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Kruger v. Grauer

Court of Appeals of Connecticut

June 6, 2017

NATHAN KRUGER
v.
AVERY GRAUER

          Argued December 12, 2016

         Appeal from Superior Court, judicial district of New Haven, Wilson, J.

          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).

          Lavine, Prescott and Mullins, Js.

          OPINION

          MULLINS, J.

         The defendant, Avery Grauer, appeals from the judgment of the trial court denying her motion for summary judgment.[1] The issue in this appeal is whether the court properly concluded that the defendant was not entitled to absolute immunity on the basis of the litigation privilege for reports of child sexual abuse that she made to the Department of Children and Families (department). We conclude that, even if we were to assume, without deciding, that individuals who make such reports were entitled to absolute immunity at common law, the legislature has abrogated that common-law immunity by affording only qualified immunity to those who report abuse or neglect pursuant to General Statutes § 17a-101e (b).[2] Accordingly, we affirm the judgment of the trial court.

         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 have the parties' son repeat the allegations to his therapist, David Meyers, at his next therapy appointment. They would then seek Meyers' opinion as to whether filing a report was necessary. Later that day, the defendant composed an e-mail describing the son's purported allegations and sent it to Meyers.

         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 alleged that the statements ‘‘were made in truth.'' The plaintiff filed a reply denying the allegations of the defendant's special defenses.

         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 § 17a-101e (b), which provides in relevant part: ‘‘Any person . . . [who] in good faith, makes, or in good faith does not make . . . [a report of suspected child abuse to the department] . . . shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed . . . .'' (Emphasis added.) Thus, in light of this statute, the court stated that it ...


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