Opinion
DOCKET NO. A-4322-09T2
07-03-2012
PHILIP ROSSI and ANNETTE ROSSI, Plaintiffs-Appellants, v. CBS CORPORATION, ANGELA RUSSELL, ULYSSES SAMUEL WASHINGTON (UKEE WASHINGTON), CBS 3, CBS RADIO, INC., Defendants-Respondents, and, VIACOM, INC., 94.1 WYSP, PAUL BARSKY, Defendants.
Philip Rossi and Annette Rossi, appellants pro se. Thomas Curley (Levine, Sullivan, Koch & Schulz, L.L.P.) of the Pennsylvania bar, admitted pro hac vice, attorney for respondents (Gayle C. Sproul, Katharine T. Larsen, and Mr. Curley, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-1135-07.
Philip Rossi and Annette Rossi, appellants pro se.
Thomas Curley (Levine, Sullivan, Koch & Schulz, L.L.P.) of the Pennsylvania bar, admitted pro hac vice, attorney for respondents (Gayle C. Sproul, Katharine T. Larsen, and Mr. Curley, on the brief). PER CURIAM
This defamation action involves television and internet news reports about an incident that occurred between plaintiff Philip Rossi, an assistant little league coach, and a twelve-year-old player on an opposing team. The trial court granted summary judgment to defendants after concluding that the incident involved a matter of public concern, that defendant CBS 3's news reports were substantially true, and that plaintiffs did not produce evidence that defendants acted with actual malice when they made the broadcasts and internet postings. Plaintiffs Philip Rossi and Annette Rossi appeal from the summary judgment dismissal of their claims. We affirm.
I.
The following facts are derived from the evidence presented in the summary judgment motion. Plaintiffs Philip and Annette Rossi are the parents of a son who in 2006 played baseball on a Deptford Township Little League team, the White Sox, in the division for youths ranging in age from ten to twelve years old. Plaintiff was an assistant coach of his son's team. On April 24, 2006, in a contest between undefeated teams in which plaintiff's son was the starting pitcher for the White Sox, the Red Sox defeated the White Sox. The incident occurred when the game ended and the teams lined up to shake hands.
Annette Rossi was not involved in the incident and was not named in either the news broadcasts or the internet article. Her claim appears to be derivative, as she makes no arguments challenging the summary judgment dismissal of her claim. Accordingly, we will refer to Philip Rossi as "plaintiff."
According to plaintiff, he was standing behind the pitcher's mound when he saw the pitcher for the Red Sox coming across the field with his "fist cocked," as if to hit someone. His son had finished shaking hands, and was walking back toward the dugout. Plaintiff saw the Red Sox player dodge the other kids and walk directly toward his son. Perceiving that the Red Sox player was going to punch his son, plaintiff yelled two or three times, "Stop right there, don't go any further." The player stopped for a second and then continued toward plaintiff's son, prompting plaintiff to yell at him, "[G]o back to [your] f'ing dugout[.]" When plaintiff cursed, five or six men told him he could not use such language, and "usher[ed]" him back to the dugout. Plaintiff was fifteen or twenty feet away from the opposing player when he yelled. He denied moving toward the player at any time during the incident. Contrary to plaintiff's version of the events, several witnesses certified that while he was hollering and cursing, he rushed toward the opposing pitcher and had to be restrained. The next day, April 25, 2006, plaintiff was suspended from coaching and restricted from entering Deptford's Little League fields for two weeks.
Plaintiff uttered the full expletive during the incident.
Plaintiff submitted a letter requesting that we disregard four certifications that were submitted by defendants in support of their summary judgment motion but not timely provided to plaintiff during discovery. Plaintiff appears to confuse discovery requirements with the requirements for presenting evidence through affidavits on a summary judgment motion. Rule 1:6-6 provides that "[i]f a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge . . . ." (Emphasis added).
