SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4078-94T1
IAN DAVID KASS,
Plaintiff-Appellant,
v.
GREAT COASTAL EXPRESS, INC.,
Defendant-Respondent.
Submitted March 27, 1996 - Decided May 31,
1996
Before Judges King, Kleiner and Humphreys.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County.
Steven M. Kramer & Associates, attorneys for
plaintiff (Mr. Kramer, of counsel and on the
brief).
Smith, Stratton, Wise, Heher & Brennan,
attorneys for defendant (Peter R. Freed, of
counsel and on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Plaintiff Ian David Kass appeals from the entry of judgment in a trade libel action on behalf of defendant Great Coastal Express, Inc. We are called upon to review the concept of trade libel and the often invoked defense of qualified privilege. We conclude that the interrogatories to the jury did not comply with the legal precepts applicable to this cause of action and that
this was harmful error requiring reversal. See R. 2:10-2.
Despite the fact that plaintiff's appeal does not directly assail
the instructions of the trial judge, we are constrained to
reverse a determination predicated on erroneous instructions.
Plaintiff was employed by defendant from June 15, 1990 to
July 7, 1990 as a truck driver/operator. After plaintiff left
defendant's employ, he sought new employment with other companies
in a similar capacity. Plaintiff learned that his employment
applications with prospective employers received unfavorable
treatment because the prospective employers received negative
evaluations from defendant. Defendant's reports indicated that
plaintiff had "been discharged," had "violated company policy,"
had "quit under load,"See footnote 1 and had "used company equipment without
authorization." Plaintiff contends that these reports were
defamatory and were not protected by any qualified privilege of
defendant.
As a result of a pre-trial ruling, the trial judge
determined that defendant was entitled to claim a qualified
privilege. That ruling is not challenged on appeal. The primary
issues for trial focused on whether defendant's reports as to
plaintiff's employment were defamatory and if so, whether
defendant was protected by a qualified privilege despite the
defamation.
In an effort to guide the jury in its deliberations, the
trial judge prepared the following six special interrogatories to
be answered by the jury in the course of its deliberations:
1. Has plaintiff proven by a preponderance
of the evidence that defendants made
injurious or disparaging statements about
him?
2. Has plaintiff proven by a preponderance
of the evidence that defendants made
statements about him which were false?
3. Has plaintiff proven by a preponderance
of the evidence that the statements made
about him were made by the
defendants with the knowledge that they were
false or with reckless disregard for their
truth or falsity?
4. Has plaintiff proven by clear and
convincing evidence that defendant's sole,
chief or primary motivation in
communicating the statement was ill will or
spite toward the plaintiff?
5. What is the amount of pecuniary damages
that plaintiff has proven by a preponderance
of the evidence he sustained which were
proximately caused by the acts of the
defendants?
6. Has plaintiff proven by a preponderance
of the evidence that the conduct of the
defendants was willful, wanton, or malicious?
The jury answered questions one, two and three in the
affirmative. However, it then answered questions four and six in
the negative. The jury responded to question five with the
amount of $15,000.
After the jury returned its verdict, the trial judge heard
oral argument from counsel. Plaintiff argued that the jury's
answer to interrogatory three compelled entry of a verdict for
plaintiff for $15,000. Defendant argued that the response to
question four necessitated a judgment in its favor. The trial
judge reserved decision and asked counsel to prepare post-trial
briefs. The jury was discharged. Thereafter, the trial judge
directed in a written opinion that the clerk enter judgment for
defendant.
As will be discussed hereafter, we conclude that the special
interrogatories regarding the qualified privilege were
incomplete. We have prepared, and have appended to this opinion,
sample interrogatories that we conclude would have appropriately
addressed the issues raised at the trial of this matter.
New Jersey defamation law has been subject to numerous modifications. Turf Lawnmower Repair v. Bergen Record Co., 139 N.J. 392, 408 (1995). "The evolution of the law of defamation reflects the tension between society's competing interests in encouraging the free flow of information about matters of public concern and in protecting an individual's reputation." Ibid. (quoting Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 135-36 (1986)). Principles of defamation "embody the important public policy that individuals should generally be free to enjoy their reputations unimpaired by false and defamatory
attacks." Id. at 409 (quoting Costello v. Ocean County Observer,
136 N.J. 594, 606 (1994)).
The status of the plaintiff as either a private individual
or public figure will dictate the weight of his interest in his
reputation when in tension with principles of free speech. Ibid.
See also Sisler v. Gannett Co., Inc.,
104 N.J. 256, 264 (1986)
("the classification of an individual as a public or private
figure became the critical determination in defamation actions.")
