Eastern Air Lines, Inc. v. Gellert

• Citation: 438 So.2d 923
• Decision Date: 04 October 1983
• Docket Number: No. 80-2376,80-2376
• Parties: EASTERN AIR LINES, INC., a Delaware corporation, Appellant, v. Daniel G. GELLERT, Appellee.
• Court: Court of Appeal of Florida (US)

Page 923

438 So.2d 923

EASTERN AIR LINES, INC., a Delaware corporation, Appellant, v. Daniel G. GELLERT, Appellee.

No. 80-2376.

District Court of Appeal of Florida,

Third District.

Oct. 4, 1983.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.

David Popper, Richard M. Gale, Miami, for appellee.

Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr., Associate Judge.

DANIEL S. PEARSON, Judge.

Eastern Air Lines, Inc. (Eastern) appeals from a judgment for Gellert for compensatory and punitive damages in an action for defamation. It asserts, inter alia, that it was entitled to a directed verdict and judgment in its favor because the evidence failed to establish that it, through its agent, made a defamatory statement of fact concerning Gellert; that, at least, Gellert was not entitled to punitive damages against Eastern; and that, in any event, it is entitled to a new trial because it was unduly restricted by the trial court in the exercise of its peremptory challenges to prospective jurors. Gellert cross-appeals, contending that if there is any insufficiency in his proof to establish Eastern's liability for punitive damages, such insufficiency was created by the trial court's erroneous exclusion of certain proffered evidence on the ground that it concerned matters too remote in time.

We first examine Eastern's claim that it was entitled to a directed verdict in its favor because the evidence failed to establish a defamatory statement of fact. If Eastern is correct in this contention, it will be unnecessary for us to consider the remaining issues.

In November 1978, one David Blundy, a reporter for the London Sunday Times, called James Ashlock, the director of Eastern's news bureau, and in a telephone interview sought Ashlock's reaction to Gellert's written and verbal allegations that he had been penalized by Eastern for publicly disclosing an alleged defect in the design of the L-1011-type passenger aircraft then in use by Eastern. ¹ Ashlock, who knew that his statement would be published, is quoted as having stated:

"Gellert has been complaining for years. I think you ought to know that he wrote some very odd letters to the FBI.... He said Eastern was out to get him, that we tried to crash a plane in order to kill him. He's paranoid."

The article further reports that when Ashlock was then asked why Gellert was allowed to fly Eastern's passenger jets, he replied:

"It's awfully hard to fire anyone these days. Anyway, we have three of them in the cockpit. Know what I mean?"

Eastern's position is that the foregoing statements by Ashlock are statements of opinion, not of fact, and as such cannot form the basis for an action for defamation. Of course, Eastern is correct that statements of pure opinion cannot constitute actionable defamation. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-41, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974); Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); White v. Fletcher, 90 So.2d 129 (Fla.1956); Lampkin-Asam v. Miami Daily News, Inc., 408 So.2d 666 (Fla. 3d DCA 1981); Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980); Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla. 4th DCA 1976). Accord, Mashburn v. Collin, 355 So.2d 879 (La.1977). However, a statement that although ostensibly in the form of an opinion "implies the allegation of undisclosed defamatory facts as the basis for the opinion," Restatement (Second) of Torts § 566 (1977), is actionable. The difference between the former, unactionable, pure opinion and the latter, sometimes called "mixed opinion," is that:

"Pure opinion occurs when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or listener as a member of the public. Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the article or assumed to exist by the parties to the communication." From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57 (Fla. 1st DCA 1981).

It is the court's function to determine from the context "whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion about the plaintiff or his conduct ...." Restatement (Second) of Torts § 566, comment c. See From v. Tallahassee Democrat, Inc., 400 So.2d at 57; Mashburn v. Collin, 355 So.2d at 885-86. If Ashlock's statement would likely be reasonably understood by ordinary persons as a statement of an undisclosed existing defamatory fact, then it was properly the jury's function to determine whether a defamatory meaning was attributed to it by recipients of the communication, and Eastern was not entitled to a directed verdict in its favor.

