December 6, 2007
ROBERTA STONEHILL, PLAINTIFF-APPELLANT,
BRIAN NESTA, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, MICHAEL MASTRONARDY, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, AND DOVER TOWNSHIP POLICE DEPARTMENT, N/K/A TOMS RIVER TOWNSHIP POLICE DEPARTMENT,*FN1 DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. DC-9066-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 13, 2007
Before Judges Lintner and Graves.
Plaintiff Roberta Stonehill appeals from an order entered on November 2, 2006, dismissing her Special Civil Part complaint, which sought damages for defamation, for failure to state a claim pursuant to R. 4:6-2(e). The trial court found that an offensive statement by defendant, Sergeant Brian Nesta, a member of the Dover Township Police Department (DTPD), was not actionable because it was "an expression of pure opinion." We agree and affirm.
On appeal, plaintiff presents the following arguments:
LIBEL, SLANDER AND SLANDER PER SE ARE ACTIONABLE, ARE NOT PROTECTED SPEECH UNDER THE CONSTITUTION, CANNOT BE EXPLAINED AWAY AS "OPINION" TO SHIELD AN OFFENDER, WHERE THE FALSE STATEMENTS ARE COMMUNICATED TO THIRD PERSONS TO THE DETRIMENT OF THE PLAINTIFF'S GOOD NAME AND REPUTATION, WHETHER OR NOT THERE ARE PECUNIARY DAMAGES.
PLAINTIFF PROVIDED LEGALLY SUFFICIENT, ADEQUATE, PROPER NOTICE UNDER THE TORT CLAIMS ACT AS TO ALL DEFENDANTS.
ONCE UNDERTAKEN, A PUBLIC EMPLOYEE HAS TO COMPLETE HIS MINISTERIAL DUTIES AND IF HE FAILS TO EXERCISE ORDINARY PRUDENCE IN THE EXERCISE AND COMPLETION THEREOF, HE COULD BE HELD LIABLE, AS IN THE CASE OF A PRIVATE PARTY AND THERE IS NO REQUIREMENT FOR AN ADDITIONAL TORT CLAIM NOTICE.
THE TRIAL COURT COMMITTED PLAIN ERROR, PRODUCING AN UNJUST RESULT, SUBSTANTIALLY PREJUDICING THE PLAINTIFF, WHICH, IN THE INTEREST OF JUSTICE, THE REVIEWING COURT IS EMPOWERED TO RECTIFY.
A. PLAINTIFF'S CAUSE OF ACTION FOR SLANDER AND SLANDER PER SE IS VALID AND VIABLE AND OUGHT NOT HAVE BEEN DISMISSED.
B. DEFENDANTS' MOTION TO DISMISS IN LIEU OF AN ANSWER IS FATALLY FLAWED AND SHOULD HAVE BEEN DISMISSED, THUS RENDERING DEFENDANTS IN DEFAULT ENTITLING PLAINTIFF TO A DEFAULT JUDGMENT.
C. THE TRIAL COURT MISAPPLIED N.J.S.A. 59:1-1, et seq., CLAIMS AGAINST PUBLIC ENTITIES, WITH REGARD TO NOTICE TO THE ENTITY, MINISTERIAL DUTIES, VICARIOUS LIABILITY AND RESPONDEAT SUPERIOR.
D. THE COURT MISUNDERSTOOD PLAINTIFF'S CROSS MOTION AND FAILED TO ADDRESS THE ISSUES RAISED WITH PARTICULARITY.
E. THE FAILURE OF THE TRIAL COURT TO APPLY THE LAW TO THE FACTS OR TO CITE ANY AUTHORITY WHEN RENDERING ITS DECISION IS CONTRARY TO RULE 1:7-4, PREJUDICED PLAINTIFF AND PRODUCED AN UNJUST RESULT.
Based on our review of the record and the applicable law, we reject these contentions and affirm substantially for the reasons stated by the trial court following oral argument on November 2, 2006.
