LAURENCE V. PARNOFF v. AQUARION WATER COMPANY OF CONNECTICUT ET AL.
(AC 40383)
Keller, Moll and Eveleigh, Js.
Argued October 22, 2018—officially released March 5, 2019
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
***********************************************
The plaintiff sought to recover damages from the defendant water company, A Co., and its employees, the defendants D, L and K, for trespass, negligent and intentional infliction of emotional distress, invasion of privacy and violation of the Connecticut Unfair Trade Practices Act (CUTPA) (
- The plaintiff‘s claim that the trial court improperly granted the defendants’ motion for summary judgment as to his trespass claims because the defendants use of A Co.‘s easement on his property was unreasonable was not reviewable, as the trespass claims were moot; because the plaintiff challenged the granting of the motion for summary judgment on his trespass claims only on the issue of the defendants’ use of the easement and did not challenge the other ground on which the trial court based its ruling, namely, that the defendants’ entry on the property was authorized by the regulatory authority, there still existed an unchallenged, independent ground on which the court based its decision and, therefore, there was no practical relief that could be afforded the plaintiff, and although the plaintiff raised the issue of whether the entry on his property was authorized by the regulatory authority in his reply brief, claims raised for the first time in a reply brief are not reviewable.
- The trial court properly granted the defendants’ supplemental motion for summary judgment and determined that the plaintiff‘s negligent infliction of emotional distress claims were barred by the statute of limitations set forth in
§ 52-584 : the plaintiff‘s medical records having indicated that the plaintiff discovered some form of actionable harm in September, 2011, and the plaintiff not having commenced this action until July, 2014, it was clear that the action was commenced well beyond the two year limitation period, and although the plaintiff averred in an affidavit that he did not discover the injurious effect that the July, 2011 incidenthad on him until the summer of 2016, that averment was merely a bald statement that a genuine issue of material fact existed, not proof that supported the existence of such an issue; moreover, the plaintiff‘s claim that the continuing course of conduct doctrine tolled the statute of limitations was unavailing, as the statute began to run once the plaintiff discovered his injury and, thus, the continuing course of conduct doctrine did not apply. - The trial court properly granted the defendants’ motion for summary judgment as to the plaintiff‘s invasion of privacy by intrusion on seclusion claims, as that court properly concluded that, as matter of law, the alleged tortious conduct of the defendants failed to establish a claim of intrusion on seclusion, which required that he prove an intentional intrusion on his solitude or seclusion that would be highly offensive to a reasonable person: even if the plaintiff was correct in that the defendants misused their easement or tariff rights and their conduct constituted a trespass, a reasonable person could not conclude on the basis of the record that the defendants thrusted or forced in or on the plaintiff‘s property as to constitute an intentional intrusion, nor could a reasonable person find that the defendants’ presence on the property, coupled with statements made to the plaintiff accusing him of stealing water, was the type of substantial interference necessary to constitute an intentional intrusion; moreover, the submissions before the trial court did not support a finding that the driveway area where the defendants parked their vehicles, the area where they walked to discover and service the hydrant, or the open canopy tent located approximately ten feet from the hydrant where they found a missing hydrant cap, were private areas in which the plaintiff had secluded himself and had an objectively reasonable expectation of seclusion or solitude; furthermore, the submissions demonstrated that the defendants were servicing a hydrant that A Co. had maintained for many decades, and although D, L and K walked around the plaintiff‘s property to discover the hydrant, searched in the area around the hydrant for the missing cap and allegedly accused the plaintiff of stealing water, a reasonable person would not find that conduct to be highly offensive.
- The plaintiff‘s claim that the trial court improperly granted the defendants’ motion summary judgment as to his intentional infliction of emotional distress claims was without merit, as the defendants’ conduct was insufficient to form the basis for such an action; the defendants’ conduct on the day of the incident did not come close to extreme and outrageous conduct, and contrary to the plaintiff‘s contention that the defendants’ continued cooperation with an allegedly unfounded criminal investigation taken together with the events on the day of the incident satisfied the standard of extreme and outrageous conduct, the defendants’ mere cooperation with a criminal investigation by the state related to the incident did not constitute conduct that was so atrocious as to exceed all bounds usually tolerated by a decent society.
