Crismale v. Walston , 184 Conn. App. 1 ( 2018 )

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NICHOLAS CRISMALE v. CHRISTOPHER ANDREW
WALSTON ET AL.
(AC 40026)
Lavine, Elgo and Bright, Js.
Syllabus
The plaintiff, a commercial fisherman, sought to recover damages from the
named defendant, W, a seasonal fisherman, for defamation and malicious
prosecution, alleging that W falsely and maliciously stated to enforce-
ment officers of the Department of Energy and Environmental Protection
that the plaintiff was trespassing on W’s clam beds and stealing his
clams. The plaintiff further alleged that, as a result of those statements,
the plaintiff was arrested on charges for which he later was found not
guilty. Following the plaintiff’s arrest, W also told a newspaper reporter:
‘‘I nailed him, and I nailed him good.’’ The plaintiff alleged that W was
liable for slander for his statements to the enforcement officers and for
his statement to the reporter, and that he was liable for malicious
prosecution for reporting the plaintiff’s alleged conduct to the enforce-
ment officers. The trial court granted W’s motion for summary judgment,
concluding, as to the plaintiff’s claim for malicious prosecution, that W
did not initiate or procure the criminal proceedings against the plaintiff,
and that the arrest and prosecution were based on independent findings
of probable cause by the enforcement officers. On the plaintiff’s appeal
to this court, held:
1. The plaintiff could not prevail on his claim that there were genuine issues
of material fact as to whether W acted with malice when he reported
to the enforcement officers that the plaintiff was trespassing on his
clam beds and stealing his claims, which was based on his claim that
issues of material fact existed as to whether the qualified privilege,
which protected W’s statements to the enforcement officers, could be
defeated because the statements were made with malice: W produced
evidence that demonstrated that he had a reasonable and good faith
belief that the plaintiff was trespassing and stealing when he spoke with
the enforcement officers, including an affidavit in which W attested
that he saw the plaintiff, through binoculars, operating his boat on W’s
shellfishing lot and that he saw that clams were being harvested on the
boat, affidavits in which enforcement officers, who determined that
there was probable cause to arrest the plaintiff, attested that the plaintiff
was on W’s lot and that he was shellfishing on that lot, and deposition
testimony from the plaintiff’s workers that they had been harvesting
clams until the enforcement officers approached the boat, and although
the plaintiff submitted evidence that could demonstrate that he was not
actively shellfishing on W’s lot at the time of W’s complaint to the
department, that evidence did nothing to demonstrate that W did not
have a reasonable and good faith belief that the plaintiff was shellfishing
on W’s lot; accordingly, the trial court properly determined that there
was no evidence that W abused his privilege by acting with malice when
he reported to the enforcement officers that the plaintiff was trespassing,
shellfishing on his lot and stealing clams.
2. The plaintiff could not prevail on his claim that the trial court improperly
rendered summary judgment on his slander claim, on the basis of W’s
statement to the newspaper reporter, after concluding that the statement
was an opinion on a matter of public concern, namely, the plaintiff’s
arrest, that was protected by the fair comment privilege; although W’s
statement to the newspaper reporter was a statement of fact rather than
an opinion of what might happen at the plaintiff’s criminal trial, as W,
in making his statement, was telling the reporter that he was the person
responsible for alerting the authorities to the plaintiff’s activities and
that he detected those activities and exposed them to the enforcement
officers, the uncontested facts established the truth of W’s statement
of fact, which created an absolute bar to the plaintiff’s claim of slander,
and, thus, summary judgment was appropriate as to that count.
3. The plaintiff’s claim that there was a genuine issue of material fact as to
whether W provided misleading information to the department, which
induced the enforcement officers to arrest the plaintiff, was unavailing;
W did not initiate the plaintiff’s arrest but, rather, merely reported what
he had seen to the department and its enforcement officers, who then
arrested the plaintiff after having conducted their own investigation,
which resulted in a finding of probable cause that one or more crimes
had been committed, and the plaintiff did not produce any evidence to
challenge the evidence produced by W that he had acted with probable
cause and without malice in reporting the plaintiff’s activities to the
enforcement officers.
(One judge concurring separately)
Argued April 10—officially released August 7, 2018
Procedural History
Action to recover damages for, inter alia, defamation,
and for other relief, brought to the Superior Court in
the judicial district of New Haven, where the court,
Wilson, J., granted the motion for summary judgment
filed by the defendant Jeffrey Samorajczyk et al. and
rendered judgment thereon; thereafter, the court
granted the named defendant’s motion for summary
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Jennifer Antognini-O’Neill, for the appellant
(plaintiff).
Christian A. Sterling, for the appellee (named
defendant).
