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Daryl Fees v. Trow

Decided: March 9, 1987.

DARYL FEES, PLAINTIFF-RESPONDENT,
v.
CHRISTINE TROW, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- none.

Per Curiam

[105 NJ Page 332] This is a defamation case. The issue is whether and to what extent an employee of a state facility for the developmentally disabled is protected by a privilege in making a defamatory report of another employee's abuse of an adult resident of the facility. The trial court granted defendant's motion for summary judgment. The Appellate Division, in an unreported opinion, acknowledged that under the circumstances defendant enjoyed a qualified privilege, but nevertheless concluded that there was a fact issue of whether the privilege had been abused. The court below therefore reversed. We granted certification, 101 N.J. 267

(1985), to review that determination, and now reverse and reinstate the judgment in favor of defendant.

I

In June 1981 both plaintiff and defendant were employed as teachers at New Jersey Neuropsychiatric Institute, commonly known as Skillman, a state-operated residential facility for the developmentally disabled, including the mentally retarded. See N.J.S.A. 30:6D-3 (definition of developmental disability). (Effective June 29, 1983, the name of the Institute was changed to the North Princeton Developmental Center. See L. 1983, c. 231, ยง 2, codified at N.J.S.A. 30:4-177.12.)

On June 1, 1981, defendant, Christine Trow, reported to her supervisor, Ron Wybraniec, an incident that she had allegedly witnessed earlier that day. She claimed to have seen plaintiff, Daryl Fees, in an unoccupied office with one of the institution's adult residents, Carol Dutcher. After making an oral report to her supervisor, defendant gave the following written account of the occurrence:

I saw Daryl Fees going up the stairs * * * with Carol Dutcher about four steps behind him saying, "I'll go upstairs with you honey, * * * I'll follow you, honey * * * etc. * * * As I went around the corner of the stairs I heard Daryl Fees talking and Carol giggling.

I saw Daryl Fees seated with his legs together and Carol Dutcher sitting on his lap, facing away from me. Daryl Fees['] hand was under the back of Carol's shirt, and almost all the way up her back. His hand was moving. She continued giggling and I heard her say "Don't touch my breasts," after which Daryl said softly, "I love you," etc.

When confronted with these allegations, plaintiff admitted that Carol Dutcher was in his lap as defendant had reported, but he claimed that Carol "caught me off guard pushing me onto a chair then jumped on my lap." Plaintiff denied ever having his hand under the back of Carol's shirt and further denied telling Carol that he loved her.

When interviewed the next day Ms. Dutcher stated, among other things:

1. Plaintiff told her to sit in the chair.

2. "We sat in the chair and he [plaintiff] rubbed my back and we had love and he loves me."

3. "[H]e [plaintiff] rubbed my breasts * * *."

4. Plaintiff kissed and hugged her.

In a second interview Ms. Dutcher related the following relevant information:

I pushed him [plaintiff] into a chair -- he took me onto his lap -- he spread his legs so I could sit down.

He was trying to find another room -- I pushed him and he sat down -- he sat me on his one leg --

He took his hands on my breasts and put his hands under my dress on the front and he kissed my breasts.

Further investigation led to an interview of another resident, Pat Murray, who stated that on another occasion he had observed plaintiff in the coffee room with Ms. Dutcher, and that plaintiff had his right hand on Ms. Dutcher's breast. Following this investigation plaintiff was terminated from his unclassified position as Teacher II. Thereafter plaintiff requested and ...


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