Sherri Brady et ux v. Bonnie Bickford et ux (2015)

MEMORANDUM OF DECISION RE Motion for Summary Judgment # 125

Whether the court should grant the defendants' motion for summary judgment on all counts of the amended complaint on the ground that the plaintiffs' claims are barred by the statutes of limitations.

FACTS

This action arises out of a family dispute.   The plaintiffs are James Brady (James), a retired state trooper, and his wife, Sherri Brady (Sherri).   The defendants are Sherri's parents, Kenneth Bickford (Kenneth) and Bonnie Bickford (Bonnie).   The plaintiffs filed an application for a prejudgment remedy and a proposed writ of summons and complaint on June 6, 2008.   The court dismissed that action on October 14, 2011, for failure to prosecute with reasonable diligence.   In the meantime, the plaintiffs commenced a separate action by serving a summons and an eleven-count complaint on the defendants on January 14, 2011.   The complaint was filed on January 24, 2011.   On March 14, 2011, the defendants moved to strike counts one, four through seven, and ten and eleven.   On June 23, 2011, the motion to strike counts one and five was granted by agreement;  the motion to strike counts four, six, seven, ten, and eleven was denied.

The plaintiffs filed an amended complaint on August 3, 2011.   The plaintiffs allege the following facts.   In August 2005, after receiving several unwanted phone calls from the defendants, Sherri attempted to cut off contact with the defendants by sending Kenneth a registered letter telling the defendants to stop contacting the plaintiffs and their children.   The defendants disregarded Sherri's wishes and continued to contact her and her children in various ways, including unwanted gifts, cards, and telephone calls.   On December 12, 2005, Bonnie went to the plaintiffs' home, peered into windows, and pounded on the door.   The plaintiffs called the police, and when the police arrived, Bonnie told them that “James is mentally and physically abusing his wife.”   That same day, Kenneth told a Groton Long Point police officer that James was using his law enforcement contacts to manipulate the Groton Long Point Police, and that Kenneth feared for the safety of his daughter and grandchildren “due to James Brady's mental incapacity.”   In January 2007, the defendants contacted the Office of the Attorney General and made a complaint that James had abused his wife and his children and had raped his wife.   This prompted an internal investigation, in which Sherri was questioned at length on June 1, 2007.   In November 2007, the aforementioned January accusations were determined to be unfounded.

The plaintiffs do not specifically allege that the defendants committed any tortious acts between January 2007 and March 24, 2009.   The plaintiffs allege that on March 24, 2009, the defendants sought a copy of the report of the internal investigation from the Department of Public Safety.   The Department refused to disclose the report, and the defendants filed a complaint with the Connecticut Freedom of Information Commission (FOIC).   On August 19, 2009, the FOIC held an evidentiary hearing, at which the defendants caused the false accusations to be republished to the FOIC. The FOIC subsequently determined that the report was not subject to disclosure and dismissed the defendants' complaint.

In counts one and two of the amended complaint, Sherri asserts claims for intentional and negligent infliction of emotional distress against Bonnie.   In count three, Sherri asserts a defamation claim against Bonnie.   In counts four and five, James asserts defamation claims against Bonnie and Kenneth, respectively.   In counts six and seven, Sherri and James each make claims of tortious invasion of privacy against Bonnie.   In counts eight and nine, Sherri and James each seek permanent injunctions against the defendants.

On August 20, 2013, the defendants filed a motion for summary judgment on all counts of the plaintiffs' amended complaint on the grounds that the claims are barred by the applicable statutes of limitations, and to the extent that any claims are not barred, the plaintiffs cannot establish the required elements for those claims.   The motion was accompanied by a memorandum of law and three exhibits:  excerpts from the deposition of Michelle Vigue and affidavits by Bonnie and Kenneth.   On October 30, 2013, the plaintiffs filed an objection and their own memorandum of law, attached to which were numerous exhibits.   The plaintiffs filed a supplemental memorandum on April 25, 2014, and the defendants filed a reply memorandum on April 28, 2014.   On June 2, 2014, the plaintiffs filed a second supplemental memorandum of law in support of their objection, along with two more exhibits.   At oral argument on December 19, 2014, the plaintiffs represented that they do not object to the granting of summary judgment on counts eight and nine seeking injunctions.

