The plaintiff has no direct claims against Affinion/Trilegiant.   Securitas filed an Amended Apportionment and Third Party Complaint dated July 21, 2009 (# 133.00) against Affinion/Trilegiant.   A separate Motion for Summary Judgment dated December 15, 2009 (# 148.00) against Affinion/Trilegiant filed by Securitas will be dealt with in a separate June 7, 2010 memorandum of decision.   Affinion/Trilegiant is the Third Party Defendant referred to in this instant Motion for Summary Judgment and will be referred to as Affinion hereafter.

The file contains graphic detail of the offensive conduct allegedly performed by Veneri.   Such conduct was directed to Valente by Veneri and is the basis of the damages suffered by her.   The recitation of the underlying offensive conduct is not necessary for the decisions on the two motions for summary judgment.

The standards for ruling on motions for summary judgment are both well established and familiar, yet they bear repeating and articulating in each instance where such relief is sought, lest an inference be drawn that such standards were not adhered to in a given case, or a suspicion arises that a different standard of review was followed.  “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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Mazurek v. Great American Ins. Co., 284 Conn. 16, 26 (2007).

In cases such as this, where “summary judgment [is] rendered upon the issue of liability only, without deciding damages, [it] is not a final judgment from which an appeal lies.”  Balf Co. v. Spera Construction Co., 222 Conn. 211, 212 (1992).   This is because of the principle of law that, ‘judgment is not completed until damages have been assessed.”  Tureck v. George, 44 Conn.App. 154, 157, cert. denied, 240 Conn. 914 (1997).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue 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.”  Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006).

“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 ․ 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. 318-19.

“A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”   Practice Book § 17-45.  “[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on personal knowledge;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251 (1995).

“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].”  Allstate Ins. Co. v. Barron, 269 Conn. 394, 406 (2004).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, cert. denied, 235 Conn. 915 (1995).  “Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment.”  Id. 245.   However, the court may consider not only the facts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them.”  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381 (1969).

Three of the counts relate to allegations of negligence:  The second count is negligence as to both defendants, the third count is negligent supervision as to Securitas and the fourth count is negligent infliction of emotional distress as to both defendants.   In the second count the allegations of negligence are as follows:  “Securitas discharged its duty negligently in that it, or its agents or employees, failed to:  a. keep, maintain and monitor access to plaintiff's private, locked office to authorized personnel only;  b. protect the plaintiff from unlawful or unauthorized access to her private, locked office;  c. prohibit or otherwise prevent defendant Veneri from accessing plaintiff's locked office without the express instruction to do so, either by Securitas, plaintiff or the Employer;  d. prohibit or otherwise prevent defendant Veneri from handling plaintiff's personal items and professional documents and other materials without the express instruction to do, either by Securitas, plaintiff or the Employer;  e. prohibit or otherwise prevent defendant Veneri from ․ f. protect plaintiff from unwanted ․ of defendant Veneri;  and g. protect plaintiff from being harassed, spied upon and stalked by defendant Veneri.”

In the third count of negligent supervision the allegations of negligence are as follows:  “Securitas negligently failed to hire, train or supervise defendant Veneri in one or more of following respects:  (a) by, upon information and belief, failing the exercise reasonable care in determining whether defendant Veneri was competent to fulfill the duties required by the position for which Securitas hired him;  (b) by, upon information and belief, failing the exercise reasonable care in training defendant Veneri to be competent to fulfill the duties required by the position for which Securitas hired him;  (c) by failing to take reasonable precautions to avoid the criminal and abusive conduct by defendant Veneri, particularly following prior incidences of sexual harassment and invasions of privacy by the defendant Veneri;  (d) by failing to monitor defendant Veneri's activities as security guard;  (e) by failing to require a complete and accurate accounting of Veneri's activities;  (f) by failing to institute any suitable review of defendant Veneri's activities once it became known that plaintiff's locked office had been invaded for the purpose of depositing an anonymous letter there;  (g) by failing to assess whether security measures, including video monitoring available to protect the occupants of the Employer's headquarters were sufficient to avoid security risks to those working there;  and (h) by failing to identify and respond to the deviance of defendant Veneri, a security officer whom defendant Securitas had hired and allegedly screened and trained;  (i) By abandoning its obligation to provide on site supervision of defendant Veneri at the Employer's premises.”

