Jane Doe v. Gary McNamara et al. (2010)

MEMORANDUM OF DECISION

The plaintiff, Jane Doe,¹ brings this action against the defendants, Gary McNamara, the deputy chief of police of the Fairfield police department (department), David Peck, the chief of police of the department, and Frederick Hine, a detective in the department, alleging negligent infliction of emotional distress and invasion of privacy.   Despite the defendants' public positions, they are only sued in their individual capacity.   The defendants move to strike the third amended complaint for the reasons that the counts fail to state legally sufficient claims for negligent infliction of emotional distress and invasion of privacy.

The plaintiff alleges the following facts.   In 2002, the plaintiff was kidnapped and sexually assaulted by Eric Julian.   Subsequently, Julian pleaded guilty and was sentenced to a period of incarceration.   In June 2008, the plaintiff was advised that Julian was to be released shortly from custody.   Julian was subsequently released and, at all relevant times, resided in Fairfield.

On November 18, 2008, the plaintiff saw a news report detailing an attack in Fairfield of a young woman.   The police requested that the public assist them in identifying the perpetrator.   The plaintiff recognized from the description of the attack that it was similar to the one in which she was involved.   She contacted the police and suggested that the attacker might be Julian.   Julian was arrested and charged in the attack.

The plaintiff alleges that when she contacted the police she told Hine that she feared Julian's retaliation, and that she did not want her name or information disclosed.   Her legal claims arise out of certain statements that Peck and McNamara made to the media on or about November 19, 2008.   Based upon an interview with Peck, News 12 reported that “[Julian] was identified by a prior sexual assault victim from 2002.”   McNamara was quoted in an article that appeared in the Connecticut Post newspaper as saying “a woman who was the victim of a sexual assault in 2002 called the police after reading news coverage of the attack, which gave a description of the suspect.   She said it sounded like her attacker, who had recently been released from prison.”   In that article, McNamara was also quoted as saying that “the woman who contacted the police Monday about Julian was abducted in Bridgeport in 2002 by the suspect, and taken to Ardmore Street here where she was sexually assaulted.   He was released two months ago from prison and [she] said we might want to look at him.”

The plaintiff claims that she became distraught and anxious about possible retaliation from Julian as a result of the media reports.   She alleges that she has suffered emotional distress and physical injuries caused by the defendants' statements.

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   See Practice Book 10-39.  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   When ruling on a motion in strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id. “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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”   (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

I

The court will first address the defendants' motion to strike the counts for negligent infliction of emotional distress.   In the first three counts of her third amended complaint, the plaintiff brings causes of action for negligent infliction of emotional distress against McNamara, Hine and Peck, respectively.   The defendants claim that each of those counts fails to set forth a legally sufficient cause of action.

Peck and McNamara contend the counts against them are legally insufficient because there is no allegation that anyone knew that the plaintiff initially identified Julian to the police based on the statements made by them to the media about the sexual assault.   The plaintiff counters that although the media reports do not identify the plaintiff by name, the reports “did provide enough information that her attacker ․ Julian, and others familiar with her 2002 case could figure out that she had helped the police in regards to the 2008 attack.”

Hine asserts that the count against him is legally insufficient because the plaintiff has failed to allege any conduct on his part that causes her emotional distress.   The plaintiff claims that “it is necessarily implied that ․ Hines had to do or fail to do some act and that for this reason the information, which the [p]laintiff had expressed such concern over with ․ Hines, was eventually released to the public at large.”

“To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following:  (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 ․ 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 ․”The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm ․ In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that [his] behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm.”  (Citation omitted;  internal quotation marks omitted.)  Stancuna v. Schaffer, 122 Conn.App. 484, 490 (2010).

“This ․ test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants.   If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable.   Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).

The plaintiff in the present case has failed to allege in the negligent infliction of emotional distress counts that her distress was foreseeable.   The plaintiff's third amended complaint is not the model of clarity relative to the causes of action alleged therein.   The plaintiff appears to make such an argument in her memorandum in opposition to the defendants' motion in stating that “[i]t is wholly foreseeable that a reasonable person would be severely distressed to know that a man who sexually assaulted her could learn that she assisted in putting him in jail a second time.”   Because such an allegation is a necessary element of such a cause of action and must be alleged in the complaint, the court grants the defendants' motion to strike the first, second and third counts of the plaintiff's third amended complaint.

II

The fourth through sixth counts of the complaint assert causes of action for invasion of privacy against Hine, Peck and McNamara, respectively.²  The defendants move to strike those counts essentially asserting that they are legally insufficient because the plaintiff has not pleaded that the defendants disclosed the plaintiff's identification to the public at large.

The tort of invasion of privacy was first recognized in Connecticut in the case of Korn v. Rennison, 21 Conn.Sup. 400, 156 A.2d 476 (1959).   The tort was acknowledged by the appellate courts of this state in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982).  “In recognizing this right of action today, we note that the law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ‘to be let alone ․ The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts 652A as follows:  (a) unreasonable intrusion upon the seclusion of another;  (b) appropriation of the other's 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.”   Id., 127-28.