DISCUSSION

“Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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 ․ In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Citation omitted;  internal quotation marks omitted.)  Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).

“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 ․ 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 ․ [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”   (Citations omitted;  internal quotation marks omitted.)  Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319–21, 77 A.3d 726 (2013).

Summary judgment may be granted where the claim is barred by the statute of limitations ․ Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ․

(Citation omitted;  internal quotation marks omitted.)  Id., 313.

[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ․ When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute.   See e.g., Zielinski v. Kotsoris, 279 Conn. 312, 330, 901 A.2d 1207 (2006) (no genuine issue of material fact as to whether statute of limitations was tolled under continuing course of treatment or continuing course of conduct doctrine) ․

Id., 321.

I

COUNT ONE:  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In counts one and two of the amended complaint, Sherri asserts claims against Bonnie for intentional infliction of emotional distress and negligent infliction of emotional distress.   The defendants argue that all of the acts that allegedly caused emotional distress were committed outside the period of the applicable statutes of limitations, with the exception of the defendants seeking the internal investigation report from the Department of Public Safety and subsequently pursuing a complaint with the FOIC. The defendants further argue that these actions, standing alone, cannot as a matter of law constitute intentional or negligent infliction of emotional distress because the plaintiffs did not suffer any additional distress from the defendants seeking the reports.   The plaintiffs argue that the seeking of the report was part of a continuing course of conduct by the defendants, and that statute of limitations did not begin to run until the final wrongful act.   In their reply memorandum, the defendants argue that the proposed complaint filed with the plaintiffs' application for a prejudgment remedy in 2008 demonstrates that the conduct giving rise to the plaintiffs' cause of action had all occurred prior to that fling, and that any subsequent conduct by the defendants cannot form the basis for their present claim.¹

General Statutes § 52–577 provides a three-year statute of limitations for an action founded on a tort, commencing from the “date of the act or omission complained of.”   In certain circumstances, this statute of limitations may be tolled under the continuing course of conduct doctrine.  Watts v. Chittenden, 301 Conn. 575, 583, 22 A.3d 1214 (2011).

The Connecticut Supreme Court has recognized the continuing course of conduct doctrine in cases of intentional infliction of emotional distress.  Id., 596.   The court quoted Chief Judge Richard Posner of the Seventh Circuit Court of Appeals:  “A violation is called ‘continuing,’ signifying that a plaintiff can reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant's unlawful conduct.”  (Internal quotation marks omitted.)  Id., 587–88.   The court clarified that in cases of intentional infliction of emotional distress, “if no conduct has occurred within the three-year limitations period set forth in § 52–577, the plaintiff will be barred from recovering for the prior actions of intentional infliction of emotional distress.   If, however, additional actions occur within the limitations period, the ability to bring an action will be further extended.”  Id., 596.   Watts involved a defendant who allegedly repeatedly falsely accused the plaintiff of sexual abuse.   The Supreme Court held that the trial court properly applied the continuing course of conduct doctrine to toll the statute of limitation, because “at no time ․ was there a gap of three years between the reports of sexual abuse reported by the defendant against the plaintiff.”  Id., 598.

“[A] precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff ․ A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto ․ [The Supreme Court of Connecticut] has held this requirement to be satisfied when there was wrongful conduct of a defendant related to the prior act.”  (Internal quotation marks omitted.)  Sherwood v. Danbury Hospital, 252 Conn. 193, 204–05, 746 A.2d 730, 736 (2000).

“In order to prevail upon a claim for intentional infliction of emotional distress, a plaintiff must establish:  (1) that the [defendant] 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.”  Watts v. Chittenden, supra, 301 Conn. 605.   The continuing course of conduct doctrine applies to claims of intentional infliction of emotional distress because “it is the repetition of the misconduct that makes it extreme and outrageous.”  Id.

In the present case, it is undisputed that the only conduct that occurred within the statute of limitations involved the defendants seeking the report of the internal investigation prompted by the defendants' reports of abuse.   Because the plaintiffs do not dispute that this was the only conduct that occurred within the limitations period, the defendants have met their initial burden of showing that there is no genuine issue of material fact that the action commenced outside of the limitation period for all of the previous acts alleged.   The burden then shifts to the plaintiffs to establish the existence of a genuine issue of material fact as to whether the seeking of the report and the ensuing FOIC complaint constituted additional actions that allow the plaintiffs to reach back to previous incidents.

