Thursday, October 29, 2015

Judgment Reversed

#smolinski #gleason #GleasonvSmolinski #CTSupremeCourt
#billysmolinski #SmolinskivGleason #JudgmentReversed
http://www.jud.ct.gov/external/supapp/aro.htm#Supreme
In case you haven't heard this yet - Judgment Reversed! Support Team Smolinski
Wednesday, October 28, 2015
Supreme Court Advance Release Opinions: Released after 11:30 a.m.

SC19342 - Gleason v. Jan Kenney Smolinski
SC19342 Dissent - Gleason v. Jan Kenney Smolinski

http://www.jud.ct.gov/external/supapp/archiveAROsup15.htm

http://www.ctn.state.ct.us/ctnplayer.asp?odID=11465

Wednesday, October 28, 2015

Billy Smolinski | Issues. People. Events.

Billy Smolinski | Issues. People. Events.

The Connecticut Supreme Court has reversed the Defamation Judgment.
http://www.jud.ct.gov/external/supapp/aro.htm#Supreme

http://jud.state.ct.us/external/supapp/Cases/AROcr/cr319/319CR111.pdf

Monday, August 24, 2015

| Opinion: Eleven years – it is time for Billy Smolinski to be found

| Opinion: Eleven years – it is time for Billy Smolinski to be found

Look at the docket from the Supreme Court for the civil case.

http://appellateinquiry.jud.ct.gov/CaseDetail.aspx?CRN=49764&Type=PartyName

Saturday, June 13, 2015

Wednesday, June 10, 2015

Billy Smolinski, Gone Since 2004, Is Part of a 'Silent Mass Disaster'

Monday, April 27, 2015

Connecticut Supreme Court Oral Argument

Watch the recorded Connecticut Supreme Court Oral Arguments in this case.
http://appellateinquiry.jud.ct.gov/CaseDetail.aspx?CRN=49764&Type=PartyName

[References made to the record by appellant's attorney see pages 123, 110, 114, 107-117, 116, 115, 34, 40, 8, 9-11, 114.
And those made to the record by appellee's attorney - zippo! not a single one.]

ISSUES PRESENTED

1 Did the Appellate Court properly conclude that the defendants' first
amendment claim of protected speech failed to satisfy the third prong
of the test for review of unpreserved claims set forth in State v. Golding,
213 Conn. 233 (1989)?

2 Did the Appellate Court properly affirm the trial court's determination
that the defendants were liable for defamation per se of the plaintiff?

Insert the Appendix of the Record Insert Smolinski Brief Insert Gleason Brief Trial Court Judgment Insert Judges Articulation Insert Appeal Court Decision Case Links
http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV065005107S

http://appellateinquiry.jud.ct.gov/CaseDetail.aspx?CRN=45820&Type=PartyName

http://www.oyez.org/cases/2010-2019/2010/2010_09_751

Insert
http://www.oyez.org/issues/first_amendment/libel/defamation
http://www.oyez.org/issues/first_amendment/libel/privacy

Gertz v. Robert Welch, Inc.
418 U.S. 323 (1974)

https://supreme.justia.com/cases/federal/us/418/323/

Sunday, April 26, 2015

Memorandum of Decision Regarding Defendant's Motion to Strike ( only the complaints against John Murray )

https://casetext.com/case/gleason-v-smolinski-no-nnh-cv-06-5005107-s-jul

Connecticut Superior Court Judicial District of New Haven at New Haven
·
No. NNH CV 06 5005107 S (Conn. Super. Ct. Jul 20, 2009)

GLEASON v. SMOLINSKI, No. NNH CV 06 5005107 S (Jul. 20

MADELINE GLEASON ET AL. v. JANICE SMOLINSKI ET AL.

No. NNH CV 06 5005107 S

Connecticut Superior Court Judicial District of New Haven at New Haven

July 20, 2009

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (#115)

WILSON, J.

STATEMENT OF CASE

On November 15, 2007, the plaintiffs, Madeleine Gleason and B and B Transportation, Inc., filed a revised complaint with the court.¹ In an eighteen-count complaint, the plaintiffs allege multiple causes of action against each of the defendants, Janice Smolinski, Paula Bell and John Murray. Specifically, counts thirteen through eighteen allege unreasonable intrusion upon seclusion and privacy, appropriation of name and likeness, unreasonable publicity to the private life, false light, intentional infliction of emotional distress and negligent infliction of emotional distress, respectively, against Murray.

This action was originally commenced against John Murray by service of process on July 12, 2006.

The facts, as alleged by the revised complaint, are as follows. Gleason is a private citizen who resides in Woodbridge, Connecticut and Murray is the owner, publisher and editor of The Waterbury Observer, a monthly newspaper with wide circulation in the New Haven county area. In March 2006, Murray authored an article and published it in his newspaper. The article reported the events surrounding the disappearance of a local man named Billy Smolinski, a former romantic interest of Gleason's. In the story, Murray chronicled many of the events of Gleason's life, including her relationship with Billy, her multiple marriages and divorces, the suicide of one of her children, the drug overdose of another and the incarceration of a third. In addition, Murray seemingly interviewed Billy's mother, Janice Smolinski, and published her version of the multiple altercations that she had with Gleason after the disappearance of her son, including her witnessing Gleason's destruction of the missing person posters that she had placed throughout the community. Finally, Murray also published several photographs that depicted Gleason in public, albeit without her permission, and printed Janice Smolinski's opinion that Gleason "knew something about Billy's disappearance."

On February 6, 2009, the defendant Murray filed a motion to strike CT Page 12185 counts thirteen through eighteen of the revised complaint, on the ground that each is legally insufficient. In addition, Murray also filed a memorandum of law in support of the motion to strike at that time. On February 17, 2009, the plaintiffs filed a brief in opposition to the motion to strike counts thirteen through eighteen, in which, they argue that each count states a claim upon which relief can be granted.

DISCUSSION LEGAL

"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). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310,318, 907 A.2d 1188 (2006). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc.,277 Conn. 113, 117, 889 A.2d 810 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a course of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

1. Count Thirteen: Unreasonable Intrusion Upon the Seclusion of Another

In count thirteen, the plaintiffs allege that the article published by Murray's newspaper constituted an unreasonable intrusion upon her seclusion and therefore, Murray is liable for an invasion of privacy. Murray moves to strike count thirteen on the ground that "the complaint fails to allege facts necessary to complete the tort of invasion of privacy." In their brief in opposition to the motion to strike, the plaintiffs respond that Murray is obligated to expand his argument by CT Page 12186 specifying why count thirteen does not satisfy the required elements of this tort, and until he has done so, they are not required to respond. Although it is true that the Connecticut Supreme Court "will not uphold the granting of [a] motion to strike on a ground not alleged in the motion;" Blancato v Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987); in this case Murray has alleged sufficient grounds upon which a motion to strike can be granted. He claims that the complaint does not allege the required elements of the unreasonable intrusion upon the seclusion of another. Therefore, the court will examine the required elements of this claim to determine whether the facts alleged by the plaintiffs can support this cause of action.

"[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone . . . The four categories of invasion of privacy are set forth . . . as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (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. Indeed, these four categories have been adopted by a number of courts that have recognized the privacy right of action." (Citations omitted; internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007). "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." (Internal quotation marks omitted.) Birge v. Medical Electronic Distributors, Inc., Superior Court, judicial district of New London, Docket No. CV 07 6000054S (December 1, 2008, Abrams, J.). The Supreme Court, however, has often adopted the Restatement when adjudicating an invasion of privacy claim; see Foncello v. Amorossi, supra, 284 Conn. 234; Goodrich v. Waterbury Republican-American, Inc.,188 Conn. 107, 127, 448 A.2d 1317 (1982); and the Superior Court has consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another. See Birge v. Medical Electronic Distributors, Inc., supra, Superior Court, Docket No. CV 07 6000054S; Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 066602 (February 4, 2000, Nadeau, J.) [26 Conn. L. Rptr. 368]; Hellanbrand v. National Waste Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV 07 5010727 (January 31, 2008, Hale, J.T.R.) (44 Conn. L. Rptr. 849). This court, therefore, will do the same.

"One who intentionally intrudes, physically or otherwise, upon the CT Page 12187 solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." 3 Restatement (Second), Torts § 652B, p. 378 (1977). "This is said to consist of intentional interference with another's interest in solitude or seclusion, either as to his person or to his private affairs or concerns." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 117, p. 854.

The plaintiffs' complaint quotes several excerpts from Murray's newspaper article, but it fails to allege an actual intrusion, physical or otherwise. It has been said that, "[t]he invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or taping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined." See 3 Restatement (Second), supra, § 652B, comment (b). The plaintiffs do not allege facts concerning how Murray obtained any of this information and therefore, there is no allegation of any form of offensive investigation or other intrusion into Gleason's life by invading her privacy. Publication of private information alone is not legally sufficient to sustain this particular cause of action, which is concerned with the methods used when obtaining private information, rather than its subsequent dissemination. Id. Accordingly, the defendant's motion to strike count thirteen is granted.

2. Count Fourteen: Appropriation of the Other's Name or Likeness

In count fourteen of the plaintiffs' revised complaint, the plaintiffs incorporate the above summarized facts and further allege that "the defendant Murray tortiously appropriated the name and likeness of the plaintiff Gleason." In his motion to strike, Murray argues that this count "fails to allege facts necessary to complete the tort of appropriation of likeness, and thus fails to state a claim upon which relief can be granted." Specifically, in his memorandum of law in support, Murray contends that "there can be no invasion of privacy claim where the photograph is made in a public space." In their brief in opposition, the CT Page 12188 plaintiffs claim that Murray, "has indeed attempted to market his newspaper through the use of the plaintiff's private information, her name, and her secretly photographed likeness."