The facts are not in dispute. On August 18, 2005, plaintiff, a lawyer licensed in New Jersey and Colorado, went to the DTPD to express, for the second time, her "concerns about the apparent inability of [an] elderly man to drive safely." While in the lobby of the Police Department, plaintiff observed Sergeant Brian Nesta speaking with two women who were seeking information about filing for a domestic violence restraining order. Plaintiff believed Sergeant Nesta's statements to the women were "correct, but grossly inadequate," therefore she approached them and "attempted to provide . . . better, more complete, information for filing a Domestic Violence complaint." Plaintiff alleges that upon seeing the women speaking with plaintiff, Sergeant Nesta stated "in a loud clear voice, for the benefit of everyone present in the lobby to hear": "Don't talk to her. I'm not too sure about her mental stability."
At the time Sergeant Nesta made the statement, plaintiff claims there were "six or seven other people present [in the lobby]," and that they "moved away from [her], as though she must be avoided." Plaintiff contends the statement was an "insulting, defamatory, slanderous remark," which "translate[s] very easily into, 'She's nuts.'" Plaintiff alleges injury to her "personal and/or professional reputation," as well as "foreseeable injury" to her reputation since she is frequently "in the public eye in her work as an attorney, an educator of many years, a mediator at the Court and through public speaking engagements."
On August 23, 2005, plaintiff sent a letter to Chief of Police Michael Mastronardy, in which she recounted the events of August 18 and advised him, "[i]n accordance with New Jersey Statutes, Title 59, for the reasons stated above, and others, you are advised that this is a Notice of Tort Claim. At present, the amount of damages is not determined." The letter was received by the DTPD on August 29, 2005, and Chief Mastronardy allegedly telephoned plaintiff on October 12, 2005, telling her he would "look into the matter and get back to [her]." After not hearing from DTPD personnel, plaintiff left a message for Chief Mastronardy at the Police Department on or about June 30, 2006. On or about July 11, 2006, Chief Mastronardy returned plaintiff's call and claimed to have lost the August 29, 2005, letter. A duplicate copy was delivered by plaintiff to Chief Mastronardy the same day, however, plaintiff alleges she received no further communication from Chief Mastronardy or the DTPD thereafter.
On August 14, 2006, plaintiff filed a defamation complaint in Superior Court, Law Division, Special Civil Part, Ocean County against defendants Sergeant Nesta, in his official capacity and individually; Chief Mastronardy, in his official capacity and individually; and the DTPD. Plaintiff also asserted a cause of action against Chief Mastronardy for "failure to take action" by allegedly not investigating Sergeant Nesta's statement in response to plaintiff's letter of complaint. On September 29, 2006, defendants filed a Motion to Dismiss in Lieu of an Answer for Failure to State a Claim. Plaintiff opposed this motion, and she filed a cross-motion requesting entry of a judgment "for all damages sought, plus all costs incurred." Defendants opposed plaintiff's cross-motion and oral argument took place on November 2, 2006.
The court's findings and conclusions regarding Nesta's statement included the following:
It is clearly an offensive statement. It was uncalled for an[d] inappropriate under all circumstances. But that is not the test before the [c]court. Regardless of it being offensive, the question really is whether or not as a matter of law that statement is defamatory and may be construed as defamatory. The question really before the [c]court is, is that a statement of opinion or one of fact.
Although . . . I am well aware that the plaintiff was deeply offended by what was said about her, [with] no basis for the officer to make such a comment, this statement is nonetheless one of opinion. I am also satisfied as offensive as it may be, it is also not defamatory per se under the circumstances.
Under both of those findings, one of opinion, one that it does not give rise to defamation, and that since it's really an expression of pure opinion, it is not actionable, and as a matter of law, the Complaint is dismissed.
