LaFontaine v. Family Drug Stores, Inc.

• Decision Date: 05 April 1976
• Docket Number: No. CV,No. 17,CV,17
• Citation: 33 Conn.Supp. 66,360 A.2d 899
• Court: Connecticut Court of Common Pleas
• Parties: Judith LaFONTAINE v. FAMILY DRUG STORES, INC. 17-708-8810

Page 899

360 A.2d 899

33 Conn.Supp. 66

Judith LaFONTAINE v. FAMILY DRUG STORES, INC.

No. CV 17-708-8810.

Court of Common Pleas of Connecticut, Geographical Area No. 17.

April 5, 1976.

[33 Conn.Supp. 67] Howard R. Steeg, Bristol, for the plaintiff.

Wilson, Asbel & Channin, Hartford, for the defendant.

SATTER, Judge.

The defendant moved, after all the evidence was in, for a directed verdict. The trial court reserved decision and permitted the case to go to the jury. The jury returned a verdict in favor of the plaintiff on both counts alleged in the complaint for $8000, which was reduced by the court to $7500 in accordance with the ad damnum clause. The defendant timely moved to set aside the verdict on the grounds that it was contrary to the law, against the evidence and excessive, and moved for judgment notwithstanding the verdict. This memorandum decides those motions.

The plaintiff's complaint alleges two causes of action, the first, an invasion of privacy, and the second, negligence, based on essentially the same facts. In weighing the evidence most favorable to sustaining the verdict; Kirby v. Zlotnick, 160 Conn. 341, 278 A.2d 822 (1971); Terminal Taxi Co. v. Flynn, 156 Conn. 313, 240 A.2d 881; Maltbie, Conn.App.Proc. § 189; the jury could have found the following facts: The plaintiff's mother, Mrs. Lydia Mills, telephoned the defendant drugstore and spoke to its pharmacist, Ronald Schlank. She told him that her brother, Lrving Maschietti, had a diet pill prescription for escatrol filed in his name at the pharmacy. She gave the number of the prescription and told the pharmacist that her daughter, Judith LaFontaine, the plaintiff, would come to pick up a refill. Escatrol is a controlled drug within the meaning of § 19-450a of the General Statutes.

After the call from Mrs. Mills, Schlank obtained the prescription from his file, noticed that it was a carbon duplicate, and became suspicious. He testified that the basis of his suspicion was § 19-457(b) of the General Statutes which prohibits his filling a carbon copy of a prescription. He called the prescribing physician, William Macaulay, and asked him not whether he had a patient named I. Maschietti, the name on the prescription, but rather whether he had a patient named Judith LaFontaine, the plaintiff. Macaulay said that he did not have such a patient. Schlank asked Macaulay whether he should fill a carbon copy of a prescription for the particular drug and Macaulay said 'under no circumstances.'

Schlank's suspicion was further aroused by several other factors. First, it appeared to him that the name of Mr. Maschietti, the name and dosage of the drug, and the signature of Macaulay had each been written in a different handwriting. Second, while in Schlank's experience escatrol was ordinarily prescribed in units of 30, the prescription called for units of 100. Third, the drug was prescribed not, as Schlank thought was usual, in capsules but rather in tablets. Schlank did not relate any of those grounds for suspicion to Macaulay. Rather, Schlank called the Bristol police and notified them of his belief that the plaintiff was on her way to the store to purchase a controlled drug based on a forged prescription. When the plaintiff arrived and asked for her uncle's prescription, Schlank refused to give it to her. As she left the store, waiting police officers arrested her and charged her with the felony The plaintiff was fingerprinted and photographed for mug shots and jailed. Her arrest was reported on the radio and in the Hartford and Bristol newspapers. Subsequent to her release, and as a result of the media publicity, she was harassed by telephone calls to her home and embarrassed at work. Her children were tormented by their classmates because of their mother's arrest. The charges against her were eventually nolled by the prosecutor on the grounds that the facts were insufficient for prosecution.

of obtaining a controlled drug by forged prescription.

In fact, all of Schlank's suspicions regarding the prescription and the actions of the plaintiff were groundless. Macaulay testified that (1) he had issued the particular prescription in defendant's file to his patient, I. Maschietti; (2) the entire prescription was in his handwriting, except for the address of Maschietti which he customarily failed to fill in, and the prescription was not a forgery; (3) he did prescribe the drug in units of 100 and did not consider the number excessive when a patient did not wish to or could not go the drugstore frequently; (4) he customarily did prescribe the drug in tablets rather than capsules; (5) he had issued an original and a carbon copy of the prescription because the patient needed the copy to get reimbursement from the state welfare department.