Although the Supreme Court has never provided the courts with the elements required to state a claim sounding in appropriation of name or likeness, it has acknowledged the tort's existence under the law of Connecticut. Goodrich v. Waterbury Republican-American, Inc., supra,188 Conn. 127; Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983) (seeming to accept the plaintiff's contention that the elements required for this tort under the law of Connecticut are provided by the Restatement). The Restatement provides that: "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy." 3 Restatement (Second), supra, § 652C. The restatement also provides, however, that "[t]he value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable under the rule stated in this Section to every person whose name or likeness it publishes." (Emphasis added.) Id., § 652C, comment (d).

Upon considering count fourteen of the revised complaint, the court notes that the plaintiffs do little more than allege that Murray wrote an article about the circumstances surrounding the disappearance of Billy Smolinski, which included a discussion of Gleason's past activities. "The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose." 3 Restatement (Second), supra, § 652C, comment (b). For example, it has been said that a plaintiff's privacy is invaded if "A is an actress, noted for her beautiful figure. B, seeking to advertise his bread, publishes in a newspaper a photograph of A, under the caption, `Keep That CT Page 12189 Sylph-Like Figure by Eating More of B's Rye and Whole Wheat Bread.'" Id., § 652B, comment (b) illustration (1). The plaintiffs, in this case, have alleged a publication, but failed to allege any invasion similar to this example. Rather, their claim seemingly relies on the mere fact that Murray published Gleason's name and photograph in his newspaper article. As the restatement makes clear, without facts evidencing an actual appropriation, this claim is legally insufficient.

The court, therefore, finds that count fourteen of the plaintiffs' revised complaint fails to state a cause of action upon which relief can be granted. Accordingly, Murray's motion to strike count fourteen of the revised complaint is granted.

3. Count Fifteen: Unreasonable Publicity Given to the Other's Private Life

In count fifteen, the plaintiffs allege that the article published by Murray's newspaper was an unreasonable publicity given to Gleason's private life. Murray moves to strike this count on the ground that it is legally insufficient because "the Observer addresses an actual missing man, and the perceived lack of law enforcement in the solution of the case. The complaint does not allege there is no legitimate public concern to the issue, nor do the facts presented demonstrate the absence of a legitimate public concern." In response, the plaintiffs argue that, "[t]he defendant does not even attempt to support his argument with any sort of analysis. In what possible way can his long and lurid newspaper articles discussing the alleged details of the plaintiff's intimate personal life be `of legitimate public concern.'"

The Supreme Court has made clear that the claim of unreasonable publicity given to the other's private life is "governed by first amendment principles." Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 132. "Such a private facts claim 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 . . . A media defendant is constitutionally permitted to publicize facts concerning an individual's private life so long as those facts are newsworthy . . . and in conducting this inquiry we consider [1] the social value of the facts published, [2] the depth of the article's intrusion into ostensibly private affairs, and [3] the extent to which the party voluntarily acceded to a position of public notoriety." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 133.

Upon considering the allegations contained in count thirteen and CT Page 12190 incorporated by reference into count fifteen, the court finds that most of the quoted excerpts of the article at issue pertain to Gleason's relationship with Billy Smolinski shortly before his disappearance, and therefore is a legitimate concern of the public. The remaining passages, however, briefly discuss Gleason's children and her previous marriages. Although these excerpts do not have particular relevance to the disappearance of Billy Smolinski, reports of suicide, overdose and incarceration are typically considered newsworthy. Although tragic and painful to family and friends, the media publishes stories regarding occurrences such as these on a daily basis. In addition, these quoted excerpts do not delve into the depths of these happenings, unearthing the most intimate private matters, but rather merely inform the reader of their existence. A finding that such facts are legally sufficient would surely set the first amendment bar too low for this cause of action.

Count fifteen, therefore, fails to allege private facts that are not of legitimate concern to the public. Accordingly, the defendant's motion to strike count fifteen is granted.

4. Count Sixteen: False Light

In count sixteen, the plaintiffs allege that the aforementioned facts "placed [Gleason] in a false light before the public." Murray moves to strike this count on the ground that "[t]here is no claim the contents of the article were false." Responding to Murray's motion, the plaintiffs argue that, "[t]he defendant did not file a request to revise the complaint seeking greater detail in that allegation and therefore must be content with it as it is. While it is a brief assertion, it expressly states that Murray's assertions placed the plaintiff before the public in false light and therefore, albeit perhaps only barely, states the necessary allegations to maintain this claim." Contrary to the plaintiffs' claim, however, the Appellate Court has made it clear that a party is not required to file a request to revise when a complaint is legally insufficient. See JP Morgan Chase Bank, Trustee v. Rodrigues,109 Conn.App. 125, 130, 952 A.2d 56 (2008) ("[s]pecifically, the defendants claim that instead of filing a motion to strike, the plaintiff should have filed a request to revise under Practice Book § 10-35 et seq. We disagree"). The court, therefore, must determine whether count sixteen contains the elements required to sufficiently plead a false light invasion of privacy tort.

"To the extent that freedom of the press is involved in this claim, federal law is relevant. The United States Supreme Court first considered the parameters of false light invasions of privacy in Time, Inc. v. Hill,385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). In construing New CT Page 12191 York's statutory right of privacy against the requirements of the first amendment, the court held that the actual malice standard of New York Times Co. v. Sullivan was applicable to privacy actions. `We hold that the constitutional protections for speech and press preclude the application of the . . . statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." (Citations omitted; emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra,188 Conn. 129.

"[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 . . . This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is . . . The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true . . . and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position." (Citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra,188 Conn. 131.

The plaintiffs claim that the facts alleged in the complaint place Gleason in a false light and that this is legally sufficient to maintain this cause of action. Nowhere in count sixteen do the plaintiffs plead that any part of the article authored and published by Murray in The Waterbury Observer was false or inaccurate. The plaintiffs' complaint, therefore, can be interpreted as merely alleging that, "[d]espite the truth of such statements there exist additional circumstances which when expanded, cast [Gleason] in a more favorable light more in keeping with reality . . . To allow recovery upon such a claim would violate the defendant's first amendment rights since [t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment . . . Under the first amendment, a media defendant can be liable for a false light invasion of privacy only where it publishes highly offensive material without regard to its falsity, and to the false impression relayed to the public . . . As long as the matter published is substantially true, the defendant was constitutionally protected from liability for a false light invasion of privacy, regardless CT Page 12192 of its decision to omit facts that may place the plaintiff under less harsh public scrutiny." (Citations omitted; emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 132.

The court, therefore, finds that contrary to the plaintiffs' argument, count sixteen fails to plead a legally sufficient cause of action because it lacks an allegation that statements in the article were false. Accordingly, the defendant's motion to strike count sixteen is granted.

5. Count Seventeen: Intentional Infliction of Emotional Distress

In count seventeen of the revised complaint, the plaintiffs claim that "[t]he conduct of defendant Murray described above was extreme and outrageous and was carried out with the knowledge that it probably would cause the plaintiff Gleason to suffer emotional distress." Murray moves to strike this count on the ground that the alleged conduct is not extreme and outrageous and that "[t]here can be no serious disagreement that the facts contained in the article do not rise to this level, particularly where there is no claim the article is false." Responding to Murray's motion to strike, the plaintiffs contend that "it is difficult to imagine behavior more extreme and outrageous than that alleged in this case." The plaintiffs then summarize several cases where a complaint was found to be sufficient and argue that the facts of this case are more extreme and outrageous than precedent requires.

"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (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 . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . .

"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which CT Page 12193 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!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11,757 A.2d 1059 (2000). "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

Although the plaintiffs argue that "[t]his court does not `sit as a seventh juror,'" precedent makes clear that the court must perform its gatekeeping function by applying the "Outrageous!" test. In addition, the court notes that none of the cases cited by the plaintiffs are directly on point with the facts of this case. Upon considering the quoted excerpts of the subject article contained within the plaintiffs' complaint, the court finds that count seventeen fails to set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. As previously discussed, the complaint fails to allege any invasive behavior on the part of Murray when investigating this information and the substantive content of the article itself is newsworthy and resembles what a reasonable person may expect from investigative journalism. Surely, reasonable minds would agree that count seventeen is lacking of any allegation that would cause an average member of the community resentment against Murray, and lead him to exclaim "Outrageous!"

The court, therefore, finds that count seventeen is legally insufficient because it fails to allege extreme and outrageous conduct which rises to the level required by the law. Accordingly, Murray's motion to strike count seventeen is granted.

6. Count Eighteen: Negligent Infliction of Emotional Distress

In count eighteen of the revised complaint, the plaintiffs claim that, CT Page 12194 given the aforementioned facts, "the defendant Murray negligently engaged in conduct which he knew or should have known was likely to cause the plaintiff Gleason, as it would any person of ordinary sensibilities, to suffer emotional distress so severe that it could result in physical illness." In his motion to strike, Murray contends that "[t]he complaint does little more than recite certain portions of one article from the Observer. Without offering a single example of how the publication of the information in the article, as opposed to the events themselves, caused a risk of distress leading to illness." The plaintiffs respond by arguing that "these elements are fairly to be inferred from the allegations of the Revised complaint."

"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove the following 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).

As to the first and second elements, they "essentially [require] that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, supra, 274 Conn. 410.

After reviewing count eighteen of the defendant's complaint, the court finds that the plaintiffs do little more than recite the generic language provided by the Supreme Court in Carrol. There are no specific facts alleged pertaining to Gleason's distress and thus, it is impossible to tell whether it could be reasonable, given Murray's conduct. As previously stated, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull CT Page 12195 Conservancy, LLC v. Alves, supra, 262 Conn. 498. In this case, the complaint states that the defendant's conduct "cause[d] the plaintiff Gleason, as it would any person of ordinary sensibilities, to suffer emotional distress." Such a statement is a legal conclusion because it lacks any substantive facts particular to Gleason. Allowing such allegations to survive a motion to strike would essentially render Connecticut's fact pleading requirements irrelevant.

