Blackstone v. Cashman

Cowin, J.

(dissenting, with whom Greaney and Spina, JJ., *272 join). In United Truck Leasing Corp. v. Geltman, 406 Mass. 811 (1990) (Geltman), we stated:

“[Mjalice, in the sense of ill will, has not been a true element of the torts of intentional interference either with a contract or with a prospective contractual relation. Some of our cases have used the word but, in the same breath, have eliminated any requirement of independent proof of malice.”

Id. at 814 , citing Pino v. Trans-Atl. Marine, Inc., 358 Mass. 498, 504 (1970), and Restatement of Torts § 766 comment m, at 62 (1939). See Restatement (Second) of Torts § 766 comment r, at 16 (1979) (“111 will on the part of the actor toward the person harmed is not an essential condition of liability .... He may be liable even when he acts with no desire to harm the other”). We went on to “abandon the word malicious in the description of any element of these torts” and, following the Restatement (Second) of Torts, to “adopt the word ‘improperly’ in place of the word ‘maliciously.’ ” United Truck Leasing Corp. v. Geltman, supra at 815-816 . We recognized that “improper” can refer to either improper motive or improper means, id. at 816-817 & n.10, and, as the court acknowledges, that is how we have consistently stated this element of the tort. Ante at 260. See Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001); Harrison v. NetCentric Corp., 433 Mass. 465, 476 (2001); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 122 (2000); G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991). Nowhere in Geltman did we say that a different formulation of this element, still employing the term “malice,” would apply to some defendants but not others.

Despite Geltman 1 s explicit abandonment of the term “malice,” several subsequent tortious interference cases, with little or no citation to Geltman , required plaintiffs to prove “actual malice.” 1 See, e.g., Weber v. Community Teamwork, Inc., supra at 781; Shea v. Emmanuel College, 425 Mass. 761, 764 (1997); *273 King v. Driscoll, 418 Mass. 576, 587 (1994); Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993). However, the post -Geltman cases on which the court relies, rather than creating an ambivalent tort with two confusingly different standards, simply used “actual malice” as a synonym for Geltman’s “improper in motive or means” requirement.* 2 For instance, in King v. Driscoll, supra, Chief Justice Liacos’s opinion cites to these cases and Geltman interchangeably, shifting seamlessly between the language and principles of both:

“One of the elements of intentional interference with contractual relations is improper motive or means on the part of the defendant. Wright [v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992)]. We have said that the improper motive or malevolence required is ‘actual malice,’ Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993), citing Gram [v. Liberty Mut. Ins. Co., 384 Mass. 659, 663 (1981), S.C., 391 Mass. 333 (1984)], ‘a spiteful, malignant purpose, unrelated to the legitimate corporate interest.’ Wright, supra, quoting Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 433 (1987). The motivation of personal gain, including financial gain, however, generally is not enough to satisfy the improper interference requirement. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 817 (1990). . . . Here, the judge identified only the motives of personal and financial gain. We perceive no reason why our conclusion in United Truck Leasing Corp., supra, should not be applied to this case.”

King v. Driscoll, supra at 587 .

*274 Furthermore, nothing in the cases cited by the court turned on a distinction between “actual malice” and “improper motive or means” — the results would have been identical under either formulation. The plaintiffs in these cases did not establish anything amounting to improper motive or means under Geltman . See Weber v. Community Teamwork, Inc., supra at 782 (only evidence considered was that defendant fired plaintiff in rude manner and replaced her with someone arguably less qualified); Shea v. Emmanuel College, supra at 764 (plaintiff’s employment terminated due to her own performance problems); King v. Driscoll, supra at 587 (defendants fired plaintiff for financial gain, which was held insufficient in Geltman); Boothby v. Texon, Inc., supra at 487 (defendant “had poor ‘people skills’ and had engendered low morale”); Wright v. Shriners Hosp. for Crippled Children, supra at 476 (assuming that defendant fired plaintiff for criticizing employer). Thus, a double standard for tortious interference claims is not required to explain the results in our prior cases.

We recognized the confusion created by these cases and attempted to alleviate it, albeit unsuccessfully, in Harrison v. NetCentric Corp., supra, a case where, as here, the defendant was a “corporate official” 3 accused of interfering in the plaintiff’s employment. In that case, we reaffirmed Geltman’s characterization of the inquiry into the nature of the defendant’s actions as whether such actions are “improper in motive or means,” regardless of whether the defendant is a corporate official: *275 Harrison v. NetCentric Corp., supra at 479 n.16. Thus, we disavowed any notion of a substantively higher “actual malice” standard applicable only to corporate officials.

*274 “In an effort to clarify the law in this area, we note that in United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 815-817 (1990), we stated that we were ‘abandonfing] the word malicious in the description’ of the elements of a tortious interference claim, but we continued to define the improper interference required before a corporate officer could be hable in terms of ‘actual malice.’ . . . There is no practical difference, however, between ‘actual malice’ and improper motives and means for purposes of this tort” (emphasis added). (Citations omitted.)

