Pierson v. Hubbard
| Decision Date | 10 June 2002 |
| Docket Number | No. 2001–088.,2001–088. |
| Citation | 802 A.2d 1162,147 N.H. 760 |
| Court | New Hampshire Supreme Court |
| Parties | George PIERSON and another v. Andrea HUBBARD and another. |
Cleveland, Waters and Bass, P.A., of Concord (Mark D. Wiseman on the brief and orally), for the plaintiffs.
Devine, Millimet & Branch, P.A., of Manchester (John P. Sherman on the brief and orally), for defendant Andrea Hubbard.
Ransmeier & Spellman, P.C., of Concord (John T. Alexander on the brief and orally), for defendant Town of Effingham.
The plaintiffs, George and Maxine Pierson, appeal from the Trial Court's (Nadeau, J.) dismissal of a claim against defendant Town of Effingham (town), and grant of summary judgment to defendant Andrea Hubbard. They argue that: (1) the town was not absolutely immune from liability for the allegedly defamatory statements Hubbard made at a meeting of the board of selectmen; and (2) the trial court erred in granting summary judgment to Hubbard. We reverse.
Considering the record in the light most favorable to the plaintiffs, the relevant facts follow. See Collectramatic, Inc. v. Kentucky Fried Chicken Corp.,
127 N.H. 318, 320, 499 A.2d 999 (1985) ; Del Norte, Inc. v. Provencher, 142 N.H. 535, 537, 703 A.2d 890 (1997). Hubbard was the elected town clerk and tax collector for the town. On August 22, 1999, she received a telephone call from Arlene Taylor, a town resident. A member of Mrs. Taylor's family had passed away and the funeral was scheduled for August 24, but Mrs. Taylor had been unable to contact the cemetery trustees or the board of selectmen to purchase a plot in the town cemetery.
Early the next morning, Hubbard contacted one of the town's selectmen and advised him of Mrs. Taylor's attempts to contact town officials. Hubbard proposed to provide a draft deed to the cemetery plot to allow the burial to take place on August 24, with the understanding that the selectmen and town treasurer, who were required to authorize and approve the sale of the cemetery plots, would not execute the deed until their meeting scheduled for August 26. The selectman advised her to initiate the deed, collect the money and allow the burial to proceed. The burial took place as scheduled.
The selectmen met as scheduled on August 26, 1999. That day, a member of the board of selectmen asked Hubbard to attend the meeting to explain what had occurred with the sale of the two cemetery plots. During the meeting, Hubbard explained her involvement in the sale of the two cemetery plots, provided the selectmen with the draft deed and advised them that they needed to sign it to formalize the sale of town property. Hubbard also stated that Mrs. Taylor's husband had contacted her by telephone to report that the funeral home director had told the family that two town residents had approached the gravedigger while he was filling the grave and told him that the body might be buried in the wrong location. Hubbard also explained that Mr. Taylor and his family were extremely upset.
The plaintiffs brought claims against the town and Hubbard alleging defamation and negligent and intentional infliction of emotional distress. Both defendants moved to dismiss on the grounds that Hubbard was absolutely immune from suit. After identifying as the "key issue" whether the plaintiffs had alleged any facts supporting a finding that Hubbard acted in an individual capacity, the Superior Court (Smukler, J.) concluded that the writ contained no such facts. The court allowed the plaintiffs to file an amended writ, which they did. Shortly thereafter, the town filed a motion to dismiss, arguing that: (1) if Hubbard acted within the scope of her employment, both she and the town were protected by absolute immunity; and (2) if Hubbard acted outside of the scope of her employment, the town could not be held vicariously liable for her allegedly defamatory statements. The Superior Court (Nadeau, J.) granted the town's motion to dismiss. The court also later granted Hubbard's motion for summary judgment, ruling that she acted in her official capacity when she made the allegedly defamatory statements, and that she had absolute immunity in connection with the statements.
The standard of review in considering a motion to dismiss is "whether the allegations [in the plaintiffs' pleadings] are reasonably susceptible of a construction that would permit recovery." Collectramatic, Inc., 127 N.H. at 320, 499 A.2d 999 (quotation omitted). We assume the truth of the plaintiffs' pleadings and construe all reasonable inferences therefrom in the light most favorable to the plaintiffs. Id.
