O'CONNOR v. BOARD OF EDUC. OF WETHERSFIELD

• Decision Date: 05 July 2005
• Docket Number: No. 24846.,24846.
• Citation: 90 Conn.App. 59,877 A.2d 860
• Court: Connecticut Court of Appeals
• Parties: Thomas O'CONNOR v. BOARD OF EDUCATION OF the TOWN OF WETHERSFIELD.

877 A.2d 860

90 Conn.App. 59

Thomas O'CONNOR v. BOARD OF EDUCATION OF the TOWN OF WETHERSFIELD.

No. 24846.

Appellate Court of Connecticut.

Argued February 23, 2005.

Decided July 5, 2005.

Michael J. Rose, Hartford, with whom was Alexandria L. Voccio, for the appellant-appellee (defendant).

Leon M. Rosenblatt, West Hartford, for the appellee-appellant (plaintiff).

DRANGINIS, BISHOP and WEST, Js.

BISHOP, J.

The defendant, the board of education of the town of Wethersfield, appeals from the judgment of the trial court rendered after the jury's verdict in favor of the plaintiff, Thomas O'Connor. On appeal, the defendant claims that the judgment should be reversed, arguing that the court improperly failed to set aside the jury verdict because (1) the plaintiff's invasion of privacy claim was barred by governmental immunity, (2) the plaintiff failed to exhaust his administrative remedies and (3) the plaintiff's claims were barred by collateral estoppel.¹ The plaintiff cross appeals from the court's rendering of summary judgment on two counts that alleged, respectively, breach of contract and negligent infliction of emotional distress. We reverse in part the judgment of the trial court on the ground that the court improperly failed to set aside the verdict on the one count on which the plaintiff prevailed. We affirm the court's rendering of summary judgment on the counts alleging breach of contract and negligent infliction of emotional distress.

The following facts and procedural history are relevant to our discussion of the issues on appeal. The plaintiff, a teacher employed by the defendant since 1982, was placed on administrative leave on March 25, 1999, following accusations concerning his classroom behavior. On March 29, 1999, Fred G. Rubin, a cardiologist, sent a letter to the defendant explaining that the plaintiff had a preexisting coronary disease, was complaining of chest pain, and was "very anxious and depressed." Shortly thereafter, Robert B. Buganski, the assistant superintendent for the defendant, requested that the plaintiff provide a certification that he was fit to return to work. On October 25, 1999, Rubin provided a response in which he stated that he was "extremely concerned about [the plaintiff's] severe anxiety . . . ."

Following receipt of Rubin's communication, the defendant determined that the plaintiff was not presently fit to return to the classroom, and on December 7, 1999, Lynne B. Pierson, the superintendent of schools, directed the plaintiff to submit to an independent psychiatric evaluation by Harold I. Schwartz, a physician. In conjunction with the pending evaluation by Schwartz, Pierson asked the plaintiff to sign a release for his medical records, including psychiatric records and records related to a visit to a rehabilitation facility. The plaintiff declined to sign the release because the release permitted Schwartz to reveal the medical records to the defendant without any confidentiality restrictions. Instead, the plaintiff cancelled his next scheduled evaluative appointment with Schwartz and, on January 29, 2000, filed an action against the defendant and several individual employees of the defendant in Superior Court, seeking injunctive relief and damages relating to the defendant's request for a release of his medical records.² The plaintiff remained on leave of absence and was compensated with accrued sick time until November 1, 2000, when his allotment of sick time expired. The plaintiff continued on unpaid leave until January 28, 2002, when he returned to full-time teaching following an examination by Howard Zonana, a physician, who concluded that the plaintiff did not have any psychiatric disability preventing him from teaching.

Thereafter, the plaintiff instituted the present action naming only the defendant. The plaintiff filed an amended complaint on June 10, 2003, in which he alleged breach of contract, refusal to pay wages, wrongful constructive discharge, violations of the state constitution, negligent infliction of emotional distress, intentional infliction of emotional distress, tortious invasion of privacy and a violation of General Statutes § 31-51q. In response to the breach of contract claim, the defendant raised several special defenses, including the plaintiff's failure to exhaust administrative remedies. As to the common-law tort claims, the defendant raised governmental immunity as a special defense.

