MacDonald v. Riggs

FABE, Chief Justice,

with whom BRYNER, Justice, joins, dissenting.

I. Introduction

While the standard of review for the denial of a motion for judgment notwithstanding the *20verdict is a deferential one, I believe the court today strains that deference beyond reason. The court holds that the record supports a finding of defamation per se, yet it identifies no direct testimony that MacDonald made a statement about Riggs, much less a statement that defamed Riggs. Instead, the court infers such a statement based on MacDonald's testimony that she told a neighbor "what happened" mere minutes after the assault and her daughter's oblique references to "they" and "them" in expressing concern for her mother's safety. Neither statement affords a basis from which a jury could reasonably conclude that MacDonald made a defamatory statement, much less a statement that was defamatory per se-a legal category that requires that a statement "be so unambiguous as to be reasonably susceptible of only one interpretation." 1 I therefore respectfully dissent from the court's decision to uphold the denial of a motion for a JNOV. Moreover, the jury's verdict in spite of the lack of evidence is not surprising given the trial court's failure to instruct the jury that privileged statements cannot serve as a basis for defamation liability-a failure that under the circumstances constitutes plain error.

II. The Record Does Not Support the Jury's Verdict.

In finding a basis for the jury's verdict, the court cites no direct testimony of a defamatory statement, instead relying on inferences from the testimony of MacDonald and her daughter. The court relies on MacDonald's testimony that, upon arriving in town and in search of help, she told Barbara Scanlan "what happened." MacDonald testified that when she arrived in town with "blood ... dripping in [her] face and in [her] mouth," Barbara Seanlan said that she looked awful. MacDonald reported her response: "It is awful." MacDonald then proceeded to tell Seanlan what had happened. At no point during MacDonald's direct testimony did she indicate that this conversation included any mention of Riggs. Nor did she mention Riggs when cross-examined about her statement to Seanlan. To conclude that MacDonald defamed Riggs, the court relies on the following interchange between MacDonald and Wilson during Wilson's cross-examination:

Q. And did you tell Barb Scanlan ... how you sustained your injuries?
A. She asked me what happened to me, and I told her what happened.
Q. As you've told us here in court?
A. Yes.2

The court infers from this testimony that MacDonald not only mentioned Riggs to Seanlan, but that she also stated that he brandished a weapon in a manner sufficient to constitute assault. Then, to support a jury verdict with no special damages, the court concludes that this inferred statement, although nowhere laid out in testimony, was defamatory per se-a subcategory of defamation that requires that a statement "be so unambiguous as to be reasonably susceptible of only one interpretation." 3

Contrary to the inference drawn by the court, this testimony falls far short of supporting a claim that MacDonald made an unambiguous statement defaming Riggs. MacDonald testified that when she told Scean-lan how she sustained her injuries, her explanation of those injuries was consistent with her testimony in court. But MacDonald did not testify in court that Riggs injured her. In fact, she testified that she sustained her injuries during Wilson's physical assault. Because Riggs's actions were not related to her injuries, this testimony does not even support a conclusion that MacDonald mentioned Riggs to Scanlan, much less that she defamed him. The only thing that can reasonably be inferred from MacDonald's testimony is that when she told Scanlan how she sustained her injuries, her explanation was consistent with her in-court statements.

*21A second statement cited by the court also fails to support the denial of MacDonald's motion for a JNOV. The court quotes the testimony of MacDonald's daughter, Cynthia Roman, that she was concerned about her mother's safety because "neither one of them had been arrested. They were still out there." 4 The court concludes that these indirect references, coupled with Roman's statement on cross-examination that "[Riggs] was there," 5 support a finding of defamation per se.

I simply cannot agree that these vague statements support a conclusion that MacDonald made an unambiguous statement to Roman defaming Riggs. In fact, the testimony does not even allude to any statements by MacDonald-defamatory or not. And contrary to the court's assumption, it is not a foregone conclusion that because Roman testified that she feared for her mother's safety, MacDonald must have told her that Riggs assaulted her. In fact, Riggs was present at the seene, and it is eminently reasonable for a daughter to fear someone who was present at the scene of a vicious attack on her mother. And Roman testified that she was concerned about her mother's safety even before the attack, stating, "I had been in Tenakee the week before [the assault], and I had insisted she go to the [Village Public Safety Officer] with me because I feared for her safety." When asked to explain her concern, Roman testified that she had been informed by a young man in town "that Merle and Riggs have tape recorders and they're running around and they're saying they're going to do something." Roman also testified that she had read letters from Riggs to her mother "threatening to burn her house, threatening to poison her dogs." In sum, Roman's testimony provided ample support for her fear without MacDonald having told Roman anything about Riggs's actions on the day of the attack. The court's inference that MacDonald must have told Roman that Riggs assaulted her is simply not justifiable when Roman had so many independent reasons to fear for her mother's safety around Riggs-including his presence at the scene of a vicious attack on her mother, his threatening letters, and a warning from a young man in town. Because the record lacks support for a finding of defamation, much less defamation per se, I would reverse the superior court's denial of MacDonald's motion for a JNOV.