Furthermore, courts have held that when the facts suggest that emotional distress could be caused by a number of external factors, the plaintiff must show why this specific defendant's conduct created an additional risk of distress, above and beyond the distress that would have otherwise occurred. Ancona v. Manafort Bros., Inc.,56 Conn.App. 701, 713-14, 746 A.2d 184, cert. denied, 252 Conn. 953,749 A.2d 1202 (2000); Hayes v. Yale-New Haven Hospital, 48 Conn.Sup. 311,345, 844 A.2d 258 (2001), aff'd, 82 Conn.App. 58, 842 A.2d 616 (2004). In this case, there are several alleged facts that could have caused Gleason emotional distress, including the abrupt disappearance of Billy Smolinski. If Gleason suffered emotional distress, whether reasonable or not, it is unclear from the facts alleged whether it was caused by Murray's conduct. The plaintiffs do not allege that Gleason read Murray's article about Billy Smolinski, nor do they allege Gleason's immediate reaction, if she did in fact read the article. Without such allegations, the fourth element required to state a claim of negligent infliction of emotional distress cannot be satisfied.

Count eighteen, therefore, fails to allege facts that are legally sufficient to state the claim of negligent infliction of emotional stress. Accordingly, Murray's motion to strike count eighteen of the plaintiffs' complaint is granted.

CONCLUSION

For the aforementioned reasons, each count of the revised complaint alleged against the defendant Murray is legally insufficient. Accordingly is motion to strike each claim is granted.

http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=1572904

Once the Motion to Strike was granted to John Murray, a Motion For Summary Judgment was granted to John Murray.

See the Trial Court Docket here

http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV065005107S

Case Documents & Links

Case Documents

http://www.jud.state.ct.us/external/supapp/aro.htm#supreme

http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV065005107S

http://appellateinquiry.jud.ct.gov/CaseDetail.aspx?CRN=49764&Type=PartyName

http://www.jud.state.ct.us/external/supapp/

State v. Golding, 213 Conn. 233 - Conn: Supreme Court 1989

Further, the Appellate Court erred by refusing to review the defendant's claim since she proffered a constitutional claim and the record was clearly adequate to review that claim. State v. Hill, 201 Conn. 505, 512-13, 523 A.2d 1252 (1986); State v. Kurvin, supra, 558. We have for many years held that claims not raised
239
*239 in the trial court "can and will be considered" on appeal in two "exceptional circumstances." State v. Evans, supra, 70. One of those circumstances "may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial."[8] (Emphasis added.) Id.

The state urges us to revise the Evans standard of review for errors not preserved at trial because the words used by the standard though easily said lend themselves to inconsistent application. We have reviewed our own cases and those of the Appellate Court, and we agree with the state that they demonstrate disparate approaches to the Evans criteria. Upon reflection, we have decided neither to adopt a pure plain error standard for alleged constitutional violations, nor to attempt to reconcile past Evans decisions. Instead, we articulate guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal.

Relying on the methodology of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980),

we hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error;[9]
(2) the claim is of constitutional magnitude alleging the violation of a fundamental right;
240*240
(3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances.

http://scholar.google.com/scholar_case?case=11392692234307463966&q=State+v.+Golding&hl=en&as_sdt=80006&as_vis=1

State v. Golding, 14 Conn. App. 272 - Conn: Appellate Court 1988

http://scholar.google.com/scholar_case?case=16553990236949982583&q=State+v.+Golding&hl=en&as_sdt=80006&as_vis=1

http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=5150210

http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=5516062

http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=7772130

http://www.jud.ct.gov/external/supapp/Cases/AROap/AP149/149AP232.pdf

http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=7465487

http://appellateinquiry.jud.ct.gov/DocViewer/DocumentInquiry.aspx?DocID=92&AppID=1

http://appellateinquiry.jud.ct.gov/DocViewer/DocumentInquiry.aspx?DocID=11074&AppID=1

http://appellateinquiry.jud.ct.gov/DocViewer/DocumentInquiry.aspx?DocID=11076&AppID=1

http://waterburyobserver.blogspot.com/2007_12_01_archive.html

https://www.google.com/maps/@41.7223947,-72.9758786,9z

http://victimsnewsonline.com/2015/04/smolinski-family-heads-back-to-court-defending-right-to-hang-fliers/

http://www.waterburyobserver.org/node/948

https://www.facebook.com/janice.smolinski.9?fref=nf

http://foxct.com/2015/02/27/cold-case-billy-smolinski/

http://www.nhregister.com/general-news/20150427/family-of-missing-billy-smolinski-argues-posters-protected-by-first-amendment

i

t http://www.justice4billy.com/
https://www.findthemissing.org/cases/43/0/

As the investigation continued, Waterbury Police received information from a man named Chad Hanson. According to witnesses, Hanson had information on Billy’s murder and the location of his body. Over a span of three years, Hanson led police all over the state digging up potential locations of Billy’s body. All information proved to be incorrect and Hanson was arrested and sentenced to 4.5 years in prison for making false statements.

Read Billy's Law and Show Your Support

http://thomas.loc.gov/cgi-bin/bdquery/z?d113:SN02840:@@@P

http://foxct.com/2015/02/27/cold-case-billy-smolinski/

https://twitter.com/teamsmolinski

https://www.facebook.com/janice.smolinski.9?fref=ts

Read Billy's Law and help support this bill: To authorize funding for, and increase accessibility to, the National Missing and Unidentified Persons System, to facilitate data sharing between such system and the National Crime Information Center database of the Federal Bureau of Investigation, to provide incentive grants to help facilitate reporting to such systems, and for other purposes.

.
https://www.facebook.com/ARForBillysLaw https://www.findthemissing.org/en/homes/making_a_difference

Missing Person William Paul Smolinski

Testing For Truth

First to clear this part up. Even though the Plaintiff's Madeline Gleason and B and B Transportation originally made all of these complaints, there obviously was no truth to them. So what does that tell you right out of the gate?
http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV065005107S

The plaintiff also sued John Murray, the owner, publisher and editor of a monthly newspaper, the Waterbury Observer, for invasion of privacy and intentional infliction of emotional distress. Murray filed a motion to strike the claims against him, which the court granted on July 20, 2009. He then moved for summary judgment because all of the counts directed at him had been stricken by the court. The court granted Murray's motion for summary judgment on January 12, 2010. Thus, none of the claims in this appeal pertain to Murray.

The plaintiff's employer, B and B Transportation, Inc., was an original plaintiff in this action, pleading claims against the defendants for trespass, and tortious interference with business relationships and expectancies. On July 30, 2011, B and B Transportation, Inc., withdrew its claims against the defendants and is no longer a party to this action.

Now moving on to see what else falls out.

Do any of these locations look like they truly meet the description of "a dead end street"? Good to check what people say! Because it isn't always the truth coming out of their mouths and this was one that seemed easy enough to prove that it was really false or true given the information supplied in the police reports.Wonder what else was not true?

News Article about the trial. Clearly there was allowed into the record, testimony that could not be true. For instance exactly where did Madeline live at the time of Billy's disappearance? Where had the events occurred where Billy was last seen alive? Where were the flyers posted that were being taken down?

Where was it? Was it
5 Nichols St. Seymour, CT 06483
1812 Litchfield Tpke, Woodbridge CT 06525
27 N Cliff St Ansonia, CT 06401 or
4 Brothers Ct, Seymour, Connecticut 06483-3623 ?
So why tear down posters near here?
152 Peck Hill Rd, Woodbridge, CT 06525

https://www.google.com/maps/place/4+Brothers+Ct,+Seymour,+CT+06483/@41.3874989,-73.0611454,103m/data=!3m1!1e3!4m2!3m1!1s0x89e7ddbf00f6b4b7:0x4ceb4635f6afde58
http://www.spokeo.com/CT/Woodbridge/1812-Litchfield-Tpke
http://www.ilookupconnecticut.com/people/county/profile/new-haven/09009/melissa-depallo/13792934/

http://www.waterburyobserver.org/node/661

https://www.google.com/search?q=27+north+cliff++Ansonia+%2C+CT&ie=utf-8&oe=utf-8#safe=off&q=Melissa+Depallo+4+Brothers+Ct%2C+Seymour%2C+Connecticut+06483-3623

If this is the last place Billy was seen alive, 4 Brothers Ct, Seymour, CT 06483, then why was it never looked into by the police? Why is this address not showing up in the reports as being the address where he was last seen alive?
http://www.ilookupconnecticut.com/people/county/profile/new-haven/09009/melissa-depallo/13792934/

https://www.google.com/maps/@41.5178011,-73.0281056,15z
http://www.spokeo.com/CT/Seymour/5-Nichols-St#resident_info_panel_2

http://www.spokeo.com/CT/Seymour/5-Nichols-St#resident_info_panel_2

http://www.spokeo.com/CT/Woodbridge/1812-Litchfield-Tpke#resident_info_panel_4

http://www.spokeo.com/CT/Seymour/5-Nichols-St#resident_info_panel_2
-insert-

- insert- http://www.zillow.com/homedetails/152-Peck-Hill-Rd-Woodbridge-CT-06525/58042181_zpid/
http://www.buzzfile.com/business/Chris-Sorensen,-LLC-203-671-3355
How about where she was video taped tearing down the posters? What was the address from the Police report? Wasn't it shown to be Peck Hill Rd.? Gee what is located on Peck Hill Rd. because it isn't anywhere near where she was living. Hmm? Who did live on Peck Hill Rd.? Why was she tearing down those posters? How could she get away with telling the police it wasn't her doing it using her own car when it was her face caught on video and the license plate they had showed when they checked it to be her name and her address? Oh, it was my friend whose hair looks like me! REALLY? And why would her friend have a reason to do it?

(ELECTED OFFICIALS (July 1, 2003) *indicates Chairperson

    2nd Wednesday of the Month - Town Hall - 6:00 p.m.

