Opinion
No. CV-01-0455708 S
June 25, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The defendants have filed a motion for summary judgment against the counts directed at them. The first count lies in assault and battery against Mr. Bancroft. The second count is directed against Mr. Scott and is based on an allegation of slander. The court will discuss the allegations of each count as it tries to address the issues raised by both sides as a result of this motion.
The standards to be applied in a motion for summary judgment procedure are well known. If there is a genuine issue of material fact the court cannot decide it since parties have a constitutional right to a jury trial. If no such issue is presented the court should grant the motion so that parties are not required to bear the expense and burden of litigation that is not meritorious in the opinion of the judge deciding such a motion.
First Count
This count alleges a civil assault against James Bancroft. In support of the motion the defendant Bancroft has submitted the deposition testimony of a Matthew Riley. Trial courts are divided as to whether deposition testimony can be considered in summary judgment proceedings. The real question, however, is why not. The first sentence of the deposition transcript says "Matthew H. Riley having been duly sworn was examined and testified as follows . . ." The rest of the deposition is attached and is certified by a court reporter. The plaintiff contests none of this. In the court's view Riley's deposition transcript is the equivalent of an affidavit under oath by Riley. If it would be appropriate for the court to consider such an affidavit at summary judgment why cannot the sworn deposition of someone be considered? In fact compared to an affidavit a deposition has perhaps more indicia of reliability. It proceeds on a question and answer basis, often too lengthy to be effectively rehearsed as to its contents and thus it is not a formally prepared set piece drafted to put the affiant's statement in the best possible posture to support the position of the party offering the affidavit.
At the deposition Mr. Riley said he witnessed the incident between Bancroft and Mr. Kimber. Bancroft and Scott were on a pickup truck addressing a rally involved with the 2000 Florida presidential election. Riley testified that Kimber jumped up onto the truck and almost lunged toward Scott. Mr. Bancroft, according to Riley, merely had his arm in a blocking position; Kimber was the person initiating any physical contact. Bancroft's action was defensive in nature. The defendant quotes from Gear v. Environmental Concepts Inc. (Arena, J. CV 99 0088195 S, 1999), to the effect that civil assault requires an allegation showing or tending to show that a defendant intended to cause the plaintiff "imminent apprehension of harmful or offensive bodily contact"; an assault is "any attempt with force or violence to do corporeal offense to another coupled with the present apparent ability to complete the act." Also cited is State v. Ramos, 70 Conn. App. 855, 865 (2002), which says use of reasonable physical force is justified when the person reasonably believes such force is necessary to protect him or herself from the imminent use of force by another.
Relying on Riley's deposition testimony the defendant Bancroft argues that his actions did not constitute an assault but in any event any physical actions he took were taken in self-defense — Kimber was trying to get to the codefendant Scott who was addressing the rally and "was almost ready to engage in physical activity to try and force his way through (to Scott)."
The problem for the defendant's position is that Kimber has submitted an affidavit in opposition to the motion saying Bancroft "physically assaulted me, grabbing me by the throat" and that the assault was "unprovoked." A question of fact is raised as to whether an assault occurred. Kimber claims that the body contact made by Bancroft was "unprovoked"; he was not just being blocked by Bancroft, one can surmise, because Bancroft, according to Kimber, grabbed him by the throat. Furthermore the latter allegation raises an issue of material fact as to whether the self-defense claim is viable — the use of any force under such a claim must be reasonable.
Since material issues of fact are raised the court will not grant the motion for summary judgment as to the first count.
Second Count (a) CT Page 9617
This count is directed against the defendant Scott. It claims that at a rally in New Haven attended by many people, the defendant "with malice and intent to injury the plaintiff stated to the audience he was talking to, that the plaintiff was a "poverty pimp for hire." The plaintiff alleges the statement was false and defamatory and Scott knew it to be such when he made it. It concludes by alleging that as a result of Scott's statement "the plaintiff who is a clergyman suffered humiliation and embarrassment."
The defendant in its motion argues Scott's statement is protected by the First Amendment to the federal constitution and is privileged and that in addition under state law the statement is not defamatory and the plaintiff cannot show Scott acted with actual malice in making and/or publicizing the statement.
The first thing that must be addressed is the exact words used by Scott. Scott claims he just said Kimber was a "poverty pimp" and has filed an affidavit to that effect. In Kimber's affidavit he states Scott called him a "poverty pimp for hire." Since the court is required to give the non-moving party every favorable inference the court will accept Kimber's factual version of what was said in light of the fact that a jury would be entitled to believe Kimber's version of what was said.
