Fleming v. Benzaquin

• Decision Date: 16 September 1983
• Citation: Fleming v. Benzaquin, 390 Mass. 175, 454 N.E.2d 95 (Mass. 1983)
• Parties: James F. FLEMING et al. 1 v. Paul A. BENZAQUIN et al. 2
• Court: Supreme Judicial Court of Massachusetts

Page 95

454 N.E.2d 95

390 Mass. 175

James F. FLEMING et al.¹ v.Paul A. BENZAQUIN et al.²

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 5, 1983.

Decided Sept. 16, 1983.

Charles R. Parrott, Boston (Andrew J. McElaney, Jr., Boston, with him), for Westinghouse Broadcasting Co., Inc.

Thomas Arthur Hensley, Brockton, for plaintiffs.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

This is an action for defamation, intentional infliction of severe emotional distress, and loss of consortium brought by James F. Fleming, a Massachusetts State police officer, and Kathleen T. Fleming, his wife, against Paul A. Benzaquin, the host of a nightly radio "talk show" on radio station WBZ, and Westinghouse Broadcasting Company, Inc.(Westinghouse), ³ which owned and operated WBZ.The complaint specifies a number of comments allegedly made by Benzaquin during his broadcast on June 13, 1977, which the plaintiffs contend defamed Officer Fleming, caused him severe emotional distress, and deprived his wife of his consortium.A Superior Court judge denied Westinghouse's motion to dismiss the complaint for failure to state a claim on which relief could be granted.⁴Mass.R.Civ.P. 12(b)(6), 365 Mass. 754(1974).Subsequently, the defendants each moved for summary judgment, offering in support a transcript of relevant portions of the program, ⁵ portions of Officer Fleming's deposition, the memorandum of the judge who denied the motion to dismiss, and a memorandum of law.The Flemings opposed the motions, offering other portions of Officer Fleming's deposition and a memorandum of law.Another Superior Court judge denied the motions without opinion.The defendants were granted leave to appeal the denials under G.L. c. 231, § 118, by a single justice of the Appeals Court.The defendants entered their appeal in the Appeals Court and we transferred the case here on our own motion.G.L. c. 211A, § 10(A).

The following facts are not in dispute.Shortly after noon on June 13, 1977, Benzaquin, his daughter, and his two young grandsons were driving in Benzaquin's car on Route 123 in Norwell, on their way to the beach.As they passed the State police barracks on Route 123, they were observed by Trooper Fleming, who was exiting from the driveway of the barracks in his cruiser.Fleming noticed that Benzaquin's car did not have a license plate attached to the front, did not have an inspection sticker displayed on the windshield, and appeared to have an expired registration.Using his siren and flashing lights, Fleming directed Benzaquin's car over into a parking lot alongside the road.Benzaquin gave a number of explanations for the conditions Fleming had observed: namely, that the front plate had been stolen, that the inspection sticker had fallen from the windshield onto the dashboard, and that the Registry of Motor Vehicles or his insurance company had made an error on the registration of his car, which was newly purchased.According to Benzaquin's statement on his program later that night, "I used a lot of loud voice, but I made it absolutely clear ... the fact that I wasn't angry at him.I was angry at my insurance company and I was more angry at the Registry of Motor Vehicles for making me vulnerable on the highway."

Fleming wrote up a ticket and explained that he could not allow Benzaquin to proceed in his car.Rather than have the car towed, Fleming allowed Benzaquin to leave the car in the parking lot of an automobile dealership next to the lot where Benzaquin had pulled over.After securing his vehicle, Benzaquin, his daughter, and his grandsons drove off with a friend whom he had called to pick them up.

At the start of his broadcast later that night, Benzaquin gave a description of the incident which he prefaced with statements that he was angry, felt oppressed, and was liable to be prejudiced.⁶He stated that he wanted to describe the incident, "because it seems to me important that public servants remain servants and not make us servile to them."Benzaquin expressed his opinion that, in the circumstances, Officer Fleming could simply have given him a warning, told him to clean up his affairs, and sent him on his way.Fleming alleges that some of the statements in this description of events defamed him.