     FIRST SELECTMAN     TERM     ADDRESS     PHONE

Christian M. Sorensen

2005

152 Peck Hill Road

393-0283
389-0030 O
397-9716 F

http://vvv.munic.state.ct.us/WOODBRIDGE/HTM/boards.htm#anchor512798

http://vvv.munic.state.ct.us/WOODBRIDGE/HTM/boards.htm
http://www.woodbridge.k12.ct.us/page.cfm?p=511

http://www.nhregister.com/general-news/20120106/informant-in-billy-smolinski-case-on-the-run-after-escaping-from-waterbury-halfway-house

Wasn't it really Billy who did live on a "dead end" street? An amazing and telling use of words?

http://www.scribd.com/doc/62712743/Hanson-Warrant

Where did he say the body was buried? Where did they dig up? 160 Bungay Rd. Seymour CT 06483

http://www.trulia.com/homes/Connecticut/Seymour/sold/20679560-160-Bungay-Rd-Seymour-CT-06483

Obituary for Shaun Karpiuk

WOODBRIDGE, CT: Shaun M. Karpiuk, age 27 of Litchfield Turnpike entered into peaceful rest January 31, 2005 in Waterbury. Born May 20, 1977 in Waterbury, beloved son of Madeleine Gleason of Woodbridge, and Thomas Karpiuk, Sr. of West Palm Beach, FL Shaun was a Woodbridge resident for the past two months, formerly of Ansonia, having lived most of his life in Seymour. He was construction worker with Top Gun Landscaping Company. Mr. Karpiuk was a communicant of St. Augustine Church, Seymour. He was a 1996 graduate of Seymour High School, where he played on the Wildcats Football Team; he previously played with the Seymour Pop Warner Football.
In addition to his parents, Shaun leaves his loving family including his longtime companion Stefanie Spigarolo of Naugatuck, three brothers, Thomas Karpiuk, Jr. of West Palm Beach, FL, Daniel Rapuano of Seymour, and Jordan Gleason of Woodbridge, his grandparents, Andrew and Patricia Karpiuk of West Palm Beach, FL, and Gloria Garcia in CA, also several nieces and nephews. His sister Krystal Y. Rapuano predeceased him.
Funeral services will be held Friday at 9:15 a.m. from the Ralph E. Hull Funeral Home, 161 West Church Street, Seymour, to St. Augustine Church where a Mass of Christian Burial will be celebrated at 10:00 a.m. Interment is to be determined. Family and friends may call at the funeral home on Thursday from 4:00 to 8:00 p.m. Memorial gifts may made to the Brianna Hughes Trust Fund. For directions to the funeral home, and to express condolences to Shaun�s family online, go to www.hullfh.com

----------------------------
KARPIUK, THOMAS A., JR. SEYMOUR, CT: Thomas Andrew Karpiuk, Jr. age 33 of West Palm Beach, FL, formerly of Seymour and Waterbury, CT entered into peaceful rest May 16th in Sag Harbor, NY. He was born September 10, 1974 in Derby, beloved son of Madeline (Garcia) Gleason of Woodbridge, and Thomas Karpiuk, Sr. of West Palm Beach, FL. Thomas was an Estate Manager in Bridgehampton, NY, and was a 1993 graduate of Holy Cross High School, Waterbury; he served in the U.S. Marines at Yuma, AZ. In addition to his parents Thomas leaves his loving family including a son, Aeden Karpiuk of West Palm Beach, FL, two brothers, Daniel Rapuano, and Jordan Gleason both of Woodbridge, grandparents, Andy and Pat Karpiuk of West Palm Beach, FL, and Gloria Garcia of Orange Grove, CA; he also leaves his girlfriend, Caroline Day of West Palm Beach, FL. His brother Shawn Karpiuk and sister Krystal Rapuano predeceased him. A graveside service with full Military Honors will be held Friday June 6th at 11:! 00 a.m. in South Florida National Cemetery, Lake Worth, FL. In lieu of flowers memorial gifts may be sent to the Aeden Karpiuk Trust Fund c/o Neil Anderson, 8316 SE Pinehaven Ave., Hobe Sound, FL 33455. Arrangements have been entrusted to the care of the Ralph E. Hull Funeral Home, 161 West Church Street, Seymour, CT. To express condolences to the family online only go to www.hullfh.com Death Notices - New Haven Register - 06/04/2008

--------------
Daniel Rapuano - Daniel Rapauno, interestingly is coming up connected to the address at Litchfield Turnpike.
http://www.ilookupconnecticut.com/city/woodbridge/people/15045/d/

http://www.ilookupconnecticut.com/people/city/profile/woodbridge/15045/daniel-rapauno/84600077/

The woman Billy was dating, Madeline Gleason, had five children and has been married and divorced three times. Four months before Billy disappeared, Madeline's 18 year old daughter, Krystal Rapuano, hung herself in the family home in Seymour. Several months after Billy disappeared, another of Madeline's children, Shaun M. Karpiuk, 27, died of a drug overdose in Waterbury.
   At the time of his death Shaun was a construction worker with Top Gun Landscaping and had previously worked as a grave digger in Seymour.
   Another of Madeline's children, Daniel Rapuano, was in prison at the time of Billy's disappearance.
   Further consider that for a year after Billy's disappearance Madeline traveled around Woodbridge, Ansonia, Seymour and Bethany tearing down and vandalizing hundreds of Billy's missing person posters. When you add all that up, at the very least, Madeline's family is involved with drugs, violence and two untimely deaths.
http://www.waterburyobserver.org/node/661

So is Madeline remarried again? Sodins now?
http://www.legacy.com/obituaries/nhregister/obituary.aspx?pid=168781998
http://www.nhregister.com/general-news/20120817/connecticut-to-seek-reimbursement-from-suspect-in-smolinski-searches-family-to-appeal-defamation-verdict
------------

Obituary for Krystal Rapuano

SEYMOUR, CT: Krystal Yvonne Rapuano, age 18 of Nichols Street entered into peaceful rest on May 1, 2004 at her home. Krystal was born September 6, 1985 in New Haven, beloved daughter of Gary Rapuano of West Haven, and Madeleine (Garcia) Gleason of Seymour, and step-daughter of Patricia Rapuano of West Haven. A lifelong Seymour resident, Krystal attended Seymour schools, and had worked as an aide for the B and B Transportation Company; she was a communicant of Saint Augustine Church. Krystal was an avid sports enthusiast and athlete; she played baseball, basketball, soccer, and football.
In addition to her parents Krystal leaves her loving family including, her daughter, Brianna Yvonne Hughes of Seymour, four brothers, Daniel Rapuano of Seymour, Thomas Karpiuk of West Palm Beach, FL, Shaun Karpiuk of Ansonia, and Jordan Gleason of Seymour, her grandmothers, June Rapuano of Seymour, and Gloria Garcia of Mount Joy, PA, also several loving aunts, uncles and cousins.
Funeral services will be held Thursday at 9:15 a.m. from the Ralph E. Hull Funeral Home, 161 West Church Street, Seymour, to St. Augustine Church where a Mass of Christian Burial will be celebrated at 10:00 a.m. Interment will be in Mount Saint Peter Cemetery, Derby. Family and friends may call at the funeral home on Wednesday from 4:00 to 8:00 p.m. In lieu of flowers memorial gifts may be made to the Brianna Hughes Trust Fund. To express condolences to Krystal�s family, and for directions to the funeral home go to www.hullfh.com

----------------------------

Obituary:

SEYMOUR, AND WEST HAVEN, CT: Michael Gary Rapuano age 47 of East Avenue, where he resided for the past three years, formerly of Seymour, entered into peaceful rest September 22, 2004 at the Yale New Haven Hospital; he was the beloved husband of Patricia (Curnan) Rapuano. Michael was born August 16, 1957 in Derby, beloved son of June (Russell) Rapuano of Seymour, and the late Michael A. Rapuano. Mr. Rapuano was a machinist for the past twenty four years at Sikorsky Aircraft, Stratford, and was a member of Teamsters Union Local 1150. He was a communicant of Saint Augustine Church, Seymour. Gary enjoyed volunteering his time to youth sports and coached several Seymour youth leagues including Soccer, Little League, Biddy Basketball, and Pop Warner Football. Besides his wife and mother Michael leaves hi loving family including his son, Daniel G. Rapuano of Seymour, three sisters, Susan Haversat of Lehigh Acres, FL, Michelle Rozum of Seymour, and Nancy Kurdy of Oxford, a granddaughter Brianna Hughes and several nieces and nephews. His daughter Krystal Yvonne Rapuano predeceased him. Funeral services will be held Monday at 9:15 a.m. from the Ralph E. Hull Funeral Home, 161 West Church Street, Seymour to Saint Augustine Church where a Mass of Christian Burial will be celebrated at 10:00 a.m. Interment will be in Mountain Meadows Cemetery. Family and friends may call at the funeral home on Sunday from 4:00 to 8:00 p.m. For directions to the funeral home and to express condolences to Garys family online go to www.hullfh.com
---------------------

https://www.facebook.com/photo.php?fbid=10204411098013187&set=pcb.10204411105293369&type=1&theater

http://www.nhregister.com/general-news/20150430/malloy-joins-others-in-woodbridge-to-name-new-building-after-edward-sheehy-in-bittersweet-tribute

http://www.highbeam.com/doc/1P2-15432933.html

https://www.dvidshub.net/video/207252/pfc-jordan-gleason#.VUyeEJMQbm5

http://projectjason.org/forums/topic/451-missing-man-william-paul-smolinski-ct-08242004/

http://www.hamptons.com/article.php?articleID=3855#.VUygqpMQbm5

The defendants make six arguments as to why the judgment of the court should be reversed:
(1) the court erred in failing to bar the plaintiff's claims under the first amendment to the United States constitution;
(2) the trial judge exhibited bias and partiality that constituted plain error;
(3) the court erred in relying on hearsay statements to determine that the defendants intended to inflict emotional distress upon the plaintiff;
(4) there was insufficient evidence to support the finding of intentional infliction of emotional distress;
(5) there was insufficient evidence to support the finding of defamation; and
(6) the court erred in awarding compensatory and punitive damages to the plaintiff. For the following reasons, we disagree with the defendants and affirm the judgment of the court.

http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=7465487

The Appeals Court Decision

https://casetext.com/case/gleason-v-smolinski-1
http://appellateinquiry.jud.ct.gov/CaseDetail.aspx?CRN=49764&Type=PartyName

Appellate Court of Connecticut.
·
88 A.3d 589 (Conn. App. Ct. 2014)

Gleason v. Smolinski

Conn. App.

