Parnoff v. Aquarion Water Co. of Conn.

• Decision Date: 05 March 2019
• Docket Number: AC 40383
• Citation: 204 A.3d 717,188 Conn.App. 153
• Court: Connecticut Court of Appeals
• Parties: Laurence V. PARNOFF v. AQUARION WATER COMPANY OF CONNECTICUT et al.

188 Conn.App. 153

204 A.3d 717

Laurence V. PARNOFF

v.AQUARION WATER COMPANY OF CONNECTICUT et al.

AC 40383

Appellate Court of Connecticut.

Argued October 22, 2018

Officially released March 5, 2019

Thomas J. Weihing, with whom, on the brief, were John T. Bochanis, Bridgeport, and Joeseph D. Compagnone, for the appellant (plaintiff).

Edward P. McCreery, Bridgeport, with whom, on the brief, were Adam S. Mocciolo, Stamford, and Martha M. Royston, New Haven, for the appellees (named defendant et al.).

Keller, Moll and Eveleigh, Js.

KELLER, J.

This appeal, and a related appeal, Parnoff v. Aquarion Water Co. of Connecticut , 188 Conn. App. 145, 204 A.3d 712, 2019 WL 1006789 (2019), which we also officially release today, involve a challenge by the plaintiff, Laurence V. Parnoff, to the summary judgments rendered by the trial court in favor of the defendants in this action. In this appeal, the plaintiff appeals from the summary judgments rendered by the trial court in favor of the defendants Aquarion Water Company of Connecticut (Aquarion) and its employees, Beverly A. Doyle, David Lathlean, and Kyle Lavin.¹ The plaintiff claims that the trial court erred by rendering summary judgment in favor of the defendants as to his (1) claims of trespass, (2) claims of negligent infliction of emotional distress, (3) claims of invasion of privacy, (4) claims of intentional infliction of emotional distress, and (5) claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b (a). For the reasons set forth in this opinion, we disagree with the plaintiff and affirm the judgments of the trial court.

In July, 2014, the plaintiff commenced the present action against the defendants, alleging in his twenty-five count revised complaint filed on May 24, 2016, various claims arising from a July 11, 2011 incident that took place on his property at 3392 Huntington Road, Stratford, and the adjacent lot he owned. Therein, he alleged, inter alia, that the defendants trespassed onto his property beyond any easement rights of Aquarion and did so against his express orders or consent. He alleged that Lavin "ran up to [the plaintiff] shouting ‘you're stealing water’ and put his camera in [the plaintiff's] face." The plaintiff alleged that he denied stealing any water and instructed the defendants to "immediately remove their three vehicles from [his property] and leave."

Furthermore, the plaintiff alleged that both he and Lathlean called the Stratford Police Department.² After doing so, the plaintiff alleged that Police "[O]fficer [Glynn] McGlynn was dispatched by the Stratford Police Department and told of both calls." Upon arrival, the plaintiff asserted, inter alia, that McGlynn "spoke at length with the Aquarion employees" and asked the plaintiff to "leave because McGlynn was conducting an investigation." The plaintiff alleged that McGlynn eventually arrested him. He averred that McGlynn transported him to a holding cell at the Stratford Police Department, allowing the defendants to trespass further on his property. Moreover, he asserted that the defendants "exhort[ed] public officials to take further baseless action to humiliate and embarrass" him and publicly accused him of theft. In his complaint, the plaintiff included counts against each of the four defendants for trespass (counts one through four), negligent infliction of emotional distress (counts five through eight), intentional infliction of emotional distress (counts nine through twelve), and invasion of privacy (counts thirteen through sixteen). He also included a count against Aquarion alleging a violation under CUTPA (count seventeen).³

On July 13, 2016, the defendants filed an answer with eleven special defenses.⁴ The defendants alleged that the plaintiff's trespass claims in counts one through four were barred because Doyle, Lathlean, and Lavin's entry, presence, and activities on the property were expressly permitted by easements, reservations, and exceptions held by Aquarion. As to counts five through eight, the defendants argued that the plaintiff's claims were barred by the relevant statute of limitations. As to all the counts, the defendants alleged the plaintiff's claims were barred in whole or in part by the plaintiff's waiver because he had agreed, inter alia, to permit Aquarion to "inspect, maintain and repair hydrants"; by the doctrines of absolute and qualified immunity; by the doctrine of privilege with consent; by the doctrine of privilege; by the doctrine of consent or license; by the plaintiff's contributory negligence; and because the defendants' actions were authorized and/or permitted by federal and state laws, rules and regulations, including those promulgated and approved by the Connecticut Public Utilities Regulatory Authority (PURA) and the Connecticut Department of Energy and Environmental Protection. As to the plaintiff's claims in equity, the defendants alleged that the claims were barred in whole or in part by the doctrine of unclean hands.⁵

