NATHAN KRUGER v. AVERY GRAUER
(AC 38263)
Lavine, Prescott and Mullins, Js.
Argued December 12, 2016—officially released June 6, 2017
(Appeal from Superior Court, judicial district of New Haven, Wilson, J.)
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Daniel P. Scholfield, with whom were Miruna C. Popescu Voiculescu and, on the brief, Hugh F. Keefe, for the appellant (defendant).
John R. Williams, for the appellee (plaintiff).
Opinion
A review of the pleadings and the documents submitted in conjunction with the motion for summary judgment reveals the following undisputed facts and procedural history. The plaintiff, a cardiologist, and the defendant, a psychiatrist, formerly were married and are the parents of two minor children. On January 24, 2011, the trial court rendered a judgment dissolving the parties’ marriage. As a result of the divorce, the parties had shared custody of their two children. On February 20, 2011, the parties’ four year old son purportedly informed the defendant that the plaintiff had “hurt” his “tushie” and had “put a stick” in his “tushie.” The defendant did not take any immediate action.
The next day, on February 21, 2011, the parties’ son purportedly repeated the allegations to the defendant. The son also told the defendant‘s boyfriend, Adam Joshua Watsky, about this alleged abuse. Watsky surreptitiously recorded the allegations on his cell phone. The defendant informed Watsky that her son had made similar allegations the day before. Watsky and the defendant thereafter discussed what course of action they should take. Watsky wanted to “make a report to a state agency.” The defendant, however, convinced Watsky that they would instead
The next day, February 22, 2011, at the son‘s therapy appointment, Meyers conducted an evaluation of the child. The defendant was not present for the evaluation. After the evaluation, however, Watsky, Meyers, and the defendant had a conversation regarding the allegations. As a result of that conversation, Watsky believed that Meyers thought that “follow-up with a state agency was required.” Acting on this belief, Watsky filed a report of suspected child abuse with the department later that day.3
Due to the report of suspected abuse, the department scheduled an evaluation of the parties’ two children for February 24, 2011. The evaluation consisted of an interview and physical examination of the children, both of which were attended by the defendant at the department‘s request. In the course of the interview and physical examination, the defendant repeated the son‘s allegations to department personnel, a police officer, and personnel from Yale-New Haven Hospital‘s Child Sexual Abuse Clinic (Yale Clinic).
After the department evaluation, the defendant sought a restraining order against the plaintiff on her children‘s behalf for the pendency of the department‘s investigation. A three day hearing concerning the restraining order took place between March 9 and March 11, 2011. At the hearing, the defendant testified as to the allegations made by the son. The court, Abery-Wetstone, J., however, dismissed the restraining order application after concluding that the defendant‘s testimony was not credible.
After the March, 2011 restraining order hearing, the department closed its investigation. The department concluded that the allegations against the plaintiff were unsubstantiated.
Thereafter, on February 13, 2013, the plaintiff commenced the present action, seeking damages from the defendant for “falsely and maliciously accus[ing] the plaintiff of sexually assaulting their four year old son.” The plaintiff‘s operative complaint contains four different causes of action, all of which arise from the report of sexual abuse that the defendant made to department and Yale Clinic personnel during the department‘s investigation.4 Specifically, the complaint sounds in (1) vexatious litigation, (2) defamation, (3) intentional infliction of emotional distress, and (4) negligent infliction of emotional distress.
The defendant filed an answer and a special defense alleging qualified immunity with respect to the claims for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. As to the defamation claim, she also
On December 15, 2014, the defendant filed a motion for summary judgment. The court heard oral argument on the motion on March 30, 2015. The defendant argued that she is entitled to summary judgment on the counts sounding in defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. She contended that those causes of action are barred because she is entitled to absolute immunity from suit by virtue of the litigation privilege. According to the defendant, she is entitled to absolute immunity for her statements regarding her son‘s abuse accusations pursuant to the litigation privilege because those statements were made to “appropriate authorities in the course of investigating [the son‘s] claims of sexual abuse.”
The plaintiff filed an objection to the defendant‘s motion for summary judgment. In his objection, he argued that “the public policy of the state of Connecticut manifestly does not afford immunity, either absolute or qualified, to those who make false reports of child abuse.”
In a memorandum of decision filed July 28, 2015, the court denied the defendant‘s motion for summary judgment. It rejected the defendant‘s argument that she was entitled to absolute immunity from suit pursuant to the litigation privilege. The court concluded that the legislature “has made clear that a report of suspected child abuse is entitled to only a conditional or qualified privilege . . . .” In so concluding, it cited
On appeal, the defendant claims that the court improperly determined that the litigation privilege does not entitle her to common-law absolute immunity for the statements that she made to department and Yale Clinic personnel in connection with the department‘s investigation of her son‘s alleged sexual abuse. The crux of the defendant‘s claim is that she is entitled to absolute immunity because affording her absolute immunity advances the policy underlying that doctrine. According to the defendant, the policy underlying absolute immunity “is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” (Internal quotation marks omitted.)