The fourth count alleges negligent infliction of emotional distress and claims that “the defendants' conducted (sic) created an unreasonable risk of causing severe emotional distress to plaintiff, and both defendants knew or should have known that such conduct was likely to result in emotional distress that might cause illness or bodily harm.   In particular, the defendants owed plaintiff a duty to protect her safety, and they failed to take reasonable measures to avoid harm to her at her workplace.”   The previous allegations of negligence in the second count were incorporated by reference into this negligent infliction of emotional distress count.

In essence each of the above three counts, the second, third and fourth counts are negligent actions.  “Summary judgment is not appropriate in cases involving mixed questions of law and fact, such as negligence actions.  Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198-99, 319 A.2d 403 (1972).   Summary judgment should not be used in cases that are complex;  Miller v. United Technologies Corp., supra, 233 Conn. 752;  in cases that concern important public issues or questions of inference as to motive or intent;  Nolan v. Borkowski, 206 Conn. 495, 505, 538 A.2d 1031 (1988);  see Picataggio v. Romeo, 36 Conn.App. 791, 793-94, 654 A.2d 382 (1995);  or in ones that involve subjective feelings and reactions.  Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990);  United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 375;  see E. Stephenson, Connecticut Civil Procedure, supra, § 100(c), pp. 295-96.”  Gould v. Mellick and Sexton, 66 Conn.App. 542, 556 (2001).

In this case the affidavits and deposition testimony of well over 400 pages supplied by both parties indicate that the following are material issues of fact:

The failure of Securitas to perform training and monitoring of its on-site employees as advertised in the Securitas website.

The failure of Securitas to conduct performance evaluations of Veneri.

The lack of follow-up periodic training by Securitas of Veneri.

The May 6, 1999 incident involving Veneri at St. Raphaels Hospital while employed by Securitas and actions taken thereafter by Securitas.

The Counseling and Corrective Action taken by Securitas of Veneri concerning the September 5, 2004 incident at Affinion.

Securitas failed to consult with the plaintiff on steps it had taken to prevent Veneri from further contacting the plaintiff.

Securitas failed to take any post-discharge steps to prevent Veneri from further contacting the plaintiff.

Securitas was contacted by Affinion about the harassment of Valente before the video camera was installed on December 28, 2007 and before the second note was discovered on December 10, 2007.

The adequacy of any investigative steps taken by Securitas after it was contacted after the November 2007 note placed on the plaintiff's desk.

The December 27, 2001 incident at Affinion involving Veneri accessing private information on the action taken thereafter by Securitas.

The nature and extent of supervising site inspections controlled by Securitas at Affinion while Veneri was on duty.

The failure of Securitas to perform in accordance with its contract.

The lack of “Weekly Guard Spot Check-Reports.”

The failure of Securitas to maintain “specification, performance standards, and criteria and all other terms and conditions set forth in the applicable schedules, as well as the response submitted by vendor to senders RFP and accordingly.”

The failure of Securitas to abide by the terms and conditions in the Cedant RFP.

The failure of Securitas to “conduct inspections of security personnel on all shifts to measure competency, appearance and morale.”

The failure of a “field supervisor or contractor's management representative shall visit each shift at least three times per week:  i.e., a minimum of nine visits per week at each site.”

The failure of Securitas to conduct supervisory sites visits without advance notice to the security personnel on site.

The lack of initial training by Securitas of Veneri.

Securitas providing Veneri with a master key to all offices even though some offices were locked and on a no access list, when during that time the plaintiff's office was locked.

Securitas failed to employ any screening process of Veneri when hired or throughout his entire employment with Securitas.

Securitas failed to give adequate training to Veneri.

Securitas failed to give Veneri sexual harassment training.

Securitas failed to give Veneri privacy training.

Securitas failed to provide a mentor to Veneri.

Securitas failed to inform Veneri about the plaintiff's complaints before his discharge on January 7, 2008.

After the May 6, 1999 incident at St. Raphael Hospital, Veneri received no adequate training from Securitas.

After the December 2001 incident at Affinion, Veneri received no adequate training from Securitas.

