Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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Case 3:03-cv-00372-AVC Document 32-12 Filed 05/24/2004 Paget 0f%
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- Not Reported in A.2d Page 1
(Cite as: 1998 VVL 310872 (Con11.Super.))
W These motions were granted by
Only the Westlaw citation is carrently avaiiable. Memorandum of Decisions dated June 19,
1997 and December 9, i997 respectively.
UNPUBLIS%D OPENION. CHECK COURT
RULES BEFORE CITING. "The purpose of a motion to strike is to contest
the Eegai sufficiency of the allegations of any
complaint to state a claim upon which relief cas
be granted. In ruling on a motion to strike, the court
Superior Court ofConneeticut. is limited to the facts alieged in the complaint. The
court must construe the facts in the complaint most
Jorge TAPIA favorably to the plaintiff if facts provable in the
v. complaint would support a cause of action, the
SIKORSKY AIRCRAFT DIVISEON OF UNITED motion to strike mast be denied." (Internal
TECHNOLOGIES COR]?. quotation marks omitted.) Faulkner v_ United
Technologies Corp., 240 Conn. 576, 580, 693 A.2d
) No. CV 953277615. 293 (1997).
June 3, 1998. 1. Invasion of Privacy
The first count pleaded by the plaintiff alleges a
Memorandum of Decision Re:Motéon to Strikes? cause of action for invasion of privacy based on
129 actions by the defendant involving an inventory of
the contents of the plaintiffs Eocker after the ·
STODOLlNK,Judge. plaintiff had been suspended from employment
because he was fighting in the workpiace. (See
*1 On December E9, 1997, the plaintiff, Jorge Third Revised Complaint, Count One.) The
Tapia, filed a third revised complaint against the defendant argues tiiat the aliegations of the
defendant, Sikorsky Aircraft Division of United plaintiffs complaint do not support the necessary
Technologies Corporation, alleging invasion of elements of a oatise of action for invasion of
privacy in count one and negiigent irifliction of privacy. First, the defendant argues that the plaintiff
emotional distress in violating the plaintiffs right to has failed to adequately ailege that the inventorying
privacy in coamt two. [FNI] The defendant tiled a of the contents of his locker invoived an intrusion
motion to strike counts one and two ofthe piaintiffs into his private affairs or concerns. Second, the
third revised complaint on March 6, i998 with a defendant insists that the plaintiff has failed to
memorandum in support of its motion. The plaintiff allege that the iswentorying of the contents of his
filed an objection to defendants motion to strike on locker would be highly offensive to a reasonable
March 23, 1998 with a memorandum in support of person.
its ob_§ection.
The plaintiff insists that in his third revised
complaint he has alleged that the contents of the
FN}. The defendant previously filed locker were private and personal and the intrusion
motions to strike counts one and two dated was highly offensive. The plaintiff argues that
December 12, 1996 and September 3, '{Qegardless of the iockefs contents, the act of
1997 claiming that the plaintiff had failed destroying piaintiffs personal loci< and sorting
to state legal causes of action with respeet through iris personal belongings, ali without
to his claims of invasion of privacy and piaintiffs knowledge or permission, is sufficient to
negligent infliction of emotional distress. support a cause of action for invasion of privaoy."
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Pa e 3 of 5
Case 3:03-cv-00372-AVC Document 32-12 Filed 05/24/2004 Page 2 cfg
Not Reported in A.2d Page 2
_ (Cite as: 1998 WL 310372 (Conn.Super.))
The plaintiff notes that in WVHQ Inc. v. Gray, An unreasonable intrusion occurs when one
Superior Court, judicial district of Hartford-New "intentionally intrudes, physically or otherwise.
Britain at Hartford, Docket No. 547689 (October upon the solitude or seclusion of another or his
25, 1996) (Lavine, J.), the court heid that an private affairs or concerns [in a manner which is]"
ernployee's secret tape recording of another highly offensive to a reasonable person. Schwartz v.
employee in and of itself constitutes the invasion of Royal, Superior Court, judicial district of
that employees privacy. The plaintiff argues that Hartford/New Britain at Hartford, Docket No.
"[s]iniilarly, having one's private space forcibly - 5532}.8 (ilennessey) (May 20, i996) (holding that
entered and private belongings inventoried is an defendants alleged grabbing, hitting the buttocks
’atfront to the average person's sense of dignity' and of and constant staring at the chest of the plaintiff
a 'transgression of boundaries that deserved to be is sufficient to state a claim for intrusion upon
respected.' " (flaintiffs Memorandum, p. 5. citing seclusion). "’i`o date, the Connecticut Appellate
WVIY`; Inc. 12. Gray, supra, Docket No. 547689.) In Court; have not get forth the necessary elements, of
addition, at oral argument, the plaintiff relied on . a claim for unreasonable intrusion upon seciusion."
