Webster v. Wilkins

• Decision Date: 17 March 1995
• Docket Number: No. A94A2255,A94A2255
• Parties: , 23 Media L. Rep. 1979 WEBSTER v. WILKINS et al.
• Court: Georgia Court of Appeals

Page 699

456 S.E.2d 699

217 Ga.App. 194, 23 Media L. Rep. 1979

WEBSTER v. WILKINS et al.

No. A94A2255.

Court of Appeals of Georgia.

March 17, 1995.

Reconsideration Denied March 31, 1995.

Certiorari Denied June 23, 1995.

Herald J. Alexander, Atlanta, for appellant.

Warner, Mayoue & Bates, John C. Mayoue, Atlanta, Brady D. Green, Powder Springs, for appellees.

JOHNSON, Judge.

Cox Enterprises, Inc. d/b/a The Atlanta Journal and The Atlanta Constitution, published a newspaper article concerning the wedding of professional basketball player Jacques Dominique Wilkins and Nicole Berry. Part of the article described the prior personal relationship between Wilkins and Elizabeth Webster, who, after their relationship ended, gave birth to a daughter fathered by Wilkins. In the article, Cox quoted Wilkins as saying, "[Webster] gives women in general a bad name ... I probably shouldn't say this, but I want to take that kid from her. She's unfit to have a kid." Based on this quote, Webster sued Wilkins and Cox for defamation. The trial court granted summary judgment to Wilkins and Cox, finding, among other things, that the statement is merely an opinion that is not capable of being proven true or false. Webster appeals.

1. Webster contends the trial court erred in ruling that Wilkins' statement is merely an expression of opinion. Webster cites the proposition that "[t]here is no wholesale defamation exemption for anything that might be labeled opinion. To say otherwise would ignore the fact that expressions of opinion may often imply an assertion of objective fact.... The pivotal questions are whether [the] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false." (Citations and punctuation omitted.) Eidson v. Berry, 202 Ga.App. 587, 588, 415 S.E.2d 16 (1992). Webster then reasons that Wilkins' statement that she is not fit to have a child implies an assertion of objective fact which is capable of being proved false because her fitness as a parent could be determined by a court of law pursuant to criteria set forth in OCGA §§ 19-7-1 and 19-7-4.

Webster's reasoning is unpersuasive because implicit in it is the assumption that Wilkins used the word "unfit" in its legal sense and thereby implied some objective facts which make Webster an unfit parent as determined under Georgia law. Having reviewed Wilkins' statement in the context of the entire article, we cannot make this assumption. It is apparent from the context of the article that Wilkins did not use the phrase "unfit to have a kid" in its legal sense or as a legal conclusion, but used it only to express his subjective opinion criticizing Webster's parental abilities. More importantly the average reader would not have construed Wilkins' statement to be his legal conclusion that pursuant to OCGA §§ 19-7-1 and 19-7-4 Webster is an unfit parent. "In considering whether a writing is defamatory as a matter of law, we look at what construction would be placed upon it by the average reader." (Citations and punctuation omitted.) Mead v. True Citizen, Inc., 203 Ga.App. 361, 362, 417 S.E.2d 16 (1992). "[T]he courts will not hunt for a strained construction in order to hold the words used as being defamatory." (Citations and punctuation omitted.) Thomason v. Times-Journal, 190 Ga.App. 601, 602(1), 379 S.E.2d 551 (1989). Webster's reading of Wilkins' words is such a strained construction because the average reader, construing the statement in the context of the entire article, would have taken the statement for what it was, a subjective, hyperbolic opinion that cannot be proved to be true or false and that concerns a matter on which reasonable people might differ; i.e., Webster's parental capabilities.

"[T]he expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not libelous. An assertion that cannot be proved false cannot be held libelous. A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." (Citations and punctuation omitted.) Kendrick v. Jaeger, 210 Ga.App. 376, 377-378, 436 S.E.2d 92 (1993). Because Wilkins' statement was a wholly subjective opinion not capable of proof or disproof, the statement cannot support this defamation action against either Wilkins for saying it or Cox Enterprises for publishing it. See Elder v. Cardoso, 205 Ga.App. 144, 145(1), 421 S.E.2d 753 (1992); Bergen v. Martindale-Hubbell, 176 Ga.App. 745, 747(3), 337 S.E.2d 770 (1985).

