determining whether or not a violation is de minimis include
whether there is actual financial loss to the plaintiff or
profit to the defendant. See Nalley, 53 F.3d at 653-54. In
assessing whether the plaintiff is entitled to any damages, the
court should look at the "totality of facts and circumstances."
Shaver, 799 F. Supp. at 580.
Although this Court concludes that there has been a violation
of the Federal Wiretap Act by the defendants, the Court finds
this violation de minimis: plaintiffs have not proven that the
recording device was operational for an extended period of time,
there was no proof that a substantial number of telephone
conversations were intercepted, and one of Devino's purposes was
to prove that Roger Devino's faith in Schmidt was misplaced.
Accordingly, the Court awards no statutory damages to either
2. PUNITIVE DAMAGES
Punitive damages, however, are more appropriate under these
circumstances. Punitive damages are traditionally designed to
punish and deter and may exceed actual loss. See Jacobson v.
Rose, 592 F.2d 515, 520 (9th Cir. 1978), cert. denied,
442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979). Punitive damages
are warranted where plaintiff can prove "a wanton, reckless, or
malicious violation." Deal v. Spears, 980 F.2d 1153, 1159 (8th
Cir. 1992) (citation omitted). Malicious is defined as "wrongful
and done intentionally without just cause or excuse or as a
result of ill will." BLACK'S LAW DICTIONARY 958 (6th ed. 1991).
The Deal court found that punitive damages were not
appropriate on the facts presented: defendants had lost $16,000
by theft which was described by the court as a serious blow to
their business; plaintiff carried on frequent, lengthy, and
inappropriate conversations while at work and in front of
defendants' customers; and the court opined that the defendants
were not taping plaintiff to get "dirt" on her but believed
their business interests truly justified the recording. Deal,
980 F.2d at 1159.
In the case before this Court, and as noted earlier, the
reason given for the wiretap was that Devino sought to prove to
his brother Roger that his trust in Schmidt was unwarranted.
Based on the testimony at trial, the Court finds that this is
not the only reason for the wiretap. It is evident to the Court
that Devino's business concerns were coupled with animosity
directed towards Schmidt. In the late 1980's, when defendant
Kenneth Devino became involved in Devino Fuels, Schmidt
described Devino's management style towards him as "dictatorial"
and "controlling." Devino, referring to a period in the early to
mid-1980's and well before Devino's active involvement in Devino
Fuels, admitted to "f[inding] issue" with Schmidt's involvement
in other pursuits and watching these pursuits closely. After
culling Schmidt's phone call box and noting calls from Schmidt's
political connections, Devino instructed two receptionists to
keep track of all Schmidt's calls, noting who called and whether
or not the call was business related. It appears that Roger's
protection of Schmidt was a source of irritation to Devino.
Although Devino may have had legitimate business interests,
there was clearly an air of bad feeling between Devino and
Schmidt. In addition to protecting his business interests,
Devino had the added bonus of humiliating Schmidt, a long-term
employee of Devino Fuels. Accordingly, punitive damages are
awarded to Schmidt in the amount of $2,500. Punitive damages are
not appropriate for Hanahan.
C. VIOLATION OF CONN.GEN. STAT. § 54-41R
The Connecticut Wiretapping and Electronic Surveillance Act
[State Wiretap Act] provides that "[a]ny person whose wire
communication is intercepted . . . shall (1) have a civil cause
of action against any person who intercepts, . . . and (2) be
entitled to recover from any such person actual damages but not
less than liquidated damages computed at the rate of one hundred
dollars per day for each day of violation or one thousand
dollars, whichever is higher; punitive damages; and a reasonable
attorney's fee and other litigation costs reasonably incurred."
CONN.GEN. STAT. § 54-41r.
Plaintiffs claim entitlement to damages pursuant to the State
Wiretap Act, relying on the same analysis as was utilized under
18 U.S.C. § 2510-20. Defendants counter that the plain language
of CONN.GEN.STAT. § 54-41r requires proof that one or more of
the plaintiffs conversations were "intercepted, disclosed, or
used." Defendants argue that without such proof, judgment should
enter for defendants.