- The trial court properly rendered summary judgment in favor of A Co. as to the plaintiff‘s CUTPA claim, the plaintiff having failed to allege and demonstrate that he suffered any ascertainable loss; contrary to the plaintiff‘s contention that punitive damages and attorney‘s fees are sufficient to fulfill the ascertainable loss requirement under CUTPA, those potential remedies, which are available to a plaintiff once he has met the threshold barrier of the ascertainable loss requirement and prevails on his CUTPA claim, cannot be the basis of demonstrating an ascertainable loss, and although the plaintiff claimed that his emotional distress fulfilled the ascertainable loss requirement, this court has determined previously that a claim of emotional distress does not constitute an ascertainable loss of money or property for purposes of CUTPA.
Procedural History
Action to recover damages for, inter alia, trespass, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Radcliffe, J., granted in part the motion for summary judgment filed by the named defendant et al. and rendered judgment thereon; thereafter, the court granted the supplemental motion for summary judgment filed by the named defendant et al. and rendered judgment thereon, from which the plaintiff appealed to this court.
Thomas J. Weihing, with whom, on the brief, were John T. Bochanis and Joeseph D. Compagnone, for the appellant (plaintiff).
Edward P. McCreery, with whom, on the brief, were Adam S. Mocciolo and Martha M. Royston, for the appellees (named defendant et al.).
KELLER, J. This appeal, and a related appeal, Parnoff v. Aquarion Water Co. of Connecticut, 188 Conn. App. 153, 204 A.3d 717 (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),
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
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
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 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) Aquarion “has an express easement to enter upon the property“; and (2) even in the absence of an express easement, the defendants’ entry was also “permitted by the Department of Public Utilit[y] Control.”9 As to the negligent infliction of emotional distress claim in count five directed against Doyle, the court concluded that summary judgment was appropriate because there was no genuine issue of material fact and that her conduct did not rise to the level necessary to sustain such a claim because she never spoke to the plaintiff. As to the negligent infliction of emotional distress claims against the other defendants in counts six through eight, the court denied the motion for summary judgment on their statute of limitations argument because it concluded that a trier of fact might find “that the actionable harm was not sustained, until sometime after July 11, 2011, when the extent of [the plaintiff‘s] alleged distress became known.”
As to the intentional infliction of emotional distress claims in counts nine through twelve, the court concluded that the defendants’ alleged conduct “does not even approach the threshold for extreme and outrageous conduct.” As to the invasion of privacy claims in counts thirteen through sixteen, the court granted the motion for summary judgment stating that the “claims are utterly unsupported by the facts, even when viewed in the light most favorable to the plaintiff.” As to the CUTPA claim in count seventeen against Aquarion, the court concluded, inter alia, that the plaintiff failed to present evidence to “establish any ascertainable loss.”
On February 7, 2017, the defendants filed a motion requesting permission to file a supplemental motion for summary judgment because they obtained “irrefutable evidence” that showed that the plaintiff failed to commence the action on the remaining negligent infliction of emotional distress counts (six through eight) within the applicable statute of limitations. On the same day, the court granted the motion, and the defendants filed a supplemental motion for summary judgment. On March 27, 2017, the defendant filed an objection to the defendants’ supplemental motion, attaching to it an affidavit
Our review of a trial court‘s decision granting a motion for summary judgment is well established. Practice Book § 17-49 provides that the “judgment sought 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.” “A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .
“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . .
“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant‘s affidavits and documents. . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. . . . Our review of the trial court‘s decision to grant a motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn. App. 638, 645-46, 127 A.3d 257 (2015). “On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts
I
The plaintiff first claims that the court improperly granted the defendants’ motion for summary judgment on his trespass claims, arguing that the defendants’ use of the easement was unreasonable and, thus, constituted a trespass. We need not, however, reach the merits of the plaintiff‘s trespass claims because we conclude that those claims are moot.
“Where an appellant fails to challenge all bases for a trial court‘s adverse ruling on his claim, even if this court were to agree with the appellant on the issues that he does raise, we still would not be able to provide [him] any relief in light of the binding adverse finding[s] [not raised] with respect to those claims. . . . Therefore, when an appellant challenges a trial court‘s adverse ruling, but does not challenge all independent bases for that ruling, the appeal is moot.” (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 328 Conn. 726, 755, 183 A.3d 611 (2018); see also Windsor Federal Savings & Loan Assn. v. Reliable Mechanical Contractors, LLC, 175 Conn. App. 651, 661-62, 168 A.3d 586 (2017).
In the present case, even if we were to determine that the plaintiff‘s claims regarding the defendants’ use of the easement had merit, there still would exist another ground on which the trial court based its judgment—i.e., that “entry by Aquarion . . . employees is permitted by the Department of Public Utilit[y] Control“—which has not been properly challenged on appeal. We have found no place in the plaintiff‘s principal brief where he challenges this other ground for granting the motion for summary judgment on his trespass claims. Although he appears to raise the issue for the first time in his reply brief after the defendants’ brief drew his attention to this independent ground, it is a well established principle that “[c]laims . . . are unreviewable when raised for the first time in a reply brief.” (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 302, 977 A.2d 189 (2009).
Accordingly, we conclude that the plaintiff‘s trespass claims are moot, and, therefore, this court lacks subject matter jurisdiction to consider those claims.
II
The plaintiff next challenges the court‘s granting of the supplemental motion for summary judgment as to his negligent infliction of emotional distress claims. In particular, he argues that the court improperly concluded that his claims were barred by the two year statute of limitations in
“When applying
On February 7, 2017, the defendants filed their supplemental motion for summary judgment and a corresponding memorandum of law. The defendants also filed with their motion a sealed copy of the plaintiff‘s medical records that documented the plaintiff‘s visit with a psy-
On March 27, 2017, the plaintiff filed an objection to the defendants’ supplemental motion for summary judgment and a memorandum of law. In support of his objection, he included an affidavit and excerpts from deposition transcripts of Doyle, Lavin, and Lathlean. In his affidavit, he broadly attested that he “did not learn until the summer of 2016 the nature and effect on me of the medical condition the July 11, 2011 incident on my property and its continuing sequelae had caused.” On the basis of that representation, he argued that the present action was filed well within the statutory period. On April 10, 2017, the court granted the defendants’ supplemental motion for summary judgment on the basis of the supplemental medical evidence provided to it and concluded that the statute of limitations had expired.
As we previously indicated, “once the plaintiff has discovered [his] injury, the statute begins to run.” Rosato v. Mascardo, supra, 82 Conn. App. 405. It is clear from the plaintiff‘s medical records that the plaintiff discovered that the defendants caused him injury during the events of July 11, 2011, no later than September 6, 2011. Although the plaintiff attests in his affidavit that he did not discover the injurious effect that the July 11, 2011 incident had on him until the summer of 2016, that affirmation is merely a bald statement that an issue of fact exists, not proof that supports the existence of such issue. See Brooks v. Sweeney, 299 Conn. 196, 221, 9 A.3d 347 (2010) (“[The party opposing a motion for summary judgment] must present evidence that demonstrates the existence of some disputed factual issue . . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.” [Internal quotation marks omitted.]). The plaintiff failed to recite
On the basis of the medical evidence presented by the defendants, we conclude that the plaintiff discovered some form of actionable harm in September, 2011. Because he did not bring this action until July, 2014, it is clear that it was commenced well beyond the two year limitation period. Accordingly, we conclude that the trial court properly granted the defendants’ supplemental motion for summary judgment as to his negligent infliction of emotional distress claims in counts six through eight.