(citing Gertz v. Robert Welch, Inc.,
418 U.S. 323,
94 S. Ct. 2997, 41 L.Ed.2d 789 (1974)).
In this appeal we are concerned with private defamation.
Such defamation is proved by a negligence standard. Turf
Lawnmower, supra, 139 N.J. at 413; Sisler, supra, 104 N.J. at
256. Under the negligence standard,
One who publishes a false and defamatory
communication concerning a private person . .
. is subject to liability if, but only if,
he:
(a) knows that the statement is false
and that it defames the other,
(b) acts in reckless disregard of these
matters, or
(c) acts negligently in failing to
ascertain them.
[Sisler v. Gannett Co., Inc.,
199 N.J. Super. 307, 312-13 (App. Div. 1985), rev'd on other
grounds,
104 N.J. 256 (1986) (quoting
Restatement (Second) of Torts § 580B
(1976)).]
The negligence standard set forth in the Restatement is
consonant with the New Jury Model Jury Charge on private
defamation. That charge lists the specific elements of the cause
of action as:
(1) The statement must be a defamatory
statement of fact.
(2) The plaintiff must prove that the
defamatory statement concerned the plaintiff.
(3) The plaintiff must prove that the
defamatory statement is false.
(4) The plaintiff must prove that the
defamatory statement was communicated to a
person or persons other than the plaintiff.
(5) The plaintiff must prove that
defendant actually knew the statement was
false when he/she communicated it, or
defendant communicated the statement with
reckless disregard of its truth or falsity,
or defendant acted negligently in failing to
ascertain the falsity of the statement before
communicating it.
[Model Jury Charges-Civil § 3.11B2.]
A plaintiff must prove these elements by a preponderance of the
evidence to successfully prove his claim.
The trial judge obviously drafted interrogatories one,
two, and three by referring to the Model Jury Charge, although
interrogatory three omitted any phrase tantamount to the Model
Charge wording, "or defendant acted negligently in failing to
ascertain the falsity of the statement before communicating it."
Although plaintiff has argued on appeal that interrogatory
three was designed to focus on the concept of qualified
privilege, it was in fact clearly designed to focus on one
element of the tort of private defamation. We therefore reject
plaintiff's argument that the jury's affirmative response to
interrogatory three constituted a finding that the privilege had
been abused and thus compelled the entry of a verdict for
plaintiff.
Although a statement may be defamatory, under certain circumstances embodied in the concept of qualified privilege, even defamatory statements will be protected.
The principle of "qualified privilege" originally protected a person from legal liability for defamatory words uttered honestly and without improper motive. Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 376 (1959). The policy behind the privilege is the "necessity that true information be given whenever reasonably required for `the protection of . . . the interests of third persons or certain interests of the public.'" Williams v. Bell Telephone Lab. Inc., 132 N.J. 109, 121 (1993). The qualified privilege "has emerged as one of the prime means for the common law to balance the interests in reputation with the publication of information in the public interest." Dairy Stores, supra, 104 N.J. at 137. The qualified privilege permits a party to make a publication of a statement if to do so protects the interests of the recipient. Restatement (Second) of Torts § 594 (1977). For example, a party may make an otherwise defamatory statement about a former employee to a prospective employer concerning the qualifications of the former employee. Id. at § 595, cmt. i.
The Supreme Court has announced that in libel actions, "a
qualified privilege extends to an employer who responds in good
faith to the specific inquiries of a third party regarding the
qualifications of an employee." Erickson v. Marsh & McLennan
Co.,
117 N.J. 539, 562 (1990). Even if such a statement is
defamatory, it will not be actionable. Id. at 563. In the
instant matter, defendant made statements to DAC Services, a
prospective employer of plaintiff, about plaintiff's
qualifications. As noted earlier, the trial judge concluded in a
pre-trial ruling that defendant was entitled to the qualified
privilege.
A plaintiff, however, may overcome the qualified privilege
by proving that the immunized defendant abused its privilege.
The Supreme Court addressed abuse of the qualified privilege in
Coleman v. Newark Morning Ledger Co.,
29 N.J. 357 (1959). The
Court acknowledged that the qualified privilege permits otherwise
defamatory statements to be made for a proper motive. Id. at
373. If, however, the statement has been made for some improper
motive, the privilege does not attach to the statement. Id. at
373-74.
`[T]he court will look to the primary
motive or purpose by which the defendant
apparently is inspired'; it would seem that
`the privilege is lost if the publication is
not made primarily for the purpose of
furthering the interest which is entitled to
protection'; if the defendant is moved
`chiefly' by `motives of ill will, or to
accomplish a distinct objective which may be
legitimate in itself but is not within the
privilege,' . . . he is given no immunity.
