Decker v. Princeton Packet, Inc.

• Decision Date: 08 August 1989
• Citation: 116 N.J. 418,561 A.2d 1122
• Parties: , 85 A.L.R.4th 797, 16 Media L. Rep. 2194 Marcy G. DECKER, Individually; Marcy G. Decker, as Custodial Parent of Jackson T. Decker; and Charlotte Goldberg, Plaintiffs-Appellants, v. THE PRINCETON PACKET, INC., a Delaware Corporation, Defendant-Respondent, and John Doe, whose name is fictitious; and ABC Corporation, whose identity is unknown, jointly, individually, or in the alternative, Defendants.
• Court: New Jersey Supreme Court

Page 418

116 N.J. 418

561 A.2d 1122, 85 A.L.R.4th 797, 16

Media L. Rep. 2194

Marcy G. DECKER, Individually; Marcy G. Decker, as

Custodial Parent of Jackson T. Decker; and Charlotte Goldberg, Plaintiffs-Appellants, v. THE PRINCETON PACKET, INC., a Delaware Corporation,

Defendant-Respondent,

and

John Doe, whose name is fictitious; and ABC Corporation,

whose identity is unknown, jointly, individually,

or in the alternative, Defendants.

Supreme Court of New Jersey.

Argued Jan. 17, 1989.

Decided Aug. 8, 1989.

Louise M. Robichaud, for plaintiffs-appellants.

Gerard H. Hanson, for defendant-respondent (Brener, Wallack & Hill, attorneys; Marilyn S. Silvia, Princeton, on the brief).

Thomas J. Cafferty, for amicus curiae, New Jersey Press Ass'n (McGimpsey & Cafferty, attorneys; Thomas J. Cafferty and A.F. McGimpsey, Jr., Somerset, on the brief).

The opinion of the Court was delivered by

HANDLER, J.

This case involves a tort action brought against a newspaper seeking damages for defamation and emotional distress attributable to the publication of a false obituary. The Court is called on to address whether an obituary that reports a death, this being the only false statement, can possibly have a defamatory interpretation. In addition, the Court must decide whether the publication of a false obituary can give rise to damages for the negligent infliction of emotional harm. The trial court and Appellate Division held that defamation and emotional-harm claims were without merit as a matter of law. Plaintiffs appeal these rulings arguing that defendant's publication of a false obituary without verifying its accuracy caused damage to reputation and emotional harm that should be compensated under our tort law.

I.

On February 15, 1985, the defendant, a newspaper, The Princeton Packet, Inc. ("The Packet"), which publishes on Tuesday and Friday of each week, reported the following obituary for Marcy Goldberg Decker, the plaintiff:

Marcy Goldberg Decker of Princeton died suddenly Feb. 11. She was 31.

Ms. Goldberg was the fiance of Robert J. Feldman of Princeton.

She was a lifelong resident of Princeton and is survived by a son, Jackson T.; her mother, Charlotte Goldberg of Trenton; and a brother, Ronald Goldberg of California.

Funeral arrangements were incomplete at press time.

This obituary was incorrect because Marcy Decker was not dead. All other information in the obituary--her age, residence, and family relationships--was accurate (except, of course, the references to those circumstances in the past tense and the funeral arrangements). Plaintiff notified defendant by a telephone call two days after the publication that she was in fact alive. The Packet printed the following retraction on February 19, 1985:

The Packet erroneously reported in Friday's edition that Marcy Decker of Princeton died Feb. 11. The obituary was false. The Packet regrets the error and any inconvenience this may have caused Ms. Decker and her family.

On February 14, 1986, Marcy Decker, her son, Jackson Decker, and her mother, Charlotte Goldberg, filed a complaint against The Packet and the unknown John Doe who submitted the obituary notice, alleging (i) libel; (ii) negligent infliction of emotional distress; (iii) intentional infliction of emotional distress; and (iv) gross negligence. The Packet responded by filing a motion for summary judgment, contending that the publication of a false obituary is not defamatory as a matter of law, and that the first amendment barred this lawsuit.

During discovery, the following facts became available about plaintiffs' claims against defendant. First, plaintiffs alleged that when the obituary was published, plaintiff Marcy Decker "was under extreme emotional distress" that was "aggravated" by the publication. At that time, she was in an "emotional" legal battle with her former fiance as well as a custody battle with her former husband and had attempted suicide twice prior to the publication of the obituary. She also claims that "due in part to the publication of the false obituary and its effect on her" she lost her employment and stopped looking for housing in Princeton and moved to Pennsylvania. In addition, she stated that her husband tried to use the false obituary in the custody battle over their child. Finally, she argued that her son and mother suffered "extreme embarrassment and humiliation and anxiety" attributable to the publication of the obituary, which entitled them to compensation.

