C. W. v. Warzecha

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C. W. v. Warzecha

C. W. v. KEITH J. WARZECHA*
(AC 45775)
Suarez, Clark and Prescott, Js.

Syllabus

The defendant appealed to this court from the judgment of the trial court
for the plaintiff on her claim for negligent infliction of emotional distress.
Between 2012 and 2015, the plaintiff periodically operated her business
that transported special needs children to and from school from her
home. Between 2012 and 2015, the defendant, who resided in a nearby
home, became concerned that the plaintiff was operating a commercial
transportation business from her home after he observed an increase
in the number of cars and the amount of traffic in the neighborhood
that was associated with the plaintiff’s business. In 2015, the defendant
complained to his town’s zoning department and discovered that the
plaintiff did not have a permit to operate her business from her home.
After meeting with one or more zoning department officials, the defen-
dant began to document his complaints with photos, digital recordings,
and a detailed written timeline of the comings and goings of the plaintiff,
her family, and others based upon his personal surveillance of the plain-
tiff’s property. The defendant continuously recorded the plaintiff’s resi-
dence and took photos of the plaintiff’s property from his vehicle using
a zoom lens. Although the defendant stopped taking photos of the plain-
tiff’s property in approximately January or February, 2016, he continued
to conduct video surveillance of the plaintiff’s home until the time of
trial and would regularly review the digital recordings. The defendant
submitted his documentation, including his digital recordings, photos,
and a surveillance report of what he believed to be the plaintiff’s alleged
zoning violation, to the town’s zoning department. In November, 2015,
a zoning enforcement officer issued a cease and desist order to the
plaintiff, claiming that the operation of her business violated the town’s
zoning regulations. In response, the plaintiff contacted the local police
department and complained to the defendant’s supervisors at his place
of employment about his surveillance of her property. The plaintiff also