Opinion
BRIGHT, J. In this action alleging slander and mali-
cious prosecution, the plaintiff, Nicholas Crismale,
appeals from the summary judgment rendered by the
trial court in favor of the defendant Christopher Andrew
Walston.1 The plaintiff claims that the trial court errone-
ously concluded that the defendant’s statements were
privileged and that there was no evidence that the defen-
dant acted with malice. We affirm the judgment of the
trial court.
In his complaint, the plaintiff alleges the following:
He is a commercial fisherman, and the defendant is a
seasonal shell fisherman. On December 14, 2011, the
defendant stated to Jeffrey Samorajczyk and Todd
Aaron Chemacki, enforcement officers with the Depart-
ment of Energy and Environmental Protection (depart-
ment), whom the plaintiff also brought an action against
in their individual capacities; see footnote 1 of this
opinion; that the plaintiff was trespassing on the defen-
dant’s clam beds and stealing his clams. The defendant
knew that the plaintiff ‘‘was innocent,’’ however. As a
result of the defendant’s statements to the enforcement
officers, the plaintiff was arrested on charges for which
he later was found not guilty. The plaintiff suffered
economic losses by having to defend himself, and he
suffered anxiety and humiliation. The defendant also
told a reporter for the Hartford Courant (reporter), fol-
lowing the plaintiff’s arrest: ‘‘I nailed him, and I nailed
him good.’’ On the basis of these facts, the plaintiff
alleged that the defendant was liable for slander for
his statements to the enforcement officers and for his
statement to the reporter, and he was liable for mali-
cious prosecution for reporting the plaintiff’s alleged
conduct to the enforcement officers.
In response to the plaintiff’s complaint, the defendant
filed an answer and two special defenses. In his first
special defense, which addressed both the slander
count and the malicious prosecution count, the defen-
dant claimed that his statements to the enforcement
officers and the reporter were privileged because they
‘‘were made in good faith, without malice, in an honest
belief in the truth of the statement, and in discharge of
a public or private duty.’’ Specifically, as to the allega-
tion that he had slandered the plaintiff by his comment
to the reporter, the defendant claimed that this state-
ment also was privileged because it was his opinion,
which was based on a true fact. In his second special
defense, which specifically addressed the malicious
prosecution count, the defendant claimed that he had
acted lawfully and with probable cause under the cir-
cumstances, and that he acted without malice, merely
intending to bring the plaintiff to justice using the
proper legal channels to report his information. The
plaintiff pleaded a general denial in response to these
defenses.2
On March 7, 2016, the defendant filed a motion for
summary judgment on the ground that there were no
genuine issues of material fact and that he was entitled
to judgment as a matter of law. Specifically, as to count
one, slander, the defendant argued that his statements
to the enforcement officers were ‘‘subject to qualified
immunity and [were] not made with malice . . . .’’ As
to his statement to the reporter, he argued that this
statement was ‘‘privileged and does not qualify as defa-
mation since . . . [it] was an opinion and statements
of opinion are not considered slanderous.’’ (Emphasis
in original.) As to count two, malicious prosecution,
the defendant argued that ‘‘he did not initiate or procure
the institution of criminal proceedings against the plain-
tiff, he acted with probable cause, and there was no
malice.’’ In support of his motion for summary judg-
ment, the defendant submitted: his own affidavit; the
plaintiff’s December 24, 2014 responses to interrogato-
ries and requests for production; affidavits of Samorajc-
zyk and Chemacki; deposition excerpts of the plaintiff’s
workers, Hector Avila, Santos Bertrand, and Sandoval
Maynor; and an excerpt from the plaintiff’s deposition.
The plaintiff filed an opposition to the defendant’s
motion for summary judgment, arguing that there were
issues of material fact as to both remaining counts of
his complaint. He attached, in support of his opposition:
excerpts of testimony from his criminal trial; the affida-
vits of Samorajczyk and Chemacki; portions of the
plaintiff’s deposition; the misdemeanor summons
issued to him; the transcript of the department’s emer-
gency dispatch call from the defendant and its dispatch
call to enforcement officers;3 and the reporter’s article,
which had been published in the Hartford Courant. Oral
argument on the motion and the objection thereto was
heard on September 12, 2016.