The counts alleging invasion of privacy are premised on the plaintiff's claim that the conduct of the defendants gave unreasonable publicity to the plaintiff's private life.   The plaintiff does not claim against the defendants any of the other categories constituting the tort of invasion of privacy.

The defendants contend that the privacy counts are legally insufficient because the plaintiff fails to allege that the defendants disclosed her identity to the general public or that the public otherwise learned of her identity.   More particularly, the defendants assert that “remote possible disclosure to a single person [i.e. Julian] is not the ‘public’ harm that the tort envisions.”   The plaintiff claims that “it does not matter that the [p]laintiff's name and contact information were not given out” because “enough people would be able to make the connection between the [p]laintiff and the girl who was attacked by ․ Julian in 2002 that it would be substantially certain to become public knowledge.”

In discussing the tort of invasion of privacy that provides a remedy for unreasonable publicity given to a person's private life, the Court in Perkins v. Freedom of Information Commission, 228 Conn. 158, 171-72, 635 A.2d 783 (1993) noted that “Section 652D of the Restatement (Second) of Torts defines a tort action for the invasion of personal privacy as being triggered by public disclosure of any matter” that “(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”   The Court concluded that a claim for invasion of privacy must be considered in light of the objectively reasonable person.  Id., 175.

As discussed, the only invasion of privacy claim made by the plaintiff is that the defendants' actions gave unreasonable publicity to the plaintiff's private life.   There is no appellate authority addressing the question of what “publicity” means in the context of this category.   However, a number of Connecticut trial court decisions have adopted the Restatement definition of publicity.   See, e.g., Meade v. Orthopedic Associates of Windham County, supra, Superior Court, Docket No. CV 06 4005043 (December 27, 2007, Booth, J.);   Pickering v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 05 4002947 (June 29, 2005, Eveleigh, J.);   Evans v. Blanchard, Superior Court, judicial district, Docket No. CV 03 0177251 (January 11, 2005, Matasavage, J.) (38 Conn. L. Rptr. 547, 548).   According to the Restatement, “[p]ublicity ․ means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.   The difference is not one of the means of communication ․ It is one of a communication that reaches, or is sure to reach, the public ․ The distinction ․ is one between private and public communications.   3 Restatement (Second) Torts, Invasion of Privacy section 652D, comment a, p. 384 (1977).”  (Internal quotation marks omitted.)   Cavallaro v. Rosado, Superior Court, judicial district of New Haven, Docket No. CV 05 4009939 (October 5, 2006, Robinson, J.).

The plaintiff has failed to state a legally sufficient claim for invasion of privacy based on her assertion that the defendants gave unreasonable publicity to the plaintiff's private life.   The plaintiff has failed to allege that the defendants disclosed the plaintiff's identity to the general public.   The essence of the plaintiff's claims is that she suffered injuries as a result of her subjective belief that Julian may identify her as the source of the information provided to the police and, as a result, retaliate against her.   The court cannot reasonably infer from the alleged facts that the general public could become aware of the plaintiff's identity and the fact that in 2002 she was subject to a sexual assault.   The plaintiff's allegation that “the plaintiff suffered from unreasonable publicity to her private life” because of the defendants' actions is conclusory in nature and wholly unsupported by the allegations of the plaintiff's complaint.   Simply put, the plaintiff has failed to sufficiently allege the element of publicity.   See, e.g., Meade v. Orthopedic Associates of Windham County, supra, Superior Court, Docket No. CV 06 4005043 (court granted motion to strike when plaintiff failed to allege publicity);  Pickering v. St. Mary's Hospital, supra, Superior Court, Docket No. CV 05 4002947 (court granted motion to strike count for invasion of privacy where the allegations of the plaintiff's complaint failed to show “dissemination [of the information] to the public at large”).   Therefore, the court grants the defendants' motion to strike the fourth, fifth and sixth counts of the plaintiff's third amended complaint.

In view of the foregoing, the defendants' motion to strike (125.00) the first through sixth counts of the plaintiff's third amended complaint is granted.

TYMA, J.

FOOTNOTES

FN1. The plaintiff was granted permission to proceed using a pseudonym..  FN1. The plaintiff was granted permission to proceed using a pseudonym.

FN2. The fourth and sixth counts are identical and both are directed at Hine, but there is no count sounding in invasion of privacy is directed at McNamara.   McNamara concedes this is a typographical error and has moved to strike count six as if it were directed at him.   Accordingly, the court will also treat count six as if it were directed at McNamara..  FN2. The fourth and sixth counts are identical and both are directed at Hine, but there is no count sounding in invasion of privacy is directed at McNamara.   McNamara concedes this is a typographical error and has moved to strike count six as if it were directed at him.   Accordingly, the court will also treat count six as if it were directed at McNamara.

Tyma, Theodore R., J.