Feggans v. Billington
| Citation | 291 N.J.Super. 382,677 A.2d 771 |
| Parties | Vinnie M. FEGGANS, Plaintiff-Respondent, v. Allen BILLINGTON, Maxwell Bricks, Kimberly Burd, Robert Burd, Nicholas Cardella, Judith Chorba, Arthur H. Coughlin, Joseph Decker, Lee Esposito, Karl Flesch, Cynthia Forero, Paul Fort, Janice Hargraves, Debra Johnson, Theodore Jones, Lisa Keegan, Thomas Kennedy, Vincent Maffei, Matthew D. Mahady, Ellen McCourt, Kevin McSherry, Michael Pitts, Jon Popyk, Florence Risco, Dean Robinson, Donald Rooney, John Shea, Pallavi Shah, Thomas Simko, Karl Swanson, Michele Teschko, Gerald Weber, Donald Woodruff and Steve Zimnes, Defendants-Appellants, and State of New Jersey, et al., Defendants. |
| Decision Date | 18 June 1996 |
| Court | New Jersey Superior Court – Appellate Division |
Paul D. McLemore, Trenton, for respondent (Mr. McLemore, attorney and on the brief).
Before Judges BAIME, VILLANUEVA and KIMMELMAN.
The opinion of the court was delivered by
VILLANUEVA, J.A.D. (Retired and temporarily assigned on recall).
Thirty-four of forty-eight defendants appeal by leave we granted from the trial court's denial of their motion for summary judgment to dismiss defamation counts against them. We reverse.
This lawsuit arises out of events that occurred in 1991. Plaintiff Vinnie M. Feggans, an employee of the State of New Jersey At the end of that year, plaintiff's performance evaluation included a warning that she was to perform only State work on State time. In the spring of 1992, plaintiff reported to the then director of OTIS that some of her co-workers, including supervisory personnel, conducted a sports pool on State equipment during work hours. Plaintiff alleged that as a result of this report she was subjected to retaliatory harassment; therefore, she requested a transfer to another directorate at OTIS, the directorate at which the supervisory and co-worker defendants in this action work.
assigned to the Department of Treasury's Office of Telecommunications and Information Systems (OTIS), alleges that she was sexually harassed in April 1991 by co-worker Michael Coleman. In addition to filing a [677 A.2d 774] criminal complaint against Coleman, plaintiff asserted a discrimination charge with the Department of Treasury against OTIS management. The department found insufficient evidence to support a finding of probable cause. 1
Plaintiff alleges that after her transfer she was subjected to ongoing retaliatory harassment in the form of false reports of disruptive behavior against her. Plaintiff contends that the harassment and retaliation continued from November 1992 through October 1994. Her complaint recounts several interactions with OTIS personnel which, she alleges, resulted in her being unjustly accused of disruptive behavior. In particular, plaintiff complains that on November 29, 1994, Joanne Watkins, another OTIS employee, "grabbed plaintiff by her left arm" and failed to release her grasp until plaintiff "pulled away." As a result of this incident, plaintiff filed charges against Watkins in Thereafter, a petition and memorandum ("petition") dated January 4, 1995, was circulated among OTIS employees, allegedly by Ivan Dommasch, which provided as follows:
the Trenton Municipal Court 2 and a grievance through her collective bargaining unit representative.
We, the undersigned, have been made aware of a situation in which Vinnie Feggans, of our directorate, has filed a criminal complaint against Mrs. Joanne Watkins. Ms. Feggans claims that Mrs. Watkins physically attacked her on the afternoon of November 29, 1994. Such a physical attack is totally uncharacteristic of Ms. Watkins.
We, the undersigned, are also aware that Ms. Feggans previously filed a sexual harassment suit against a fellow employee during her previous assignment in another directorate. That suit was thrown out, but not without causing stress and damage to the reputation of the individual against whom the suit was filed. After the law suit, Ms. Feggans was assigned to this directorate. Ms. Feggan's [sic] is pursuing a similar course of action here, although she is now manipulating the criminal justice system as opposed to the civil court system.
We, the undersigned, attest that since the assignment of Ms. Feggans to this directorate, morale and productivity have markedly deteriorated. Stress and frustration have become commonplace. In fact, since Ms. Feggan's [sic] arrival, stress related health problems have been reported by several individuals directly involved with her. In addition, most employees located anywhere in the vicinity of Ms. Feggans are fearful that she may file an unfounded criminal or civil action against anyone who offends her.