* The record reflects that, after the trial court rendered its decision in
the present case, the plaintiff, C. W., sought a civil protective order against
the defendant, Keith J. Warzecha. In accordance with federal law; see 18
U.S.C. § 2265 (d) (3) (2018), as amended by the Violence Against Women
Act Reauthorization Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49,
851; we decline to identify any person protected or sought to be protected
under a protection order, protective order, or a restraining order that was
issued or applied for, or others through whom that person’s identity may
be ascertained.
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C. W. v. Warzecha
occasionally walked by the defendant’s home and raised her middle
finger toward his cameras, which she knew were recording her. The
plaintiff subsequently commenced the present action, alleging that, over
a two year period between October, 2015, and November, 2017, the
defendant invaded her privacy by visually surveilling, photographing,
and video recording her residence; following her in his car; photo-
graphing her minor son at her home and while he was at a neighbor’s
house; using a zoom lens to photograph through the plaintiff’s front
door as a visitor entered; spying on her from neighboring properties;
peering into her home as she watched television; and driving slowly
past her home. In one count of her complaint, the plaintiff alleged
negligent infliction of emotional distress and that the defendant knew
or should have known that his conduct was likely to cause her to suffer
emotional distress so severe that it could cause physical illness. At trial,
the plaintiff testified about each of the allegations in her complaint
and characterized the impact of the defendant’s conduct on her life as
‘‘devastating.’’ At the close of the plaintiff’s case-in-chief, the defendant’s
counsel stated that he had an oral motion for a directed verdict. The court
reserved judgment on the motion and, at the conclusion of evidence,
the court ordered the parties to submit posttrial briefs. In the defendant’s
posttrial brief, he argued, for the first time, that the court should grant
the defendant’s ‘‘motion for dismissal’’ pursuant to the rule of practice
(§ 15-8). Thereafter, the trial court issued a memorandum of decision,
in which it found for the plaintiff on her claim for negligent infliction
of emotional distress, stating that the defendant’s conduct created an
unreasonable risk of causing the plaintiff emotional distress, that her
distress was foreseeable, that the defendant was, in fact, aware that his
conduct angered, annoyed, and distressed the plaintiff, that the plaintiff
had established that the distress she experienced was severe enough
that it might result in illness or bodily harm, that such distress was
caused by the defendant, and that the defendant’s conduct created such
a level of fear and anxiety that the plaintiff refused to open her windows
or curtains or let her children play outside alone, that she lost her sense
of privacy, and that she became more socially isolated because no one
wanted to visit her at her home. The court awarded the plaintiff $10,000
in compensatory damages but did not address the defendant’s motion
for dismissal in its memorandum of decision. Held:
1. This court declined to review the defendant’s claim that the trial court
abused its discretion by asking him questions during the trial, sua sponte,
that went beyond the scope of what was permissible: at trial, the defen-
dant’s counsel did not object contemporaneously to the court’s ques-
tioning of the defendant, nor did the defendant raise any claim of error
related to the court’s questions in his posttrial brief, and, therefore, his
claim was unpreserved; moreover, even if the defendant had preserved
his claim, he did not provide any applicable legal authority or meaningful
analysis in his appellate brief to support his claim of error, and, therefore,
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C. W. v. Warzecha
this court would still decline to review such claim because it was inade-
quately briefed.
2. The defendant’s claim that the evidence presented at trial did not support
a finding of negligent infliction of emotional distress was unavailing,
this court having found, on the basis of its careful review of the record
and viewed in the manner most favorable to sustaining the judgment,
that there was sufficient evidence in the record to support the trial
court’s judgment for the plaintiff with respect to each of the essential
elements for a cause of action sounding in negligent infliction of emo-
tional distress:
a. The defendant could not prevail on his arguments that no reasonable
fact finder could find that his documentation of activity open to public
view created an unreasonable risk of causing the plaintiff severe emo-
tional distress and that, because the plaintiff introduced no evidence
that she knew of the full extent of the defendant’s documentation prior
to trial, that the documentation in the emails from the defendant to the
town could not support this element of her claim: this court’s review of
the trial court’s memorandum of decision reflected that the trial court
did not refer to the emails from the defendant to the town in concluding
that he had created an unreasonable risk of causing the plaintiff emo-
tional distress but, rather, based its finding on the defendant’s conduct
as testified to by the plaintiff, which plainly encompassed conduct of
which the plaintiff was aware prior to the time of trial; moreover, although
the plaintiff, prior to the time of the trial, may not have been aware of
the full extent of the defendant’s extremely detailed documentation of
her daily activities, her testimony supported a finding that the distress
she experienced arose from the defendant’s surveillance activities that
were well-known to her over the course of the two year period, and, in
addition to the plaintiff’s testimony concerning her emotional reaction
to these activities, the trial court readily could have inferred that such
distress was reasonable given the pervasive nature and extent of the
defendant’s surveillance activities.
b. The defendant’s argument that the plaintiff introduced no evidence
that he knew she was distressed by his documentation of her activity
was unavailing: the plaintiff was not required to prove that the defendant
had actual knowledge of her distress, only that he should have realized
that his conduct involved an unreasonable risk of causing the plaintiff
emotional distress, to satisfy this element of her claim, and, on the basis
of the evidence of the surveillance activities of which the plaintiff was
aware prior to the trial, the trial court reasonably could have inferred
that the nature and extent of those activities were such that the defendant
should have realized that his conduct involved an unreasonable risk
of causing the plaintiff emotional distress; moreover, even though the
plaintiff did not bear the burden of proving that the defendant actually
was aware that his activities were causing her emotional distress, the
defendant’s claim was further undermined by the evidence in the record
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C. W. v. Warzecha
that supported a finding that, prior to the time of trial, he was in fact
aware that the plaintiff had experienced emotional distress because of
his surveillance activities, given evidence that the plaintiff raised her
middle finger in the direction of the defendant’s security cameras on
multiple occasions and the defendant’s testimony that the plaintiff com-
plained to the police and his employer more than fifteen times within a
nine month period about his surveillance of the plaintiff’s property, from
which the court reasonably could infer that the plaintiff was distressed
by the presence of the cameras and which further supported a finding
that the defendant was made aware or should have realized that his
repeated conduct was actually causing the plaintiff to experience emo-
tional distress but that he continued the surveillance nonetheless.
c. The defendant could not prevail on his argument that the evidence
presented at trial did not support a finding that the plaintiff’s emotional
distress was severe enough to result in illness or bodily harm to her;
the plaintiff was not required to show that her emotional distress resulted
in bodily injury, but only that such distress might result in illness or
bodily harm, and the plaintiff presented sufficient evidence of her dis-
tress, including her testimony that she was devastated by the defendant’s
conduct and that she was afraid to open her windows or her curtains
or to let her children play outside alone.
d. The defendant’s argument that the evidence at trial did not support
a finding that his conduct caused the plaintiff’s emotional distress was
unavailing, this court having found that, on the basis of the plaintiff’s
testimony as to the cause of her distress, that it was reasonable for the
trial court to conclude that the plaintiff had satisfied the element of
causation in her negligent infliction of emotional distress claim.
3. The defendant could not prevail on his claim that this court should rule
on his motion to dismiss that was not explicitly addressed by the trial
court: because a motion to dismiss is a motion entrusted to the trial
court, not a reviewing court, and the defendant did not cite any law to
the contrary, this court was unable to grant the defendant any relief
with respect to his claim; moreover, even if this court reasonably could
construe the defendant’s claim as an attempt to challenge the trial court’s
failure to rule on the motion to dismiss, in light of the trial court’s
finding for the plaintiff with respect to her claim of negligent infliction
of emotional distress, it was reasonable for this court to consider the
trial court’s decision not to grant the defendant’s motion to dismiss to
be the functional equivalent of a denial, which was not reviewable
on appeal.
Argued October 16, 2023—officially released April 30, 2024

Procedural History

Action to recover damages for, inter alia, negligent
infliction of emotional distress, brought to the Superior
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C. W. v. Warzecha

Court in the judicial district of Hartford and tried to
the court, Rosen, J.; judgment in part for the plaintiff,
from which the defendant appealed to this court.
Affirmed.

Christopher P. Kriesen, for the appellant (defen-
dant).
Kenneth R. Slater, Jr., with whom, on the brief, was
Daniel J. Krisch, for the appellee (plaintiff).

