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Ward v. Zelikovsky

Decided: April 13, 1993.

CHARLES C. WARD AND MARY B. WARD, PLAINTIFFS-RESPONDENTS,
v.
JOHANAN ZELIKOVSKY, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Atlantic County.

Antell, Dreier and Skillman. The opinion of the court was delivered by Antell, P.J.A.D. Skillman, J.A.D., Dissenting.

Antell

Defendant appeals from defamation judgments of $25,002, together with combined pre-judgment interest from August 10, 1989, through January 10, 1992, in the combined amount of $9,785.78, entered in favor of each of the plaintiffs, who are husband and wife. The complaint herein alleges two separate causes of action. The first involved an alleged assault and battery committed by defendant on plaintiff Mary Ward on June 18, 1988. The second involved defamatory statements about both plaintiffs made by defendant at a public meeting on July 30, 1989. Although the jury found that the assault and battery had been proven, it awarded neither compensatory nor punitive damages on that finding. The issue before us is whether plaintiffs' proofs support the finding of slander. The material facts follow.

Plaintiffs and defendant owned separate condominium units at the Ocean Club in Atlantic City. On July 30, 1989, they attended a Board meeting of the condominium association where approximately 100 residents were present. Mr. Ward briefly addressed the Board, and when Mrs. Ward got up to add something, according to her, defendant leaped to his feet and screamed "Don't listen to those people. They don't like Jews. She's a bitch. I remember her. She's a bitch." Mr. Ward testified that defendant shouted, "I know her. She's a bitch. These people, they hate Jews. These people hate Jews." Defendant's statements were wholly unrelated to the remarks plaintiffs had addressed to the Board, which had only to do with the business of the condominium and in no way implicated defendant.

In response to the question as to how plaintiff's verbal assault made her feel, Mrs. Ward gave the following responses:

Well, frankly, I mean my -- I have never been insulted in public or hardly ever insulted, I guess that's fortunate, in my life by people that I didn't know very well; and my legs started to shake; and I sat down; and I was going to cry; and then I thought, "I'm not going to do this in front of people" because everybody turned around and was looking at us and -- I mean I can remember

who was sitting in front of us and where -- and I was embarrassed -- terribly embarrassed.

When asked whether her feeling of embarrassment went away after the meeting, she answered "No, it didn't go away because people came up after the meeting and commented on it. In the elevator on up to our place, people commented on it; and I was very embarrassed because how do you stand up and say, 'That's not true. That's not true,' you know?" She asserted that defendant's accusation was "[a]bsolutely not" true.

Ocean Club is a residential complex consisting of 725 condominium units. According to Mrs. Ward, the club houses "a large Jewish population," a judgment she reached based upon her experience as head of the "Sunshine Committee." The function of the Sunshine Committee is to send appropriate greeting cards, condolences, congratulatory messages, and the like, to members of the condominium association. As committee head, Mrs. Ward was in a position to note the celebration of Jewish holidays and the number of bar mitzvah cards being sent out.

At the time of the incident, Mrs. Ward was working as a realtor in Margate where she had a large number of Jewish associates. She always feared that they would confront her over this incident in one way or another.

Mr. Ward described his response to defendant's statement in the following way:

On the one hand powerless to stop this man and there were two parts of this thing: One was calling my wife a bitch. The second part was saying repeatedly that we hate Jews in front of a group of people that it would be impossible to defend myself if, indeed, I had to defend myself. But I felt upset, frustrated, embarrassed, all those emotions. My mind was racing. I mean I don't understand how anybody could attack someone like that particularly when I wasn't even talking to the gentleman.

At that time, Mr. Ward was negotiating for the purchase of a real estate company located at the Ocean Club and in Margate, but these prospects were never consummated partly because of Mr. Ward's "rational concern" that "just the rumor that you, quote, 'Don't like Jews,' is probably enough to not do business in Margate in my opinion." Mr. Ward also stated that it was

absolutely untrue that he disliked Jews. In response to the question, "How do you prove it?" he answered:

That's what I've had a lot of conversations in the last few years about, and I don't know how you prove a negative, or how you prove you're not something. I don't drink either, but I'd have trouble proving it to you. You know, it's tough to prove those things.

Defendant did not deny making the statement. The only fact he offered in justification thereof was that he had been told by Sheila Polin, another resident at Ocean Club, that she had once heard Mr. Ward make an anti-semitic remark. Defendant, however, could not remember the exact nature of the remark. Sheila Polin, whom defendant called as a witness, confirmed that she had once heard Mr. Ward make a comment about Jews that she considered derogatory. She also testified that she related this fact to defendant. However, she, like defendant, did not remember what the comment was.

Before submitting the case to the jury, the court concluded that the offensive statements were not slanderous per se and that special damages would have to be found to establish the cause of action. The court instructed the jury accordingly.

By its verdict, the jury found that defendant did in fact slander Mary Ward, but that she had sustained no special damages. Although the jury verdict form reports that she had sustained general damages, they made no compensatory award. However, the jury allowed Mrs. Ward $25,000 in punitive damages. The jury also found that defendant had slandered Mr. Ward. As to him, it concluded that he had sustained special and general damages, but that the amount of such damages was zero. Mr. Ward, too, was awarded punitive damages in the amount of $25,000.

