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W.J.A v. D.A

May 16, 2012

W.J.A., PLAINTIFF-RESPONDENT,
v.
D.A., DEFENDANT-APPELLANT.



Per curiam.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

W.J.A. v. D.A.

(A-77-10)

Argued November 7, 2011 -- Decided May 16, 2012

PER CURIAM

At issue in this appeal is the present-day vitality of the doctrine of presumed damages.

In 1998, Dave Adams, an adult, filed a complaint against his uncle, Wayne Anderson, alleging Anderson had sexually assaulted him at various times when Adams was a minor. Adams sought compensatory and punitive damages, interest, and costs of suit. Anderson answered, denying Adams's allegations and raising the statute of limitations as a defense. He also counterclaimed for frivolous litigation, defamation (both libel and slander), infliction of emotional distress, and violations of his "statutory and constitutional rights."

Anderson successfully moved for summary judgment based on the statute of limitations. The remaining defamation claim proceeded to trial and, in May 2002, Anderson obtained a jury award of $50,000 after the jury found that Adams's allegations of Anderson's sexual abuse constituted a false and defamatory statement to a third party. The jury found no malice and did not award punitive damages. Thereafter, Anderson was awarded $41,323.70 on his frivolous litigation claim. No appeal was ensued.

Adams unsuccessfully moved to vacate the judgment. In February 2007, while the motion to vacate was pending, Adams created a website on which he recounted the claimed sexual abuse by Anderson and included the history of and quotations from the trial, along with allegations of perjury and intimidation of a witness. Anderson's name and address were included on the site. On February 21, 2007, Adams closed the website after Anderson's attorney threatened to file a defamation suit. In March 2007, Anderson nevertheless filed the suit. Adams, who had moved to Florida, defaulted. Adams sought to vacate default, which motion was granted.

In December 2008, Anderson moved for summary judgment. In January 2009, the judge denied the motion, despite finding that Adams's statements were defamatory per se because they accused Anderson of having committed a criminal offense and of engaging in serious sexual misconduct. The judge concluded that he could not permit the jury to evaluate the claim without any evidence of cognizable damages. Anderson's attorney conceded that "[t]here will be no testimony as to actual damages made." Accordingly, the judge granted summary judgment to Adams, dismissing Anderson's complaint with prejudice.

Anderson appealed and the Appellate Division reversed. In a published opinion, the panel determined that Internet postings, if defamatory, constituted libel rather than slander, and that it is an open question whether "the doctrine of presumed damages should apply to claims made by a private-figure plaintiff when no public interest is implicated."

The Court granted Adams's petition for certification. 205 N.J. 99 (2011).

HELD: Presumed damages continue to play a role in New Jersey's defamation jurisprudence in private plaintiff cases that do not involve matters of public concern. Where a plaintiff does not proffer evidence of actual damage to reputation, the doctrine of presumed damages permits him to survive a motion for summary judgment and to obtain nominal damages, thus vindicating his good name.

1. "Damages which may be recovered in an action for defamation are: (1) compensatory or actual, which may be either (a) general or (b) special; (2) punitive or exemplary; and (3) nominal." Prosser and Keeton on Torts § 116A at 842 (5th ed. 1984). Actual damages, as the name implies, refers to the real losses flowing from the defamatory statement. Contained within the notion of actual damages is the doctrine of presumed damages -- the losses "which are normal and usual and are to be anticipated when a person's reputation is impaired." Id. §116A at 843. Presumed damages are a procedural device which permits a plaintiff to obtain a damage award without proving actual harm to his reputation. Presumed damages apply in libel cases. In contrast, slander cases generally require proof of special damage -- an economic or pecuniary loss. However, if the slander is per se, the requirement of proving special or economic damage in a slander case drops away. In that case, slander per se, like libel, permits the jury to consider presumed damages. A nominal damages award may be made in a defamation case to a plaintiff who has not proved a compensable loss. Finally, punitive or exemplary damages may be awarded in a defamation case. (pp. 9-13)

2. In New York Times v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court declared that the First Amendment to the United States Constitution prohibits a public official from recovering damages for defamation related to his official position, in the absence of actual malice on the part of the publisher of the defamatory statement. Subsequently, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court declared presumed damages to be inconsistent with First Amendment values, unless the actual malice standard of New York Times v. Sullivan is satisfied. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the Court modulated its ruling in Gertz and concluded that the First Amendment principles that informed Gertz do not restrict the right of the states to award presumed damages in cases involving private plaintiffs commenting on private matters. New Jersey, like many other states, maintains a fault standard of negligence for defamation cases involving private-figure defendants. But New Jersey expanded application of the requirement of proof of actual malice to statements regarding private citizens in matters of public concern. In Senna v. Florimont, 196 N.J. 469 (2008), the Court refined the paradigm for making such a judgment in a private defamation case. (pp. 14-19)

3. In this case, the first inquiry under Senna, supra, is whether Adams is a media or media-related defendant. He clearly is not. Also, in respect of content, it is evident that Adams's speech does not "promote self-government or advance the public's vital interests," nor does it "predominantly relate to the economic interests of the speaker." Id. at 497. The speech accuses Anderson of engaging in serious criminal conduct, thus qualifying for per se treatment. An analysis of the context of the speech requires examination of the speaker's status, ability to exercise due care, and targeted audience. That analysis likewise suggests that there is no matter of public concern here. It follows that the malice standard of New York Times v. Sullivan has no currency here and is no bar to the application of presumed damages. (pp. 19-21)

