Gooch v. Maryland Mechanical Systems, Inc.

ALPERT, Judge,

dissenting and concurring.

Although I agree with my learned colleagues that appellant has not established a genuine dispute of material fact with respect to proof of his damages, that alone cannot “carry the day.” 1 As the majority points out, “[i]f the defamatory communication is libelous per se, actual damages need not be alleged, nor proven, if there is constitutional malice.” In other words, the effect of Hearst Corp. v. Hughes, 297 Md. 112 , 466 A.2d 486 (1983), was to revive the concepts of libel per se and presumed damages at least in constitutional malice cases after their apparent demise in Metromedia, Inc. v. Hillman, 285 Md. 161 , 400 A.2d 1117 (1979). I disagree with the majority’s holding that “the defamatory communication at issue is libelous per quod, necessitating that actual damages be alleged and proved.” I believe that the subject communication is libelous per se and explain.

CONSTITUTIONAL MALICE—RECKLESS DISREGARD FOR THE TRUTH

Evidence sufficient to create a jury question raising the fault standard to constitutional malice negates the requirement that plaintiff prove actual damages where the publication is actionable per se. Hearst Corp., supra, 297 Md. at 125 , 466 A.2d 486 . Hanlon v. Davis, 76 Md.App. 339, 356 , 545 A.2d 72 (1988). Thus, if sufficient facts exist to find *398 constitutional malice where the publication 2 is libelous per se, we need not consider whether actual damages have been shown because damages to reputation are presumed.

Appellant has generated an issue of material fact to satisfy the higher level of culpability—constitutional malice. BABCO’s July report referred to the fact that its employees had to manually open the air intake damper to conduct its air flow test. Wolf concedes this in his affidavit, but explains that “after the BABCO test, the linkage connecting the damper to the motor was installed so that the damper would open automatically when the fans were turned on.” Acknowledging that appellant’s employees indicated that the low air flow results may have resulted from a “faulty intake damper,” Wolf further states that on the evening of appellant’s test the system was checked and “operating correctly.” Wolf then relies on the August BABCO report in its letter to justify his characterization of the Gooch report. Significantly, however, the test sheet for the second BABCO test, which was conducted subsequent to appellant’s test, states, “Outside air dampers does [sic] not open when fan is running. Opened manualy [sic] for testing.” This report indicates a continuing problem with the intake damper, one of the primary causes cited for the low results by appellant.

Instead of further investigating this possible problem as indicated by both BABCO tests as a cause of appellant’s low air flow results, Wolf wrote a letter to Steak & Ale maintaining that it was a “victim of false information.” No mention of BABCO’s problems appears in the letter. At worst, a trier of fact considering the information with which it could believe Wolf was armed, could find that he should not have responded with an outright defamatory dismissal of Gooch’s results. A reasonable trier of fact could find that under such circumstances, appellees acted with a reckless disregard for the truth.

*399 LIBEL PER SE—APPLICATION IN THIS CASE

In Maryland, a libel action such as this one is actionable per se where the “injurious character [of the words] is a self-evident fact of common knowledge.” 3 M & S Furniture Sales Co. v. Edward J. DeBartolo Corp., 249 Md. 540, 544 , 241 A.2d 126 (1968). To determine whether the phrase “victim of false information” is libelous per se “the words themselves [must] impute the defamatory character.” Leese v. Baltimore County, 64 Md.App. 442, 473-74 , 497 A.2d 159 , cert. denied, 305 Md. 106 , 501 A.2d 845 (1985) (quoting Metromedia, Inc., supra, 285 Md. at 172 , 400 A.2d 1117 ). Standing alone, the word “false” has two separate connotations. 4 While the word “false” could be interpreted *400 as encompassing an unintentional mistake, it could also be construed as an intentional lie. As defined by Webster’s Third New International Dictionary (1981), the word “victim” means “someone tricked, duped, or subjected to hardship ... someone badly used or taken advantage of.” Id. at 2550. When the words “victim” and “false” are used in conjunction with each other, it is plain that the phrase “victim of false information” imputes dishonesty or deceitfulness to the appellant regarding his test and subsequent report concerning Bennigan’s air flow system.

