W.J.A. v. D.A.

• Decision Date: 21 May 2012
• Citation: 40 Media L. Rep. 1830,210 N.J. 229,43 A.3d 1148
• Parties: W.J.A., Plaintiff–Respondent, v. D.A., Defendant–Appellant.
• Court: New Jersey Supreme Court

210 N.J. 229

43 A.3d 1148

40 Media L. Rep. 1830

W.J.A., Plaintiff–Respondent,

v.D.A., Defendant–Appellant.

Supreme Court of New Jersey.

Argued Nov. 7, 2011.

Decided May 16, 2012.

Corrected May 21, 2012.

Timothy J. Hinlicky argued the cause for appellant.

Stanley L. Bergman, Jr., argued the cause for respondent.

Thomas J. Cafferty argued the cause for amicus curiae New Jersey Press Association (Gibbons, attorneys; Mr. Cafferty, Nomi I. Lowy, Newark, and Lauren James–Weir, on the brief).

Frank L. Corrado, Wildwood, argued the cause for amicus curiae American Civil Liberties Union of New Jersey Foundation (Barry, Corrado, Grassi & Gibson, McCusker, Anselmi, Rosen & Carvelli, and Edward L. Barocas, attorneys; Mr. Corrado, Mr. Barocas, Bruce S. Rosen, Florham Park, and Jeanne M. LoCicero, on the brief).

PER CURIAM.

At issue on this appeal is the present-day vitality of the doctrine of presumed damages. We hold that presumed damages continue to play a role in our defamation jurisprudence in private plaintiff cases that do not involve matters of public concern. Where a plaintiff does not proffer evidence of actual damage to reputation, the doctrine of presumed damages permits him to survive a motion for summary judgment and to obtain nominal damages, thus vindicating his good name. Compensatory damages, however, will continue to require proof of actual damage to reputation.

I.

In 1998, Dave Adams,¹ an adult, filed a complaint against his uncle, Wayne Anderson, alleging Anderson had sexually assaulted him at various times when Adams was a minor. Adams sought compensatory and punitive damages, interest, and costs of suit. Anderson answered, denying Adams's allegations and raising the statute of limitations as a defense. He also counterclaimed for frivolous litigation, defamation (both libel and slander), infliction of emotional distress, and violations of his “statutory and constitutional rights.”

In August 2000, the trial judge held a Lopez² hearing to determine whether to grant Anderson's motion for summary judgment based on the statute of limitations. The upshot to the Lopez hearing was that the court dismissed Adams's complaint because it was filed “approximately nine years after the normal statute of limitations would have run” without sufficient justification. We note that in the course of its Lopez analysis, and for that purpose only, the court credited Adams's claims that Anderson had sexually abused him. That said, the remaining defamation claim proceeded to trial and, in May 2002, Anderson obtained a jury award of $50,000, plus interest, after the jury found that Adams's allegations of Anderson's sexual abuse constituted a false and defamatory statement to a third party. The jury found no malice and did not award punitive damages. Thereafter, Anderson was also awarded $41,323.70 on his frivolous litigation claim. No appeal ensued.

In 2003, Adams filed for bankruptcy in an attempt to discharge the judgment against him. In 2006, the bankruptcy court determined the judgment was non-dischargeable. In December 2006, Anderson obtained a contempt order against Adams for failure to comply with post-judgment discovery requests.

Adams moved to vacate the judgment against him pursuant to Rule 4:50–1. Ultimately, the motion was denied. That said, in February 2007, while the motion to vacate was pending, Adams created a website on which he recounted the claimed sexual abuse by Anderson and included the history of and quotations from the trial, along with allegations of perjury and intimidation of a witness.

Through the site, Adams sought help from anyone who “had similar experiences with [Anderson]” and encouraged visitors to “express [their] feelings on this matter to The F.B.I., The Governor of New Jersey, or The Attorney General of New Jersey.” To explain his motivation for creating the website, Adams indicated he was “outraged by the justice [he] believed [he] did not get through [the trial] and [he] was desperate for any help [he] could get from anyone.” The homepage of the website indicated that Adams's “[m]ission is to tell all 298,444,125 US Citizens about this!” Anderson's name and address were included on the site.