In paragraph 5(m) of count one, which is incorporated into count two, the plaintiffs allege that “[a]s a result of the Defendants' unrelenting persistence to obtain a copy of the internal investigation report, and notwithstanding being informed that they were not entitled to obtain a copy, the Defendants caused the false and unsubstantiated allegations that Plaintiff's husband, James Brady, raped her and had verbally, mentally and physically abused her and their minor children, to be republished to the FOIC between August 19, 2009 and February 24, 2010.”   The defendants admit in their answer that they sought to obtain a copy of the investigation report, and the plaintiffs have submitted evidence of correspondence in which the plaintiffs seek the report and the defendants object to its disclosure.   A finder of fact could reasonably conclude that by seeking the report of an investigation allegedly initiated by their own accusations of abuse—which accusation were determined, after investigation, to be groundless, the defendants engaged in additional conduct related to their prior wrongful conduct of making those groundless accusations.   The court therefore finds that the plaintiffs have met their burden of establishing a genuine issue of material fact as to whether the statute of limitations should be tolled by the continuing course of conduct doctrine.

The court is unpersuaded by the defendants' argument that the proposed complaint filed with the plaintiffs' application for a prejudgment remedy in 2008 demonstrates that the conduct giving rise plaintiffs' cause of action had all occurred prior to that filing, and that any subsequent conduct by the defendants cannot form the basis for their present claim.   In essence, the defendants argue that once an action for intentional or negligent infliction of emotional distress accrues based on repeated wrongful conduct, the statute of limitations begins to run on that course of conduct.   This argument ignores the principle that additional wrongful acts may extend the limitations period.   In the present case, a full three years did not pass between any of the alleged wrongful acts.   Therefore, there exists a genuine issue of material fact whether the continuing course of conduct doctrine applies to allow the plaintiffs to recover for all of the alleged wrongdoing.   Accordingly, the defendants' motion for summary judgment is denied as to count one.

II

COUNT TWO:  NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

The parties make the same arguments summarized in part I regarding Sherri's claim in count two for negligent infliction of emotional distress.   To establish negligent infliction of emotional distress, a plaintiff must prove four 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).   Negligent infliction of emotional distress is subject to the two-year statute of limitations provided in General Statutes § 52–584.²  Rivera v. Double A Transportation, Inc., 248 Conn. 21, 31, 727 A.2d 204 (1999).

In Watts v. Chittenden, supra, 301 Conn. 591–93, the Supreme Court did not expressly hold that the continuing course of conduct doctrine applies to claims of negligent infliction of emotional distress.   In reaching its holding regarding intentional infliction of emotional distress, however, the Supreme Court cited cases from other jurisdictions that applied the continuing course of conduct doctrine to negligent infliction of emotional distress.  Twyman v. Twyman, 790 S.W.2d 819 (Tex.App.1990), rev'd, 855 S.W.2d 619 (Tex.l993); ³  Curtis v. Firth, 604, 850 P.2d 749 (Idaho 1993).   At least one Connecticut trial court has also applied the continuing course of conduct doctrine to negligent infliction of emotional distress;  Reich v. Spencer, Superior Court, judicial district of Hartford, Docket No. CV–07–5012682–S (December 10, 2010, Peck, J.);   and the Appellate Court has suggested that the continuing course of conduct can apply to negligent infliction of emotional distress if there is evidence that a defendant engaged in subsequent wrongful conduct related to the prior wrongful act.  Sinotte v. Waterbury, 121 Conn.App. 420, 440–41, 995 A.2d 131, cert. denied, 297 Conn. 921 (2010).

In the present case, the court applies the continuing course of conduct doctrine to count two for negligent infliction of emotional distress.   The only time there was a gap of more than two years between the alleged wrongful conduct was between January 2007, when the defendants allegedly made false complaints to the Attorney General's office, and March 2009, when the defendants sought the report of the ensuing investigation.   The plaintiffs also allege, however, that Bonnie was subjected to a lengthy interview on June 1, 2007, in which she was questioned about the accusations.   Therefore, the § 52–584 limitations period did not begin to run until Bonnie allegedly sustained injury by way of this interview.   As discussed in part I of this opinion, a finder of fact could reasonably conclude that the subsequent seeking of the report constituted additional conduct related to the defendants' prior wrongful conduct of making false accusations.   Accordingly, the court finds that the plaintiffs have met their burden of establishing a genuine issue of material fact as to whether the statute of limitations should be tolled by the continuing course of conduct doctrine.   The defendants' motion for summary judgment is denied as to count two.

