Parnoff v. Aquarian Water Co. of Connecticut (AC40383) , 188 Conn. App. 153 ( 2019 )

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LAURENCE V. PARNOFF v. AQUARION WATER
COMPANY OF CONNECTICUT ET AL.
(AC 40383)
Keller, Moll and Eveleigh, Js.
Syllabus
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) (§ 42-110a et seq.) in connection with their alleged conduct
in entering the plaintiff’s property without his consent in July, 2011, to
service one of A Co.’s fire hydrants on the property. During the incident,
the defendants accused the plaintiff of tampering with the hydrant to
steal water. The plaintiff denied stealing any water and ordered the
defendants to immediately leave the property, which they refused to do
because of public health and safety concerns. Thereafter, the police
were called, and the plaintiff eventually was arrested. The defendants
filed a motion for summary judgment as to all seventeen counts of the
plaintiff’s revised complaint that were directed against them. In support
of their motion, the defendants filed a memorandum of law and submit-
ted thirty-two exhibits, including affidavits from D, L and K, A Co.’s
maintenance records for the hydrant and a tariff approved by the Public
Utilities Regulatory Authority authorizing A Co. to access the subject
property. The trial court granted the defendants’ motion for summary
judgment as to all claims except with respect to the negligent infliction
of emotional distress claims alleged in counts six through eight. The
defendants subsequently filed a supplemental motion for summary judg-
ment as to those remaining claims against them on the ground that the
claims were barred by the applicable two year statute of limitations
(§ 52-584). They also filed a sealed copy of medical records documenting
the plaintiff’s visit with a psychiatrist in September, 2011, which indi-
cated that the plaintiff had been diagnosed at that time with depression
related to the incident. The trial court granted the supplemental motion
for summary judgment on the basis of the medical evidence, concluding
that the claims were time barred because the actionable harm was
sustained in September, 2011, and the action was commenced in July,
2014. On the plaintiff’s appeal to this court, held:
1. 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 unchal-
lenged, independent ground on which the court based its decision and,
therefore, there was no practical relief that could be afforded the plain-
tiff, 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.
2. 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 incident
had 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 doc-
trine did not apply.
3. 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 sup-
port 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 dem-
onstrated 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.
4. 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 insuf-
ficient 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 investiga-
tion 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.
5. 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 deter-
mined previously that a claim of emotional distress does not constitute
an ascertainable loss of money or property for purposes of CUTPA.
Argued October 22, 2018—officially released March 5, 2019
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, Rad-
cliffe, J., granted in part the motion for summary judg-
ment filed by the named defendant et al. and rendered
judgment thereon; thereafter, the court granted the sup-
plemental motion for summary judgment filed by the
named defendant et al. and rendered judgment thereon,
from which the plaintiff appealed to this court.
Affirmed.
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.).
Opinion
KELLER, J. This appeal, and a related appeal, Parnoff
v. Aquarion Water Co. of Connecticut, 188 Conn. App.
, A.3d (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 inten-
tional infliction of emotional distress, and (5) claim
under the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110b (a). For the rea-
sons set forth in this opinion, we disagree with the
plaintiff and affirm the judgments of the trial court.
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 plain-
tiff’s] face.’’ The plaintiff alleged that he denied stealing
any water and instructed the defendants to ‘‘immedi-
ately 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 trans-
ported him to a holding cell at the Stratford Police
Department, allowing the defendants to trespass further
on his property. Moreover, he asserted that the defen-
dants ‘‘exhort[ed] public officials to take further base-
less action to humiliate and embarrass’’ him and
publicly accused him of theft. In his complaint, the
plaintiff included counts against each of the four defen-
dants for trespass (counts one through four), negligent
infliction of emotional distress (counts five through
eight), intentional infliction of emotional distress
(counts nine through twelve), and invasion of privacy
(counts thirteen through sixteen). He also included a
count against Aquarion alleging a violation under
CUTPA (count seventeen).3
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, includ-
ing 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 addi-
tion 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 viola-
tion 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 communi-
cations 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 dis-
tress, the defendants argued they were time barred
under the applicable statute of limitations. With respect
to counts nine through twelve, in which the plaintiff
raised claims of intentional infliction of emotional dis-
tress, the defendants argued that the counts were defi-
cient because the defendants’ conduct could not be
regarded as extreme or outrageous. Furthermore, with
respect to counts thirteen through sixteen, the defen-
dants argued that the pleadings were facially deficient
as to the plaintiff’s invasion of privacy by unreasonable
intrusion upon seclusion claims because the conduct
alleged by the plaintiff cannot be regarded as highly
offensive. Lastly, as to count seventeen, Aquarion
alleged that the plaintiff failed to establish a CUTPA
violation because he did not suffer an ascertainable
loss as required under the act, a trespass or police
report does not form a business relationship to satisfy
the commercial transaction requirement, and the con-
duct complained of ‘‘does not rise to the required level
of a deceptive practice or violation’’ under the act.