Securitas failed to give Veneri further appropriate training and supervision after the September 4, 2004 incident at Affinion despite the fact that a “Counseling and Correct Action Report” was issued by Securitas.

The extent of Veneri's inspection of the plaintiff's office.

The extent of Veneri's contract with the plaintiff's garments.

Whether Veneri left any notes on the plaintiff's desk.

The inaccuracies of the dates of Veneri's separation from Securitas in January 2008 reflects on the inaccuracies of other records kept by Securitas.

The inaccuracies in the Securitas records showing “last worked 1/3/08” when the Securitas pay records show Veneri working January 5, 2008 and January 6, 2008.

These issues of material fact address only the direct negligence of Securitas and are not related to any claim of vicarious liability of Securitas for the acts of Veneri, as the employee of Securitas.   Valente has not alleged in the invasion of privacy count that Securitas is vicariously liable for the actions of Veneri.   Valente has alleged that Securitas itself committed invasions of privacy.   All of the facts relate to the negligence of Securitas independent of any claim that Affinion was the superceding case of the plaintiff's damages.   That such negligence on behalf of Securitas may be the proximate cause of the plaintiff's damages, is a material issue of fact.  Gutierrez v. Thorne, 13 Conn.App. 493, 500 (1988).

The court finds that the Motion for Summary Judgment (# 146.00) addressed to the second count of negligence, the third count of negligent supervision and the fourth count of negligent infliction of emotional distress must be denied.

The first count of the plaintiff's complaint is entitled invasion of privacy as to both Veneri and Securitas.   In twenty-six paragraphs the plaintiff outlined in detail employment events at Affinion's Norwalk headquarters, the security contract, the security procedures and Veneri's conduct on various dates.   Paragraph 22 states:  “The conduct by the defendants Securitas and Veneri described above has caused plaintiff to fear for her safety and has subjected her to an invasion of her privacy and her personal integrity.”   Paragraph 23 states:  “The defendants have intentionally, or with reckless disregard for the rights of the plaintiff, intruded into plaintiff's seclusion, privacy and personal affairs.”   Paragraph 24 states:  “The actions of the defendant in interfering with plaintiff's seclusion, privacy, and personal affairs or concerns and personal integrity are highly offensive to a reasonable person.”   Paragraph 25 states:  “As a result of the defendant's conduct described above, the plaintiff has suffered fear of her safety, fear of contracting disease, shame, humiliation, severe emotional distress, and her emotional distress is continuing and will likely continue into the future.”

Securitas filed a Motion to Strike on September 18, 2008 (# 103.00) addressing the original invasion of privacy count that contained similar allegations claiming:  “․ this count, Invasion of Privacy, fails to allege the requisite factual foundation to support any finding as to either the negligent or reckless behavior of Securitas, even taking the facts most favorable to the Plaintiff in this matter.”   After briefing and argument, the Motion to Strike was denied without prejudice by the court without a memorandum of decision on November 17, 2008.

“The existence of a cause of action for invasion of privacy has only recently been officially recognized by the Connecticut Supreme Court.”  Jonap v. Silver, 1 Conn.App. 550, 557 (1984), Venturi v. Savitt, Inc., 191 Conn. 588, 591 (1983).   The Connecticut Supreme Court has adopted the four categories of invasion of privacy set forth in 3 Restatement (Second), Torts § 652 A. Those four categories are as follows:  “(a) unreasonable intrusion upon the seclusion of another;  (b) appropriation of the others' name or likeness;  (c) unreasonable publicity given to the other's private life;  or (d) publicity that unreasonably places the other in a false light before the public.”   Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 128 (1982).   Only subsection (a) is relevant to the facts of this case.  “The Connecticut Appellate Courts have not yet set forth the necessary elements of a claim for unreasonable intrusion upon seclusion ․” Evans v. Blanchard, Superior Court judicial district of Waterbury at Waterbury, Docket Number CV 03-0177251 S (October 2, 2006, Gallagher, J.).