Appellate Court of Connecticut.

No. 34990.

2014-04-8

Madeleine GLEASON et al. v. Janice SMOLINSKI et al.

Steven J. Kelly, pro hac vice, with whom were Anne T. McKenna, pro hac vice, and Christopher DeMarco, for the appellants (named defendant et al.). John R. Williams, New Haven, for the appellee (named plaintiff).

SHELDON

*594594 Steven J. Kelly, pro hac vice, with whom were Anne T. McKenna, pro hac vice, and Christopher DeMarco, for the appellants (named defendant et al.). John R. Williams, New Haven, for the appellee (named plaintiff). ALVORD, BEAR and SHELDON, Js. SHELDON, J.

The defendants Janice Smolinski and Paula Bell ¹ appeal from the trial court's judgment in favor of the plaintiff Madeleine Gleason ² on her claims of intentional infliction of emotional distress and defamation arising from the defendants' conduct *595595following the disappearance in 2004 of Bill Smolinski, who is Janice Smolinski's son and Bell's brother. The defendants make six arguments as to why the judgment of the court should be reversed: (1) the court erred in failing to bar the plaintiff's claims under the first amendment to the United States constitution; (2) the trial judge exhibited bias and partiality that constituted plain error; (3) the court erred in relying on hearsay statements to determine that the defendants intended to inflict emotional distress upon the plaintiff; (4) there was insufficient evidence to support the finding of intentional infliction of emotional distress; (5) there was insufficient evidence to support the finding of defamation; and (6) the court erred in awarding compensatory and punitive damages to the plaintiff. For the following reasons, we disagree with the defendants and affirm the judgment of the court.

The following facts and procedural history, as set forth by the trial court in its memorandum of decision filed August 10, 2012, are relevant to our resolution of the foregoing claims. “The plaintiff Madeleine Gleason is and was at the time of the events central to this case a school bus driver. For a time, the young man whose disappearance has never been explained worked at the same company. They met there and [the plaintiff] began dating the young man whom the court will refer to as Bill Smolinski.³ Both of his parents and *596596sister constantly referred to him as ‘Billy,’ which, for the court, at least underlines the affection in which he was held as [the] only son to Mr. William Smolinski and Janice Smolinski, the parents; and the only brother to Paula Bell. Janice Smolinski and Paula Bell are the defendants in the case, which was initiated by [the plaintiff] almost two years after the disappearance of Bill Smolinski....

The plaintiff met Bill Smolinski during their mutual employment as bus drivers at B and B Transportation, Inc., and began dating. Shortly after they began dating, Bill Smolinski ended his employment with B and B Transportation, Inc., and his relationship with the plaintiff. About one year later, Bill Smolinski and the plaintiff began dating again. The plaintiff eventually broke up with Bill Smolinski because she “was older than him and [she] could not handle the age difference....” The plaintiff reported to Waterbury police Sergeant Edward Apicella on August 3, 2005, during the course of the police department's investigation of Bill Smolinski's disappearance that “she [had] met Bill Smolinski and had known him for over a year from the time that he went missing on 08/24/04, Tuesday. She said that she met him from driving a bus. She said that during the course of their friendship she began a relationship with him. She said that prior to her relationship with Bill she was having an affair with Chris Sorensen and she is currently continuing to have that affair. She said that she believed Bill suspected/ knew of her having an affair with Chris for a time but she didn't actually tell him until she went on a trip to Florida with Bill. She said that it came to [a head] when they went on a trip to Florida the week prior to August 22, 2004. She said that she was getting phone calls on her cell phone ... while they were on a beach in Florida. Bill grabbed the cell phone from her and was trying to see who was calling her. [The plaintiff] said that when she tried to get the phone from him he hit her and they had a fight. She began to yell at people on the beach to call the police because Bill was not giving her cell phone. She never made a report to the police and she eventually got her phone back. Bill told her that he wanted to end the relationship because he wanted more out of it. He didn't want to be with her if the relationship was going nowhere. She agreed and they returned from Florida with Bill on August 22 (Sunday). [The plaintiff] went on to say that she had been married three times, she liked Bill but she didn't need to baby-sit a 31 year old guy who liked to drink and fight. She said that Bill used to go to the Outside Inn (Hamilton Ave.) and get into fights all the time. She also claimed that Bill started to smoke drugs (did not specify type). She said she was already involved with Sorensen as well. It was [Bill's] idea to break up but she agreed.... [The plaintiff] said that she got a call from Chris saying that someone left a message on his answering machine that said You better watch your back at all times. [The plaintiff] heard the message and she said that it was Bill Smolinski.” The plaintiff's testimony conflicts with the preceding statement that she gave to the police, as she testified that she and “[t]he other man ... had broken up months before [she and] Billy ... even started seeing each other.”
The trial testimony revealed that because of the plaintiff's alleged affair with Sorensen, a local, married politician, the defendants formed the belief “[t]hat [the plaintiff] was in a love triangle with their son and ... another fellow ... and that he had gone missing, and that they assumed and they thought that [the plaintiff] had done something to him that he had gone missing.”

“[S]hortly after the disappearance of their son on August 24, 2004, Mr. and Mrs. Smolinski and their daughter Paula Bell, started putting up missing persons posters ⁴ in various parts of the state. They then noticed some of the posters were being torn down or vandalized and discovered the plaintiff and a friend were engaged in this activity. The two defendants ... then proceeded to follow [the plaintiff] and videotaped her activities in this regard. [The plaintiff] claims the posters were placed along her school bus route and generally where she lived, worked, and conducted some of her life activities. Eventually some of these activities led to the plaintiff going to the Woodbridge police station, where the defendants soon followed. A confrontation took place between the parties.

The evidence shows that the missing person posters that were hung by the defendants consisted of photographs and physical descriptions of Bill Smolinski as well as information about his disappearance, an offer of a reward, and contact information to report tips to the police.

“[The plaintiff] claims the defendants' activities interfered with and damaged her monetarily by interfering with her business of operating a school bus for a living. She also says she was defamed by the defendants who had characterized her as a murderer. She also states that her right to privacy was invaded and that generally the defendants intentionally inflicted great emotional stress on her, causing her much anxiety and torment.

“The defendants countered the allegations by saying [that the] alleged actions critical of them were, generally speaking, all lies. They deny entering a bus which [the plaintiff] was driving or going on school property to post a missing persons poster at a school where [the plaintiff] brought and dropped off students. They deny calling [the plaintiff] a murderer or harassing her on the phone. The plaintiff and the defendants trade mutual accusations about being followed by their respective antagonists.”

The court found that the defendants' conduct constituted intentional infliction of emotional distress and that their statements that the plaintiff was a murderer or was involved in murder constituted defamation. The court awarded the plaintiff compensatory damages of $32,000 on her claim of intentional infliction of emotional distress and $7500 on her claim of defamation, for a total compensatory damages award of $39,500. The court also awarded the plaintiff punitive damages on both claims in an amount equal to one-third of the plaintiff's total compensatory damages award (i.e., one third of $39,500, or $13,166.67). This appeal followed. Additional facts will be set forth as necessary. We will address each of the defendants' claims separately.

I

FIRST AMENDMENT CLAIM

We turn first to the defendants' argument that the plaintiff's claims are *597597barred by the first amendment to the United States constitution, which was not preserved by the defendants at trial. The defendants argue that their unpreserved claim nonetheless is properly before this court because the requirements of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), have been satisfied. We disagree.

In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail.” (Emphasis in original; footnote omitted.) Id. at 239–40, 567 A.2d 823. We conclude that the record is adequate for review and that the defendants' claim is of constitutional magnitude because it alleges a violation of the fundamental right to free speech under the first amendment to the United States constitution.⁵ Thus, we turn our attention to the third prong of Golding, namely, whether the alleged constitutional violation clearly exists and clearly deprived the defendants of a fair trial.

Although the defendants did not expressly invoke the fourteenth amendment to the United States constitution, it is axiomatic that the first amendment applies only to the states through the due process clause of the fourteenth amendment. For convenience, we will refer to this claim as the defendants' first amendment claim.

In support of their argument that a constitutional violation clearly exists, the defendants claim that their conduct constituted protected speech and that the court should have dismissed the plaintiff's claims against them as barred by the first amendment. The defendants assert that their speech related to a matter of public concern because the missing person posters were designed to uncover information about Bill Smolinski's disappearance, and to assist with the ongoing investigation and potential prosecution of a crime. The defendants cite to Snyder v. Phelps, ––– U.S. ––––, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011), in support of this assertion. Such comparison to the public speech described in Snyder, however, is unconvincing.

“The Free Speech Clause of the First Amendment ... can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress.” Id., at 1215. Whether the first amendment prohibits holding the defendants liable for their speech in this case “turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. [S]peech on matters of public concern ... is at the heart of the First Amendment's protection.... The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.... That is because speech concerning public affairs is more than self-expression; it is the essence of self-government.... Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection....

“[N]ot all speech is of equal First Amendment importance, however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.... That is *598598because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: [T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and the threat of liability does not pose the risk of a reaction of self-censorship on matters of public import.” (Citations omitted; internal quotation marks omitted.) Id., at 1215–16.