Thus, she argues that the factual circumstances underlying this appeal, i.e., a department investigation of suspected child abuse, presents a situation where the law encourages people to speak freely, even at the expense of immunizing individuals who make false and malicious statements. As support for this argument, the defendant posits that this state has a “robust” policy of protecting children from abuse, which is best effectu-ated by encouraging
Additionally, the defendant asserts that the trial court erred in concluding that
We begin by setting forth our standard of review and the relevant law. “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 848, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
“[T]he doctrine of absolute immunity originated in response to the need to bar persons accused of crimes from suing their accusers for defamation. . . . The doctrine then developed to encompass and bar defamation claims against all participants in judicial proceedings, including judges, attorneys, parties, and witnesses. . . . [T]he purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. . . . Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine [of absolute immunity] was intended to protect nevertheless faced the threat of suit.” (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 627, 79 A.3d 60 (2013).
“At common law, communications uttered or published in the course of judicial proceedings are [protected by the litigation privilege] so long as they are in some way pertinent to the subject of the controversy. . . . [Although] the [litigation] privilege . . . is generally applied to pertinent statements made in formal judicial proceedings, [it] also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature. . . . Once it is determined that a proceeding is quasi-judicial in nature, the [litigation] privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition.” (Citation omitted; internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787-88, 865 A.2d 1163 (2005).
If asked to decide whether a person is entitled to absolute immunity on the basis of the litigation privilege, “[w]e must first determine whether the proceedings [in question] were [judicial or] quasijudicial in
“[Once we have] concluded that the statements of the defendant were made in the context of a judicial or quasi-judicial process, we must next determine whether the alleged defamatory statements were made in the course of that proceeding and whether they related to its subject matter. . . . In making [the] determination [of whether a particular statement is made in the course of a judicial proceeding], the court must decide as a matter of law whether the . . . statements [at issue] are sufficiently relevant to the issues involved in a proposed or ongoing judicial [or quasi-judicial] proceeding, so as to qualify for the privilege. The test for relevancy is generous . . . .” (Citation omitted; internal quotation marks omitted.) Mercer v. Blanchette, 133 Conn. App. 84, 93-94, 33 A.3d 889 (2012).
Importantly, even if the litigation privilege affords individuals common-law absolute immunity for statements made in the course of a quasi-judicial proceeding, the legislature may abrogate such absolute immunity by statute. See, e.g., Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 787-98. In Chadha, the plaintiff, a physician, sued several other physicians for submitting affidavits expressing concerns to the Department of Public Health about his ability to safely practice medicine. Id., 780. The trial court denied the defendants’ motion for summary judgment, in which they argued that, because the statements in their affida-vits were made in the course of a quasi-judicial proceeding, they were entitled to absolute immunity at common law. Id., 781-82. Upon granting review of the defendants’ interlocutory appeal, our Supreme Court first determined that the physicians generally would be entitled to absolute immunity at common law because their affidavits were made in the course of a quasi-judicial proceeding. Id., 787.
The court, however, then considered what effect
On the basis of that statutory language, the court concluded that there is “no dispute that the immunity afforded under §§ 19a-17b and 19a-20 is qualified, rather than absolute, because those provisions expressly except from their purview conduct and statements that are motivated by malice.” Id., 790. The court further determined that “the only reasonable interpretation“; id.; of “the plain language” in §§ 19a-17b and 19a-20 is that the legislature “intended to abrogate the common-law absolute immunity applicable to statements made in connection with board proceedings.” Id., 796. The court reasoned that there is “no way to give effect both to the qualified immunity that those provisions provide, on the one hand, and to the absolute immunity existing at common law, on the other. . . . To do so would require us to ignore the clear legislative mandate of §§ 19a-17b and 19a-20 that the immunity applicable to statements falling within the ambit of those provisions is qualified and not absolute.” (Citation omitted; emphasis omitted.) Id., 790-91.
Critically, the court in Chadha also rejected the defendants’ contention that “the legislature should not be deemed to have abrogated the common-law absolute immunity . . . in the absence of express language accomplishing that end.” Id., 796. The Supreme Court observed that “[it] never has held that the legislature cannot implicitly supersede the common law.” Id. Notwithstanding the fact that the statutes at issue did not expressly abrogate common-law absolute immunity, the court stated that “the plain language of §§ 19a-17b and 19a-20 compels the conclusion that the legislature intended to abrogate the common-law absolute immunity applicable to statements made in connection with board proceedings.” Id. Accordingly, the court affirmed the denial of the defendants’ motion for summary judgment. Id., 798.
With the appropriate legal framework in mind, we now turn to the present case to determine whether the defendant is entitled to absolute immunity for the report of child abuse she made to the department. Pursuant to that framework, our analysis normally consists of determining whether a department investigation of child abuse allegations is a quasi-judicial proceeding, and, if a department investigation is a quasi-judicial proceeding, whether the defendant‘s report was a statement made in the course of that proceeding. See, e.g., Kelley v. Bonney, supra, 221 Conn. 566. For purposes of this appeal, we assume, without deciding, that the defendant has satisfied these requirements and that she generally would have been entitled to absolute immunity at common law for her report to the department.
