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Romaine v. Kallinger

Decided: February 18, 1988.

RANDI ROMAINE, EDWINA WISEMAN, RETTA ROMAINE WELBY AND FRANK WELBY, PLAINTIFFS-APPELLANTS,
v.
JOSEPH KALLINGER, ELIZABETH B. KALLINGER, HIS WIFE, AND PAUL J. GIBLIN, ESQ., DEFENDANTS, AND FLORA RHETA SCHREIBER AND SIMON AND SCHUSTER PUBLISHING, INC., A CORPORATION OF THE STATE OF NEW YORK, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division.

For affirmance Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, Garibaldi and Stein. For reversal -- Justice O'Hern. The opinion of the Court was delivered by Handler, J. O'Hern, J., dissenting.

Handler

[109 NJ Page 285] More than ten years ago Joseph Kallinger and his son went on a criminal rampage in Pennsylvania and New Jersey. The offenses were vicious, involving physical threats and sexual abuse of victims during the course of robberies of suburban homes. Kallinger murdered his victims on three occasions. In 1983, approximately eight years after Kallinger and his son had

been apprehended, the defendant Simon & Schuster Publishing Inc. published a book entitled "The Shoemaker," written by the defendant Flora Rheta Schreiber, depicting the life and crimes of Joseph Kallinger. The book gave rise to this litigation.

The plaintiffs, Randi Romaine, Edwina Wiseman, Retta Romaine Welby, and Frank Welby, were victims of Kallinger, whose criminal acts against them resulted in the murder of a young woman, Maria Fasching. Plaintiffs sued the defendants Kallinger, Elizabeth Kallinger, his wife, Schreiber, Simon & Schuster, and Paul J. Giblin, claiming to have been legally injured by defamatory and offensively intrusive statements relating to these crimes contained in "The Shoemaker." Plaintiffs sought in separate counts the award of compensatory and punitive damages based respectively on libel and invasion of privacy by being cast in a false light; they also claimed that their privacy had been invaded through the unreasonable publication of private facts. Other counts of the complaint sought damages based on unjust enrichment and the "Son of Sam" provisions of the Criminal Injuries Compensation Act of 1971, N.J.S.A. 52:4B-26 to -33.

Defendants Simon & Schuster and Schreiber filed motions for summary judgment seeking dismissal of the action. Plaintiffs filed cross-motions including one seeking partial summary judgment in favor of plaintiff Randi Romaine with respect to the defamation claim. The trial court granted defendants' motion for summary judgment with respect to the defamation and privacy claims. It also granted defendants summary judgment with respect to the unjust enrichment claims and with respect to claims based on the Criminal Injuries Compensation Act. The court also denied plaintiffs' cross-motion for summary judgment.

Plaintiffs filed a notice of appeal. In an unpublished opinion, the Appellate Division affirmed the dismissal of the defamation and privacy claims substantially for the reasons expressed in the

comprehensive opinion of Judge Cassidy, the trial judge. Plaintiffs then filed a petition for certification, which was granted by this Court. N.J. (1987).

I.

The factual context of this litigation is important. Ms. Schreiber, the author of " The Shoemaker," is a professor at the City University of New York, John Jay College of Criminal Justice. Although she has no formal training as a psychologist, Ms. Schreiber has written extensively about psychological subjects, and has focused on the problem of child abuse in her work. She is the author of Sybil, a study of a woman who suffered from a multiple-personality disorder.

According to defendants, Professor Schreiber's work is an in-depth study of the psychological make-up of a killer. Specifically, the book explores the relationship between the abuse suffered by Kallinger as a child and the psychotic behavior that led to his criminal acts. " The Shoemaker " received a significant amount of critical praise and Schreiber was named "Author of the Year" by the American Society of Journalists and Authors in 1985 in recognition of her work.

The complaint focuses on a chapter of " The Shoemaker " called "The Hunting Knife." The chapter, which consists of twenty-one pages out of a total of 423, describes the murder of Maria Fasching on January 8, 1975, in Leonia, New Jersey. The chapter relates that Kallinger and his son broke into the home of Mr. and Mrs. DeWitt Romaine. Eight people, who were in the home, were held hostage by Kallinger and his son. Kallinger ordered several of them to remove their clothes, and tied them up. He committed acts of personal abuse and physical degradation on two of the women. While this was occurring, Maria Fasching, a friend of one of the victims, the plaintiff Randi Romaine, came into the house. She was also captured by Kallinger. He directed Ms. Fasching, a nurse, to

perform an act of sexual mutilation on plaintiff Frank Welby, who was tied up and helpless. When she refused to do so, he killed her by slashing her throat several times. About one-half of the chapter is devoted to Kallinger's own recollections of the murder, obtained by Schreiber during interviews with him; these recollections are presented to indicate the extent that Kallinger's acts were the product of his mental illness. The balance of the chapter consists of the re-creation of the murder, as derived from testimony offered at Kallinger's trial by the survivors of the incident.

On the second page of "The Hunting Knife" chapter this passage appears relating the circumstances leading up to Maria Fasching's visit to the Romaine house:

2:45 p.m. A black Volkswagen parked in front of the tan stucco house. A slender woman, whose name was Maria Fasching, turned off the ignition, put the key into the pocket of her imitation fur coat, and stepped gracefully out of her car. She was five feet two inches tall, had brown shoulder-length hair, brown eyes, and a round face with full lips. She was engaged to be married, and, already a licensed practical nurse, she looked forward to becoming an RN.