[Id. at 375 (quoting Prosser on Torts 601,
627-28 (2d ed.).]
At common law, the privilege or immunity "could be overcome
only by a showing of `ill motive or malice in fact.'" Erickson,
supra, 117 N.J. at 565 (quoting Rainier's Dairies v. Raritan
Valley Farms,
19 N.J. 552, 558 (1955)). Erickson explained that
because the term "malice" had been subject to varied
interpretations, the New Jersey Supreme Court in Dairy Stores had
adopted a new, "more workable standard." Ibid.
In Dairy Stores, the Court announced its intention to move
away from the "malice" standard. 104 N.J. at 151. The Court
wrote, "Although we discard the label [of malice], 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." Ibid. (citing Coleman v. Newark Morning Ledger Co.,
29 N.J. 357, 376 (1959)).See footnote 2 The rule announced in Dairy Stores
is consistent with the Restatement, which explains that a
qualified privilege is abused if the defamatory statement is made
with knowledge that it was false or with reckless disregard for
its truth or falsity. Restatement (Second) of Torts § 600
(1977). A publisher has acted with reckless disregard if it
possessed a high degree of awareness that the statement was
probably false. Id. at cmt. b.
A plaintiff can prove an abuse of the qualified privilege by
demonstrating that the defendant did not "act for the purpose of
protecting the interest for the protection of which the privilege
is given." Bainhauer v. Manoukian,
215 N.J. Super. 9, 42-43
(App. Div. 1987) (quoting Restatement (Second) of Torts § 603
(1977)). A defendant can also abuse its qualified privilege by
excessive publication, that is, "publishing defamatory matter
without a reasonable belief `that the publication is a proper
means of communicating the defamatory matter to the person to
whom its publication is privileged.'" Id. at 43 (quoting
Restatement (Second) of Torts § 604 (1977)). Finally, a
defendant will abuse its privilege "if [it] does not reasonably
believe the matter to be necessary to accomplish the purpose for
which the privilege is given." Ibid. (quoting Restatement
(Second) of Torts § 605 (1977)).
The Supreme Court recently summarized the analysis to be
employed in determining whether a qualified privilege has been
abused. In Williams v. Bell Telephone Lab. Inc.,
132 N.J. 109
(1993), the Court announced that a qualified privilege is abused
if "(1) the publisher knows the statement is false or the
publisher acts in reckless disregard of its truth or falsity, . .
. (2) the publication serves a purpose contrary to the interests
of the qualified privilege, . . . or (3) the statement is
excessively published . . . ." Id. at 121 (citing Dairy Stores,
supra, 104 N.J. at 151, and Bainhauer, supra, 215 N.J. Super. at
43). The Court emphasized that "the critical determination is
whether, on balance, the public interest in obtaining information
outweighs the individual's right to protect his or her
reputation." Ibid. (quoting Dairy Stores, supra, 104 N.J. at
151).
Thus, Dairy Stores and Williams represent a departure from
the common law notion that an abuse of a qualified privilege
could be proved only upon a showing of malice in fact, i.e., ill
will or other improper motive. Cf. Trow v.Fees,
105 N.J. 330,
341 (1987) (holding that abuse of a qualified privilege will be
found if "defendant is moved primarily by ill will"); Lutz v.
Royal Ins. Co.,
245 N.J. Super. 480, 499 (1991) (holding that a
showing of ill will defeats a qualified privilege if it is the
"primary motivating force" behind a defamatory statement)
(quoting Coleman, supra, 29 N.J. at 342)).
We observe that the Model Jury Charge pertinent to abuse of
privilege still retains a vestige of the concept of ill will and
reads as follows:
To establish that defendant has lost or
abused the privilege to communicate the
defamatory statement, plaintiff must prove by
a preponderance of the evidence that:
(1) Defendant did not act for the purpose of protecting the interest which gave rise to the privilege. If you find that defendant's purpose in communicating the allegedly defamatory statement was in no part motivated by . . . a desire to protect the lawful interests of the person(s) to whom the allegedly defamatory statement was communicated . . . then defendant is not
entitled to the protection of the privilege
and you may find for the plaintiff. Or if
you find that defendant's sole motivation in
communicating the statement was out of ill
will or spite toward the plaintiff, then you
may find for plaintiff. But if you find that
the statement was motivated in part for the
purpose of protecting defendant's lawful
interest, and in part out of spite or ill
will toward plaintiff, then the privilege has
not been abused and you must find for
defendant.
