Debra L. Papapietro v. Town of Glastonbury et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, # 132

The plaintiff, Debra L. Papapietro, amended her complaint pursuant to a Request to Revise, on July 6, 2010, against the town of Farmington and Officer Kenneth P. Miller, alleging defamation and negligent infliction of emotional distress.¹  The defendants, town of Farmington and Officer Miller (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.

The defendants submitted with their memorandum of law in support of the motion, the following documentary exhibits:  A-Affidavit of Anthony Pagliughi, dated June22, 2010;  B-Incident Report, dated September 7, 2007;  C-Transmittal memorandum regarding recording;  D-Affidavit of Officer Kenneth Miller dated July 16, 2010;  and E-Memorandum of Decision dated August 9, 2010.   The plaintiff filed an objection to the motion for summary judgment, and provided the court with her own affidavit.

I FACTS

On September 7, 2007, Officer Miller was dispatched to Melrose Drive in Farmington, Connecticut, to respond to a harassment complaint.   Upon arrival, he met with Kenneth Kohnle, who told him that the plaintiff was an ex-employee of his, and she was terminated in October 2005, for poor job performance.   Kohnle stated he did not wish to give her any job reference and that since September 1, 2007, he had received 15 voice mail messages at his work and 26 text messages.

Kohnle also stated that he was concerned because several of the text messages stated that the plaintiff knows he loves her, and she loves him.   Kohnle stated that he has not spoken with the plaintiff since October 2005, when she was terminated.

Officer Miller contacted the plaintiff by telephone regarding this complaint by Kohnle.   She said that she would not make any contact with Kohnle again, and Miller advised her that if she makes even one more call to Kohnle, she will be arrested for harassment.   This is the only conversation that Officer Miller has ever had with the plaintiff.   Officer Miller then contacted Kohnle to relay this conversation.   In his normal course of duty, Miller prepared an incident report, No. 07-00016409.  (Plaintiff's Exh. B-Incident Report.)

Three years later, on March 6, 2010, Glastonbury Police Officer Anthony Pagliughi responded to a 911 report of a female stalker trespassing at 2118 New London Turnpike, Glastonbury.   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.²

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.

The plaintiff is alleging in her complaint that the Incident Report No. 07-00016409 from the September 7, 2007 incident was given to the Glastonbury Police Department from the Farmington Police Department whieh precipitated the events and police involvement of March 6, 2010.   She further alleges that neither Kenneth Kohnle nor Christopher Kohnle instigated the events or provided any information regarding the March 6, 2010, incident.   She is also alleging that Incident Report No. 07-00016409 is libelous, and has caused her severe emotional distress.³

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 Farmington and Officer Miller purports to assert two causes of action:  defamation and negligent infliction of emotional distress.   Both 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 both 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 Officer Miller's preparation and transference of the Incident Report No. 07-00016409 to Officer Anthony Pagliughi of the Glastonbury Police Department was to aid in further harassment and defamation of the plaintiff.   Further, it is the plaintiff's belief that Ken and Christopher Kohnle never contacted the Glastonbury police department to complain about her regarding the March 6, 2010, incident, and based upon that disbelief, the plaintiff avers that Officer Miller's documentation of the September 7, 2007, complaint 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.⁴  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 four.   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 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 Miller merely received and investigated the harassment complaint make by Kenneth Kohnle, and notified the plaintiff that she should not contact Kohnle.

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 four and five of the revised complaint is granted.

Swienton, J.

FOOTNOTES

FN1. The action was also brought against the town of Glastonbury and Glastonbury Police Officer Anthony Pagliughi.   The town of Glastonbury and Officer Anthony Pagliughi moved for summary judgment as to the three counts against them, and the court granted summary judgment as to all three counts on October 21, 2010.  (Swienton, J.) Therefore, this memorandum addresses counts four and five against the remaining defendants..  FN1. The action was also brought against the town of Glastonbury and Glastonbury Police Officer Anthony Pagliughi.   The town of Glastonbury and Officer Anthony Pagliughi moved for summary judgment as to the three counts against them, and the court granted summary judgment as to all three counts on October 21, 2010.  (Swienton, J.) Therefore, this memorandum addresses counts four and five against the remaining defendants.

FN2. 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..  FN2. 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.

FN3. The plaintiff had filed a complaint against the Farmington Police Department stemming from alleged defamation and intentional infliction of emotion distress based upon this incident report.   The court granted the Farmington Police Department's motion for summary judgment on August 9, 2010.  (Swienton, J.).  FN3. The plaintiff had filed a complaint against the Farmington Police Department stemming from alleged defamation and intentional infliction of emotion distress based upon this incident report.   The court granted the Farmington Police Department's motion for summary judgment on August 9, 2010.  (Swienton, J.)

FN4. 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 Miller 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 Miller prepared the Incident Report in good faith;  (4) Officer Miller prepared the Incident Report at the proper occasion, following his investigation;  and (5) Officer Miller did not publish the Incident Report to any improper parties.   See, Miles v. Perry, 11 Conn.App. 584, 595, 529 A.2d 199 (1987)..  FN4. 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 Miller 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 Miller prepared the Incident Report in good faith;  (4) Officer Miller prepared the Incident Report at the proper occasion, following his investigation;  and (5) Officer Miller did not publish the Incident Report to any improper parties.   See, Miles v. Perry, 11 Conn.App. 584, 595, 529 A.2d 199 (1987).

Swienton, Cynthia K., J.