On August 1, 2016, the defendants filed a motion for summary judgment as to all of the counts directed against them. As to the trespass allegations in counts one through four, the defendants argued that, in addition to their rights pursuant to an easement on the plaintiff's property, they also had a tariff from PURA to access the plaintiff's property.⁶ In regard to counts five through twelve and seventeen, which included the claims of negligent infliction of emotional distress, intentional infliction of emotional distress, and a violation of CUTPA, the defendants argued that the counts were barred by absolute immunity for all statements made in relation to the judicial action brought against the plaintiff and any statements made to the Statewide Grievance Committee, which began an investigation of the plaintiff, a member of the Connecticut bar, related to the incident on July 11, 2011. They also argued that qualified immunity barred the counts for all communications made to the police or other investigative officers on July 11, 2011, the day before criminal charges arising from the July 11, 2011 incident were filed against the plaintiff.

As to counts five through eight, in which the plaintiff raised claims of negligent infliction of emotional distress, the defendants argued they were time barred under the applicable statute of limitations. With respect to counts nine through twelve, in which the plaintiff raised claims of intentional infliction of emotional distress, the defendants argued that the counts were deficient because the defendants' conduct could not be regarded as extreme or outrageous. Furthermore, with respect to counts thirteen through sixteen, the defendants argued that the pleadings were facially deficient as to the plaintiff's invasion of privacy by unreasonable intrusion upon seclusion claims because the conduct alleged by the plaintiff cannot be regarded as highly offensive. Lastly, as to count seventeen, Aquarion alleged that the plaintiff failed to establish a CUTPA violation because he did not suffer an ascertainable loss as required under the act, a trespass or police report does not form a business relationship to satisfy the commercial transaction requirement, and the conduct complained of "does not rise to the required level of a deceptive practice or violation" under the act.

In support of their motion, the defendants filed a memorandum of law and thirty-two exhibits.⁷ These exhibits demonstrate that on the morning of July 11, 2011, the defendants were servicing one of Aquarion's hydrants, which was located on the plaintiff's property. When Lavin and Lathean first located the hydrant, they found that it was missing a cap and was leaking, and that the ground was wet. They also observed a red garden hose on the ground next to the hydrant, which they traced to a goat pen located next to a pond. Additionally, they observed other hoses located under leaves that appeared to lead to the goat pen, where two goats resided. These hoses branched off from a red hose that was located on the fencing of the goat pen. Lathlean and Lavin began searching for the missing hydrant cap in the immediate vicinity of the hydrant and walked into an open canopy tent located about ten feet from the hydrant, where they spotted the missing hydrant cap on the floor of the plaintiff's tractor, along with a pipe wrench. The defendants provided photographs of the altered cap, which showed that a hole was drilled into it with a connection welded over it. Lavin and Lathlean's affidavits demonstrate that they suspected that tampering with the fire hydrant had occurred, potentially including an unsafe cross-connection to the water system, which they believed could lead to contamination and endanger the health and safety of Aquarion's customers.⁸ They attested that the plaintiff confronted them and yelled at them to get off his property. They also attested that the plaintiff threatened to get a gun and kill them if they did not get off his property. At that point, Lathlean decided to call the police. By submitting the plaintiff's deposition testimony, the defendants demonstrated that the plaintiff knew that they were Aquarion workers and had arrived in Aquarion trucks, that there was a hydrant on his property, and that he suspected that they were there to inspect the hydrant even before he walked over to them.

The plaintiff filed an amended memorandum of law in opposition to the defendants' motion for summary judgment on August 26, 2016, which he supported with court transcripts, deposition transcripts, and an interrogatory response from the defendants. On August 29, 2016, the defendants filed a reply memorandum to the plaintiff's opposition, and the court held a hearing on the motion.

On January 5, 2017, the court issued a memorandum of decision. As to the trespass claims in counts one through four, the court concluded that the defendants were entitled to summary judgment on two separate grounds: (1) Aquario...