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. Addi-
tionally, 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 con-
tamination and endanger the health and safety of Aquar-
ion’s customers.8 They attested that the plaintiff
confronted them and yelled at them to get off his prop-
erty. 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 Aquar-
ion trucks, that there was a hydrant on his property,
and that he suspected that they were there to inspect
the hydrant even before he walked over to them.
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 inter-
rogatory 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] Con-
trol.’’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 sum-
mary 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 con-
cluded that the defendants’ alleged conduct ‘‘does not
even approach the threshold for extreme and outra-
geous 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 Aquar-
ion, the court concluded, inter alia, that the plaintiff
failed to present evidence to ‘‘establish any ascertain-
able 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 com-
mence 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 defen-
dants’ supplemental motion, attaching to it an affidavit
and deposition transcripts. On April 10, 2017, the court
held a hearing on the motion and rendered summary
judgment in favor of the defendants on the remaining
counts.10 It concluded that the ‘‘actionable harm was
sustained in September of 2011, and the action brought
in July of 2014 [was] time barred by the applicable
statute of limitations . . . .’’ (Citation omitted.) This
appeal followed.
Our review of a trial court’s decision granting a
motion for summary judgment is well established. Prac-
tice 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 spe-
cific facts . . . which contradict those stated in the
movant’s affidavits and documents. . . . The opposing
party to a motion for summary judgment must substanti-
ate its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing the existence of such an issue. . . . The existence
of the genuine issue of material fact must be demon-
strated 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 Dis-
trict, 160 Conn. App. 638, 645–46, 127 A.3d 257 (2015).
‘‘On appeal, we must determine whether the legal con-
clusions reached by the trial court are legally and logi-
cally correct and whether they find support in the facts
set out in the memorandum of decision of the trial
court.’’ (Internal quotation marks omitted.) Lucenti v.
Laviero, 327 Conn. 764, 773, 176 A.3d 1 (2018).
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, consti-
tuted 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. . . . There-
fore, 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 Wind-
sor Federal Savings & Loan Assn. v. Reliable Mechani-
cal 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 judg-
ment—i.e., that ‘‘entry by Aquarion . . . employees is
permitted by the Department of Public Utilit[y] Con-
trol’’—which has not been properly challenged on
appeal. We have found no place in the plaintiff’s princi-
pal brief where he challenges this other ground for
granting the motion for summary judgment on his tres-
pass 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 con-
cluded that his claims were barred by the two year
statute of limitations in General Statutes § 52-58411
because, in his view, ‘‘the continuing course of conduct
doctrine may be applied in the present case to toll the
statute of limitations.’’12 The defendants argue, how-
ever, that the continuing course of conduct doctrine is
inapplicable as a matter of law in this case. We agree
with the defendants.
Section 52-584 provides in relevant part: ‘‘No action
to recover damages for injury to the person . . . shall
be brought but within two years from the date when
the injury is first sustained or discovered or in the
exercise of reasonable care should have been discov-
ered, and except that no such action may be brought
more than three years from the date of the act or omis-
sion complained of . . . .’’ We have explained that this
statute imposes two particular time requirements on
plaintiffs. ‘‘The first requirement, referred to as the dis-
covery portion . . . requires a plaintiff to bring an
action within two years from the date when the injury
is first sustained or discovered or in the exercise of
reasonable care should have been discovered . . . .
