Gary Orlando v. Lawrence Orlando (2012)

MEMORANDUM OF DECISION

The plaintiff instituted this action seeking damages against his father for defamation.   He alleges that, on February 4, 2011, the defendant, his father, called the Department of Children and Families hotline and said that there was a decline in the plaintiff's attention to the home-schooling of his children, and that the children were not being properly educated.   Plaintiff also alleges that the defendant stated that the plaintiff may have undiagnosed mental health issues.¹  Defendant admits that he made the call to DCF. He denies that his statements were slanderous.   In his special defense, the defendant claims that (1) the statements made by the defendant to DCF were privileged pursuant to CGS section 17a–101e(b), and that they were true.   The defendant moved for summary judgment which was denied by the Court (Danaher, J.) because there was an issue of fact as to whether the report was made in good faith.

The case was tried to the court.   The evidence establishes that the plaintiff was, for some period of time, home-schooling his three children.   His method of educating the children was based on a philosophy of education known as “unschooling.”   Based on their observations of the children and discussions with the plaintiff, the plaintiff's father, brother, and sisters became concerned that the plaintiff was not giving his children's education sufficient attention and as a result, the children were not being educated properly.   When they expressed their concerns to the plaintiff, he objected to what he considered to be interference in his business.   The father contacted the Department of Children and Families about the matter.   After that contact, the maternal grandmother enrolled the plaintiff's children in an educational co-op, and the plaintiff brought this action.

Discussion

Defamation is the false or unjustified injury of the good reputation of another, as by slander or libel.  “Defamation is comprised of the torts of libel and slander ․ Slander is oral defamation.”  Lowe v. Shelton, 83 Conn.App. 750, 765, 851 A.2d 1183 (2004).  “For a claim of defamation to be actionable, the statement must be false.”  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 228, 837 A.2d 759 (2004);  and “the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion.”  (Citation omitted.)  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999).

The plaintiff failed to satisfy his burden of proving the elements of slander.   First, he did not prove that the statements made by the defendant to DCF was false.   The statements attributed to the defendant were, from the testimony, in the nature of an opinion.  “An opinion is ․ an interpretation of facts ․” Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 119, n. 10, 438 A.2d 1317 (1982).  “As a general rule, ․ an opinion is privileged as fair comment ․ when the facts on which it is based are truly stated or privileged or otherwise known either because the facts are of common knowledge or because, though perhaps unknown to a particular recipient of the communication, they are readily accessible to him.”  188 Conn. at 117–18.   Based on the facts made available to the defendant concerning the education of his grandchildren, he formed opinions which he expressed to DCF. The plaintiff did not satisfy his burden of proving that the statements of mixed fact and opinion made by the defendant were false.

Moreover, the plaintiff failed to prove that the statements were not made in good faith.   The defendant admits that he made the phone call to the DCF hotline because of his concern for his grandchildren.   Defendant claims that he is afforded immunity from liability by Section 17a–101e(b) of the Connecticut General Statutes.²  “In common usage, the term good faith has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation ․ It has been well defined as meaning [a]n honest intention to abstain from taking an unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious ․ It is a subjective standard of honesty of fact in the conduct or transaction concerned, taking into account the person's state of mind, actual knowledge and motives ․ Whether good faith exists is a question of fact to be determined from all the circumstances.”  (Citations omitted;  internal quotation marks omitted.)  Bhatia v. Debek, 287 Conn. 397, 412–13, 948 A.2d 1009 (2008).   In the instant case, the plaintiff produced no evidence other than that which supported the defendant's special defense.   The affidavits offered by the plaintiff support the defendant's position.   The in-court testimony of the affiants, a brother and two sisters of the plaintiff, revealed that their concerns were based on their observations of the children.   That testimony supports the defendant's position that the call he made to DCF was made in good faith.   The court has no basis on which to find otherwise.

“The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15–8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case.”   The plaintiff failed to put forth any evidence to prove his allegations of slander.   He has not made out a prima facie case.   Accordingly, the court enters judgment of dismissal pursuant to Section 15–8 of the Connecticut Rules of Practice.³

BY THE COURT,

Gallagher, J.

FOOTNOTES

FN1. In his testimony, defendant denied making that particular statement..  FN1. In his testimony, defendant denied making that particular statement.

FN2. Section 17a–101e(b) of the Connecticut General Statutes provides that [a]ny person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a–101a to 17a–101d, inclusive, and 17a–103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect..  FN2. Section 17a–101e(b) of the Connecticut General Statutes provides that [a]ny person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a–101a to 17a–101d, inclusive, and 17a–103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect.

FN3. Sec. 15–8 of the Practice Book provides that if, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case..  FN3. Sec. 15–8 of the Practice Book provides that if, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case.

Gallagher, Elizabeth A., J.