Opinion

SUAREZ, J. The defendant, Keith J. Warzecha,
appeals from the judgment of the trial court in favor
of the plaintiff, C. W., on her claim for negligent inflic-
tion of emotional distress. On appeal, the defendant
claims that (1) the trial court abused its discretion by
asking him questions during the trial, sua sponte, that
went beyond the scope of what was permissible, (2)
the evidence presented at trial did not support a finding
of negligent infliction of emotional distress,1 and (3)
‘‘this court [should] grant [his] motion to dismiss when
1
In his appellate brief, the defendant sets forth his claims of error as
follows: (1) ‘‘Did the trial court abuse its discretion by sua sponte asking
questions of the defendant that went beyond bringing out the facts more
clearly for itself and instead developed new evidence beyond what either
party had developed and then improperly based its decision in favor of the
plaintiff on the third count of her complaint on that evidence’’; (2) ‘‘[d]id
the trial court improperly base its decision in favor of the plaintiff on the
third count on findings of fact that were not based upon either the evidence
introduced at trial or based upon inferences that could not be reasonably
made based upon the evidence introduced at trial’’; (3) ‘‘[d]id the trial court
improperly find, where no reasonable finder of fact could find based on the
evidence, in favor of the plaintiff on the third count’’; and (4) ‘‘[m]ay this
court grant the defendant’s motion to dismiss when the trial court did not
act on it?’’
The defendant’s second and third claims are governed by the same stan-
dard of review, and they essentially challenge whether the evidence sup-
ported the court’s findings of fact with respect to each of the essential
elements of a cause of action sounding in negligent infliction of emotional
distress. Therefore, we will address these claims together as a singular claim.
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the trial court did not act on it.’’ We affirm the judgment
of the trial court.
The following facts, as found by the court or which
are otherwise undisputed, and procedural history are
relevant to our resolution of the defendant’s claims on
appeal. Since January, 2008, the plaintiff has resided
with her son and daughter in a home that she owns. The
plaintiff owns and operates a business that transports
special needs children to and from school. Between
2012 and 2015, the plaintiff periodically operated her
business from her home. In 2016, the plaintiff operated
her business from a principal location outside of the
town in which her home is located and had additional
operations in surrounding towns.
At all relevant times, the defendant resided in a home
that was located diagonally across the street from the
plaintiff’s home. The defendant was employed as an
agent with the federal Drug Enforcement Administra-
tion (DEA). Between 2012 and 2015, the defendant
became concerned that the plaintiff was operating a
commercial transportation business from her home
after he observed an increase in the number of cars
and the amount of traffic in the neighborhood that was
associated with the plaintiff’s business. He noticed that
individuals wearing shirts with the logo of the plaintiff’s
business would park their personal vehicles near the
plaintiff’s home, drive off in vans associated with the
plaintiff’s business, and return later in the day to switch
vehicles. In 2015, the defendant complained to the zon-
ing department of the town in which he and the plaintiff
resided and discovered that the plaintiff did not have
a permit to operate her business from her home.
After meeting with one or more zoning department
officials, the defendant began to document his com-
plaints with photographs, digital recordings, and a
detailed written timeline of the comings and goings
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C. W. v. Warzecha

of the plaintiff, her family, and others based upon his
personal surveillance of the plaintiff’s property.2 The
defendant digitally recorded the plaintiff’s residence
continuously, twenty-four hours per day, seven days
per week. The defendant would also take photographs
of the plaintiff’s property from his vehicle using a zoom
lens. Although the defendant stopped taking photo-
graphs of the plaintiff’s property in approximately Janu-
ary or February, 2016, he continued to conduct video
surveillance of the plaintiff’s home until the time of trial
and would regularly review the digital recordings. The
defendant did not trespass on the plaintiff’s property
or enter her home to take his photographs or video
recordings, and all of the plaintiff’s activity that he docu-
mented occurred in areas open to public view.
The defendant submitted his documentation, includ-
ing his digital recordings, photographs, and a surveil-
lance report of what he believed to be the plaintiff’s
alleged zoning violation, to the town’s zoning depart-
ment. On November 18, 2015, a zoning enforcement
officer issued a cease and desist order to the plaintiff,
claiming that the operation of her business violated
the town’s zoning regulations. In response, the plaintiff
contacted the local police department and complained
to the defendant’s supervisors at the DEA about his
surveillance of her property. The plaintiff thereafter
installed surveillance cameras outside of her home that
recorded twenty-four hours per day, seven days per
week, and captured images of the defendant’s home.
As animosity escalated between the parties, the plaintiff
2
The court noted in its memorandum of decision that the defendant’s
timeline of the plaintiff’s activities on her property ‘‘reflects a near obsessive
interest in the plaintiff’s daily activities. The defendant apparently watched
(or [video recorded]) the activities at the plaintiff’s home throughout the
day, beginning as early as 3 a.m. on some days. Some of the daily logs list
a dozen or more separate entries, with a minute by minute description of
[the plaintiff’s] activity, including such innocuous observations as when the
plaintiff stepped outside her home to smoke a cigarette.’’
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C. W. v. Warzecha

