On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication April 28, 1997.
Before Judges Long, Skillman and Cuff. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by: Skillman
The opinion of the court was delivered by
This appeal involves the "slander per se " doctrine. At the time of the alleged slander, plaintiff Thomas J. Biondi was Chairman of the New Jersey Board of Examiners of Master Plumbers (the Board). Defendant Antoine Nassimos regularly attended the Board's public meetings, apparently acting as a liaison between the New Jersey Society of Professional Energy and Environmental Contractors (NJSPEEC) and the Board. On September 23, 1993, Nassimos attended a public meeting at which the Board announced a decision that Joseph Fichner, Jr., a licensed master plumber and member of the NJSPEEC, had committed various acts of occupational misconduct, fraud and misrepresentation. See In re Fichner, 144 N.J. 459, 462-65, 677 A.2d 201 (1996). Based on these violations, the Board ordered Fichner to pay substantial fines and to make restitution to various customers, and also imposed "an inactive five year suspension" of his license. Later in the meeting when the public was given the opportunity to speak, Nassimos charged the Board with improperly releasing information about its decision in the Fichner matter prior to taking official action. Nassimos also charged that it was improper for plaintiff, as a member of the Board, to be affiliated with the New Jersey Association of Plumbing, Heating & Cooling Contractors. According to plaintiff, Nassimos then said "words to the effect of: 'I have information that the Chairman, Mr. Biondi, has mob connections and that if I don't stop complaining against him and the Board, he will order a hit on me.'" In response, plaintiff said to Nassimos: "I think you've overstepped your bounds. I might have to consult an attorney."
On November 3, 1993, plaintiff filed this action against Nassimos and the NJSPEEC. Plaintiff's complaint alleged that Nassimos' statement that plaintiff "has mob connections" and would "order a hit" on him was "intended by Mr. Nassimos and were understood by the listeners to indicate and designate someone as a member of organized crime, as the perpetrator of uncounted serious crimes, as one who makes his living through a life of crime, as one who directs others to commit crimes, ... and as one who is involved in crimes including, but not limited to murder, extortion, gambling and bribery of public officials."
After the trial court denied defendants' motion for summary judgment, a trial was commenced before a jury. However, the trial court declared a mistrial shortly before the close of plaintiff's case. Prior to the second trial, defendants renewed their motion for summary judgment. At oral argument on the motion, plaintiff conceded that he did not have any "special damages" and was "stuck with a slander per se case." This time the court granted defendants' motion, concluding that a statement that a person has "connections with [the] mafia" does not constitute an allegation of criminal activity and therefore does not constitute slander per se. Plaintiff appeals from the summary judgment dismissing his complaint. *fn1 We affirm.
At the outset, we note that the issue presented in this appeal is not whether Nassimos' statements that plaintiff has "mob connections" and may "order a hit" upon him are defamatory but rather whether they constitute "slander per se." We have no doubt that a jury could find these statements to be defamatory, that is, as "tending 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." Ward v. Zelikovsky, 136 N.J. 516, 529, 643 A.2d 972 (1994) (quoting Restatement (Second) of Torts § 559 (1977)); see Bufalino v. Associated Press, 692 F. 2d 266, 269 (2nd Cir. 1982), cert. denied, 462 U.S. 1111, 103 S. Ct. 2463, 77 L. Ed. 2d 1340 (1983); Clemente v. Espinosa, 749 F. Supp. 672, 677 (E.D. Pa. 1990); Privitera v. Town of Phelps, 79 A.D.2d 1, 435 N.Y.S. 2d 402, 405-06 (App. Div.), appeal dismissed, 53 N.Y. 2d 796 (1981). In fact, it is possible that such statements could be found to be defamatory per se, that is, to so clearly denigrate a person's reputation that a court could decide that the statements are defamatory without submitting the issue to the jury. See Lawrence v. Bauer Publ'g & Printing Ltd., 89 N.J. 451, 458-60, 446 A.2d 469, cert. denied, 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982). *fn2
However, plaintiff cannot prevail merely by showing that Nassimos' statements were defamatory because he has not offered any evidence of the type of damages generally required to establish a cause of action for slander. To establish a slander claim under the common law, a plaintiff is required to show "special damages," which is defined as "harm of a material or pecuniary nature." Ward v. Zelikovsky, (supra) , 136 N.J. at 540. Plaintiff admittedly has no evidence that he suffered such "special damages" as a result of Nassimos' statements. Moreover, even if our Supreme Court were prepared to modify the common law rule requiring special damages to establish a cause of action for slander by allowing a plaintiff in a slander action, as in most libel actions, see Sisler v. Gannett Co., Inc., 104 N.J. 256, 281, 516 A.2d 1083 (1986), to prove any form of actual damage to reputation, either pecuniary or non-pecuniary, see David A. Anderson, Reputation, Compensation and Proof, 25 Wm. & Mary L. Rev. 747, 749 (1984); Rodney A. Smolla, Law of Defamation § 7.08 (1986), plaintiff presented no evidence that he suffered any damage to his reputation as a result of Nassimos' outburst at the Board meeting. Plaintiff testified at his deposition that when he attended a meeting of the New Jersey Association of Plumbing, Heating and Cooling Contractors, other members referred to him "as "Don Thomasso" and "Godfather," asked whether they had to "kiss [his] ring," and insisted that he sit at the head of the table. However, plaintiff did not show the kind of damage to reputation ordinarily required to establish a cause of action for defamation, because he did not present evidence that anyone had refused to associate with him or that any of his business or personal relationships had been "seriously disrupted." Sisler v. Gannett Co., Inc., (supra) , 104 N.J. at 281; see also Ward v. Zelikovsky, (supra) , 136 N.J. at 542. Therefore, his claim is maintainable only if Nassimos' statements constituted slander per se.
The slander per se doctrine is limited to defamatory statements which impute to another person (1) a criminal offense; (2) a loathsome disease; (3) conduct, characteristics or a condition that is incompatible with his business, trade or office; or (4) serious sexual misconduct. Restatement (Second) of Torts §§ 570-574 (1977); see Gnapinsky v. Goldyn, 23 N.J. 243, 250, 128 A.2d 697 (1957). If a defamatory statement constitutes slander per se, a plaintiff may establish a cause of action not only without proving "special damages," that is, damages of a pecuniary nature, but without proving any form of actual damage to reputation. Ward v. Zelikovsky, (supra) , 136 N.J. at 540-41. This is sometimes referred to as the "presumed damages" doctrine. Sisler v. Gannett Co., Inc., (supra) , 104 N.J. at 281.
The slander per se doctrine has been severely criticized by scholarly commentators, who recommend the elimination of both the "presumed damages" rule applicable to slander per se cases and the "special damages" rule applicable to all other slander cases. Anderson, (supra) , 25 Wm. & Mary L. Rev. at 749, 774-78; Smolla, (supra) , § 7.08. The commentators conclude that these archaic common law rules should be replaced by a single uniform rule that a plaintiff must prove actual damage to reputation, either pecuniary or non-pecuniary, to establish any cause of action for defamation. One commentator states:
[The] legitimate purpose [of defamation law is] compensating individuals for injury to reputation. Requiring proof of harm would reduce defamation to this purpose. The actual injury rule would bring defamation into line with the rest of tort law, which does not ...