Ward v. Zelikovsky

• Decision Date: 13 April 1993
• Parties: Charles C. WARD and Mary B. Ward, Plaintiffs-Respondents, v. Johanan ZELIKOVSKY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 497

263 N.J.Super. 497

623 A.2d 285

Charles C. WARD and Mary B. Ward, Plaintiffs-Respondents, v. Johanan ZELIKOVSKY, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 5, 1993.

Decided April 13, 1993.

Cooper, Perskie, April, Niedelman, Wagenheim & Levenson, for appellant (Thomas M. Murtha, on the brief), Atlantic City.

Weiner, Catlett & Shanker, for respondents (Arthur L. Shanker, of counsel and on the brief), Atlantic City.

Before Judges ANTELL, DREIER and SKILLMAN.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

Defendant appeals from defamation judgments of $25,002, together with combined pre-judgment interest from August 10, 1989, through January 10, 1992, in the combined amount of $9,785.78, entered in favor of each of the plaintiffs, who are husband and wife. The complaint herein alleges two separate causes of action. The first involved an alleged assault and battery committed by defendant on plaintiff Mary Ward on June 18, 1988. The second involved defamatory statements about both plaintiffs made by defendant at a public meeting on July 30, 1989. Although the jury found that the assault and battery had been proven, it awarded neither compensatory nor punitive damages on that finding. The issue before us is whether plaintiffs' proofs support the finding of slander. The material facts follow.

Plaintiffs and defendant owned separate condominium units at the Ocean Club in Atlantic City. On July 30, 1989, they attended a Board meeting of the condominium association where approximately 100 residents were present. Mr. Ward briefly addressed the Board, and when Mrs. Ward got up to add something, according to her, defendant leaped to his feet and screamed "Don't listen to those people. They don't like Jews. She's a bitch. I remember her. She's a bitch." Mr. Ward testified that defendant shouted, "I know her. She's a bitch. These people, they hate Jews. These people hate Jews." Defendant's statements were wholly unrelated to the remarks plaintiffs had addressed to the Board, which had only to do with the business of the condominium and in no way implicated defendant.

In response to the question as to how plaintiff's verbal assault made her feel, Mrs. Ward gave the following responses:

Well, frankly, I mean my--I have never been insulted in public or hardly ever insulted, I guess that's fortunate, in my life by people that I didn't know very well; and my legs started to shake; and I sat down; and I was going to cry; and then I thought, "I'm not going to do this in front of people" because everybody turned around and was looking at us and--I mean I can remember who was sitting in front of us and where--and I was embarrassed--terribly embarrassed.

When asked whether her feeling of embarrassment went away after the meeting, she answered "No, it didn't go away because people came up after the meeting and commented on it. In the elevator on up to our place, people commented on it; and I was very embarrassed because how do you stand up and say, 'That's not true. That's not true,' you know?" She asserted that defendant's accusation was "[a]bsolutely not" true.

Ocean Club is a residential complex consisting of 725 condominium units. According to Mrs. Ward, the club houses "a large Jewish population," a judgment she reached based upon her experience as head of the "Sunshine Committee." The function of the Sunshine Committee is to send appropriate greeting cards, condolences, congratulatory messages, and the like, to members of the condominium association. As committee head, Mrs. Ward was in a position to note the celebration of Jewish holidays and the number of bar mitzvah cards being sent out.

At the time of the incident, Mrs. Ward was working as a realtor in Margate where she had a large number of Jewish associates. She always feared that they would confront her over this incident in one way or another.

Mr. Ward described his response to defendant's statement in the following way:

On the one hand powerless to stop this man and there were two parts of this thing: One was calling my wife a bitch. The second part was saying repeatedly that we hate Jews in front of a group of people that it would be impossible to defend myself if, indeed, I had to defend myself. But I felt upset, frustrated, embarrassed, all those emotions. My mind was racing. I mean I don't understand how anybody could attack someone like that particularly when I wasn't even talking to the gentleman.

At that time, Mr. Ward was negotiating for the purchase of a real estate company located at the Ocean Club and in Margate, but these prospects were never consummated partly because of Mr. Ward's "rational concern" that "just the rumor that you, quote, 'Don't like Jews,' is probably enough to not do business in Margate in my opinion." Mr. Ward also stated that it was absolutely untrue that he disliked Jews. In response to the question, "How do you prove it?" he answered:

That's what I've had a lot of conversations in the last few years about, and I don't know how you prove a negative, or how you prove you're not something. I don't drink either, but I'd have trouble proving it to you. You know, it's tough to prove those things.