We also conclude, however, that the absolute immunity we have assumed to exist at common law for individuals making reports to the department has been legislatively abrogated by
Despite the presumption that legislative action is not in derogation of the common law, we conclude that
Here, as in Chadha, we begin our analysis with a review of the language of the
The parties do not dispute that this language clearly expresses the legislature‘s intent that individuals who make statements that fall within the purview of
To start, we agree with the trial court‘s general observation that continuing to recognize absolute immunity at common law “could make an end run around the existing good faith statutory immunity.” Put another way, the statutory immunity and common-law immunity are irreconcilable when applied to persons making reports to the department. It is impossible to give effect both to the qualified immunity provided by
Furthermore, affording absolute immunity to individuals who make reports to the department when the legislature has stated expressly that such individuals are entitled to qualified immunity for those reports undoubtedly would thwart the legislature‘s intent to except from protection individuals who make bad faith reports. “It is axiomatic that we do not interpret a statute in a way that would so blatantly thwart its purpose.” Location Realty, Inc. v. Colaccino, 287 Conn. 706, 727, 949 A.2d 1189 (2008). If the legislature wanted to provide protection to all reporters of abuse, then it certainly could have done so. As the statute‘s plain language indicates, however, it did not. See Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 793 (“[H]ad the
The fact that
Finally, we disagree with the defendant‘s contention that the legislature did not abrogate common-law immunity because it failed to use express language accomplishing that end. As discussed previously, in rejecting a similar argument in Chadha, our Supreme Court observed that it “never has [been] held that the legislature cannot implicitly supersede the common law.” Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 796. Indeed, the statutes at issue in Chadha did not state expressly that the legislature was abrogating absolute immunity. See id.;
In the present case, we similarly are compelled to conclude that the only reasonable interpretation of
Although our interpretation of the plain language in
Indeed, as the defendant highlights, the legislature has stated expressly: “The public policy of this state is . . . [t]o protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse or neglect, investigation of such reports by a social agency, and provision of services, where needed, to
Affording absolute immunity in this context surely would, as the defendant suggests, encourage individuals to speak freely in reporting suspected child abuse and, therefore, aid in the overarching goal of protecting the welfare of children. The legislature, however, did not afford such immunity when enacting
To be sure,
Thus, in deciding that individuals who report abuse to the department are entitled to only qualified immunity rather than absolute immunity, it is clear that the legislature already weighed the pertinent policy considerations in this context. We must follow that legislative mandate. It is well settled that “[our appellate courts] lack the authority to override [such a] valid expression of legislative will . . . .” Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 797. “[T]he primary responsibility for formulating public policy resides in the legislature . . . [and] so, too, does the responsibility for determining, within constitutional limits, the methods to be employed in achieving those policy goals.” (Citations omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 715, 802 A.2d 731 (2002). “[Our appellate] court[s] [are] precluded from substituting [their] own ideas of what might be a wise provision in place of a clear expression of legislative will.” (Internal quotation marks omitted.) Skindzier v. Commissioner of Social Services, 258 Conn. 642, 661, 784 A.2d 323 (2001). Accordingly, we agree with the trial court‘s conclusion that “it is not for a court to second-guess the legislature‘s [express] determination [in
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
First, it is clear that the defendant‘s statements constituted a “report.” Our Supreme Court has construed “report” in this context to have its ordinary dictionary definition. Manifold v. Ragaglia, 272 Conn. 410, 421-22 n.12, 862 A.2d 292 (2004) (defining report as “[a]n account presented usu[ally] in detail,” “[t]o make or present an often official, formal, or regular account of,” “[t]o relate or tell about; present,” and “to carry back and repeat to another” [internal quotation marks omitted]). Accordingly, we conclude that the defendant‘s act of relating her son‘s abuse allegations to the department fits squarely within the definition of “report.” See id., 421 (“[physician‘s] act of describing the result of his examination of the children orally to [a department social worker], followed by his provision of a written account of that examination, clearly falls within the common usage of the term ‘report’ “).
Second, our Supreme Court has rejected the contention that § 17a-101e applies only to initial reporters of child abuse. Id., 422, 424 (§ 17a-101e provides immunity “to secondary reporters of abuse” because statute does not “contain any language that . . . limits [its] application to initial reporters of child abuse” [emphasis omitted]).
The defendant also contended at oral argument that, because Yale Clinic personnel interviewed her at the department‘s request, they were the department‘s “agents.” On that basis, the defendant claims that her entitlement to absolute immunity applies not only to her statements to department personnel, but also to her statements to Yale Clinic personnel. With this in mind, we conclude that in the limited circumstances of this case, the defendant‘s statements to Yale Clinic personnel constitute a “report” falling within the scope of § 17a-101e. In other words, because this was a department investigation and Yale Clinic personnel spoke to the defendant only at the behest of the department during its investigation, a report to the Yale Clinic in this very limited context was tantamount to a report to the department. It logically follows, then, that statements made to Yale Clinic personnel under these limited circumstances should be subject to the same strictures that § 17a-101e imposes on statements made to the department. Nevertheless, notwithstanding the defendant‘s contention, nothing in this opinion is intended to suggest that Yale Clinic personnel are in fact “agents” of the department.