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MACDONALD v. TIME

January 12, 1983

KENNETH N. MacDONALD, Plaintiff,
v.
TIME, INC., HENRY ANATOLE GRUNWALD, MIKE MALLOWE, and JOHN DOES 1 through 40, Defendants


Sarokin, District Judge.


The opinion of the court was delivered by: SAROKIN

Kenneth N. MacDonald brought this diversity action predicated upon allegedly defamatory articles published in the February 8, 1980 issue of Time and the February 1981 issue of Life. The amended complaint alleged four torts resulting from the two publications; libel, conspiracy, invasion of privacy and intentional infliction of emotional distress. All of the substantive counts relating to the Time article were dismissed by order of this court, dated September 28, 1981, because they were time-barred. The court, in the same order, denied defendants' motion for summary judgment dismissing the claims stemming from the Life article and the conspiracy count. The alleged defamatory article reads as follows:

 
Lordi was confirmed as Chairman, but since then the Casino Control Commission has been badly singed once more; its Vice Chairman, Kenneth M. MacDonald, hastily resigned his post when his name was publicly linked to the FBI's Abscam investigation of official corruption and alleged Mob influence.

 Mr. MacDonald died on April 17, 1982. By consent of all parties, representatives of his estate have been substituted as plaintiffs. *fn1" Defendants now move for summary judgment dismissing the amended complaint on the ground that Mr. MacDonald's cause of action abated upon his death. Defendants also move to dismiss the complaint because of MacDonald's refusal to provide discovery. The court will address the summary judgment motion first.

 The so-called Abscam investigation has received widespread and continuous publicity. The plaintiff was indicted by a grand jury and convicted in the press. One may assume that he and his family suffered untold humiliation, anguish, mental suffering and possible financial loss as a result.

 Because of plaintiff's untimely death, the criminal charges will never be resolved. If this case is not tried, his survivors will never be afforded the opportunity to remove the cloud which has darkened the plaintiff's reputation and which will continue suspended over his survivors for their lifetimes. Even though he was the person allegedly defamed, they have good reason to wish the matter pursued.

 To live in this day and age of advanced communication is to recognize the awesome power of the press. It can destroy a person with a banner headline or a thirty-second moment on television. With that awesome power comes a grave responsibility. Freedom of speech is given great latitude, and we frequently forgive the unforgivable in its name, in order to protect one of our most cherished freedoms.

 But if the plaintiff had a valid cause of action here, there is no just reason why it should not survive his death. To say that a man's defamed reputation dies with him is to ignore the realities of life and the bleak legacy which he leaves behind.

 There is no valid reason which should deny the family of Kenneth MacDonald the right to clear his name and seek compensation for its destruction. Why should a claim for a damaged leg survive one's death, where a claim for a damaged name does not. *fn2" After death, the leg cannot be healed, but the reputation can.

 The cases which have held that a defamation claim does not survive death rest on some contrived fiction or technical label. If a man's livelihood has been destroyed because of defamation, why should that claim not survive, while a claim based upon negligence or breach of contract does survive.

 In our desire to preserve freedom of the press, we must not totally ignore the rights of those who may be injured by its abuses or excesses. Whether such abuses or excesses exist in this case is to be decided by a jury, but plaintiffs should not be deprived of the opportunity of seeking and obtaining that determination.

 It does not erode freedom of the press to remind those who exercise it that it carries the responsibility of fairness and truth. Although defendants argue that to allow libel actions to continue after the death of the defamed individual would chill freedom of the press, it is inconceivable that such a result would follow. To so conclude would mean that a newspaper would hesitate to publish a story for fear that the person defamed might die and his representatives would pursue his claim, yet would not hesitate to publish the same story if it thought that the subject would live and bring the action in his own name. It is ludicrous to suggest that the press would act in one way if the person defamed could bring an action, but act otherwise if his representatives could do so, in the event of his death. All that is in issue here is whether the representatives of a decedent can pursue the claim which he possessed in his lifetime; this case does not involve an action for the defamation of one who is deceased at the time of publication.

 As we provide the courts as a forum for protecting freedom of speech, so should we provide such forum for those who are unfairly destroyed by its abuses. The court, recognizing that New Jersey law is to be applied, finds that it is in accord with this court's conclusion that plaintiff's defamation action should survive.

 At common law, the death of the sole plaintiff or sole defendant before final judgment terminated all actions for personal torts, including defamation. Prosser, Law of Torts 898 (4th ed. 1971). As have many states, New Jersey has, by statute, modified this common law rule to permit certain tort actions to survive the death of the plaintiff or defendant. N.J. Stat. Ann. 2A:15-3,-4 (1952 & Supp. 1982), (herein called the survival statute). N.J. Stat. Ann. 2A:15-3 provides, in part: "executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate would have had if he was living."

 The issue presented to the court by defendants is whether the state's survival statute saves defamation actions from abatement. Plaintiff contends that defamation actions are included in the state's survival statute and do not abate upon the death of the injured person. Defendants contend that defamation actions are not included in the statute. Defendants focus on the statutory language, "to the person". They contend that defamation is injury to the reputation, and not to the person, and thus, defamation actions are excluded from the survival statute. Plaintiffs focus on the statutory language "trespass" and note that the New Jersey courts have construed it to be equivalent to "tort". Ten Eyck v. Runk, 31 N.J.L. 428, 431 (Sup. Ct. 1866). Plaintiffs contend that defamation actions are included in the survival statute under this broad interpretation of "trespass".

 The parties have presented conflicting case authorities to the court. The most recent case is Weller v. Home News Publishing Co., 112 N.J. Super. 502, 271 A.2d 738 (Law Div. 1970), construing the statute to include defamation actions whether or not special damages are involved. Defendants rely on Alpaugh v. Conkling, 88 N.J.L. 64, 95 A. 618 (Sup. Ct. 1915), which ...


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