Defendant did not deny making the statement. The only fact he offered in justification thereof was that he had been told by Sheila Polin, another resident at Ocean Club, that she had once heard Mr. Ward make an anti-semitic remark. Defendant, however, could not remember the exact nature of the remark. Sheila Polin, whom defendant called as a witness, confirmed that she had once heard Mr. Ward make a comment about Jews that she considered derogatory. She also testified that she related this fact to defendant. However, she, like defendant, did not remember what the comment was.

Before submitting the case to the jury, the court concluded that the offensive statements were not slanderous per se and that special damages would have to be found to establish the cause of action. The court instructed the jury accordingly.

By its verdict, the jury found that defendant did in fact slander Mary Ward, but that she had sustained no special damages. Although the jury verdict form reports that she had sustained general damages, they made no compensatory award. However, the jury allowed Mrs. Ward $25,000 in punitive damages. The jury also found that defendant had slandered Mr. Ward. As to him, it concluded that he had sustained special and general damages, but that the amount of such damages was zero. Mr. Ward, too, was awarded punitive damages in the amount of $25,000.

Upon receiving the jury's verdict, the court reminded the jurors of its instruction that punitive damages could not be awarded in the absence of special damages. It then recharged the jury with respect to damages, particularly pointing out the jury's option to find nominal special damages in order to support the punitive damage verdicts. After deliberating further, the jury returned with a second verdict, this time finding that Mrs. Ward had sustained special and general damages of $1 and again awarding punitive damages in the amount of $25,000. An identical award was entered in favor of Mr. Ward.

The trial court decided that plaintiffs had proved special damages based upon their testimony that, following the incident at the condominium meeting, they experienced a marked "coolness" on the part of the other residents in the condominium and that they were not invited to participate in condominium activities in a way that they had before. Plaintiffs contended that as a result they suffered a substantial material harm, though not necessarily capable of quantification, in the loss of use, enjoyment and security of their home and ability to participate in the Ocean Club activities. In Arturi v. Tiebie, 73 N.J.Super. 217, 222, 179 A.2d 539 (App.Div.1962), the following was stated as to the proof of special damages needed to make out a case of slander:

The special harm a plaintiff must prove is harm of a material or pecuniary nature. Restatement, Torts, sec. 575, p. 185. There must be proof of a pecuniary loss or loss of some substantial or material advantage. 53 C.J.S. Libel and Slander § 268(b), p. 390.

See also, Hoagburg v. Harrah's Marina Hotel, 585 F.Supp. 1167, 1170 (D.C.N.J.1984); Prosser and Keeton, The Law of Torts, § 112 at 794 (5th Ed.1984).

We agree with defendant that plaintiffs' claimed loss did not constitute "harm of a material or pecuniary nature."

... lowered social standing and its purely social consequences are not sufficient. Thus the fact that a slander has caused the person defamed to lose caste in the eyes of his friends and so has deprived him of many pleasant social contacts is not special harm.

[Restatement (Second) of Torts, § 575 comment b at 198 (1977).]

Defendant argues that without proof of special damages the defamation is not redressible. He relies upon Arturi v. Tiebie, supra, 73 N.J.Super. at 222, 179 A.2d 539, where the court stated the following:

Slander is actionable per se, that is, without charge or proof of special damages, when the false statements (1) charge commission of a crime, (2) impute certain loathsome diseases, (3) affect a person in his business, trade, profession or office, or (4) impute unchastity to a woman. Gnapinsky v. Goldyn, supra, [23 N.J ] at p. 250 . If the defamatory statements are not within any of these four categories, plaintiff must prove that the utterance thereof was the legal cause of some special harm. Restatement of the Law, Torts, sec. 575, p. 185.

The defamatory words spoken by defendant at the condominium meeting cannot, of course, be subsumed under any of the foregoing categories. Plaintiffs argue, however, that although Arturi v. Tiebie claims to have its ancestry in the opinion of our Supreme Court in Gnapinsky v. Goldyn, 23 N.J. 243, 250 128 A.2d 697 (1957), it is not genuinely reflective of New Jersey law governing this issue at...