Fees v. Trow

• Decision Date: 09 March 1987
• Citation: 521 A.2d 824,105 N.J. 330
• Parties: Daryl FEES, Plaintiff-Respondent, v. Christine TROW, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 330

105 N.J. 330

521 A.2d 824

Daryl FEES, Plaintiff-Respondent, v. Christine TROW, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 18, 1985.

Decided March 9, 1987.

James J. Ciancia, Asst. Atty. Gen., for appellant (Irwin I. Kimmelman, former Atty. Gen. attorney; Benjamin Clarke, Deputy Atty. Gen., on brief).

Anthony L. Mezzacca, Edison, for respondent.

Linda G. Rosenzweig, Director, Division of Mental Health Advocacy, Trenton, for amicus curiae, New Jersey Department of the Public Advocate (Alfred A. Slocum, Acting Public Advocate, attorney).

PER CURIAM.

This is a defamation case. The issue is whether and to what extent an employee of a state facility for the developmentally disabled is protected by a privilege in making a defamatory report of another employee's abuse of an adult resident of the facility. The trial court granted defendant's motion for summary judgment. The Appellate Division, in an unreported opinion, acknowledged that under the circumstances defendant enjoyed a qualified privilege, but nevertheless concluded that there was a fact issue of whether the privilege had been abused. The court below therefore reversed. We granted certification, 101 N.J. 267, 501 A.2d 934 (1985), to review that determination, and now reverse and reinstate the judgment in favor of defendant.

I

In June 1981 both plaintiff and defendant were employed as teachers at New Jersey Neuropsychiatric Institute, commonly known as Skillman, a state-operated residential facility for the developmentally disabled, including the mentally retarded. See N.J.S.A. 30:6D-3 (definition of developmental disability). (Effective June 29, 1983, the name of the Institute was changed to the North Princeton Developmental Center. See L. 1983, c. 231, § 2, codified at N.J.S.A. 30:4-177.12.)

On June 1, 1981, defendant, Christine Trow, reported to her supervisor, Ron Wybraniec, an incident that she had allegedly witnessed earlier that day. She claimed to have seen plaintiff, Daryl Fees, in an unoccupied office with one of the institution's adult residents, Carol Dutcher. After making an oral report to her supervisor, defendant gave the following written account of the occurrence:

I saw Daryl Fees going up the stairs * * * with Carol Dutcher about four steps behind him saying, "I'll go upstairs with you honey, * * * I'll follow you, honey * * * etc. * * * As I went around the corner of the stairs I heard Daryl Fees talking and Carol giggling.

* * *

* * *

I saw Daryl Fees seated with his legs together and Carol Dutcher sitting on his lap, facing away from me. Daryl Fees['] hand was under the back of Carol's shirt, and almost all the way up her back. His hand was moving. She continued giggling and I heard her say "Don't touch my breasts," after which Daryl said softly, "I love you," etc.

When confronted with these allegations, plaintiff admitted that Carol Dutcher was in his lap as defendant had reported, but he claimed that Carol "caught me off guard pushing me onto a chair then jumped on my lap." Plaintiff denied ever having his hand under the back of Carol's shirt and further denied telling Carol that he loved her.

When interviewed the next day Ms. Dutcher stated, among other things:

1. Plaintiff told her to sit in the chair.

2. "We sat in the chair and he [plaintiff] rubbed my back and we had love and he loves me."

3. "[H]e [plaintiff] rubbed my breasts * * *."

4. Plaintiff kissed and hugged her.

In a second interview Ms. Dutcher related the following relevant information:

I pushed him [plaintiff] into a chair--he took me onto his lap--he spread his legs so I could sit down.

* * *

* * *

He was trying to find another room--I pushed him and he sat down--he sat me on his one leg--

* * *

* * *

He took his hands on my breasts and put his hands under my dress on the front and he kissed my breasts.

Further investigation led to an interview of another resident, Pat Murray, who stated that on another occasion he had observed plaintiff in the coffee room with Ms. Dutcher, and that plaintiff had his right hand on Ms. Dutcher's breast. Following this investigation plaintiff was terminated from his unclassified position as Teacher II. Thereafter plaintiff requested and received a conference with his department head, which resulted in the affirmance of his termination.

