Ryan v. Herald Ass'n, Inc.

• Decision Date: 04 August 1989
• Docket Number: No. 87-599,87-599
• Citation: 566 A.2d 1316,152 Vt. 275
• Parties: , 16 Media L. Rep. 2472 Dan RYAN v. HERALD ASSOCIATION, INC., d/b/a Rutland Daily Herald.
• Court: Vermont Supreme Court

Page 1316

566 A.2d 1316

152 Vt. 275, 16 Media L. Rep. 2472

Dan RYAN v. HERALD ASSOCIATION, INC., d/b/a Rutland Daily Herald.

No. 87-599.

Supreme Court of Vermont.

Aug. 4, 1989.

Peter F. Langrock and Mary E. McCaffrey, Law Clerk (on the brief) of Langrock Sperry Parker & Wool, Middlebury, for plaintiff-appellee.

Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington, for defendant-appellant.

Before ALLEN, C.J., PECK, DOOLEY and MORSE, JJ., and SPRINGER, District Judge (Ret.), Specially Assigned.

MORSE, Justice.

Plaintiff, Dan Ryan, brought this libel suit against The Rutland Herald for printing a story about illegal dumping which named him as a truck driver who hauled hazardous waste, when in fact the driver was his cousin, Jack Ryan. The jury found in plaintiff's favor and awarded him $1 in compensatory damages and $5,000 in punitive damages. Defendant appeals. We affirm the compensatory damages award and reverse the punitive damages award.

During the summer of 1986, The Rutland Herald ran a series of articles about the trucking of rubble to Vermont from construction sites in Boston. One of the paper's reporters, Tom Mitchell, wrote an article headlined "Debris Dumping Stopped," which appeared in the paper on August 21, 1986. The article related that a West Haven landowner, Peter Thorne, agreed to stop the dumping of construction rubble on his land. Among the materials dumped were steel, one or two compressor units with oil in them, a full paint can and plastics. After outlining various officials' views on the illegality of such dumping, including those of the West Haven Zoning Administrator, William Kuehn, who "viewed the action as a serious violation of state law," the article stated: "Kuehn and Thorne said Dan Ryan, a Benson trucker, had hauled in the material."

Tom Mitchell was notified of the error, and a correction was placed in the paper two days later. Plaintiff was "razzed" by various people from time to time about being a hazardous waste trucker. The episode was embarrassing and humiliated the plaintiff.

The only explanation for the error came from Tom Mitchell. He had been told by Mr. Kuehn that Dan Ryan was the trucker in question, but Mr. Thorne told him Jack Ryan was the one. Mitchell assumed Jack was a nickname for Dan Ryan, whose name he found under truckers in the telephone book, and he checked no further. At trial, Mitchell acknowledged his "own error in judgment."

I.

This Court reviewed and restated the law of defamation in Vermont in Lent v. Huntoon, 143 Vt. 539, 545-50, 470 A.2d 1162, 1167-70 (1983). We summarized the elements of a defamation action as follows:

(1) a false and defamatory statement concerning another; (2) some negligence, or greater fault, in publishing the statement; (3) publication to at least one third person; (4) lack of privilege in the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory damages.

Id. at 546-47, 470 A.2d at 1168 (footnote omitted). Some of these elements now require further elaboration.

Lent's restatement represented a considerable departure from the common law of defamation. This process was not unique to Vermont; libel law in all states has undergone similar transformation since the United States Supreme Court first subjected the law of libel to constitutional scrutiny in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The common law favored plaintiffs in libel cases, and had developed several presumptions in their aid. Harry Kalven has stated them succinctly:

First, defamatory statements were presumed to be false. This placed the burden of proving truth upon the publisher, and truth turned out to be a most difficult item to prove firmly in court. Second, it did not matter whether the falsehood was the result of malice, negligence, or bad luck. You published defamation at your peril; and, as the old law put it, malice was presumed from the fact of publication. Third, the aggrieved party did not have to prove actual harm to his reputation; it too was inferred or presumed from the fact of publication, making possible the award of what were technically called general damages.

H. Kalven, Jr., A Worthy Tradition: Freedom of Speech in America 60-61 (1988) (emphasis in original). Professor Kalven continued:

The common law recognized that these rules had a chilling effect on speech in certain valued communication situations and offset their harshness with a series of privileges, such as those for fair comment in literary criticism, for speeches by legislators on the floor of the house, for reprinting from official public records, and for fair comment on public officials or candidates for public office.