III
The plaintiff‘s third claim on appeal challenges the granting of the motion for summary judgment as to his invasion of privacy claims against the defendants. He argues that the defendants “unreasonably intruded upon his seclusion” when they “proceeded to walk well beyond any claimed consent, authority, or reasonable use of an easement.” Moreover, he argues that the defendants subjected him and his family to “offensive verbal comments,” including making accusations that he was stealing water. The defendants argue that the court correctly held that as a matter of law the conduct the plaintiff alleges cannot sustain a claim of intrusion upon seclusion. We agree with the defendants.
In 1982, our Supreme Court recognized for the first time a cause of action for invasion of privacy. See Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127, 448 A.2d 1317 (1982). The court observed that “the law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone.” (Internal quotation marks omitted.) Id., 127-28, citing Prosser, Torts (4th Ed. 1971) § 117, p. 804. The court instructed that “the four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A [1977] as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other‘s name or likeness; (c) unreasonable publicity given to the other‘s private life; or (d) publicity that unreasonably places the other in a false light before the public.” Id., 128.
It is clear from the Restatement‘s language that to establish a claim for intrusion upon the seclusion of another, a plaintiff must prove three elements: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff‘s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person. See, e.g., Mauri v. Smith, 324 Or. 476, 483, 929 P.2d 307 (1996); see also Wolf v. Regardie, 553 A.2d 1213, 1217 (D.C. 1989); Swarthout v. Mutual Service Life Ins. Co., 632 N.W.2d 741, 744-45 (Minn. App. 2001).13 For there to be liability, the defendant‘s interference with the plaintiff‘s seclusion must be substantial, must be of a kind that would be highly offensive to a reasonable person, and must be a result of conduct to which a reasonable person would strongly object. See 3 Restatement (Second), supra, § 652B, comment (d). In the context of intrusion upon seclusion, questions about the reasonable person standard are ordinarily questions of fact, but they become questions of law if reasonable persons can draw only one conclusion from the evidence. See Smith v. Leuthner, 156 Conn. 422, 424-25, 242 A.2d 728 (1968).
To analyze whether the evidence created a question of fact, we will examine each of those elements in turn. The plaintiff argues that the defendants unreasonably intruded upon his seclusion by going onto his private premises. He argues that the defendants “proceeded to walk well beyond any claimed consent, authority, or reasonable use of an easement,” and subjected him and
As stated previously, the first element of the tort of invasion of privacy by intrusion upon seclusion is an intentional intrusion, physical or otherwise. Although courts often use the phrase “intentional intrusion,” the Restatement does not define it. A few courts, however, have done so. See, e.g., O‘Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 1989). In O‘Donnell, the plaintiff was a former patient of the Veterans Administration (administration), who brought an action against the administration for intrusion upon seclusion when it released a summary of his psychiatric treatment to his employer without obtaining authorization to do so. Id., 1081. The trial court granted the administration‘s motion for summary judgment. Id., 1080. In reviewing the claim on appeal, the United States Court of Appeals for the Third Circuit defined “intent” by looking to § 8 of the Restatement (Second) of Torts, which defines the term to mean “that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.” O‘Donnell v. United States, supra, 1083. Because the Restatement is devoid of any definition for the term “intrusion,” the court looked to a dictionary for guidance. Id. We follow suit. Merriam-Webster‘s Collegiate Dictionary (11th Ed. 2003) defines “intrude” to mean to thrust or force in or upon someone or something especially without permission or welcome. Moreover, the comments and illustrations to § 652B of the Restatement (Second) of Torts suggest that an intrusion upon seclusion claim typically involves a defendant who does not believe that he or she has either the necessary personal permission or legal authority to do the intrusive act. See 3 Restatement (Second), supra, § 652B, comment (b), illustrations (1)-(5).14 We thus conclude, as other courts have, that an actor commits an intentional intrusion if he believes, or is substantially certain, that he lacks the necessary legal or personal permission to commit the intrusive act. See, e.g., Mauri v. Smith, supra, 324 Or. 484; O‘Donnell v. United States, supra, 1083.
