Goodrich v. Waterbury Republican-American, Inc., REPUBLICAN-AMERICA

• Court: Supreme Court of Connecticut
• Writing for the Court: DALY
• Citation: 448 A.2d 1317,188 Conn. 107
• Parties: , 8 Media L. Rep. 2329 Harold GOODRICH v. WATERBURY
• Decision Date: 17 August 1982
• Docket Number: INC,REPUBLICAN-AMERICA

Page 1317

448 A.2d 1317 188 Conn. 107, 8 Media L. Rep. 2329 Harold GOODRICH
v.
WATERBURY REPUBLICAN-AMERICAN, INC. Supreme Court of Connecticut. Argued Feb. 11, 1982.
Decided Aug. 17, 1982.

Page 1320

[188 Conn. 108] William J. St. John, Jr., Waterbury, with whom was Joseph W. Doherty, Waterbury, for appellant (plaintiff).

John H. Cassidy, Jr., Waterbury, with whom, on the brief, was W. Fielding Secor, Waterbury, for appellee (defendant).

Before [188 Conn. 107] PETERS, PARSKEY, ARMENTANO, SHEA and DALY, JJ.

[188 Conn. 108] DALY, Associate Justice.

The plaintiff brought this action to recover damages for allegedly libelous statements that were printed about him in the defendant newspaper in November 1974. When all the evidence was in, the court directed a verdict for the defendant. The plaintiff appeals from the final judgment and assigns as error the court's action in directing the verdict and in refusing to set the verdict aside. "In reviewing the action of the trial court, in first directing and thereafter refusing to set aside the verdict, we consider the evidence, including inferences which reasonably may be drawn from this evidence, in the light most favorable to the plaintiff." Pinto v. Spigner, 163 Conn. 191, 193, 302 A.2d 266 (1972). ¹

[188 Conn. 109] The jury could reasonably and logically have found the following facts: In November 1974, the plaintiff was a real estate builder and developer in the town of Middlebury. He had been in that business for twelve years and had built fifty-seven homes. At this time, the plaintiff was also the owner and developer of a shopping center known as the Middlebury Hamlet (hereinafter the Hamlet) that he had constructed on route 64 in Middlebury. The land for this development was purchased in May 1973, after the plaintiff had applied to the Middlebury planning and zoning commission (hereinafter the commission) for a permit to relocate a brook on the property. This permit was granted and the site plan was approved by the commission in March or April 1973, provided that the plaintiff fulfill three conditions: (1) that he install riprapping; (2) that he establish an effective settling basin; and (3) that he take all other necessary measures to prevent erosion. The commission also required the plaintiff to post a contractor's bond to ensure the fulfillment of these conditions, and a bond having an expiration date of May 1974 was subsequently posted.

Construction began in August 1973, and was substantially completed by April 1974. About this time, however, the commission became concerned about a drainage problem caused by the plaintiff's failure to fulfill the conditions of the permit. The plaintiff appeared before the commission in June and represented that he was working on the problem and that it was 80 percent solved. The commission's continuing concern led it to request the assistance of the United States Department of Agriculture-Soil Conservation

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Service (hereinafter U.S.D.A.-S.C.S.), as well as to pass a resolution at its September meeting that set November [188 Conn. 110] 7 as the deadline for completing the settling basin. When it met on November 7, the commission approved the recommendations of the U.S.D.A.-S.C.S., which established new compliance deadlines of December 5, 1974 and May 15, 1975. ²

At the time of this meeting, approximately 37 percent of the available rental space in the shopping center was occupied. Mechanic's liens totaling $60,486.38 had been filed against the Hamlet, as well as a suit claiming a brokerage commission for the placement of mortgage financing. The plaintiff was in default under his construction mortgage, which was subsequently foreclosed. Finally, the commission had met with police officials concerning traffic problems that had developed on route 64 after construction of the Hamlet.

The defendant's reporter, Mary Kane Skowronski, was assigned to cover news exclusively in Middlebury. After attending the commission meeting of November 7, she wrote articles about the Hamlet that were printed in the defendant's newspaper on November 8 and 10. ³ The plaintiff requested in writing that the defendant retract certain statements in the articles, but no retraction was made. Thereafter, the plaintiff brought the present suit against the defendant for libel and invasion of privacy, to which the defendant raised the defense of truth and the privilege of "fair comment."