would occasionally walk by the defendant’s home and
raise her middle finger toward his cameras, which she
knew were recording her.
The plaintiff commenced the present action by writ
of summons and complaint on April 29, 2018. In her
three count complaint, the plaintiff alleged that over a
two year period between October, 2015, and November,
2017, the defendant invaded her privacy by visually
surveilling, photographing, and video recording her res-
idence; following her in his car; photographing her
minor child at her home and while he was at a neighbor’s
house; using a zoom lens to photograph through the
plaintiff’s front door as a visitor entered; spying on her
from neighboring properties; peering into her home as
she watched television; and driving slowly past her
home. In count one, the plaintiff sought compensatory
and punitive damages for invasion of privacy and
alleged that the defendant’s conduct caused her fear,
anxiety, and severe emotional distress. In count two,
sounding in intentional infliction of emotional distress,
the plaintiff alleged that such conduct was extreme
and outrageous, malicious, and intended to cause the
plaintiff to suffer emotional distress. In count three,
the plaintiff alleged negligent infliction of emotional
distress and that the defendant knew or should have
known that his conduct was likely to cause the plaintiff
to suffer emotional distress so severe that it could cause
physical illness. On January 11, 2021, the defendant
filed an answer to the complaint, denying the plaintiff’s
material allegations.
On May 4, 2022, the court, Rosen, J., held a bench
trial that was conducted remotely. The court heard testi-
mony from the plaintiff, her son, her friend, and the
defendant. On August 18, 2022, the court issued a memo-
randum of decision in which it found in favor of the
plaintiff on count three of her complaint for negligent
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C. W. v. Warzecha

infliction of emotional distress.3 The court reasoned
that ‘‘[t]he defendant’s conduct over a two year period
of, inter alia, photographing and [video recording] the
plaintiff from his car, from across the street, and [from]
other vantage points, photographing her children and
the comings and goings of invited guests, his use of 24/
7 surveillance on her home, driving slowly past her
home, and documenting in great detail all of her activi-
ties created an unreasonable risk of causing the plaintiff
emotional distress. Her distress was foreseeable, given
the pervasive nature of the surveillance and monitoring,
with 24/7 [video recording] continuing to the present
time. Indeed, the defendant was aware that his conduct
angered, annoyed, and distressed the plaintiff. For
example, he submitted into evidence photographs or
stills from [video recordings] showing the plaintiff rais-
ing her middle finger at him while being photographed
or [video recorded]. She further established that the
distress she experienced was severe enough that it
might result in illness or bodily harm and was caused
by the defendant. She characterized the impact of the
defendant’s conduct on her life as ‘devastating.’ His
conduct created such a level of fear and anxiety that
the plaintiff refused to open her windows or curtains
or let her children play outside alone. She lost her sense
of privacy and became more socially isolated because
no one wanted to visit her at her home.’’ The court
awarded the plaintiff $10,000 in compensatory damages.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendant claims, for the first time on appeal, that
the court abused its discretion by asking him questions
during the trial, sua sponte, that went beyond the scope
3
In its memorandum of decision, the court found in favor of the defendant
on counts one and two of the complaint.
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C. W. v. Warzecha

of what was permissible. The plaintiff argues that this
court should not review the defendant’s claim because
he did not preserve it at trial and did not adequately
brief it before this court. We agree with the plaintiff.
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal. . . .
[A]n appellate court is under no obligation to consider
a claim that is not distinctly raised at the trial level.
. . . [B]ecause our review is limited to matters in the
record, we [also] will not address issues not decided
by the trial court. . . . [T]o permit a party to raise a
claim on appeal that has not been raised at trial—after
it is too late for the trial court or the opposing party
to address the claim—would encourage trial by ambus-
cade, which is unfair to both the trial court and the
opposing party.’’ (Citations omitted; internal quotation
marks omitted.) Westry v. Litchfield Visitation Center,
216 Conn. App. 869, 878–79, 287 A.3d 188 (2022); see
also Practice Book § 60-5 (court shall not be bound to
consider claim unless it was distinctly raised at trial).
Furthermore, ‘‘[i]t is well settled that [w]e are not
required to review claims that are inadequately briefed.
. . . We consistently have held that [a]nalysis, rather
than mere abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue
properly. . . . [F]or this court judiciously and effi-
ciently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs. We do not reverse the judg-
ment of a trial court on the basis of challenges to its
rulings that have not been adequately briefed.’’ (Internal
quotation marks omitted.) Nowacki v. Nowacki, 129
Conn. App. 157, 163–64, 20 A.3d 702 (2011). ‘‘Whe[n]
an issue is merely mentioned, but not briefed beyond
a bare assertion of the claim, it is deemed to have been
waived. . . . In addition, mere conclusory assertions
regarding a claim, with no mention of relevant authority
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C. W. v. Warzecha

and minimal or no citations from the record, will not
suffice.’’ (Internal quotation marks omitted.) Gorski v.
McIsaac, 156 Conn. App. 195, 209, 112 A.3d 201 (2015).
At trial, the defendant’s counsel did not object con-
temporaneously to the court’s questioning of the defen-
dant, nor did he raise any claim of error related to the
court’s questions in his posttrial brief. Therefore, the
defendant’s claim is unpreserved. Moreover, even if he
had preserved his claim, we would still decline to review
it because it is inadequately briefed. The defendant has
not provided any applicable legal authority or meaning-
ful analysis in his appellate brief to support his claim
of error. The defendant cites only to a comparative
study between adversarial and civil law systems to
baldly assert that the court abused its discretion by
asking him questions. See Reiner v. Reiner, 214 Conn.
App. 63, 85, 279 A.3d 788 (2022) (claim inadequately
briefed when party provides almost no meaningful anal-
ysis in support of claim and does not include any cita-
tions to applicable legal authority).
For these distinct reasons, we decline to review the
defendant’s first claim of error.
II
The defendant next claims that the evidence pre-
sented at trial did not support a finding of negligent
infliction of emotional distress. Specifically, the defen-
dant argues that there was no evidence to support the
court’s findings that (1) his conduct created an unrea-
sonable risk of causing the plaintiff emotional distress,
(2) the plaintiff’s emotional distress was foreseeable,
(3) the plaintiff’s emotional distress was severe enough
that it might result in illness or bodily harm, and (4)
his conduct caused the plaintiff emotional distress. The
plaintiff maintains that there was ample evidence to
support the court’s findings on each element of the
plaintiff’s cause of action. We agree with the plaintiff.
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C. W. v. Warzecha