We, the undersigned, cannot tolerate Ms. Feggan's [sic] incorrigible behavior. She has shown herself capable of maliciously attacking the character of any State employee who may have contact with her (in this latest incident, Joanne Watkins). We, the undersigned, therefore request that Vinnie Feggans be physically removed from our work site in such a way that we are no longer required to have any contact with her whatsoever.
Forty-five State employees, including the thirty-four defendants involved in this appeal, signed the petition. Plaintiff contends that the petition is defamatory and that its circulation by Dommasch is evidence of a conspiracy to collectively retaliate against plaintiff. 3
On April 17, 1995, plaintiff initiated this action by filing a sixty-four count complaint against forty-eight defendants, including the State and plaintiff's supervisors and co-workers, asserting claims that include conspiracy, gender discrimination, racial discrimination, unlawful retaliation, sexual harassment, and defamation. Thirty-four co-worker defendants 4 (co-worker defendants or co-workers) moved for summary judgment. Plaintiff cross-moved for an order to deny the co-worker defendants any further legal defense by the State of New Jersey. On October 27, 1995, the trial court denied said defendants' motion and plaintiff's cross-motion. On November 13, 1995, the co-worker defendants filed a motion for leave to appeal, which we granted.
The co-worker defendants argue that the trial court erred in its determination that plaintiff produced clear and convincing evidence sufficient to establish a genuine issue of material fact concerning whether they acted with an improper motive or reckless disregard for the truth or falsity of the statements contained in the petition by signing it.
A statement is defamatory when it "is false and 'injurious to the reputation of another' or exposes another person to 'hatred, contempt or ridicule' or subjects another person to 'a loss of the good will and confidence' in which he or she is held by others." Romaine v. Kallinger, 109 N.J. 282, 289, 537 A.2d 284 (1988). (citations omitted). In order to prove defamation, a plaintiff
must establish, in addition to damages, that the defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff. Bainhauer v. Manoukian, 215 N.J.Super. 9, 31-34, 42 n. 13, 520 A.2d 1154 (App.Div.1987); see also Abella v. Barringer Resources, Inc., 260 N.J.Super. 92, 98, 615 A.2d 288 (Ch.Div.1992) (quoting Restatement (Second) of Torts § 558 (1977)). The fifth element that must be proven is fault. Where, as here, plaintiff is a private figure and the speech is about an exclusively private concern, a traditional negligence standard of fault is applicable, which is defined as communicating the false statement while acting negligently in failing to ascertain the truth or falsity of the statement before communicating it. Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392, 402-13, 655 A.2d 417 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 752, 133 L.Ed.2d 700 (1996); Sisler v. Gannett Co., 104 N.J. 256, 277, 516 A.2d 1083 (1986); Bainhauer v. Manoukian, supra, 215 N.J.Super. at 32-35, 520 A.2d 1154; see also Restatement (Second) of Torts § 580B (1977) (). Fault may also be established by showing that defendant knows the statement is false and that it defames plaintiff or defendant acts with reckless disregard of its truth or falsity. Bainhauer v. Manoukian, supra, 215 N.J.Super. at 32-33, 520 A.2d 1154.
Our courts have recognized the existence of certain situations in which public interest considerations outweigh the interest in the protection of reputation and persons are allowed to communicate without fear of being sued. Fees v. Trow, 105 N.J. 330, 336, 521 A.2d 824 (1987); Gallo v. Princeton Univ., 281 N.J.Super. 134, 142, 656 A.2d 1267 (App.Div.), certif. denied, 142 N.J. 453, 663 A.2d 1359 (1995). Thus, some otherwise defamatory statements are privileged, i.e., "their publication does not impose liability on the publisher." Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 136, 516 A.2d 220 (1986).
A privilege may be absolute or qualified. Ibid. An absolute privilege, since it protects even a maliciously-spoken untruth, is provided the publisher of the statement "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." Fees v. Trow, supra, 105 N.J. at 337, 521 A.2d 824. A conditional or qualified privilege "is designed to advance the important public interest in unrestrained speech while retaining a measure of protection for the plaintiff who is maliciously defamed." Ibid.; Costello v. Ocean County Observer, 136 N.J. 594, 606, 643 A.2d 1012 (1994); Gallo v. Princeton Univ., supra, 281...
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