K-Marr Corp. Store No. 7441 v. T rorzi 677 S.W.2d Id. *'I·Iowever, several superior courts have
632, 638 (Tex.App.i98¢§), which explains that an concluded that [i]n order to establish a claim for
employee, by having placed a ioci: on the locker at unreasonable intrusion upon the seclusion of
the employees own expense and with the another, the plaintiffs must prove an intentional
employers consent, has demonstrated a legitimate physical intrusion {by the defendant] upon the
expectation of privacy in both the locker itself and private affairs or concerns of the plaintiffs which
those personal effects within it. [ol would be highly offensive to a reasonable person."
{Citations omitted.) Is?. See Gallagher v. Rupoporr,
*2 "Our Supreme Court has described the four Superior Court, judicial district of
types of invasion of privacy: (1) appropriation, for Stamfordddorwalh at Stamford, Docket No.
the defendants benefit or advantage, of the i4989l, 19 Conn.L.Rptr. 474 (May 6, l997)
plaintiffs name or likeness: (2) intrusion upon the (D’Andrea, J.) (holding that allegations of repeated
plaintiffs physical solitude or seclusion; (3) and offensive touching of the rnost private parts of
publicity, of a highly objectionable kind, given to the plaintiffs hody as well as sexual demands by the
private infomation about the plaintiff even though defendant are sufficient to state a claim for an
it is true and no action would lie for defamation; unreasonable intrtision upon the plaintiffs
and (4) publicity which places the plaintiff in a false seclusion); Valenti v. Puscioliu, Superior Court, _
light in the public eye. Section 652}) of the judicial district of New Haven at New Haven,
Restatement {Second) of Torts defines a tort action Docket No. 379222 (October 15, l996) (Silbert, I.)
for the invasion of personal privacy as being (explaining that allegations that the defendant,
triggered hy puhiio disclosure of any matter that (a) foiiowing a telephone conversation characterized by
would be highiy offensive to a reasonable person, the plaintiff as "unpieasantf walked in, approached
and (b) is not of iegitimate concern to the public. the plaintiff] iifted his hairpiece off his head and
Comment (c) of 652D recognizes, however, that not threw it across the roorn in full view of the
all personal and private information is protected employee and customers are sufficient to state a
ii·om public disclosure: The rule stated in {652})] clairn for an unreasonahie intrusion upon the
gives protection only against unreasonahle plaintiffs seclusion); Fields v. Kichur, Superior
publicity, of a kind highiy offensive to the ordinary Court, judicial district of Toiiand at Rockville,
reasonable [person]." Tarku v. Filinovic, 45 Docket No. 054868 (May 2, 1995) (Kiaczakj.) (14
Conn.!-Xpp. 46, 53-54, 694 A.2d 824, cert. denied, Conn.L.Rptr. 230) {holding that allegations of a
242 Conn. 903, 697 A.2d 363 (1997). series of sexual assaults are sufficient to establish
that the defendant physically intrucled on the
The plaintiff has not alleged any publication or soiitnde of the plaintiff in a highly offensive
pubiicity of his private affairs nor the appropriation manner); Flowers v. New Britain General Hospital,
of his name or likeness. Therefore, of the four judicial district of HartfordfNew Britain at Hartford,
categories recognized hy the Restatement, only Docket No. 393885 {June l0, l99·fi) (I-lennessey, I.)
unreasonable intrusion upon the seclusion of (holding that a genuine issue of material fact exists
another has any appiication to the facts alleged hy as to whether the defendants conduct was highly
the plaintiff offensive when information on drug use was
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Not Reported in A.2d · Page 3
{Cite as: 1998 WL 310872 (Conn.Super.))
obtained by an inventory search of a hospital FN2. These allegations go to the wrongful
patients clothes); Mostroberti v. Hall, Superior termination rather than the plaintiffs
Court, judicial district of Litchfield at Litchfield, privacy interest in the contents of the
Docket No. 058336 (February iS, 1993) (Pickett, locker.