In Kilgour v. Evening Star Newspaper Co., 96 Md. 16 , 53 A. 716 (1902), the Court of Appeals stated:

“Words spoken of a person in his office, trade, profession, business or means of getting a livelihood, which tend to expose him to the hazard of losing his office, or which charge him with fraud, indirect dealings or incapacity and thereby tend to injure him in his trade, profession or business, are actionable without proof of special damage, even though such words if spoken or written of an ordinary person, might not be actionable per se.” 18 Am. & Eng. Ency. of Law, p. 942 (2nd ed.); Wilson v. Cottman, 65 Md. 197 [ 3 A. 890 ].

“The words must go so far as to impute to him some incapacity or lack of due qualification to fill the position, or some positive past misconduct which will injuriously affect him in it.” Sillars v. Collier, 151 Mass. 50 [ 23 N.E. 723 ]; Newell on Defamation, Slander and Libel, ch. 8, p. 178; Townsend, Libel and Slander, secs. 188, 189.

So this Court said in Newbold & Sons v. The J.M. Bradstreet & Son, 57 Md. 53 : “To say or publish of a merchant anything that imputes insolvency, inability to pay his debts, the want of integrity in his business, or personal incapacity or pecuniary inability to conduct it with success, is slanderous or libelous per se if without justification.”

Id. at 23-24, 53 A. 716 . Although a charge of “a single act of carelessness” does not necessarily impute “incapacity or *401 lack of due qualification,” see Foley v. Hoffman, 188 Md. 273, 284 , 52 A.2d 476 (1947), an allegation of a single act of deceit, fraud or dishonesty in one’s business or calling certainly does impute a “want of integrity in [one’s] business” sufficient to call into question one’s moral or ethical qualifications concerning his profession. Unlike a single instance of carelessness or neglect, charges of dishonesty infect one’s entire character and spread doubt in the minds of reasonable persons as to one’s fitness to continue to serve in his or her profession, trade, or business. I would hold, as a matter of law, that Wolf’s letter imputed dishonest or deceitful conduct to the appellant and was, therefore, actionable per se.

Because I would hold the statement is libelous per se and the evidence generates an issue of material fact as to whether appellees acted in reckless disregard for the truth, appellant’s failure to present evidence of actual damages is not fatal. In light of recent Supreme Court authority apparently limiting the Gertz 5 limitation of presumed and punitive damages, I think it necessary, however, to continue our discussion in this regard.

PRESUMED DAMAGES IN NEGLIGENT DEFAMATION CASES—HEARST REVISITED

Subsequent to Hearst Corp., the Supreme Court has issued a pertinent opinion regarding the recoverability of presumed damages. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 , 105 S.Ct. 2939 , 86 L.Ed.2d 593 (1985), the Supreme Court held that the Gertz rule barring the recovery of presumed or punitive damages in a case where actual malice 6 has not been proven is *402 inapplicable in cases not involving matters of public concern. Id. at 761 , 105 S.Ct. at 2946 . The holding in Dun & Bradstreet is not consistent with the Court of Appeals’ opinion in Jacron Sales Co. v. Sindorf 276 Md. 580 , 350 A.2d 688 (1976), that the Gertz constitutional damage limitation covers matters of both public and private concern.

Thus, I turn to the question of whether, absent Gertz constitutional constraints, Maryland law would prevent a negligent defamation plaintiff from recovering presumed or punitive damages in a purely private matter. With the exception of Jacron’s adoption of a fault standard of negligence in purely private actions, nothing in the Maryland decisions indicates that our courts have modified or altered Maryland defamation law outside the pressures exerted by constitutional winds.

