Joseph Dzamko et al. v. Joseph C. Dossantos (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 104)

The Motion To Strike now before the court involves allegations of well-established torts committed in the age of the internet.   Although the facts are novel, the applicable law is not.   As Holmes, J. once wrote, “I am frightened weekly but always when you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath.”   1 Mark DeWolfe Howe, Holmes–Pollock Letters 156 (1941) (letter of December 11, 1909).

The alleged facts (assumed, for present purposes, to be true) arise out of a mistaken identity scenario, worthy of a modern Shakespeare, involving the intersection of Facebook pilferage and an internet sting operation.   In 2012, the defendant, Joseph C. Dossantos, initiated sexually explicit conversations in an internet chat room, optimistically labeled “Connecticut Romance.”   Dossantos mistakenly believed that he was communicating with two fourteen-year-old girls.   In fact, as courtwatchers will already surmise, the “fourteen-year-old girls” were, in fact, police detectives.   Dossantos, who was forty years old, wanted his correspondents to believe that he was younger than he was.   To bolster his claim, he sent three digital images of “himself” to one of the “girls.”   Unhappily, the images were not images of Dossantos.   They were, rather, images of the plaintiff, Joseph Dzamko (“Joseph”), appropriated by Dossantos from Joseph's Facebook page.   The images of Joseph were not themselves compromising.   They were perfectly normal photographs.   But the context in which Dossantos used them plainly made it appear that the person thus depicted was engaged in sexually predatory behavior.

The detective receiving the transmissions recognized the person so depicted.   It was Joseph.   By malign fate, Joseph was a police officer in another town and had been a Police Academy classmate of the detective.   The detective forwarded the images of Joseph to Internal Affairs.   Internal Affairs investigated, and Joseph had to tell his wife, Sarah Dzamko (“Sarah”) what had happened.   The investigating officers eventually traced Joseph's Facebook images to Dossantos.   Dossantos, confronted with the evidence, admitted that he had not only sent Joseph's images to the detective as images of himself but that he had done the same thing with at least twenty other females (or persons who he presumed to be females) on the internet.   Forensic review of Dossantos' computer revealed that these transmissions had occurred in the context of sexually explicit conversations.   All of this caused Joseph and Sarah great distress.

On April 9, 2013, Joseph and Sarah commenced this action against Dossantos by service of process.   Their Revised Complaint consists of ten counts, but four of these counts (the Second, Sixth, Seventh, and Tenth Counts) have been withdrawn.   Three additional counts (the First, Third, and Eighth Counts) are not the subject of the motion now before the court and can be ignored for present purposes.   That leaves three counts in contention:  the Fourth Count (alleging publicity placing Joseph in a false light), the Fifth Count (alleging intentional infliction of emotional distress as to Joseph), and the Ninth Count (alleging intentional infliction of emotional distress as to Sarah).

On July 19, 2013, Dossantos filed the Motion To Strike now before the Court.   The Motion seeks to strike the Fourth, Fifth, and Ninth Counts (as well as some counts that have been withdrawn and need not be further discussed).   The Motion contends that these counts fail to state claims upon which relief can be granted.   The Motion was argued on October 21, 2013.   The counts in question will be considered in order.

Fourth Count—False Light Publicity.

The Fourth Count alleges that Dossantos publicized Joseph “in a way that placed him in a false light before the public and members of his profession.”   Our Supreme Court adopted this form of the more general tort of invasion of privacy in Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 438 A.2d 1317 (1982).   As Goodrich explains, “a false light invasion of privacy occurs if ‘(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.’  “ Id., at 131 (quoting 3 Restatement (Second) of Torts § 652E (1977)).   The Revised Complaint sufficiently pleads these elements.

The first element is that the false light in which Joseph was placed would be highly offensive to a reasonable person.   This element plainly appears from the Revised Complaint.   The offensiveness is not in the four corners of the transmitted images.   Joseph conceded at the hearing that the images are perfectly normal photographs that are not offensive when simply displayed on a Facebook page.   The offensiveness lies in the context in which Dossantos transmitted the images.   The context would make it appear to a reasonable person that Joseph was a sexual predator.   That was exactly the inference drawn by the detective receiving the images.

In this regard, the case is analogous to Braun v. Flynt, 726 F.2d 245 (5th Cir.), cert. denied, 469 U.S. 883 (1984).   Braun was a performer in a Texas amusement park who did an act with “Ralph the Diving Pig.” Larry Flynt, a well-known publisher of raunchy magazines, obtained her photograph and published it in Chic magazine in the company of photographs of ill-clad women.   This caused Braun great embarrassment, and she recovered substantial damages for false light publicity.   On appeal, the Fifth Circuit agreed that, “the publication of Mrs. Braun's picture in the ‘Chic Thrills' section of the magazine was fully capable of conveying a false impression of Ms. Braun.”  Id., at 253.

Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir.), cert. denied, 537 U.S. 1029 (2002), provides another helpful precedent.   Solano was an actor, best known for his role as Manny Gutierrez in “Baywatch.”  Playgirl, another magazine featuring scantily clad men, published a cover photograph of Solano wearing swim trunks under a heading reading “Prime Time's Sexy Young Stars Exposed.”   Although the actual photo was not sexual in nature, the Ninth Circuit held that “a jury reasonably could conclude that the Playgirl cover conveyed the message that Solano was not the wholesome person that he claimed to be.”  Id., at 1084.

