# Turf Lawnmower Repair, Inc. v. Bergen Record Corp. > Supreme Court of New Jersey · March 15, 1995 · 139 N.J. 392 URL: https://www.frixlaw.com/law-library/cases/9644590 ## Case - **Full name:** Turf Lawnmower Repair, Inc., a New Jersey Corporation and John L. Gloria, Plaintiffs-Appellants, v. Bergen Record Corporation, Bruce Locklin, Mary Anne De Marco, David Hall, and Byron Campbell, Defendants-Respondents, and Edward Mitchell, D/B/A Eddie’s Power Equipment, Mark Winners, Robert Vroeginday, Douglas Livingston, John Doe and Richard Roe, Inc., Defendants - **Court:** Supreme Court of New Jersey - **Decided:** March 15, 1995 - **Citations:** 139 N.J. 392; 655 A.2d 417; 23 Media L. Rep. (BNA) 1609; 1995 N.J. LEXIS 39 - **Precedential status:** Published - **Opinion:** Concurrence by Pollock - **Judges:** Garibaldi, Pollock - **Cited by:** 58 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644590 ## How later opinions describe it (automated extraction) - finding substantial aggravating factors where a lawnmower repair shop recommended unnecessary services such as the rebuilding of a carburetor that was in good condition and the installation of parts in a machine that were not needed - reaffirming that New Jersey law imposes actual malice standard when the subject matter of an article is a matter of public interest, but adopting a restrictive definition of matters within the public interest ## Opinion text POLLOCK, J., concurring. I agree with the majority that the Bergen Record did not publish either with knowledge that the facts in the subject articles were false or with reckless disregard for the truth or falsity of those facts. Like the majority, therefore, I would affirm the summary judgment for defendants. Unlike the majority, however, I would stop at that point. Beyond that, the majority opinion points in too many directions for me to follow it unquestioningly. The tenor of the majority opinion is that the media act in the public interest when writing about conduct that violates the Consumer Fraud Act, N.J.S.A. 56:8-1 to -60 (the Act). At the outset, however, the majority states that whether conduct constitutes consumer fraud depends not necessarily, “but generally on whether the alleged activities of the business would constitute a cause of action under the Consumer Fraud Act.” Ante at 416, 655 A.2d at 429 (emphasis added). That ambivalence engenders internal inconsistencies in the majority opinion. For example, the majority finds that the public interest does not encompass articles about overcharging, ante at 416, 655 A.2d at 429, and inferior service, ante at 417, 655 A.2d at 430. Yet, it would include “business practices that were unconscionable, deceptive, misleading, and reflecting bad faith____” *429 Ante at 417, 655 A.2d at 430. Overcharging, like inferior service, can be unconscionable, deceptive, misleading, and reflect bad faith. Fairly read, the majority opinion stands for the proposition that a violation of the Act illustrates, but does not restrict, the terms “public concern” and “public interest.” To the extent that the majority recognizes that the Act does not constitute the universe of public concern, I agree. I believe that the media perform a valuable service both when writing about matters that the Legislature finds contrary to the public interest and in bringing such matters to the attention of the Legislature and the public. Hence, I doubt that the media can discharge that function if they are confined to a legislative definition of the public interest. My concern is that after today, notwithstanding the majority’s protests to the contrary, reporting on matters in the public interest will be less “uninhibited, robust, and wide open.” Ante at 408, 655 A.2d at 425. Furthermore, I would temper the majority’s concern for the vulnerability of repair people, ante at 417, 655 A.2d at 430, with some concern for the vulnerability of consumers. For me, the analogy of repair people to the “local ‘mom and pop’ stationery store, shoemaker, tailor, cleaner, or barber” does not work. Ante at 412, 655 A.2d at 427. Anyone who needs a repair person, unlike someone buying a newspaper or leaving a suit at the dry cleaners, is generally vulnerable. The motorist whose ear breaks down on the. highway is vulnerable to the demands of the tow truck operator and the service station. The individual with a broken washing machine does not enjoy equal bargaining power with the appliance repair person. And the homeowner with a broken lawn mower is open to exploitation. Unlike the majority, I would characterize as in the public interest articles about businesses that exploit vulnerable consumers. I prefer to join those courts that find in the public interest exposure of unfair or dishonest business practices of repair shops. See Unelko Corp. v. Rooney, 912 F.2d 1049, 1056 (9th Cir.1990), *430 cert. denied, 499 U.S. 961 , 111 S.Ct. 1586 , 113 L.Ed.2d 650 (1991) (holding that comments about consumer product’s effectiveness involve matter of public concern); Diversified Management Inc. v. Denver Post, Inc., 653 P. 2d 1103, 1108 (Colo.1982) (holding that activities of real estate developer engaged in sales to public are matter of public concern). In reaching this conclusion, I recognize that most repair people are honest and competent. Some are not. Rooting out exploitive and incompetent repair shops is in the interests of both honest repair people and the public. Although mindful of the risk of biased reporting, I remain persuaded that the media serve the public interest in exposing consumer exploitation. For a decade, this Court has protected speech that “affects the health and safety of the citizenry, or involves a highly regulated industry.” Ante at 409, 655 A.2d at 426. Also entitled to protection is speech about businesses that exploit consumers, even if those businesses have not violated the Act. Finally, I would be less than faithful to our precedents if I did not express regret about the majority’s excessive reliance on federal cases and their reliance on the concept of “actual malice.” If only the Court would look to its own decisions it could solve the present problem without resort to constitutional principles. I continue to believe that we lose nothing by striking “malice” from the vocabulary of the common law of defamation. Indeed, the Restatement eschews the term altogether, speaking instead of the “abuse of privilege.” It is more direct to recognize the legal consequences of the publication of certain statements without recourse to so ambiguous a word with such a checkered past. Por example we need not resort to the term “malice” to state that no one has a license to he. Although we discard the label, we adhere to the principle that to overcome a qualified or conditional privilege, a plaintiff must establish that the publisher knew the statement to be false or acted in reckless disregard of its truth or falsity. With or without the term, the critical determination is whether, on balance, the public interest in obtaining information outweighs the individual’s right to protect his or her reputation. [Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 151 , 516 A.2d 220 (1986) (citations omitted).] I would affirm the judgment of the Appellate Division. *431 Justice O’HERN, joins this opinion. Justices POLLOCK and O’HERN concurring in result. For affirmance — Chief Justice WILENTZ, and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 6. Opposed — None. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644590. Public record. Not legal advice.