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Ward v. Zelikovsky

Decided: June 20, 1994.

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



On appeal from and on certification to the Superior Court, Appellate Division, whose opinion is reported at 263 N.J. Super. 497 (1993).

Garibaldi, Wilentz, Clifford, Handler, Pollock, O'Hern, Stein

Garibaldi

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal concerns whether words spoken between two condominium owners at a board meeting of their condominium association constitute slander, and if so, whether plaintiffs have proven sufficient damages to permit a punitive-damages award.

I

Defendant, Johanan Zelikovsky, and plaintiffs, Mary and Charles Ward, own condominiums in the Ocean Club condominium association, a complex of 725 units. They, together with approximately one hundred other condominium residents, attended a July 30, 1989, Board meeting of the condominium association. During the meeting, Mr. Ward addressed the Board on a topic relating to the business of the condominium. While Mr. Ward was speaking, Mrs. Ward stood to add her comments. Mrs. Ward testified that at that moment Zelikovsky, who was seated a few rows in front of her, "jumped up and said, 'Don't listen to these people. They

don't like Jews. She's a bitch. I remember her. She's a bitch.'" Mr. Ward described Zelikovsky's behavior as follows,

[Zelikovsky] leaped up and turned around and screamed, "I know her. She's a bitch. These people, they hate Jews. These people hate Jews." And he was addressing his remarks to the board, but he was pointing and going on and on and started flailing his arms again. At that point the chairman or the president of the board, who has a microphone, said, "Sit down, John. Sit down, John."

The security guard standing at the door to the conference room testified that he heard Zelikovsky's comments and became concerned that a fight might ensue. Zelikovsky's comments were wholly unrelated to the subject on which Mr. and Mrs. Ward had been speaking.

The Wards filed suit against Zelikovsky for slandering them at the condominium association meeting and sought special, compensatory and punitive damages. In addition, the lawsuit charged Zelikovsky with assault and battery for an incident that had occurred the prior year. The Wards and friends visiting from Connecticut were going to dinner and a racetrack. While Mrs. Ward and some of the guests were waiting for Mr. Ward to bring his car to the front of the condominium, one of the guests was handing out sheets with his recommended picks for that evening at the racetrack. Zelikovsky testified that he mistook the sheets for advertisements encouraging time-sharing at the condominium, a practice to which he was vehemently opposed. He demanded a copy but the guest stated that the sheets were only for his friends. Mrs. Ward walked over to the two men and then Zelikovsky began yelling at Mrs. Ward and poked or pushed her during the argument. The jury found in favor of Mrs. Ward on her assault and battery claim against Zelikovsky but found no damages. The assault and battery claim is no longer at issue; this appeal solely addresses Zelikovsky's alleged slander.

At trial, Mrs. Ward testified that Zelikovsky's outburst caused her legs to start shaking. She testified that she "sat down; and [ ] was going to cry; and then I thought, 'I'm not going to do this in front of people' because everybody was turning around and was

looking at us . . . and I was embarrassed -- terribly embarrassed." Mr. Ward testified that he felt "upset, frustrated, embarrassed."

After the meeting, people came up to Mrs. Ward and commented on the incident. Mrs. Ward stated, "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.'" Although Mrs. Ward would not introduce the topic herself, when others mentioned it, she would say, "I'm not. Really I'm not." or "Haven't I always been nice to you?"

During her tenure as head of the condominium's "Sunshine Committee," Mrs. Ward's duties included sending a large number of cards to Ocean Club residents for Jewish holidays and bar mitzvahs, from which she concluded that the Ocean Club had a large Jewish population. Mr. Ward explained that it was not only a "Jewish issue," however, because "if people think . . . you don't like Jews, non-Jews may not like you or want to do business with you either." Following Zelikovsky's comments, Mrs. Ward stated that she was embarrassed and hesitant to participate in activities at the condominium.

As a realtor in Margate, Mrs. Ward also feared that her coworkers, many of whom were Jewish, might learn of Zelikovsky's statement and ask her about it. Mr. Ward had sold his business and was in the process of going into real estate himself. He stated that "just the rumor that you, quote, 'Don't like Jews,' is probably enough not to do business in Margate." Mr. Ward testified that his plan to buy a real estate company at the Ocean Club had not been consummated, perhaps in part because of Zelikovsky's statement.

On cross-examination, Mrs. Ward testified that she had "no idea" whether the statements had caused her to lose business, but [that they] did affect her life at the Ocean Club. After the incident, she felt that "[a] very important part of our lives was taken away from us which was the joy of being at Ocean Club." She stated that the difference after the comment was that she felt a "coolness" that had not existed prior to the statement. She

stated that "we weren't invited to things that we had been invited to before; and several people did mention it to me."

Mr. Ward also testified that he found less enjoyment living at the Ocean Club after the incident. He testified that he "absolutely felt a chill and a coolness of many relationships that he had" at the Ocean Club and that he had avoided certain functions that he knew Zelikovsky frequented. He noted that the other owners had excluded him and his wife from a celebration party following an owners-board election. Zelikovsky had been the principal financier for the newly-elected board's campaign. On cross-examination, Mr. Ward admitted that nobody had actually said, "Hey, we're having this celebration; but we don't want you to go to it."

Defendant did not deny making the critical statement about the Wards but claimed that he was merely speaking to a friend seated beside him. He testified that Sheila Polin, another resident at Ocean Club, had told him that she had heard Mr. Ward make an anti-Semitic remark. Polin testified that Mr. Ward had in fact made a comment to her about Jews that she considered derogatory (although she could not remember the substance of the comment) and that she had told Zelikovsky about that exchange.

