Jason Day v. Richard Graziano et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The plaintiff, Jason Day, brought this action against defendants Richard Graziano, the publisher of the Hartford Courant (Courant), Carolyn Lumsden, the Courant's opinion editor, and two Courant reporters, Dave Altimari and Matthew Kaufmann.   He alleges that a news article and a subsequent editorial published in 2010 defamed him and caused damage to his reputation.   The defendants have moved for summary judgment on several grounds, including claims that (1) the allegedly defamatory items accurately report on a court proceeding and are therefore protected by the fair reporting privilege, and (2) the plaintiff has failed to allege any damage to his reputation proximately caused by the publication.   The court concludes that the fair reporting privilege applies and that the plaintiff has failed to allege or offer evidence of damage to his reputation as a result of the publication.   Summary judgment accordingly is granted.

I

STANDARD FOR SUMMARY JUDGMENT

The standard for summary judgment is well established.  “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.)  LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The test is whether a party would be entitled to a directed verdict on the same facts.”  (Citations omitted;  internal quotation marks omitted.)  Connell v. Colwell, 214 Conn. 242, 246–47, 571 A.2d 116 (1990).   Furthermore, on summary judgment all inferences from the facts must be construed in the light most favorable to the party opposing the motion.  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002).

II

UNDISPUTED FACTS

The following material facts are undisputed.   The plaintiff was convicted of murdering four people in Bridgeport in 1990 and was sentenced to life in prison without the possibility of parole.   See State v. Day, 233 Conn. 813, 815–17, 661 A.2d 539 (1995).   On January 13, 2004, while an inmate at Cheshire Correctional Institution (CCI), the plaintiff was involved in an incident in which his cell mate, Miguel Morales, was severely injured and suffered permanent brain damage.   In 2005, Morales' conservatrix brought an action in federal court against the Commissioner of Correction, the CCI warden, and a correctional officer identified as “John Doe One.” Allegations in the Morales complaint that are relevant to this action include the following:  (1) Day was a “convicted mass murderer” who was six feet, three inches tall and weighed over 300 pounds, while Morales was a pretrial detainee who was five feet, four inches tall and weighed 130 pounds;  (2) Day had previously been placed in solitary confinement due to violence directed at other inmates and the correctional staff by Day;  (3) the defendants nevertheless ordered Morales to share a cell with Day;  (4) the defendants were aware that Day and Morales were having problems with each other;  (5) the defendants allowed pretrial detainees to be boarded with convicted mass murderers and made no effort to protect Morales from the known dangerous propensities of Day;  (6) on or about January 13, 2004, Day attacked Morales in their cell;  and (7) as a result of the defendants' conduct, Morales suffered permanent severe brain damage, coma, loss of all earning capacity and earnings, loss of all of life's enjoyments, and medical costs and care.  (Defendants' Exhibit D, Morales Amended Complaint, paragraphs 3–13.)   The state settled the Morales action for $346,500 in 2008.   (Defendants' Exhibit F, Morales Action Motion for Order of Dismissal and Stipulated Settlement.)

In 2010, the Hartford Courant published an article reporting that the state had settled more than eighty cases with payouts in excess of $100,000 over the preceding seven years, and that the state had paid nearly $100 million overall during that time period to settle cases against it.   The article, published on July 1, 2010, stated as follows with respect to the Morales action:

Miguel Morales barely topped 125 pounds the day he was placed in a prison cell with quadruple murderer Jason Day. Morales was a pre-trial detainee when a state Department of Correction guard ordered him to share a cell with Day, who had been in solitary confinement for weeks after fighting with other inmates and guards at the Cheshire Correctional Institution.   Day, who is 6 feet 3 and weighs more than 300 pounds, pummeled Morales, causing severe brain damage and leaving him in a coma, court records show.   Maria Morales, his mother and conservator, sued.   In 2008, the state paid $346,500.

A subsequent Courant editorial referred to the article's report that the state had paid more than $100 million to settle cases in the previous seven years.   It stated in relevant part as follows:

A particularly shocking case involved Miguel Morales, a slight 125–pound pretrial inmate who was forced to share a prison cell with a 300–pound quadruple murderer who had been in solitary confinement after fighting with guards and inmates at the Cheshire Correctional Institution.   The convicted murderer beat Morales so savagely that he was left in a coma with brain damage.   The state settled the case for $346,500.

III

ANALYSIS

To state a cause of action for defamation, “there must be an unprivileged publication of a false and defamatory statement.”  Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984).  “A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․ To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Internal quotation marks omitted.)  Mercer v. Cosley, 110 Conn.App. 283, 296–97, 955 A.2d 550 (2008).

The defendants assert, among other arguments, that (1) the article and editorial are privileged under the “fair reporting privilege” because the reports are fair and accurate representations of the record of a public proceeding, the Morales action, and (2) the plaintiff has failed to allege any injury to his reputation as a result of the publication and therefore fails to make out a prima facie case for defamation.   The plaintiff argues that the defendants' statements that the plaintiff “pummeled” Morales and “beat him so savagely that he was left in a coma” are false because the plaintiff was acquitted of criminal charges arising out of the Morales incident.   He further argues that the defendants had a duty to investigate the allegations of the Morales complaint and report on his acquittal on criminal charges.   As to the harm to his reputation, he alleges that he and his family were the subject of retaliatory threats and disciplinary actions both by allies of Morales and by officials in the Department of Correction.