The analysis of Braun and Solano is applicable here.   The transmitted images of Joseph are not themselves sexual in nature.   But the context in which they were sent strongly implies that Joseph was not a “wholesome person.”   In this context, the transmission of these images would be highly offensive to a reasonable person.

The second element of false light publicity is that Dossantos had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which Joseph would be placed.   The Revised Complaint sufficiently pleads that Dossantos deliberately pilfered Joseph's Facebook images and sent them to numerous females in a highly sexual and unsavory context.   Dossantos would plainly have known that the transmitted images were of someone other than himself and similarly would have been fully aware of the context in which the images were being transmitted.   Under these circumstances, the second element is adequately pled.

Dossantos also contends that the Fourth Count is insufficient for failing to plead special damages.  Goodrich does not identify special damages as an element of false light publicity.   The identified elements are those already stated.   See 188 Conn., at 131.   The question whether special damages must be pleaded in a false light publicity action has not been considered by a reviewing court in Connecticut.

Courts of other jurisdictions considering this issue have not reached uniform results.   See Russell G. Donaldson, Annotation, False Light Invasion of Privacy—Defenses and Remedies, 57 A.L.R.4th 244 § 27 (1987).   Most decisions holding that special damages should be alleged and proven in an action for false light publicity have turned on the First Amendment interests of the defendant.   See Fellows v. National Enquirer, Inc., 721 P.2d 97 (Cal.1986);  Schaffer v. Zekman, 554 N.E.2d 988 (Ill.App.Ct.1990).   The policy underlying these cases is that a contrary rule “would defeat the ․ purpose of providing a zone of protection for a free press.”  Fellows, supra, 721 P.2d, at 108.

This rationale, however weighty in the First Amendment context, has no application here.   Dossantos was not the “free press,” and his outrageous, potentially criminal, transmission of Joseph's images to persons he thought to be minor females had no conceivable First Amendment justification.  “[S]peech on matters of purely private concern is of less First Amendment concern.”   Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985) (plurality opinion).

Under these circumstances, the policy basis for requiring the pleading of special damages evaporates.   In cases involving plaintiffs not claimed to be public figures and defendants who can make no plausible claim to the protections of the First Amendment, no such pleading is required.   See Estate of Berthiaume v. Pratt, 365 A.2d 792, 795 (Me.1976);  Roach v. Harper, 108 S.E.2d 564, 568 (W.Va.1958).   The rationale of this common-law rule “has been the experience and judgment of history that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact.”  Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., supra, 472 U.S. at 760.  (Internal quotation marks and citation omitted.)

Fifth Count—Intentional Infliction of Emotional Distress (Joseph).

The Fifth Count alleges intentional infliction of emotional distress as to Joseph.   The elements of this cause of action are “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  Perez–Dickson v. City of Bridgeport, 304 Conn. 483, 526–27, 43 A.3d 69 (2012).  (Internal quotation marks and citation omitted.)   The Fifth Count adequately pleads these elements.

With respect to the first element, the Revised Complaint sufficiently alleges facts from which it could reasonably be inferred that, at a minimum, Dossantos should have known that emotional distress would be the likely result of his conduct.   It is very well known that images transmitted on the internet are not likely to remain private for very long.   All too often, they are retransmitted to the world.   Think of the much-publicized issue of “sexting” images sent by clueless teenagers.   These images, once sent to a single, supposedly private source, end up being resent to hundreds, and soon thousands, of other people.   Any reasonable person could foretell that eventually someone was going to recognize the person in the images transmitted by Dossantos and draw conclusions that would, in turn, cause that person to suffer emotional distress.

Dossantos denies that his conduct was extreme and outrageous, but he cannot do that with a straight face.   The test is whether “the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, Outrageous!”  Perez–Dickson, supra, 304 Conn., at 527.   This is such a case.

Dossantos does not dispute the remaining elements of the alleged tort.   Special damages are not an element of intentional infliction of emotional distress and have never been thought to be so.   See Restatement (Second) of Torts § 46 cmt. k (1965).  (“[I]f the enormity of the outrage carries conviction that there has in fact been severe emotional distress, bodily harm is not required.”)   The emotional distress sustained by the plaintiff must, of course, be severe, but that is sufficiently alleged here.

Ninth Count—Intentional Infliction of Emotional Distress—Sarah.

The Ninth Count alleges intentional infliction of emotional distress as to Sarah.   That count alleges that Dossantos's conduct “was carried out with the knowledge that it probably would cause ․ Sarah ․ to suffer emotional distress.”   This is not, as Dossantos argues, an allegation of bystander emotional distress, such as that of a witness to an automobile accident.   Dossantos's conduct implied that Joseph was a sexual predator.   This would naturally reflect on Joseph's spouse and cause her great personal embarrassment and natural concern for her own personal health quite apart from the distress she may have experienced from observing Joseph's own travail.   Under these circumstances, the tort of intentional infliction of emotional distress with respect to Sarah has been adequately pleaded.

The Motion To Strike is denied with respect to the Fourth, Fifth, and Ninth Counts.   The remaining portions of the Motion are directed to counts that have been withdrawn and are not discussed.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.