The second provides that in no event shall a plaintiff
bring an action more than three years from the date of
the act or omission complained of. . . . The three year
period specifies the time beyond which an action under
§ 52-584 is absolutely barred, and the three year period
is, therefore, a statute of repose.’’ (Emphasis omitted;
internal quotation marks omitted.) Mollica v. Toohey,
134 Conn. App. 607, 612, 39 A.3d 1202 (2012). We have
also explained that the continuing course of conduct
doctrine does not apply to the discovery portion of § 52-
584. See Rosato v. Mascardo, 82 Conn. App. 396, 405,
844 A.2d 893 (2004) (explaining that policy behind con-
tinuing course of conduct doctrine no longer has any
force once harm discovered). We thus have concluded
that ‘‘[o]nce the plaintiff has discovered [the] injury,
the statute begins to run.’’ (Internal quotation marks
omitted.) Mollica v. Toohey, supra, 614.
‘‘When applying § 52-584 to determine whether an
action was timely commenced, this court has held that
an injury occurs when a party suffers some form of
actionable harm. . . . Actionable harm occurs when
the plaintiff discovers . . . that he or she has been
injured and that the defendant’s conduct caused such
injury. . . . The statute begins to run when the plaintiff
discovers some form of actionable harm, not the fullest
manifestation thereof. . . . The focus is on the plain-
tiff’s knowledge of facts, rather than on discovery of
applicable legal theories.’’ (Internal quotation marks
omitted.) Wojtkiewicz v. Middlesex Hospital, 141 Conn.
App. 282, 287, 60 A.3d 1028, cert. denied, 308 Conn. 949,
67 A.3d 291 (2013).
On February 7, 2017, the defendants filed their supple-
mental motion for summary judgment and a corres-
ponding 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-
chiatrist on September 6, 2011—two months after the
incident on his property. The defendants argued that
the plaintiff did not commence counts six through eight
within two years of his actionable harm and, thus, was
time barred from bringing those counts. First, the defen-
dants argued that the plaintiff’s actionable harm
occurred on the day of the incident, July 11, 2011,
because the plaintiff alleges in his complaint that the
defendants terrorized him on that day, which made him
fearful and anxious. Second, they argued that even if
the plaintiff did not realize that the defendants caused
him emotional distress on July 11, 2011, his medical
records indisputably demonstrate that he discovered
his injury on September 6, 2011, when his psychiatrist
diagnosed him with depression after he complained
that he was ‘‘depressed/angry’’ because ‘‘water officials
came to his property and accused him of stealing
water.’’ The plaintiff indicated to the psychiatrist that
he was going to ‘‘hurt’’ the defendants by seeking
legal recourse.
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 defen-
dants’ supplemental motion for summary judgment on
the basis of the supplemental medical evidence pro-
vided 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 demon-
strates the existence of some disputed factual issue
. . . . The movant has the burden of showing the
nonexistence of such issues but the evidence thus pre-
sented, 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
specific facts that contradict those stated in the defen-
dants’ documents. See Brusby v. Metropolitan District,
supra, 160 Conn. App. 646 (‘‘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.’’ [Internal
quotation marks omitted.]).
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’ supple-
mental 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 Good-
rich 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 repre-
sents 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 (Sec-
ond), Torts § 652A [1977] as follows: (a) unreasonable
intrusion upon the seclusion of another; (b) appropria-
tion 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.
In the parties’ appellate briefs, they indicated that
neither this court nor our Supreme Court has had the
occasion to define what is required under the intrusion
upon seclusion category of invasion of privacy, but
briefed their arguments based on the formulation set
forth in the Restatement (Second) of Torts. After the
parties submitted their principal briefs, but prior to oral
argument, this court addressed for the first time an
intrusion upon seclusion claim in Davidson v. Bridge-
port, 180 Conn. App. 18, 30, 182 A.3d 639 (2018). In
Davidson, we noted that ‘‘[§] 652B of the Restatement
(Second) of Torts provides: One 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.’’ Id., 30 n.15. Relying on the
Restatement, as our Supreme Court did in Goodrich
when it adopted the invasion of privacy cause of action,
we indicated broadly that the plaintiff was required to
prove by a preponderance of the evidence ‘‘that the
defendants unreasonably intruded on his seclusion and
that the intrusion would be highly offensive to a reason-
able person.’’ Id., 30. We held in that case that the
plaintiff ‘‘failed to carry his burden to prove that the
defendants invaded his privacy . . . .’’ Id., 35.