A militant women's libber, Maria Fasching was famous among her friends for her battles on behalf of the weak and downtrodden. She would always try to rescue someone a bully had attacked, and she could not tolerate racists.

Maria thought of herself as a "free spirit." She resisted anything that she considered a restriction on her freedom. She cared for cats that had been hit by cars and for birds with broken wings.

Today, Maria Fasching was on the four-to-midnight shift at Hackensack Hospital, and she wore her nurse's uniform under her coat. In the morning Maria's friend Randi Romaine, who lived in the stucco house, had called Maria and asked her to drop over for coffee. The two women had not seen each other for a long time, for, between hospital duties and preparations for her wedding, Maria's schedule was full.

At first Maria said that she couldn't visit because she had to go to a wake. The wake, however, was only for an acquaintance. Randi and her twin sister, Retta, had been Maria's friends since they were all in the first grade. Besides, Maria was eager for news from Randi about a junkie they both knew who was doing time in prison. Finally, Maria changed her mind. She didn't go to the wake, but drove her Volkswagen to the two-story tan stucco house at 124 Glenwood Avenue, the house of Mr. and Mrs. Dewitt Romaine.

According to plaintiffs, one sentence in the passage falsely depicts the reason for Ms. Fasching's visit: "Besides, Maria was eager for news from Randi about a junkie they both knew

who was doing time in prison." This sentence, it is claimed, is defamatory as a matter of law and constitutes a false-light invasion of privacy.*fn1 The chapter's general narration of the criminal events, from which this passage is taken, is in turn the basis for plaintiffs' invasion of privacy by unreasonable publication of private facts claim.

II.

Plaintiff Randi Romaine asserts that the particular sentence is defamatory as a matter of law, or alternatively, that the statement's defamatory content was at least a question for the jury. She claims this sentence falsely accuses her of criminality or associations with criminals. Plaintiff also contends that the false accusation was particularly damaging because it injured Ms. Romaine's professional reputation as a drug counsellor and a social worker, interfering with her ability to obtain future employment.

A defamatory statement is one that is false and "injurious to the reputation of another" or exposes another person to "hatred, contempt or ridicule" or subjects another person to "a loss of the good will and confidence" in which he or she is held by others. Leers v. Green, 24 N.J. 239, 251 (1957); see W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts, para. 111 at 773-78 (5th ed. 1984); see also Restatement (Second) of Torts ยง 559 (1977) (a defamatory communication is one that "tends so to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.")

The threshold issue in any defamation case is whether the statement at issue is reasonably susceptible of a defamatory meaning. Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982); Mosler v. Whelan, 28 N.J. 397, 404 (1958). This question is one to be decided first by the court. See Lawrence v. Bauer Publishing & Printing Ltd., 89 N.J. 451, 459, cert. denied, 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982); Leers v. Green, supra, 24 N.J. at 253; Karnell v. Campbell, 206 N.J. Super. 81, 88 (App.Div.1985). In making this determination, the court must evaluate the language in question "according to the fair and natural meaning which will be given it by reasonable persons of ordinary intelligence." Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 431 (App.Div.), aff'd on rehearing, 49 N.J. Super. 551 (App.Div.1958); see Molnar v. The Star-Ledger, 193 N.J. Super. 12, 18 (App.Div.1984); Dressler v. Mayer, 22 N.J. Super. 129, 135 (App.Div.1952). In assessing the language, the court must view the publication as a whole and consider particularly the context in which the statement appears. See Karnell v. Campbell, supra, 206 N.J. Super. at 88; Molnar v. The Star-Ledger, supra, 193 N.J. Super. at 18; Dressler v. Mayer, supra, 22 N.J. Super. at 135; see also Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761, 764 (D.N.J.1981) (applying New Jersey law).

If a published statement is susceptible of one meaning only, and that meaning is defamatory, the statement is libelous as a matter of law. See Mosler v. Whelan, supra, 28 N.J. at 405; Herrmann v. Newark Morning Ledger Co., supra, 48 N.J. Super. at 430. Conversely, if the statement is susceptible of only a non-defamatory meaning, it cannot be considered libelous, justifying dismissal of the action. See Pierce v. Capital Cities Communications Inc., 576 F.2d 495, 501-04 (3d Cir.) (applying Pennsylvania law), cert. denied, 439 U.S. 861, 99 S. Ct. 181, 58 L. Ed. 2d 170 (1978); Cibenko v. Worth Publishers, supra, 510 F. Supp. at 764-65. However, in cases where the statement is capable of being assigned more than one meaning, one of which is defamatory and another not, the question of

whether its content is defamatory is one that must be resolved by the trier of fact. See Lawrence v. Bauer Publishing & Printing Ltd., supra, 89 N.J. at 459; Mosler v. Whelan, supra, 28 N.J. at 404-05; Karnell v. Campbell, supra, 206 N.J. Super. at 88; Herrmann v. Newark Morning Ledger Co., supra, 48 N.J. Super. at 430.

Certain kinds of statements denote such defamatory meaning that they are considered defamatory as a matter of law. A prime example is the false attribution of criminality. See Hoagburg v. Harrah's Marina Hotel Casino, 585 F. Supp. 1167, 1170 (D.N.J.1984); Karnell v. Campbell, supra, 206 N.J. Super. at 88-89; cf. Lawrence v. Bauer Publishing & Printing Ltd., supra, 89 N.J. at 459-60 (statement that plaintiff might be charged with criminal conduct defamatory as a matter of law). Relying essentially on this example of defamation, plaintiff Randi Romaine contends in this case that the published offending statement must be considered libelous per se. According to Ms. ...


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