The defendant filed a motion for summary judgment on February 4, 2003, and the plaintiff filed a cross motion for summary judgment on June 10, 2003. The court initially granted the defendant's motion for summary judgment as to the counts alleging breach of contract, refusal to pay wages, constructive discharge and violations of the state constitution, and denied the motion as to the remaining counts. Additionally, the court denied the plaintiff's cross motion for summary judgment. Subsequently, the defendant filed a motion for reconsideration of the court's denial of its motion for summary judgment regarding the plaintiff's negligent infliction of emotional distress claim, arguing that the claim was precluded by Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002). After reconsideration, the court agreed and granted the defendant's motion as to the negligent infliction of emotional distress count. Thereafter, the case was tried before a jury on the counts alleging tortious invasion of privacy, intentional infliction of emotional distress and violations of § 31-51q. The jury found in favor of the plaintiff on the invasion of privacy claim, awarding him damages of $162,500. After the court denied the defendant's motions for remittitur or a collateral source reduction, and to set aside the verdict or in arrest of the judgment, judgment was rendered in favor of the plaintiff on October 31, 2003. This appeal followed.

I

The defendant claims that the court improperly failed to set aside the verdict because the plaintiff's claim against the defendant for invasion of privacy was barred by governmental immunity. We agree.

"We begin with a brief discussion of the appropriate standard of review. The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence." (Internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 126, 851 A.2d 1142 (2004). "[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence." (Internal quotation marks omitted.) Menon v. Dux, 81 Conn.App. 167, 173, 838 A.2d 1038, cert. denied, 269 Conn. 913, 852 A.2d 743, cert. denied, ___ U.S. ___, 125 S.Ct. 623, 160 L.Ed.2d 463 (2004).

Our Supreme Court recently considered a similar claim in Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004), in which the plaintiff brought an action against the city of Danbury for, inter alia, intentional infliction of emotional distress by one of its employees. As in this case, the only claims before the court were against the city.³ Id., at 677-78 n. 9, 841 A.2d 684. Our Supreme Court upheld the trial court's grant of summary judgment in favor of the city as to the plaintiff's count alleging intentional infliction of emotional distress because the city could not be liable for intentional torts committed by its employees under General Statutes § 52-557n(a)(2)(A). Pane v. Danbury, supra, at 685-86, 841 A.2d 684.

Section 52-557n (a)(2) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . . ." In reviewing whether the plaintiff's claim falls within that statutory subdivision, we must determine whether the allegations of invasion of privacy were comprised of "criminal conduct, fraud, actual malice or wilful misconduct." Several considerations guide our analysis. First, the plaintiff admits that the invasion of privacy count was a claim sounding in intentional tort. Second, in the complaint, the plaintiff alleged that "[t]he defendant, by itself and through its agents, including Dr. Schwartz, intentionally intruded into the private affairs of the plaintiff." Third, in charging the jury, the court equated the invasion of privacy claim with an intentional tort, stating that "[t]he defendant is liable for invasion of privacy if you [find] that it unlawfully and intentionally intruded upon the plaintiff's seclusion." On the basis of our review of the record, it is clear that the plaintiff alleged a violation of an intentional tort. Because there is no distinction between "intentional" and "wilful" conduct; see, e.g., Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998); Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996); Dubay v. Irish, 207 Conn. 518, 533 n. 8, 542 A.2d 711 (1988); the plaintiff's allegations of invasion of privacy amount to "wilful misconduct" under the statute and, therefore, § 52-557n (a)(2) provides the defendant immunity from the allegations. Because the plaintiff's claim was governed by the immunity provided in § 52-557n (a)(2), the defendant was immune from suit for the intentional torts of its employees, regardless of whether the acts were ministerial or discretionary, and the court should have set aside the...