Gleason v. Smolinski, SC 19342

Decision Date03 November 2015
Docket NumberSC 19342
CourtSupreme Court of Connecticut

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

Steven J. Kelly, pro hac vice, with whom were Christopher P. DeMarco and, on the brief, Anne T. McKenna, pro hac vice, for the appellants (named defendant et al.).

John R. Williams, for the appellee (named plaintiff).


ROBINSON, J. On August 24, 2004, thirty-one year old William Smolinski, Jr. (Bill),1 disappeared from his home in the city of Waterbury, never to be seen or heard from again. Firmly convinced that the plaintiff Madeleine Gleason,2 who was Bill's former girlfriend and a fellow school bus driver, either caused or knew more about Bill's disappearance than she would say, and having noticed that the plaintiff and a friend, Fran Vrabel, were removing certain missing person flyers, the defendants, Janice Smolinski and Paula Bell,3 Bill's mother and sister respectively, began to pressure the plaintiff into cooperating with the ongoing investigation. The defendants' tactics included, among other things, saying disparaging things to the plaintiff's friends and acquaintances on several occasions and posting copious numbers of missing person flyers depicting Bill along the plaintiff's school bus route and near her home. These tactics led the plaintiff to bring the civil action that gave rise to this appeal against the defendants, claiming, inter alia, defamation and intentional infliction of emotional distress.

The defendants now appeal, upon our grant of their petition for certification,4 from the judgment of the Appellate Court affirming the trial court's judgment awarding the plaintiff compensatory and punitive damages on her claims of intentional infliction of emotional distress and defamation. Gleason v. Smolinski, 149 Conn. App. 283, 285-86, 88 A.3d 589 (2014). The defendants' first claim on appeal, which relies on, inter alia, Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011), is that the plaintiff's claim of intentional infliction of emotional distress is barred because it arises from speech protected by the first amendment to the United States constitution,5 namely, the act of posting missing person flyers on public roadways. The defendants then claim that the Appellate Court improperly upheld the trial court's determination that they had committed the tort of defamation because, inter alia: (1) the Appellate Court applied an improperly deferential standard of review; (2) their allegedly defamatory statements were protected opinion; and (3) the plaintiff failed to carry the requisite burden of proof. We conclude that a new trial is required because the trial court's findings on the plaintiff's claims of defamation and intentional infliction of emotional distress did not consider, and are not consistent with, the various limitations placed on these torts by the first amendment. Accordingly, we reverse the judgment of the Appellate Court.

The record, including the Appellate Court's opinion and the findings set forth in the trial court's memorandum of decision, reveals the following relevant facts and procedural history. The plaintiff was, at all times relevant to the present case, employed by B and BTransportation, Inc., as a school bus driver. For a period of time, Bill worked at the same company. The two met there and began dating. Soon thereafter, Bill ended his relationship with the plaintiff and his employment at B and B Transportation, Inc. About one year later, Bill and the plaintiff began dating again. During a vacation together in Florida, however, they broke up because of problems in their relationship, including the fact that the plaintiff was much older than Bill, and his belief that she was cheating on him with Chris Sorensen, a local married politician.6

Two days after returning from his trip to Florida with the plaintiff, Bill disappeared without a trace. "The trial testimony revealed that because of the plaintiff's alleged affair with Sorensen . . . the defendants formed the belief [t]hat [the plaintiff] was in a love triangle with [Bill] and . . . another fellow . . . and that [Bill] had gone missing, and that they . . . thought that [the plaintiff] had done something to him . . . ." (Internal quotation marks omitted.) Gleason v. Smolinski, supra, 149 Conn. App. 287 n.3. The day before Bill disappeared, Sorensen received a threatening message on his answering machine; both the plaintiff and Bell identified the voice as belonging to Bill.7

Shortly after his disappearance, the defendants and William Smolinski, Sr., Bill's father, "started putting up missing [person] posters8 in various parts of the state. They then noticed some of the posters were being torn down or vandalized and discovered the plaintiff and [Vrabel] were engaged in this activity. The . . . 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 . . . police station [in the town of Woodbridge], where the defendants soon followed. A confrontation took place between the parties." (Footnote altered; internal quotation marks omitted.) Id., 288.

The plaintiff then brought the present action against the defendants. As the Appellate Court noted, 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 [person] poster at a school where [theplaintiff] 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 [each other]." (Internal quotation marks omitted.) Id., 288-89.

Following a court trial, the trial court, Hon. Thomas J, Corradino, judge trial referee, "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 [$13,166.67 in] punitive damages . . . an amount equal to one third of the plaintiff's total compensatory damages award . . . ." Id., 289.

The defendants appealed from the judgment of the trial court to the Appellate Court and claimed, inter alia,9 that: (1) the plaintiff's intentional infliction of emotional distress claim was barred by the free speech clause of the first amendment, as explicated by the Supreme Court's decision in Snyder v. Phelps, supra, 562 U.S. 443, as their conduct was constitutionally protected "speech related to a matter of public concern because the missing person posters were designed to uncover information about [Bill's] disappearance, and to assist with the ongoing investigation and potential prosecution of a crime"; and (2) the plaintiff had failed to introduce sufficient evidence to support her defamation claims. See Gleason v. Smolinski, supra, 149 Conn. App. 286.

With respect to the defendants' first amendment claim, the Appellate Court first determined that it was unpreserved, and considered it under State v. Golding, 213 Conn. 213, 239-40, 567 A.2d 823 (1989).10 Gleason v. Smolinski, supra, 149 Conn. App. 289-90. The Appellate Court concluded that the defendants could not establish the constitutional violation required by the third prong of Golding because, in contrast to the matters of public import that were discussed—albeit crudely and offensively—on the Westboro Baptist Church (Westboro) members' protest signs in Snyder, it agreed with the trial court's finding that, "[w]hile the content of the posters makes no specific reference to the plaintiff . . . the context and placement of the posters was designed to 'hound' the plaintiff into providing the defendants with information about [Bill's] disappearance . . . rather than to raise a matter of public concern" by seeking further information from the public about his disappearance. Id., 295.

With respect to the plaintiff's defamation claims, the Appellate Court reviewed the record and concluded that the trial court properly had found that the defen-dants had made three defamatory statements regarding the plaintiff, namely, by telling various people that the plaintiff was a "murderer" or otherwise involved in Bill's disappearance. Id., 310. In particular, the Appellate Court relied on this court's decision in Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952), and concluded that the defendants' statements were defamatory per se, thus allowing a presumption that they had harmed the plaintiff's reputation, and relieving her of the burden of proving such harm. Gleason v. Smolinski, supra, 149 Conn. App. 310-12. Accordingly, the Appellate Court rendered judgment affirming the judgment of the trial court. Id., 314. This certified appeal followed. See footnote 4 of this opinion.

On appeal, the defendants claim that: (1) the first amendment bars the plaintiff's claims of intentional infliction...

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