On certification to the Superior Court, Appellate Division, whose opinion is reported at
For affirmance -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.
This case involves a tort action brought against a newspaper seeking damages for defamation and emotional distress attributable to the publication of a false obituary. The Court is called on to address whether an obituary that reports a death, this being the only false statement, can possibly have a defamatory interpretation. In addition, the Court must decide whether the publication of a false obituary can give rise to damages for the negligent infliction of emotional harm. The trial court and Appellate Division held that defamation and emotional-harm claims were without merit as a matter of law. Plaintiffs appeal these rulings arguing that defendant's publication of a false obituary without verifying its accuracy caused damage to reputation and emotional harm that should be compensated under our tort law.
On February 15, 1985, the defendant, a newspaper, The Princeton Packet, Inc. ("The Packet"), which publishes on Tuesday
and Friday of each week, reported the following obituary for Marcy Goldberg Decker, the plaintiff:
Marcy Goldberg Decker of Princeton died suddenly Feb. 11. She was 31.
Ms. Goldberg was the fiance of Robert J. Feldman of Princeton.
She was a lifelong resident of Princeton and is survived by a son, Jackson T.; her mother, Charlotte Goldberg of Trenton; and a brother, Ronald Goldberg of California.
Funeral arrangements were incomplete at press time.
This obituary was incorrect because Marcy Decker was not dead. All other information in the obituary -- her age, residence, and family relationships -- was accurate (except, of course, the references to those circumstances in the past tense and the funeral arrangements). Plaintiff notified defendant by a telephone call two days after the publication that she was in fact alive. The Packet printed the following retraction on February 19, 1985:
The Packet erroneously reported in Friday's edition that Marcy Decker of Princeton died Feb. 11. The obituary was false. The Packet regrets the error and any inconvenience this may have caused Ms. Decker and her family.
On February 14, 1986, Marcy Decker, her son, Jackson Decker, and her mother, Charlotte Goldberg, filed a complaint against The Packet and the unknown John Doe who submitted the obituary notice, alleging (i) libel; (ii) negligent infliction of emotional distress; (iii) intentional infliction of emotional distress; and (iv) gross negligence. The Packet responded by filing a motion for summary judgment, contending that the publication of a false obituary is not defamatory as a matter of law, and that the first amendment barred this lawsuit.
During discovery, the following facts became available about plaintiffs' claims against defendant. First, plaintiffs alleged that when the obituary was published, plaintiff Marcy Decker "was under extreme emotional distress" that was "aggravated" by the publication. At that time, she was in an "emotional" legal battle with her former fiance as well as a custody battle with her former husband and had attempted suicide twice prior to the publication of the obituary. She also claims that "due in part to the publication of the false obituary and its effect on
her" she lost her employment and stopped looking for housing in Princeton and moved to Pennsylvania. In addition, she stated that her husband tried to use the false obituary in the custody battle over their child. Finally, she argued that her son and mother suffered "extreme embarrassment and humiliation and anxiety" attributable to the publication of the obituary, which entitled them to compensation.
Plaintiffs deposed three employees of defendant to establish their claims that The Packet was unaware of who had submitted the obituary, that it took no steps to determine the validity of the notice, and that it would not have published the obituary had the person normally in charge of obituaries been on the job. The depositions showed that The Packet normally receives obituaries through three sources: (1) other area daily newspapers, (2) funeral directors, and (3) press releases left in a box maintained for that purpose in the lobby.
Mr. Willever, the editor of The Packet, testified that the normal procedure at The Packet in 1985 was to verify the information contained in the obituary by communicating with the funeral home or calling the telephone number on the press release. Ms. Willever noted that generally any release he had ever done had a telephone number on it. He also testified that The Packet does not normally retain information it receives for the publication of obituaries and that there was no record of who handled this notice.
Mr. Chimenti, the executive editor in charge of the day-to-day operations of the Packet in 1985, testified that he was the person who found Ms. Decker's obituary in the press-release box in the lobby, and he made the decision to publish it without any attempt to verify the information in the release. He stated that the notice was typed on 8 1/2 X 11 white bond paper, was not in an envelope, was unsigned with no telephone number on it, and that he could not remember whether it was dated. He ...