Id. at 61 (emphasis in original). Since the New York Times case, the Supreme Court has recognized that the common-law privileges do not in all cases adequately protect First Amendment values. Largely, but not completely, superseding the privileges, therefore, is the constitutional jurisprudence of the past twenty-five years that seeks to resolve the "tension [that] necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). Even though "there is no constitutional value in false statements of fact[,] ... [t]he First Amendment requires that we protect some falsehood in order to protect speech that matters." Id. at 340-41, 94 S.Ct. at 3007-08.

A. The Fault Element

At common law, the intentional publication of defamatory material was a strict liability offense. See Prosser and Keeton on Torts § 113, at 804 (5th ed. 1984) (hereinafter Prosser and Keeton). That plaintiffs now must prove some level of fault--at least where the defendant is the press or broadcasting media or one who uses the same ¹--appears to be mandated by the holding of the Court in Gertz. ² The Supreme Court balanced the "competing concerns" of the First Amendment and "the state interest in compensating private individuals for wrongful injury to reputation," and concluded "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." 418 U.S. at 347, 94 S.Ct. at 3010. "Some negligence," Lent 's second element, satisfies this constitutional test. ³ See Stone v. Banner Publishing Corp., 677 F.Supp. 242, 246-47 (D.Vt.1988) (discussing negligence standard in libel action).

Where the individual defamed is a "public" person, more than negligence on the part of the publisher must be proved--thus, the "greater fault" referred to in the second element quoted above. Under the First Amendment, "malice" must be proved where the alleged defamation involves a public official or public figure. ⁴ Gertz, 418 U.S. at 342-43, 94 S.Ct. at 3008-09; Curtis Publishing Co. v. Butts, 388 U.S. 130, 164, 87 S.Ct. 1975, 1996, 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring in result); New York Times v. Sullivan, 376 U.S. at 279-80, 84 S.Ct. at 725-26; Burgess v. Reformer Publishing Corp., 146 Vt. 612, 614-15, 508 A.2d 1359, 1360 (1986). A defendant acts with malice in this constitutional sense ("actual malice") if it knows the defamatory statement is false or at least has serious doubts as to its truth; that is, if it publishes the material exhibiting "reckless disregard" for the truth. Gertz, 418 U.S. at 334 n. 6, 94 S.Ct. at 3004 n. 6; St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). There is no claim here that plaintiff is a public official or public figure; therefore he need not prove constitutional or actual malice to establish defendant's liability for defamation.

Even where the plaintiff is not a public official or figure, however, constitutional malice must be proved in order to recover presumed or punitive damages. Gertz, 418 U.S. at 349-50, 94 S.Ct. at 3011-12. Furthermore, under Vermont law, punitive damages are available only where common-law malice, in addition to constitutional malice, is proved. Malice in this second sense ("simple malice") ⁵ " 'may be shown by conduct manifesting personal ill will or carried out under circumstances evidencing insult or oppression, or even by conduct showing a reckless or wanton disregard of one's rights.' " Lent, 143 Vt. at 550, 470 A.2d at 1170 (quoting Shortle v. Central Vermont Public Service Corp., 137 Vt. 32, 33, 399 A.2d 517, 518 (1979)). In short, plaintiff must establish malice in both senses in order to win punitive damages.

B. The Actual Harm Element

Libel, or written defamation (as well as certain categories of slander, or spoken defamation), is considered "actionable per se" under the common law in Vermont. This means both that harm to reputation is presumed from the mere publication of a defamatory falsehood (so-called "general damages") and that "special damages" (that is, pecuniary loss suffered as a result of the defamation) need not be specially pleaded and proved by the plaintiff. Id. 143 Vt. at 545-46, 470 A.2d at 1167; Lancour v. Herald & Globe Ass'n, 112 Vt. 471, 475, 28 A.2d 396, 399 (1942), overruled on other grounds, Lent v. Huntoon, 143 Vt. at 549, 470 A.2d at 1170. "[T]he existence of damage was conclusively presumed or assumed from the publication of the libel itself, without any evidence to show actual harm of any kind." Prosser and Keeton § 112, at 795; see also Restatement (Second) of Torts § 569 (1977). ⁶ In the absence of constitutional malice, however, the presumption of actual harm to reputation is no longer permissible under Gertz, 418 U.S. at 349, 94 S.Ct. at 3011, at least in the context of a lawsuit against the press or broadcasting media, and where the content of the defamatory material is of public concern; ⁷ hence the sixth...