The incident occurred on a Monday; on Wednesday, April 26, 2006, an anonymous caller reported the incident to CBS 3. The "tip" was entered into an assignment queue, an electronic repository of information concerning a particular news item. The assignment queue, which was created at 11:30 a.m. and modified at 5:12 p.m., provided:
AS PER TIP CALLER . . . ON MONDAY, THE DEPTFORD LITTLE LEAGUE'S RED SOX AND WHITE SOX MET TO PLAY A FRIENDLY GAME OF BASEBALL. AFTER THE GAME, BOTH TEAMS BEGAN SHAKING HANDS IN A GREAT SHOW OF SPORTSMANSHIP WHEN ONE OF THE WHITE SOX COACHES BEGAN ATTACKING A KID VERBALLY AND THEN BEGAN TO GO AFTER HIM PHYSICALLY. ONE OF THE RED SOX COACHES STEPPED IN TO TRY TO RESOLVE THE SITUATION, BUT GOT PRETTY BEAT UP IN THE PROCESS. ALL OF THIS WENT ON WHILE BOTH TEAMS AND COACHING STAFF LOOKED ON. SO FAR NOTHING HAS BEEN DONE TO PUNISH THIS COACH. HE WAS SEEN WATCHING OTHER GAMES YESTERDAY. THIS IS A CALL OF CONCERN FOR PARENTS BECAUSE THE TWO TEAMS MEET AGAIN, TONIGHT AT 6PM. THE
LEAGUE STATED THAT THEY GAVE HIM A LETTER, BUT NOTHING WAS PUBLICLY ANNOUNCED, AND THE FACT THAT THE WHITE SOX'S MANAGER IS ON THE LEAGUE[']S BOARD MAKES THE PARENTS UNEASY WITH THE COACH STILL BEING AROUND THE CHILDREN.
The station assigned defendant Angela Russell to investigate the incident. That evening, she and a cameraman drove to the baseball field where the incident occurred, obtained permission to enter, and interviewed several spectators and a league official. Those who Russell interviewed included the mother of a Red Sox player, who had witnessed the incident. The mother told Russell that, during the incident, plaintiff was yelling and cursing at the opposing player, then started running toward the opposing player, and it looked "like [plaintiff] was going to hit him." Plaintiff had to be restrained. As a result, "[m]any more people had come down from the bleachers and were lined up against the fence, some yelling at [plaintiff] to stop." After completing the interviews at the field, Russell telephoned plaintiff's home, drove there, and interviewed plaintiff and plaintiff's son.
Following the interviews, Russell prepared a news report on the incident, which was aired during CBS 3's 11:00 p.m. news program. The following excerpt is from a transcript of the broadcast:
ALYCIA LANE: A dispute involving a coach and players in Little League causes tension in a Gloucester County community. . . .When questioned about the 11:00 p.m. broadcast at his deposition, plaintiff said that it was not the basis for his lawsuit and there was really nothing he felt CBS 3 "got wrong."
ANGELA RUSSELL: Alycia, this all happened here on Monday night. There were two teams playing each other, they were undefeated. So a lot of normal tension.
But after the game there was some type of conflict and a coach allegedly started shouting curse words at a player from the opposing team.
On this spring day in Deptford, New Jersey[,] the Little League's Red Sox and White Sox faced off again, just two days after a big blow-up on the field.
[On Camera Interview]: All the dads were out there trying to figure out, you know, what was going on, trying to restrain the coaches, trying to hold back the boys. You know, it was just, it was just mayhem. It was ridiculous, really.
ANGELA RUSSELL: The Little League has suspended Coach Philip Rossi for verbally attacking a player. We spoke with Rossi and his son about what happened.
[Son]: I was turning around trying to go back to my dugout and my - I saw my dad.
ANGELA RUSSELL: Rossi says as the players were shaking hands at the end of the game he noticed a player from the opposing team about to hit his son.
PHILIP ROSSI: I told him to get back in the dugout, very loudly, but he kept coming. I said it two or three times. And he went and he - you know, all of a sudden there was four or five guys on top of me pushing me away.
ANGELA RUSSELL: One parent from the same team says the punishment isn't fair.
[On Camera Interview]: The coach should definitely be reprimanded, but, you know, so should the player who was starting the fights. We can't go around saying that [twelve]-year-olds are allowed to act any way they want.
ANGELA RUSSELL: Rossi says he's not allowed on the grounds here for at least two weeks and his coaching future here isn't clear. The father of five says he does not regret his actions.
PHILIP ROSSI: No, I don't regret it because I stopped my son from getting hit and basically maybe getting hurt.
ANGELA RUSSELL: Now, Coach Rossi has five days to appeal the punishment. Meantime the president of the Little League, . . . told me tonight that Coach Rossi is a good guy and that people make mistakes.
The next morning, on the CBS 3 5:30 a.m. news program, anchor Ulysses "Ukee" Washington broadcast the following report:
UKEE WASHINGTON: A dispute involving a coach and players in Little League causes tensions in a Gloucester County community.