Upon receiving the jury's verdict, the court reminded the jurors of its instruction that punitive damages could not be awarded in the absence of special damages. It then recharged the jury with respect to damages, particularly pointing out the jury's option to find nominal special damages in order to support the punitive damage verdicts. After deliberating further, the jury returned with a second verdict, this time finding

that Mrs. Ward had sustained special and general damages of $1 and again awarding punitive damages in the amount of $25,000. An identical award was entered in favor of Mr. Ward.

The trial court decided that plaintiffs had proved special damages based upon their testimony that, following the incident at the condominium meeting, they experienced a marked "coolness" on the part of the other residents in the condominium and that they were not invited to participate in condominium activities in a way that they had before. Plaintiffs contended that as a result they suffered a substantial material harm, though not necessarily capable of quantification, in the loss of use, enjoyment and security of their home and ability to participate in the Ocean Club activities. In Arturi v. Tiebie, 73 N.J. Super. 217, 222, 179 A.2d 539 (App.Div.1962), the following was stated as to the proof of special damages needed to make out a case of slander:

The special harm a plaintiff must prove is harm of a material or pecuniary nature. Restatement, Torts, sec. 575, p. 185. There must be proof of a pecuniary loss or loss of some substantial or material advantage. 53 C.J.S. Libel and Slander § 268(b), p. 390.

See also, Hoagburg v. Harrah's Marina Hotel, 585 F. Supp. 1167, 1170 (D.C.N.J.1984); Prosser and Keeton, The Law of Torts, § 112 at 794 (5th Ed.1984).

We agree with defendant that plaintiffs' claimed loss did not constitute "harm of a material or pecuniary nature."

[ Restatement (Second) of Torts, § 575 comment b at 198 (1977).]

Defendant argues that without proof of special damages the defamation is not redressible. He relies upon Arturi v. Tiebie, supra, 73 N.J. Super. at 222, 179 A.2d 539, where the court stated the following:

Slander is actionable per se, that is, without charge or proof of special damages, when the false statements (1) charge commission of a crime, (2) impute certain loathsome diseases, (3) affect a person in his business, trade, profession or office, or (4) impute unchastity to a woman. Gnapinsky v. Goldyn, supra, [23 N.J. ] at p. 250 [128 A.2d 697]. If the defamatory statements are not within any

of these four categories, plaintiff must prove that the utterance thereof was the legal cause of some special harm. Restatement of the Law, Torts, sec. 575, p. 185.

The defamatory words spoken by defendant at the condominium meeting cannot, of course, be subsumed under any of the foregoing categories. Plaintiffs argue, however, that although Arturi v. Tiebie claims to have its ancestry in the opinion of our Supreme Court in Gnapinsky v. Goldyn, 23 N.J. 243, 250, 128 A.2d 697 (1957), it is not genuinely reflective of New Jersey law governing this issue at the present time.

The New Jersey source decision on the subject of slander per se appears to be Shaw v. Bender, 90 N.J.L. 147, 100 A. 196 (E. & A.1917). The rule there stated was that "[w]henever words clearly 'sound to the disreputation' of the plaintiff, there is no need of further proof, they are defamatory on their face and actionable per se." Id. at 149, 100 A. 196. The court added that "[s]poken words are defamatory when the imputation cast by them on the plaintiff is on the face of it so injurious that the court will presume, without proof, that plaintiff's reputation has been thereby impaired . . . ." Ibid. As Arturi v. Tiebie correctly stated, our Supreme Court in Gnapinsky v. Goldyn, supra, 23 N.J. at 250, 128 A.2d 697, recognized that slander is actionable per se, that is, without charge or proof of special damages, when the defamatory utterances fall into any one of the four specified classifications. However, Gnapinsky did not restrict the proof of slander per se to those exceptions. What Gnapinsky stated was that there were three categories of false statements "which are generally deemed to be actionable per se," and then noted that Professor Prosser had added a fourth, the imputation of unchastity to a woman. Id. at 250, 179 A.2d 539. As the quoted extract from Arturi v. Tiebie itself shows, that court's determination to limit cases of slander per se to the four classifications was drawn from the Restatement of the Law of Torts. It did not have its genesis in any New Jersey precedent.

Our research has disclosed no later cases in this state that apply the compartmentalized standard articulated by Arturi.

Indeed, succeeding opinions set forth the test of defamation per se in broad terms that make allowance for the infinitely varied forms of offense to reputation: "Words that clearly denigrate a person's reputation are defamatory on their face and actionable per se," Printing Mart v. Sharp Electronics, 116 N.J. 739, 765, 563 A.2d 31 (1989); "If a published statement is susceptible of one meaning only, and that meaning is defamatory, the statement is libelous as a matter of law," Romaine v. Kallinger, 109 N.J. 282, 290, 537 A.2d 284 (1988); "A determination of whether certain language is defamatory on its face rests within the power of the trial court [citation omitted]. Only when the court finds the words to be capable of both a defamatory and a nondefamatory meaning does a question of fact arise for the jury to decide." Lawrence v. Bauer Pub. & Print. Ltd., 89 N.J. 451, 459, 446 A.2d 469, cert. denied, 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982); "A false statement is defamatory if it exposes a person to hatred, contempt or ridicule, or subjects him to a loss of good will and confidence of others, or so harms his reputation as to deter others from associating with him," Lutz v. Royal Ins. Co. of America, 245 N.J. Super. 480, 492, 586 A.2d 278 (App.Div.1991).

