Opinion
CIV. NO. AMD 05-2272.
January 31, 2007
MEMORANDUM and ORDER
This is a defamation action arising from an incident at a retail clothing store in Laurel, Maryland, during which the store manager accused the plaintiffs, Oscar Bouie and Javon Jones, of attempted shoplifting. The complaint alleged a 42 U.S.C. § 1981 racial discrimination claim and a common law defamation claim and was filed in the Circuit Court for Baltimore City. Thereafter the case was timely removed to this court. The ostensible racial discrimination claim has previously been dismissed. Discovery having been completed on the state law claim, now pending is defendant's motion for summary judgment on the issue of damages only. No hearing is needed; the motion shall be granted in part and denied in part.
On March 10, 2005, Bouie and Jones entered a Rugged Wearhouse, Inc., clothing store in Laurel, Maryland, with the intention of purchasing items of clothing. Apparently, plaintiffs had visited the store on prior occasions without incident. While plaintiffs were in the store, several of defendant's employees began following and closely observing the plaintiffs as they browsed the merchandise in the store. Plaintiffs felt the surveillance keenly. In due course, they selected several items and then went to a fitting room and tried on the items, but they found nothing they wanted to purchase. They decided to leave but they departed the store separately; Bouie left and went to his car while Jones lingered behind, allegedly looking for a shirt. The store manager spoke harshly to Bouie as he departed and then created a disturbance, which spilled into the parking lot, as Jones departed, essentially accusing Bouie and Jones of stealing or attempting to steal items from the store and threatening to call police if they returned. Plaintiffs departed the area without difficulty in Bouie's car.
The case deals with allegedly defamatory speech involving two private parties in a matter of private concern. In Maryland, the elements of defamation with regard to private figures are:
(1) that the defendant made a defamatory communication, i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement as being defamatory; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm.Shapiro v. Massengill, 105 Md.App. 743, 772, 661 A.2d 202, 216-17 (1995). Defendant concedes that plaintiffs have generated genuine disputes of fact as to the issue of liability but contends that plaintiffs' damages must be limited. I agree, in part.
Maryland law distinguishes defamation per se and defamation per quod. See Hearst Corp. v. Hughes, 297 Md. 112, 125, 121 A.2d 466, 492 (1983). Certain falsehoods are defamatory per se, i.e., possess innately injurious characteristics. Id. Here, notwithstanding the parties' disagreement as to the actual words uttered by the store manager, the parties agree that the speech amounted to statements that the plaintiffs had stolen merchandise from the store or were attempting to do so. Viewing the facts in the light most favorable to plaintiffs, the manager's speech was defamatory per se. Carter v. Aramark Sports and Entertainment Services, Inc., 153 Md.App. 210, 238, 835 A.2d 262, 278 (2003) (allegation that a person is a thief is defamatory per se.). Thus, the store manager's speech constitutes defamatory communication and injury is presumed.
On the other hand, the record is wholly bereft of any evidence that plaintiffs suffered actual harm. To be sure, under Maryland law, "harm" is not limited to monetary loss; in fact, " the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." Hearst Corp., 297 Md. at 121; 121 A.2d at 491. Plaintiffs alleged in their complaint that they "have suffered, are suffering, and will suffer harm to their reputation and good names, loss of business and customs, obloquy, hatred, ridicule, and other compensatory damages, plus presumed damages." In their depositions, however, both plaintiffs have conceded that their reputations and standing in the community have not been diminished at all because of, nor even affected by, the store manager's statements. For example, Jones testified as follows, in part:
Q: I'm asking you about your reputation which is what your standing in the community and what other people think of you, not how you feel. I want to know if you have any indication at all that your reputation has suffered any sort of injury as a result of this incident.
A. No.
Bouie also testified that no damage to his reputation had occurred. Indeed, the people to whom he had later related the incident did not believe he had stolen anything. Nor did the one witness to the confrontation, who was deposed, believe the manager's accusation at the time it was made.
In addition, neither plaintiff projects evidence of any damage to his business opportunities or to any workplace reputation. Counsel inquired of Jones:
Q: I'm asking for any evidence that you have that your reputation has actually been injured, sitting here today, as a result of the March 10 `05 incident. Do you have any evidence of that?
A: Has it impacted on me yet from getting jobs and stuff, no.
Similarly, Bouie could not unequivocally identify any person with whom he worked who may have had a lower opinion of him because of the incident:
Q: All right. So as far as — all right. And so other than the people you told about what had happened, you don't know of any other people who may have a lower opinion of your good name and reputation?
A: I don't believe so because they always ask me to do everything.
Thus, plaintiffs' deposition testimony shows conclusively that neither suffered actual damages from the store manager's defamatory statements. In fact, their depositions completely negate the allegations in their complaint that they "have suffered, are suffering, and will suffer harm to their reputation and good names, loss of business and customs, obloquy, hatred, ridicule." Notably, plaintiffs did not allege mental anguish as an element of damages in the complaint, and there is nothing in the record to support an award of damages for any such harm.
As a matter of law, therefore, plaintiffs have failed to generate a genuine dispute of material fact as to the existence of actual damages flowing from the defamatory statements made by defendant's agent; defendant is entitled to a determination as a matter of law that any damages award in this case shall be limited to "presumed damages" from the defamatory per se statements that plaintiffs were shoplifters. Nevertheless, the issue of "actual malice," i.e., whether defendant's store manager knew that his allegation was false, thereby permitting an award of punitive damages, is for the jury. Cf. Shabazz v. Bob Evans Farms, Inc., 163 Md.App. 602, 881 A.2d 1212, 1234 (noting that, in an appropriate case, nominal compensatory damages, such as presumed damages in defamation cases, may be sufficient to support an award of punitive damages) (citing Shell Oil Co. v. Parker, 265 Md. 631, 641 n. 6, 291 A.2d 64 (1972)), cert. denied, 390 Md. 92, 887 A.2d 656 (2005); see also Tierco Md., Inc. v. Williams, 381 Md. 378, 414 n. 29, 849 A.2d 504, 526 n. 29 (2004) ("[I]n a defamation action, punitive damages are not recoverable based upon ill will, spite, or an intent to injure; instead, to recover punitive damages, the plaintiff must establish that the defamatory falsehood was made with actual knowledge that it was false.").
It is SO ORDERED.