*275 The court now reintroduces the confusing term “actual malice” into the equation, notwithstanding our previous disavowal of it. In doing so, the court suggests, erroneously, that there is a heavier burden for plaintiffs to meet if they assert tortious interference against corporate officials. In effect, the court posits a separate tort of “malicious interference” that is more difficult to prove and is applicable only to certain defendants. According to the court, corporate officials require this additional protection because “their freedom of action directed toward corporate purposes should not be curtailed by fear of personal liability.” Ante at 261, quoting Gram v. Liberty Mut. Ins. Co., supra at 663-664. This argument, however, proves too much. It would require giving corporate officials greater license to commit torts in circumstances far beyond this case, and creates the disquieting inference that such officials, simply by virtue of their position, are entitled to a level of protection from tort liability that other defendants are not.

Another flaw in the “actual malice” standard is its myopic focus on motive to the exclusion of means, despite the clearly disjunctive nature of the “improper in motive or means” element of the tort. 4 See Draghetti v. Chmielewski, 416 Mass. 808 , 816 n.11 (1994) (“Draghetti only need offer evidence of either improper means or motive. [He] did not have to prove both” [emphasis in original]); Geltman, supra at 816-817 & n.10 (plaintiff may establish liability by showing either improper motive or improper means); Restatement (Second) of Torts § 767 comments c & d, at 29-33 (1979) (both motive and means considered in determining whether interference is improper). The only significant difference between the two standards is that the court’s insulates from liability those corporate officials who, without a “spiteful, malignant purpose,” nonetheless interfere in employment contracts through, for instance, mis *276 representations or threats. See Restatement (Second) of Torts § 767, comment c at 30-31 (citing examples of improper means). In other words, no matter how egregious the means employed, the court’s rule does not impose liability unless the plaintiff can also prove a “spiteful” or “malignant” state of mind. Such a rule leads to a particularly perverse result in this case, where the defendant was found to have interfered with the plaintiff’s employment through threats to shoot him or attack him with a baseball bat. Ante at 257. The jury were unquestionably entitled to find this an “improper means”; yet the court remands the case because the jury did not necessarily find, in addition, that the defendant made the threats of physical harm with a “spiteful, malignant purpose.”

While the court insists that corporate officials will not be able to do their jobs without the security of an “actual malice” standard for tortious interference, at no point does the court state what purpose an “actual malice” standard serves that the “improper in motive or means” standard of Geltman does not. The Geltman standard does not impose liability on a corporate official who, in good faith and within the scope of his authority, does his job with the motive of fulfilling his obligations to his employer, even if his judgment is wrong and a third party suffers as a result. On the other hand, if that official acts purposefully not for the benefit of the business enterprise, but rather to injure the third party because of a bias or a personal vendetta, he is exposed to a claim of tortious interference, as he should be. Each of these paradigms is intelligently addressed by asking whether the official acted with improper motive or by improper means. An inquiry into whether he acted with “actual malice” is worse than unnecessary; it creates a fictitious element that is confusing and, because it has the potential to insulate business people from claims for which they should be liable, extremely poor public policy.

Indeed, it is interesting to note that just recently, we unanimously rejected the use of “malice” as an element of another tort, malicious prosecution, and instead “adopt[ed] the ‘improper purpose’ formulation in § 676 of the Restatement (Second) of Torts . . . .” Chervin v. The Travelers Ins. Co., 448 Mass. 95, 110 (2006). There, as in Geltman , we recognized *277 that the word “malice” is not helpful in distinguishing between tortious and lawful conduct, and that the simpler and more logical inquiry is, instead, whether the conduct is improper.

Because I believe that the trial judge’s instructions adequately explained the law as defined in Geltman and in the Restatement, and because a return to the concept and term “actual malice” is, in my view, an unwelcome and confusing step backward, I respectfully dissent.

It is not a coincidence that those cases involved corporate official defendants and arose in the employment context. They drew on an earlier body of case law, which the court recognizes as now defunct, ante at 261 n.10, in which *273 corporate official defendants could raise a “privilege” to interfere with a plaintiff’s contractual relations by way of affirmative defense, which the plaintiff could then rebut by a showing of “express malice.” See, e.g., Owen v. Williams, 322 Mass. 356, 360-361 (1948). That the post-Geltman opinions into which the term “actual malice” crept are an artifact of this abandoned approach is evident from references to actual malice as negating a corporate official defendant’s “privilege.” See Weber v. Community Teamwork, Inc., 434 Mass. 761, 783 (2001); Boothby v. Texon, 414 Mass. 468, 487 (1993).

While certain post -Geltman cases may have, understandably, employed terms such as “actual malice” and “privilege” that were vestiges of factually similar pre-Geltman cases, they did not overrule Geltman by embracing a substantively different standard.

There is nothing in the court’s use of the term “corporate official” that necessarily limits it to officials of entities that use the corporate form, rather than officials of any enterprise, however organized.

I find puzzling the court’s statement that, in cases involving corporate officials, “ ‘[¡Improper motive’ and ‘improper means’ become subsumed into the more stringent analysis implied by ‘actual malice.’ ” Ante at 269. It would seem that an improper means either is sufficient for liability or it is not.