Burden v. Elias Bros. Big Boy Restaurants

• Decision Date: 11 July 2000
• Docket Number: Docket No. 204788.
• Parties: Jacqueline Kay BURDEN, and Adrianne Denise Roby, Plaintiffs-Appellants, v. ELIAS BROTHERS BIG BOY RESTAURANTS, Defendant-Appellee, and Darryll Smith, Defendant.
• Court: Court of Appeal of Michigan — District of US

613 N.W.2d 378

240 Mich. App. 723

Jacqueline Kay BURDEN, and Adrianne Denise Roby, Plaintiffs-Appellants, v. ELIAS BROTHERS BIG BOY RESTAURANTS, Defendant-Appellee, and Darryll Smith, Defendant.

Docket No. 204788.

Court of Appeals of Michigan.

Submitted October 6, 1999, at Detroit.

Decided May 5, 2000, at 9:00 a.m.

Released for Publication July 11, 2000.

William L. Glenn, Detroit, for the plaintiffs.

DeWitt, Balke & Vincent, P.L.C. (by William B. Balke and Cathleen C. Jansen), Detroit, for Elias Brothers Big Boy Restaurants.

Before: NEFF, P.J., and MURPHY and J.B. SULLIVAN¹, JJ.

PER CURIAM.

Plaintiffs² appeal as of right from the summary dismissal of their slander action pursuant to MCR 2.116(C)(10)³. We reverse and remand.

The following facts are not in dispute. Plaintiffs, uniformed People Mover Transit police officers, entered Elias Brothers Big Boy Restaurants' (hereafter defendant) restaurant intending to dine. While being escorted to their table, defendant Darryll Smith, an assistant manager of the restaurant, pointed at plaintiffs and stated that they had been in the restaurant on the previous day. When plaintiffs acknowledged that they had been in the restaurant on the previous day, Smith repeatedly and loudly accused them of leaving the restaurant that day without paying for their meals. At the time, there were other patrons in the restaurant whose attention was drawn to plaintiffs. Plaintiff Adrianne Roby informed Smith that he was mistaken and that they had paid their bill. A manager was summoned and made an unsuccessful attempt to get Smith to apologize to plaintiffs. Smith refused, continuing to accuse plaintiffs of leaving the restaurant without paying for their meals. Plaintiffs left the restaurant without dining.

Relying on Glazer v. Lamkin, 201 Mich.App. 432, 506 N.W.2d 570 (1993), defendant moved for summary disposition arguing that M.C.L. § 600.2911; MSA 27A.2911, as amended by 1988 PA 396, § 1 (which, in pertinent part, added subsection 7), required either a showing of economic damages pursuant to subsection 7 or a showing of actual malice pursuant to subsection 2(a). Plaintiffs argued that subsection 7 did not repeal subsection 1 or override prior case law permitting an action for slander per se wherein damages are presumed. The trial court agreed with defendant and found that plaintiffs "presented no evidence which would raise a question of fact as to either the existence of economic damages or the actual malice required to collect non-economic damages."

We review a trial court's decision regarding a motion for summary disposition de novo. Power Press Sales Co. v. MSI Battle Creek Stamping, 238 Mich.App. 173, 177, 604 N.W.2d 772 (1999). A motion under MCR 2.116(C)(10) tests the factual support for a claim. Id. The motion may be granted when, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ireland v. Edwards, 230 Mich.App. 607, 613, 584 N.W.2d 632 (1998)

. In reviewing the trial court's decision, we must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, and, giving the benefit of the doubt to the nonmoving party, we must determine whether a genuine issue of material fact exists to warrant a trial. Power Press, supra; Ireland, supra. The elements of a cause of action for defamation are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). Ireland, supra at 614, 584 N.W.2d 632.

Statutory interpretation is a question of law that is considered de novo on appeal. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). The first step in that determination is to review the specific language of the statute. In re MCI Telecommunications Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). If the statute is unambiguous on its face, the Legislature is presumed to have intended the meaning it plainly expressed, and judicial interpretation is neither required nor permissible. Id. However, the language of a statute should be read in light of previously established rules of the common law. B & B Investment Group v. Gitler, 229 Mich.App. 1, 7, 581 N.W.2d 17 (1998). Well-settled common-law principles are not to be abolished by implication, and when an ambiguous statute contravenes common law, it must be interpreted so that it makes the least change in the common law. Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 652-653, 513 N.W.2d 799 (1994).