2. Even if Wilkins' statement was not merely an opinion, the trial court correctly granted summary judgment to Wilkins and Cox because, contrary to Webster's argument, the oral statement was not slander per se, its publication in the newspaper was not libel per se, and therefore Webster was required to show special damages. A statement may be slanderous per se and not require special damage to support an action if it imputes to another a crime punishable by law, charges a person with having some contagious disorder or with being guilty of some debasing act which may exclude her from society, or makes charges against another in reference to her trade, office or profession. OCGA § 51-5-4. Similarly, "[l]ibel per se consists of a charge that one is guilty of a crime, dishonesty, or immorality." (Citations and punctuation omitted.) Mead, supra. Webster makes no claim that the statement is a charge against her trade, office or profession; rather, she complains the statement may imply she is guilty of a crime, a debasing act which might exclude her from society, dishonesty or immorality.

Webster's complaints are without merit. The statement that she is "unfit to have a kid" simply does not rise to the level of imputing any specific crime, debasing act, dishonesty or immorality; to conclude otherwise strains the obvious meaning of the statement. See generally Meyer v. Ledford, 170 Ga.App. 245, 246(1), 316 S.E.2d 804 (1984). Because the statement is not slander or libel per se, but is merely a derogatory or disparaging remark, special damages must be shown. See Connell v. Houser, 189 Ga.App. 158, 160(4)(b), 375 S.E.2d 136 (1988).

"The special damages necessary to support an action for defamation, where the words are not actionable in themselves must be the loss of money, or of some other material temporal advantage capable of being assessed in monetary value. The loss of income, of profits, and even of gratuitous entertainment and hospitality will be special damage if the plaintiff can show that it was caused by the defendant's words." (Citations, punctuation and emphasis omitted.) Jamison v. First Ga. Bank, 193 Ga.App. 219, 222-223(3), 387 S.E.2d 375 (1989). In her complaint, Webster has not specified any loss of money due to the statement. Moreover, at her deposition she testified that she has not sustained any financial or economic damage as a result of the statement. Given Webster's failure to plead or prove any special damages caused by the allegedly defamatory statement, the trial court correctly granted summary judgment to Wilkins and Cox Enterprises.

3. Because of our decisions in Divisions 1 and 2, we need not address Webster's remaining arguments.

Judgment affirmed.

McMURRAY and BIRDSONG, P.JJ., and ANDREWS, BLACKBURN, SMITH and RUFFIN, JJ., concur.

BEASLEY, C.J. and POPE, P.J., dissent.

BEASLEY, Chief Judge, dissenting.

1. The majority holds that it is apparent from the context of the subject newspaper article that Wilkins did not use the phrase "unfit to have a kid" in its legal sense or as a factual statement, and that the average reader would have construed this statement as a hyperbolic opinion that cannot be proved true or false concerning a matter on which reasonable people might differ, i.e., Webster's parental capabilities. I respectfully dissent.

Wilkins is a well-known professional basketball player. Webster met him while standing in line waiting to get into an Atlanta nightclub. This occurred shortly before she began law school at Georgia State University. After dating him, she gave birth to a female child, Chloe. When he refused to assist with maternity expenses, Webster instituted a paternity action against him. HLA blood testing identified him as the probable father, and Wilkins entered into a child-support agreement with Webster.

She later instituted contempt proceedings against him, for non-compliance with the agreement, and then a complaint for sexual battery, which was dismissed. He thereafter filed a complaint against her for malicious prosecution, to which she filed a counterclaim for sexual harassment. Both were dismissed. Webster's filing of the sexual-battery complaint against Wilkins was reported in various newspapers throughout the country, and some of these reports made mention of the prior paternity action. The acrimonious dissolution of their relationship, and the attendant litigation, were also reported in the local media.

Wilkins subsequently became engaged to another woman, and he asked the defendant newspaper to write an article concerning his impending marriage. After discussing Wilkins' relationship with Webster, the paternity action, and other litigation between them, the article quotes Wilkins as saying, "She [Webster] gives women in general a bad name ... I probably shouldn't say this, but I want to take that kid [Chloe] from her. She's unfit to have a kid."

A review of the article shows that it is in no way apparent from its context that Wilkins did not use this phrase either in its factual or legal sense. Moreover, there is evidence in this case showing that Wilkins in fact had planned to sue Webster for custody of the child and give...