Trails West, Inc. v. Wolff

• Decision Date: 26 April 1973
• Citation: 344 N.Y.S.2d 863,298 N.E.2d 52,32 N.Y.2d 207
• Parties: , 298 N.E.2d 52 TRAILS WEST, INC. et al., Appellants, v. Lester L. WOLFF et al., Respondents, and Newsday, Inc. et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 863

344 N.Y.S.2d 863

32 N.Y.2d 207, 298 N.E.2d 52

TRAILS WEST, INC. et al., Appellants, v. Lester L. WOLFF et al., Respondents, and Newsday, Inc. et al., Defendants.

Court of Appeals of New York.

April 26, 1973.

Michael J. Silverberg and Louis Nizer, New York City, for appellants.

Jacob Imberman, Steven J. Stein and Bruce S. Wolff, New York City, for respondents.

H. Graham Morison and Courtney Whitney, Jr., Washington, D.C., for Committee on House Administration, United States House of Representatives, amicus curiae.

FULD, Chief Judge.

On July 15, 1970, seven children were killed, and approximately 50 others injured, when the bus in which they were traveling, owned by the Tedesco Company and apparently in an unsafe condition, went off the road near Allentown, Pennsylvania. Because the children were mostly from Nassau County, the accident was widely publicized in the Long Island press. Less than two weeks later, Newsday reported that another Tedesco bus, chartered by plaintiff Trails West, Inc., and carrying Long Island children on a cross-country tour to California, had been involved in a series of accidents. Some of the children lived in Congressman Lester Wolff's congressional district. The present libel suit stems from the latter's investigation into the safety of the two buses in which the children were traveling and the newspaper reports of his findings.

The plaintiffs, 10 interrelated corporations engaged in organizing guided bus tours for children and two individual officers of those corporations charge that Congressman Wolff and Howard Paster, his administrative assistant, wrote and published press releases which they 'caused to be published' in Newsday and the Long Island Daily Press on July 30, 1970. According to the complaint, the statements allegedly 'false and defamatory' and written 'either with knowledge of their falsity or with reckless disregard of whether they were false or true,' dealt with the assertedly dangerous and defective condition of one of the buses chartered by plaintiff Trails West on the above-mentioned trip to California. ¹

The defendants, claiming that the statements attributed to them were 'constitutionally privileged' and made 'in good faith and without malice', moved for summary judgment dismissing the two causes of actions on those grounds.

The court at Special Term granted the defendants' motion. Applying the rule of New York Times Co. v. Sullivan (376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686) and Rosenbloom v. Metromedia (403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296)--that statements involving matters of public interest are constitutionally privileged unless made with 'actual malice'--it held that the plaintiffs had 'failed to make an affirmative showing that the reports were actually false or that the defendants actually knew that same were false at the time of their release to the press.' Although recognizing that summary judgment was to be employed with caution in libel suits of the present sort, the court concluded that 'no genuine triable issue exists with respect to whether the defendants intended to inflict harm through falsehood.' The Appellate Division unanimously affirmed the resulting order (39 A.D.2d 844, 332 N.Y.S.2d 858).

Defendant Wolff's release to the newspapers was based on a report telephoned to his office by Mr. Frank White, Technical Field Coordinator of the Bureau of Motor Carrier Safety of the United States Department of Transportation in Washington, on July 29, 1970. Mr. White reported that he had learned from Mr. Howard Gaston, California Regional Director of the Bureau, that, as a result of an investigation by the California Highway Patrol (Inspection Report, July 27, 1970), one of the two buses involved--bus No. 85--was found to have several defects, including a 'tread separation' in a tire, a 'headlight out' and a '3-foot hole in (the) baggage compartment which also leads up to passenger section in bus * * * Danger in this is it could lead to carbon monoxide gas to passengers.' After calling White back to confirm this information, defendant Paster made a further check with Gaston, who in general terms substantiated White's report and advised Paster that the bus was being ordered out of service, pursuant to a telegram to the California Highway Patrol.