About a year-and-a-half after being terminated plaintiff started this suit by filing a complaint in which he alleged that "defendant, Christine Trow, falsely accused the plaintiff of caressing the breasts and kissing Carol Dutcher" (an accusation we note, that was not included in defendant's report); that defendant knew the statements made by her were false and that she made them "without justification or cause and * * * maliciously;" and that plaintiff's reputation had been damaged, his good name injured, and he had been "brought into public scandal, infamy and disgrace and * * * caused to lose his job as a result." In due course defendant moved for summary judgment on the ground that defendant's report was privileged as a matter of law.

In opposition to the motion plaintiff filed a certification in which he stated:

Although Carol Dutcher did jumpt [sic] into my lap, I never put my hand under the back of her shirt and up her back as the defendant falsely stated to her superiors. Also, I never told Carol Dutcher "I love you." In addition, I do not recall Carol Dutcher stating "Don't touch my breasts," as supposedly heard by the defendant.

In addition, I have reason to believe that the defendant wanted to instigate trouble for me. Approximately one week prior to the incident in question, while the defendant and I were in the supervisor Ron Wyberonniec's [sic] office, I remarked to her that she should not be taking so many Digel pills. The defendant became very indignant and angry with me.

Pursuant to Rule 1:6-2(d) the trial court decided the motion on the papers, without oral argument. The order granting summary judgment for defendant recites that the statements on which the defamation action was based were "privileged." (We note in passing that because suit was not started until twenty months after defendant made her report, there appears to be an obvious statute-of-limitations defense under N.J.S.A. 2A:14-3, which requires that "[e]very action at law for libel or slander * * * be commenced within 1 year next after publication of the alleged libel or slander"; but because that affirmative defense was neither pleaded in defendant's answer nor raised in defendant's motion for summary judgment, and because it has not been adverted to by either party at any stage of these proceedings, we treat it as having been waived. See R. 4:6-7; Rappeport v. Flitcroft, 90 N.J.Super. 578, 581, 218 A.2d 873 (App.Div.1966)).

In reversing the summary judgment for defendant the Appellate Division acknowledged this Court's observation in Kotlikoff v. The Community News, 89 N.J. 62, 67-68, 444 A.2d 1086 (1982), that defamation actions are particularly well-suited to the summary judgment procedure, and recognized as well that "a qualified privilege protects a public employee such as defendant in matters of this sort * * *." The court below concluded, however, that plaintiff's certification in opposition to the motion for summary judgment contained averments from which the trier of the facts could reasonably conclude that the privilege had been abused. The Appellate Division emphasized "[d]efendant's alleged knowledge of the untruthfulness of the statement and her malicious purpose in communicating it to plaintiff's superiors * * *."

II

Our law of defamation is grounded on the principle that people should be free "to enjoy their reputations unimpaired by false and defamatory attacks." Swede v. Passaic Daily News, 30 N.J. 320, 321, 153 A.2d 36 (1959). In certain situations, however, the public interest presents the "vital counter policy" that persons should be permitted to communicate without fear of a defamation action. Ibid. The tension between these competing interests--the encouraging of the free flow of information about matters of public concern, and the protection of reputation--is reflected in the evolution of the law of defamation. See Sisler v. Gannett Co., Inc., 104 N.J. 256, 262, 516 A.2d 1083 (1986) (referring to "the unhappy cohabitation of the tort of defamation, which is protective of an individual's reputation, with constitutional guarantees that serve to protect free speech and press"); Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 135-36, 516 A.2d 220 (1986). The law of privilege is designed to protect speech in those narrowly defined instances in which the public interest in unrestrained communication outweighs the right of redress.

Because the balance between these countervailing principles must be carefully drawn, a privilege may be either absolute or qualified. An absolute privilege confers complete immunity on otherwise defamatory statements. See Dairy Stores, Inc. v. Sentinel Publishing Co., supra, 104 N.J. at 136, 516 A.2d 220. It affords complete protection: "by reason of the occasion on which it is made, no remedy is provided for the damages in a civil action for slander or libel." Rogozinski v. Airstream by Angell, 152 N.J.Super. 133, 149, 377 A.2d 807 (Law Div.) (quoting 53 C.J.S. Libel and Slander § 88 (1948)), modified, 164 N.J.Super. 465, 397 A.2d 334 (App.Div.1977). Because an absolute privilege protects even a maliciously-spoken untruth, it is provided only in the narrowest of instances, where the public interest in unfettered communication justifies the complete abrogation of the plaintiff's right of recovery for damaged reputation. Rogozinski v. Airstream by Angell, supra, 152 N.J.Super. 133, 377 A.2d 807 (class of occasions in which publication of defamatory matters is absolutely privileged is confined within narrow limits, and courts as a rule have steadily refused to enlarge those limits); see also Devlin v....