On December 27, 2016, the trial court granted the
defendant’s motion for summary judgment. As to the
cause of action sounding in slander for the defendant’s
statements to the enforcement officers, the court con-
cluded that the statements were entitled to a qualified
privilege because they were made to law enforcement,
in good faith and without malice, after the defendant
saw the plaintiff, through binoculars, on his shellfishing
lot. As to the defendant’s statement to the reporter,
which was made after the plaintiff had been arrested,
the court concluded, in relevant part, that this statement
was entitled to the ‘‘fair comment’’ privilege as a state-
ment of opinion on a matter of public concern namely,
the plaintiff’s arrest, and that the statement amounted
to the defendant’s opinion of what had occurred.4
Finally, as to the plaintiff’s count for malicious prosecu-
tion, the court concluded that, on the basis of the sworn
affidavits of the arresting enforcement officers,
attesting that there was probable cause to support the
arrest of the plaintiff, and the absence of any evidence
from the plaintiff that was contrary to those attesta-
tions, the defendant did not initiate or procure the crimi-
nal proceedings against the plaintiff, and that the arrest
and prosecution were based on independent findings
of probable cause by the enforcement officers. This
appeal followed.
‘‘The standard of review of a trial court’s decision
granting summary judgment is well established. Prac-
tice Book § 17-49 provides that 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. In deciding
a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party moving for summary
judgment has the burden of showing the absence of
any genuine issue of material fact and that the party
is, therefore, entitled to judgment as a matter of law.
. . . Our review of the trial court’s decision to grant
the defendant’s motion for summary judgment is ple-
nary. . . . 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 set out in the memorandum of decision of
the trial court.’’ (Internal quotation marks omitted.) St.
Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148
(2017).
The plaintiff claims that the court erred in the follow-
ing ways when rendering summary judgment: (1) as to
his allegation of slander based on the defendant’s report
to enforcement officers, the plaintiff claims that there
were genuine issues of material fact as to whether the
defendant acted with malice in reporting that the plain-
tiff was trespassing on his clam beds and stealing his
clams; (2) as to the allegations of slander based on
the defendant’s statement to the reporter, the plaintiff
claims that the court erred as a matter of law in conclud-
ing that the comments were entitled to the fair comment
privilege because they were opinion on a matter of
public interest, rather than factual assertions; and (3)
as to the count for malicious prosecution, the plaintiff
claims that there were genuine issues of material fact
as to whether the defendant acted with malice when
he provided misleading information to the department,
which resulted in the plaintiff’s arrest. We consider each
claim in turn.
I
DEFAMATION BY SLANDER
The plaintiff claims that the court improperly ren-
dered summary judgment on the first count of his com-
plaint, which sounds in slander. He argues that there
were genuine issues of material fact as to whether the
defendant had acted with malice when he (1) reported
to the enforcement officers that the plaintiff was tres-
passing on his clam beds and stealing his clams, and
(2) when he provided a statement to the reporter. We
are not persuaded.
‘‘Although defamation5 claims are rooted in the state
common law, their elements are heavily influenced by
the minimum standards required by the [f]irst [a]mend-
ment. . . . At common law, [t]o establish a prima facie
case of defamation, the plaintiff must demonstrate that:
(1) the defendant published a defamatory statement;
(2) the defamatory statement identified the plaintiff to
a third person; (3) the defamatory statement was pub-
lished to a third person; and (4) the plaintiff’s reputation
suffered injury as a result of the statement. . . .
‘‘A defamatory statement is defined as a communica-
tion that tends to harm the reputation of another as to
lower him in the estimation of the community or to
deter third persons from associating or dealing with
him . . . . It is well settled that for a claim of defama-
tion to be actionable, the statement must be false . . .
and under the common law, truth is an affirmative
defense to defamation . . . [and] the determination of
the truthfulness of a statement is a question of fact for
the jury. . . . Each statement furnishes a separate
cause of action and requires proof of each of the ele-
ments for defamation. . . .
‘‘Beyond these common-law principles, there are
numerous federal constitutional restrictions that gov-
ern the proof of the tort of defamation, the applicability
of which varies with (a) the status of the plaintiff as a
public or private figure, and (b) whether the subject of
the speech is a matter of public or private concern.
Thus, there are four possibilities: (1) public person/
public matter, (2) private person/public matter, (3) pub-
lic person/private matter, and (4) private person/private
matter. . . . The . . . elements of defamation, includ-
ing the subsidiary historical facts, are . . . subject to
proof under the preponderance of the evidence stan-
dard.’’ (Citations omitted; footnote in original; footnote
omitted; internal quotation marks omitted.) Gleason v.
Smolinski, 319 Conn. 394, 430–32, 125 A.3d 920 (2015).
‘‘With respect to common-law privilege defenses, we
note by way of background, that [a] defendant may
shield himself from liability for defamation by asserting
the defense that the communication is protected by a
qualified privilege. . . . When considering whether a
qualified privilege protects a defendant in a defamation
case, the court must resolve two inquiries. . . . The
first is whether the privilege applies, which is a question
of law over which our review is plenary. . . . The sec-
ond is whether the applicable privilege nevertheless
has been defeated through its abuse, which is a question
of fact.’’ (Internal quotation marks omitted.) Id., 432
n.32.
