Rocci v. Ecole Secondaire MacDonald-cartier

O’HERN, J.,

dissenting.

As the late William Prosser observed many years ago, “There is a great deal about the law of defamation which makes no sense.” Matters are even worse today. According to the authors of a leading casebook, “[t]he current state of libel law has been deplored by almost everyone affected by it.” Plaintiffs are dissatisfied, in large part because their success rate is extremely low, while defendants are frustrated because they cannot prevail earlier in the litigation and thus, incur substantial litigation costs____ [M]any, if not most, of the problems in modem defamation law can be traced to its constitutionalization by the Supreme Court ...
[Cynthia Nance, The Uniform Correction or Clarification of Defamation Act: How Not to Reform Arkansas Defamation Law, 51 Ark. L.Rev. 721 (1998).

In this case, which “makes no sense” to me, I dissent primarily for the reasons stated by Judge Lesemann in the Appellate Division. 323 N.J.Super. 18, 26, 731 A.2d 1205 (App.Div.1999).

*161The only issue before us is the viability of the doctrine of “presumed damages.” In Ward v. Zelikovsky, 263 N.J.Super. 497, 623 A.2d 285 (App.Div.1993), Judge Antell traced the history of the requirement of special damages in slander actions to the ancient divisions between ecclesiastical courts and the King’s courts. Ecclesiastical courts had jurisdiction over spiritual matters and the King’s Court over temporal matters. Defamation without temporal losses was a sin to be punished in the church courts.

The requirement of special damages was an accident of history designed to resolve a jurisdictional conflict. Justice Holmes once noted that “whenever we trace a leading doctrine of substantive law far enough back, we are very likely to find some forgotten circumstance of procedure at its source.” Oliver W. Holmes, Jr. The Common Law 253 (1991).

Presumed damages were simply a procedural device to get out of the church courts. It is one thing to state that damages for defamation may not be presumed in cases of public concern without a showing of actual malice. It is quite another thing to say that one does not suffer damages from defamation unless pecuniary or special loss may be proven. In Milkovich v. Lorain Journal Co., 497 U.S. 1, 10, 110 S.Ct. 2695, 2701, 111 L.Ed.2d 1 (1990), Chief Justice Rehnquist quoted the familiar lines from Shakespeare’s Othello:

Good name in man and woman, dear my lord, Is the immediate jewel of their souls. Who steals my purse steals trash; ‘Tis something, nothing; ‘Twas mine, ‘tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.

Defamation law developed as a means of allowing an individual to vindicate her good name, and also for the purpose of obtaining redress for harm caused by such statements. Ibid, (citing L. Eldredge Law of Defamation 5 (1978) (emphasis added)). “Preventing and redressing attacks upon reputation” is one of the “important social values” underlying the law of defamation. Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597, 605 (1966).

*162Under New Jersey law, four kinds of statements qualify as slander per se that is defamation that in and of itself injures the person: accusing another (1) of having committed a criminal offense, (2) of having a loathsome disease, (3) of engaging in conduct or having a condition or trait incompatible with his or her business, or (4) of having engaged in serious sexual misconduct. Biondi v. Nassimos, 300 N.J.Super. 148, 154, 692 A.2d 103 (App.Div.1997).

In this case, in which defendant’s allegedly defamatory statements were written instead of oral, the Court holds that plaintiff must produce evidence of special damage to her reputation. This requirement of “temporal losses” (rooted as it was in antipathy to ecclesiastical courts) serves no legitimate purpose today. Are we really to expect that a defamed teacher must produce witnesses who will testify that they believed the false and malicious gossip spread about her by a teacher who went on the school trip with her? Would a judge who was falsely libeled as having been drunk on the bench have to produce lawyers or judges to say that “yes, indeed we did believe that the judge was an inebriate”? I should think not.

At common law, a libel plaintiff who established that he was the subject of a published defamatory statement was presumed, without the necessity of specific trial proof, to have been damaged. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789, 810-11 (1974). Justice Powell, writing for the majority and disapproving of the doctrine of presumed damages, commented:

The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred.

Without the limiting restraint of trial proof, juries were able to punish unpopular opinion or unpopular defendants. Repudiating the common law libel doctrine of presumed damages, the Court *163held: “For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Gertz, supra, 418 U.S. at 349, 94 S.Ct. at 3011, 41 L.Ed.2d at 810.1

The converse proposition, of course, is that, if actual malice is established, plaintiff is entitled to recover presumed damages without proof of loss of reputation or damages.

When in Sisler v. Gannett Co., 104 N.J. 256, 516 A.2d 1083 (1986), we required a showing of actual malice in order to recover presumed damages in matters implicating the public concern, we did not intend the converse — that consequential special or economic damages were required as a condition to the recovery of damages to reputation. Gertz simply held, as a matter of federal constitutional law, that all such libel plaintiffs must prove actual injury and damage. Gertz itself explained:

Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.
[Gertz, supra, 418 U.S. at 350, 94 S.Ct. at 3012, 41 L.Ed.2d at 811.]

Canino v. New York News, Inc., 96 N.J. 189, 475 A.2d 528,(1984) held that a defamation action survives death under the Survival Act. We reasoned that the earlier New Jersey courts had held that “libel or slander, an injury to the person, quite apart from, economic loss, was a trespass or, as it was known then and now, a tort.” Id. at 195, 475 A.2d 528 (emphasis added). At *164common law, for an injury to the person, such as an assault or battery, one need not establish economic damages — only the hurt' itself.

