On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-1135-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Carchman and Nugent.
This defamation action involves television and internet news reports about an incident that occurred between plaintiff Philip Rossi, an assistant little league coach, and a twelve-year-old player on an opposing team. The trial court granted summary judgment to defendants after concluding that the incident involved a matter of public concern, that defendant CBS 3's news reports were substantially true, and that plaintiffs did not produce evidence that defendants acted with actual malice when they made the broadcasts and internet postings. Plaintiffs Philip Rossi and Annette Rossi appeal from the summary judgment dismissal of their claims. We affirm.
The following facts are derived from the evidence presented in the summary judgment motion. Plaintiffs Philip and Annette Rossi are the parents of a son who in 2006 played baseball on a Deptford Township Little League team, the White Sox, in the division for youths ranging in age from ten to twelve years old. Plaintiff*fn1 was an assistant coach of his son's team. On April 24, 2006, in a contest between undefeated teams in which plaintiff's son was the starting pitcher for the White Sox, the Red Sox defeated the White Sox. The incident occurred when the game ended and the teams lined up to shake hands.
According to plaintiff, he was standing behind the pitcher's mound when he saw the pitcher for the Red Sox coming across the field with his "fist cocked," as if to hit someone. His son had finished shaking hands, and was walking back toward the dugout. Plaintiff saw the Red Sox player dodge the other kids and walk directly toward his son. Perceiving that the Red Sox player was going to punch his son, plaintiff yelled two or three times, "Stop right there, don't go any further." The player stopped for a second and then continued toward plaintiff's son, prompting plaintiff to yell at him, "[G]o back to [your] f'ing dugout[.]"*fn2 When plaintiff cursed, five or six men told him he could not use such language, and "usher[ed]" him back to the dugout. Plaintiff was fifteen or twenty feet away from the opposing player when he yelled. He denied moving toward the player at any time during the incident. Contrary to plaintiff's version of the events, several witnesses certified that while he was hollering and cursing, he rushed toward the opposing pitcher and had to be restrained.*fn3 The next day, April 25, 2006, plaintiff was suspended from coaching and restricted from entering Deptford's Little League fields for two weeks.
The incident occurred on a Monday; on Wednesday, April 26, 2006, an anonymous caller reported the incident to CBS 3. The "tip" was entered into an assignment queue, an electronic repository of information concerning a particular news item. The assignment queue, which was created at 11:30 a.m. and modified at 5:12 p.m., provided:
AS PER TIP CALLER . . . ON MONDAY, THE DEPTFORD LITTLE LEAGUE'S RED SOX AND WHITE SOX MET TO PLAY A FRIENDLY GAME OF BASEBALL. AFTER THE GAME, BOTH TEAMS BEGAN SHAKING HANDS IN A GREAT SHOW OF SPORTSMANSHIP WHEN ONE OF THE WHITE SOX COACHES BEGAN ATTACKING A KID VERBALLY AND THEN BEGAN TO GO AFTER HIM PHYSICALLY. ONE OF THE RED SOX COACHES STEPPED IN TO TRY TO RESOLVE THE SITUATION, BUT GOT PRETTY BEAT UP IN THE PROCESS. ALL OF THIS WENT ON WHILE BOTH TEAMS AND COACHING STAFF LOOKED ON. SO FAR NOTHING HAS BEEN DONE TO PUNISH THIS COACH. HE WAS SEEN WATCHING OTHER GAMES YESTERDAY. THIS IS A CALL OF CONCERN FOR PARENTS BECAUSE THE TWO TEAMS MEET AGAIN, TONIGHT AT 6PM. THE LEAGUE STATED THAT THEY GAVE HIM A LETTER, BUT NOTHING WAS PUBLICLY ANNOUNCED, AND THE FACT THAT THE WHITE SOX'S MANAGER IS ON THE LEAGUE[']S BOARD MAKES THE PARENTS UNEASY WITH THE COACH STILL BEING AROUND THE CHILDREN.
The station assigned defendant Angela Russell to investigate the incident. That evening, she and a cameraman drove to the baseball field where the incident occurred, obtained permission to enter, and interviewed several spectators and a league official. Those who Russell interviewed included the mother of a Red Sox player, who had witnessed the incident. The mother told Russell that, during the incident, plaintiff was yelling and cursing at the opposing player, then started running toward the opposing player, and it looked "like [plaintiff] was going to hit him." Plaintiff had to be restrained. As a result, "[m]any more people had come down from the bleachers and were lined up against the fence, some yelling at [plaintiff] to stop." After completing the interviews at the field, Russell telephoned plaintiff's home, drove there, and interviewed plaintiff and plaintiff's son.
Following the interviews, Russell prepared a news report on the incident, which was aired during CBS 3's 11:00 p.m. news program. The following excerpt is from a transcript of the broadcast:
ALYCIA LANE: A dispute involving a coach and players in Little League causes tension in a Gloucester County community. . . . ANGELA RUSSELL: Alycia, this all happened here on Monday night. There were two teams playing each other, they were undefeated. So a lot of normal tension.
But after the game there was some type of conflict and a coach allegedly started shouting curse words at a player from the opposing team.
On this spring day in Deptford, New Jersey[,] the Little League's Red Sox and White Sox faced off again, just two days after a big blow-up on the field. [On Camera Interview]: All the dads were out there trying to figure out, you know, what was going on, trying to restrain the coaches, trying to hold back the boys. You know, it was just, it was just mayhem. It was ridiculous, really.
ANGELA RUSSELL: The Little League has suspended Coach Philip Rossi for verbally attacking a player. We spoke with Rossi and his son about what happened. [Son]: I was turning around trying to go back to my dugout and my - I saw my dad. ANGELA RUSSELL: Rossi says as the players were shaking hands at the end of the game he noticed a player from the opposing team about to hit his son.
PHILIP ROSSI: I told him to get back in the dugout, very loudly, but he kept coming. I said it two or three times. And he went and he - you know, all of a sudden there was four or five guys on top of me pushing me away.
ANGELA RUSSELL: One parent from the same team says the punishment isn't fair. [On Camera Interview]: The coach should definitely be reprimanded, but, you know, so should the player who was starting the fights. We can't go around saying that [twelve]-year-olds are allowed to act any way they want.
ANGELA RUSSELL: Rossi says he's not allowed on the grounds here for at least two weeks and his coaching future here isn't clear. The father of five says he does not regret his actions.
PHILIP ROSSI: No, I don't regret it because I stopped my son from getting hit and basically maybe getting hurt.
ANGELA RUSSELL: Now, Coach Rossi has five days to appeal the punishment. Meantime the president of the Little League, . . . told me tonight that Coach Rossi is a good guy and that people make mistakes.
When questioned about the 11:00 p.m. broadcast at his deposition, plaintiff said that it was not the basis for his lawsuit and there was ...