 ‘‘Qualified privileges may be defeated by a showing,
by a preponderance of the evidence; see Miles v. Perry,
[11 Conn. App. 584, 590, 529 A.2d 199 (1987)]; of actual
malice, also known as constitutional malice, or malice
in fact. See, e.g., Gambardella v. Apple Health Care,
Inc., [291 Conn. 620, 634, 969 A.2d 736 (2009)] (common-
law intracorporate communications privilege); Good-
rich v. Waterbury Republican-American, Inc., [188
Conn. 107, 114–15, 119–20, 448 A.2d 1317 (1982)] (fair
comment privilege); see also Konikoff v. Prudential
Ins. Co. of America, 234 F.3d 92, 99 (2d Cir. 2000)
(‘[t]he critical difference between common-law malice
and constitutional malice, then, is that the former
focuses on the defendant’s attitude toward the plaintiff,
the latter on the defendant’s attitude toward the truth’).’’
Gleason v. Smolinski, supra, 319 Conn. 433 n.32.
‘‘[M]alice is not restricted to hatred, spite or ill will
against a plaintiff, but includes any improper or unjusti-
fiable motive. . . . [A] qualified privilege is lost upon
a showing of either actual malice, i.e., publication of a
false statement with actual knowledge of its falsity or
reckless disregard for its truth, or malice in fact, i.e.,
publication of a false statement with bad faith or
improper motive. . . . Indeed . . . a showing of
either actual malice or malice in fact suffices to defeat
a qualified privilege in defamation cases . . . .’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) Gambardella v. Apple Health Care,
Inc., supra, 291 Conn. 630–31. ‘‘[A]ctual malice requires
a showing that a statement was made with knowledge
that it was false or with reckless disregard for its truth.
. . . A negligent misstatement of fact will not suffice;
the evidence must demonstrate a purposeful avoidance
of the truth. . . . Further, proof that a defamatory
falsehood has been uttered with bad or corrupt motive
or with an intent to inflict harm will not be sufficient
to support a finding of actual malice . . . although
such evidence may assist in drawing an inference of
knowledge or reckless disregard of falsity.’’ (Citations
omitted; internal quotation marks omitted.) Id., 637–38.
A
The Defendant’s Report to the Enforcement Officers
The plaintiff claims that the court improperly ren-
dered summary judgment on his claim for slander on
the ground that there were genuine issues of material
fact regarding whether the defendant had acted with
malice when he reported to the enforcement officers
that the plaintiff was trespassing on his clam beds and
stealing his clams. The plaintiff concedes that the state-
ments to the enforcement officers were entitled to pro-
tection by a qualified privilege. He contends, however,
that there are genuine issues of material fact as to
whether the privilege could be defeated because the
defendant’s statements were made with malice. The
defendant argues that the plaintiff failed to produce any
evidence to substantiate his malice assertion while, in
contrast, the defendant produced various affidavits and
other evidence that demonstrate that he had a reason-
able and good faith belief that the plaintiff was tres-
passing and stealing when he spoke with the
enforcement officers. We agree with the defendant.
Among the evidence submitted by the defendant in
support of his motion for summary judgment was his
own affidavit in which he averred, in relevant part, that:
he leased shellfishing lot 562 in the Long Island Sound,
he has used that lot for several years, and he is very
familiar with its location from the coast; he watches
boats from the shoreline, through his binoculars, and
he has viewed boat activity crossing his leased lot; on
December 14, 2011, he was looking at Long Island Sound
through his binoculars when he saw the plaintiff’s boat,
operated by the plaintiff, harvesting clams on lot 562,
and he observed this activity for more than thirty
minutes; on the basis of these observations, he called
the department and reported what he had witnessed;
and enforcement officers later arrived at the boat.
The defendant also submitted the affidavit of Chem-
acki, which provided in relevant part: he has been an
enforcement officer with the department since 1999;
he enforces shellfishing laws on Long Island Sound; on
December 14, 2011, he and Samorajczyk responded, in
uniform and by police boat, to a complaint that had been
made to the department dispatch regarding commercial
shellfishing activity; he saw a boat, actively harvesting
shellfish with its dredge in water, pulling up clams on
a conveyer belt, with workers engaged in activity in
the sorting area; the boat was being operated by the
plaintiff; he recorded GPS navigation coordinates,
which showed the boat to be on lot 562, which was
leased by the defendant; the plaintiff could not produce
his shellfishing license, which he was required to keep
on board the boat while engaged in harvesting shellfish;
and he concluded that there was probable cause that
the plaintiff had engaged in activity that violated the
law, including harvesting shellfish while on lot 562.
