New England Tractor-Trailor Training of Connecticut, Inc. v. Globe Newspaper Co.

• Decision Date: 24 July 1985
• Docket Number: TRACTOR-TRAILER
• Citation: 395 Mass. 471,480 N.E.2d 1005
• Parties: , 26 Ed. Law Rep. 787 NEW ENGLANDTRAINING OF CONNECTICUT, INC. v. GLOBE NEWSPAPER COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1005

480 N.E.2d 1005

395 Mass. 471, 26 Ed. Law Rep. 787

NEW ENGLAND TRACTOR-TRAILER TRAINING OF CONNECTICUT, INC. v. GLOBE NEWSPAPER COMPANY.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 5, 1984.

Decided July 24, 1985.

Mack M. Roberts, Chestnut Hill, for plaintiff.

James F. McHugh, Boston, for defendant.

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

LIACOS, Justice.

The plaintiff, New England Tractor-Trailer Training of Connecticut, Inc. (NETTT-Conn), and New England Tractor-Trailer Training of Mass., Inc. (NETTT-Mass), sued the Globe Newspaper Company (Globe) alleging that a series of articles published by the Globe on career training schools defamed NETTT-Mass and NETTT-Conn. The complaint was in two counts. Count one alleged defamation of NETTT-Mass, and count two alleged defamation of NETTT-Conn. The Globe filed a motion for summary judgment on count two and on part of count one. Both parties filed affidavits. A judge of the Superior Court in Suffolk County granted the Globe's motion. Subsequently, NETTT-Mass and the Globe stipulated to the dismissal with prejudice of count one of the complaint. NETTT-Conn appealed the allowance of summary judgment on count two. The Appeals Court reversed. 18 Mass.App. 906, 462 N.E.2d 1134 (1984). We granted the Globe's application for further appellate review. We reverse the trial judge's entry of summary judgment for the Globe on count two.

The record reveals the following facts. Commencing on March 25, 1974, the Globe published a series of articles pertaining to the private vocational training industry. NETTT-Conn claimed in its complaint that it was defamed by six of the articles in the series. The first article, published in the morning edition of the Globe on March 25, 1974, announced the Globe's investigation into private vocational schools and named no particular schools or types of schools. The second article, published in the evening edition of the Globe on March 25, 1974, and in the morning edition of the Globe on March 26, 1974, described the Globe's investigation in more detail and focused on a particular training school, ITT Tech. The third article, published on March 27, 1974, was entitled, "Home-study schools: Con game or wave of the future?", and again contained generalized comments about the private vocational training industry. It was complemented by four separate articles, also published in the same March 27, 1974, edition, describing four separate schools, none of which was NETTT-Conn.

On March 29, 1974, the Globe published a set of articles on the private vocational training industry including one entitled, "Dead-end trip on rattletrap trucks." This article described the "New England Tractor-Trailer School" and quoted Arlan Greenberg, who was described as "N.E. Tractor president." The school was referred to variously as "New England Tractor-Trailer School," "New England," "N.E. Tractor Trailer," and "N.E. Tractor." This article was highly critical of "New England Tractor-Trailer School." It stated, inter alia, that several instructors at the school had been teaching without required certificates; that the trucks were "run-down," "decrepit, sometimes unsafe"; that Arlan Greenberg, "N.E. Tractor president," "made a number of demonstrably false statements and misrepresentations about the school"; and that the school's contracts with its students "violate[d] the laws of at least two states." The last two articles, published on April 12, 1974, and June 6, 1974, ¹ referred to "New England Tractor-Trailer School," and concerned investigations of the school by the Massachusetts Registry of Motor Vehicles, the office of the Attorney General of Massachusetts, and the New Hampshire Attorney General's Consumer Protection Division. These last two articles repeated many of the critical statements about "New England Tractor-Trailer School" which were contained in the March 29, 1974, article.

The plaintiff claims that it was defamed by these articles. The defendant, Globe, argues that the articles did not defame the plaintiff because they were not written "of and concerning" the plaintiff. Hanson v. Globe Newspaper Co., 159 Mass. 293, 294, 34 N.E. 462 (1893). The Globe argues that the articles published on March 25, 26, and 27, 1974, contained only generalized statements about the private vocational training industry or referred to particular schools, none of which was, or could be confused with, NETTT-Conn. The Globe further argues that the articles published on March 29, April 12, and June 6, 1974, concerned NETTT-Mass exclusively and were not of and concerning NETTT-Conn. The plaintiff contests the Globe's assertions. It argues that while NETTT-Conn and NETTT-Mass are distinct corporations (the former incorporated under the laws of Connecticut, the latter under the laws of Massachusetts), they hold themselves out to be one school with two locations. The plaintiff argues that there is a genuine issue of material fact, i.e., whether the articles were of and concerning NETTT-Conn, and that summary judgment should not have been granted for the Globe. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974).

