Superior Court of Connecticut, Judicial District of New Haven, New Haven
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#109)
Robin L. Wilson, J.
The plaintiff, Michele Corniello, filed an eight-count complaint in this action against the defendants, Fuzion Medical Aesthetic Boutique, LLC (Fuzion), and Kathryn Midgley (Midgley) on November 24, 2014. The complaint, which sounds in, inter alia, invasion of privacy, negligent infliction of emotional distress, negligent supervision, breach of contract, and defamation, alleges the following relevant facts. The defendant is a limited liability company located in Branford, Connecticut. The defendant operates as a medical aesthetic facility, providing medical treatment and procedures to patients. At all relevant times, Midgley owned 40 percent of the membership units of Fuzion, while David Goodkind, M.D. (Goodkind) owned 60 percent of the membership units. In addition to an ownership interest, Midgley was also an employee of Fuzion and possessed significant knowledge of and access to Fuzion's confidential records, including the private and confidential records of its patients. At all relevant times, Fuzion and Midgley owed a duty of care and a continuing obligation of privacy, security, and confidentiality with respect to the medical records of its clients and patients.
On or about February 22, 2014, Midgley was terminated from her employment with Fuzion, but at all times remained a 40 percent owner of Fuzion. On or about March 23, 2014, Midgley posted on her public Facebook account a notice indicating that she was no longer with Fuzion, but that she was still practicing aesthetic medicine, and starting a new business. Midgley's Facebook post included " before and after" photographs of patients who received aesthetic medical treatment at Fuzion. The plaintiff was a client and patient at Fuzion, and the photographs depicting her likeness " before and after, " were part of the plaintiff's personal and confidential medical file. Said file was at all times within the possession and control of Fuzion and Midgley.
On or about May 1, 2014, Midgley published and distributed a printed flyer advertising a " botox party." This flyer contained the " before and after" photographs of the plaintiff, without the plaintiff's consent or authorization. Midgley posted, displayed, and distributed the printed flyer containing the unauthorized photographs throughout Branford, Connecticut, other towns in Connecticut, and cities and towns in Massachusetts. The plaintiff seeks compensatory and punitive damages.
The defendant filed a motion to strike on April 6, 2015, which was supported by a memorandum of law. On May 1, 2015, the plaintiff filed a memorandum objecting to the defendant's motion to strike. This matter was heard at short calendar on June 1, 2015.
" Whenever a party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). " [A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. City of Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). " A motion to strike " admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
" It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
Invasion of Privacy
In the second count of her complaint, the plaintiff alleges that Fuzion had a continuing obligation to protect her right of privacy concerning the medical procedures and treatments that the plaintiff received, and that Fuzion failed and neglected to protect the contents of the plaintiff's medical file from public disclosure and dissemination, which caused the plaintiff to suffer public embarrassment, ridicule, illness, upset and injury to her reputation as well as a loss of income and disruption to her business interests. In its motion to strike, Fuzion argues that the plaintiff's complaint fails to allege that such an appropriation was for the benefit or advantage of Fuzion.
" [T]he 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.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 448 A.2d 1317 (1982). " The four categories of invasion of privacy are . . . (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. The plaintiff here has not specifically alleged which invasion of privacy interest Fuzion here has violated. Accordingly, the court will look at each of those four categories of interest in turn.
" The Connecticut Appellate Court has yet to interpret what constitutes an invasion of privacy under the first category: an unreasonable intrusion upon the seclusion of another . . . The Supreme Court, however, has often adopted the Restatement when adjudicating an invasion of privacy claim . . . and the Superior Court has consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another." (Citations omitted; internal quotation marks omitted.) Gleason v. Smolinski, Superior Court, judicial district of New Haven, Docket No. CV-06-500005107-S, 2012 Conn. Super. LEXIS 2086 (July 20, 2009, Wilson, J.). This court will therefore do the same.
Section 652B of the Restatement (Second) of Torts provides: " [o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." " [T]he form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man." 3 Restatement (Second), Torts § 652B, p. 378 (1977).
" The defendant is subject to liability under the rule stated in [the Restatement] Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters." Gleason v. Smolinski, ...