In the present case, the defendants’ submissions in support of their motion for summary judgment reflect that they believed that they had permission to service the hydrant on the plaintiff‘s property by either the easement or the tariff approved by PURA. Additionally, they provided the hydrant maintenance records from 1965 to 2004 and 2008 to 2014, which demonstrated that they had routinely maintained the hydrant on the plaintiff‘s property for decades. Even if we assume arguendo that the plaintiff was correct in that the defendants misused their easement or tariff rights and their conduct constituted a trespass, a reasonable person could not conclude on the basis of the record before us that the defendants thrusted or forced in or upon
Even if the plaintiff could demonstrate that the record was sufficient to create a question of material fact with respect to the first element, he is unable to do so with respect to the others. The second element requires that the intentional intrusion be upon the plaintiff‘s solitude or seclusion or private affairs or concerns. The plaintiff therefore must show that he had an objectively reasonable expectation of seclusion or solitude in that place. See Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 232, 955 P.2d 469 (1998). “The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff‘s room in a hotel or insists over the plaintiff‘s objection in entering his home.” 3 Restatement (Second), supra, § 652B, comment (b). Viewed in the light most favorable to the plaintiff, the submissions before the court do not support a finding that the driveway area where the defendants parked their vehicles, the area where they walked to discover and service the hydrant, or the open canopy tent located approximately ten feet from the hydrant where they found the cap, were private areas in which the plaintiff had secluded himself. At no point does the plaintiff indicate that the defendants entered his residence or that they compromised any private information or the general privacy of the plaintiff. Accordingly, the conduct the plaintiff attributes to the defendants cannot, as a matter of law, sustain the second element.
As to the third and final element of the tort, it requires that the intentional intrusion upon a plaintiff‘s solitude or seclusion be highly offensive to a reasonable person. As we noted previously, there is “no liability unless the interference with the plaintiff‘s seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object.” Id., comment (d). Viewing the evidence in the light most favorable to the plaintiff, no reasonable person could conclude that the conduct the plaintiff attributed to the defendants was highly offensive. The submissions demonstrate that the defendants, a water company and its employees, were servicing a hydrant the company had maintained for many decades. Although they walked around the plaintiff‘s property to discover the hydrant, searched in the area of the hydrant for the missing and altered cap, and allegedly accused the plaintiff of stealing water, a reasonable person would not find this conduct to be highly offensive.
IV
The plaintiff next claims that the court incorrectly granted the motion for summary judgment in favor of the defendants as to his intentional infliction of emotional distress claims (counts nine through twelve). The plaintiff argues that “[w]hile the events that occurred on July 11, 2011, may not be extreme and outrageous in and of themselves, the continued cooperation of the [defendants] with an unfounded criminal investigation along with the events on July 11, 2011, seem to rise to the standard of extreme and outrageous.” The plaintiff‘s argument is without merit, and, therefore, we affirm the judgment as to these counts.
“In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant‘s conduct was the cause of the plaintiff‘s distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). “Whether a defendant‘s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine.” Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Only where reasonable minds could disagree does it become an issue for the jury. Id.
“Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citations omitted; internal quotation marks omitted.) Id., 211.