The defendant also submitted the affidavit of Samora-
jczyk, which provided in relevant part: he has been
employed as an enforcement officer for the department
since 1999 and he enforces the shellfishing laws along
Long Island Sound; on December 14, 2011, he responded
to a complaint that had been received by dispatch
regarding commercial shellfishing; he contacted the
defendant by telephone; the defendant told him that
the plaintiff was actively harvesting clams on the defen-
dant’s lot; he saw the plaintiff’s boat actively harvesting
shellfish with its dredge in water, pulling up clams on
a conveyer belt, with workers sorting the clams; the
plaintiff was operating the boat; he asked the plaintiff
where he was harvesting, and the plaintiff responded
that he was harvesting on lot 44 but that he was off lot
by a couple hundred feet; the plaintiff did not have a
shellfishing license onboard; and he concluded that
there was probable cause to arrest the plaintiff for,
among other things, illegally harvesting clams on lot
562.
The defendant also attached the deposition testimony
of some of the plaintiff’s workers, including Avila. In
his deposition, Avila stated in relevant part that they
had been actively harvesting clams up until when the
enforcement officers approached the boat. He further
testified that the conveyor belt that brought the clams
from the ocean floor onto the deck of the boat was
running until the enforcement officers boarded the
boat, known as the Mighty Maxx. Bertrand and Maynor
testified similarly in their respective depositions.
In opposition to the defendant’s motion for summary
judgment, the plaintiff submitted, among other things, a
portion of the defendant’s testimony from the plaintiff’s
criminal trial, which provided in relevant part: the
defendant, while standing on the shoreline with binocu-
lars, saw the plaintiff’s boat from approximately 500
yards away; he could see the plaintiff operating the
boat; he saw that both dredges were on the bottom
and that the workers were culling clams; the boat was
moving; the size of the defendant’s lot is twenty acres;
the boat was moving in and out of the entire twenty
acres; he watched the boat for approximately one hour;
and he called the department and reported what he saw.
The plaintiff also submitted a portion of his own
testimony from his criminal trial, which provided in
relevant part: he was off his lot on the day in question
because he was turning around his boat; while he was
turning around his boat, the dredge was up, off the
bottom; there is a lot of speculation about the operation
of his boat because it has new technology that is unfa-
miliar to most fishermen; and he was not clamming off
his lot.
The plaintiff also submitted a portion of his own
deposition testimony, which provided in relevant part:
he was not harvesting clams or using the dredge when
the enforcement officers approached the boat, but there
were residual clams still making their way to the belt,
which is twenty-seven feet long; he was not on the
defendant’s lot; and the defendant falsely and mali-
ciously told enforcement officers that the plaintiff was
trespassing on his clam beds and stealing his clams.
The plaintiff also submitted the Hartford Courant
article on his arrest and prosecution, and he submitted
an unauthenticated transcript of the dispatch report
from the department, which the court declined to con-
sider. See footnote 3 of this opinion.
Viewing this evidence in the light most favorable to
the plaintiff, we conclude that the plaintiff submitted
no evidence in response to that submitted by the defen-
dant to establish a genuine issue of material fact as to
whether the defendant abused his privilege by acting
with malice when he reported to the enforcement offi-
cers that the plaintiff was trespassing on his shellfishing
lot and stealing his clams. The defendant submitted an
affidavit in which he attested that he saw the plaintiff,
through binoculars, operating his boat on the defen-
dant’s shellfishing lot and that he saw that clams were
being harvested on the boat. The defendant then
reported what he saw to the department and to enforce-
ment officers, who responded by going to the plaintiff’s
boat. The officers attested that the plaintiff, in fact, was
on the defendant’s lot and that he was shellfishing on
that lot. The enforcement officers also determined that
there was probable cause to support an arrest of the
plaintiff for, among other things, shellfishing on the
defendant’s lot. The plaintiff’s workers also testified at
their depositions that they had been harvesting clams
right up until when the enforcement officers
approached the boat.
Although the plaintiff submitted evidence that could
demonstrate that he was not actively shellfishing on
the defendant’s lot at the time of the defendant’s com-
plaint to the department, that evidence did nothing to
demonstrate that the defendant did not have a reason-
able and good faith belief that the plaintiff, in fact, was
shellfishing on lot 562. The plaintiff principally relies
on three pieces of evidence from which he claims a
reasonable jury could draw an inference of malice. First,
he argues that the defendant had no basis for his state-
ment that the Mighty Maxx’ dredges were on the ocean
floor because it was impossible for the defendant to
see the ocean floor from where he was standing on the
shore. Although this is true, the plaintiff ignores his
own testimony that his boat had such advanced technol-
ogy that other fishermen did not understand it. In fact,
in his appellate brief, the plaintiff explains that ‘‘the
Mighty Maxx was unlike any conventional clamming
boat. It looked like something out of another universe.