III

COUNTS THREE THROUGH FIVE:  DEFAMATION

Counts three through five sound in defamation.   In count three, Sherri claims defamation against Bonnie.   In count four, James claims defamation against Bonnie.   In count five, James claims defamation against Kenneth.   The parties make the same arguments with respect to all three defamation counts.   The defendants argue that their requests for copies of the investigative report were not defamation as a matter of law, because they were not defamatory statements and could not have caused any injury to James' reputation.⁴  The plaintiffs argue that as a result of the defendants' “persistent course of conduct” in continuing to seek the report, the plaintiffs were forced to republish the defendants' defamatory statements at the FOIC hearing.   The defendants reply that the continuing course of conduct doctrine does not apply to defamation.

“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.”  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.24 759 (2004).   The tort of defamation has a two-year statute of limitations from the date of publication.  General Statutes § 52–597;  Cweklinsky v. Mobil Chemical Co., supra, 224.   A new cause of action arises with each publication.  Cweklinsky v. Mobil Chemical Co., supra, 224.   Connecticut courts have declined to apply the continuing course of conduct doctrine to defamation claims.   Time Was Garage, LLC v. Giant Steps, Inc., Superior Court, judicial district of Litchfield, Docket No. CV–106002895–S (December 20, 2013, Danaher, J.) (reasoning that where the defendants allegedly made false and derogatory statements about the plaintiffs over a number of years, each alleged defamatory statement was a distinct event which gave rise to a separate cause of action);  Hechtman v. Connecticut Dept. of Public Health, judicial district of Hartford, Docket No. CV–09–4043516–S (December 3, 2009, Prescott, J.) (49 Conn. L. Rptr. 261, 267–68) (reasoning that reposting allegedly libelous information on a website gave rise to a new claim for libel as a separate and distinct publication).

In the present case, this court follows the trial court decisions cited in the preceding paragraph and declines to apply the continuing course of conduct doctrine to counts three through five.   Here, as in Time Was Garage, LLC v. Giant Steps, Inc., supra, Superior Court, Docket No. CV–106002895–S, each alleged instance of defamation gave rise to a new cause of action.   Specifically, each time the defendants allegedly made or repeated false accusations regarding the plaintiffs was a distinct event for which the plaintiffs could have brought an action.   Therefore, the only actionable incident alleged to have occurred within the limitations period is the one described in paragraph 8 of count three and paragraph 10 of counts four and five, that the defendants “caused the false and unsubstantiated allegations that ․ James Brady raped his wife Sherri Brady and had ․ abused her and their minor children to be republished to the FOIC.”

The defendants submitted three exhibits with their motion for summary judgment.   Exhibit 1 is the excerpted deposition of Michelle Vigue, who the defendants claim made the original alleged defamatory statements accusing James of abuse.   Exhibits 2 and 3 are the affidavits of Bonnie and Kenneth, respectively.   Neither the deposition nor the affidavits provide any evidence whatsoever about what happened at the FOIC hearing.   These documents fail to establish whether defamatory statements were made, and if they were made, who made them and under what circumstances.   Accordingly, the plaintiffs had no obligation to submit their own evidence establishing this issue of fact.   The court need not consider the plaintiffs' evidence, and the plaintiffs may rest on the allegations in their amended complaint.

The court finds that there is a genuine issue of material fact as to whether the plaintiffs caused defamatory statements to be republished at the FOIC hearing.   Therefore, the defendants' motion for summary judgment is denied as to counts three through five.

IV

COUNTS SIX AND SEVEN:  TORTIOUS INVASION OF PRIVACY

In counts six and seven of the complaint, Sherri and James each assert a claim for tortious invasion of privacy against Bonnie.   The defendants argue that seeking the internal investigation report and filing a complaint with the FOIC cannot constitute tortious invasion of privacy because the allegations of abuse had already been published by the plaintiffs when they pursued a prejudgment remedy in 2008.   The defendants further argue that the continuing course of conduct doctrine does not apply to tortious invasion of privacy.   The plaintiffs counter that by making the false accusation that James raped Sherri, the defendants publicized intimate details of the plaintiffs' private lives.   The plaintiffs further argue that Bonnie invaded their privacy by trespassing on their property and peering in the windows.

