Ruth WALTERS
v.
The SANFORD HERALD, INC.
No. 7611DC222.
Court of Appeals of North Carolina.
October 20, 1976.*767 J. W. Hoyle, Sanford, for plaintiff.
Woodrow W. Seymour, Sanford, and Lassister & Walker by Wm. C. Lassiter, Raleigh, for defendant.
MARTIN, Judge.
The crucial question in this case is whether the plaintiff, a private individual, is entitled to recover damages based upon the publication of an alleged defamatory falsehood without alleging and showing fault on the part of the defendant publisher.
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, 809 (1974), the Supreme Court of the United States established the following rule applicable to plaintiffs in libel actions who are not public officials or public figures:
"We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual."
In a concurring opinion, Mr. Justice Blackmun pointed out that the Court in the Gertz case ". . . now conditions a libel action by a private person upon a showing of negligence . . .." Gertz v. Robert Welch, Inc., supra at 353, 94 S.Ct. at 3014, 41 L.Ed.2d at 813.
Thus, under the Gertz decision, a plaintiff in a civil action for libel, if he is a private citizen and not a public official or a public figure, can recover only if he alleges and proves fault, or at least negligence, on the part of the defendant publisher in publishing false and defamatory statements.
Prior to the decision of the United States Supreme Court in the Gertz case, this jurisdiction, as well as others, clearly established that a publication charging that someone had committed a crime constituted libel per se and both malice and actual damages were presumed. See Flake v. Greensboro News Company, 212 N.C. 780, 195 S.E. 55 (1938). Under Gertz, there is no presumption of malice and damages, and fault must be alleged and established by a private citizen who seeks to recover for a defamatory falsehood.
The pleadings and matters outside the pleadings considered by the trial judge in the instant case fail to state a claim upon which relief can be granted under the Supreme Court decision in the Gertz case for the reason that they contain no allegation or showing of fault on the part of the defendant in publishing the item complained of. Moreover, there is no allegation that the defendant was guilty of negligence in making the publication, nor is there any allegation that the defendant published false and defamatory matter with knowledge of falsity or with reckless disregard.
*768 Plaintiff argues that defendant's failure to retract the news story after being requested to do so was sufficient to satisfy the fault requirement of the Gertz case. However, the fault required by the Gertz decision relates to some act or omission of the publisher at the time of publication. An allegation or showing of a failure to retract has no probative value or effect upon what a publisher did or failed to do at the time of the publication. Therefore, a failure to retract does not create the fault required by the Gertz decision.
The plaintiff made no allegation or showing of fault upon the part of the defendant either in the form of negligence or actual malice. The defendant's motion to dismiss having been made pursuant to Rule 12(b)(6), the trial court properly considered matters outside the pleadings, thereby treating the motion as one for summary judgment under Rule 56, and properly dismissed the case on its merits.
Affirmed.
BRITT, J., concurs in the result.
HEDRICK, J., concurs.