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 sub-
stantial, 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, ques-
tions about the reasonable person standard are ordi-
narily 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
his family to ‘‘offensive verbal comments’’ by accusing
him of stealing water.
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 guid-
ance. 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 intru-
sive 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 inten-
tional 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 defen-
dants 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
the plaintiff’s property to constitute an intentional intru-
sion. Nor could a reasonable person find that the defen-
dants’ presence on the property, coupled with
statements made to the plaintiff accusing him of stealing
water, was the type of substantial interference the
Restatement contemplates as necessary to constitute
an intentional intrusion.15
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 reason-
able 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 con-
duct 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 substan-
tial 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.
On the basis of the foregoing, we conclude that the
trial court did not commit error in rendering summary
judgment in favor of the defendants on the invasion of
privacy claims.
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 emo-
tional 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 plain-
tiff’s distress; and (4) that the emotional distress sus-
tained 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 dis-
tress 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 commu-
nity. 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
the hydrant they were on the property to service, they
found that it was missing a cap and was leaking, and
that the ground was wet around it. Additionally, they
traced a red hose that was on the ground near the
hydrant to a pond on the property. Lathean and Lavin
searched for the cap in the vicinity of the hydrant, where
they discovered it next to a wrench under a canopy
tent. In viewing all the documents submitted to the
court in the manner most favorable to the plaintiff,
and assuming that each of the defendants accused the
plaintiff of stealing water in a ‘‘rude’’ and ‘‘aggressive’’
manner, this conduct does not come close to extreme
and outrageous conduct. See id. (occurrences may have
been distressing and hurtful to plaintiff, but do not
constitute extreme and outrageous conduct).
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 coopera-
tion 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 outra-
geous.’’ 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 defen-
dants’ 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 of 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.
General Statutes § 42-110g (a) provides in relevant
part: ‘‘Any person who suffers any ascertainable loss
of money or property . . . as a result of the use or
employment of a method, act or practice prohibited by
section 42-110b, may bring an action . . . to recover
actual damages. . . . The court may, in its discretion,
award punitive damages and may provide such equita-
ble relief as it deems necessary or proper.’’ ‘‘The ascer-
tainable loss requirement is a threshold barrier [that]
limits the class of persons who may bring a CUTPA
action seeking either actual damages or equitable relief.
. . . Thus, to be entitled to any relief under CUTPA, a
plaintiff must first prove that he has suffered an ascer-
tainable loss due to a CUTPA violation.’’ (Internal quota-
tion marks omitted.) National Waste Associates, LLC
v. Scharf, 183 Conn. App. 734, 750–51, 194 A.3d 1 (2018).
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 unlaw-
ful, 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 com-
mon law, statutory, or other established concept of
unfairness; (2) whether it is immoral, unethical, oppres-
sive, or unscrupulous; (3) whether it causes substantial
injury to consumers, [competitors or other businessper-
sons]. . . . 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 estab-
lished 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 per-
son 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 ‘‘con-
duct of [Aquarion] by and through its . . . employees
constitutes a violation of [CUTPA] including its afore-
said 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 con-
duct 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 per-
mission 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-
able loss. They argued that when they served him with
a second interrogatory in order for him to identify and
describe the damages he sustained as a result of the
defendants’ alleged violation of CUTPA, he responded,
‘‘punitive damages and attorney’s fees as authorized by
CUTPA to be set by the court for violations.’’ On the
basis of this response, the defendants argued that he
identified no actual damages as a result of Aquarion’s
purported CUTPA violation. In the plaintiff’s objection
to the motion, he asserted broadly that he suffered a
loss of ‘‘his liberty, being arrested, falsely accused of
committing crimes upon his property, injured during
the arrest and suffering physical, emotional and mental
damages . . . as well as financial loses.’’ However, he
provided no affidavits or other relevant documentary
evidence to demonstrate any loss. The court concluded
that the plaintiff failed to establish any ascertainable
loss.