I

We begin with the critical determination of whether, as a matter of law, the allegedly libelous [188 Conn. 111] assertions can reasonably be characterized as either a fact or an opinion, since this determination will guide our analysis. ⁴ See Letter Carriers v. Austin, 418 U.S. 264, 282-87, 94 S.Ct. 2770, 2780-2783, 41 L.Ed.2d 745 (1974); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977); Gregory v. McDonnell Douglas Corporation, 17 Cal.3d 596, 601, 131 Cal.Rptr. 641, 552 P.2d 425 (1976). A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known. See generally 1 Harper & James, Torts § 5.28, p. 458 n.11, § 7.8, p. 560; Black's Law Dictionary (5th Ed. 1979); Ballentine's Law Dictionary (3d Ed. 1969). In a libel action, such statements of fact usually concern a person's conduct or character. 3 Restatement (Second), Torts § 565. An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact. Id., § 566, p. 171.

This distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains an opinion "if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated." (Emphasis added.) Ibid. Thus, while this distinction may be [188 Conn. 112] "somewhat nebulous, ... [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement

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of existing fact." ⁵ 1 Harper & James, op. cit., § 5.28, p. 458; Mashburn v. Collin, 355 So.2d 879, 885 (La.1977). A

In a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense. ⁶ Dacey v. Connecticut Bar Ass'n, 170 Conn. 520, 538, 368 A.2d 125 (1976), citing Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 489-90, 95 S.Ct. 1029, 1043-1044, 43 L.Ed.2d 328 (1975). Contrary to the common law [188 Conn. 113] rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial proof need be shown to constitute the justification. Johnson v. Whipple, 117 Conn. 599, 601-602, 169 A. 619 (1933); Stow v. Converse, 4 Conn. 17, 33 (1821). "It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that 'the main charge, or gist, of the libel' is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable." (Footnote omitted.) Gatley, Libel and Slander (2d Ed.) p. 178. See Eldredge, The Law of Defamation (1978) § 71; Orr v. Argus-Press Co., 586 F.2d 1108, 1112 (6th Cir. 1978). The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced. Griffin v. Clemow, 28 Conn.Sup. 109, 111, 251 A.2d 415 (1968), citing Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537 (1934).

Upon examining the statements complained about by the plaintiff, we note that three of them are clearly factual: (1) "On the surface, the Middlebury Hamlet is an attractive colonial-type shopping complex located about two miles from the Four Corners business district"; (2) "Harold K. Goodrich, owner and developer, faces close to $100,000.00 in liens and lawsuits against the property, and possibly another lawsuit from the town's Planning and Zoning Commission"; (3) "A plumbing and heating firm, a lumber company, and a paving company have filed a total of $60,486.00 in liens against the Hamlet developer. And a $30,000.00 suit was filed against Goodrich for failure to pay a brokerage commission [188 Conn. 114] on the Hamlet's mortgage financing." We need not inquire further, however, since the plaintiff conceded during direct examination that these statements were true, and this concession creates an absolute bar to his claim of libel as to these statements. Dacey v. Connecticut Bar Ass'n, supra; Cox Broadcasting Corporation v. Cohn, supra.

The remaining allegations of libel consist of statements of fact combined with opinions or comments based upon those facts. Although some authorities have applied the defense of truth in such circumstances; Commercial Publishing Co. v. Smith, 149 F.

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704, 706-707 (6th Cir. 1907); Gatley, op. cit., p. 177; Prosser, Torts (4th Ed. 1971) § 116, pp. 796-97; others have expressly limited the defense of truth to justify only statements of fact. Hogan v. New York Times Co., 313 F.2d 354, 356 n.2 (2d Cir. 1963); Eldredge, The Law of Defamation (1978) § 63, p. 323; 3 Restatement (Second), Torts § 581A. We need not choose between these authorities, however, for "[w]here the comment or opinion deals with matters of public interest, the privilege of 'fair comment' is involved which affords an immunity of considerably wider latitude." (Footnote omitted.) 1 Harper & James, op. cit., § 5.20, p. 419. B

The privilege of "fair comment," which was one of the most important privileges realized at common law, was a qualified privilege to express an opinion or otherwise comment on matters of public...