Green v. Donroe

• Decision Date: 16 February 1982
• Citation: 186 Conn. 265,440 A.2d 973
• Court: Connecticut Supreme Court
• Parties: John GREEN v. Gary DONROE et al.

Page 973

440 A.2d 973

186 Conn. 265

John GREEN v. Gary DONROE et al.

Supreme Court of Connecticut.

Argued Nov. 12, 1981.

Decided Feb. 16, 1982.

Daniel V. Presnick, New Haven, for appellant (plaintiff).

Jonathan J. Einhorn, New Haven, with whom, on the brief, was Stuart A. Margolis, New Haven, for appellees (defendants).

Before SPEZIALE, C. J., and PARSKEY, ARMENTANO, SHEA and COVELLO, JJ.

SHEA, Associate Justice.

This appeal raises questions relating to the civil liability of one who, without having any intention to cause confinement, knowingly gives false information to the police which results in the arrest or detention of another. The plaintiff sought damages for false imprisonment in the first count and for a violation of his civil rights in the second count of the complaint. After a trial to the court judgment was rendered for the defendants. The plaintiff has appealed, claiming error in the disposition of both counts.

There is no dispute about the unusual circumstances giving rise to this suit and they may be summarized as follows: On January 26, 1978, the named defendant (hereinafter the defendant), who was at that time emotionally disturbed, shot himself in the shoulder while he was at his place of employment, a package store in West Haven. He contacted the local police and when they arrived he said that he had been robbed and shot by a black male wearing a green jacket and a blue hat, that his assailant had a medium skin tone, a round face, a medium build and was about five feet ten inches in height. He lied to the police because he could not tolerate admitting that he had shot himself.

Wholly by chance the police picked up the plaintiff, a black man who was wearing a green jacket, and brought him to the defendant. When the defendant did not identify him, the plaintiff was released. He was detained by the police for approximately ten minutes and suffered no other harm as a result of the incident. In a subsequent interview with the police at the hospital the defendant admitted that he had shot himself because of an emotional disturbance resulting from a marital dispute and that his report of the robbery was a hoax. He was arrested and prosecuted for giving false information to the police.

The trial court concluded that, despite the unpleasant and embarrassing experience which the plaintiff suffered as a result of the defendant's wrongful conduct, the law afforded no relief. We agree with this conclusion.

I

False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another. Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499, 101 A.2d 500 (1953). Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability. 32 Am.Jur.2d, False Imprisonment § 14. The fact that there was no formal arrest of the plaintiff in this case and that he remained in the custody of the police for only ten minutes would not necessarily defeat his cause of action for false imprisonment. Restatement (Second), Torts § 41.

False imprisonment comes within the category of intentional torts for which the remedy at common law was an action of trespass. McGann v. Allen, 105 Conn. 177, 188, 134 A. 810 (1926). "A person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it." 32 Am.Jur.2d, False Imprisonment § 9; Restatement (Second), Torts § 35. The facts found by the trial court, which are not challenged, negate any intention on the part of the defendant to bring about the detention of the plaintiff, or, indeed, of anybody. See Restatement (Second), Torts § 43. His contrivance of the bogus robbery was found to have been motivated solely by his embarrassment over shooting himself. The trial court was not compelled to infer from the description he gave to the police that he intended or expected any arrest to result. The cases relied upon by the plaintiff, in which liability was imposed for confinements resulting from false reports given to the police, are distinguishable in that there an intention to cause the arrests was established. Jensen v. Barnett, 178 Neb. 429, 134 N.W.2d 53 (1965); Wehrman v. Liberty Petroleum Co., 382 S.W.2d 56 (Mo.App.1964).

The plaintiff claims that the defendant should have been found liable for his reckless or, at least negligent, conduct in furnishing false information to the police in violation of § 53a-180(a)(3), ¹ which imposes a criminal penalty for such an act. Recklessness, in the sense of a conscious disregard of a substantial and unjustifiable risk of harm; see General Statutes § 53a-3(13); is sometimes equated with intentional conduct in terms of legal consequences. Collens v. New Canaan Water Co., 155 Conn. 477, 490, 234 A.2d 825 (1967); Soucy v. Wysocki, 139 Conn. 622, 628, 96 A.2d 225 (1953); Bordonaro v. Senk, 109 Conn. 428, 432-33, 147 A. 136 (1929). In the context of false imprisonment the label of "reckless" fairly characterizes a state of mind amounting to knowledge that confinement is substantially certain to result from the wrongful conduct but not attaining the proportions of an actual intention to bring it about. Nothing less than this rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases. "It is not enough that the actor realizes or should realize that his actions involve a risk of causing a confinement, so long as the likelihood that it will do so falls short of a substantial certainty." Restatement (Second), Torts § 35, comment h. The facts found by the trial court do not indicate that the defendant's false report created a virtual certainty that someone would be arrested or that the defendant must have expected such a result. Where there is no intention to cause the confinement of a person or the equivalent variety of recklessness, there is no liability for an act resulting in a merely transitory detention which might otherwise sustain an action for false imprisonment. Id. § 35(2).

Negligent conduct which results in a confinement of sufficient consequence to constitute the actual damage required to maintain a negligence action ² is a sufficient basis for imposing liability. Harper & James, 1 Law of Torts § 3.7; Prosser, Law of Torts (4th Ed.) § 30. In Collins v. City National Bank & Trust Co., 131 Conn. 167, 38 A.2d 582 (1944), a plaintiff whose check was negligently dishonored by his bank was allowed to recover compensatory damages when he had been arrested on a charge of obtaining money by false pretenses, jailed for two hours, compelled to post a bond for his release, and injured in reputation. Incarceration of even brief duration has been found sufficient to fulfill the requirement of actual damage. Weaver v. Bank of America National Trust & Savings Assn., 59 Cal.2d 428, 30 Cal.Rptr. 4, 380 P.2d 644 (1963); Mouse v. Central Savings & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929). The complaint in this suit, however, cannot be read so broadly as to include such a cause of action, since it contains no allegation of negligence or damages suffered as a result of the plaintiff's misdeed in "knowingly and wilfully" making a false statement. "A plaintiff may not allege one cause of action and recover upon another." Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).

II

In the second count of his complaint the plaintiff relies upon 42 U.S.C. § 1983 which provides in part that "(e)very person who, under color of any statute, ordinance, regulation, custom, or usage, or any State ... subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." For liability to be imposed under the statute it is essential to prove that the actions complained of were taken "under color" of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Henig v. Odorioso, 385 F.2d 491, 494 (3d Cir. 1967), cert. denied, 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed. 166 (1968). "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). "To act 'under color' of law does not require that the (defendant) be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents." United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966).

In this case the lack of any intention on the part of the defendant to bring about any arrest or detention would preclude a finding that he had acted in concert with the police in causing the plaintiff to be detained. Since he was not a willing participant in the deprivation of the constitutional rights claimed by the plaintiff, his wrongful conduct was not "under color" of state law and he is not liable under § 1983.

There is no error.

In this opinion SPEZIALE, C. J., and ARMENTANO, SHEA and COVELLO, JJ., concurred.

PARSKEY, Associate Justice (concurring in part and dissenting in part).

Except for its discussion of negligent conduct I have no quarrel with the court's opinion. In fact, because the complaint alleges intentional rather than negligent conduct, this would furnish a sufficient basis for rejecting a recovery based on a cause of action sounding in negligence. But when the majority categorically states that in order to recover in a negligence action the plaintiff must allege and prove actual damage, it is at that point that we part company because this statement is contrary to Connecticut law.

In Hageman v. Freeburg, 115 Conn. 469, 162 A....