The Connecticut Supreme Court has recognized four categories of tortuous invasion of privacy, as set forth in 3 Restatement (Second), Torts § 652A (1977):  “(a) unreasonable intrusion upon the seclusion of another;  (b) appropriation of the other's name or likeness; ⁵  (c) unreasonable publicity given to the other's private life;  or (d) publicity that unreasonably places the other in a false light before the public.”  (Internal quotation marks omitted.)  Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 128, 448 A.2d 1317 (1982).   The three year statute of limitations set forth in General Statues § 52–577 applies to invasion of privacy claims.  Jonap v. Silver, 1 Conn.App. 550, 554, 474 A.2d 800 (1984).

“The Connecticut Appellate Courts have yet to interpret what constitutes an invasion of privacy under the first category:  an unreasonable intrusion upon the seclusion of another.   Comments to the section of the Restatement adopted by the Supreme Court in [Goodrich v. Waterbury Republican–American, Inc., supra, 188 Conn. 107], however, state that ‘[o]ne who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.’  ․ As way of further illustration, the Comments also state that invasion of privacy occurs when the defendant has ‘intruded into a private place or otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.’  “ (Citations omitted.)   Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–99–066603–S (February 4, 2000, Nadeau, J.) [26 Conn. L. Rptr. 368];  see also Neron v. Cossette, Superior Court, judicial district of New Haven, Docket No. CV–11–6003350–S (April 13, 2012, Markle, J.).

“[A] ‘private facts' claim [for unreasonable publicity given to one's private life] is actionable only if the matter publicized is of a kind that ‘(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.  [3 Restatement (Second), Torts § 652D (1977) ].’   “ (Emphasis omitted.)  Goodrich v. Waterbury Republican–American, Inc., supra, 188 Conn. 132.   The Supreme Court also applied “the Restatement rule that 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.’  “ (Citation omitted.)  Id., 131.

Where information about a plaintiff is already a matter of public record, this defeats a claim that his privacy has been invaded by the publicizing of that information.  Id., 134;  see also Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 494, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).  “There is no liability for the examination of a public record concerning the plaintiff ․” 3 Restatement (Second), supra, § 652B, comment (c).

This court is unaware of any Connecticut cases applying the continuing course of conduct doctrine to the tort of invasion of privacy.   Unlike the emotional distress claims discussed in part I and II of this memorandum, the repetition of wrongful conduct is not as important to the plaintiffs' claim for invasion of privacy.   As discussed subsequently, the plaintiffs allege invasions of privacy in the categories of intrusion upon seclusion, the publicizing of private facts, and the placing of another before the public in a false light.   All of these claims are actionable on the basis of distinct events.   Specifically, the plaintiffs could have brought an action based on each of the alleged intrusions upon seclusion, and the categories of publicizing private facts and placing James in a false light are like defamation in that each time the accusations were publicized, a new cause of action arose.   Therefore, the court declines to apply the continuing course of conduct doctrine to the invasion of privacy claims in counts six and seven.

Once again, it is undisputed that the only conduct that occurred within the statute of limitations involved the defendants seeking the report of the internal investigation prompted by the defendants' reports of abuse.   The question is therefore whether the defendants have met their burden of establishing that there is no genuine issue of material fact as to whether the defendants invaded the privacy of the plaintiffs through that conduct.

In counts six and seven, Sherri and James each invoke different categories of invasion of privacy.   In count six, Sherri incorporates paragraphs from count one describing unwanted phone calls, gifts, and cards, and the incident in which Bonnie allegedly trespassed on the plaintiffs' property and peered into windows.   Sherri further alleges that Bonnie's conduct was an intrusion upon her seclusion, thereby invoking the intrusion upon seclusion category of invasion of privacy.   The parties do not dispute, however, that the only alleged conduct that occurred within the statute of limitations was the seeking of the report and the subsequent FOIC complaint and hearing.