or that
(2) Defendant did not reasonably
believe that the person(s) to whom the
statement was communicated had a proper
interest in receiving the statement. The
privilege is lost where publication is
excessive; that is, where the defamatory
information is communicated to persons who
have no legitimate interest in receiving the
information. If you find that defendant did
not reasonably believe that the persons to
whom the defamatory statement was
communicated had a proper and legitimate
interest in receiving the statement, then
defendant has lost the privilege;
or that
(3) Defendant did not reasonably believe
that some or all of the defamatory
information contained in the statement was
reasonably necessary to accomplish the
purpose and protect the interest which gave
rise to the privilege. Thus, if you conclude
the defendant did not have a reasonable
belief that some or all of the defamatory
information was relevant or necessary . . .
to protect the lawful interests of the
person(s) to whom he/she communicated the
defamatory statements, . . . then defendant
has lost the protection of the privilege as
to the unnecessary or irrelevant defamatory
information.
[Model Jury Charges-Civil § 3.11B3.]
We also note that the text of the Model Jury Charge, as
presently written, cites the burden of proof as "preponderance of
the evidence." That is clearly wrong. As articulated in
Erickson, abuse of a qualified privilege must be proven by clear
and convincing evidence. 117 N.J. at 565. See also Williams,
supra, 132 N.J. at 121. "Indeed, the imposition of a lesser
burden of proof would fail to adequately protect the interests
underlying the privilege." Erickson, supra, 117 N.J. at 565-66.
Finding that the jury had found malice only on the preponderance
of the evidence, the Erickson Court remanded, holding that the
plaintiff was obligated to prove malice by clear and convincing
evidence. Id. at 566-67. Accordingly, we recommend that the
Supreme Court Civil Practice Committee redraft Model Jury Charge
§§ 3.11B.3 to accurately reflect the burden of proof announced in
Erickson.
Additionally, the Model Charge instructs that an abuse of
the privilege may be shown if defendant's sole motive is ill
will. That statement is contradictory to Coleman and Lutz, which
explain that ill will need only be a primary or chief motivation,
not the sole motivation. We recommend that this, too, be
corrected.
In cases in which "qualified privilege" is invoked as a
defense and special interrogatories are utilized, inclusion of
each type of privilege abuse as a separate question should be the
norm. If a type of privilege abuse is omitted due to an absence
of relevant evidence, the reasons for omission should be
discussed with counsel on the record during the charge conference
prior to closing statements.
In the instant case, defendant's claim of qualified privilege would be defeated by plaintiff's proving by clear and convincing evidence that either: (1) defendant's primary motive in making the statements was not to advance the interests of DAC Services, plaintiff's prospective employer, but was instead ill will or spite directed at plaintiff (i.e., that defendant did not act with the purpose for which the privilege was granted); (2) defendant made the defamatory remarks with knowledge that they were false or with reckless disregard for their truth or falsity; (3) defendant excessively published the statement; or (4) defendant did not reasonably believe the statement to be necessary for the purpose for which the privilege was granted.
Reckless disregard for or knowledge of a statement's falsity is an element of the tort of trade libel. As noted in proving the elements of the tort, plaintiff is held to a preponderance of the evidence standard. However, to overcome the defense of qualified privilege, plaintiff must prove by a standard of clear and convincing evidence that defendant acted with reckless disregard for or with knowledge of a statement's falsity. A jury could therefore be required to consider the question twice. For instance, the trial judge in this case would have been required to ask the following questions:
3. Has plaintiff proven by a preponderance
of the evidence that the statements made
about him were made by the defendants with
the knowledge that they were false or with
reckless disregard for their truth or
falsity?
4. Has plaintiff proven by clear and
convincing evidence that the statements made
about him were made by the defendants with
the knowledge that they were false or with
reckless disregard for their truth or
falsity?
The first question would pertain to an element of the tort
while the second to an abuse of the qualified privilege. To
require the jury to evaluate the same evidence twice by two
different standards of proof would be confusing and difficult.
Obviously, successful proof of the latter burden necessitates
that the former burden has been met. We therefore conclude that
in a case of trade libel in which qualified privilege is an
issue, the jury should be asked to consider the issue only once.
By raising the standard of proof to the higher "clear and
convincing" standard, an affirmative jury response will indicate
that plaintiff in fact has proved an element of the tort and also
has proved that defendant's privilege had been abused, thus
defeating defendant's defense.
In the instant case, the trial judge correctly posed
interrogatory three to the jury to determine whether plaintiff
had proved an element of the tort. The judge, however, erred
when she failed to pose the same question, employing the higher
clear and convincing proof standard, to determine if the
plaintiff had proved that defendant was not entitled to the
qualified privilege.