4. The main criticisms of presumed damages are based on two notions: (1) that the emphasis of modern tort law is injury and that where there is no injury, tort law should not provide a remedy; and (2) that there is no uniform way for a jury to value presumed damages. The Court disagrees with the first criticism. It is clear that reparation is not the only focus of this state's tort system. Deterrence and vindication are important parts of the analysis, and defamation is, without dispute, a "dignitary tort." Retention of presumed damages in a private-party/private-concern defamation cause of action exemplifies the common law's respect for the private individual's good name. Private persons face the real risk of harm through the modern ease of defamatory publications through the Internet. Permitting reputational damages to be presumed in a defamation action arising in that setting serves a legitimate interest, one that ought not be jettisoned from this state's common law. That said, the Court acknowledges that the critics' second point -- unguided jury evaluation of presumed damages -- is fair. But the doctrine of presumed damages continues to have vitality by permitting a plaintiff to survive summary judgment and to obtain nominal damages at trial. To receive a compensatory award for reputational loss, however, a plaintiff must prove actual harm to his reputation through the production of evidence. In this case, Anderson proffered no such evidence, and therefore only nominal vindicatory damages appear possible for that claim. However, in proper circumstances, nominal damages can be the foundation on which a punitive damages award may be based. (pp. 21-27)

The judgment of the Appellate Division, reversing the trial court's dismissal of the action, is AFFIRMED. The matter is REMANDED for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, HOENS, PATTERSON, and JUDGE WEFING (temporarily assigned) join in this opinion.

Argued November 7, 2011

On certification to the Superior Court, Appellate Division, whose opinion is reported at 416 N.J. Super. 380 (2010).

At issue on this appeal is the present-day vitality of the doctrine of presumed damages. We hold that presumed damages continue to play a role in our defamation jurisprudence in private plaintiff cases that do not involve matters of public concern. Where a plaintiff does not proffer evidence of actual damage to reputation, the doctrine of presumed damages permits him to survive a motion for summary judgment and to obtain nominal damages, thus vindicating his good name. In proper circumstances, nominal damages may serve as the foundation for punitive damages. Compensatory damages, however, will continue to require proof of actual damage to reputation.

I.

In 1998, Dave Adams,*fn1 an adult, filed a complaint against his uncle, Wayne Anderson, alleging Anderson had sexually assaulted him at various times when Adams was a minor. Adams sought compensatory and punitive damages, interest, and costs of suit. Anderson answered, denying Adams's allegations and raising the statute of limitations as a defense. He also counterclaimed for frivolous litigation, defamation (both libel and slander), infliction of emotional distress, and violations of his "statutory and constitutional rights."

In August 2000, the trial judge held a Lopez*fn2 hearing to determine whether to grant Anderson's motion for summary judgment based on the statute of limitations. The upshot to the Lopez hearing was that the court dismissed Adams's complaint because it was filed "approximately nine years after the normal statute of limitations would have run" without sufficient justification. We note that in the course of its Lopez analysis, and for that purpose only, the court credited Adams's claims that Anderson had sexually abused him. That said, the remaining defamation claim proceeded to trial and, in May 2002, Anderson obtained a jury award of $50,000, plus interest, after the jury found that Adams's allegations of Anderson's sexual abuse constituted a false and defamatory statement to a third party. The jury found no malice and did not award punitive damages. Thereafter, Anderson was also awarded $41,323.70 on his frivolous litigation claim. No appeal ensued.

In 2003, Adams filed for bankruptcy in an attempt to discharge the judgment against him. In 2006, the bankruptcy court determined the judgment was non-dischargeable. In December 2006, Anderson obtained a contempt order against Adams for failure to comply with post-judgment discovery requests.

Adams moved to vacate the judgment against him pursuant to Rule 4:50-1. Ultimately, the motion was denied. That said, in February 2007, while the motion to vacate was pending, Adams created a website on which he recounted the claimed sexual abuse by Anderson and included the history of and quotations from the trial, along with allegations of perjury and intimidation of a witness.

Through the site, Adams sought help from anyone who "had similar experiences with [Anderson]" and encouraged visitors to "express [their] feelings on this matter to The F.B.I., The Governor of New Jersey, or The Attorney General of New Jersey." To explain his motivation for creating the website, Adams indicated he was "outraged by the justice [he] believed [he] did not get through [the trial] and [he] was desperate for any help [he] could get from anyone." The homepage of the website indicated that Adams's "[m]ission is to tell all 298,444,125 US Citizens about this!" Anderson's name and address were included on the site.

During February 2007, Adams moved to Florida. Before moving, he wrote to Anderson's attorney, who was attempting to enforce the outstanding judgment, and stated that if Anderson continued to harass him and to attempt to collect the "fraudulently obtained" judgment, he would sue Anderson and his attorney. In bold text at the bottom of the letter was Adams's website address. Adams wrote another letter two days later, complaining he had not received a response, and said "the FBI . . . has compelling evidence and witnesses to substantiate everything I say on my website, www.justiceinnewjersey.com[.] I would hope that you, your client and your law firm do not try to execute the judgment and sheriff sale which you now know was fraudulently obtained."

Anderson's attorney asked Adams's attorney to shut down the site because it contained "per se defamatory statements" along with the same allegations made in the earlier lawsuit. He also threatened to file a defamation suit if Adams did not close the website. Adams received notification of the letter on February 16 and closed the website on February 21. In March 2007, Anderson filed a new complaint alleging that Adams's website contained defamatory statements. Adams failed to ...


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