Riblet Tramway Co. v. Ericksen Associates, Inc.

• Decision Date: 02 July 1987
• Docket Number: Civ. No. 86-466-D.
• Citation: 665 F. Supp. 81
• Parties: RIBLET TRAMWAY CO., INC.; Tony R. Sowder v. ERICKSEN ASSOCIATES, INC.; Nils Ericksen.
• Court: U.S. District Court — District of New Hampshire

665 F. Supp. 81

RIBLET TRAMWAY CO., INC.; Tony R. Sowder v. ERICKSEN ASSOCIATES, INC.; Nils Ericksen.

Civ. No. 86-466-D.

United States District Court, D. New Hampshire.

July 2, 1987.

Charles G. Douglas III, Concord, N.H., for plaintiff.

Thomas J. Donovan, Manchester, N.H., Bruce E. Mohl, Deputy Atty. Gen., Concord, N.H., for defendant.

ORDER

DEVINE, Chief Judge.

In this action, plaintiffs Riblet Tramway Co., Inc. ("Riblet") and Tony Sowder, P.E., bring suit against defendants Ericksen Associates, Inc., and Nils Ericksen, P.E., seeking damages for defendants' alleged tortious interference with a prospective agreement (Count I) and for slander (Count II) arising from Nils Ericksen's testimony before the Governor and Executive Council on September 18, 1985. This action was originally brought in Merrimack County Superior Court and was properly removed to this court pursuant to 28 U.S.C. § 1441(a). Jurisdiction is based upon 28 U.S.C. § 1332, the parties being diverse¹ and the amount in controversy exceeding $10,000 exclusive of interest and costs. This matter is presently before the Court on defendants' motion for summary judgment and plaintiffs' objection thereto.² The State of New Hampshire Office of the Attorney General has filed an amicus curiae brief on the issue of absolute privilege at Governor and Council hearings.

Rule 56(c), Fed.R.Civ.P., provides that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party bears the burden of demonstrating that there is no genuine, material fact in dispute. Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 991 (1st Cir.1983). In reaching this determination, the record must be viewed in the light most favorable to the nonmoving party, and all inferences favorable to such party must be indulged. Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986); General Office Products v. A.M. Capen's Sons, Inc., 780 F.2d 1077, 1078 (1st Cir. 1986); Catalfo v. Jensen, 628 F.Supp. 1453, 1454 (D.N.H.1986).

While the nonmoving party is entitled to all favorable inferences, he is not entitled to build a case on the gossamer threads of whimsy. Emery v. Merrimack Valley Wood Products, Inc., supra, 701 F.2d at 990. Rather, the opposing party must show "`sufficient evidence supporting the claimed factual dispute ... to require a jury or a judge to resolve the parties' differing versions of the truth at trial.'" Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976) (quoting First Nat'l Bank of Arizona v. Cities Service Co., Inc., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)).

The record before the Court reveals the following undisputed facts. Defendants were employed by the State of New Hampshire Department of Public Works and Highways ("NHDPWH") as engineering consultants for the renovation and repair of certain ski lifts at Mount Sunapee State Park by contract of December 13, 1984. Part of the duties attendant to the contract involved reviewing bids for compliance with the specifications. At the opening of the second bidding, Riblet was the low bidder. However, the Commissioner of NHDPWH, John Chandler, recommended that the Riblet bid be rejected. Consequently, a public hearing before Governor and Council was held pursuant to RSA 228:4-a regarding Commissioner Chandler's recommendation. The center of this controversy arises from the following exchange between Mr. Erickson (E) and the Executive Councilor (EC):

EC: Are you saying that there is a risk to the public safety if the State of New Hampshire was to go with Riblet? Is that right?

E: That's correct.

EC: You're making that statement.

E: Yes, I am.

Defendant's Exhibit E, Transcript of Hearing before Governor and Executive Council pursuant to RSA 228:4-a, September 1985 hereinafter "Tr." at 9.

At the conclusion of the hearing, the Governor and Council, by a four-to-one vote, voted to accept Riblet's bid. The Governor thereafter required Riblet to provide indemnification for the State. Riblet asserts that the additional cost to provide this indemnification was $22,500. Plaintiffs allege that through the above-quoted exchange the defendants slandered the plaintiffs and tortiously interfered with a prospective agreement.

