On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-6692-95.
Before Judges Keefe and Eichen.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2001
No other parties participated in this appeal.
This is an action brought under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Tort Claims Act). Defendant Joseph Parlavecchio appeals a judgment in favor of plaintiff Cooper Pitts following a jury verdict that awarded plaintiff $10,000 in punitive damages on his defamation cause of action.*fn1 We reverse.
The action stems from an altercation between plaintiff, the head custodian at the Dayton Street Grammar School in Newark, and defendant, the principal of the school. The incident culminated in defendant's filing of a criminal complaint against plaintiff alleging criminal trespass based on plaintiff's alleged refusal to leave the school building. At trial, plaintiff contended that "the filing of a criminal complaint [is] ... defamation per se" and that defendant acted with "malice" in filing the complaint. On appeal, he argues that the allegation of criminal trespass set forth in the complaint is a defamatory statement and constitutes slander per se.
These are the material facts. On June 23, 1993, defendant summoned plaintiff to his office for a meeting to address the recurring problem of access to school supplies. On days when plaintiff was absent, he often failed to leave the keys to supply rooms in a designated "key closet," thereby preventing defendant, or a replacement custodian, from accessing the supply areas. Two assistant principals were present during the meeting. Defendant suggested to plaintiff that plaintiff would be required to store his keys in the principal's office.
Plaintiff and defendant presented two disparate versions of what transpired after defendant explained his dissatisfaction with the situation. Defendant and an assistant principal testified that plaintiff refused the principal's suggestion and became "defiant," "loud," and "overly aggressive," refusing to surrender his keys, and stating that he "didn't have to answer to anybody." They claimed plaintiff was so loud he could be heard in the main office and in the hallways. Defendant testified that plaintiff "started to rant and rave and scream and yell," stating that he did not have to listen to defendant. Defendant described plaintiff as "very agitated," "extremely hostile," and "quite aggressive." According to defendant, after he informed plaintiff that he would not tolerate his behavior, plaintiff "started throwing profanities at me." Defendant claims he then ordered plaintiff to surrender his keys, leave his office, and report to Custodial Services, which was located off-premises, but that plaintiff refused. Plaintiff then left defendant's office "ranting and raving," and returned to his office in the school's basement. Believing plaintiff had refused to leave the building and that he was potentially violent, defendant summoned the police, who upon arrival, arrested and handcuffed plaintiff, leading him out the front of the building while students and teachers watched. Thereafter, at police insistence, defendant signed a criminal complaint against plaintiff charging him with criminal trespass.
Plaintiff denied that he refused to surrender the keys to defendant, denied defendant's description of his conduct as hostile, and denied that he was ever ordered to leave the building. He also presented witnesses who testified to his mild demeanor and disposition. He further testified that he felt humiliated by the treatment accorded him by defendant and had to seek medical attention because he was so upset. Accordingly, he filed a counter-complaint in the municipal court against defendant alleging harassment. Both complaints were later withdrawn.
Subsequently, plaintiff filed a complaint in the Law Division in which he named the Newark Board of Education (the Board) and Parlavecchio as defendants. The complaint alleged malicious prosecution (count one), defamation (count two), and intentional infliction of emotional distress (count three). Defendants filed an answer denying the allegations and asserting a variety of defenses including the immunities under sections N.J.S.A. 59:3-2a and b and 59:3-8 of the Tort Claims Act. After the Board was dismissed from the action on its motion for summary judgment, a trial was commenced before a jury. At the close of plaintiff's proofs, defendant moved for an involuntary dismissal on the ground that there was insufficient proof to support any of plaintiff's claims. The court dismissed only count three,*fn2 and defendant proceeded to present his evidence on the remaining counts. The jury returned a no cause verdict on count one, but found defendant liable on the defamation count, awarding plaintiff punitive damages of $10,000, but no compensatory damages.*fn3 On appeal, defendant argues that the judge erred (1) in submitting the defamation count to the jury because no defamatory statement was made by defendant; (2) in failing to charge the jury on the immunities available to public employees under the Tort Claims Act, N.J.S.A. 59:3-2a and b and 59:3-8; and (3) in submitting the malicious prosecution claim to the jury.
We address first defendant's argument that the defamation claim should not have been submitted to the jury because plaintiff did not allege a defamatory statement by defendant. Plaintiff's defamation claim was based solely on defendant's filing of the criminal complaint which he contends falsely accused him of criminal trespass. Defendant counters that irrespective of the truth or falsity of the allegations in the complaint, such a complaint does not constitute a defamatory statement because the complaint is absolutely privileged.
Criminal complaints are absolutely privileged. Piper v. Scher, 221 N.J. Super. 54, 60 (App. Div. 1987) (observing that defendant was entitled to dismissal of a defamation claim because the plaintiff based it "solely upon the criminal complaints filed against her which were absolutely privileged") (citing Lane v. Brown, 199 N.J. Super. 420, 426 (App. Div. 1985)); see also Rainiers Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 558 (1955); Restatement (Second) of Torts § 587 (1977). Such complaints are privileged in order to protect the public interest in freedom of access to the courts. Id. at § 587 comment a; see also Piper, supra, 221 N.J. Super. at 60.
"One who publishes a slander that [falsely] imputes to another conduct constituting a criminal offense" commits slander per se. Restatement (Second) of Torts § 571 (1977). However, the filing of a criminal complaint containing the same false imputation exonerates the publisher from liability for defamation because of the absolute privilege. It is not that the statement is not defamatory, but that its publication is privileged. Of course, the party injured by the statement may still assert a claim for malicious prosecution based on the complaint. See id. at § 571 comment a. Plaintiff's reliance on Arturi v. Tiebie, 73 N.J. Super. 217 (App. ...