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Kass v. Great Coastal Exp.

May 31, 1996

IAN DAVID KASS, PLAINTIFF-APPELLANT,
v.
GREAT COASTAL EXPRESS, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County.

Approved for Publication May 31, 1996.

Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D. Humphreys, J.A.D., Dissenting and Concurring.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by KLEINER, J.A.D.

Plaintiff Ian David Kass appeals from the entry of judgment in a trade libel action on behalf of defendant Great Coastal Express, Inc. We are called upon to review the concept of trade libel and the often invoked defense of qualified privilege. We conclude that the interrogatories to the jury did not comply with the legal precepts applicable to this cause of action and that this was harmful error requiring reversal. See R. 2:10-2. Despite the fact that plaintiff's appeal does not directly assail the instructions of the trial Judge, we are constrained to reverse a determination predicated on erroneous instructions.

Plaintiff was employed by defendant from June 15, 1990 to July 7, 1990 as a truck driver/operator. After plaintiff left defendant's employ, he sought new employment with other companies in a similar capacity. Plaintiff learned that his employment applications with prospective employers received unfavorable treatment because the prospective employers received negative evaluations from defendant. Defendant's reports indicated that plaintiff had "been discharged," had "violated company policy," had "quit under load," *fn1 and had "used company equipment without authorization." Plaintiff contends that these reports were defamatory and were not protected by any qualified privilege of defendant.

As a result of a pre-trial ruling, the trial Judge determined that defendant was entitled to claim a qualified privilege. That ruling is not challenged on appeal. The primary issues for trial focused on whether defendant's reports as to plaintiff's employment were defamatory and if so, whether defendant was protected by a qualified privilege despite the defamation.

In an effort to guide the jury in its deliberations, the trial Judge prepared the following six special interrogatories to be answered by the jury in the course of its deliberations:

1. Has plaintiff proven by a preponderance of the evidence that defendants made injurious or disparaging statements about him?

2. Has plaintiff proven by a preponderance of the evidence that defendants made statements about him which were false?

3. Has plaintiff proven by a preponderance of the evidence that the statements made about him were made by the defendants with the knowledge that they were false or with reckless disregard for their truth or falsity?

4. Has plaintiff proven by clear and convincing evidence that defendant's sole, chief or primary motivation in communicating the statement was ill will or spite toward the plaintiff?

5. What is the amount of pecuniary damages that plaintiff has proven by a preponderance of the evidence he sustained which were proximately caused by the acts of the defendants?

6. Has plaintiff proven by a preponderance of the evidence that the conduct of the defendants was willful, wanton, or malicious?

The jury answered questions one, two and three in the affirmative. However, it then answered questions four and six in the negative. The jury responded to question five with the amount of $15,000.

After the jury returned its verdict, the trial Judge heard oral argument from counsel. Plaintiff argued that the jury's answer to interrogatory three compelled entry of a verdict for plaintiff for $15,000. Defendant argued that the response to question four necessitated a judgment in its favor. The trial Judge reserved decision and asked counsel to prepare post-trial briefs. The jury was discharged. Thereafter, the trial Judge directed in a written opinion that the clerk enter judgment for defendant.

As will be discussed hereafter, we conclude that the special interrogatories regarding the qualified privilege were incomplete. We have prepared, and have appended to this opinion, sample interrogatories that we conclude would have appropriately addressed the issues raised at the trial of this matter.

I

New Jersey defamation law has been subject to numerous modifications. Turf Lawnmower Repair v. Bergen Record Co., 139 N.J. 392, 408, 655 A.2d 417 (1995). "The evolution of the law of defamation reflects the tension between society's competing interests in encouraging the free flow of information about matters of public concern and in protecting an individual's reputation." Ibid. (quoting Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 135-36, 516 A.2d 220 (1986)). Principles of defamation "embody the important public policy that individuals should generally be free to enjoy their reputations unimpaired by false and defamatory attacks." Id. at 409 (quoting Costello v. Ocean County Observer, 136 N.J. 594, 606, 643 A.2d 1012 (1994)).

The status of the plaintiff as either a private individual or public figure will dictate the weight of his interest in his reputation when in tension with principles of free speech. Ibid. See also Sisler v. Gannett Co., Inc., 104 N.J. 256, 264, 516 A.2d 1083 (1986) ("the classification of an individual as a public or private figure became the critical determination in defamation actions.") (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)).

In this appeal we are concerned with private defamation. Such defamation is proved by a negligence standard. Turf Lawnmower, supra, 139 N.J. at 413; Sisler, supra, 104 N.J. at 256. Under the negligence standard,

One who publishes a false and defamatory communication concerning a private person . . . is subject to liability if, but only if, he:

(a) knows that the statement is false and that it defames the other,

(b) acts in reckless disregard of these matters, or

(c) acts negligently in failing to ascertain them.

[ Sisler v. Gannett Co., Inc., 199 N.J. Super. 307, 312-13 (App. Div. 1985), rev'd on other grounds, 104 N.J. 256, 516 A.2d 1083 (1986) (quoting Restatement (Second) of Torts § 580B (1976)).]

The negligence standard set forth in the Restatement is consonant with the New Jury Model Jury Charge on private defamation. That charge lists the specific elements of the cause of action as:

(1) The statement must be a defamatory statement of fact.

(2) The plaintiff must prove that the defamatory statement ...


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