III. It Was Plain Error Not To Instruct . the Jury on Privilege.

Given the lack of evidence of any statement by MacDonald about Riggs, one might wonder how the jury arrived at a verdict of defamation. The jury's verdict can be explained by the trial court's failure to explain the boundaries of privilege to the jury. As a result, the jury was unaware that it could not legally base its verdict on MacDonald's testimony in court. Because the need for such an instruction was obvious and its omission very likely affected the jury's verdict, the court's failure to instruct the jury on privilege amounts to plain error and would require reversal even if MacDonald had not moved for a JNOV.

Although the court correctly notes that MacDonald did not object to the jury instructions,6 this does not preclude our review of the issue for plain error.7 "Plain error exists where there is an obvious mistake that cere-ates 'a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice."8 The court's failure to instruct the jury on the boundaries of privilege in this case was an obvious mistake. The clear rule in Alaska is that witness testimony is absolutely privileged. Over thirty years ago we adopted the "virtually unanimous" position of legal authorities "that defamatory testimony by a witness in a judicial *22proceeding is absolutely privileged." 9 And one element of any defamation claim is an «unprivileged publication. In a case such as this one, without any direct evidence of statements other than those made in the course of judicial proceedings, it was an obvious error not to instruct the jury on the boundaries of privilege.

I am fortified in this conclusion by the fact that, in addition to the absolute privilege that undoubtedly protects MacDonald's trial testimony, conditional privilege likely protects one of the statements on which the court today relies. We have previously recognized a conditional privilege for speech on matters of public safety.10 Thus, any statement MacDonald made to Scanlan upon her arrival in town-mere minutes after she was assaulted and her skull was fractured-may be protected by this conditional privilege. Even assuming MacDonald had mentioned Riggs to Seanlan, and even if she had stated that Riggs had a gun-two statements that are not reflected in the record-both statements advance MacDonald's interest in her own safety and that of her community.11 Public policy supports the view that a crime victim seeking help mere minutes after an assault occurred should not be concerned about liability. Moreover, information about whether any of the assailants had a weapon is undoubtedly critical to law enforcement personnel who may respond to the situation.

The trial court's failure to instruct the jury on the issue of privilege very likely allowed the jury to reach a verdict based on an erroneous theory.12 In the absence of any direct evidence of a defamatory statement by MacDonald, the jury's verdict strongly suggests that it considered MacDonald's testimony in reaching its verdict. As a result, it is highly likely that the trial court's failure to instruct the jury on the boundaries of privilege affected the outcome of the case.

Because the trial court's failure to instruct the jury on the boundaries of privilege very likely affected the verdict in this case, and the only inference supported by the record is the inference that the jury must have mistakenly considered privileged statements in returning a verdict of defamation, I respectfully dissent from the court's opinion.

. French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996) ("For a publication to be defamatory per se, the words used must be so unambiguous as to be reasonably susceptible of only one interpretation ....") (internal quotations and citations omitted).

. At 15.

. French, 911 P.2d at 32.

. At 15-16. 4

. Id.

. At 16-17 n. 8.

. Shields v. Cape Fox Corp., 42 P.3d 1083, 1087 (Alaska 2002) (holding that trial court's failure to instruct on comparative fault was plain error requiring reversal).

. Id. (quoting Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 110 (Alaska 1997)).

. Nizinski v. Currington, 517 P.2d 754, 756 (Alaska 1974); see also Gilbert v. Sperbeck, 126 P.3d 1057, 1059 (Alaska 2005); Lawson v. Helmer, 77 P.3d 724, 727 (Alaska 2003).

. Taranto v. N. Slope Borough, 992 P.2d 1111, 1115 (Alaska 1999); see also DeNardo v. Bax, 147 P.3d 672, 678-79 (Alaska 2006) (holding that conditional privilege protected worker who told her coworkers about threats).

. Of course, the conditional privilege can be lost where the speaker acts with malice. But malice is a higher standard of fault than that required for a claim of defamation of a private figure. Moreover, "evidence of ill will alone is not sufficient to establish abuse of the privilege." DeNardo, 147 P.3d at 681. Finally, the determination whether the conditional privilege is lost is generally a factual question for the jury. We cannot conclude as a matter of law that MacDonald knew that Riggs did not have a gun. MacDonald testified that she heard Wilson yell at Riggs to bring a gun. This statement occurred during an assault in which Wilson fractured MacDonald's skull. Under the circumstances, the jury could conclude that MacDonald was mistaken but that she did not know her statement was false.

. In reaching its conclusion that MacDonald abused any conditional privilege, the court relies on the jury's affirmative answer to a special verdict question that asked: "Did Ms. MacDonald make defamatory statements regarding Jack Riggs knowing them to be false?" But the elements instruction provided to the jury differed from the special verdict question, and, in fact, the instructions allowed the jury to find liability if MacDonald "reasonably should have known" that her statements were false. As a result, the jury could have based its special verdict answer on a finding that MacDonald was negligent in failing to recognize that her statements were false-a finding not sufficient to establish abuse of a conditional privilege. Thus, the trial court's failure to instruct the jury on privilege cannot be deemed harmless error.