dissenting.
Because I believe that Caldwell’s statements were made under conditions giving rise to a conditional privilege and that Staples failed to meet his burden of proving an abuse of that privilege, I would vacate the judgment of the Superior Court. See Lester v. Powers, 596 A.2d 65 (Me.1991).
A conditional privilege against liability for defamation arises in settings where society has an interest in promoting free, but not absolutely unfettered speech. See id. at 69. It is for the court to determine whether the occasion on which the defendant published defamatory matter gives rise to a conditional privilege. Saunders v. VanPelt, 497 A.2d 1121, 1125 (Me.1985). In this particular case, the trial court found that the occasion gave rise to a conditional privilege.
Once a conditional privilege is determined to exist, liability for defamation attaches only if the person who made the defamatory statements loses the privilege through abusing it. See Lester at 69 (citing Restatement (Second) of Torts § 599 (1977) (‘Restatement’).) Such an abuse occurs when the person either knows the statement to be false, recklessly disregards its truth or falsity, or makes the statement solely out of ill-will. See id. at 69-70. The plaintiff bears the burden of proving the loss of the conditional privilege through its abuse. See Saunders, 497 A.2d at 1125.
Based on the evidence presented at trial, the jury could not have rationally found that Caldwell: (1) knew his statement to be false; (2) recklessly disregarded its truth or falsity, or (3) acted entirely out of ill will toward Staples. See Lester, 596 A.2d at 69-70; Restatement §§ 600, 603. Moreover, the record compels the conclusion that Caldwell acted at the direction of his supervisor and in his capacity as Staples’ supervisor. In other words, even if the jury found that Caldwell was motivated in part by ill-will, that would be insufficient as a matter of law to constitute an abuse of the conditional privilege. In short, Staples failed to meet his burden of proving that the defendant abused, and thus lost, the protection of the conditional privilege. The jury’s finding to the contrary was clearly erroneous.
I would vacate ths judgment of the Superior Court.