Gleason v. Smolinski

• Decision Date: 08 April 2014
• Docket Number: No. 34990.,34990.
• Court: Connecticut Court of Appeals
• Parties: Madeleine GLEASON et al. v. Janice SMOLINSKI et al.

149 Conn.App. 283

88 A.3d 589

Madeleine GLEASON et al.

v.Janice SMOLINSKI et al.

No. 34990.

Appellate Court of Connecticut.

Argued Nov. 20, 2013.

Decided April 8, 2014.

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 following 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 sister 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....

“[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 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.

IFIRST AMENDMENT CLAIM

We turn first to the defendants' argument that the plaintiff's claims are barred 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.

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 because 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; ...