Mahoney v. Adirondack Pub. Co.

• Decision Date: 04 December 1986
• Parties: , 36 Ed. Law Rep. 409, 13 Media L. Rep. 2061 Jeremiah MAHONEY, Respondent, v. ADIRONDACK PUBLISHING COMPANY, Doing Business as Adirondack Daily Enterprise, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 193

509 N.Y.S.2d 193

123 A.D.2d 10, 36 Ed. Law Rep. 409,

13 Media L. Rep. 2061

Jeremiah MAHONEY, Respondent, v. ADIRONDACK PUBLISHING COMPANY, Doing Business as Adirondack

Daily Enterprise, et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

Dec. 4, 1986.

Fischer, Hughes, Bessette & Edwards (Henry A. Fischer, of counsel), Malone, for appellants.

Lee, Le Forestier, Malone & Hanft, P.C. (David R. Murphy, of counsel), Troy, for respondent.

Before KANE, J.P., and MAIN, YESAWICH, LEVINE and HARVEY, JJ.

LEVINE, Justice.

Plaintiff was and still is a public school teacher and the head coach of the varsity football team of St. Lawrence Central High School, located in Brasher Falls, St. Lawrence County. On Monday, October 3, 1983, defendant Adirondack Publishing Company (hereinafter defendant) published an article in its daily newspaper, the Adirondack Daily Enterprise, whose circulation of about 5,000 copies generally covered the Saranac Lake, Tupper Lake and Lake Placid areas in Essex and Franklin Counties, reporting on a 31 to 7 loss by plaintiff's team in a Northern Athletic Conference away game with Tupper Lake High School. The author of the article was Thomas Bengston, also named as a defendant, then regularly employed as sports editor of the newspaper and concededly acting in that capacity in covering and reporting on the game.

The article was highly critical of plaintiff's coaching conduct during and immediately following the game. Its description of plaintiff's behavior was the subject of six of its first eight paragraphs. After noting the lopsided score, plaintiff was characterized as having "showed himself to be the big loser", who "cursed and belittled his players from the sidelines throughout the game" and in the locker room at its conclusion, where his scolding interlaced with profanities "easily could be heard by embarrassed fans outside the school building". After criticizing plaintiff's coaching strategy of relying upon a passing offense resulting in six interceptions, it was reported that each time plaintiff's quarterback came off the field after an interception, either plaintiff or an assistant coach greeted him with "Come on, get your head out of your &!(!!(&. Play the game." The report asserted that those who listened to plaintiff's verbal abuse of his team "caught a dark glimpse of high school football coaching". The penultimate paragraph of the article stated that plaintiff and his assistants had refused to talk to reporters after the game.

After becoming aware of the subject article, plaintiff brought this libel suit, alleging that the description of his abusive, vulgar and profane language toward his players was false and defamatory of his professional reputation. The action was tried by plaintiff and submitted to the jury under the assumption that, in its characterization of plaintiff's conduct as a high school coach, the article was critical of him in his capacity as a public official and, therefore, plaintiff had the burden of proving with convincing clarity both falsity and malice, i.e., defendants' actual knowledge that the descriptions were false or published with a reckless disregard for their truth or falsity (see, New York Times Co. v. Sullivan, 376 U.S. 254, 285-286, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686; Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379-380, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456).

Plaintiff's principal evidence at the trial consisted of (1) the testimony of various persons who were present at the game on the field or in the visitors' bleachers, positioned in the same or closer proximity to plaintiff than Bengston (from about 10 to 30 feet from plaintiff) at all times, including the field umpire and head linesman who officiated the game, the high school cheerleaders' faculty advisor and the father of the team quarterback reportedly abused, all of whom refuted the article's charges of plaintiff's continuous use of profanities and vulgarisms toward his team on the field; (2) the testimony of the young quarterback, who described being scolded by plaintiff after some of the four (not six, as reported) interceptions he threw during the game, but categorically denied being subjected even once to the vulgar insults attributed to plaintiff after each interception; (3) the testimony of several colleagues in the teaching and scholastic athletic fields that the article was damaging to plaintiff's professional reputation, specifically as related to his coaching ethics; (4) excerpts from Bengston's examination before trial in which he specifically identified the curse words generally described or blanked out in the article; and (5) the testimony of plaintiff's coaching assistant who spoke to Bengston after the game, and other excerpts from Bengston's examination before trial, from which the jury could have inferred that the statement in the article that plaintiff refused to talk to reporters after the game was false.