First the defendant argues that "poverty pimp" and "poverty pimp for hire" are not defamatory. That appears to be belied by the very attachments the defendant has made to its motion. One partial quote from the Internet as to the meaning of poverty pimp says: "Poverty pimp is derogatory label for an individual or group which, to its own benefit acts as an intermediary on behalf of the poor. Those who use this appellation suggest that `poverty pimps' profit from the misfortune of others and that if all the money collected on behalf of the poor were to actually find its way to the truly poor, poverty would cease to exist." Adding the words "for hire" to the phrase only makes explicit what is implied in this definition — the money collected purportedly on behalf of the poor goes to enrich the poverty pimps. A statement by Thomas Sewell is also attached entitled "The Poverty Pimp's Poem." In part it states: "Those who intercept the money intended for the poor have been aptly called poverty pimps! The poor are a commodity to these people who include not only local politicians, community activists and small time hustlers, but also people with impressive titles and academic credentials, who likewise milk the larger society, in the name of the poor." (Emphasis by the court.) Is this defamatory?
The Restatement (Second) Torts says at § 559 that: "A communication is defamatory if it tends so to harm the reputation of another as to lower him (her) in the estimation of the community or to deter third persons from associations or dealing with him (her)." Comment b says that statements are often defamatory because they tend to expose a person to "ridicule or contempt." Such a statement "may tend to disparage another by reflecting unfavorably on his (her) personal morality or integrity." In Lizotte v. Welker, 45 Conn. Sup. 217 (Koletsky, 1996), the court quoted in part from Prosser in defining "defamation" by saying it "is that which tends to injure `reputation' in the popular sense, to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him (her)." The statement made here appears to meet the definition of defamation and the added words "for hire" appear to go beyond mere hyperbole by implying that this particular individual, Kimber is willing and ready to line his own pockets by espousing poverty causes without any personally held belief in the positions he espouses.
The next position adopted by the defendant is the so-called fact/opinion distinction in defamation law. In Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795 (1999), the court says: "To be actionable (in defamation), the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." At page 796 the court quoted a portion of the trial court's charge with apparent approval: "a statement must be an expression of fact such as he is a thief . . . A statement cannot be an opinion such as I think he is a thief or a question such as, he is a thief." Some states do not accept this distinction but Daley references two federal cases and Daley's reference to Mr. Chow of NY. v. Ste Jour Azur S.A., 759 F.2d 219 (CA 2, 1985), and Hotchner v. Castillo-Puche, 551 F.2d 910 (CA 2, 1977), makes clear that our state follows the full statement of the objective fact not mere opinion rule as a basis for defamation. That rule is completely stated in Sections 565 and 566 of the Restatement (Second) Torts.
Topic 3. Types of Defamatory Communication
§ 565 Statements of Facts
A defamatory communication may consist of a statement of fact.
§ 566 Expressions of Opinion
A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.
Lester v. Powers, 596 A.2d 65, 69 (Me. 1991), put it more simply:
A defamation claim requires a statement — i.e., an assertion of fact either explicit or implied, and not merely an opinion, provided the opinion does not imply the existence of undisclosed defamatory facts.
Also see Mr. Chow of New York, at 759 F.2d at p. 225, and Hotchner, supra at 551 F.2d p. 913. It should be noted that both these federal cases preface their statement of the foregoing rule with the observation that "an assertion that cannot be proved false cannot be held libelous, id., and Mr. Chow of New York adds a further qualification: "we held that direct accusations of criminal misconduct, even when the underlying facts are disclosed, are not protected as opinion," citing Cianci v. New Time Publ. Co., 639 F.2d 54, 65 (CA 2, 1980); also see Edwards v. Nat'l Audubon Society, 556 F.2d 113, 121 n. 5 (CA 2, 1977) (emphasis for following discussion).
The last referenced quote from the Mr. Chow case presents a difficulty this court at least has in understanding the implications of the just quoted Section 566 of the Restatement and the quote from Lester v. Powers, supra. What does it mean to say that a defamatory opinion can be actionable "if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." How can one determine whether a particular opinion carries such an implication? Although it was talking about the notion of "fair comment" in a First Amendment context the court in Goodrich v. Waterbury Republican American Inc., 188 Conn. 107, 118 (1982), spoke generally and instructively on this issue: "an opinion must be based upon facts; if the facts are neither known nor stated, then a defamatory opinion implies that there are undisclosed defamatory facts which justify the opinion . . . The damage of such an implication is that the person defamed becomes the victim of the prejudiced and distorted judgment of not only the defamer but also of everyone who hears and believes the opinion without knowing it is based on incorrect and untrue facts." What this seems to be saying is that a bald statement of opinion which is defamatory is not actionable if at least non-defamatory facts are offered as a basis for the opinion.