“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community ... or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.... The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern....

“Deciding whether speech is of public or private concern requires us to examine the content, form, and context of that speech, as revealed by the whole record.... [T]he court is obligated to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.... In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.” (Citations omitted; internal quotation marks omitted.) Id., at 1216.

In Snyder, members of the defendant church congregation stood on a plot of public land about 1000 feet from a church and picketed the military funeral for the plaintiff's son by holding signs reflecting the defendant's views about homosexuality and the death of soldiers. Id., at 1213. The United States Supreme Court described the defendant's speech as follows: “The content of [the defendant]'s signs plainly relates to broad issues of interest to society at large, rather than matters of purely private concern.... The placards read ‘God Hates the USA/Thank God for 9/11,’ ‘America is Doomed,’ ‘Don't Pray for the USA,’ ‘Thank God for IEDs,’ ‘Fag Troops,’ ‘Semper Fi Fags,’ ‘God Hates Fags,’ ‘Maryland Taliban,’ ‘Fags Doom Nations,’ ‘Not Blessed Just Cursed,’ ‘Thank God for Dead Soldiers,’ ‘Pope in Hell,’ ‘Priests Rape Boys,’ ‘You're Going to Hell,’ and ‘God Hates You.’ ... While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey [the defendant]'s position on those issues, in a manner designed ... to reach as broad a public audience as possible. And even if a few of the signs—such as ‘You're Going to Hell’ and ‘God Hates You’—were viewed as containing messages related to [the plaintiff] or [the plaintiff's family] specifically, that would not change the fact that the overall thrust and dominant theme of [the] demonstration spoke to broader public issues.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., at 1216–17.

The defendants argue that their challenged speech pertaining to the search for information to assist with a missing person investigation and potential prosecution of a crime relates to a matter of public concern, and thus is protected by the first amendment. They argue that their speech related to a matter of public concern because all of the posters were located on public grounds and none of the posters *599599mentioned the plaintiff by name. Insisting that their conduct constituted constitutionally protected speech, they argue that the court erred by rendering a judgment of liability against them. The plaintiff argues that the defendants' conduct did not constitute speech, nor did it address a matter of public concern. The plaintiff asserts that, unlike in Snyder, the defendants' conduct in posting and displaying the challenged posters was not designed or intended to communicate about a matter of public concern to a broad public audience, but rather to target, harass and upset the plaintiff personally in order to “break her.” Having heard testimony that the defendants targeted the plaintiff by placing large quantities of posters near where the plaintiff was residing at the time, the court agreed with the plaintiff and found that: “[The plaintiff] lived with [her friend, Melissa DePallo] for a short time ... on a dead-end street, and her house was definitely bombarded with flyers. There were no other flyers on the whole street; the pole in front of her house had twenty posters placed on it. When they were taken down, they went up the next day; it went on not just for the few months [that the plaintiff] lived with DePallo, it went on for a year according to her. [The plaintiff] testified that she lived with another friend, who testified on her behalf, and that person's house was saturated with posters.... [The plaintiff] also testified that when she returned to her own home in Woodbridge, it, too, was saturated with posters—the same pattern repeated itself at all three places where she lived. The posters would go up, they would be taken down and then appear the next day. [The plaintiff] also testified that the defendants followed her and [that] whenever they saw her called her insulting names.... This evidence leads the court to credit the testimony of the plaintiff [and] her friends....” (Internal quotation marks omitted.)

The court's findings of fact support its conclusion that the defendants' placement of many of the posters was targeted specifically at the plaintiff, for the defendants' admitted purpose of “trying to break [the plaintiff] ... until [she] breaks down and gives them information as to the whereabouts of their son and brother who had been missing since August 24, 2004.” The court credited the evidence and testimony presented by the plaintiff and her witnesses, and found that the defendants' conduct was “extreme and offensive ... [and] cannot be accepted in a society built on law.” The defendants argue that the context of the speech and its connection to the plaintiff do not make the subject of the speech any less about a matter of public concern. While the content of the posters makes no specific reference to the plaintiff, the court concluded, and we agree, that the context and placement of the posters was designed to “hound” the plaintiff into providing the defendants with information about the disappearance of Bill Smolinski, rather than to raise a matter of public concern.

Because the defendants' conduct, insofar as it targeted the plaintiff, is not protected speech, their claim of a constitutional violation resulting in the deprivation of a fair trial fails to satisfy the third prong of Golding.

II

JUDICIAL BIAS CLAIM

The defendants next claim that the judge exhibited bias by: (1) publicly committing himself, on the record during trial, to the defendants' liability and wrongdoing; (2) admitting and relying upon hearsay evidence proffered by the plaintiff; (3) holding in-chambers hearings *600600to protect the reputation of a local politician and witness Christian Sorensen; and (4) refusing to permit the defendants' repeated offers of evidence as to the defense of truth, motive and witness credibility. The defendants argue that this court's failure to reverse the judgment because of these alleged instances of judicial bias would result in manifest injustice. We disagree.

The plaintiff asserts that the defendants' claims must fail because they did not file a motion for disqualification pursuant to Practice Book §§ 1–22 and 1–23. Ordinarily, a “defendant's claim of judicial bias must fail because he did not file a motion for disqualification in the trial court. We have repeatedly refused to consider claims of trial court bias in the absence of such a motion.... The fact that a trial court rules adversely to a litigant, even if some of these rulings were to be determined on appeal to have been erroneous, does not demonstrate personal bias.” (Citations omitted.) Bieluch v. Bieluch, 199 Conn. 550, 552–53, 509 A.2d 8 (1986). This court may, however, when presented “with an accusation of prejudice against a judge, which strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary ... invoke [its] authority in the interests of justice to review plain error not properly preserved in the trial court.” (Citation omitted; internal quotation marks omitted.) Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982).

“No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part.... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct.... A judge should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him.... A judge, trying the cause without a jury, should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial.... It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” (Citations omitted; internal quotation marks omitted.) Id. at 168–69, 444 A.2d 915.

It is evident when reviewing the record before us that no such departure occurred in the trial court. The defendants specifically claim that the following statement made by the judge demonstrates judicial bias because he publicly committed himself to the conclusion that the defendants inflicted trauma on the plaintiff, causing her damage: “[T]he fact that it—that it follows her wherever she goes and whatever she does, just like they followed her wherever she went and whatever she did, that's part of what's happened to this woman, and it's part of the trauma that they've inflicted upon her.” The defendants argue that this statement reflects that the judge, prior to the conclusion of the presentation of all of the evidence, credited the plaintiff's testimony over that of the defendants and their witnesses, and constitutes judicial bias.

When this statement is viewed in the proper context, however, it is apparent that this statement was not made by the court, but rather, was made by the plaintiff's counsel. The context of the allegedly biased statement, which occurred during the direct examination of the plaintiff by her counsel, is as follows:

*601601

“Q. Now, what, if any, reaction did you have to all of these things that were being done to you?

“A. Well—well, I thought it was over with in the beginning, but every three months to maybe every four and five months my name was in the paper and how my children died, every single time. Every single time I had to read how my daughter died and how my son died. And when I called the Waterbury Police Department about my son's death, all they were concerned with was Billy Smolinski; they didn't even give a darn about my son's death. All I read in the paper is Madeleine Gleason, how many times I was married and how many children died; what did that have to do with their son missing? My children—my daughter died before he went missing, and two of my children died after he went missing; of all people, I would know what it's like to lose a child, but these people all they do is keep following me, harassing me. Every time I turn on the news, it's Madeleine Gleason, what does she have to hide? And if you watch on the show, The Disappearance, my name seventy times on the show. And all these newspapers and these television shows are going by what the Smolinskis are telling them; they've never come to me and asked me what my story is. I never even knew I was going to be on television until I watched it. All these things that they say, it's a love triangle. The reason why Bill and I broke up, and they know this, is because I was older than him, and I could not handle the age difference. That's the reason, it has nothing to do with the other man. The other man and I had broken up months before Billy and I even started seeing each other.

“Q. Now, how—how did these feelings that you had affect your daily life?

“A. They affected everything. My daughter died, she has a daughter, I went to go get custody of my granddaughter, their lawyer used the Smolinski case for me not to get my granddaughter. Then they—then they said for me to go to counseling because there's no way that I could have my granddaughter. It took me—I'm up to seven years fighting for custody of my granddaughter, and it always brings up the Smolinski case, that the reason why—it's questionable whether I did any killing or not.

“[The Defendants' Counsel]: Your Honor, I just want to put in the air that the custody disposition, whatever it may or may not be, is just not relevant.

“[The Plaintiff's Counsel]: It's clearly part of the collateral consequences.

“[The Defendants' Counsel]: It's a completely different tribunal, completely different setting; who knows what facts they're looking at.

“[The Plaintiff's Counsel]: You set in motion a chain of events, and you're responsible for the consequences.

“[The Defendants' Counsel]: If I may finish my objection that she's supposing the basis for it.

“The Court: I mean—I mean, do I take judicial notice of what some other court did regarding custody?

“[The Plaintiff's Counsel]: No, I'm not asking that, your Honor.

“The Court: I can't. Well, I can't go there.

“[The Plaintiff's Counsel]: What I'm asking you to take note of is her testimony that the subject was brought up during that hearing, too, that she can't get away from what these people have done.

“The Court: Yeah, But I can't deduce—

*602602

“[The Plaintiff's Counsel]: I'm not asking—

“The Court:—what—the reason she didn't get the granddaughter.

“The Court [The Plaintiff's Counsel]: Absolutely not. I'm not asking you to. But the fact that it—that it follows her wherever she goes and whatever she does, just like they followed her wherever she went and whatever she did, that's part of what's happened to this woman, and it's part of the trauma that they've inflicted upon her.