Qi-} (8 CO1'1H-L-Ri9ii'- 740) (holding that allegations of
trespass and taking photographs on the business
property of the plaintiff are insufficient to establish 11. Negligent lnfiiction of Emotional Distress
an intrusion upon the seclusion of the piaintiff).
ln the second count, the plaintiff alleges a cause of
*3 The plaintiff has failed to allege facts action for negligent inflietion of emotional distress
demonstrating an intrusion upon a privacy interest in violating the plaintiffs right to privacy. (See
that is highly offensive to a reasonable person. The Compiaint, Count Two.) The defendant argues that
court, Thim, 3., granted the defendants motion to the motion to strike the second count should be
strike the first count of the first revised complaint granted `eecause the plaintiff has failed to plead
because the plaintiff failed "to allege that hy sufficient facts to support the proposition that the
entering the plaintiffs personal iocker the defendant defendant was negligent or that it knew its actions
discovered any of the plaintiffs private affairs or could cause emotional distress invoivhag the risk of
concerns." Tgpig v_ Sikorsky Airgrgji Division gf bodily harm. The plaintiff counters that the motion
United Technologies, Superior Court, judicial to strike the second count should he denied because
district of Fairfield at Bridgeport, Docket No. it has set out sufficient allegations of fact to show
327761 (June l9, 1997) ('1`him, 3.). The court, that the defendant knew or should have known that
Mottolese, J., considered a motion to strike the cutting an employeeis lock off his personal iockr
second revised complaint and ruled that "[w]hi1e the and inventorying the contents would cause a .
plaintiff has now alleged that the defendant reasonable person emotional distress.
discovered his 'assorted personal and private iterns'
such an allegation is conclusory and therefore *4 in order to state a claim for negligent infiiction
inadequate in the absence of a statement of issuable of emotional distress, "the plaintiff has the burden
facts that identify the interest (other than personal of pleading that the defendant should have realized
preference) of the plaintiff in keeping the items that its conduct involved an unreasonable risk of
private. Moreover, the plaintiff failed to allege facts causing emotional distress and that distress, if it
to support the allegation that the defendants were caused, might result in illness or bodily harrn."
intrusion would have been highly offensive to a Parsons v. United Technologies Corporation, 243
reasonable person. Topic: v. Sikorsky Aircrojf Conn. 66, S8, 700 A.2d 655 (1997). The court,
Division of United Technologies, Superior Court. Thim, J., ganted the defendants motion to strike
judicial district of Fairfield at Bridgeport Docket the second count of the plaintiffs first revised
No. 327761 (December 9, 1997) (Mottolese, J.) complaint because the plaintiff failed to allege that
The plaintiff subsequently filed a third revised the "distress, if it were caused, might result in
complaint with the additional allegations that the illness or bodily harm." Topic: v. Sikorsky Al'l"C?'CI_]¢l'
plaintiff was under suspension from his employment Division of United Technologies, Superior Court,
with the defendant when the defendant entered his judicial district of Fairfield at Bridgeport, Docket
locker, that the plaintiffs employment was No. 327761 (June 19, l997) (Thim, 5.). The court,
subsequently terminated and that the defendants Mottolese, 3., granted the defendants motion to
discovery of the plaintiffs personal and private strike the second count of the plaintiffs second
items was a contributing factor in the defendants revised compiaint because "the plainti§ has not
decision to terminate the plaintiffs employment. alleged why the defendant should have realized that
(Third Revised Complaint, E2- 14.) These its discovery of these items might have put the
additional allegations fall to identify his interest plaintiff at risk of suffering emotional distress and
(other than his personal preference) in keeping the that distress might have caused the plaintiff to
items in his locker private or to support the become iii or suffer bodily harm.“ Topio v. Sikorsky
allegation that the defendants intrusion would have Aircraft Division of United Technologies, Superior
been highly offensive to areasonahle person. [FN2] Court, judicial district of Fairfield at Bridgeport,
Docket No. 327761 (December 9, 1997)
(Mottolese, 1.).
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Page 5 of 5
Case 3:03-cv-0_0372—AVC Document 32-12 Filed 05/24/2004 Page 4 of 4 .
Not Reported in A.2d Page 4 -
· {Cite as: 1998 WL 310872 (Con11.Super.))
In the third revised cornpiaint, the plaintiff added
the allegations that "the search of the Piaintiffs
locker coincided and contributed to the decision to
terminate the Plaintiffs ernployment" and
"Defendant should have realized that its conduct in
searching the Piaintiffs personal locker at or around
the time the Plaintiff was suspended from
employment, would involve an unreasonable risk of
causing the Plaintiff emotional distress? These
allegations are conclusory and therefore inadequate
in the absence of issuable facts that identify why the
defendant should have realized that the discovery of
the iterns in the piaintiffs locker might have put the
defendant at risk of suffering emotional distress. "A -
motion to strike is properly granted if the complaint
alleges mere conclusions of iaw that are _
unsupported by the facts.‘* Novametrix Medz'ca!
Systems, Inc. v. BOC Group, [nc., 224 Conn. 2lO,
2i5, 6iS A.2d 25 (i992).
For the foregoing reasons, the motion to strike
counts one and two of the third revised complaint is
granted.
1998 WL 310872 (Conn.Super.)
END OF DOCUMENT
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