Ravnikar v. Bogojavlensky

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: COWIN, J.
• Citation: 782 NE 2d 508,438 Mass. 627
• Decision Date: 03 February 2003
• Parties: VERONICA RAVNIKAR v. SERGEI BOGOJAVLENSKY.

438 Mass. 627
782 NE 2d 508

VERONICA RAVNIKAR
v.
SERGEI BOGOJAVLENSKY

Supreme Judicial Court of Massachusetts, Middlesex.

December 3, 2002.

February 3, 2003.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Paul F. Kelly (Michael Doheny with him) for the plaintiff.

John J. Ryan, Jr. (Emily G. Coughlin with him) for the defendant.

COWIN, J.

The plaintiff, Veronica Ravnikar, complains that the defendant, Sergei Bogojavlensky, made false statements about her health in 1998. Initially the plaintiff filed suit in Middlesex Superior Court, but, because there was no reasonable likelihood

438 Mass. 628

of recovery in excess of $25,000, the action was dismissed for lack of jurisdiction pursuant to St. 1996, c. 358, § 4.¹ The plaintiff then sued the defendant in the Newton Division of the District Court Department, alleging defamation, intentional interference with business relations, invasion of privacy (pursuant to G. L. c. 214, § 1B), and unfair competition (pursuant to G. L. c. 93A, § 11). The defendant moved for summary judgment on all counts. In February, 2001, a District Court judge granted the defendant's motion without a written opinion. The plaintiff appealed to the Appellate Division of the District Court, which affirmed the decision of the District Court. The plaintiff appealed from the decision of the Appellate Division and we transferred the case from the Appeals Court on our own motion

1. Background. We recite the facts in the light most favorable to the plaintiff. See Harrison v. NetCentric Corp., 433 Mass. 465, 468 (2001). Both the plaintiff and the defendant are physicians specializing in obstetrics and gynecology who practice in Massachusetts. The plaintiff was diagnosed with breast cancer in 1995 and successfully treated. In 1997, a patient who was seeing the defendant for the first time told him during an appointment that she was looking for a "new" gynecologist and she "was also going to see" the plaintiff. The defendant responded, "Oh, she's dying of breast cancer. It's such a shame. She's a young woman." After the patient stated that she would see the plaintiff anyway, the defendant reiterated that the plaintiff's condition was "terminal." The defendant later conceded that, although he had learned from colleagues that the plaintiff had cancer, he had no reason to believe that the plaintiff was terminally ill. The patient eventually went to see the plaintiff and repeated the defendant's remarks. Although the plaintiff was upset by the defendant's statement, there is no evidence that the plaintiff lost any business or suffered any other monetary damage as a result of the comment.

The plaintiff argues in this court that summary judgment was

438 Mass. 629

improperly entered on both the defamation and invasion of privacy claims.² We address each claim in turn

2. Defamation. "[The] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Dulgarian v. Stone, 420 Mass. 843, 846 (1995), quoting Symmons v. O'Keeffe, 419 Mass. 288, 293 (1995). See Mulgrew v. Taunton, 410 Mass. 631, 632-633 (1991) (identical standard for defamation claims). The plaintiff argues, and we agree, that the defendant has failed to make the required demonstration.

To withstand a motion for summary judgment for defamation, a plaintiff must show that: (a) The defendant made a statement, concerning the plaintiff, to a third party. See Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 430-433 (1991); New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 474 (1985), and cases cited. The statement may be published in writing or some other equivalent medium (in which case it is designated as libel), or, as in this case, orally (in which case it is designated as slander). See Draghetti v. Chmielewski, 416 Mass. 808, 812 n.4 (1994); Restatement (Second) of Torts § 568 (1977).

(b) The statement could damage the plaintiff's reputation in the community.³ See Eyal v. Helen Broadcasting Corp., supra at 429; Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975); Poland v. Post Publ. Co., 330 Mass. 701, 704

438 Mass. 630

(1953), and cases cited. See also Restatement (Second) of Torts, supra at § 559 ("A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him")

(c) The defendant was at fault in making the statement. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); Jones v. Taibbi, 400 Mass. 786, 797 (1987). The level of fault required varies between negligence (for statements concerning private persons) and actual malice (for statements concerning public officials and public figures). Id.

(d) The statement either caused the plaintiff economic loss (traditionally referred to as "special damages" or "special harm"), or is actionable without proof of economic loss. See Restatement (Second) of Torts, supra at § 558(d), § 575 comment b. Four types of statements are actionable without proof of economic loss: statements that constitute libel, see Shafir v. Steele, 431 Mass. 365, 373 (2000); statements that charge the plaintiff with a crime; statements that allege that the plaintiff has certain diseases; and statements that may prejudice the plaintiff's profession or business, see Lynch v. Lyons, 303 Mass. 116, 118-119 (1939). If the statement comes within one of these four exceptions, a plaintiff may recover noneconomic losses, including emotional injury and damage to reputation. See Shafir v. Steele, supra; Restatement (Second) of Torts, supra at § 622 comment b, § 623 comment a. An undamaged plaintiff may recover nominal damages.⁴ See Shafir v. Steele, supra; Restatement (Second) of Torts, supra at § 623 special note on remedies for defamation other than damages.

The defendant claims that he is entitled to summary judgment because the plaintiff has failed to show that she was harmed economically by his remarks. The plaintiff does not dispute the lack of economic harm, but maintains that she may still take her case to a jury because the defendant's comments

438 Mass. 631

that the plaintiff was dying of cancer were capable of prejudicing her...