“[The Plaintiff]: Plus, the kids on my bus—

“The Court: Okay. There's no question pending. I—I'm not going to deduce from that that because of—she's just saying at a separate hearing—there could be a hearing—I don't want—this is a very stressful case, but it could be a hearing in front of a—so, I don't mean to belittle what's going on, it could be a hearing in front of the zoning board where this is mentioned, so, I don't attach any importance to she's not getting her grand daughter because of anything these people allegedly did.” (Emphasis added.)

Although the transcript notes that this statement was made by the court, common sense and context compel the conclusion that the actual speaker of this statement was the plaintiff's counsel, as evidenced by the speaker's explanation in support of the introduction of the plaintiff's testimony about a custody hearing, the outcome of which the plaintiff relates to the defendants' alleged conduct.⁶ Further, the speaker of the statement immediately preceding the statement in question was the court, which also supports the conclusion that the identification of the court as the speaker of the statement in question appears to be a scrivener's error.

See, e.g., State v. Blue, 230 Conn. 109, 113 n. 3, 644 A.2d 859 (1994) (“[T]he transcript indicate[d] that it was the ‘Court’ that said ‘I understand what you're saying, yes.’ It is clear, however, from the response and its context that this was a typographical error, and that in fact the response was that of the defendant.”).

The actual statement made by the court during this colloquy in no way demonstrates judicial bias. Rather, the judge remained unbiased and neutral when stating, “I'm not going to deduce from that that because of—she's just saying at a separate hearing—there could be a hearing—I don't want—this is a very stressful case, but it could be a hearing in front of a—so, I don't mean to belittle what's going on, it could be a hearing in front of the zoning board where this is mentioned, so, I don't attach any importance to she's not getting her grand daughter because of anything these people allegedly did.” (Emphasis added.) Contrary to the defendants' assertion, the judge did not publicly commit himself to the defendants' liability and wrongdoing prior to the conclusion of the presentation of all of the evidence. In fact, the judge's statement favors the defendants because he declares that although the plaintiff testified about the result of the custody hearing, he will not attach any weight to any alleged impact of the defendants' alleged conduct on the outcome of that hearing.

The remainder of the defendants' claims asserting judicial bias on the basis of the judge's alleged introduction of allegedly hearsay statements, in-chambers rulings, and refusal to permit evidence as to the defense of truth, motive and witness credibility are equally unsupported by the record and do not constitute judicial bias warranting reversal. The defendants, for instance, claim that it is “astounding that, when the defendants sought to introduce evidence of [the nolle prosequi] disposition”*603603of Janice Smolinski's arrest for hanging missing person posters, “the court refused to admit it....” (Citation omitted.) The defendants' citation to this portion of the trial transcript reveals, once again, that when viewed in the entire context of the colloquy regarding the evidence of the disposition of that arrest, the defendants misconstrue the judge's ruling in a baseless attempt to support their claim of judicial bias. The judge properly did not permit Woodbridge police Officer James Sullivan to testify on cross-examination about the result of Janice Smolinski's arrest on the ground that such testimony would be hearsay. The defendants completely disregard the fact that the judge, did, however, inform counsel that “[y]ou can get an official record” of the disposition of the arrest. Thus, contrary to the defendants' argument, the judge did not refuse to admit evidence of the disposition of Janice Smolinski's arrest, but rather, he ensured that any such evidence was admitted properly as an official record.

III

HEARSAY CLAIM

The defendants next claim that the court erred by relying on alleged hearsay statements to find that the “hanging of posters in areas where the plaintiff lived and worked [was] for the sole purpose of intimidating and harassing the plaintiff.” The defendants assert that such a finding was based on (1) Janice Smolinski's alleged statement to police that she was “trying to break” the plaintiff; (2) Smolinski's statements to the Waterbury Observer; (3) and telephone calls to B and B Transportation, Inc., the plaintiff's employer, complaining about the plaintiff. The plaintiff asserts that the court's findings were not based on inadmissible evidence, and that the evidence about which the defendants complain was either introduced by the defendants themselves, or when offered by the plaintiff, was not objected to by the defendants. We agree with the plaintiff.

“We have held generally that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... Additionally, before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.... The harmless error standard in a civil case is whether the improper ruling would likely affect the result.” (Citation omitted; internal quotation marks omitted.) Urich v. Fish, 261 Conn. 575, 580–81, 804 A.2d 795 (2002).

In its memorandum of decision, the court noted that the evidence before it on the plaintiff's claim of intentional infliction of emotional distress “include[d] not only the trial testimony presented by both sides, but police reports and several articles from the Waterbury Observer, which reported on the disappearance. The defendants did not object to the introduction of these exhibits and in fact introduced Woodbridge and Waterbury Police Department reports, which, in part, repeated some of the information contained in the police reports introduced by the plaintiff.” The court advised that “[t]he newspaper articles will only be referred to insofar as they contain explicit admissions by the defendants. Interestingly enough, the transcript indicates that her lawyer asked [Janice] Smolinski if a couple of newspapers introduced into evidence had been read by her. She said she had read them. She was then asked if the articles were ‘substantially true and accurate to the best of (her) knowledge’—answer, ‘A. Absolutely. Yes.’ ” The court was justified*604604in relying upon such evidence, which was either introduced or not objected to by the defendants and consisted of damaging admissions by them.

As an example of such evidence, the defendants claim that the judge relied upon hearsay statements contained in Sullivan's police report that Janice Smolinski was hanging the missing person posters in an attempt “to break” the plaintiff into giving her information about her son's disappearance. The defendants claim that they “objected to any testimony by Sullivan regarding what was reported to him based on hearsay, but the court allowed it.” The defendants conveniently disregard the fact that after Sullivan testified, the plaintiff's counsel renewed his offer of Sullivan's report as an exhibit, to which the defendants' counsel withdrew his previous objections thereto. The court admitted the police report as a full exhibit, to which the defendants' counsel stated that he “ha[d] no objection.” At trial, the defendants' counsel abandoned his objection to the introduction of this evidence, of which he now complains on appeal. Such a claim that the court erred by relying on this evidence is without merit.

IV

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM

The defendants next claim that the court misapplied the law and facts relating to the plaintiff's claim of intentional infliction of emotional distress. Specifically, the defendants assert that the evidence was insufficient to establish the requirements of intentional infliction of emotional distress and that the court erred by ignoring the defendants' justification for their alleged conduct. The defendants claim that the court erred by relying solely on lay testimony to establish that the defendants' conduct was the cause of the plaintiff's distress and that such distress was severe. They argue that where there are alternative theories as to the possible cause of a plaintiff's emotional distress, the plaintiff must rely on expert testimony to establish causation. They also argue that the court erred by not considering the possibility that there were alternative causes of the plaintiff's emotional distress.⁷ We disagree.

The defendants proffer the following theories as alternative causes for the plaintiff's emotional distress: the death of the plaintiff's daughter by suicide one month before Bill Smolinski's disappearance; the death of the plaintiff's son by drug overdose in the year following the disappearance; the death of another one of the plaintiff's children; the plaintiff's breakup with Bill Smolinski; and the plaintiff's publicly revealed relationship with Sorensen.

“[W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.... A factual finding may be rejected by this court only if it is clearly erroneous.” (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).

“In order for the plaintiff to prevail in a case for liability under ... *605605[intentional infliction of emotional distress], four elements must be established. It must be shown: (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.” (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 586, 22 A.3d 1214 (2011). The evidence presented supports the court's finding that the defendants' conduct inflicted severe emotional distress on the plaintiff. As the court properly stated, it is not necessary for the plaintiff to produce expert testimony in order to prove the existence of emotional distress. See Oakes v. New England Dairies, Inc., 219 Conn. 1, 14–15, 591 A.2d 1261 (1991) (“we have previously rejected the proposition that proof of the existence of emotional distress requires expert testimony” [citations omitted] ).

The court concluded, on the basis of the evidence before it, that the defendants engaged in “the hanging of posters in areas where the plaintiff lived and worked for the sole purpose of intimidating and harassing the plaintiff.... This went on for months.” This conclusion was supported amply by the testimony of the plaintiff's employer, Brad Cohen, her friend, DePallo, and the plaintiff herself. Specifically, the court recounted Cohen's testimony that “in traveling around several towns, the posters were generally ‘well spaced out’—at different poles.' However, on [the plaintiff's] school bus run and at the house where she lived, ‘there were multiple posters on each and every telephone pole, on guardrails.’ He said you could easily do a run (school bus route) by following the posters—‘they led down every street, every side street, every nook and cranny of—of these places.’ ... Cohen also testified that posters were placed at the entrance to his school bus transportation business on either side of the driveway—a driveway the plaintiff would have to enter and exit at least four times daily.”

The court also recalled the testimony of DePallo, who works for another school bus company, and who stated that the plaintiff's “[school bus] run was definitely targeted with flyers.” For a short time, the plaintiff lived at DePallo's home, about which DePallo testified, is “on a dead-end street, and her house ‘was definitely bombarded with flyers.’ There were no other flyers on the whole street; the pole in front of her house had twenty posters placed on it. When they were taken down, they went up the next day; it went on not just for the few months [the plaintiff] lived with DePallo, it went on for a year according to her.” The court also summarized the plaintiff's testimony “that when she returned to her own home in Woodbridge, it, too, was saturated with posters—the same pattern repeated itself at all three places where she lived. The posters would go up, they would be taken down and then appear the next day. [The plaintiff] also testified that the defendants followed her and [that] whenever they saw her called her insulting names.”

When determining whether the defendants' conduct constituted intentional infliction of emotional distress, the court did not consider only the plaintiff's testimony and witnesses, but also the defendants' testimony denying such conduct. Ultimately, the court “credit[ed] the testimony of the plaintiff, her friends, and Mr. Cohen,” because although the defendants testified that they did not engage in the conduct of hanging missing person posters in order to harass the plaintiff, “other evidence presented ... [showed] that the defendants had a strong motive to act in the *606606way it was alleged by the plaintiff.” The court's conclusion that the defendants' conduct caused the intentional infliction of emotional distress of the plaintiff is supported by the record and is not clearly erroneous.