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 ascer-
tainable 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 dam-
ages 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 quota-
tion 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 thresh-
old 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
property for purposes of CUTPA.’’ Di Teresi v. Stam-
ford Health System, Inc., 149 Conn. App. 502, 512, 88
A.3d 1280 (2014). We need go no further. For the reasons
set forth previously, we agree with the trial court that
the plaintiff failed to allege and demonstrate an ascer-
tainable loss, and, accordingly, it properly rendered
summary judgment as to count seventeen.17
The judgments are affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s sixth revised complaint also named as defendants Glynn
McGlynn, a Stratford police officer; Patrick Ridenhour, the Stratford chief
of police; and the Stratford Police Department (counts eighteen through
twenty-five). Those defendants are not the subject of this appeal. Accord-
ingly, any references in this opinion to the defendants refer solely to Aquar-
ion, and its employees, Doyle, Lathlean, and Lavin.
2
The plaintiff alleged that Lathlean was on a cell phone speaking with
the Stratford Police Department and was recorded saying, ‘‘I just kind of
need just a little bit of support that’s all, nothing really more than that just
the presence.’’ The plaintiff indicated that he called the police ‘‘asking for
an officer to be sent to have the trespass and its sequelae abated.’’
3
Counts eighteen through twenty-five contained various claims against
McGlynn, Stratford Police Chief Patrick Ridenhour, and the Stratford Police
Department. As previously noted, those defendants are not the subject of
this appeal. See footnote 1 of this opinion.
4
We note that prior to filing their answer and special defenses, the defen-
dants moved to strike counts five through seventeen of the plaintiff’s revised
complaint dated January 21, 2015. The plaintiff filed an objection and memo-
randum of law in opposition to the motion to strike on May 4, 2015. On
October 22, 2015, the court, Arnold, J., granted the motion to strike on
counts five through seventeen. Although previously stricken, similar allega-
tions were then amended or inserted in a newly revised complaint.
5
After the defendants filed their answer and special defenses, they filed
a subsequent motion requesting leave to amend their special defenses for
the purpose of adding a new special defense asserting that to the extent
the defendants’ presence on the plaintiff’s property was not authorized by
Aquarion’s express easement, Aquarion acquired a prescriptive easement
for those activities as a result of its fifteen years of prior uninterrupted
activities on the plaintiff’s property. The court granted the defendants’
motion on August 16, 2016.
6
In the defendants’ motion for summary judgment, they argued specifically
that they ‘‘had a tariff from the Department of Public Utility Control’’ but
indicated that that entity is now known as the Public Utility Regulatory
Authority (PURA).
7
Those exhibits include, among others, affidavits from Doyle, Lathlean,
Lavin, and Lucy A. Teixeira, the vice president of administration for Aquar-
ion; chain of title for the plaintiff’s property; transcripts from the depositions
of the plaintiff and his wife, Barbara Parnoff; the Stratford police incident
report; site photographs taken on July 11, 2011, by Lavin and Doyle; excerpts
of the plaintiff’s answers to Aquarion’s interrogatories; hydrant maintenance
records; and the PURA approval, dated November 3, 2010.
8
In the defendants’ memorandum of law, they indicated and provided
exhibits that demonstrate that after Lathlean and Lavin discovered the tam-
pering, Lathlean called Doyle, whose functions at Aquarion include dealing
with incidents of tampering and threats to the water system. After Doyle
arrived at the property and was shown the hydrant and the hoses, she also
reached the same conclusion that ‘‘the modified cap, nearby hose and open
hydrant was indicia of tampering and posed a system contamination hazard.’’
The defendants understood that they needed to remain on the property until
the issue was resolved.
9
In the defendants’ memorandum of law in support of their motion for
summary judgment, they argued that they had an easement and also that
the ‘‘tariff approved by the Connecticut Public Utility Regulatory Authority
authorized access to [the plaintiff’s] property.’’ As to the second ground for
granting the motion for summary judgment, the court stated: ‘‘Even in the
absence of the express easement by deed, entry by Aquarion . . . employ-
ees is permitted by the Department of Public Utilit[y] Control (DPUC). The
evidence reveals that the employees were merely doing their jobs on July
11, 2011, and were at all times acting within the confines of the law and
applicable regulations. None of the employees was acquainted with the
plaintiff . . . prior to July 11, 2011, and none entered the property with
any improper motive.’’