‘‘To establish a claim of negligent infliction of emo-
tional distress, a plaintiff must prove the following ele-
ments: (1) the defendant’s conduct created an unrea-
sonable risk of causing the plaintiff emotional distress;
(2) the plaintiff’s distress was foreseeable; (3) the emo-
tional distress was severe enough that it might result
in illness or bodily harm; and (4) the defendant’s con-
duct was the cause of the plaintiff’s distress.’’ (Internal
quotation marks omitted.) Murphy v. Lord Thompson
Manor, Inc., 105 Conn. App. 546, 552, 938 A.2d 1269,
cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
We review the defendant’s claim under the suffi-
ciency of the evidence standard of review. ‘‘The stan-
dards governing our review of a sufficiency of evidence
claim are well established and rigorous. . . . [W]e
must determine, in the light most favorable to sustaining
the [judgment], whether the totality of the evidence,
including reasonable inferences therefrom, supports
the [court’s judgment] . . . . In making this determina-
tion, [t]he evidence must be given the most favorable
construction in support of the [judgment] of which it
is reasonably capable. . . . In other words, [i]f the
[court] could reasonably have reached its conclusion,
the [judgment] must stand, even if this court disagrees
with it. . . .
‘‘We apply this familiar and deferential scope of
review, however, in light of the equally familiar principle
that the plaintiff must produce sufficient evidence to
remove the [court’s] function of examining inferences
and finding facts from the realm of speculation.’’ (Cita-
tions omitted; internal quotation marks omitted.) Carrol
v. Allstate Ins. Co., 262 Conn. 433, 442, 815 A.2d 119
(2003). ‘‘We continually have held that in order to pre-
vail on a claim of negligent infliction of emotional dis-
tress, the plaintiff must prove that the defendant should
have realized that its conduct involved an unreasonable
risk of causing emotional distress and that that distress,
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C. W. v. Warzecha

if it were caused, might result in illness or bodily harm.
. . . This . . . test essentially requires that the fear or
distress experienced by the plaintiffs be reasonable in
light of the conduct of the defendants. If such a fear
were reasonable in light of the defendants’ conduct,
the defendants should have realized that their conduct
created an unreasonable risk of causing distress, and
they, therefore, properly would be held liable. Con-
versely, if the fear were unreasonable in light of the
defendants’ conduct, the defendants would not have
recognized that their conduct could cause this distress
and, therefore, they would not be liable.’’ (Citations
omitted; internal quotation marks omitted.) Id., 446–47.
A
The defendant first asserts that the evidence pre-
sented at trial did not support a finding that his docu-
mentation of the plaintiff’s daily activities created an
unreasonable risk of causing the plaintiff emotional
distress. The defendant argues that ‘‘no reasonable fact
finder could find [that his] documentation of activity
open to public view created an unreasonable risk of
causing the plaintiff severe emotional distress. She had
no testimony to show that documentation of such activ-
ity is likely to cause severe emotional distress.’’ Also,
he contends that ‘‘[t]he plaintiff introduced no evidence
that [she] knew of the extent of the defendant’s docu-
mentation.’’ The defendant urges this court to conclude
that any ‘‘conduct she learned of after the fact and/or
at trial—such as the documentation in the emails from
the defendant to the town—cannot support her claim.’’
We are not persuaded.
Initially, we note that the defendant’s arguments sug-
gest that the court based its findings on his ‘‘documenta-
tion’’ of the plaintiff’s activities and occurrences at her
home. In this subsection of his claim, he appears to use
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the word ‘‘documentation’’ to refer to ‘‘the documenta-
tion in the emails from the defendant to the town
. . . .’’ Our review of the court’s memorandum of deci-
sion, however, reflects that the court did not refer to
these emails in concluding that the defendant had cre-
ated an unreasonable risk of causing the plaintiff emo-
tional distress. The court, in broad terms, based its
finding on ‘‘[t]he defendant’s conduct over a two year
period of, inter alia, photographing and [video
recording] the plaintiff from his car, from across the
street, and [from] other vantage points, photographing
her children and the comings and goings of invited
guests, his use of 24/7 surveillance on her home, driving
slowly past her home, and documenting in great detail
all of her activities . . . .’’ This evidence plainly encom-
passed conduct of which the plaintiff was aware prior
to the time of trial.
Moreover, although the plaintiff, prior to the time of
the trial, may not have been aware of the full extent of
the defendant’s extremely detailed documentation of
her daily activities, her testimony supports a finding that
the distress she experienced arose from the defendant’s
surveillance activities that were well-known to her over
the course of a two year period. In addition to the
plaintiff’s testimony concerning her emotional reaction
to these activities, the court readily could infer that
such distress was reasonable given the pervasive nature
and extent of the defendant’s surveillance activities.
At trial, the plaintiff testified to the following conduct
by the defendant. On October 9, 2015, the defendant
used what the plaintiff described to be a large lensed
camera to take photographs of her friends that visited
her home. On October 20, 2015, the defendant parked
his motor vehicle in a wooded area adjacent to her
house and took photographs of her residence. On Octo-
ber 26, 2015, the defendant attempted to follow the
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plaintiff to her office. On November 25, 2015, the defen-
dant photographed the plaintiff’s son while he was vis-
iting a neighbor’s home.4 On December 4, 2015, the
defendant used a camera with a zoom lens to photo-
graph a visitor who was entering the plaintiff’s home.
On December 9, 2015, the defendant was watching the
plaintiff’s house from a wooded area across from her
property. By December 27, 2015, the defendant had
been warned by the local police to leave the plaintiff
alone as he had scared her family and friends. On March
31, 2016, the defendant placed a ‘‘spy camera’’ in the
woods across the street from the plaintiff’s front porch.
On one occasion, the defendant used a camcorder on
a tripod to record the plaintiff and her friend stretching
for Pilates outside of her home. On August 1, 2016, the
defendant spied on the plaintiff from her neighbor’s
backyard and the plaintiff called the police to report
the defendant. On November 10, 2017, the defendant
drove slowly past the plaintiff’s house, parked his vehi-
cle across from her home, and thereafter followed her
when she went to the grocery store. On November 30,
2017, the defendant parked at the bottom of the plain-
tiff’s driveway and watched the plaintiff’s residence.