The defendants submit Kenneth's affidavit as evidence that they requested copies of the report but the FOIC ultimately ruled that the report was not subject to disclosure.   Even viewed in the light most favorable to the plaintiff, this evidence establishes that there is no genuine issue of material fact that the defendants unsuccessfully sought the report through legal means, and did not intrude upon the plaintiffs' solitude or seclusion in doing so.   The burden thus shifts to the plaintiffs to present evidence that demonstrates the existence of some disputed factual issue as to how seeking the report involved an intrusion into seclusion.   The plaintiffs have not submitted any such evidence.

In count seven, James incorporates paragraphs from his defamation claim in count five.   He also invokes the intrusion upon seclusion category of invasion of privacy.   Summary judgment can be granted on James' intrusion upon seclusion claim for the same reasons discussed in the preceding paragraph.   The incorporated paragraphs can also be read to invoke the invasion of privacy categories of publicizing private facts or placing another before the public in a false light.   Under these categories, the evidence submitted by the defendants also establishes that there is no genuine issue of material fact that the defendants' false accusations had previously been included in the proposed complaint filed with their application for a prejudgment remedy.   Specifically, Kenneth states in his affidavit that “[i]n June 2008 we were served with legal process and learned that our daughter and son-in-law were seeking to attach our assets.   In the legal papers, they specifically claimed we had reported James Brady to the State Police for abuse of our daughter.”   The plaintiffs have not submitted any evidence to establish a genuine issue of material fact as to whether the false accusations had already been included in a public record at the time of the FOIC hearing.   Even if the defendants caused their false accusations to be repeated at the FOIC hearing, there could be no liability for invasion of privacy for giving further publicity to false accusations that were already made public through the plaintiffs' own legal pleadings.   Therefore, the defendants are entitled to judgment as a matter of law on James' invasion of privacy claim.

The court declines to apply the continuing course of conduct doctrine to the plaintiffs' invasion of privacy claims, and finds that there is no genuine issue of material fact as to whether the defendants invaded the plaintiffs' privacy.   Accordingly, the defendants' motion for summary judgment is granted as to counts six and seven.

V

COUNTS EIGHT AND NINE:  PERMANENT INJUNCTIONS

At oral argument, the plaintiffs represented that they had no objection to the granting of summary judgment on counts eight and nine seeking permanent injunctions.   Accordingly, the defendants' motion for summary judgment is granted as to counts eight and nine without objection.

CONCLUSION

For the foregoing reasons, the court denies the defendants' motion for summary judgment as to counts one through five and grants the motion as to counts six through nine.

ZEMETIS, J.

FOOTNOTES

FN1. The defendants also argued in their reply memorandum that the continuing course of conduct doctrine must be pled in avoidance of a statute of limitations special defense, and that the plaintiffs failed to do so.   In fact, the plaintiffs specifically invoked the continuing course of conduct doctrine in their reply to the defendants' amended answer and special defenses..  FN1. The defendants also argued in their reply memorandum that the continuing course of conduct doctrine must be pled in avoidance of a statute of limitations special defense, and that the plaintiffs failed to do so.   In fact, the plaintiffs specifically invoked the continuing course of conduct doctrine in their reply to the defendants' amended answer and special defenses.

FN2. Section 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”.  FN2. Section 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”

FN3. The Supreme Court of Texas reversed the Court of Appeals on the ground that there is no cause of action in Texas for negligent infliction of emotional distress.   This reversal, however, does not undermine the idea that where negligent infliction of emotional distress is recognized as a cause of action, the continuing course of conduct doctrine should apply..  FN3. The Supreme Court of Texas reversed the Court of Appeals on the ground that there is no cause of action in Texas for negligent infliction of emotional distress.   This reversal, however, does not undermine the idea that where negligent infliction of emotional distress is recognized as a cause of action, the continuing course of conduct doctrine should apply.

FN4. The defendants also argued at length in their memoranda that any statements made at the FOIC hearing were privileged, but they abandoned this argument at oral argument..  FN4. The defendants also argued at length in their memoranda that any statements made at the FOIC hearing were privileged, but they abandoned this argument at oral argument.

FN5. The court will not address appropriation of name or likeness because this category clearly does not apply to the present case..  FN5. The court will not address appropriation of name or likeness because this category clearly does not apply to the present case.

Zemetis, Terence A., J.