Deptford Coach Philip Rossi has been suspended for verbally abusing, or assaulting, rather, an opposing player.
CBS 3 spoke to Rossi about what happened in Monday's game. He says he sprung into
action when he saw a player about to hit his son during post-game handshakes.
PHILIP ROSSI: I told him to get back in the dugout, very loudly, but he kept coming. I said it two or three times. And he went and he -- all of a sudden there was four or five guys on top of me pushing me away.
UKEE WASHINGTON: Rossi is not allowed to be on the Little League grounds for the next two weeks.
Washington testified during his deposition that he was reading from a teleprompter and inadvertently used the word "abusing" rather than "assaulting." He corrected the mistake when he used the phrase, "assaulting, rather."
In addition to Russell's and Washington's broadcasts, CBS 3 posted the following on its website after the initial broadcast:
A little league baseball game in South Jersey turned ugly when a confrontation broke out while the two teams were shaking hands.
On Monday, the Deptford Little League Red Sox and White Sox played each other in a friendly game of baseball.
After the game, both teams began shaking hands in a typical show of sportsmanship when one of the White Sox coaches began attacking a kid verbally and then began to go after him physically.
One of the Red Sox coaches stepped in to try to resolve the situation, but he got pretty beat up in the process. All of this went on with both teams and coaching staffs looking on.
The league has suspended Philip Rossi but Rossi has a different take on the situation. He said as the players were shaking hands at the end, he noticed a player from the opposing team about to hit his son. "I told him to get back in the [dugout] very loudly but kept [sic] coming and all of a sudden, four or five guys were on top of me, pushing me away."
"All of the dads were out there trying to figure out what was going on, trying to restrain the coaches, trying to hold back the boys," said [a] parent . . . .
One parent said the punishment is not fair. "The coach should be reprimanded, so should the player who was starting a fight[.]"
Rossi's coaching career is in jeopardy but he does not regret his actions. "Because I stopped my son from getting hit and basically from my son [sic] getting hurt," said Rossi.
The CBS 3 producer who prepared the website report drafted the language based on Russell's April 26 report and the information provided by the anonymous caller contained in the station's assignment queue. When plaintiff told his wife about the internet story, she called CBS 3 and told the person who answered the phone the website story was incorrect. The story was subsequently removed, edited, and reposted. The revised report stated:
A little league baseball game in South Jersey turned ugly when a confrontation broke out while the two teams were shaking hands.
On Monday, the Deptford Little League's Red Sox and White Sox played each other in a friendly game of baseball.
After the game, both teams began shaking hands in a typical show of sportsmanship when one of the White Sox coaches was allegedly involved in a verbal altercation with a player.
The league has suspended the coach, Philip Rossi, and Rossi does not agree with the suspension.
He said as the players were shaking hands at the end, he noticed a player from the opposing team about to hit his son.
"I told him to get back in the dug out very loudly but [he] kept coming and all of a sudden, four or five guys were on top of me, pushing me away," explains Rossi.
"All the dads were out there trying to figure out what was going on, trying to restrain the coaches, trying to hold back the boys," said [a] parent . . . .
One parent said the punishment is not fair. "The coach should be reprimanded, so should the player who was starting a fight[.]"
The future of Rossi's coaching career is uncertain, but as he told CBS 3's Angela Russell, he does not regret his actions. "Because I stopped my son from getting hit and basically from my son [sic] from getting hurt," said Rossi.
On July 17, 2007, plaintiffs filed a four-count complaint alleging slander, libel, defamation, and negligence. Following motion practice and discovery, the parties filed cross-motions for summary judgment. On April 30, 2010, the trial court granted defendants' motion for summary judgment and denied plaintiff's cross-motion. The court first determined that the incident involving plaintiff and the player from the opposing team was a matter of public concern. After giving plaintiff the benefit of all reasonable inferences from the competent motion evidence, the court next determined that the allegedly defamatory statements were substantially true and that plaintiff had failed to demonstrate by clear and convincing evidence that defendants acted with actual malice, that is, that they knew their statements were false or published them with reckless disregard of the truth. Plaintiffs now appeal.
II.
Plaintiff's central contention is that because he was a private citizen, and because the incident did not involve a matter of public concern, the trial court improperly required him to demonstrate that defendants acted with actual malice, rather than negligence. Plaintiff also argues that the motion judge improperly engaged in fact-finding.