The amended writ asserts that Hubbard made the allegedly defamatory statements "in her official capacity and within the course and scope of her duties as Clerk of the Town of Effingham." Because the writ does not allege any independent act or wrongful conduct by the town, the town's liability, if any, would be predicated solely on its status as Hubbard's employer. Therefore, the town argues, if Hubbard's statements were absolutely privileged and Hubbard is absolutely immune from suit, then the town cannot be held liable. Because we disagree for the reasons that follow that Hubbard is absolutely immune from suit, we hold that the trial court erred in granting the town's motion to dismiss on this ground.
A plaintiff proves defamation by showing that the defendant failed to exercise reasonable care in publishing a false and defamatory statement of fact about the plaintiff to a third party, assuming no valid privilege applies to the communication. See Indep. Mechanical Contractors v. Gordon T. Burke & Sons, 138 N.H. 110, 118, 635 A.2d 487 (1993). See generally Restatement (Second) of Torts § 558 (1997). Privileged communications are generally divided into two classes: (1) those that are absolutely privileged; and (2) those that are qualifiedly or conditionally privileged. See Annotation, Libel and Slander , 40 A.L.R.2d 941, 942 (1955). If a communication is absolutely privileged, the speaker is absolutely immune from suit regardless of his or her motive in making the communication. See Pickering v. Frink, 123 N.H. 326, 328, 461 A.2d 117 (1983). If a communication is conditionally or qualifiedly privileged, however, the speaker's immunity from suit may be lost if the communication was not "published on a lawful occasion, in good faith, for a justifiable purpose, and with belief, founded on reasonable grounds, of its truth." Id. at 329, 461 A.2d 117. In the case of a conditional or qualified privilege, the question whether the speaker is entitled to claim the privilege is one for the trier of fact. See id.
"The classification of absolutely privileged communications is narrow." 50 Am.Jur.2d Libel and Slander § 275 (1995). Indeed, we have cautioned that "the availability of an absolute privilege must be reserved for those situations where the public interest is so vital and apparent that it mandates complete freedom of expression without inquiry into a defendant's motives." Supry v. Bolduc, 112 N.H. 274, 276, 293 A.2d 767 (1972). For reasons of public policy, however, courts have long recognized an absolute immunity for members of legislative bodies for acts in the performance of their duties. See 8 S. Speiser et al., The American Law of Torts § 29.93, at 629 (1991). Were legislators granted only qualified immunity, "the public's right to know would be hampered as officials with legitimate information would be inhibited from bringing it to the public's attention-not because the information is thought to be arguably inaccurate-but because the officials would know that their comments could entangle them in a legal dispute which almost surely could only be resolved through a full trial." Chonich v. Ford, 115 Mich.App. 461, 321 N.W.2d 693, 697 (1982). "The trend of judicial decisions and legal thought is to extend the absolute privilege to communications of members of lesser legislative bodies." Noble v. Ternyik, 273 Or. 39, 539 P.2d 658, 660 (1975) ; see also Sanchez v. Coxon, 175 Ariz. 93, 854 P.2d 126, 128 (1993) ; Chonich, 321 N.W.2d at 695; Cornett v. Fetzer, 604 S.W.2d 62, 63 (Tenn.Ct.App.1980) ; Restatement (Second) of Torts § 590, at 254 comment a (member of subordinate legislative body to which the State has delegated legislative power, such as a city council, is absolutely privileged to publish defamatory matter concerning another in the performance of member's legislative functions).
Consistent with this trend, we held recently that a report made by a member of the board of selectmen at a town meeting regarding the recent termination of a police chief was absolutely privileged. See Voelbel v. Town of Bridgewater, 144 N.H. 599, 601, 747 A.2d 252 (1999). In Voelbel, we reasoned that "the sounder rule of law favors granting municipal officials, acting in a legislative capacity, absolute immunity for their comments made during a town meeting regarding town matters." Id. at 600, 747 A.2d 252. We also reasoned that because the selectman's comments were made at the town meeting, involved issues arising from the selectman's duties, related to a matter of local importance, and involved a matter properly before the town meeting, they were absolutely privileged whether or not the plaintiff's termination was listed as a subject on the town meeting warrant. Id. at 601, 747 A.2d 252. Our decision was based in large part upon the fact that...
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