Most fishermen were not familiar with how it operated.’’
Without some evidence that the defendant knew of the
Mighty Maxx’ advanced technology, there would be no
basis for a jury to conclude that the defendant acted
with reckless disregard of the truth when he opined,
on the basis of his observations, through binoculars,
that the dredges of the plaintiff’s boat were on the
ocean floor.
Second, the plaintiff argues that a reasonable jury
could conclude that the defendant’s statement that he
saw the conveyor belt moving demonstrates malice
because it was impossible for the defendant to see the
conveyor belt from the shore due to the physical charac-
teristics of the Mighty Maxx. The plaintiff’s contention
is without merit because the defendant never made
such a statement. At the plaintiff’s criminal trial, the
defendant testified to seeing the plaintiff’s workers
‘‘culling clams on the table.’’ When asked what that
meant, the defendant testified that it meant ‘‘sorting
them out on a table as they came up . . . in the dredge
or in the suction dredge on the conveyor.’’ Conse-
quently, the defendant’s statement was based on his
observations of the workers, not on any observation of
the workings of the boat.6
Third, the plaintiff relies on the defendant’s statement
to the reporter that he ‘‘nailed [the plaintiff and] nailed
him good’’ as evidence of the defendant’s malice. We
are not persuaded. To the extent that statement was
based on the plaintiff’s reasonable conclusion from his
observations as discussed previously, the statement is
not evidence of actual malice.
Finally, the reasonableness of the defendant’s conclu-
sion from his observations was confirmed by the
enforcement officers, who, after going onto the boat,
observing harvesting taking place, confirming the posi-
tion of the plaintiff’s boat on the defendant’s lot, and
interviewing the plaintiff’s workers, who said they were
actively harvesting until the officers arrived, found
probable cause to arrest the plaintiff for shellfishing on
lot 562. Accordingly, we agree with the trial court that
there was no evidence that the defendant abused his
privilege by acting with malice when he reported to the
enforcement officers that the plaintiff was trespassing
on his shellfishing lot and stealing his clams. Summary
judgment on this claim was appropriate.
B
The Defendant’s Statement to the Reporter
The plaintiff also claims that the court improperly
rendered summary judgment on his slander claim based
on the defendant’s statement to the reporter, after con-
cluding that the statement was an opinion on a matter of
public concern, protected by the fair comment privilege.
The plaintiff asserts that this was an error in law
because the statement was one of fact, rather than
opinion. He contends that, when making this statement,
the defendant was stating, as a matter of fact, that the
plaintiff was a poacher. The defendant argues that his
statement to the reporter is privileged and that it does
not qualify as defamation because it expresses his opin-
ion on a matter of public importance, namely, the plain-
tiff’s arrest and criminal trial, and, therefore, that the
court properly determined that it was protected as fair
comment. We agree with the plaintiff that the defen-
dant’s statement was a statement of fact; we disagree,
however, that the statement could be considered
defamatory.
‘‘To prevail on a common-law defamation claim, a
plaintiff must prove that the defendant published false
statements about [him] that caused pecuniary harm.
Torosyan v. Boehringer Ingelheim Pharmaceuticals,
Inc., 234 Conn. 1, 27, 662 A.2d 89 (1995). To be action-
able, the statement in question must convey an objec-
tive fact, as generally, a defendant cannot be held liable
for expressing a mere opinion. See Mr. Chow of New
York v. Ste. Jour Azur S.A., 759 F.2d 219, 230 (2d Cir.
1985) (no liability where restaurant review conveyed
author’s opinion rather than literal fact); Hotchner v.
Castillo-Puche, 551 F.2d 910, 913 [2d Cir.] (‘[a] writer
cannot be sued for simply expressing his opinion of
another person, however unreasonable the opinion or
vituperous the expressing of it may be’) [cert. denied
sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834,
98 S. Ct. 120, 54 L. Ed. 2d 95 (1977)].’’ Daley v. Aetna
Life & Casualty Co., 249 Conn. 766, 795–96, 734 A.2d
112 (1999). In a civil action for defamation, where the
protected interest is the plaintiff’s personal reputation,
the rule in Connecticut is that the truth of the allegedly
defamatory statement of fact provides an absolute
defense. See Goodrich v. Waterbury Republican-Amer-
ican, Inc., supra, 188 Conn. 112.
Whether a statement is an assertion of a fact or an
assertion of an opinion is a question of law. Id., 110–11.