When reviewing an order granting summary judgment, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Summary judgment should be granted when "there is no genuine issue as to any material fact . . . and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When considering a defendant's motion for summary judgment, we must view the facts in the light most favorable to the plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed in that light, if "the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Our Supreme Court "has recognized that 'summary judgment practice is particularly well-suited for the determination of libel [and defamation] actions' because those actions tend to 'inhibit comment on matters of public concern.'" DeAngelis v. Hill, 180 N.J. 1, 12 (2004) (quoting Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 157 (1986)).
In cases such as this, where a defendant seeks summary judgment dismissal of a plaintiff's defamation action, we must analyze the motion record in the context of the proofs required to establish a defamation claim. To establish liability for defamation, a plaintiff must prove: "(1) that defendants made a false and defamatory statement concerning [the plaintiff]; (2) that the statement was communicated to another person (and not privileged); and (3) that defendants acted negligently or with actual malice." G.D. v. Kenny, 205 N.J. 275, 292-93 (2011). Malice must be proved by clear and convincing evidence. See Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 169 (1999). Here, the trial court's decision was based upon both its determination that the "actual malice" standard applied, and plaintiff's inability to produce sufficient evidence of malice to submit the case to a jury. Plaintiff argues that the trial court improperly applied the "actual malice" standard. We disagree.
Statements "involving matters of public concern or interest will call for the protection of the actual-malice standard . . . ." Senna v. Florimont, 196 N.J. 469, 489 (2008). That is so because "speech involving matters of public interest and concern needs adequate breathing room in a democratic society." Id. at 491 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 271-72, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686, 701 (1964)). The content of the CBS 3 News reports involved a matter of public interest and concern.
Our Supreme Court has adopted the "content, form, and context" analysis of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S. Ct. 2939, 2946, 86 L. Ed. 2d 593, 604 (1985), to determine when an alleged defamatory statement involves a matter of public interest or concern. See Senna, supra, 196 N.J. at 492. That analysis "require[s] a review of the [statement's] content, form, and context . . . as revealed by the whole record[, and includes] . . . consider[ation of] the identity of the speaker and the targeted audience." Id. at 492-93 (internal quotation marks and citations omitted).
Content requires that we look at the nature and importance of the speech. For instance, does the speech in question promote self-government or advance the public's vital interests, or does it predominantly relate to the economic interests of the speaker? Context requires that we look at the identity of the speaker, his ability to exercise due care, and the identity of the targeted audience."Where the speaker is disinterested, as is generally the case with the media, enhanced protections inhere if the publication touches on matters of public concern." Salzano v. N. Jersey Media Group Inc., 201 N.J. 500, 533 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1045, 178 L. Ed. 2d 864 (2011).
[Id. at 497.]
The context of the case before us involves media news reports disseminated throughout defendants' media market, and posted on the internet, concerning the conduct of an adult coaching assistant directed toward a twelve-year-old player on the opposing team. The conduct of coaches, officials, parents, and youth athletes at athletic events is a matter of such public concern that sponsors of youth athletic events are authorized to establish codes of conduct which, if violated, can result in an offender being banned from attending subsequent events. See N.J.S.A. 5:17-1 to -4. N.J.S.A. 5:17-5(a) directs the Attorney General to promulgate:
(1) A model athletic code of conduct which may be adopted by a school board or youth sports team organization pursuant to the provisions of this act; and
(2) Model policies regarding banning a person from a school or community sponsored youth sports event, minimum requirements for anger management counseling and permitting a person to resume attendance subsequent to the completion of anger management counseling, which may be adopted by a school board or youth sports team organization pursuant to the provisions of this act.
Additionally, a person who commits a simple assault "in the presence of a child under [sixteen] years of age at a school or community sponsored youth sports event is guilty of a crime of the fourth degree." N.J.S.A. 2C:12-1(f). In a statement that accompanied the introduction of Assembly Bill 440 in 2002, which was subsequently codified as an amendment to N.J.S.A. 2C:12-1, see L. 2002, c. 53, § 1, the concern about violence at youth sporting events was patent:
Violent outbreaks at school and youth sports events by parents, including attacks on coaches, players and other spectators, have become more frequent in recent years, resulting in injury and disruption. These
outbreaks, in addition to creating an unsafe environment for the children who are present, also promotes violence to children as a means of resolving conflict. It is the sponsor's view that in order to counter these negative and harmful consequences, stiffer penalties should be imposed for violent behavior committed in the presence of children.