The defendants also claim that the court erred by rejecting their justification for their conduct. The defendants assert that their intent was not to harm the plaintiff, but rather to uncover answers concerning Bill Smolinski's disappearance, about which they believed the plaintiff had knowledge. There was, however, “no evidence ... presented as to why [the defendants] could in fact believe it was a necessary aid to the location of Bill Smolinski to hang posters along [the plaintiff's] bus route.” The court carefully balanced the evidence presented and even went so far as to remark that “the [defendants] are to be admired for their persistent efforts to bring Bill Smolinski's disappearance and their complaints to the highest levels of state government and the federal authorities. One cannot help sympathizing with their pain and frustration.” The court added, however, that “what is unacceptable here and worthy of finding of outrageous and extreme behavior is the continuing aggravated nature of the defendants' activity in hounding [the plaintiff] where she lived and worked and engaged in the ordinary activities of life.... Posters of a missing person were placed so as to indicate to [the plaintiff] that the very purpose of the poster campaign was to underline her supposed knowledge of the criminal disappearance of Bill Smolinski.” (Citation omitted.)

The court's finding that the defendants' conduct was extreme and outrageous and constituted intentional infliction of emotional distress was not clearly erroneous on the basis of the record before it. Thus, we conclude that the court properly held that all of the elements of the plaintiff's claim of intentional infliction of emotional distress were established.

V

DEFAMATION CLAIM

The defendants next claim that the court erred in finding that certain statements made by the defendants regarding the plaintiff constituted defamation. They argue that none of the elements of defamation were established by the evidence presented. We disagree.

As set forth in part IV of this opinion: “[W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., supra, 105 Conn.App. at 552, 938 A.2d 1269.

The court found three statements made by the defendants to be defamatory. Specifically, it found two sets of statements made to the plaintiff's friends, Fran Vrabel and DePallo, to be defamatory: (1) “Janice Smolinski told [Vrabel] on several occasions that [the plaintiff] ‘did something to her son’ and that ‘she believes that either [the plaintiff] or someone in her family murdered her son’ ”; and (2) “Janice Smolinski approached [DePallo] and said you do not know what [the plaintiff] is capable of; she said she does not believe [the plaintiff] killed her son, personally, but she knows where he is and [Janice] Smolinski thought ‘she's involved.’ ” The court also found the following statement made by the defendants to an unidentified man at the plaintiff's gym to be defamatory: “[The plaintiff] drove to her gym, the defendants were following her, and [the plaintiff] says, *607607‘a guy came and said those people (referring to the Smolinskis) just followed you in and said you were a murderer.’ ” As to the statements made to Vrabel and DePallo, the defendants claim that these statements merely represent Janice Smolinski's opinion and therefore, cannot constitute defamation. As to the statement to the man at the plaintiff's gym, the defendants argue that the court erred by admitting the statement because it is hearsay and the identity of the speaker is unclear.

“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.2d 759 (2004). The plaintiff must also “prove that the defendants acted with actual malice.... Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false.... A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth.” (Citation omitted; internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 537–38, 906 A.2d 14 (2006). Further, as the court explained, “defamations per se are statements charging the plaintiff with commission of a crime.... Traditionally, such statements are actionable per se only if they charge the commission of crimes of moral turpitude or infamous penalty.... [W]hen the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation.” (Citations omitted; internal quotation marks omitted.)

“A defamation claim requires a statement—i.e. an assertion of fact, either explicit or implied, and not merely an opinion, provided the opinion does not imply the existence of undisclosed defamatory facts.” Lester v. Powers, 596 A.2d 65, 69 (Me.1991) “To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion.” Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). “[A]lthough an opinion may appear to be in the form of a factual statement, it remains an opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated.... Thus, while this distinction may be somewhat nebulous ... [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 111–12, 448 A.2d 1317 (1982).

Here, the court properly concluded that all three statements made by the defendants regarding the plaintiff were defamatory. Specifically, in its memorandum of decision, the court set forth the necessary elements of defamation as well as the evidence that it would and would not rely upon when determining whether defamation occurred.⁸ The court evaluated each *608608element required to prove defamation and concluded that the statements were defamatory: “The statements to DePallo and Vrabel say directly [that the plaintiff] was a murderer or involved in the murder of Bill Smolinski. The statements made to DePallo and Vrabel were obviously ‘published’ to them. The statement made to the man at the gym was published to him. In all these situations, [the plaintiff] was identified to the listener, and since [the plaintiff] was being accused of murder or involved with murder, the defamations are per se accusations since murder clearly involves a crime of ‘moral turpitude’ or ‘infamous penalty.’ We do not have here mere opinion—[the plaintiff] was said to be a murderer or involved in a situation where murder occurred.”

The court explained that when determining whether defamation occurred here, it would not rely upon the testimony of Cohen, the plaintiff's employer and the owner of B and B Transportation, Inc., in which he described telephone calls he received from customers of his school bus company expressing their concerns about the plaintiff because none of these customers was identified or called as a witness in this case. The court also did not consider the statements made by the defendants on certain television programs or to the Waterbury Observer in the plaintiff's defamation claim because no transcripts of the television programs were introduced into evidence and the articles published by the Waterbury Observer do not focus on the plaintiff “as the perpetrator of a crime or as one involved in it.”

The court went on to determine that the statements were made with actual malice because “[t]here was reckless disregard of whether the statements that were alleged to have been made were truthful. We do not have a case of mere negligent utterances not based on fact but on suspicion and conjecture.” Last, the court considered the defendants' hearsay argument regarding the statement to the man at the gym and determined that “[s]uch a defamatory statement is not hearsay in [this] slander action because the issue is whether the statement was made, not whether it was true....” (Citations omitted.) We conclude that the finding by the court of defamation as to all three statements made by the defendants clearly established all four elements of defamation and was not clearly erroneous.

The defendants additionally claim that even if this court agrees that the trial court properly determined that these statements were defamatory, such statements do not support a claim for damages because the plaintiff suffered no resulting reputational harm. Our Supreme Court has noted that although injury to the plaintiff's reputation is an indispensable element of a defamation action, “[w]hen the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation.” Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952). In its memorandum of decision, the court explained that “[l]ibel and slander divide into the categories of per quod and per se. Defamations per quod are statements for which their defamatory character becomes apparent only through consideration of extrinsic facts and circumstances.... A statement which is defamatory by reason of innuendo falls within the category of defamation per quod.... [A] category encompassing defamation per se are statements charging the plaintiff with commission of a crime.... Traditionally, such statements are actionable per se only if they charge the commission of a crime of moral turpitude or infamous penalty....” (Citations omitted; internal quotation marks omitted.) The court concluded, and we agree, that the defamatory statements made by the defendants here were actionable per se, and therefore, injury to the plaintiff's reputation is presumed. Thus, we agree with the court's finding of defamation by the defendants and the resulting damages to the plaintiff.

*609609

VI

DAMAGES CLAIM

The defendants last argue that the court erred in awarding damages to the plaintiff in the absence of any proffered evidence of damages. They claim not only that the plaintiff failed to produce any evidence of damages in discovery or at trial, but also that the court failed to explain how it arrived at the monetary figures of its award. We are not persuaded by their argument.

“The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense of justice. The test is whether the amount of damages awarded falls within the necessarily uncertain limits of fair and just damages.... [W]e cannot disturb the decision of the trial court unless there are considerations of the most persuasive character.... The trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse.... The evidence offered at trial must be reviewed in the light most favorable to sustaining the verdict.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 283, 25 A.3d 632 (2011).

“When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. He is required neither to plead nor to prove it.... The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him.” (Internal quotation marks omitted.) Lyons v. Nichols, 63 Conn.App. 761, 768, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001).

“[I]n order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992). “In awarding punitive damages ... [t]he trial court has broad discretion in determining whether damages are appropriate.... Its decision will not be disturbed on appeal absent a clear abuse of discretion. ... Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” (Citation omitted; internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008). “Punitive damages, which in Connecticut are limited to attorney's fees less taxable costs ... may be awarded whether the defamation is actionable per se or per quod.... Such damages, however, are not awarded as a matter of right, but rather as a matter of discretion, to be determined by the [court] upon a consideration of all the evidence....” (Citations omitted; internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn.App. 228, 236, 784 A.2d 376 (2001).

The damages awarded in this case were clearly within the province of the judge and fell within the “necessarily uncertain limits of fair and just damages.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, supra, 302 Conn. at 283, 25 A.3d 632. The court, after thoroughly stating its relevant findings of fact and bases upon which it found the defendants liable to the plaintiff for the intentional infliction of emotional distress and defamation, set forth its award. As to the plaintiff's claim of intentional infliction of emotional distress, the court awarded *610610compensatory damages in the amount of $32,000, and as to her claim of defamation, the court awarded compensatory damages in the amount of $7500, for a total compensatory damages award in the amount of $39,500. Moreover, the court acted within its authority to add punitive damages to the award for attorney's fees and costs in an amount equal to one-third of the total compensatory damages award, or $13,166.67.⁹ The damages awarded by the court can hardly be considered to “shock the sense of justice” under our standards of law.

See DeVito v. Schwartz, supra, 66 Conn.App. at 236, 784 A.2d 376 (“Punitive damages, which in Connecticut are limited to attorney's fees less taxable costs ... may be awarded whether the defamation is actionable per se or per quod.... Such damages, however, are not awarded as a matter of right, but rather as a matter of discretion, to be determined by the [court] upon a consideration of all the evidence....” [Citations omitted; internal quotation marks omitted.] ).

The judgment is affirmed. In this opinion the other judges concurred. -------- Notes:

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