What makes it difficult for the court at this point in the litigation at least is to apply the opinion/fact dichotomy where a defamatory opinion is presented completely out of context. In other words relying on the just completed discussion, a court would have to know more of the defendant's speech and the context in which he said Kimber was a "poverty pimp for hire." Were there any factual allegations surrounding the statements? But to return to first principles, an added complication in applying the opinion/fact dichotomy is the whole predicate of the discussion we have been having about the opinion/fact rule under Daley. One of Am.Jur.'s greatest understatements is its comment in the "Libel and Slander" article at 50 Am.Jur.2d § 161, page 452, where it is said that: "Deciding whether a statement expresses `fact' or `opinion' is not always an easy task." Making any such decision at the summary judgment or directed verdict stage of the litigation is rendered more difficult by another factor. Thus while the Am.Jur. Article at § 161 page 452 says that: "The determination whether an allegedly defamatory statement is a statement of fact or opinion is a question of law." The Daley opinion at 249 Conn. pp. 795-96, seems to indicate this is a question for the jury.
On non-constitutional grounds in any event the court will not grant the motion for summary judgment.
(b)
The defendant Scott also raises a first amendment argument under the federal constitution. As stated in Woodcock v. Journal Publishing Co., 230 Conn. 525, 535 (1994):
Under the first amendment to the United States Constitution, a public official, in order to recover damages for a defamatory falsehood relating to his or her official conduct, must prove that the statement was made with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) . . . Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false . . . Moreover a public official must prove actual malice by clear and convincing evidence in order to prevail in a defamation action.
To establish his first amendment defense, the defendant Scott refers to paragraph one of the second count where the plaintiff says he is a citizen of New Haven and "was a public figure" on the date of this incident. The defendant argues that by his own admission Kimber is a "public figure." In his affidavit at paragraph 7 opposing this motion Kimber also says "I am not `for hire' either in my capacity as a member of the clergy my capacity (sic) as a public official." In any event as Judge Sferrazza notes in Reaves v. Hartford Courant, 34 Conn. L. Rptr. 161, the first amendment "constitutional privilege was expanded to cover articles about public figures, as well as officials, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 162 (1967)" (same rule would apply to slander).
Referring to the second requirement of the constitutional argument the defendant argues "that the plaintiff has failed to present any evidence of falsity or actual malice with respect to the said (allegedly defamatory statement). In his complaint, the plaintiff merely alleges that on December 2, 2000, on Alston Street in New Haven, at a public rally near the home of Senator Joseph Lieberman which was attended by large numbers of persons, defendant Scott, with malice and intent to injure the plaintiff, stated to an audience he was addressing that the plaintiff was a `poverty pimp for hire.'" While the plaintiff makes said allegation, the plaintiff has failed to present any evidence that the defendant Scott made the statement with actual knowledge that it was false or with reckless disregard of whether it was false. The defendant cites the Reaves case for the proposition then that "the absence of a claim (or) factual allegation supporting `actual malice' . . . in a case involving public concern dictates, as a matter of law, that summary judgment must be granted on behalf of the defendants on these counts of libel per se." In that case the defendants were newspapers and editors and reporters. The important point to note in Reaves — even if we equate the `actual malice' standard for libel per se with the `actual malice' requirement of the first amendment — is that although the trial judge in Reaves ruled in a summary judgment context he was really dealing with the issue before him as a motion to strike. The judge there reviewed the complaint and said "all three counts lack any factual allegations of knowing or reckless reporting."
In count two of this complaint paragraph 2 specifically alleges that Mr. Scott "with malice and intent to injure the plaintiff" made the allegedly defamatory remark. Paragraph 3 states: "The statement was false and defamatory and the defendant Scott knew when he made the statement that it was false and defamatory." All that would certainly pass muster for the judge who wrote Reaves if just the issue of legal sufficiency of the complaint was before the court.
The problem in a summary judgment context in the traditional understanding of what that procedure involves — in other words going beyond allowing it to be used to test the legal sufficiency of the complaint — is whether it is appropriate to move for such relief by merely noting that a plaintiff has the burden of establishing certain mental states under the theory of liability and then requiring a plaintiff to do so without presenting any predicate facts raising the possibility that the plaintiff may not be able to do so? Scott's affidavit in support of his motion merely says he was expressing his opinions at a political rally, denies saying Kimber was "for hire" but does admit calling him a "poverty pimp." It also says he believed his opinion was protected by the first amendment. Not much may be required of a defendant in this situation nor should it be since first amendment rights are involved, but something more would seem to be necessary — saying the plaintiff was `for hire' is a specific allegation suggesting specific knowledge. To shift the burden back to a plaintiff in the first amendment claim context there should at least be some evidence presented that the defendant would have the basis for forming such a defamatory opinion by his knowledge or contact with the defendant that is not based on malicious intent or recklessness.
(c)
In the defendant's affidavit there is not even a simple denial of intentional or recklessness surrounding the statement. The motion for summary judgment is denied.
Corradino, J.