Rippett v. Bemis, 7556

Citation672 A.2d 82
Decision Date16 February 1996
Docket NumberDocket No. Y,No. 7556,7556
PartiesLola RIPPETT v. Michael E. BEMIS, et al. DecisionLawor 95 183.
CourtSupreme Judicial Court of Maine (US)

Kenneth R. Clegg (orally) Bourque & Clegg, Sanford, Maine, for Plaintiff.

William R. Fisher (orally), Monaghan, Leahy, Hochadel & Libby, Portland, Maine, for Defendant.

Before ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

RUDMAN, Justice.

Lola Rippett appeals from the summary judgment entered in the Superior Court (York County, Fritzsche, J.) in favor of York County officials on her claims of defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and violation of due process. Rippett argues on appeal that the trial court erred in holding that no genuine issues of material fact existed and in determining that the York County officials were entitled to a judgment as a matter of law on all eight counts of her complaint. We vacate the judgment entered on Count I (defamation against Michael McAlevey), Count IV (defamation against Michael Bemis) and Count VI (for punitive damages against McAlevey) and affirm the judgment entered on the remaining counts.

From proffered documents, affidavits, and deposition testimony a factfinder could find the following. In 1986 Lola Rippett's late husband, a repeat offender, was convicted of a drive-by shooting at a residence. In 1988, having completed his sentence, Thomas Rippett sought to have returned to him certain belongings that had been seized as evidence, including a Remington .22 caliber rifle. The Superior Court (York County, Brodrick, J.) issued an order authorizing the York County Sheriff's Department to return Thomas Rippett's property except for the rifle. When Thomas Rippett presented the court order at the York County Sheriff's Department, Deputy Sheriff Peter Mador gave him all his belongings, including the rifle, and signed the back of the court order as a receipt, listing the rifle among the property returned to Thomas Rippett.

Thomas Rippett, as a convicted felon, could not legally possess a firearm. 15 M.R.S.A. § 393 (1980 & Supp.1995). In 1991 Thomas Rippett published announcements to local news media that the Sheriff's Department had returned a gun illegally to a convicted felon. Thomas Rippett also gave a special agent at the U.S. Attorney's office a copy of the receipt showing the Sheriff's Department had returned his rifle to him, and the U.S. Attorney's office faxed it to the York County Sheriff's Department.

Concerned about increasingly negative publicity, York County Sheriff Michael Bemis designated Detective Michael McAlevey to conduct an internal investigation of Thomas Rippett's allegation. McAlevey conducted a cursory investigation interviewing none of the parties involved. He did, however, obtain a written statement from a patrol partner of Deputy Mador asserting it was he, the patrol partner, not Mador, who had returned the gun and that the gun had been returned to Lola Rippett, not Thomas Rippett. McAlevey filed his report with the Sheriff and with the District Attorney. On receiving McAlevey's written report, Sheriff Bemis insisted, in violation of the York County Sheriff Department's written policy against speaking publicly on the results of internal investigations, that McAlevey participate in an immediate interview with a television news reporter. McAlevey reluctantly appeared on television and declared his official investigation had determined Thomas Rippett's charges to be unfounded. McAlevey further declared that the rifle in question had been returned to Lola Rippett, not Thomas Rippett.

Some weeks later, having learned that a review of his department's investigation was underway in the office of the Attorney General, Sheriff Bemis instructed McAlevey to reopen the Rippett investigation. McAlevey did so and filed a supplemental report declaring himself unable to reconcile apparent discrepancies. The Attorney General's investigation ultimately resulted in a report concluding that Deputy Mador indeed had returned the gun to Thomas Rippett in error and that McAlevey's findings were "seriously flawed." Sheriff Bemis temporarily suspended McAlevey and demoted him to patrolman. Deputy Mador by this time no longer worked for York County.

Lola Rippett filed a complaint against the Sheriff, Detective McAlevey, and the York County Commissioners alleging eight counts of civil rights and tort violations in their conduct toward her. Pursuant to M.R.Civ.P. 56(c), 1 the court entered a summary judgment in favor of the defendants on all eight counts. Lola Rippett appealed from the summary judgment entered on all counts except Count V. 2

We have stated that

[w]hen reviewing a grant of [a] summary judgment, we view the evidence in the light most favorable to the party against whom the judgment has been granted, and review the trial court's decision for error of law.