Had this been an action in slander (that is, for oral defamation), a statement that adversely reflected on the plaintiffs fitness as a teacher (what is worse than a drunken teacher?) would fall within the categories of slander per se that do not require a showing of special damages. Such damages, referred to as “general damages” in the context of defamation law, are to be distinguished from an award of mere nominal damages. They may, upon a showing of slander per se, be awarded without any proof going to damages upon the theory that the jury, by its own understanding, is competent to calculate approximate compensation for the injury to the plaintiffs feelings and reputation that would naturally flow from the publication of such derogatory remarks. Charles T. McCormick, Handbook on the Law of Damages 116 (1935) (citing Doherty v. L.B. Price Mercantile Co., 132 39, 132 Miss. 39, 95 So. 790, 790-91 (1923); Hubbard v. Rutledge, 52 Miss. 581 (1876)). General damages in defamation law constitute those losses that are normally, usually, and foreseeably caused by the harm to the plaintiffs reputation. General damages may encompass not only monetary harm, but also those losses that are not readily subject to economic calculation, such as losses to one’s enjoyment of life, damage to one’s dignity, and damage to one’s relationships with others. Restatement (Second) of Torts § 621 cmt. a. In Dun & Bradstreet, the Supreme Court recognized that the rationale for the common-law rules was the experience and judgment of history that “proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication it is all but certain that serious harm has resulted in fact.” 472 U.S. at 760, 105 S.Ct. at 2946, 86 L.Ed.2d at 603 (citing W. Prosser, Law of Torts § 112, p. 765 (4th ed.1971)).

It would be a paradox that a written statement that subjected a teacher to “social opprobrium” (which case law defines as “public *165condemnation, hatred, contempt, ridicule or disgrace” Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 102, 186 N.E. 217 (1933)) would not be actionable when an oral statement would be actionable.

I am all for doing away with the jargon of defamation law— “libel per se,” “libel per quod, ” and so forth. I am all for retaining the common sense judgment of history that a jury, in its own understanding, is competent to calculate an appropriate award for damage to reputation. Defamation is a dignitary tort that injures the person. Damages need not be presumed, but juries may be instructed that they may find that a person has been injured when subjected to social opprobrium such that her fitness to practice a profession has been falsely impugned. Ana Rocci acknowledges that her case involves a matter of public concern. She alleges that she can establish that defendants published the libel against her with actual malice, that is with reckless disregard for its truth. She should be permitted to present her case to a jury without having to prove special damages other than the damage to her good name.

Finally, I need comment but briefly on the Court’s reliance on Costello v. Ocean County Observer, 136 N.J. 594, 643 A.2d 1012 (1994). Relying on Costello (a case that involved the non-liability of busy reporter trying to decipher public documents as a deadline approached not a gossipy fellow-teacher), the Court further justifies its dismissal on the basis that plaintiff had insufficiently pleaded or proved the actual malice (reckless disregard for truth) required by Sisler, supra, and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), in matters of public concern. That point was never raised at any time in these proceedings. The only points raised in defendant’s Supreme Court briefs were that plaintiff had failed to establish the requisite defamation element of damages, that the Court should eliminate the doctrine of presumed damages and that plaintiff had failed to establish “actual reputational injury, either pecuniary or non-pecuniary.”

*166I would have thought that the time had long since passed when litigants would be deprived of a day in Court on the basis of a theory of law neither pleaded nor advanced by a party. In Vacca v. Stika, Chief Justice Vanderbilt, a principal architect of our judicial system, explained the goals of our jurisprudence:

The philosophy underlying our present system of procedure is not something to be recognized in the abstract, to be much discussed but less often followed and applied. The evils of delay, technicalities and multiplicity of action in order to obtain complete relief in the courts were the critical elements that led to the reform movement in this State, of which the adoption of our Constitution of 1947 and new rales of procedure were only the beginning. The important lesson we all had to learn was that we must always keep foremost in our minds the need of a progressive system for the administration of justice if we are not gradually to relapse into the old ways of delay, technicalities and surprise. To prevent this ... is the day-to-day obligation of the bench and bar.
[ 21 N.J. 471, 475, 122 A.2d 619 (1956) (emphasis added).]

Consistent with that philosophy, the Court has always recognized that “justice is the polestar [of our judicial system] and our procedures must be moulded and applied with that in mind,” New Jersey Highway Auth. v. Renner, 18 N.J. 485, 495, 114 A.2d 555, (1955), and we have consistently held that “the paramount policies of our law require that ... the plaintiff be afforded an opportunity to have the claim adjudicated on the merits.” Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 338, 476 A.2d 250 (1984). I would do that here. Rather than to surprise plaintiff with a theory that she has never had the chance to meet, I would let her have her day in court.

As modified and affirmed — Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO and LaVECCHIA— 6.

For reversal — Justice O’HERN — 1.

In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S.Ct. 2939, 2946, 86 L.Ed.2d 593, 603-04 (1985), the Court held that the Gertz restrictions on the availability of presumed damages do not apply to all speech. Because there is a "reduced constitutional value [in] speech involving no matters of public concern," presumed and punitive damages may be awarded "even absent a showing of 'actual malice.’ ’’