Plaintiff also testified in his own behalf, and denied verbally abusing the quarterback and using any of the obscenities ascribed to him by Bengston in his deposition. However, he did admit raising his voice and that he had used the words "hell" and "damn", and may have said "goddamn" in reprimanding his team for its poor play. From this concession, Trial Term concluded that, as to those portions of the article in which plaintiff was described as having cursed and used profanities toward his team, plaintiff had failed to sustain his burden of proving clearly and convincingly that the statements were false or published maliciously. Accordingly, the court dismissed plaintiff's cause of action as to those portions of the article and only submitted to the jury the excerpt which purportedly described plaintiff's conduct toward the quarterback.

The only defense witness was Bengston, the reporter who wrote the article. He reaffirmed the accuracy of the article's characterization of plaintiff's behavior as he had observed it, but made other damaging admissions as to the circumstances of his attempt to speak to plaintiff after the game and concerning the single, half-hearted effort to contact plaintiff before publication the following Monday.

At the conclusion of the trial, Trial Term correctly charged the jury on plaintiff's burden to establish by clear and convincing evidence each of the elements of plaintiff's cause of action as to the portions of the article describing plaintiff's remarks to the quarterback; the court also properly instructed the jury on the issues raised by the defense and submitted a 10-item jury questionnaire, which likewise specifically identified the critical issues that the jury had to resolve before granting recovery. The jury returned a verdict in plaintiff's favor, awarding him $10,000 compensatory and $5,000 punitive damages. This appeal followed.

In urging reversal, defendant contends that, as a matter of law, the evidence was insufficient to establish either that the single excerpt from the article submitted to the jury was defamatory or that it was published with malice, that compensatory damages could not have been awarded in the absence of proof of special damages, and that the evidence was also insufficient to have permitted submission of the issue of punitive damages to the jury.

Regarding the sufficiency of the evidence to establish with convincing clarity that the paragraph of the article upon which the jury based its verdict was defamatory of plaintiff and that it was published with malice, we recognize that, in a media libel case such as this, an appellate court must undertake an independent review of the entire record to determine whether the constitutionally mandated, heightened standard of proof has been met (Bose Corp. v. Consumers Union of U.S., 466 U.S. 485, 510, 104 S.Ct. 1949, 1964, 80 L.Ed.2d 502; New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, supra ). Whether the statement complained of is actionable, i.e., reasonably susceptible of a defamatory meaning in its effect upon the average reader, is to be determined by considering the words in the context of the article as a whole and in the circumstances of its issuance (see, Silsdorf v. Levine, 59 N.Y.2d 8, 12-13, 462 N.Y.S.2d 822, 449 N.E.2d 7165 cert. denied 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111; James v. Gannett Co., 40 N.Y.2d 415, 419-420, 386 N.Y.S.2d 871, 353 N.E.2d 834). In our view, accusing plaintiff of repeatedly castigating his young quarterback in vulgar, demeaning terms, read in the context of the general theme expressed in the article that plaintiff's behavior furnished a "dark glimpse of high school football coaching", could readily be understood as charging plaintiff with unethical or incompetent conduct in his professional occupation as a scholastic athletics coach. Factual disparagement of a person's professional ethics or competence may constitute actionable defamation (Buckley v. Littell, 539 F.2d 882, 895-896 (2nd Cir.), cert. denied 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777; Carney v. Memorial Hosp. & Nursing Home of Greene County, 64 N.Y.2d 770, 772, 485 N.Y.S.2d 984, 475 N.E.2d 451; Bruno v. New York News, 89 A.D.2d 260, 268, 456 N.Y.S.2d 837). This conclusion is not obviated because plaintiff was unable to sustain his burden of proof as to the remaining critical portions of the article. Thus, in Buckley v. Littell (supra), recovery for charging news columnist William F. Buckley with engaging in libelous journalism was upheld, despite dismissal as to other portions of a book that were highly critical of Buckley. In the present case, the portrayal of plaintiff as singling out the quarterback for repeated,...