Keyes Fibre Co. v. Lamarre, 617 A.2d 213, 214 (Me.1992) (citations omitted). To avoid a judgment as a matter of law for the defendants on a given claim, Lola Rippett must establish a prima facie case for each element of that claim. Fleming v. Gardner, 658 A.2d 1074, 1076 (Me.1995). When Rippett can present prima facie evidence that establishes a genuine issue of material fact, a summary judgment is in error. On those claims for which Rippett is unable to establish a genuine issue of material fact as to an element, we review de novo the court's decisions of law based on the established facts. Bliss v. Bliss, 583 A.2d 208, 210 (Me.1990).

I

Rippett first challenges the summary judgment entered in favor of Detective McAlevey on her Count I claim against him for defamation.

The Elements of Defamation

We have recognized the elements of defamation identified in the Restatement (Second) of Torts § 558 (1977):

1) a false and defamatory statement concerning another;

2) an unprivileged publication to a third party;

3) fault amounting at least to negligence on the part of the publisher;

4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Lester v. Powers, 596 A.2d 65, 69 (Me.1991).

The investigative report of the office of the Attorney General presents prima facie evidence that Detective McAlevey's public statement asserting the rifle had been given to Lola Rippett was both false and made on the basis of an investigation so flawed as to constitute at least negligence. Whether McAlevey's false statement is capable of conveying a defamatory message is a question of law. Bakal v. Weare, 583 A.2d 1028, 1030 (Me.1990). A statement is defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Id. at 1029. A statement may be actionable if it implies the existence of undisclosed defamatory facts. Staples v. Bangor Hydro-Electric Co., 629 A.2d 601, 603 (Me.1993). In the context of Thomas Rippett's allegations, McAlevey's statement reasonably can be understood to imply that Lola Rippett did receive the rifle and conveyed it illegally to her felon husband. Words that falsely charge a punishable offense, such as acting as a criminal accomplice, constitute slander per se. Picard v. Brennan, 307 A.2d 833, 834 (Me.1973). The evidence presented is sufficient to sustain a finding that McAlevey's statement was slander per se. Lola Rippett need show no special damages because Detective McAlevey published his false statements in writing to the Sheriff and the District Attorney and in the television interview. Recovery for slander per se requires no showing of special harm beyond the publication itself. Saunders v. VanPelt, 497 A.2d 1121, 1126 (Me.1985). The evidence is sufficient to sustain findings that McAlevey's statements concerning Lola Rippett were false, publicized, defamatory, actionable without a special showing of harm, and at least negligently made.

Truth as a Defense

If Lola Rippett were in fact an accomplice to her husband's illegal possession of the rifle, that truth will serve Detective McAlevey as a defense against her charge that the implication of his statements defamed her. Her status as an accomplice, however, is a genuine issue of fact. The evidence here, viewed in the light most favorable to Lola Rippett, is sufficient to sustain a finding that she lacked the requisite intent of an accomplice 3 to promote or facilitate her husband's continued possession of a firearm. Criminal intent is a question of fact for the factfinder. See State v. Dana, 517 A.2d 719, 720-21 (Me.1986). The evidence in this case, viewed in the light most favorable to Lola Rippett, is sufficient to sustain a finding that she lived with a felon with a history of physical violence toward her and that once she learned he had the rifle in his possession she facilitated not its possession but the termination of that possession. Failure to remove a weapon from a known felon does not make one an accomplice to the felon's possession of the weapon. The trial court erred in determining there was no genuine issue of material fact as to whether the implied characterization of Lola Rippett as a criminal accomplice is true.

A Conditional Privilege

Defendant McAlevey argues that he enjoys a conditional privilege protecting him from liability for defamation. A conditional privilege may arise in any situation in which an important interest of the recipient of a defamatory statement will be advanced by frank communication. Lester v. Powers, 596 A.2d at 70. We have recognized the conditional privileges set out in sections 593-598A of the Restatement (Second) of Torts. Saunders v. VanPelt, 497 A.2d at 1125. Whether a conditional privilege arises in a given circumstance is a question of law. Id.

An occasion makes a publication conditionally privileged if an inferior administrative officer of a...

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