It is a fundamental principle of the law of defamation that a plaintiff must show, inter alia, that the allegedly defamatory words published by a defendant were of and concerning the plaintiff. New York Times Co. v. Sullivan, 376 U.S. 254, 288, 292, 84 S.Ct. 710, 730, 733, 11 L.Ed.2d 686 (1964). See Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980); Fetler v. Houghton Mifflin Co., 364 F.2d 650, 651 (2d Cir.1966); Restatement (Second) of Torts § 613 (1977). This requirement is described at length in Hanson v. Globe Newspaper Co., supra, ("In a suit for libel or slander, it is always necessary for the plaintiff to allege and prove that the words were spoken or written of and concerning the plaintiff"). The Globe argues that, since an affidavit of the author of these articles shows, without contradiction, that there was no subjective intent to defame NETTT-Conn, it must prevail as matter of law. The Globe relies primarily on Hanson to sustain its position.

It is true that in Hanson v. Globe Newspaper Co., supra, the majority opinion adopted essentially a subjective test for the determination whether a defendant's words are of and concerning the plaintiff. ² The court stated, "The defendant's meaning in regard both to the person to whom the words should be applied and the imputations against him is always to be ascertained." Id. 159 Mass. at 294-295, 34 N.E 462. The central inquiry was aimed at discovering the subjective intent of the defendant because "[d]efamatory language is harmful only as it purports to be the expression of the thought of him who uses it," id. at 295, 34 N.E. 462, and the defendant's "meaning, to be ascertained in a proper way, is what gives character to his act, and makes it innocent or wrongful," id. at 296, 34 N.E. 462. Thus, "all the questions relate back to the ascertainment of [the defendant's] meaning." Id. ³ Compare, however, the dissent of Holmes, J. (in which Morton and Barker, JJ., joined), id. at 299, 303, 34 N.E. 462: "Of course it does not matter that the defendant did not intend to injure the plaintiff, if that was the manifest tendency of his words."

Two points need be made about Hanson. First, Hanson bears close scrutiny today from the twin perspectives of tort law and constitutional law. Written nearly 100 years ago, it represents an historical view of tort law largely rejected by later cases, see infra at 1010, and it fails to accommodate the profound changes in defamation law brought about by New York Times Co. v. Sullivan, supra, and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Second, the issue of negligent defamation of an entity in the position of NETTT-Conn was not before the court. Hanson, supra 159 Mass. at 299, 34 N.E. 462.

We believe that a purely subjective test for determining whether a defendant's words are of and concerning the plaintiff represents an outmoded historical conception of tort law. See 2 F. Harper & F. James, Torts § 16.2 (1956). As stated by Justice Holmes, an awkward person's "slips are no less troublesome to his neighbors than if they sprang from guilty neglect." O.W. Holmes, Jr., The Common Law 108 (1881). Tort law generally deems those injured by a person's unintentional slips deserving of compensation if the slips could have been avoided through the use of ordinary care.

A purely subjective test for determining whether a defendant's words are of and concerning the plaintiff unduly narrows the potential for liability in defamation cases and leaves deserving plaintiffs uncompensated. In determining the proper test, however, we affirm the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, supra 376 U.S. at 270, 84 S.Ct. at 721, and the constitutional rule which follows that courts may not impose liability without fault in defamation cases. Gertz v. Robert Welch, Inc., supra 418 U.S. at 347, 94 S.Ct. at 3010. In Gertz, the Supreme Court of the United States held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Id. In Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 855, 330 N.E.2d 161 (1975), we resolved the conflict between the "right of redress to one who suffers injury to his reputation by the publishing of a defamatory falsehood" and the "freedom of expression ... guaranteed by the First Amendment," by holding that "private persons ... may recover compensation on proof of negligent publication of a defamatory falsehood" (emphasis in original). Id. at 858, 330 N.E.2d 161. In the present case, we similarly hold that...