Eastern contends that Ashlock's statement about Gellert, "He's paranoid," was based on the earlier disclosed facts that Gellert had written some letters to the F.B.I. in which he said that Eastern was out to get him and had tried to crash a plane in order to kill him. Were this the extent of Ashlock's statement, we would agree with Eastern that the ordinary reader would not consider the statement to suggest that Gellert actually suffered from the mental affliction of paranoia, but rather would consider the statement to be Ashlock's opinion based on the disclosed actions of Gellert, that is, he's paranoid because he goes around saying that we tried to crash a plane in order to kill him. See, e.g., Lampkin-Asam v. Miami Daily News, Inc., 408 So.2d 666 (article characterizing accusations made by plaintiff as "almost paranoid" considered to be expression of pure opinion entitled to absolute constitutional protection where accusations appeared in article); Wetzel v. Gulf Oil Corp., 455 F.2d 857 (9th Cir.1972) (calling plaintiff "nuts" and "crazy" in context of and in response to plaintiff's demand that gas station pay for costs incurred when attendant at defendant's gas station allegedly added wrong fluid to brake fluid considered to be expression of pure opinion based on disclosed facts); Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314 (W.D.Pa.1974) (statement by defendant company's representative on television show that something plaintiff had said earlier on same show sounded "a little bit like the sort of paranoid thinking that you get from a schizophrenic" considered to be pure opinion in context of rebuttal of plaintiff's accusations). However, Ashlock's statement goes further. When asked by the Times reporter why Gellert, whom Ashlock had just described as paranoid, was allowed to continue to fly Eastern's passenger jets, Ashlock replied:

"It's awfully hard to fire anyone these days. Anyway, we have three of them in the cockpit. Know what I mean?"

We think this response by Ashlock was susceptible of being reasonably understood by the ordinary listener or reader to imply that quite apart from Ashlock's opinion that Gellert was paranoid because of his "odd letters to the FBI," or because he said "we tried to crash a plane in order to kill him," Gellert was in fact paranoid, that is, suffering from a mental affliction which would justify his being discharged were it not for it being "awfully hard to fire anyone these days," and which would prevent Eastern from entrusting one of its aircraft to his sole responsibility ("we have three of them in the cockpit").

Having decided that Ashlock's statement is not pure opinion, we turn to the less difficult question of whether a statement is defamatory when, as here, it implies that the plaintiff suffers from a mental affliction incompatible with his ability to carry out the responsibilities of his occupation. ² The answer, of course, is that any publication, oral or written, which imputes to another a condition incompatible with the proper exercise of his trade or profession, amounts to a slander or libel per se. Campbell v. Jacksonville Kennel Club, 66 So.2d 495, 497 (Fla.1953); Layne v. Tribune Co., 108 Fla. 177, 180, 146 So. 234, 236 (1933). And, most assuredly, a publication which suggests an impairment in plaintiff's mental faculties, even short of suggesting insanity, is one which imputes to him a condition incompatible with the proper exercise of his trade or profession if made in that context. Hoover v. Peerless Publications, Inc., 461 F.Supp. 1206 (E.D.Pa.1978) (statement to a prospective employer that plaintiff had "some mental problems" in former employment actionable per se); Demers v. Meuret, 266 Or. 252, 512 P.2d 1348 (1973) (statement "what kind of protection can you give us from this terrible mean demented old man ... he might come out and chop our airplanes up with an axe" actionable per se where words prejudiced the plaintiff, an airline executive, in his profession or trade); Cavanagh v. Elliot, 270 Ill.App. 21 (1933) (statement to plaintiff's employer that plaintiff had a "decided complex"); Moore v. Francis, 121 N.Y. 199, 23 N.E. 1127 (1890) (statement that plaintiff, a bank clerk, suffered mental derangement). See also Capp v. Watts, 271 S.C. 276, 246 S.E.2d 606 (1978).

We conclude, therefore, that there was evidence from which a jury properly could have found that Eastern, through its agent Ashlock, made a defamatory statement about Gellert which injured him in his occupation as a pilot for which Eastern could be held liable to Gellert for compensatory damages.

Eastern's argument that the award of punitive damages to Gellert cannot be sustained by the proof proceeds on two separate and distinct grounds, only one of which deserves our attention. Eastern correctly contends that the record is devoid of evidence that Eastern, Ashlock's employer, was at fault, a necessary ingredient to the assessment of...