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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 enforcement 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 enforcement 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 malicious 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 erroneously concluded that the defendant’s statements were

privileged and that there was no evidence that the defendant 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 Department of Energy and Environmental Protection (department), 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 defendant’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), following 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 malicious 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 defendant 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 allegation that he had slandered the plaintiff by his comment

to the reporter, the defendant claimed that this statement 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 circumstances, 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 defamation 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 plaintiff, he acted with probable cause, and there was no

malice.’’ In support of his motion for summary judgment, the defendant submitted: his own affidavit; the

plaintiff’s December 24, 2014 responses to interrogatories and requests for production; affidavits of Samorajczyk 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 affidavits of Samorajczyk and Chemacki; portions of the

plaintiff’s deposition; the misdemeanor summons

issued to him; the transcript of the department’s emergency 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 concluded 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 statement 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 prosecution, 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 attestations, the defendant 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. This

appeal followed.

‘‘The standard of review of a trial court’s decision

granting summary judgment is well established. Practice 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 plenary. . . . 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 following 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 plaintiff 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 concluding 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 rendered summary judgment on the first count of his complaint, 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 trespassing 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]mendment. . . . 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 published 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 communication 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 defamation 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 elements for defamation. . . .

‘‘Beyond these common-law principles, there are

numerous federal constitutional restrictions that govern 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) public person/private matter, and (4) private person/private

matter. . . . The . . . elements of defamation, including the subsidiary historical facts, are . . . subject to

proof under the preponderance of the evidence standard.’’ (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 second 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)] (commonlaw intracorporate communications privilege); Goodrich 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 unjustifiable 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 . . . .’’ (Citations 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 rendered 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 statements to the enforcement officers were entitled to protection 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 reasonable and good faith belief that the plaintiff was trespassing 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 Chemacki, 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 Samorajczyk, 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 defendant’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 binoculars, 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 unfamiliar 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 maliciously 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 consider. 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 defendant 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 officers 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 defendant’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 enforcement 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 complaint to the department, that evidence did nothing to

demonstrate that the defendant did not have a reasonable 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 statement 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 technology 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 characteristics 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.’’ Consequently, 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 conclusion from his observations was confirmed by the

enforcement officers, who, after going onto the boat,

observing harvesting taking place, confirming the position 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 concluding 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 opinion on a matter of public importance, namely, the plaintiff’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 defendant’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 actionable, the statement in question must convey an objective 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-American, 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 person’s conduct or character. . . . An opinion, on the

other hand, is a personal comment about another’s conduct, 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; emphasis 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 uncontested 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 RepublicanAmerican, Inc., supra, 188 Conn. 114 (‘‘[w]e need not

inquire further, however, since the plaintiff conceded

. . . that these statements were true, and this concession 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 provided 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 defendant initiated or procured the institution of criminal

proceedings against the plaintiff; (2) the criminal proceedings 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 irreconcilable 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.’’ (Citation 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, Jeffrey 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 Chemacki, 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 allegations 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.]).