Defendants have moved for summary judgment on both counts. They assert three grounds. First, defendants seek an extension of absolute privilege to statements made before Governor and Council.³ Second, defendants argue that the statement or response made by Nils Ericksen was conditionally privileged and not slanderous and that the defendants were conditionally privileged to interfere with plaintiffs' prospective agreement. Finally, defendants assert that the opinion given by Mr. Erickson was based on fully disclosed nondefamatory facts and thus is not actionable. For the following reasons, the Court finds that defendants are entitled to judgment as a matter of law on Counts I and II.

The Court begins its analysis with Count II, as the existence or nonexistence of defamation affects the analysis regarding tortious interference with a prospective agreement. The relevant aspects of defamation law in New Hampshire are well established.⁴ The law of defamation seeks to balance the free flow of ideas and opinions essential to a democracy with the protection of an individual's reputation and sense of dignity. Ollman v. Evans, 750 F.2d 970, 974 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). Language is defamatory if it tends "to lower the plaintiff `in the esteem of any substantial and respectable group, even though it may be quite a small minority.'" Morrissette v. Cowette, 122 N.H. 731, 733, 449 A.2d 1221 (1982) (quoting Thomson v. Cash, 119 N.H. 371, 373, 402 A.2d 651 (1979)). Expressions of opinion are actionable if they reasonably are understood to imply the existence of undisclosed defamatory facts. Nash v. Keene Pub. Corp., 127 N.H. 214, 219, 498 A.2d 348 (1985). Conversely, if the opinion is based upon a fully disclosed factual basis, it is not defamatory. Pease v. Telegraph Pub. Co., Inc., 121 N.H. 62, 63, 426 A.2d 463 (1981). The trial court makes this determination by considering the words in the context of the publication taken as a whole. Duchesnaye v. Munro Enterprises Inc., 125 N.H. 244, 249, 480 A.2d 123 (1984); Pease v. Telegraph Pub. Co., Inc., supra, 121 N.H. at 65, 426 A.2d 463. Further, the Court examines all of the circumstances under which the words were published. Chagnon v. Union Leader Co., 103 N.H. 426, 174 A.2d 825 (1961), cert. denied, 369 U.S. 830, 82 S.Ct. 846, 7 L.Ed.2d 795 (1962). The First Circuit has recently stated,

As part of this scrutiny, `the court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.'

Flotech, Inc. v. E.I. Du Pont de Nemours & Co., 814 F.2d 775, 777 (1st Cir.1987) (quoting Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980)). While New Hampshire does not appear to use cautionary language as an evaluating factor, it does examine all circumstances and the social context. Thus, in McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir.1987), the court in applying New Hampshire law reiterated this approach by stating, "we will examine the statement itself, the article as a whole, and its social context." When the Court interprets the reasonable meanings of words, it must consider that "an action in libel cannot be maintained on an artificial, unreasonable or tortured construction imposed upon innocent words, nor when only `supersensitive persons, with morbid imaginations' would consider the words defamatory." Thomson v. Cash, supra, 119 N.H. at 373, 402 A.2d 651 (quoting Lambert v. Providence Journal Co., 508 F.2d 656, 659 (1st Cir.), cert. denied, 423 U.S. 828, 96 S.Ct. 45, 46 L.Ed.2d 45 (1975)).

Applying these criteria to the defendant's statement, and examining the statement itself, the Court first notes that the alleged defamation was an affirmative response to the question, "Are you saying that there is a risk to the public safety if the State of New Hampshire was to go forward with Riblet? Is that right?" Tr. at 9. The phrase, "risk to the public safety" is the pivotal expression upon which this suit is based. "Risk" is a word that suggests possibility, chance, or an element of uncertainty in an undertaking. It implies that an opinion or assessment of possibilities forms its basis. Webster's Third New International Dictionary 1961 (1969), gives one definition of risk as "someone or something that creates or suggests a hazard or adverse chance: a dangerous element or factor — often used with qualifiers to indicate the degree or kind of hazard." The word "risk" thus implies that an opinion is being uttered. Moreover, the assessment of the presence of risk was given by the State's expert consultant on ski lift engineering. It has always been the province of the expert to offer an opinion on disputed subjects based upon the expert's specialized knowledge. See Rule 702, Fed.R.Evid. Thus, the risk assessment coming from the expert further suggests that it belongs in the opinion category.

The inquiry thus becomes, did the opinion imply undisclosed, defamatory facts? In considering this, the Court looks to the statement's immediate context, here the transcript of the hearing. McCabe v. Rattiner, supra, 814 F.2d at 842. The...