‘‘A statement can be defined as factual if it relates to
an event or state of affairs that existed in the past or
present and is capable of being known. . . . In a libel
action, such statements of fact usually concern a per-
son’s conduct or character. . . . An opinion, on the
other hand, is a personal comment about another’s con-
duct, qualifications or character that has some basis in
fact. . . .
‘‘This distinction between fact and opinion cannot be
made in a vacuum, however, for although an opinion
may appear to be in the form of a factual statement, it
remains an opinion if it is clear from the context that
the maker is not intending to assert another objective
fact but only his personal comment on the facts which
he has stated. . . . Thus, while this distinction may be
somewhat nebulous . . . [t]he important point is
whether ordinary persons hearing or reading the matter
complained of would be likely to understand it as an
expression of the speaker’s or writer’s opinion, or as a
statement of existing fact.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) Id.,
111–12.
Here, the defendant, when interviewed by a reporter
writing a newspaper article on the plaintiff’s arrest,
stated: ‘‘I nailed him, and I nailed him good.’’ In his
appellate brief, the plaintiff cites the definition of ‘‘nail’’
from Webster’s Third New International Dictionary
(1993). He states: ‘‘In this context, to ‘nail’ means ‘to
catch, trap . . . to detect and expose.’ ’’ Accepting the
definition provided by the plaintiff, it appears clear to
us that the defendant was telling the reporter that he
was the person responsible for alerting the authorities
to the plaintiff’s activities; he detected those activities
and exposed them to the enforcement officers, which
is exactly what the parties agree happened in this case.
Consequently, the defendant was stating a fact of what
had happened, as opposed to an opinion of what might
happen at the plaintiff’s criminal trial.
We already have concluded that the plaintiff provided
no evidence of malice in the defendant’s report to the
enforcement officers, and that the facts demonstrate
that, after the enforcement officers conducted their
own investigation, those officers found probable cause
to arrest the plaintiff. See part I A of this opinion.
Although the plaintiff after a criminal trial was found
not guilty by a jury, that finding does not have any effect
on the fact that the defendant, in good faith, reported
the plaintiff’s actions to the enforcement officers, even
if it ultimately turned out that the state could not prove
the resultant criminal charges against the plaintiff, and,
further, even if the defendant had misconstrued the
situation he reported, perhaps because of the advanced
technology in the plaintiff’s boat. By virtue of the uncon-
tested facts of this case, as well as our analysis in
part I A of this opinion, there is nothing false in the
defendant’s statement to the reporter; the defendant
did alert the authorities to what he had seen, which,
then, after investigation, prompted the plaintiff’s arrest,
which was based on probable cause. Accordingly,
because the uncontested facts establish the truth of
the defendant’s statement of fact, the plaintiff’s slander
claim is barred. See Goodrich v. Waterbury Republican-
American, Inc., supra, 188 Conn. 114 (‘‘[w]e need not
inquire further, however, since the plaintiff conceded
. . . that these statements were true, and this conces-
sion creates an absolute bar to his claim of libel as
to these statements’’). Accordingly, summary judgment
was appropriate on this claim.
II
MALICIOUS PROSECUTION
Finally, the plaintiff claims that ‘‘there is a genuine
issue of material fact as to whether the defendant pro-
vided misleading information to the [department,
which] . . . induced the [enforcement] officers to
arrest the plaintiff.’’ The defendant argues that he did
not initiate the plaintiff’s arrest, but, rather, he merely
reported what he had seen to the department and its
enforcement officers; those officers then arrested the
plaintiff after having conducted their own investigation,
which resulted in a finding of probable cause that one
or more crimes had been committed. The defendant
also argues that the plaintiff produced no evidence that
he pressured the enforcement officers or that his report
was based on anything other than a reasonable and
good faith belief that the plaintiff was trespassing and
illegally harvesting the defendant’s clams. We agree
with the defendant.
‘‘An action for malicious prosecution against a private
person requires a plaintiff to prove that: (1) the defen-
dant initiated or procured the institution of criminal
proceedings against the plaintiff; (2) the criminal pro-
ceedings have terminated in favor of the plaintiff; (3)
the defendant acted without probable cause; and (4)
the defendant acted with malice, primarily for a purpose
other than that of bringing an offender to justice. . . .
The law governing malicious prosecution seeks to
accommodate two competing and ultimately irreconcil-
able interests. It acknowledges that a person wrongly
charged with criminal conduct has an important stake
in his bodily freedom and his reputation, but that the
community as a whole has an even more important
stake in encouraging private citizens to assist public
officers in the enforcement of the criminal law.’’ (Cita-
tion omitted; internal quotation marks omitted.) Bhatia
v. Debek, 287 Conn. 397, 404–405, 948 A.2d 1009 (2008).