On the basis of our review of the record, we conclude
that there was sufficient evidence for the court to find
that the defendant’s conduct created an unreasonable
risk of causing the plaintiff emotional distress.

B

The defendant next argues that the evidence pre-
sented at trial could not support a finding that the plain-
tiff’s distress was foreseeable. Specifically, the defen-
dant claims that the plaintiff ‘‘introduced no evidence
4
The plaintiff’s son also testified that the defendant had photographed
him while he was visiting a neighbor’s home.
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that the defendant knew she was distressed due to his
documentation of her activity.’’5 We disagree.
The defendant’s argument assigns a higher burden
of proof to the plaintiff than that which is required by
the law of this state. Our Supreme Court has previously
stated that the plaintiff must prove that ‘‘the defendant
should have realized that [his] conduct involved an
unreasonable risk of causing emotional distress . . . .’’
(Emphasis added.) Carrol v. Allstate Ins. Co., supra,
262 Conn. 446. The law does not require that the plaintiff
prove that the defendant had actual knowledge of her
distress, only that he should have realized that his con-
duct involved an unreasonable risk of causing the plain-
tiff emotional distress, to satisfy this element of her
claim. For this reason, the claim fails.
In part II A of this opinion, we discussed the surveil-
lance activities of which the plaintiff was aware prior
to the trial. The court reasonably could have inferred
that the nature and extent of these activities were such
that the defendant should have realized that his conduct
involved an unreasonable risk of causing the plaintiff
emotional distress. Moreover, even though the plaintiff
did not bear the burden of proving that the defendant
actually was aware that his activities were causing her
emotional distress, the defendant’s claim is further
undermined by the evidence in the record that supports
a finding that, prior to the time of trial, he was in fact
aware that the plaintiff had experienced emotional dis-
tress because of his surveillance activities. Specifically,
the plaintiff submitted exhibits from the defendant’s
digital recordings that depicted her raising her middle
finger in the direction of his security cameras on multi-
ple occasions, conduct from which the court reasonably
5
The defendant argues that ‘‘[e]xamples of such evidence . . . would
include a statement from the plaintiff to the defendant that she was experi-
encing distress, a cease and desist letter from counsel with such an assertion,
or the defendant actually witnessing such distress.’’
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could infer that the plaintiff was distressed by the pres-
ence of the cameras. In addition, the defendant testified
that the plaintiff complained to the police and his
employer ‘‘over fifteen times within [a] nine month
period’’ about his surveillance of the plaintiff’s property.
This evidence further supports a finding that the defen-
dant was made aware or should have realized that his
repeated conduct was actually causing the plaintiff to
experience emotional distress but that he continued
the surveillance nonetheless.
The defendant’s claim amounts to a mischaracteriza-
tion of the plaintiff’s burden of proof. Furthermore, on
the basis of our review of the record, we conclude that
there is ample evidence in the record to support the
court’s finding that the plaintiff’s distress was foresee-
able.
C
The defendant further argues that the evidence pre-
sented at trial did not support a finding that the plain-
tiff’s emotional distress was severe enough to result in
illness or bodily harm to her. Specifically, the defendant
claims that the plaintiff ‘‘had no expert medical testi-
mony to establish [that] she suffered emotional distress,
let alone emotional distress severe enough that it might
result in illness or bodily harm. . . . She offered no
testimony that might meet her high burden of proof (for
example, evidence that she was hospitalized, unable to
work, or unable to parent her minor children).’’ We are
not persuaded.
The defendant’s argument, like the argument he
raised in part II B of this opinion, misconstrues the
burden of proof required to prove this element of a
negligent infliction of emotional distress claim. Our
Supreme Court has stated that, ‘‘[t]his court . . . in
Montinieri v. Southern New England Telephone Co.,
[175 Conn. 337, 344, 398 A.2d 1180 (1978)], concluded
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that there is no logical reason for making a distinction,
for purposes of determining liability, between those
cases where the emotional distress results in bodily
injury and those cases where there is emotional distress
only. . . . The only requirement is that the distress
might result in illness or bodily harm.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 448;
see also Perodeau v. Hartford, 259 Conn. 729, 749, 792
A.2d 752 (2002) (‘‘recovery for unintentionally-caused
emotional distress does not depend on proof of either an
ensuing physical injury or a risk of harm from physical
impact’’ (internal quotation marks omitted)).