Two trial court decisions have discussed the matter.  “The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home.   It may also be by use of the defendant's senses with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires.   The defendant is subject to liability under the rules stated in this Section 652B only when he has intruded into a private place, or otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.”   Gallagher v. Rapoport, Superior Court judicial district of Stamford/Norwalk at Stamford, Docket Number CV 96 0149891 S (May 6, 1997, D'Andrea, J.) [19 Conn. L. Rptr. 474].  “In order to establish a claim for unreasonable intrusion upon seclusion of another, the plaintiffs must prove an intentional physical intrusion by the Unions upon the private affairs or concerns of the plaintiffs which would be highly offensive to a reasonable person.”   Mashantucket Pequot Tribe v. State, Superior Court judicial district of New London at Norwich, Docket Number 101113 (August 19, 1994, Hendel, J.).

3 Restatement (Second), Torts § 652B refers to the intrusion upon seclusion category of invasion of privacy.  “The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs.   It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.”   3 Restatement (Second), Torts § 652B, comment a.

It is apparent to this court that invasion of privacy by reason of an “unreasonable intrusion upon the seclusion of another,” is an intentional act.   Valente's invasion of privacy count only alleges the intrusion upon seclusion category against both defendants.   The First Count (# 140.00) alleges invasion of privacy as against Veneri and the plaintiff has alleged sufficient facts to demonstrate the intentional aspect of the “intrusion upon the seclusion of another.”   The plaintiff has alleged and demonstrated sufficient facts to withstand summary judgment for the invasion of privacy claim against Veneri.   As to Securitas the plaintiff has alleged in paragraph 23 that:  “The defendants have intentionally, or with reckless disregard for the rights of the plaintiff, intruded into plaintiff's seclusion, privacy and personal affairs.”   The plaintiff thus has alleged that Securitas has committed an invasion of privacy by intrusion upon the seclusion of the plaintiff as an intentional act and as a reckless act.

There are no allegations that Securitas itself, directly invaded the privacy of the plaintiff.   No facts have been submitted to establish any direct invasion of privacy by Securitas.   The first count does not allege that by reason of the intentional invasion of privacy by Veneri, Securitas is liable by reason of agency or vicarious liability.   The court therefore need not discuss nor decide any issues of agency or vicarious liability in this memorandum of decision.   The only manner by which Securitas can be held liable on the first count of invasion of privacy is if there is a cause of action for reckless invasion of privacy.   That issue is not appropriate for a motion for summary judgment since it deprives a party of the ability to amend pleadings.   Larobina v. MacDonald, 274 Conn, 394, 401 (2005).   Securitas has failed to establish that this defect, reckless invasion of privacy, could not be cured by repleading.  Id., 401.   In addition, this issue has already been decided adversely to Securitas by the court in its November 12, 2008 denial of the Motion to Strike dated September 18, 2008 (# 103.00).   Securitas has not taken advantage of the court's November 12, 2008 decision denying the Motion to Strike without prejudice by filing another Motion to Strike addressed to the later amendment to the original complaint.   The court denies the Motion for Summary Judgment addressed to the count of invasion of privacy.

Securites argues that it “was never made aware, and had no reason to know, of the conduct described in the Plaintiff's complaint.”   The documents submitted in opposition to this Motion for Summary Judgment demonstrate that it is a material issue of fact so to whether Affinion reported the November 2007 note to Securitas before the December 2007 note and the video surveillance.   In addition, material issues of fact as to Securitas' own negligence preclude the granting of its motion for summary judgment on the grounds that Securitas did not know or had no reason to know.

Securitas argues that “such conduct was actively concealed from Securitas USA by the actions of both the Plaintiff and the Third Party Defendants.”   The documents submitted demonstrate that these are material issues of fact, to wit:  Affinion's early notification of Securitas.   The negligence of the plaintiff is alleged as a Special Defense and the negligent acts of Affinion are alleged in the apportionment complaint.   This “actively concealed” argument is insufficient to overcome the general policy against granting summary judgment in negligent actions.

“Litigants have a constitutional right to have issues of fact decided by a jury.  Ardoline v. Keegan, 140 Conn. 552, 555 (1958).”  Spencer v. Good Earth Restaurant Corporation, supra, 164 Conn. 198.

The Motion for Summary Judgment as to Claims of Plaintiff Donna Valente filed by Securitas dated December 15, 2009 (# 146.00) is denied.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.