Plaintiffs deposed three employees of defendant to establish their claims that The Packet was unaware of who had submitted the obituary, that it took no steps to determine the validity of the notice, and that it would not have published the obituary had the person normally in charge of obituaries been on the job. The depositions showed that The Packet normally receives obituaries through three sources: (1) other area daily newspapers, (2) funeral directors, and (3) press releases left in a box maintained for that purpose in the lobby.

Mr. Willever, the editor of The Packet, testified that the normal procedure at The Packet in 1985 was to verify the information contained in the obituary by communicating with the funeral home or calling the telephone number on the press release. Ms. Willever noted that generally any release he had ever done had a telephone number on it. He also testified that The Packet does not normally retain information it receives for the publication of obituaries and that there was no record of who handled this notice.

Mr. Chimenti, the executive editor in charge of the day-to-day operations of the Packet in 1985, testified that he was the person who found Ms. Decker's obituary in the press-release box in the lobby, and he made the decision to publish it without any attempt to verify the information in the release. He stated that the notice was typed on 8 1/2 X 11 white bond paper, was not in an envelope, was unsigned with no telephone number on it, and that he could not remember whether it was dated. He did not know of any accepted procedure in the newspaper community concerning the publication of obituaries, but testified that it was normal procedure for The Packet and the general newspaper community to publish press releases without signatures or telephone numbers. Mr. Chimenti claimed that when death notices came in the form of press releases, they were treated like any other press release and published without further verification. He estimated that the percentage of obituaries received from individuals is very small. Finally, he testified that the notice for Marcy Decker's obituary was thrown away and was unlikely to ever be found.

The third employee deposed was Gloria Halpern, the Lifestyle Editor of The Packet. She testified that she normally handled obituaries but was on vacation at the time that Ms. Decker's obituary was published. Ms. Halpern stated that about five percent of obituary notices are from private individuals, that some press releases do not have telephone numbers, and that she would call the family to verify any unsigned obituary. She reported that there was and still is no formal written policy concerning the publication of obituaries, but the understanding is that now all obituaries are to be verified.

The trial court entered summary judgment in favor of defendant and dismissed plaintiffs' complaint. It concluded that as a matter of law "the mere publication of a false notice of death is not defamatory and cannot support any claims for libel in this case." According to the court, the obituary "does not impute to the plaintiff anything wrong, It doesn't hold her up to ridicule." It also dismissed the defamation claims of Ms. Decker's mother and son, holding that they could not be defamed by a false notice concerning Ms. Decker, as the statement was not directed towards them.

Finally, the court concluded that plaintiffs were not entitled to any recovery based on any claims for negligent or intentional infliction of emotional distress. It rejected plaintiffs' negligent-infliction-of-emotional-distress claim because New Jersey case law does not allow recovery for the negligent infliction of emotional distress outside the zone-of-risk and family-observation theories.

Plaintiffs appealed to the Appellate Division, which upheld the trial court's ruling, Decker v. The Princeton Packet, Inc., 224 N.J.Super. 726, 541 A.2d 292 (1988). In rejecting plaintiffs' defamation claims, the appellate court stated that

[w]hile we appreciate the shock plaintiff may have felt in reading of her death, it was necessarily quickly dissipated by her certain knowledge the announcement was premature. That defendant made a mistake is patent but this is not sufficient to give rise to a claim for money damages. The announcement itself contained no defamatory material. Other than incorrectly stating that defendant had died suddenly, the obituary was accurate and not uncomplimentary. [Id. at 728, 541 A.2d 292.]

The court concluded that "the general rule is well established that the mere publication of an improvident obituary is not defamatory in the absence of additional material of a defamatory nature published in connection therewith." Ibid. The court also upheld the dismissal of the emotional-distress claims. The court did not rule on plaintiffs' intentional infliction of emotional distress claims because Ms. Decker's attorney had conceded at the oral argument that she could not prove intention. Id. at 729, 541 A.2d 292. However, the Appellate Division agreed with the trial court that plaintiffs did not state a cause of action for the negligent infliction of emotional harm. Ibid.

Plaintiffs then petitioned this Court for certification on the issues of defamation and negligent infliction of emotional distress, which was granted. 111 N.J. 648, 546 A.2d 557 (1988).

II.

It is well established that the threshold issue in any defamation action--"whether the language used is...