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Turf Lawnmower Repair, Inc. v. Bergen Record Corp.

Decided: January 3, 1994.

TURF LAWNMOWER REPAIR, INC., A NEW JERSEY CORPORATION, AND JOHN L. GLORIA, PLAINTIFFS-APPELLANTS,
v.
BERGEN RECORD CORPORATION, DAVID HALL, BYRON CAMPBELL, BRUCE LOCKLIN, MARY ANNE DEMARCO AND EDWARD MITCHELL, D/B/A EDDIE'S POWER EQUIPMENT, *FN* DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Bergen County.

Michels, Kestin and Wefing. The opinion of the court was delivered by Kestin, J.A.D. Wefing, J.s.c. (temporarily assigned) Concurring.

Kestin

In this defamation action, the trial court granted defendants' motion for summary judgment, holding that plaintiffs had failed "to raise a genuine issue of actual malice." Plaintiffs appeal. We affirm.

Defendant newspaper, the Bergen Record Corporation, published an article authored by defendant Locklin which depicted in an unfavorable and allegedly false light the services rendered by plaintiff corporation (Turf) to its customers and the manner in which its president and owner, plaintiff Gloria, ran the business. The article and accompanying material entitled "A Clip Joint for Lawn Mowers," was the product of investigative reporting by Locklin and a research assistant employed by the newspaper, defendant De Marco. Plaintiffs contend that the impetus for the investigation and resulting publication was personal pique on the part of Locklin when, as a customer of Turf, he was displeased both with the treatment he was accorded by employees of Turf and with their advice that his lawnmower was not worth repairing. Locklin's investigation included some tests intended to establish the manner in which Turf and a number of other lawnmower repair companies dealt with various lawnmower performance problems; undisclosed tape recordings of some conversations with Turf employees during tests; and interviews with the Better Business Bureau, local competitors of Turf, other lawnmower repair operators who did not compete with Turf, former Turf employees, customers of Turf, and with Gloria himself. Plaintiffs allege, inter alia, that Locklin's tests were improperly conducted and falsely reported, that he knowingly relied on biased sources, that he intentionally omitted information favorable to plaintiffs, and that specified statements in the article were false.

Two of the issues that plaintiffs advance on appeal are interconnected. Plaintiffs contend that the trial court erred in applying a heightened proof standard in respect of their claim for compensatory damages. In this regard, they argue that the newspaper article for which defendants are responsible did not concern matters of legitimate public interest and that neither Gloria nor Turf was a public official or a public figure. The related issue advanced by plaintiffs is that their proofs, in respect of their claim for compensatory damages, are more than sufficient to establish defendants' negligence and knowledge of falsity. In addition, plaintiffs seek punitive damages and argue that their proofs will satisfy a heightened standard in this regard.

In Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), the United States Supreme Court held that the "actual malice" standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), to govern defamation actions, applies only to public officials and public figures, not to private individuals.

[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

[ Gertz v. Welch, supra, 418 U.S. at 347, 94 S. Ct. at 3010, 41 L. Ed. 2d at 809.]

The Supreme Court of New Jersey defined and applied our common law standard governing defamation actions by private plaintiffs in Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 516 A.2d 220 (1986), and Sisler v. Gannett Co., 104 N.J. 256, 516 A.2d 1083 (1986), both decided on the same day. For reasons having to do with the character of each plaintiff's activities and the degree to which that conduct implicated matters of "legitimate public concern" the Supreme Court held the actual malice standard to apply in the instances presented in both cases. Dairy Stores and Sisler also demonstrate the method by which the governing proof standard is to be selected, and they refer to some of the permissible choices.

The statuses of the corporate and individual plaintiffs in this case are similar to those of the corporate and individual plaintiffs

in Dairy Stores and Sisler respectively. They are clearly private persons who have been subjected to general public notice by the very conduct which they allege gives rise to their cause of action. See also Gertz v. Welch, supra, 418 U.S. at 351-52, 94 S. Ct. at 3012-13, 41 L. Ed. 2d at 811-13.

There are qualitative differences between these plaintiffs and the plaintiffs in Dairy Stores and Sisler to be sure; but the differences and the manner in which they bear upon the needs of public discourse are not so substantial as to require a variant result. We conclude, instead, that the plaintiffs in this ...


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