We are in substantial agreement with the trial court's analysis. "[T]o establish a prima facie case of defamation . . . a plaintiff must show that defendant communicated to a third person a false statement about plaintiff that tended to harm plaintiff's reputation in the eyes of the community or to cause others to avoid plaintiff." McLaughlin v. Rosanio, Bailets & Talamo, Inc., 331 N.J. Super. 303, 312 (App. Div.), certif. denied, 166 N.J. 606 (2000). The Model Jury Charge for private defamation describes "five elements in addition to damages which plaintiff must prove":
(1) a defamatory statement of fact; (2) concerning the plaintiff; (3) which was false; (4) which was communicated to a person or persons other than the plaintiff; and (5) with actual knowledge by the defendant that the statement was false, or with reckless disregard by the defendant of the statement's truth or falsity, or with negligence by the defendant in failing to determine the falsity of the statement. [Model Jury Charge (Civil), 3.11B, "Private Defamation" (2002).]
To determine "whether a statement is defamatory a court must examine three factors: content, verifiability, and context. First, a statement's content must be judged not by its literal meaning but by its objective meaning to a reasonable person of ordinary intelligence." McLaughlin, supra, 331 N.J. Super. at 312 (citation omitted). "Second, only verifiable statements can be defamatory. Since opinions and name-calling cannot be proved true or false, they are not actionable." Ibid. Accordingly, a plaintiff seeking recovery must prove a defamatory false statement of fact, with truth of the statement being a complete defense. Ibid. Third, whether a statement has a defamatory meaning must be evaluated in the context of the situation. For example, "accusations during a heated political campaign are likely to carry less credibility for the average person than they would in a less emotional context." Id. at 312-13.
Our review of an order of dismissal for failure to state a cause of action pursuant to R. 4:6-2(e) "is governed by the same standard as that applied by the trial court." Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). Under that standard "our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). We must search "'the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J.Super. 244, 252 (App. Div. 1957)). At this stage of the proceeding, a plaintiff is "entitled to every reasonable inference of fact." Ibid. However, after such inferences are afforded, dismissal is appropriate if "plaintiff's complaint . . . has failed to articulate a legal basis entitling plaintiff to relief." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005).
Applying these standards to the facts before us, we are in accord with the trial court's determination that even though Nesta's statement was offensive and inappropriate, it was, nevertheless, a non-defamatory expression of opinion. The "fact" versus "opinion" nature of a statement has been explained by the New Jersey Supreme Court as follows:
Opinion statements reflect a state of mind. Although they do not enjoy a wholesale defamation exception, opinion statements do not trigger liability unless they imply false underlying objective facts. Loose, figurative or hyperbolic language is not likely to imply specific facts, and thus is not likely to be deemed actionable. The higher the fact content of a statement, the more likely that the statement will be actionable. A pure opinion is one that is based on stated facts or facts that are known to the parties or assumed by them to exist; a mixed opinion is one not based on facts that are stated or assumed by the parties to exist. If a statement could be construed as either fact or opinion, a defendant should not be held liable. An interpretation favoring a finding of fact would tend to impose a chilling effect on speech. [Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167-68 (1999) (emphasis added) (citations and internal quotations omitted).]
When we examine the content, verifiability, and context of Sergeant Nesta's statement, it is apparent that the statement---- "I have concerns about her mental stability"----was phrased as a personal opinion. Moreover, it is clear Nesta did not make any specific assertions of fact regarding plaintiff's mental status or abilities. For example, plaintiff does not claim that Nesta told anyone she was mentally unstable. As the trial court surmised, Sergeant Nesta "probably didn't like the idea" that plaintiff was "going after" someone who went through a stop sign. Similarly, Sergeant Nesta may have been unhappy with plaintiff's attempt to provide "better, more complete information" to the very same individuals that he had just spoken to regarding a domestic violence matter.
In any event, we are satisfied that the court correctly concluded that Nesta's offensive comment was an opinionative insult rather than a statement of fact. Consequently, we affirm summary judgment in favor of defendants substantially for the reasons stated by Judge Buczynski in his oral decision rendered on November 2, 2006.