Presumed damages are based on the presumed injury to one’s reputation from words actionable per se. See Hearst Corp., supra, 291 Md. at 125, 466 A.2d 486 . Following Dun & Bradstreet, supra, presumed damages are constitutionally permissible in purely private negligent defamation actions. Because the historical focus of presumed damages is not upon the level of the defendant’s culpability, but rather on the presumption of harm flowing from words actionable per se, they would be permitted in negligent defamation actions under the common law of defamation in Maryland. Jacron, however, explicitly precludes the recovery of such damages in all negligent defamation cases, albeit the linchpin for that decision has been knocked out from beneath it by the Supreme Court in Dun & Bradstreet. I leave this issue for the Court of Appeals to resolve.

CONCLUSION

The correlative doctrines of libel per se and presumed damages are alive and well in Maryland today. Although *403 under Dun & Bradstreet application of the above doctrines is constitutionally permissible not only where the level of fault reaches the dimension of constitutional malice, but also where mere negligence is shown in purely private defamation actions, whether application of the Jacron principles in Maryland is limited by the Dun & Bradstreet decision remains to be decided by our Court of Appeals. Because the statement in the letter written by Wolf was libelous per se and because the evidence was sufficient to generate an issue as to a reckless disregard for the truth, damages may be presumed. Therefore, the fact that appellant has not generated an issue as to actual damages will not operate to defeat his claim by way of a motion for summary judgment.

I would hold that appellant has generated an issue of material fact as to all the elements necessary to sustain a prima facie case of defamation. The trial court's grant of summary judgment in favor of appellees, the specific basis of which is unknown, necessarily indicates that the trial court found that appellant did not establish such a prima facie case. As such, the ruling was incorrect and, therefore, should be reversed.

. I do, however, concur with the majority’s holdings on appellees’ "Motion to Dismiss” and the issue of "conditional privilege.”

. There is no dispute here that the contents of the letter were in fact communicated to a third party.

. In what is considered the "majority view,” presumed damages may be recovered in all libel actions, subject only to constitutional restraints. Restatement (Second) of Torts §§ 568 comment b, 569 (1977); Harper, James & Gray, The Law of Torts § 5.9A, at 82-84 (2d ed.1986). But see Prosser, Libel Per Quod, 46 Va.L.Rev. 839 (1960) (claiming that this is the minority view). There is some confusion among several scholars as to Maryland’s view on this issue. Dean Prosser counts Maryland among those states recognizing a distinction between libel per se and libel per quod in reference to whether presumed damages may be recovered. See Prosser, supra, at 845. Laurence Eldredge criticizes Dean Prosser’s characterization as either reliance on mere dicta or confusion with the torts of injurious falsehood or disparagement of property. Eldredge, The Spurious Rule of Libel Per Quod, 79 Harv.L.Rev. 733, 750-51 (1966). In Harper, James & Gray, supra, at 84, the authors cite to Metromedia, Inc., in support of their contention that Maryland has abolished the libel per se /libel per quod distinction in favor of a rule requiring that "actual injury” be pled in all defamation cases. We believe that Hearst Corp. and IBEW, Local 1805 v. Mayo, 281 Md. 475 , 379 A.2d 1223 (1977) make it clear that presumed damages for presumed injury to reputation may be recovered in the same instances as they always have been recoverable in Maryland defamation cases, subject only to constitutional constraints. In this respect, the libel per se /libel per quod distinction that has clearly evolved in Maryland at common law, see M & S Furniture v. Edward J. DeBartolo Corp., 249 Md. 540 , 241 A.2d 126 (1968); Heath v. Hughes, 233 Md. 458, 197 A.2d 104 (1964); Stannard v. Wilcox & Gibbs Sewing Mach. Co., 118 Md. 151 , 84 A. 335 (1912), is alive and well.

. Synonyms include "erroneous,” “incorrect,” “intentionally untrue,” “dishonest," "deceitful,” etc. See Webster’s Third New International Dictionary, at 819 (1981).

. Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974).

. The Supreme Court has defined "actual malice" in this regard as "knowledge that it was false or with reckless disregard of whether it was false or not.” Dun & Bradstreet, supra, 472 U.S. at 755 , 105 S.Ct. *402 at 2943 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 280 , 84 S.Ct. 710, 726 , 11 L.Ed.2d 686 (1964)).