Gallo v. Barile

• Decision Date: 27 November 2007
• Docket Number: No. 17405.,17405.
• Court: Connecticut Supreme Court
• Parties: Gary GALLO v. Michael J. BARILE, et al.

935 A.2d 103

284 Conn. 459

Gary GALLO v. Michael J. BARILE, et al.

No. 17405.

Supreme Court of Connecticut.

Argued October 16, 2006.

Decided November 27, 2007.

Jon L. Schoenhorn, Hartford, for the appellant (plaintiff).

Nancy A. Brouillet, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Margaret Q. Chapple, assistant attorney general, for the defendants (appellees).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

PALMER, J.

The dispositive issue raised by this appeal is whether statements made to the police in connection with a criminal investigation are absolutely privileged or qualifiedly privileged. The appeal arises out of an action for, inter alia, defamation and intentional infliction of emotional distress brought by the plaintiff, Gary Gallo, who seeks compensatory damages for allegedly false and malicious statements that the defendants, Michael J. Barile, Paula Robarge and Ronald Roberts, had made to a state trooper conducting an investigation into the plaintiff's alleged criminal misconduct. The trial court rendered judgment for the defendants on the ground that the defendants' statements were subject to the absolute privilege that is afforded statements made in the course of a judicial proceeding. On appeal,¹ the plaintiff claims that the trial court improperly rendered judgment for the defendants because their statements are subject to a qualified privilege rather than an absolute privilege. We agree with the plaintiff and, therefore, reverse in part² the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On the morning of March 27, 2002, the plaintiff, an employee of the state department of social services (department), was involved in a verbal exchange with Barile, the plaintiff's immediate supervisor, at the department's New Britain office. Bridget Barrows Cooper and Robarge, both of whom were then department employees, witnessed the exchange. According to Cooper, the plaintiff's demeanor during the exchange was neither hostile nor threatening. Barile and Robarge, however, both described the plaintiff's conduct as aggressive, menacing and frightening, and indicated that it appeared that the plaintiff was about to become physically violent.

Barile subsequently reported his encounter with the plaintiff to Roberts, the field operations manager of the department's New Britain office, and Jeanne Anderson, the department's principal personnel officer. Anderson directed Barile to fill out a security and safety incident report, which is a preprinted form prepared by the department, and Barile completed the report as instructed. In addition, Robarge reported the incident to her immediate supervisor at the department. In accordance with her supervisor's instructions, Robarge also reported the incident to Anderson.

Later that afternoon, Anderson called the state police and reported the incident. Thereafter, William Taylor, a state trooper, arrived at the department's New Britain office to investigate. Barile, Robarge, Roberts³ and Cooper each recounted their version of the events to Taylor, who, on the basis of this information, arrested the plaintiff for breach of the peace in the second degree in violation of General Statutes § 53a-181 (a)(1).⁴ The defendants also gave statements to investigators conducting an internal investigation for the department.

After a jury trial, the plaintiff was acquitted of the charge of breach of the peace in the second degree stemming from the incident of March 27, 2002. Thereafter the plaintiff commenced this action against Barile, Robarge and Roberts, alleging, inter alia, common-law defamation and intentional infliction of emotional distress.⁵ The plaintiff claimed that the defendants wrongfully had accused him of engaging in threatening and harassing behavior in connection with the March 27, 2002 incident. Specifically, the plaintiff alleged that (1) the defendants' statements to the police and their testimony at his criminal trial were false and malicious, and (2) as a result of those statements and testimony, he had suffered harm to his reputation and standing in the community, which caused him great mental and physical distress.

The defendants subsequently filed a motion for summary judgment, claiming, inter alia, that their statements to Taylor and subsequent trial testimony were absolutely privileged. The trial court, Shortall, J., granted the defendants' motion. With respect to the defendants' statements to Taylor, the trial court acknowledged the common-law rule that statements that a complaining witness makes to the police are subject to qualified immunity rather than absolute immunity.⁶ E.g., Petyan v. Ellis, 200 Conn. 243, 252, 510 A.2d 1337 (1986) (statements that complaining witness makes to police are subject only to qualified privilege). The trial court also observed, however, that, at common law, statements made in the course of a judicial or quasi-judicial proceeding are protected by an absolute privilege. The trial court thereafter concluded that the defendants were not "complaining witnesses," as that term was used in Petyan, because they had not initiated contact with the police. The trial court further concluded that the statements that the defendants made in the course of the police investigation were entitled to absolute immunity because the investigation properly is characterized as the initial stage of a judicial proceeding.

In reaching its conclusion, the trial court recognized that "affording those who claim to be witnesses to [a] crime an absolute privilege for statements [that] they make to the police investigating that crime, in effect, gives them a license to lie without fear of personal liability and with potentially disastrous consequences for the person being investigated." The trial court explained, however, that its conclusion was dictated by Craig v. Stafford Construction, Inc., 271 Conn. 78, 93, 856 A.2d 372 (2004), in which this court held that an internal affairs investigation conducted by the police in response to a citizen complaint is a quasi-judicial proceeding⁷ and, therefore, that statements made in the context of the internal affairs investigation, including the citizen complaint itself, were subject to an absolute privilege.⁸ The trial court also recognized that, unless an absolute privilege is extended to statements made by persons who are interviewed by police officers in the course of a criminal investigation, "[w]itnesses to crime might otherwise be deterred from reporting to the police what they have seen and heard by the threat that those implicated by their reports will bring litigation against them."

On appeal, the plaintiff claims that the trial court improperly granted the defendants' motion for summary judgment because the defendants' statements to the police are subject to a qualified privilege, not an absolute privilege.⁹ We agree with the plaintiff.¹⁰

Before addressing the merits of the parties' claims, we first set forth the applicable legal principles.¹¹ "It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Hopkins v. O'Connor, 282 Conn. 821, 830-31, 925 A.2d 1030 (2007). The effect of an absolute privilege is that damages cannot be recovered for the publication of the privileged statement even if the statement is false and malicious. E.g., Craig v. Stafford Construction, Inc., supra, 271 Conn. at 84, 856 A.2d 372. The absolute privilege for statements made in the course of a judicial proceeding applies equally to defamation claims; id.; and claims for intentional infliction of emotional distress. DeLaurentis v. New Haven, 220 Conn. 225, 265, 597 A.2d 807 (1991).

"The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. . . . The rationale underlying the privilege is grounded upon the proper and efficient administration of justice. . . . Participants in a judicial process must be able to testify or otherwise take part without being hampered by fear of [actions seeking damages for statements made by such participants in the course of the judicial proceeding]." (Citations omitted; internal quotation marks omitted.) Hopkins v. O'Connor, supra, 282 Conn. at 838-39, 925 A.2d 1030. "Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial . . . proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit." Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005). "In making [the] determination [of whether a particular statement is made in the course of a judicial proceeding], the court must decide as a matter of law whether the allegedly [false and malicious] statements are sufficiently relevant to the issues involved in a proposed or ongoing judicial proceeding, so as to qualify for the privilege. The test for relevancy is generous, and `judicial proceeding' has been defined liberally to encompass much more than civil litigation or criminal trials." Hopkins v. O'Connor, supra, at 839, 925 A.2d 1030.

Nevertheless, as this court previously has observed, "only qualified immunity exists in some areas that have a connection to the judicial process, particularly [when] constitutional rights of an individual are concerned." Petyan v. Ellis, supra, 200 Conn. at 252, 510 A.2d 1337. Indeed, we have stated, albeit in dictum, that "a complaining witness who initiates a prosecution and procures the issuance of an arrest warrant has only a qualified immunity at common law....