After describing the incident, Benzaquin invited people who were "outrage[d] about any kind of government bureaucracy" to telephone him during the broadcast.He also invited Officer Fleming to telephone and present his views.Benzaquin admitted that Fleming had cause to stop his car.During his discussion with one caller, Benzaquin stated that the stop occurred not far from his home and then suggested that Fleming could simply have followed him home.When another caller expressed her view that Fleming was simply doing his job, Benzaquin responded that, "I commend him for doing his job.But what I can't commend anybody for is not being reasonable enough to let us proceed to a place where we could change vehicles, where I could get those little boys out of the hot sun and away from danger.Instead, we were grounded.The vehicle was taken away from us."When a third caller expressed disbelief "that a trooper would just leave a person standing there stranded on the side of the road after he had impounded the car" and asked how Benzaquin had obtained a ride, Benzaquin replied that, "I got a ride.But I did it through my own initiative, no help from the State Police," and stated that Fleming had not offered him a ride.In various conversations with other callers, Benzaquin allegedly made the rest of the statements which Fleming claims defamed him.⁷On a number of occasions, Benzaquin reiterated that he was angry, likely to be biased, and that his listeners should take account of those facts.Near the end of the program, Benzaquin engaged in a discussion with a caller, ⁸ in which Benzaquin summed up his impression of the program, his motive for opening discussion of the incident, and his opinion that it was "utterly unreasonable ... for [Fleming] to take me out of that automobile and ground those two little kids."

In his deposition, which was submitted to the judge in opposition to the defendants' motions for summary judgment, Fleming states that he offered to give Benzaquin and his family a ride home but that Benzaquin refused, saying he would arrange his own transportation.Fleming also states that he directed Benzaquin's car over into a parking lot where it was safe and out of the way of traffic.Other than this, the plaintiffs do not dispute the accuracy of Benzaquin's narration of the sequence of events in any significant respect.

The plaintiffs contend that Benzaquin's statements are false, defamatory statements of fact and therefore actionable.The plaintiffs contend further that, to the extent Benzaquin's statements represent only opinion, they are nonetheless actionable because they are based on a false statement of facts.The plaintiffs do not contend that the statements, if opinion, are actionable because they imply the existence of undisclosed, defamatory facts.SeePritsker v. Brudnoy, 389 Mass. 776, 452 N.E.2d 227(1983);Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 312-313435 N.E.2d 1021, cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603(1982);Restatement (Second) of Torts§ 566(1977).We consider first whether the statements could reasonably have been understood as assertions of fact.

1.The Statements as Fact or Opinion.

"In deciding whether statements can be understood reasonably as fact or opinion 'the test to be applied ... requires that the court examine the statement in its totality in the context in which it was uttered or published.The court must consider all the words used, not merely a particular phrase or sentence.In addition, the court must give weight to cautionary terms used by the person publishing the statement.Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.' "Cole v. Westinghouse Broadcasting Co., supra386 Mass. at 309, 435 N.E.2d 1021, quoting fromInformation Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784(9th Cir.1980).SeeMyers v. Boston Magazine Co., 380 Mass. 336, 341-342, 403 N.E.2d 376(1980).We apply this test to the statements challenged here.⁹

Many of the statements complained of, in context, fall readily into the categories of ridicule and simple verbal abuse.SeeRestatement (Second) of Torts§ 566, comments d and e (1977).The terms "arrogants,"¹⁰"little monkey,""tough guy,""absolute barbarian,""lunkhead,""meathead," and "nut," by which Benzaquin apparently referred to Fleming and the terms "servile,""unconscionable,""reprehensible,""merciless," and "absolute outrage," which Benzaquin apparently used to characterize Fleming's conduct are no more than either Benzaquin's "harsh judgment," clearly based on the facts he disclosed, id. at comment d, or "mere vituperation and abuse,"id. at comment e. ¹¹ While the statements did not arise in the course of the classic face-to-face confrontation, Benzaquin repeatedly told his audience that he was angry and upset and warned that they were "hearing a lot of noise that doesn't have to do with the facts."Benzaquin also disclaimed any intent "to say anything about [Fleming] as a person" or to "say he's unfit or any of the other things that might be said by generalities."Further, as was the case with the statements at issue in Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 435 N.E.2d 1021(1982), "[t]he meaning of these statements is imprecise and open to speculation.They cannot be characterized as assertions of fact.They cannot be proved false.'An assertion that cannot be proved false cannot be held libellous' "(citation omitted).Id. at 312, 435 N.E.2d 1021.

Benzaquin's...