Miller v. City of West Columbia, 24432
| Decision Date | 19 March 1996 |
| Docket Number | No. 24432,24432 |
| Citation | 471 S.E.2d 683,322 S.C. 224 |
| Court | South Carolina Supreme Court |
| Parties | Ralph MILLER, Respondent, v. The CITY OF WEST COLUMBIA, G.F. Broom, Jr., City Administrator; P.K. O'Neill; H.C. Salters, Jr.; and Doris Davis, individually and in their representative capacities as officers and employees of the West Columbia Police Department, Defendants, of whom G.F. Broom, Jr., City Administrator; and Doris Davis, individually, and in her representative capacity, are Appellants. . Heard |
Vance J. Bettis and Stephen T. Savitz, Gignilliat, Savitz & Bettis, Columbia, for Appellants.
Arthur K. Aiken and Eric G. Fosmire, Collins & Lacy, Columbia, for Respondent.
Respondent Ralph Miller commenced this action alleging defamation, outrage or intentional infliction of emotional distress, and constructive wrongful discharge. The trial court denied Appellants' motions for judgment notwithstanding verdict (JNOV) and for a new trial, and declined to intervene with the award of damages against Broom. This appeal followed.
Doris Davis was a dispatcher at the West Columbia Police Department. On August 26, 1988, Davis telephoned G.F. Broom, Jr., City Administrator of West Columbia, and alleged that Ralph Miller, the Assistant Chief of Police of West Columbia, had sexually harassed her. Legal counsel advised Broom to investigate Davis' allegations by obtaining a written statement from her and polygraphing her. Broom was then advised to confront Miller with the allegations and polygraph him.
On August 31, 1988, Davis gave a sworn statement and was polygraphed. The polygraph examiner testified that Davis did not pass the polygraph examination. In fact, Davis received a score of minus nineteen--indicating attempted deception. However, the examiner further stated that victims will often show deception when tested. Therefore, because Davis was a victim, the examiner recommended that Miller be polygraphed as soon as possible.
On September 3, 1988, Broom and the Chief of Police of West Columbia, Vernon Boatwright, met with Miller and told him that Davis had made "unsubstantiated" sexual harassment allegations against him. Miller denied that he had made sexual advances toward Davis and agreed to take a polygraph examination. 1 Before the polygraph could be given, Miller experienced back problems which resulted in surgery and a subsequent extended recuperation period. During this time, Miller learned that Davis had failed the polygraph examination. On November 7, 1988, Miller informed Broom that he would return to work on a limited schedule, and before submitting to a polygraph examination, he wanted to know what questions would be asked and who would administer it.
When Miller returned to work on November 29, 1988, Broom along with Captain Salters and Sergeant Jones met with him and asked him whether he was prepared to take a polygraph. He responded that on the advice of his attorney he would take it at SLED, or if Frank Faulk administered it, or if he was given advance notice of who would administer it to verify their qualifications and reputation. As a result and in the presence of Salters and Jones, Broom declared that he had no choice but to conclude that Miller had sexually harassed Davis and had lied about it. Broom further explained that he was immediately suspending Miller and would recommend to the West Columbia City Council that he be terminated. The next day, The State newspaper printed an article regarding Miller's suspension. Two days later, Miller opted to retire effective December 31, 1988.
Did the trial court err in:
I. Refusing to grant Broom's JNOV motion?
II. Denying Appellants' motion for a new trial?
III. Failing to intervene with the award of damages against Broom?
Broom contends that the trial court erred in denying his JNOV motion because Miller failed to satisfy the Constitutional actual malice standard. We disagree.
When reviewing an actual malice determination, the appellate court is obligated to independently examine the entire record to determine whether the evidence sufficiently supports a finding of actual malice. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). To recover on a claim for defamation, the Constitutional actual malice standard requires a public official to prove by clear and convincing evidence that the defamatory falsehood was made with the knowledge of its falsity or with reckless disregard for its truth. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Botchie v. O'Dowd, 315 S.C. 126, 432 S.E.2d 458 (1993); Beckham v. Sun News, 289 S.C. 28, 344 S.E.2d 603 (1986), cert. denied, 479 U.S. 1007, 107 S.Ct. 646, 93 L.Ed.2d 702 (1986).
Here, the record establishes that Broom was investigating Davis' allegations that Miller had sexually harassed her. Broom first secured a written statement from Davis and then polygraphed her. The results of the polygraph examination revealed that her answers to the relevant questions indicated deception. Consequently, the examination results were not a basis upon which one could conclude that Miller had sexually harassed Davis.
Although Miller may have impeded the investigation by refusing to take a polygraph examination under Broom's conditions, this act did not give Broom justification to conclude that Miller had in fact sexually harassed Davis, or to defame him in the presence of Police Officers Salters and Jones. Instead, Broom could have suspended Miller pending further investigation into the matter. This is especially true when considering the fact that there was no evidence to confirm that Davis had complained to other individuals within the department concerning Miller's behavior or that Miller had made any off-color comments, innuendos or improprieties. Under these circumstances, Broom's conclusion that Miller had sexually harassed Davis was factually unsupported.
Nevertheless, to establish that the statement was made with reckless disregard for the truth, Miller must demonstrate that Broom in fact entertained serious doubts as to the truth of his statement. See Botchie v. O'Dowd, supra; Hubbard and Felix, The South Carolina Law of Torts, (1990). At trial, Broom stated, Clearly, this statement demonstrates that Broom had serious reservations about Davis' allegations. We therefore conclude that Broom's statement was made with reckless disregard for the truth.
After reviewing the record, we conclude that Broom uttered the defamatory statement with Constitutional actual malice and, therefore, the trial court did not err in denying his JNOV motion.
Davis and Broom contend that the trial court erred in (1) allowing Officer Cochcroft to testify concerning his consensual sexual relationship with Davis while she was married, and (2) refusing to charge that an employee has the right to accept sexual comments and overtures from some employees and to reject them from other employees. As a result, they argue that the jury was permitted to conclude that because Davis had been sexually promiscuous with Cochcroft, she could not have been sexually harassed by Miller. They therefore maintain that the trial court erred in denying their new trial motion. We disagree.
After the trial court determined that the evidence regarding the Cochcroft-Davis relationship was inadmissible, counsel for Davis specifically asked Cochcroft whether Officer O'Neill had talked to him about "any other personnel matters". Counsel also asked Cochcroft if O'Neill had talked to him about his incident and this incident with Davis. From these inquiries, we conclude that the door to testimony regarding the Cochcroft-Davis relationship was opened by counsel for Davis during the cross-examination of Cochcroft.
Moreover, on several other occasions during trial the Cochcroft-Davis relationship was discussed without objection by O'Neill, Broom, and Davis. In fact, during the cross-examination of O'Neill the alleged objectionable testimony was elicited by counsel for Appellants. One who purposefully elicits testimony on a particular subject without reserving his objections and receives the relevant response waives any alleged error. Thomas-McCain, Inc. v. Siter, 268 S.C. 193, 232 S.E.2d 728 (1977). Accordingly, by pursuing and developing evidence regarding the Cochcroft-Davis relationship, Appellants have waived any alleged error in its admission.
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