During February 2007, Adams moved to Florida. Before moving, he wrote to Anderson's attorney, who was attempting to enforce the outstanding judgment, and stated that if Anderson continued to harass him and to attempt to collect the “fraudulently obtained” judgment, he would sue Anderson and his attorney. In bold text at the bottom of the letter was Adams's website address. Adams wrote another letter two days later, complaining he had not received a response, and said “the FBI ... has compelling evidence and witnesses to substantiate everything I say on my website, www. justicein newjersey. com[.] I would hope that you, your client and your law firm do not try to execute the judgment and sheriff sale which you now know was fraudulently obtained.”

Anderson's attorney asked Adams's attorney to shut down the site because it contained “per se defamatory statements” along with the same allegations made in the earlier lawsuit. He also threatened to file a defamation suit if Adams did not close the website. Adams received notification of the letter on February 16 and closed the website on February 21. In March 2007, Anderson filed a new complaint alleging that Adams's website contained defamatory statements. Adams failed to answer and Anderson moved for the entry of default, which was granted. Thereafter, he moved for the entry of default judgment.

With that motion pending, in May 2008, Adams entered a special appearance challenging service of process, seeking to vacate the entry of default, and requesting the court to dismiss the complaint for lack of jurisdiction. The judge granted the motion to vacate the default, but denied the motion to dismiss.

In December 2008, Anderson moved for summary judgment. In January 2009, the judge denied the motion, despite finding that Adams's statements were defamatory per se because they accused Anderson of having committed a criminal offense and of engaging in serious sexual misconduct. The judge concluded that he could not permit the jury to evaluate the claim without any evidence of cognizable damages. In that regard, in a colloquy with the judge, Anderson's attorney had stated:

[t]here will be no testimony as to actual damages made. There will be no testimony because there is none as to economic loss my client might have had because of the statement or business loss they might have had. What will be requested, much like the last trial, is that the jury be presented the evidence and be presented the law on slander per se.

The judge responded that while the court “may in a given case charge a jury about a presumption [of damages] ... some evidence of cognizable damages is required.” Anderson's attorney emphasized the anguish that Anderson experienced as a result of the defaming of his name, contending that he had suffered “emotional damages from this whole dilemma.” The assertion of emotional damages prompted the judge to probe the form that proof of those emotional damages might take:

Is he going to testify that he sought or received any type of treatment, medical, psychological, social, any other type of treatment?

....

Is he going to testify that anybody communicated to him, whether in person, by writing on the Internet, by e-mail, by carrier pigeon, by rumor, is he going to testify that anyone communicated to him that the posting on the Internet had called to their attention and that they were asking him about it?

Anderson's attorney replied that he was “solely relying on general damages.” The judge concluded that the only proof of damages proffered were “subjective moral reactions,” which were “insufficient as a matter of law.” Accordingly, he granted summary judgment to Adams, dismissing Anderson's complaint with prejudice.

Anderson appealed and the Appellate Division reversed. In a published opinion, the panel determined first that Internet postings, if defamatory, constituted libel rather than slander, and that it is an open question whether “the doctrine of presumed damages should apply to claims made by a private-figure plaintiff when no public interest is implicated.” The panel concluded that “the right to recover damages in an action premised upon libel without proof of actual harm remains the law in this jurisdiction.”

We granted Adams's petition for certification. W.J.A. v. D.A., 205 N.J. 99, 13 A.3d 363 (2011). We also granted amicus curiae status to the New Jersey Press Association and the American Civil Liberties Union.

II.

Adams argues that the Appellate Division erroneously applied the doctrine of presumed damages and incorrectly permits the case to go to the jury merely upon Anderson's subjective testimony. He urges us to declare the doctrine of presumed damages “an archaic, unsettled presumption over proof in fact,” which results in injustice and “does not serve the stated goal of defamation law of compensating the plaintiff for actual injury to his reputation.” Adams further claims that the Appellate Division wrongly decided that the case was a private libel action when it, in fact, involves a matter of public importance.

Anderson counters that the doctrine of presumed damages has continued vitality and supports his argument that the failure to present concrete proof of injury should not preclude his case from going to the jury; that the doctrine applies to “private concern cases”; and that his case is a “private concern” case because he is a private figure.

Both amici argue that the doctrine of presumed damages should be abolished. In addition, the New Jersey Press Association contends that the case involves an issue of significant public concern and thus is subject to application of a heightened level of fault—actual malice.

III.

“In an appeal of an order granting summary judgment, appellate courts ‘employ the same standard [of...