Whether the fair reporting privilege applies is a question of law.  Burton v. American Lawyer Media, Inc., 83 Conn.App. 134, 139, 847 A.2d 1115, cert. denied, 270 Conn. 914, 853 A.2d 526 (2004).  “[T]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.”  (Internal quotation marks omitted.)   Id., 137–38, quoting 3 Restatement (Second), Torts, Report of Official Proceeding or Public Meeting § 611, p. 297.

“If the report is accurate or a fair abridgement of the proceeding, an action cannot constitutionally be maintained for defamation.”  Burton v. American Lawyer Media, Inc., supra, 83 Conn.App. 138.  “The accuracy required is to the proceedings, not to the objective truth of the defamatory charges.”  Id., 140.

The court has reviewed the allegations made in the Morales action and the article and editorial at issue in this action and concludes that the article and editorial are protected by the fair reporting privilege.   The majority of the statements relating to the plaintiff in the article and editorial are drawn from the Morales complaint.   Although the article and editorial use more vivid verbs than does the Morales complaint, the published assertions that the plaintiff “pummeled” Morales and “beat him so savagely that he was left in a coma” are substantially accurate characterizations of the Morales allegations that the plaintiff “attacked” Morales, as a result of which Morales “suffered permanent brain damage, coma, loss of all earning capacity and earnings, loss of all of life's enjoyments, and medical costs and care.”  (Defendants' Exhibit D, paragraphs 12–13.)   In Strada v. Connecticut Newspapers Inc., supra, 193 Conn. 320–21, the court concluded that “any deviations from or embellishments upon the information obtained from the primary sources relied upon were minuscule and can be attributed to the leeway afforded an author who attempts to recount and popularize ․ an event ․ The author's job is not simply to copy statements verbatim, but to interpret and rework them into the whole ․ A fussy insistence upon literal accuracy would condemn the press to an arid, dessicated recital of bare facts.”  (Citations omitted;  internal quotation marks omitted.)   The court here similarly concludes that the article and editorial reported the allegations in the Morales action with substantial accuracy.

The plaintiff argues that the defendants had a duty to investigate the allegations in the Morales complaint and to report that he was acquitted of criminal charges arising out of the incident.   Although the plaintiff acknowledges that he was the cause of Morales' injury, his version of events is that he awoke to find Morales sexually assaulting him, that he swung at Morales, and that Morales, in attempting to avoid his blow, stumbled, hit his head on the cell's metal toilet, and lapsed into a massive seizure.   (Complaint, paragraph 9.) He further alleges that he was acquitted because the correctional officer who responded to the altercation admitted at trial that he did not see the plaintiff strike Morales and that Morales himself could not remember the incident.  (Complaint, paragraph 15.)

The Appellate Court rejected similar arguments in Burton v. American Lawyer Media, Inc., supra, 83 Conn.App. 139–42.   In that case, the plaintiff argued that the fair reporting privilege did not apply because the article at issue was “inaccurate, unfair, incomplete and one-sided” and because the reporter did not conduct an impartial investigation of the issue.  Id., 140.   The court disagreed, concluding that the fair reporting privilege applied because the article was a substantially accurate report of a judicial decision, and the reporter had no duty to conduct an investigation.  Id., 140–41;  see also Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 124, 448 A.2d 1317 (1982) (holding that reporter's failure to interview the plaintiff personally did not support a claim for defamation).   Accordingly, because the court concludes that the article and editorial are substantially accurate accounts of the Morales action and settlement, they are entitled to the fair reporting privilege.

The defendants also argue that the plaintiff failed to present any factual allegations to establish that his reputation suffered any injury by the publication of the article and editorial, and that, as a result, the plaintiff has failed to establish a prima facie case of defamation.  “A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him ․” (Internal quotation marks omitted.)  QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 356, 773 A.2d 906 (2001), quoting 3 Restatement (Second), Torts § 559, p. 156 (1977).   In this case, the defendant has not alleged any specific facts supporting a claim that his reputation in the community was injured by the publication of the article and editorial.

The plaintiff's complaint is not entirely clear.   It does contain allegations that, as a result of the Morales incident, the plaintiff and members of his family were threatened by allies of Morales, and that the plaintiff was placed in administrative segregation for a period of time.  (Complaint, pages 19–13, paragraphs A–I.) With one exception, however, these alleged incidents occurred between 2004 and 2009, before the publication of the article and editorial in 2010, and thus could not have been caused by the publication of the article and editorial.   The one event alleged to have occurred after the publication of the article and editorial was that the plaintiff was transferred to Northern Correctional Institute in November 2011.  (Complaint, pages 11–12, paragraph G.) It appears from the allegation in the complaint that this transfer resulted from the plaintiff's own complaints to correctional officials that he was at risk of being attacked by certain alleged gang members where he had previously been incarcerated.   The plaintiff does not allege that his transfer to Northern had anything to do with the article or editorial published in 2010.   In the absence of any factual allegation that the article or editorial injured his reputation in the community, the plaintiff has failed to establish a prima facie case for defamation.

IV

CONCLUSION

The defendants have established that the article and editorial are substantially accurate accounts of the Morales proceeding and that they are therefore protected by the privilege for fair reporting as a matter of law.   Summary judgment is therefore granted on this ground.

In addition, the plaintiff has failed to allege facts showing that his reputation in the community was injured by the publication of the article and editorial in 2010.   Because injury to reputation is an essential element of a cause of action for defamation, the defendants are entitled to summary judgment on this separate and independent ground as well.

Accordingly, the defendants' motion for summary judgment is granted.

BY THE COURT,

Sheila A. Huddleston, Judge

Huddleston, Sheila A., J.