On that same day, July 29, the individual plaintiffs and their attorney, who had been checking on bus No. 85, called Paster to say that the 'allegations were false and that the bus had in fact passed inspection' and to ask that he 'pull his press release.' In light of the official information which they had received, however, the defendants declined to comply, and the substance of both Mr. White's and Mr. Gaston's statements was relayed to the press. ² On July 30, the newspapers printed the articles about which the plaintiffs complain. They detailed the defects in bus No. 85 substantially as White had described them to Paster and as Paster had relayed them to the reporters; they also recorded Mr. Gaston's statement that the bus had been 'ordered out of service'. ³ It was, in fact, taken out of service on July 30, the California 'Compliance Check' Report by Mr. Gaston on that date confirming the existence of the hole in the baggage compartment and noting, among other things, 'Headlight switch inoperative'.

At a conference with the plaintiffs' attorney after the articles had been printed, defendant Wolff offered to send a statement prepared by the plaintiffs' attorney to the Bureau of Motor Carrier Safety, asking it to investigate and explain any inconsistencies. In its reply, acknowledging receipt of the July 27 Inspection Report of the California Highway Patrol, the bureau wrote that 'Regional Director Howard Gaston of our Bureau on July 30, 1970, inspected this same vehicle and found substantially the same deficiencies.'

The plaintiffs did not deny that the bus had been ordered out of service or that Mr. White had reported the deficiencies as attributed to him by defendant Paster. They contend, however, that all of the defects listed in the California Inspection Report of July 27 were minor ones which they were given 15 days to remedy and that the defendants had falsely reported that the bus was ordered out of service because the defects were not immediately remedied; that the defendants had exaggerated the actual deficiencies; that Mr. White's statement from Washington with regard to carbon monoxide fumes was nowhere mentioned in either California Report; that Mr. Gaston's action in ordering bus No. 85 out of service--not taken until July 29, two days after the July 27 report--was actually done 'on orders from Wolff' after the defendants had already falsely reported that such action had been taken and that defendant Wolff had allegedly falsely reported that the inspections had originated from his investigation rather than from that of Trials West. ⁴

Upon the present appeal, the plaintiffs contend, first, that the defendants are not entitled to claim the constitutional privilege afforded defendants in libel suits pursuant to New York Times Co. v. Sullivan (376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, Supra) and Rosenbloom v. Metromedia (403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, Supra) and, second, that, in any event, a question of fact is presented, barring the grant of summary judgment, as to whether the defamatory falsehood charged 'was published with knowledge that it was false or with reckless disregard of whether it was false or not.' (Rosenbloom v. Metromedia, 403 U.S. 29, 52, 91 S.Ct. 1811, 1824, 29 L.Ed.2d 296, Supra.)

The point of departure for our determination is the Rosenbloom case (403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, Supra). There, the petitioner Rosenbloom, acquitted of a charge of selling obscene magazines, brought a libel suit against a radio station for broadcasting that books, which he had sold and possessed in his home, were 'obscene.' Acknowledging that the police campaign to enforce the obscenity laws was an issue of public interest (p. 40, 91 S.Ct. p. 1818, 29 L.Ed.2d 296), Rosenbloom argued that, because he was a private citizen, the radio station was bound to a higher degree of care than the New York Times standard. The 'knowing-or-reckless-falsity' requirement, according to Rosenbloom, applied only in the case of public figures or other prominent persons. The Supreme Court ruled, however, that the New York Times standard applies in all state civil libel suits by a 'private individual' for a defamatory falsehood with respect to his involvement 'in an event of public or general interest' (pp. 31--32, 91 S.Ct. p. 1814). Justice Brennan, writing for the majority, declared (pp. 43--44, 91 S.Ct. p. 1820):

'We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.

'* * * It is clear that there has emerged from our cases since New York Times the concept that the First Amendment's impact upon state libel laws derives not so much from whether the plaintiff is a 'public official,' 'public figure,' or 'private individual,' as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest.'

Although the plaintiffs seek to avoid the impact of Rosenbloom by asserting that the true facts surrounding the inspection of the two buses, rather than the defendants' false version thereof, did not deal with 'an event of even trivial public interest' the public interest motif was manifest. Following the well-publicized Allentown tragedy, which involved Long Island children in a Tedesco bus, public concern for the safety of Tedesco buses chartered by plaintiff Trails West, as well as for the safety of other Long Island children, is too obvious for extended...