Yetman v. English
| Decision Date | 15 August 1989 |
| Docket Number | No. 2,CA-CV,2 |
| Parties | David YETMAN, Plaintiff/Appellant/Cross-Appellee, v. William ENGLISH, Defendant/Appellee/Cross-Appellant. 88-0173. |
| Court | Arizona Court of Appeals |
In this slander case, appellant David Yetman appeals from the trial court's ruling refusing to instruct the jury on the issue of punitive damages. Appellee William English cross-appeals from the court's ruling that English's remark constituted slander per se. We find that both rulings were correct and affirm.
In August 1985, Yetman was an elected member of the Pima County Board of Supervisors, and English was an elected member of the Arizona House of Representatives. English was the invited speaker at a weekly luncheon meeting of the Pima County Republican Club. At the end of his speech, English responded to questions from the audience. Some of those who attended the meeting were members of the Pima County Rural Property Owners' Association. The group was at that time concerned about a proposal before the Board of Supervisors to amend the county general rural zoning classification, which would affect substantial areas of land in the county. Yetman was in favor of the zoning change, and the property owners' association opposed it. One of the association members asked English his opinion of the proposed zoning change and whether he believed Yetman was behind the proposal. English responded with a lengthy answer, during the course of which he asked, "What kind of communist do we have up there that thinks it's improper to protect your interests?"
Yetman sued for slander. After a five-day jury trial, he was awarded $5,000 in damages.
Because Yetman was a public figure, he was required to prove that English was motivated by actual malice when he made the remark. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Pursuant to that requirement, the trial court instructed the jury in part as follows:
Because plaintiff is a public figure, he is not entitled to recovery for the libelous statement unless he proves by clear and convincing evidence that the statement was made with actual malice.
'Actual malice' means that the defendant made the statement with knowledge that it was false or with reckless disregard of whether it was false or not.
'Reckless disregard' means a high degree of awareness of the probable falsity of the statement. It does not mean mere negligence or carelessness.
In order to be entitled to punitive damages, however, Yetman was required to show that English was motivated by an "evil mind" when he made the remark. Gurule v. Illinois Mutual Life & Casualty Co., 152 Ariz. 600, 734 P.2d 85 (1987); Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986); Linthicum v. Nationwide Life Insurance Co., 150 Ariz. 326, 723 P.2d 675 (1986).
The evil mind which will justify the imposition of punitive damages may be manifested in either of two ways. It may be found where defendant intended to injure the plaintiff. It may also be found where, although not intending to cause injury, defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.
Rawlings, 151 Ariz. at 162, 726 P.2d at 578. The trial court refused to submit the issue of punitive damages to the jury because it determined Yetman had presented insufficient evidence of English's state of mind, citing in particular the fact that there was no sustained course of conduct involved and the fact that the remark was made in an unprepared fashion.
Yetman argues that he presented sufficient evidence of a sustained course of conduct by English. In support of that argument, Yetman cites evidence of the fact that English was contacted two to three weeks prior to the luncheon by one of the organizers of the Rural Property Owners' Association who asked him to address the zoning issue. English testified he replied that he would not address the issue in his speech, and his testimony and that of others who attended the luncheon was that he did not mention zoning in his speech. Yetman contends that the fact that English had been contacted about zoning indicates that the question asked at the lunch meeting was not one of first impression. We fail to see, however, how English's awareness of the existence of a political issue on which he had already developed opinions constituted evidence that he spoke with an evil mind when he called Yetman a communist in the course of responding to a question about the political issue and Yetman's position on that issue. The mere fact that English knew the zoning issue existed is not evidence of whether he spoke with the intent to injure Yetman or that he consciously pursued a course of conduct knowing it created a substantial risk of significant harm to Yetman.
Yetman also attempted to show evidence of an evil mind by presenting testimony that the member who called English prior to the speech "collared" him before the luncheon meeting began, again seeking to have him address the zoning issue in his speech, and that several association members gathered into a "huddle" at the meeting to discuss the issue with English. Again, we fail to see how the vigorous efforts of association members to obtain a legislator's support on a political issue serves as evidence of a sustained course of conduct by the legislator to intentionally injure a politician with an opposing view on the issue.
Yetman argues additionally that English's state of mind was evidenced by his testimony that he made no attempt to contact the newspaper that quoted his remark and that he felt he had no apologies to make to Yetman for the remark. Although English did testify that he believed he owed Yetman no apology, he stated that was because he believed the newspaper had not quoted him correctly. English also testified that he did not ask the newspaper for a correction because, in his opinion, the paper was not known for its accuracy. Thus, his complete testimony does not constitute evidence of an...
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