In Hall v. Heavey, 195 N.J. Super. 590, 481 A.2d 294 (App.Div.1984), a slander case, the court defined defamation as "insult to someone's reputation and good name caused by uttering words which tend to hold plaintiff up to contempt, hatred, ridicule, aversion or disgrace." Id. at 594, 481 A.2d 294. The court observed that because of the early reluctance of the courts to accept the action of slander, the rule developed that suit would not lie without proof of special damages. It went on to explain that "exceptions were created to allow the claim if the 'words clearly sound to the disreputation of the plaintiff,' making them 'defamatory on their face and actionable per se,'" citing Shaw v. Bender, supra. Id. at 594-595, 481 A.2d 294. It did not suggest that slander per se must be limited to the four categories mentioned by Arturi.

Like much in the law of defamation, the requirement of special damages to sustain a charge of slander can be explained only as a matter "of historical accident and survival." Prosser

and Keeton, supra, at 772. Described as "arbitrary and illogical," ibid, it does not apply in the case of libel. Id. at 785-86. See also Herrmann v. Newark Morning Ledger, 48 N.J. Super. 420, 443, 138 A.2d 61 (App.Div.1958). The origins of the rule can be understood from the language of the following text:

The actions for defamation developed according to no particular aim or plan. Originally the common law courts took no jurisdiction, leaving defamatory utterances to be dealt with by the local seigniorial courts. When these began to fall into decay, the ecclesiastical courts stepped in, regarding defamation as a sin, and punishing it with penance. As these courts in turn lost their power, there was in the sixteenth century a slow infiltration of tort actions for slander into the common law courts. For a considerable length of time there were conflicts over jurisdiction between the two sets of tribunals, which led the common law courts to hold that unless "temporal" damage could be proved, defamation was a "spiritual" matter which should be left to the Church. When the common law jurisdiction was once established, an unexpected flood of actions was let loose upon the Judges, who seem to have been annoyed and dismayed by it, and so proceeded to hedge the remedy about with rigid restrictions, some of which survive.

[ Prosser and Keeton, at 772.]

The reluctance with which the common law courts at first received the action of slander, and their fear of invading the province of ecclesiastical law, led them to hold that the action would not lie without proof of "temporal" damage. From this there developed the rule that slander, in general, is not actionable unless actual damage is proved. To this the courts very early established certain specific exceptions: the imputation of crime, of a loathsome disease, and those affecting the plaintiff in his business, trade, profession, office or calling -- which required no proof of damage. The exact origin of these exceptions is in some doubt, but probably it was nothing more unusual than a recognition that by their nature such words were especially likely to cause pecuniary, or "temporal," rather than "spiritual" loss.

[ Id. at 788.]

In our view, appellate opinions in this state, both before and after Arturi v. Tiebie, adhere to a plastic standard intended to accommodate the demands of Justice in the countless factual congeries as they arise. Their allusions to the four exceptions only serve to illustrate the kinds of defamations that have been recognized in the past as actionable per se. They do not follow the rule that, unless the defamatory statement falls within one

of the four categories specified in Arturi, special damages must be shown.

Cases from other jurisdictions involving the question of whether imputations of racial or ethnic bigotry may be slanderous per se are few in number. In City of Brownsville v. Pena, 716 S.W. 2d 677 (Tex.App.1986), a company manager accused plaintiff of having "racist attitudes against Mexicans legally residing in the United States," id. at 679, and the jury awarded compensatory and punitive damages. On appeal, the court concluded without Discussion that defendant's words were "so obviously hurtful to the person aggrieved by them that they require no proof of their injurious character to make them actionable," that the accusation of bias was therefore actionable per se and that "the law presumes actual damages." Id. at 682.

In Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983), during the course of a law suit arising out of a landlord-tenant relationship, the tenant's attorney wrote to the landlord's attorney urging that the landlord make "some attempt to demonstrate that he is not as an [sic] anti-Semitic as he appears to be, and to make some effort at trying to live together as a good neighbor." Id. 457 A.2d at 109. Thereupon, the landlord sued the tenant's attorney in defamation. On appeal, the court affirmed the judgment for defendant. In determining that the words were not capable of defamatory meaning, the court examined the factual context and the nature of the intended audience. It took into account that the letter was intended for a fellow attorney "and was intended for no other audience. The intended publication was therefore extremely limited." Id. at 111. The court also held that the nature of the intended audience was a "'critical factor'" in evaluating the factual context, ibid., and distinguished the case from that presented in O'Donnell v. Philadelphia Record Co., 356 Pa. 307, ...


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