Plaintiffs sought admission of Zelikovsky's tax returns to assist the jury if it decided to award punitive damages. The court admitted the returns into evidence over Zelikovsky's objection that the returns should not be admissible because debts and other liabilities were not represented in the returns.

The trial court determined that plaintiffs were required to show special damages because the offensive remarks were not within the four recognized categories of slander per se, namely, statements that impute (1) commission of a crime, (2) contraction of a loathsome disease, (3) occupational incompetence or misconduct, and (4) unchastity of a woman. Gnapinsky v. Goldyn, 23 N.J. 243, 250-51, 128 A.2d 697 (1957). The jury instruction sheet therefore noted that special damages were a prerequisite to recovery, and it required deliberations to cease as to each plaintiff if the jury found no special damages for that plaintiff.

The jury found that defendant had slandered Mary Ward but that she had sustained no special damages. Ignoring the court's instructions that deliberations should then cease concerning that plaintiff, the jury also determined that Mrs. Ward had sustained general damages, but it awarded no compensatory damages. Finally, the jury awarded Mrs. Ward punitive damages of $25,000. The jury also found that defendant had slandered Mr. Ward and that the plaintiff had sustained special and general damages, but that the amount of such damages was zero. The jury awarded Mr. Ward, too, punitive damages in the amount of $25,000.

The trial court then reminded the jury that only if special damages were found could other damages be awarded. The court suggested that the jury might wish to achieve its purpose by awarding nominal special damages to support the punitive-damages award and sent the jury back for reconsideration of its verdict. Not surprisingly, the jury's second verdict found that Mr. and Mrs. Ward had each sustained special damages of $1, general damages of $1, and again awarded each plaintiff punitive damages of $25,000.

Zelikovsky moved for a new trial on the slander claim, which the court denied. He then appealed. The Appellate Division affirmed the trial court's judgment, with one Judge Dissenting. 263 N.J. Super. 497 (1993). The majority of the Appellate Division expanded the four traditional categories of slander per se to include imputations of racial or ethnic bigotry, thus determining that proof of special damages was not necessary. Id. at 511-12. The Appellate Division also upheld the punitive damage awards. Id. at 513.

The Dissent rejected the majority's view that defendant's characterization of plaintiffs as anti-Semitic was defamatory as a matter of law and that the statements qualified as slander per se, which did not require proof of special damages. Id. at 513. Moreover, the Dissent concluded that even if the statements were defamatory, plaintiffs had failed to prove special damages. Id. at 526. Thus, the members of the

Appellate Division panel unanimously agreed that defendant's statement was not slanderous under any of the traditional four categories of slander per se, and that plaintiffs had not proven any special damages. They disagreed, however, over whether defendant's statement was defamatory, and over whether they should expand the four traditional categories of slander per se to include statements of religious and ethnic bigotry.

Zelikovsky appealed as of right pursuant to Rule 2:2-1(a). We also granted defendant's Petition for certification, 134 N.J. 476 (1993), which seeks a review of the punitive-damage awards.

II.

The outcome of this case is the same whether we rely on Mr. Ward's or Mrs. Ward's version of the colloquy. We must determine whether the characterization of Mrs. Ward as a "bitch" and the claim that the Wards "don't like" or "hate" Jews are slanderous. In essence, this case concerns a verbal dispute between neighbors and thus is considerably different from libel cases involving media defendants. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); Sisler v. Gannett Co., Inc., 104 N.J. 256, 516 A.2d 1083 (1986); Kotlikoff v. The Community News, 89 N.J. 62, 444 A.2d 1086 (1982). A jury can generally assume that a measure of thought preceded the words printed in a newspaper or magazine. In contrast, spoken words often do not evidence that a similar level of deliberation preceded them. See Restatement (Second) of Torts § 568(3) (1977). This distinction is significant because the apparent deliberation of the speaker or writer will influence how a reasonable audience perceives the speech.

The law of defamation exists to achieve the proper balance between protecting reputation and protecting free speech. The threshold inquiry in a slander lawsuit is "whether the language used is reasonably susceptible of a defamatory meaning." Kotlikoff, supra, 89 N.J. at 67.

The Restatement (Second) of Torts § 559 defines a defamatory statement as one that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111, at 773 (5th ed. 1984), defines defamation as "that which tends to injure 'reputation' in the popular sense; to diminish the esteem, respect, good-will or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." (Footnotes omitted.)

Whether the meaning of a statement is susceptible of a defamatory meaning is a question of law for the court. Kotlikoff, supra, 89 N.J. at 67. In determining whether the statements are defamatory, we must consider the content, verifiability, and context of the challenged statements.

A. Content

Courts begin their review to determine whether a statement is susceptible of a defamatory meaning by looking "'to the fair and natural meaning which will be given it by reasonable persons of ordinary intelligence.'" Romaine v. Kallinger, 109 N.J. 282, 290, 537 A.2d 284 (1988) (quoting Herrmann v. Newark Morning Ledger Co. 48 N.J. Super. 420, 431, 138 A.2d 61 (App. Div.), aff'd on reh'g, 49 N.J. Super. 551 (App. Div. 1958)).

Although perhaps directly injurious to a person, name-calling does not have a defamatory content such that harm to reputation can be shown. The First Amendment "does not embrace the trite wallflower politeness of the cliche that 'if you can't say anything good about a person you should say nothing at all.'" Rodney A. Smolla, Law of Defamation, § 6.09[2], at 6-37 (1986). Indeed, "name calling, epithets, and abusive language, no matter how vulgar or offensive, are not actionable." Id. at § 6.12[9], at 6-54. "No matter how obnoxious, insulting or tasteless such name-calling,

it is regarded as a part of life for which the law of defamation affords no remedy." Id. at § 4.03, at 4-11.

The Restatement (Second) of Torts succinctly differentiates between actionable defamatory statements and ...


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