[Statement to Assembly Bill No. 440, at 6 (Jan. 8, 2002).]
The incident involving plaintiff and the opposing team's pitcher indisputably involved a matter of public interest or concern. Accordingly, the trial court properly applied the "actual malice" standard.
Defendants have included in the record numerous articles and internet reports concerning the conduct of parents at youth sporting events.
To prove actual malice, a plaintiff must "show[] that the speaker made a false and defamatory statement either knowing it was false or in reckless disregard of the truth." Senna, supra, 196 N.J. at 474. "The actual-malice standard is subjective[,]" Costello v. Ocean Cnty. Observer, 136 N.J. 594, 615 (1994), and "involves analyzing the thought processes of the particular defendant[s.]" Durando v. Nutley Sun, 209 N.J. 235, 251 (2012).
Plaintiff conceded in his deposition that nothing in the content of Russell's statement during the April 26 news broadcast was "wrong." In fact, Russell based the story on her first-hand investigation, and included in the story excerpts of her interviews of a witness and plaintiff. Washington, in turn, based his broadcast on Russell's report. Plaintiff presented no evidence to suggest that Washington subjectively believed Russell's report to be inaccurate in any respect.
Plaintiff alleges that CBS and Washington reported that he, plaintiff, "assaulted a child." That is not what Washington reported. Rather, Washington stated that plaintiff had been suspended for "verbally abusing, or assaulting, rather, an opposing player." (Emphasis added). As Washington explained at his deposition, he was reading from a teleprompter and inadvertently used the word "abusing" rather than "assaulting." He immediately corrected his error. The trial court, having reviewed the compact disc recording of the broadcast, determined "that there is a clear indication, exactly as Mr. Washington indicated in his deposition, that he misspoke. It is more obvious on the CD certainly than just . . . flat[,] written . . . words on the piece of paper[,] but I find that there was an effort by Mr. Washington to correct that." We agree.
Moreover, "[c]ourts do not automatically decide a case on the literal words of the challenged statement[, but] consider the impression created by the words used as well as the general tenor of the expression, as experienced by a reasonable person." Ward v. Zelikovsky, 136 N.J. 516, 532 (1994) (internal quotation marks and citations omitted). When considered in context, Washington's statement could not be reasonably construed to suggest that plaintiff criminally assaulted a child, as suggested by plaintiff.
Even if Washington's words were susceptible to more than one interpretation, by reason of such alternative interpretations, the words would be ambiguous. Such ambiguity, when considered in the broader context of Russell's investigation on which Washington's broadcast was based, does not constitute evidence from which a jury could reasonably conclude that Washington acted with actual malice. Plaintiff cannot establish malice by taking words out of context and subjecting them to strained interpretation.
Plaintiff's argument that the trial court improperly engaged in fact-finding is unpersuasive. In deciding whether a reasonable jury could have concluded that defendants acted with malice, the court had to consider the context of Washington's statement, as well as the statements of witnesses that plaintiff went after the opposing player and had to be restrained. Plaintiff's denial that he aggressively moved toward the opposing player did not require the defendants to disregard the contrary statements, and did not require the trial court to disregard the same contrary statements when it decided whether plaintiff had presented sufficient evidence of malice to submit that issue to a jury.
Plaintiff also failed to produce evidence that defendants acted with malice when they posted the initial internet report. The statements contained in that report, that plaintiff "began attacking a kid verbally and began to go after him physically," were substantially true, according to at least one of the witnesses interviewed by Russell. The producer responsible for uploading the internet report to the website based the article on Russell's earlier report and information provided by an anonymous caller. Plaintiff produced no evidence, and certainly no clear and convincing evidence, from which a jury could have concluded that the producer knowingly made a false and defamatory statement, or made a false statement in reckless disregard of its truth.
In view of our conclusion that plaintiff did not present a triable issue as to malice, we need not address either defendants' argument that plaintiff did not demonstrate damage to his reputation, or plaintiff's related "slander per se" claim. See Too Much Media, LLC v. Hale, 413 N.J. Super. 135, 166-67 (App. Div. 2010) (explaining the concept of "slander per se" as it relates to damages, but concluding defamatory internet postings are libel, not slander).
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In conclusion, the trial court properly applied the "actual malice" standard and correctly concluded that no reasonable jury could conclude that defendants knowingly or recklessly disseminated false and defamatory statements about plaintiff.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION