Matherson v. Marchello

New York Supreme Court, Appellate Division, Second Department

100 A.D.2d 233, 473 N.Y.S.2d 998

March 26, 1984

TITONE, Justice Presiding.

In this defamation action, plaintiffs appeal from an order of the Supreme Court, Suffolk County, in effect dismissing their complaint for failure to state a cause of action. Plaintiffs were granted leave to replead, setting forth allegations of special damages. We hold that the statements complained of constitute libel, actionable without proof of special damages, and reverse.

On October 28, 1980, radio station WBAB conducted an interview with the members of a singing group called "The Good Rats". Following a commercial which advertised a Halloween party at an establishment known as "OBI", a discussion ensued in which various members of the group explained that they are no longer permitted to play at OBI South because:

"Good Rat #1: Well, you know, we had that Law suit with [plaintiff husband].

"A Good Rat: And we used to fool around with his wife.

"Good Rat #1: And we won.

"A Good Rat: One of us used to fool around with his wife. He wasn't into that too much.

"D.J.: Oh yea.

"Good Rat #1 (interrupted and joined by another Good Rat): We used to start off our gigs over there with the National Anthem, and he was very upset about that, and now all of a sudden he's very patriotic and he's using it in his commercials.

"A Good Rat: I don't think it was his wife that he got so upset about, I think it was when somebody started messing around with his boyfriend that he really freaked out. Really.

(Laughter)

That did it man."

Plaintiffs, who are husband and wife, subsequently commenced this action against "The Good Rats" (as individuals and against their record company), alleging that the words "we used to fool around with his wife" and "I don't think it was his wife that he got upset about, I think it was when somebody started messing around with his boyfriend that he really freaked out" were defamatory. They seek compensatory and punitive damages for humiliation, mental anguish, loss of reputation and injury to their marital relationship as well as for the loss of customers, business opportunities and good will allegedly suffered by plaintiff husband. Special Term granted defendants' motion to dismiss, finding that the complaint failed to adequately allege special damages. However, it gave plaintiffs leave to replead. Plaintiffs declined the opportunity and have appealed.

Preliminarily, we observe that if special damages are a necessary ingredient of plaintiffs' cause of action, Special Term properly found the allegations of the complaint to be deficient.

Special damages consist of "the loss of something having economic or pecuniary value" (Restatement, Torts 2d, Section 575, comment b) which "must flow directly from the injury to reputation caused by the defamation, not from the effects of defamation" (Sack, Libel, Slander and Related Problems, VII 2.2, 345-346; see, also, 1 Harper & James, The Law of Torts, Section 5.14) and it is settled law that they must be fully and accurately identified "with sufficient particularity to identify actual losses" (Lincoln First Bank of Rochester v. Siegel, 60 A.D.2d 270, 280, 400 N.Y.S.2d 627). When loss of business is claimed, the persons who ceased to be customers must be named and the losses itemized (Reporters' Assn. of Amer. v. Sun Print. & Pub. Assn., 186 N.Y. 437; Continental Air Ticketing Agency v. Empire Int. Travel, 51 A.D.2d 104, 108, 380 N.Y.S.2d 369). "Round figures" or a general allegation of a dollar amount as special damages do not suffice (Drug Research Corp. v. Curtis Pub. Co., 7 N.Y.2d 435, 440; Continental Air Ticketing Agency v. Empire Int. Travel, supra). Consequently, plaintiffs' nonspecific conclusory allegations do not meet the stringent requirements imposed for pleading special damages (Zausner v. Fotochrome, 18 A.D.2d 649, 235 N.Y.S.2d 698; 9 Fuchsberg, Encyclopedia New York Damages Law, Section 243).

We must, therefore, determine whether an allegation of special damages is necessary. In large measure, this turns on which branch of the law of defamation is involved. As a result of historical accident, which, though not sensibly defensible today, is so well settled as to be beyond our ability to uproot it (Ostrowe v. Lee, 256 N.Y. 36, 39), there is a schism between the law governing slander and the law governing libel (see Restatement, Torts 2d, Section 568, comment b; see, also, Gurtler v. Union Parts Mfg. Co., 1 N.Y.2d 5).

A plaintiff suing in slander must plead special damages unless the defamation falls into any one of four per se categories (see Prosser, Torts [4th ed.], Section 112, pp. 751-760; Restatement, Torts 2d, Section 570). Those categories consist of allegations (1) that the plaintiff committed a crime (Privitera v. Town of Phelps, 79 A.D.2d 1, 435 N.Y.S.2d 402; Lander v. Wald, 218 App.Div. 514, 219 N.Y.S.2d 57, aff’d, 245 N.Y. 590), (2) that tend to injure the plaintiff in his or her trade, business or profession (Cruikshank v. Gordon, 118 N.Y. 178; Nadrowski v. Wazeter, 29 A.D.2d 741, 286 N.Y.S.2d 904, aff’d, 23 N.Y.2d 899), (3) that plaintiff has contracted a loathsome disease (Simpson v. Press Pub. Co., 33 Misc. 228, 67 N.Y.S. 401) and (4) that impute unchastity to a woman (Morrow v. Wiley, 73 A.D.2d 859, 423 N.Y.S.2d 658; Civil Rights Law, Section 77). The exceptions were established apparently for no other reason than a recognition that by their nature the accusations encompassed therein would be likely to cause material damage (Prosser, Torts [4th ed], Section 112, p 754).

On the other hand, a plaintiff suing in libel need not plead or prove special damages if the defamatory statement "'tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society'" (Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, quoting from Sydney v. Macfadden Newspaper Pub. Corp., 242 N.Y. 208, 211; see, also,Tracy v. Newsday, Inc., 5 N.Y.2d 134; Hogan v. Herald Co., 84 A.D.2d 470, 474, 446 N.Y.S.2d 836, aff’d, 58 N.Y.2d 630). Thus, unlike the law of slander, in the law of libel the existence of damage is conclusively presumed from the publication itself and a plaintiff may rely on general damages (compare Restatement, Torts 2d, Section 569 with Section 570; but see Excessiveness or Inadequacy of Damages for Defamation, Ann., 35 A.L.R.2d 218, which suggests, by its scheme of classification, how relatively few cases of libel actually do arise which are not more or less easily referrable to the categories of slander per se).

To be sure, the common-law rule has been tempered by several decisions of the Supreme Court of the United States which preclude recovery of punitive damages absent a showing of malice in the constitutional sense, i.e., knowledge of the falsity of the statement or reckless disregard of the truth, and require a plaintiff to prove actual damages, interdicting recovery of presumed damages (see, e.g., Wolston v. Reader's Digest Assn., 443 U.S. 157; Herbert v. Lando, 441 U.S. 153; Time, Inc. v. Firestone, 424 U.S. 448; Gertz v. Robert Welch, Inc., 418 U.S. 323, 350; New York Times Co. v. Sullivan, 376 U.S. 254). Assuming, without deciding, that these limitations govern defamation suits against nonmedia defendants, an issue to be resolved shortly by the Supreme Court, we find that the cases which require a plaintiff to plead special damages, establish such actual malice, or suffer dismissal of the complaint (e.g., Newsday, Inc. v. Peck Contr., 87 A.D.2d 326, 451 N.Y.S.2d 415; France v. St. Clare's Hosp. & Health Center, 82 A.D.2d 1, 441 N.Y.S.2d 79; Salomone v. MacMillan Pub. Co., 77 A.D.2d 501, 502, 429 N.Y.S.2d 441), cut far too broadly and their analysis has been rejected by the Court of Appeals.

In Hogan v. Herald Co., supra, then Justice SIMONS, writing for a unanimous Appellate Division, Fourth Department, observed that "the Supreme Court did not limit actual damages to out-of-pocket or pecuniary damage: loss of reputation, humiliation and mental anguish are also compensable * * * Thus, contrary to defendants' contention, plaintiff need not establish actual malice or special damages before he may recover." That appeal arose from a determination of a motion for summary judgment and, due to a lack of proof of actual malice, the claim for punitive damages was dismissed. As to compensatory damages, however, allegations of injury to "'credit and reputation'" and scorn, ridicule and harassment resulting in "'extreme emotional distress and anguish'" and loss of "'earnings of approximately $2,000.00, legal fees of $1,500.00, and other special damages as shall be proven at trial, together with general damages of $500,000.00'" (emphasis supplied) were held to "sufficiently claim actual injuries and though they must be proved at trial * * * they need not be supported by affidavit proof on [a motion for summary judgment]." On appeal by permission of the Appellate Division, Fourth Department, on a certified question, the Court of Appeals affirmed "for reasons stated in the opinion by Justice RICHARD D. SIMONS at the Appellate Division." (See, also, Blumenstein v. Chase, A.D.2d, 473 N.Y.S.2d 996).

The pleadings in the case before us mirror those in Hogan and Blumenstein. Because there is no requirement that the plaintiff establish an evidentiary basis for the allegations of the complaint on a motion to dismiss (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636; Holly v. Pennysaver Corp., 98 A.D.2d 570, 471 N.Y.S.2d 611), the constitutional limitations on damages recoverable in a defamation action do not furnish a predicate for sidestepping the question of the branch of the law of defamation involved, the question to which we now return.

Traditionally, the demarcation between libel and slander rested upon whether the words were written or spoken (1 Harper & James, The Law of Torts, Section 5.9, p. 375; Prosser, Torts [4th ed.], Section 112, p. 752). Written defamations were considered far more serious because, at the time the distinction arose, few persons could read or write and, therefore, anything which was written would carry a louder ring of purported truth (Franklin, Cases and Materials on Tort Law and Alternatives [2d ed.], p. 898). In addition, a written defamation could be disseminated more widely and carried a degree of permanence.

With the advent of mass communication, the differential was blurred. Motion pictures were held to be libel (Brown v. Paramount Publix Corp., 240 App.Div. 520, 270 N.Y.S. 544). No set rule developed with respect to radio and television (1 Harper & James, The Law of Torts, Section 5.10, p. 376, Section 5.18, pp. 406-408; Prosser, Torts [4th ed.], Section 112, pp. 753-754). In some cases, a distinction was drawn between contemporaneous speech, which was classified as slander, and words read from a script, which were classified as libel (see, e.g., Hartmann v. Winchell, 296 N.Y. 296; Hryhorijiv v. Winchell, 180 Misc. 574, 45 N.Y.S.2d 31, aff’d, 267 App.Div. 817, 47 N.Y.S.2d 102; Locke v. Gibbons, 164 Misc. 877, 299 N.Y.S. 188, aff’d, 253 App.Div. 887, 2 N.Y.S.2d 1015). This distinction was the subject of considerable criticism (see, e.g. Donnelly, “Defamation by Radio: A Reconsideration,” 34 Iowa L.Rev. 12; Hartmann v. Winchell, supra [FULD, J., concurring]) and was rejected by later cases which adopted a libel classification irrespective of the use of a script (e.g., Shor v. Billingsley, 4 Misc.2d 857, 158 N.Y.S.2d 476, aff’d, 4 A.D.2d 1017, 169 N.Y.S.2d 416).

We today hold that defamation which is broadcast by means of radio or television should be classified as libel. As we have noted, one of the primary reasons assigned to justify the imposition of broader liability for libel than for slander has been the greater capacity for harm that a writing is assumed to have because of the wide range of dissemination consequent upon its permanence in form. Given the vast and far-flung audiences reached by the broadcasting media today, it is self-evident that the potential harm to a defamed person is far greater than that involved in a single writing (see Hartmann v. Winchell, supra [FULD, J., concurring]). Section 568 A of the Restatement of Torts Second and the more recent decisions in sister states (Defamation-- Radio or Television, Ann., 50 A.L.R.3d 1311, Sections 3-5, pp. 1325-1329) opt for holding such defamation to be libel and we perceive no basis for perpetuating a meaningless, outmoded, distinction.

On the question of whether the allegedly defamatory statements are actionable, our scope of review is limited. "If the contested statements are reasonably susceptible of a defamatory connotation, then 'it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader'" (James v. Gannett Co., 40 N.Y.2d 415, 419, quoting Mencher v. Chesley, 297 N.Y. 94, 100; cf. Gurda v. Orange County Pub. Div. of Ottaway Newspapers, 81 A.D.2d 120, 130, 439 N.Y.S.2d 417 [dissenting opn. of MOLLEN, P.J. and TITONE, J.], rev’d, 56 N.Y.2d 705 on dissent at App Div). We must accord the words their natural meaning and we cannot strain to interpret them in their mildest and most inoffensive sense in order to render them nondefamatory (e.g., November v. Time Inc., 13 N.Y.2d 175, 178-179; Schermerhorn v. Rosenberg, 73 A.D.2d 276, 283-284, 426 N.Y.S.2d 274; Nowark v. Maguire, 22 A.D.2d 901, 255 N.Y.S.2d 318). Unless we can say, as a matter of law, that the statements could not have had a defamatory connotation, it is for the jury to decide whether or not they did (Schermerhorn v. Rosenberg, supra; Greenberg v. CBS, Inc., 69 A.D.2d 693, 419 N.Y.S.2d 988).

Taken in the context of a rock and roll station's interview with musicians, and taking note of contemporary usage, we have no difficulty in concluding that the words "fooling around with his wife" could have been interpreted by listeners to mean that plaintiff wife was having an affair with one of the defendants. Such charges are clearly libelous on their face, thus obviating any need to allege and prove special damages (see Civil Rights Law, Section 77; James v. Gannett Co., supra,). While it may be possible to construe the words in an inoffensive manner, since they are susceptible of a defamatory connotation, the cause of action should stand (cf. Schermerhorn v. Rosenberg, supra; Greenberg v. CBS, Inc., supra; Jordan v. Lewis, 20 A.D.2d 773, 774, 247 N.Y.S.2d 650).

The second comment--"I don't think it was his wife that he got upset about, I think it was when somebody started messing around with his boyfriend that he really freaked out"--presents a far more subtle and difficult question (see Imputation of Homosexuality As Defamation, Ann., 3 A.L.R. 4th 752). It is plaintiffs' contention that this statement constitutes an imputation of homosexuality which should be recognized as defamatory. Defendants, on the other hand, basically do not deny that such reading is plausible. Rather, they claim that many public officials have acknowledged their homosexuality and, therefore, no social stigma may be attached to such an allegation. We are constrained to reject defendants' position at this point in time.

It cannot be said that social opprobrium of homosexuality does not remain with us today. Rightly or wrongly, many individuals still view homosexuality as immoral (see Newsweek, August 8, 1983, p. 33, containing the results of a Gallup poll; cf. People v. Onofre, 51 N.Y.2d 476, 488, n. 3). Legal sanctions imposed upon homosexuals in areas ranging from immigration (Matter of Longstaff, 716 F.2d 1439) to military service (Watkins v. United States Army, 721 F.2d 687) have recently been reaffirmed despite the concurring Judge's observation in Watkins that it "demonstrates a callous disregard for the progress American law and society have made toward acknowledging that an individual's choice of life style is not the concern of government, but is a fundamental aspect of personal liberty" (see, also, Comment, “Challenging Sexual Preference Discrimination in Private Employment,” 41 Ohio St.L.J. 501; Comment, “Homosexual Parent in Custody Disputes,” 5 Queen's L.J. 199; Rivera, “Our Straight Laced Judges: The Legal Position of Homosexual Persons in the United States,” 30 Hast.L.Rev. 799; but see Curran v. Mount Diablo Council of Boy Scouts of America, 147 Cal.App.3d 712 [under California law a person cannot be expelled from the Boy Scouts simply because he is homosexual]).

In short, despite the fact that an increasing number of homosexuals are publicly expressing satisfaction and even pride in their status, the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored. Thus, on the facts of this case, where the plaintiffs are husband and wife, we find, given the narrow scope of review, that the imputation of homosexuality is "reasonably susceptible of a defamatory connotation" (James v. Gannett Co., supra) and is actionable without proof of special damages (cf. Nowark v. Maguire, supra).

For these reasons, the order should be reversed insofar as appealed from, with costs, the defendants' motion to dismiss should be denied and the complaint should be reinstated.