Having concluded in part I A of this opinion that the
defendant produced evidence that he had acted with
probable cause and without malice in reporting the
plaintiff’s activities to the enforcement officers, and that
the plaintiff produced no counterevidence, we conclude
that the plaintiff, as a matter of law, cannot establish
that the court improperly rendered summary judgment
on this count of his complaint.
The judgment is affirmed.
In this opinion ELGO, J., concurred.
1
The plaintiff also brought claims against two enforcement officers, Jef-
frey Samorajczyk and Todd Aaron Chemacki, from the Department of Energy
and Environmental Protection, in their individual capacities only. We note
that Chemacki is referred to as Chenacki in the plaintiff’s complaint and in
the summons. Various pleadings, however, set forth his surname as Chem-
acki, and his own affidavit also provides that his surname is Chemacki. We,
therefore, refer to him in this opinion as Chemacki. On April 21, 2016,
the trial court rendered summary judgment in favor of Samorajczyk and
Chemacki. The merits of that judgment are not before us. Throughout this
opinion, we, therefore, refer to Walston as the defendant.
2
Practice Book § 10-57 requires: ‘‘Matter in avoidance of affirmative allega-
tions in an answer or counterclaim shall be specially pleaded in the reply.
Such a reply may contain two or more distinct avoidances of the same
defense or counterclaim, but they must be separately stated.’’
The plaintiff in this case failed to specially plead malice as an exception
to the defendant’s special defense of qualified privilege and, instead, pleaded
a general denial. He did, however, allege in his complaint that the defendant
knew that the plaintiff was innocent when the defendant reported to the
department that the plaintiff was stealing his clams. The defendant did not
object when the plaintiff raised malice as a matter in avoidance in his
opposition to the defendant’s motion for summary judgment, and the trial
court considered the malice allegation as though it had been specially
pleaded in avoidance. We note that our Supreme Court previously has
afforded the trial court ‘‘discretion to overlook violations of the rules of
practice and to review claims brought in violation of those rules as long as
the opposing party has not raised a timely objection to the procedural
deficiency.’’ Schilberg Integrated Metals Corp. v. Continental Casualty Co.,
263 Conn. 245, 273, 819 A.2d 773 (2003); see also Flannery v. Singer Asset
Finance Co., LLC, 312 Conn. 286, 303, 94 A.3d 553 (2014) (‘‘[t]hus, we
conclude that the plaintiff’s failure to plead specifically his entitlement to
a particular . . . doctrine pursuant to Practice Book § 10-57, while not a
good practice, does not operate as a bar or waiver of that doctrine if the
record demonstrates that the defendant, nevertheless, was sufficiently
apprised of the plaintiff’s intention to rely on that doctrine and that the
defendant has not been prejudiced by the plaintiff’s lapse in pleading’’).
3
The defendant objected to the plaintiff’s reliance on the transcript of
the calls because it was not properly authenticated. The trial court agreed
and held that the transcript was ‘‘not admissible for the purposes of this
motion.’’ The plaintiff does not challenge this ruling on appeal.
4
‘‘The privilege of ‘fair comment’ . . . was one of the most important
privileges realized at common law, [and it] was a qualified privilege to
express an opinion or otherwise comment on matters of public interest.
. . . The privilege [however] was elevated to constitutional status . . . by
. . . [the] United States Supreme Court . . . .’’ (Citations omitted; emphasis
added.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107,
114–15, 448 A.2d 1317 (1982). ‘‘[E]xpressions of pure opinion (those based
upon known or disclosed facts) [now] are guaranteed virtually complete
constitutional protection.’’ (Internal quotation marks omitted.) Id., 118.
5
‘‘ ‘Defamation is comprised of the torts of libel and slander: slander is
oral defamation and libel is written defamation.’ Skakel v. Grace, 5 F. Supp.
3d 199, 206 (D. Conn. 2014).’’ Gleason v. Smolinski, 319 Conn. 394, 430 n.30,
125 A.3d 920 (2015).
6
We also question the plaintiff’s reliance on the defendant’s testimony
during the plaintiff’s criminal trial. Such testimony is absolutely privileged
and cannot form the basis of a slander claim. See Petyan v. Ellis, 200 Conn.
243, 245–46, 510 A.2d 1337 (1986) (‘‘There is a long-standing common law
rule that communications uttered or published in the course of judicial
proceedings are absolutely privileged so long as they are in some way
pertinent to the subject of the controversy. . . . The effect of an absolute
privilege is that damages cannot be recovered for a defamatory statement
even if it is published falsely and maliciously.’’ [Citation omitted; internal
quotation marks omitted.]).