The jury could further have found that Schlank failed to exercise reasonable care in the following particulars: (1) in asking Macaulay about a prescription in the name of the plaintiff, who was clearly not Macaulay's patient, rather than inquiring about a prescription in the name of Maschietti, who was Macaulay's patient and whose name was clearly on the prescription; (2) in not inquiring of Macaulay the reason for the existence of the carbon copy of the prescription which was in the defendant's file and had been filled at least once before; (3) in not relating to Macaulay the grounds for his suspicion that the prescription was forged.

There was, however, no evidence that Schlank did not honestly believe that the plaintiff was about to commit a crime; there was no evidence that Schlank acted on the basis of any malice toward the plaintiff or for any purpose other than to bring the plaintiff to justice; and there was no evidence that Schlank demanded or pressured for the arrest of the plaintiff or did anything other than relate his suspicions to the police.

The issue before the court on the motions presently presented is whether the plaintiff, based on the foregoing facts, proved a cause of action under either count alleged in the complaint which would allow the verdict to stand.

I CAUSE OF ACTION OF INVASION OF PRIVACY

This action is now recognized in all but two or three states; Prosser, Law of Torts (4th Ed.) § 117, p. 804; and it is firmly expressed in the Restatement, 4 Torts § 867. Prosser has best delineated the types of invasion of privacy which give rise to the cause of action. These are: (1) appropriation of the plaintiff's name or likeness for the defendant's benefit or advantage; (2) intrusion upon the plaintiff's solitude or seclusion; (3) public disclosure of private facts about plaintiff; and (4) publicity which places the plaintiff in a false light in the public eye. Prosser, op. cit., pp. 802-18.

The Connecticut courts have found the cause of action properly alleged or proven in four cases. Korn v. Rennison, 21 Conn.Sup. 400, 156 A.2d 476, overruled a demurrer to a complaint alleging the publication of plaintiff's photograph for commercial advertising purposes (falling within Prosser Category No. 1 above). Steding v. Battistoni, 3 Conn.Cir. 76, 208 A.2d 559 In the present case, for the plaintiff to recover, she had to establish that the defendant either publicly disclosed a private embarrassing fact about her or created publicity which placed her in a false light.

upheld a jury's verdict in favor of the plaintiff in an action in which the defendant unauthorizedly instituted a law suit in the plaintiff's name (also falling within Rposser categories Nos. 1 and 4 above). Carey v. Statewide Finance Co., 3 Conn.Cir. 716, 223 A.2d 405, overruled a demurrer to the complaint alleging the defendant harassed and annoyed the plaintiff by numerous telephone calls for the payment of a debt which she did not owe (falling within Prosser category No. 1 above). Prystash v. Best Medium Publishing Co., 157 Conn. 507, 254 A.2d 872, refused on procedural grounds to rule on the adequacy of a plaintiff's verdict derived from the defendant publishing the plaintiff's photograph in connection with a news story concerning the commission of a felony by another woman (falling within Prosser category No. 4 above).

The facts are that the defendant's pharmacist made two private telephone calls: one to the prescribing doctor for the purpose of checking on the authenticity of the prescription and one to the Bristol police conveying his suspicion that the plaintiff was about to commit a crime. Neither telephone call was made in a loud or public manner so as to be overheard by others. Thus, this case is distinguishable from Bennett v. Norban, 396 Pa. 94, 151 A.2d 476, in which a store manager ostentatiously searched the plaintiff for purported stolen merchandise in a public street outside the store.

The telephone call to the doctor did not cause the plaintiff the embarrassment and humiliation complained of because there is no evidence that the doctor related the call to anyone else or that he himself conveyed any scorn to the plaintiff. The telephone call to the police likewise remained private. It did, of course, lead to the plaintiff's arrest which gave rise to the publicity over the radio and in the newspapers. That publicity caused and embarrassment and the humiliation complained of.

For the plaintiff to recover against the defendant, however, she must show that the defendant caused the publication of the private facts about her. There is no evidence that defendant or its agents notified the radio station or the newspapers of her arrest or did anything to induce the media to publicize the arrest. Moreover, once the actual arrest occurred, the facts related to it were no longer private and they became part of the public record. A person charged with the violation of the law loses her right of privacy regarding that matter. See, note, 'Waiver or Loss of Right of Privacy,' 57 A.L.R.3d 16, 75.

Despite the fact that the defendant did not directly publicize the private facts about the plaintiff, can a cause of action...