Lee Wilder v. McLean Affiliates, Inc. et al. (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

On May 21, 2013, the plaintiff, Lee Wilder, filed this eight-count amended complaint alleging libel and libel per se against the defendants, McLean Affiliates, Inc., Robert Dicks, M.D., Lisa Clark, and Denise Yoreo, alleging the following facts.   The plaintiff's mother, Vivian Wilder, was a resident at McLean Home Care under the care of the defendants.   On February 24, 2011, Dicks, Clark, and Yoreo recorded in Vivian Wilder's progress note that the plaintiff was heard saying she wanted to put a pillow over her mother's head.   The defendants' statement read, “daughter was overheard to say she ‘just want to put a pillow over her head’ on two occasions.”   The defendants' statement was published in Vivian Wilder's file, which was available for all McLean staff to view, and was again published when the defendants' statement was filed with the Simsbury Probate Court as part of an application to have the plaintiff removed from Vivian Wilder's care.   The plaintiff claims to have suffered damages as a result of the defendants' publication of a false statement to a third party.

On August 2, 2013, the defendant Dicks filed a motion to strike count four of the amended complaint.   On the same day, the remaining defendants also filed a motion to strike counts two, six, and eight of the amended complaint.   Both motions to strike the plaintiff's amended complaint is legally insufficient to state a cause of action for libel per se.

“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).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).   It is evidence that in ruling on a motion to strike, the court is limited to the facts alleged in the complaint.

-I-

The defendants argue that counts two, four, six, and eight of the plaintiff's amended complaint are legally insufficient to state a cause of action for libel per se.   The plaintiff argues that the defendants' statements constitute libel per se because they charge a crime which involves moral turpitude or to which an infamous penalty is attached.

“Whether a published article is libelous per se must be determined upon the face of the article itself.   The statements contained therein, taking them in the sense in which common and reasonable minds would understand them, are determinative, and they may not for this purpose be varied or enlarged by innuendo ․ Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling.”  Battista v. United Illuminating Co., 10 Conn.App. 486, 492, 523 A.2d 1356, cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987).   To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached.  Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 853, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).   “The modem view of this requirement is that the crime be a chargeable offense which is punishable by imprisonment ․ The allegation that a person committed a crime need not be as specific as in an indictment, but it must bear some reasonable relation to the legislative definition of a crime.”  Battista v. United Illuminating Co., supra, 493.

In the present case, the plaintiff has failed to allege facts to sufficiently state a cause of action for libel per se.   The plaintiff argues that the defendants' statement charges the crime of threatening, General Statutes § 53a–62, and breach of the peace, § 53a–181, which are punishable by imprisonment;  however, this argument is unpersuasive.   The facts alleged by the plaintiff are insufficient to support a claim that her statement could be viewed as either threatening or a breach of the peace.

-II-

Under General Statutes § 53a–62, “threatening” requires that the defendant, by physical threat, intentionally placed or attempted to place another person in fear of imminent serious physical injury.  State v. Colon, 117 Conn.App. 150, 156, 978 A.2d 99 (2009).  “It is not the danger or risk of injury, but the victim's perception, which is essential to the ․ crime.”  (Internal quotation marks omitted.)  Id., 156–57.   Here, the amended complaint does not allege that Vivian Wilder was ever placed in fear of imminent serious physical injury or was even aware that her daughter had made any statements about putting a pillow over her head.   Also, the alleged libel does not suggest that the plaintiff had an intent to terrorize her mother.   Therefore, the defendants' statement does not charge the crime of threatening as alleged in the amended complaint.

-III-

Section 53a–181(a), governs the crime of breach of the peace, and “prohibits ‘[t]rue threats,’ in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual ․” State v. Gaymon, 96 Conn.App. 244, 247, 899 A.2d 715 (2006).  ‘Whether a statement constitutes a true threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault ․ [A]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.”  Id., 248 “Whether a statement constitutes a true threat ․ prohibited by § 53a–181(a)(3) is a question of law ․” Id. Here, the amended complaint does not allege facts to support a determination that the alleged libel charges the crime of breach of the peace.   The facts alleged do not suggest that a reasonable person, in light of the entire factual context, would foresee that the plaintiff's statement would be interpreted as anything more than “mere puffery, bluster, jest or hyperbole.”   See State v. Moulton, 120 Conn.App. 330, 344, 991 A.2d 728 (2010), aff'd in part, 310 Conn. 337, 78 A.3d 55 (2013).   Therefore, the defendants' statement does not sufficiently charge a crime of breach of the peace as alleged in the amended complaint.

For the foregoing reasons, the defendants' motions to strike counts two, four, six and eight is granted.

Wagner, J.T.R.

Wagner, Jerry, J.T.R.