PURA is statutorily charged with regulating Connecticut’s investor owned
water companies, including Aquarion. See General Statutes § 16-6b. As such,
its regulations require water companies to submit certain documents and
information for its approval, including, inter alia, ‘‘(1) A copy of the com-
pany’s tariff, which shall include but not be limited to: (A) A copy of each
schedule of rates for service, together with the applicable riders; (B) A copy
of the company’s rules, or terms and conditions, describing the company’s
policies and practices in rendering service. These rules shall include: (I) A
list of items which the company normally furnishes, owns and maintains
on the customer’s premises; (II) The utility’s extension plan or plans as
required in section 16-11-61 . . . .’’ Regs. Conn. State Agencies § 16-11-53
10
The court’s decision on April 10, 2017, became an appealable final
judgment because it disposed of the remaining causes of action in the
complaint against the defendants. See Practice Book § 61-3.
11
General Statutes § 52-584 provides: ‘‘No action to recover damages for
injury to the person, or to real or personal property, caused by negligence,
or by reckless or wanton misconduct, or by malpractice of a physician,
surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be
brought but within two years from the date when the injury is first sustained
or discovered or in the exercise of reasonable care should have been discov-
ered, and except that no such action may be brought more than three
years from the date of the act or omission complained of, except that a
counterclaim may be interposed in any such action any time before the
pleadings in such action are finally closed.’’
12
On appeal, the plaintiff argues that ‘‘[s]ufficient questions of material
fact toll the statute of limitations in . . . § 52-584 as to [the plaintiff’s]
negligent infliction of emotional distress claims’’; however, this argument
is relevant only to summary judgment as to Lathlean, Lavin, and Aquarion
(counts six through eight). Because the court granted the motion for sum-
mary judgment in favor of Doyle on a different ground not addressed in the
plaintiff’s appellate brief, we construe his appeal to challenge summary
judgment as to only Lathlean, Lavin, and Aquarion.
13
See also E. Meltz, ‘‘No Harm, No Foul? ‘Attempted’ Invasion of Privacy
and the Tort of Intrusion Upon Seclusion,’’ 83 Fordham L. Rev. 3431, 3440
(2015) (explaining that thirty-six states ‘‘recognize intrusion upon seclusion
under common law and follow the Restatement’s formulation, either explic-
itly adopting it or closely mirroring the Restatement’s definition and descrip-
tion of the cause of action’’).
14
For example, illustration (1) provides: ‘‘A, a woman, is sick in a hospital
with a rare disease that arouses public curiosity. B, a newspaper reporter,
calls her on the telephone and asks for an interview, but she refuses to see
him. B then goes to the hospital, enters A’s room and over her objection
takes her photograph. B has invaded A’s privacy.’’ 3 Restatement (Second),
supra, § 652B, comment (b), illustration (1).
15
The plaintiff argues that the defendants also subjected his family to
‘‘offensive verbal comments’’ to support his claim. As the defendants prop-
erly note in their appellate brief, however, the plaintiff cannot assert alleged
offenses to family members as a basis for his own claims.
16
Our Supreme Court first used the term ‘‘cigarette rule’’ in McLaughlin
Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 473 A.2d 1185 (1984), to refer
to the criteria used to determine what may constitute an unfair or deceptive
act or practice under CUTPA. Id., 568, citing Conaway v. Prestia, 191 Conn.
484, 492, 464 A.2d 847 (1983). The term is derived from a Federal Trade
Commission regulation that first set forth the criteria. See McLaughlin Ford,
Inc. v. Ford Motor Co., supra, 566 n.10, citing Statement of Basis and Purpose
of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling
of Cigarettes in Relation to the Health Hazards of Smoking, 29 Fed. Reg.
8324, 8355 (1964); see also Federal Trade Commission v. Sperry & Hutchin-
son Co., 405 U.S. 233, 244 n.5, 92 S. Ct. 898, 905, 31 L. Ed. 2d 170 (1972).
17
We need not reach the issue of whether there was a genuine issue of
material fact as to whether the defendants’ conduct constituted an unfair
or deceptive practice because we have determined that the plaintiff failed
to allege and demonstrate an ascertainable loss.