Michigan's defamation statute provides in pertinent part:

(1) Words imputing a lack of chastity to any female or male are actionable in themselves and subject the person who uttered or published them to a civil action for the slander in the same manner as the uttering or publishing of words imputing the commission of a criminal offense.

(2) (a) Except as provided in subdivision (b), in actions based on libel or slander the plaintiff is entitled to recover only for the actual damages which he or she has suffered in respect to his or her property, business, trade, profession, occupation, or feelings.

* * *

(7) An action for libel or slander shall not be brought based upon a communication involving a private individual unless the defamatory falsehood concerns the private individual and was published negligently. Recovery under this provision shall be limited to economic damages including attorney fees. [MCL 600.2911; MSA 27A.2911.]

At common law, words charging the commission of a crime are defamatory per se, and hence, injury to the reputation of the person defamed is presumed to the extent that the failure to prove damages is not a ground for dismissal. Sias v. General Motors Corp., 372 Mich. 542, 551, 127 N.W.2d 357 (1964); Peoples v. Detroit Post & Tribune Co., 54 Mich. 457, 20 N.W. 528 (1884); Wilkerson v. Carlo, 101 Mich.App. 629, 632, 300 N.W.2d 658 (1980). Where defamation per se has occurred, the person defamed is entitled to recover general damages in at least a nominal amount. Slater v. Walter, 148 Mich. 650, 652-653, 112 N.W. 682 (1907); Scougale v. Sweet, 124 Mich. 311, 323, 325, 82 N.W. 1061 (1900); Sias, supra at 551-552, 127 N.W.2d 357. Where the defamatory publication is "maliciously published," the person defamed may recover "substantial damages" even where no special damages could be shown. Whittemore v. Weiss, 33 Mich. 348, 353 (1876). Whether nominal or substantial, where there is defamation per se, the presumption of general damages is well settled. McCormick v. Hawkins, 169 Mich. 641, 650, 135 N.W. 1066 (1912); Clair v. Battle Creek Journal Co., 168 Mich. 467, 473-474, 134 N.W. 443 (1912); Simons v. Burnham, 102 Mich. 189, 204, 60 N.W. 476 (1894); In re Thompson, 162 B.R. 748, 772 (E.D.Mich., 1993).

MCL 600.2911(1); MSA 27A.2911(1) is the codification of the common-law principle that words imputing a lack of chastity or the commission of a crime constitute defamation per se and are actionable even in the absence of an ability to prove actual or special damages, as evidenced by the statute's indication that such words are "actionable in themselves...." The word "actionable," when used at common law in conjunction with a claim of defamation per se, means that the person defamed may bring a civil action and receive at least nominal damages in the absence of any proof of actual or special damages. See, e.g., Sias, supra at 551-552, 127 N.W.2d 357; Peoples, supra; Wilkerson, supra at 632

, 300 N.W.2d 658. This meaning ascribed to the word "actionable" by the common law with regard to defamation per se must also be ascribed to the word "actionable" that is found in subsection 1. Pulver v. Dundee Cement Co., 445 Mich. 68, 75-76, 515 N.W.2d 728 (1994). Accordingly, where a plaintiff brings an action alleging words imputing lack of chastity or commission of a crime under M.C.L. § 600.2911(1); MSA 27A.2911(1), the inability to prove damages is not fatal to the claim.

Defendant argues that subsections 2(a) and 7 modify the common law as codified in subsection 1 to the extent that the two defamation actions specifically enumerated in subsection 1 are not actionable in the absence of a showing of either economic damages pursuant to subsection 7 or the actual malice required for non-economic damages to reputation or feelings pursuant to subsection 2(a). However, such a construction renders subsection 1 nugatory, contrary to the principles of statutory construction. Altman v. Meridian Twp., 439 Mich. 623, 635, 487 N.W.2d 155 (1992). If the Legislature intended the two specifically enumerated actions for slander per se set forth in subsection 1 to be governed by the damages restrictions of subsections 2(a) and 7, then the Legislature would have made no specific reference to those actions in M.C.L. § 600.2911; MSA 27A.2911. It follows that the specific...