In the present case, the materials submitted to the court in support of the defendants’ motion for summary judgment reflect that once Lathlean and Lavin located
On appeal, the plaintiff concedes that “the events that occurred on July 11, 2011, may not be extreme and outrageous,” but argues “that the continued cooperation of the [defendants] with an unfounded criminal investigation along with the events on July 11, 2011, seem to rise to the standard of extreme and outrageous.” He did not, however, make this argument in his objection to the defendants’ motion for summary judgment. Even if we were to construe these facts in the plaintiff‘s favor and consider this argument as a ground against rendering summary judgment, the defendants’ mere cooperation with a criminal investigation that the state pursued does not constitute conduct that is so atrocious as to exceed all bounds usually tolerated by a decent society. See, e.g., Tracy v. New Milford Public Schools, 101 Conn. App. 560, 567-70, 922 A.2d 280 (conduct not outrageous where plaintiff‘s supervisor conspired with superintendent in pattern of harassment including denial of position, initiating disciplinary actions without proper investigation, defamation of character and intimidation), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). Accordingly, the defendants’ conduct is insufficient to form the basis for an action for intentional infliction of emotional distress, and, thus, the trial court properly granted the motion for summary judgment as to counts nine through twelve.
V
In the plaintiff‘s final claim, he argues that the court improperly granted the motion for summary judgment in favor of Aquarion as to his CUTPA claim (count seventeen). He argues that he suffered an ascertainable loss and that “the collective acts of [the defendants] raise a sufficient question of material fact such that it could be found that [Aquarion] engaged in tortious conduct and, therefore, also violated the first criteria of the cigarette rule.”16 We disagree.
It is well settled that our Supreme Court has adopted the criteria set out in the so-called cigarette rule by the Federal Trade Commission for determining when a practice is unfair: “(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy. . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . . .” (Internal quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 409-10, 78 A.3d 76 (2013).
In his complaint, the plaintiff alleged that the “conduct of [Aquarion] by and through its . . . employees constitutes a violation of [CUTPA] including its aforesaid conduct to cover the wrongful conduct of its employees by taking and approving unwarranted destructive action against the plaintiff; was unfair and abuse of the law and the authority of a public utility, immoral, unethical, oppressive, and unscrupulous conduct which caused substantial injury to the plaintiff, one of its customers. Such acts include claiming it had an easement and had only remained on that easement when in fact none existed or it significantly trespassed in an area where it should not have been, without permission and over strenuous objection as aforesaid.”
In the defendants’ memorandum of law in support of their motion for summary judgment, they argued, inter alia, that the plaintiff did not suffer any ascertain-
On appeal, the plaintiff argues that he clearly stated during the discovery process “that a portion of the damages that he sustained are both ‘punitive damages and attorney‘s fees.’ ” He then concludes that “the ascertainable loss [he] suffered . . . [is] both the emotional harm and the incurred attorney‘s fees that stem from the tortious conduct of the defendants.”
Here, although the plaintiff suggests that “punitive damages and attorney‘s fees” are sufficient to fulfill the ascertainable loss requirement under CUTPA, he has provided no authority for this contention. Punitive damages and attorney‘s fees are remedies under CUTPA. See Freeman v. A Better Way Wholesale Autos, Inc., 174 Conn. App. 649, 668, 166 A.3d 857 (“A court may exercise its discretion to award punitive damages to a party who has suffered any ascertainable loss pursuant to CUTPA. . . . Accordingly, when the trial court finds that the defendant has acted recklessly, [a]warding punitive damages and attorney‘s fees under CUTPA is discretionary . . . .” [Citation omitted; internal quotation marks omitted.]), cert. denied, 327 Conn. 927, 171 A.3d 60 (2017). As our Supreme Court has made clear, “[t]he ascertainable loss requirement . . . is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief.” (Internal quotation marks omitted.) Marinos v. Poirot, 308 Conn. 706, 713, 66 A.3d 860 (2013). Thus, punitive damages and attorney‘s fees, which are potential remedies available to a plaintiff once he meets this threshold barrier and prevails on his CUTPA claim, cannot be the basis of demonstrating ascertainable loss. To hold otherwise essentially would eliminate the ascertainable loss requirement.
As to the plaintiff‘s contention that his emotional harm can fulfill the ascertainable loss requirement, we have explicitly held that a “claim of emotional distress does not constitute an ascertainable loss of money or
The judgments are affirmed.
In this opinion the other judges concurred.