The plaintiff in Carrol brought an action against his
homeowners insurer for, inter alia, negligent infliction
of emotional distress in connection with the insurer’s
course of action in responding to a claim for insurance
benefits following a fire at his home. See Carrol v.
Allstate Ins. Co., supra, 262 Conn. 434–35. Our Supreme
Court concluded that there was sufficient evidence that
the plaintiff had suffered distress that was severe
enough to result in illness or bodily harm to him because
the plaintiff testified that ‘‘he could not sleep, had fre-
quent nightmares, had a loss of appetite, and experi-
enced depression and a sense of isolation from his
community because of the investigation [into the cause
of the fire conducted by the insurer].’’ Id., 448. In the
present case, the plaintiff presented similar evidence
of distress, as she testified that she was ‘‘devastat[ed]’’
by the defendant’s conduct. She stated: ‘‘I can’t open
my windows. I can’t open my curtains. My children
can’t play outside without me being right there. I can’t
go to the police anymore. . . . I’ve planted trees. . . .
I have no privacy. None. No one wants to come over
[to] my house. . . . And it’s all in the name of a zoning
violation . . . .’’
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On the basis of our review of the record, we conclude
that there is sufficient evidence to support a finding
that the plaintiff’s emotional distress was severe enough
that it might result in illness or bodily harm.
D
The defendant’s final argument with respect to this
claim is that the evidence presented at trial did not
support a finding that the defendant’s conduct caused
the plaintiff’s emotional distress. Echoing an argument
discussed in part II C of this opinion, the defendant
argues that the plaintiff ‘‘had no medical expert testify to
establish a causal connection. She offered no testimony
that might meet her high burden of proof (for example,
evidence that she was hospitalized, unable to work,
or unable to parent her minor children).’’ We are not
persuaded.
As previously stated in this opinion, the plaintiff must
prove that the defendant’s conduct created an unrea-
sonable risk of causing the plaintiff emotional distress.
In Carrol, our Supreme Court found that there was
sufficient evidence of causation for a finding of negli-
gent infliction of emotional distress based upon the
plaintiff’s testimony that the defendant’s actions were
‘‘ ‘devastating’ and the cause of his emotional turmoil.’’
Carrol v. Allstate Ins. Co., supra, 262 Conn. 448. In the
present case, the plaintiff similarly testified that the
effect of the defendant’s conduct was devastating. In
its memorandum of decision, the court expressly
referred to this testimony. The court stated that ‘‘[the
plaintiff] characterized the impact of the defendant’s
conduct on her life as ‘devastating.’ His conduct created
such a level of fear and anxiety that the plaintiff refused
to open her windows or curtains or let her children
play outside alone.’’ Based on the plaintiff’s testimony
as to the cause of her distress, it was reasonable for
the court to conclude that the plaintiff had satisfied
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the element of causation in her negligent infliction of
emotional distress claim.
On the basis of our careful review of the record,
viewed in the manner most favorable to sustaining the
judgment, we conclude that there is sufficient evidence
in the record to support the court’s judgment in favor
of the plaintiff with respect to each of the essential
elements for a cause of action sounding in negligent
infliction of emotional distress.
III
The defendant’s final claim is that ‘‘this court [should]
grant [his] motion to dismiss when the trial court did
not act on it.’’ Specifically, the defendant argues that
this court, on appeal, should rule on his motion to
dismiss that he represents was raised at the close of
the plaintiff’s case-in-chief and in his posttrial brief. The
plaintiff contends that the court implicitly and correctly
denied the defendant’s motion by finding for the plain-
tiff in its final decision. We are not persuaded by the
defendant’s arguments.
The following additional facts and procedural history
are relevant to our disposition of the defendant’s claim.
At the close of the plaintiff’s case-in-chief, the defen-
dant’s counsel stated: ‘‘[B]efore I call [the defendant],
I do have an oral motion for a directed verdict, Your
Honor. I understand it’s a courtside trial, but I think I
can still move for a directed verdict.’’ The court then
reserved judgment on the defendant’s motion for a
directed verdict and articulated that ‘‘this is a bench
trial and we’re [going to] discuss at the conclusion of
evidence whether the parties wish to have closing argu-
ments or submit posttrial briefs. And you can address
the legal issues at that time.’’ At the conclusion of the
evidence, the court ordered the parties to submit post-
trial briefs. In the defendant’s posttrial brief, he argued,
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for the first time, that the court should grant the defen-
dant’s ‘‘motion for dismissal’’ pursuant to Practice Book
§ 15-8. The court did not address the defendant’s motion
in its memorandum of decision but found in favor of
the plaintiff with respect to her claim of negligent inflic-
tion of emotional distress.6