It has been noted that the State Wiretap Act is to be
interpreted similarly to the Federal Wiretap Act.*fn7 See In
re State Police Litig., 888 F. Supp. 1235, 1269 (Conn. 1995)
(citations omitted), appeal dismissed, 88 F.3d 111 (2d Cir.
1996); Crooker v. U.S. Dep't of Justice, 497 F. Supp. 500, 504
n. 5 (Conn. 1980). In fact, the State Wiretap Act was patterned
after the Federal Wiretap Act and thus the analysis for the
federal statute is equally applicable to the Connecticut
statute. See State Police Litig., 888 F. Supp. at 1269
(citation omitted); Crooker, 497 F. Supp. at 504 n. 5.
As set forth in Section II.B.1. supra, the Court has
concluded that Devino intercepted Schmidt's telephone calls some
time during the latter half of 1992, the exact time frame still
unknown. Therefore, defendants violated the State Wiretap Act
and in accordance with CONN.GEN.STAT. § 54-41r, the Court awards
$1,000 to plaintiff Schmidt and $1,000 to plaintiff Hanahan.
D. STATE COMMON LAW CLAIM: INVASION OF PRIVACY
The four forms of invasion of privacy set forth in the
Restatement (Second) of Torts are recognized by Connecticut.
See State Police Litig., 888 F. Supp. at 1270 (citations
omitted). The four actionable areas include: (1) intrusion upon
the plaintiffs seclusion or private affairs; (2) disclosure of
embarrassing private facts about the plaintiff; (3) publishing
false derogatory statements about the plaintiff; and (4)
commercial appropriation of the plaintiffs likeness. See Smith
v. City of Hartford, 2000 WL 1058877 at *10 (Conn.Super. July
14, 2000) (citation omitted). Although plaintiffs do not assert
the form of invasion of privacy relevant to this action, the
Court finds that the only form applicable would be the intrusion
upon Schmidt's seclusion or private affairs. The invasion of
privacy by unreasonable intrusion upon the seclusion of another
has been defined as:
One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another
or his private affairs or concerns, is subject to
the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable
State Police Litig., 888 F. Supp. at 1270 (citations omitted).
In that decision, the court continued: "[i]t is persuasive that
`[o]ne's seclusion may be as much disrupted by the presence of
an electronic ear in a setting where one would normally expect
to be alone as it is by the presence of a human ear in the same
place.'" See id. (citation omitted). The Connecticut appellate
courts have not yet interpreted what constitutes an invasion of
privacy under a cause of action for intrusion upon one's
seclusion or private affairs. See Bonanno v. Dan Perkins
Chevrolet, 2000 WL 192182, 2000 Conn.Super. LEXIS 289, at *3
(Conn.Super. Feb. 4, 2000).
Defendants argue that if the Court finds that conversations
were recorded, then these recordings made by an employer during
business hours merely to determine if the employee was using the
telephone for unauthorized purposes do not meet the "highly
offensive to a reasonable [person]" standard.
After reviewing the facts and testimony before this Court,
Schmidt can hardly propose that his surroundings gave him any
expectation of privacy. Schmidt was required to keep his office
door open, and he believed the secretary stationed outside his
door was listening to his calls and telling Devino the substance
of his conversations. Although under normal circumstances a
wiretap on an office telephone could be "highly offensive to a
reasonable [person]," the circumstances on Mattoon Road were far
from normal. For these reasons, judgment shall enter for
defendants for invasion of privacy.
Accordingly, for the reasons stated above, judgment shall
enter as follows: with regard to the First Cause of Action, for
plaintiff Schmidt in the amount of $2,500 for punitive damages
only and for defendants in all other respects; with regard to
the Second Cause of Action, for plaintiff Schmidt and plaintiff
Hanahan in the amount of $1,000 each; and with regard to the
Fourth and Fifth Causes of Action, for defendants.*fn8