Practice Book § 15-8, titled ‘‘Dismissal in Court Cases
for Failure To Make Out a Prima Facie Case,’’ provides:
‘‘If, on the trial of any issue of fact in a civil matter
tried to the court, the plaintiff has produced evidence
and rested, a defendant may move for judgment of dis-
missal, and the judicial authority may grant such
motion if the plaintiff has failed to make out a prima
facie case. The defendant may offer evidence in the
event the motion is not granted, without having
reserved the right to do so and to the same extent as
if the motion had not been made.’’ (Emphasis added.)
A motion to dismiss is a motion entrusted to the trial
court, not a reviewing court, and the defendant does
not cite any law to the contrary. Our Supreme Court
has explained that ‘‘[a] motion for judgment of dismissal
must be made by the defendant and decided by the
court after the plaintiff has rested his case, but before
the defendant produces evidence.’’ Cormier v. Fugere,
185 Conn. 1, 2, 440 A.2d 820 (1981). Thus, we are unable
6
While this appeal was pending, the defendant filed a motion for articula-
tion in which he asked the trial court to rule on his motion to dismiss. The
defendant, overlooking the fact that his counsel raised what he characterized
as ‘‘a motion for a directed verdict’’ at the close of the plaintiff’s case-in-
chief, represented that the trial court had failed to rule on his motion to
dismiss ‘‘at trial . . . and after trial.’’ The defendant also stated in his motion
for articulation that, ‘‘[a]lthough the [trial] court’s ruling on the motion to
dismiss may appear to be implicit given the trial court’s . . . decision [in
favor of the plaintiff with respect to count three], any appellate review of
the decision requires an articulation.’’ The trial court, thereafter, did not
respond to the motion for articulation, and the defendant did not take any
further action in this court to compel the trial court to rule on the motion
for articulation.
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to grant the defendant any relief with respect to his
claim that this court should grant the motion to dismiss.
Even if we reasonably may construe the defendant’s
claim as an attempt to challenge the trial court’s failure
to rule on the motion to dismiss, the claim is not review-
able on appeal. This court has explained that ‘‘[t]he
statutory corollary to [Practice Book § 15-8] is General
Statutes § 52-210, which provides: If, on the trial of any
issue of fact in a civil action, the plaintiff has produced
his evidence and rested his cause, the defendant may
move for judgment as in case of nonsuit, and the court
may grant such motion, if in its opinion the plaintiff
has failed to make out a prima facie case. We note that
[a] motion for judgment of dismissal has replaced the
former motion for nonsuit . . . for failure to make out
a prima facie case. . . .
‘‘In the context of the former motion for nonsuit for
failure to make out a prima facie case, our Supreme
Court repeatedly has held, in a body of century-old
cases, that the denial of such a motion is not reviewable
on appeal. For example, in Bennett v. Agricultural Ins.
Co., [51 Conn. 504, 512 (1884)], in an appeal following
a jury trial, the court held that [t]he refusal of the court
to grant the motion for nonsuit, being [a] matter com-
mitted to the discretion of the court, is not reviewable
on application of the defendant. The practice in Con-
necticut, unlike that of some other states, is regulated
by statute. [General Statutes (1875 Rev.) tit. 19, c. XIII,
§§ 3, 4.] This statute provides for a nonsuit, not when
all the evidence on both sides has been received, but
when the plaintiff on his part has submitted his evidence
and rested. If the court shall be of [the] opinion that a
prima facie case is not made out, the court may (not
must) grant a nonsuit. If granted the plaintiff has his
remedy; if refused the defendant has no remedy on that
account, but must go on with the trial and submit the
case to the jury, either on the plaintiff’s evidence alone,
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if he chooses, or upon his own evidence as well . . . .
Similarly, in Rice [v. Foley, 98 Conn. 372, 119 A. 353
(1923)], in an appeal following a trial to the court, the
court held that [t]he refusal of the court to grant [a]
defendant’s motion for a nonsuit is not appealable. [Id.],
373. Our research has not revealed any authority that
expressly undermines the reviewability holdings of
Bennett, Rice, and the numerous cases of their ilk.’’
(Citation omitted; emphasis in original; internal quota-
tion marks omitted.) Moutinho v. 500 North Avenue,
LLC, 191 Conn. App. 608, 614–16, 216 A.3d 667, cert.
denied, 333 Conn. 928, 218 A.3d 68 (2019).
In the present case, the court did not expressly rule
on the defendant’s motion to dismiss that was raised
in his posttrial brief, and the court found in favor of
the plaintiff with respect to her claim of negligent inflic-
tion of emotional distress. In light of that finding, it is
reasonable to consider the court’s decision not to grant
the defendant’s motion to dismiss to be the functional
equivalent of a denial. Therefore, just as the court con-
cluded in Moutinho, we conclude that the court’s func-
tional denial of the defendant’s motion to dismiss is
not reviewable on appeal.
The judgment is affirmed.
In this opinion the other judges concurred.