As discussed, there are four ways in which defendant's
action may defeat a claim of qualified privilege. The special
interrogatories submitted to the jury only focused upon one of
those enumerated methods, defendant's ill will or spite. The
judge failed to direct any interrogatory to the jury referencing
the other three bases to defeat the qualified immunity privilege.
Additionally, plaintiff specifically requested that the
charge focus in part upon the concept that defendant should be
denied the benefit of the qualified privilege if defendant made
the defamatory remarks with knowledge that they were false or
with reckless disregard for their truth. The judge rejected this
request to charge. She gave as her reason, "[P]laintiff included
in his requests to charge the reckless disregard ground, but no
reference to the applicable standard of proof." We consider the
rejection of plaintiff's request for charge to be reversible
error. Although the request as formulated by plaintiff omitted
the standard of proof, the judge has the responsibility to
determine the applicable standard of proof. The judge should
have accepted the request and sua sponte added to the requested
charge the applicable burden of proof.
Although plaintiff's counsel did not note his objection on
the record when the court refused to instruct the jury as
requested, we consider the error as harmful error, even in the
absence of a timely objection. See R. 1:7-2; R. 1:8-7(a); R.
1:7-5. The jury may have concluded by clear and convincing
evidence that the defendants acted with knowledge of the falsity
or with reckless disregard for truth or falsity. In such a case,
plaintiff should succeed. However, the jury was not asked this
question and we therefore have no way of knowing whether the
defense of qualified immunity was overcome.
When reviewing a jury charge for error, we examine the
charge as a whole. State v. Maldonado,
137 N.J. 536, 579 (1994).
The charge as a whole should explain to the jury the "applicable
legal principles and how they are to be applied in light of the
parties' contentions and the evidence produced in the case."
Rendine v. Pantzer,
276 N.J. Super. 398, 431 (App. Div. 1994),
modified on other grounds,
141 N.J. 292 (1995) (quoting Navarro
v. George Kich & Sons, Inc.,
211 N.J. Super. 558, 574-75 (App.
Div.), certif. denied,
107 N.J. 48 (1986)). "The charge as a
whole should state the law `correctly and intelligently,' so that
ordinary jurors can understand it." Ibid. An inadequate charge
is a poor candidate for application of the harmless error
standard. State v. Simon,
79 N.J. 191, 206 (1979).
Although special interrogatories are not precisely a part of
a jury charge, they are presented to the jury immediately
following the jury charge and are designed to repeat and
highlight the salient issues discussed in the jury charge. A
misstatement of law in a special interrogatory or the omission of
a question pertinent to an element of an offense or a defense
deprives a party litigant of a fair trial and must likewise be
deemed reversible error. See Fineman v. New Jersey DHS,
272 N.J.
Super. 606, 626 (App. Div. 1994).
The judgment in favor of defendant is reversed. The matter
is remanded to the Law Division for a new trial on all issues.
Although the jury did answer special interrogatories concluding
that defendant's statement was defamatory and did consider the
issue of damages, we conclude that a new trial limited solely to
the issue of qualified immunity would be confusing. It would
require the trial judge to substantially explain the underlying
facts proven at the first trial. The concept of qualified
privilege is best understood if explained in the context of a
full presentation. Moreover, the initial trial was short and
plaintiff's damage claim did not involve expert testimony. Ahn
v. Kim,
281 N.J. Super. 511, 534-35 (App. Div.), certif. granted,
142 N.J. 518 (1995) (ordering a new trial on all issues where
issue requiring new trial is closely intertwined with issues
resolved in initial trial) (citing Acken v. Campbell,
67 N.J. 585, 589 (1975), and Moraca v. Ford Motor Co.,
66 N.J. 454, 460-66 (1975)).
1. Has plaintiff proven by a
preponderance of the evidence that
defendants made injurious or
disparaging statements about him? YES NO
2. Has plaintiff proven by a
preponderance of the evidence
that defendants made these statements
about him which were false? YES NO
3. Has plaintiff proven by a
preponderance of the evidence that
these defamatory statements were
communicated by defendant to
another person or persons? YES NO
If your answers to either
questions #1, #2 or #3 are "no," your
deliberations are complete.
If your answers to questions #1, #2
and #3 are all "yes," proceed to question #4
and answer each part of question #4.
4a. Has plaintiff proven by clear
and convincing evidence that defendant's
primary motive in making the statements
was not to advance the interests of
another person or persons, but was
instead ill will or spite directed
at plaintiff? YES NO
OR
4b. Has plaintiff proven by clear
and convincing evidence that these statements
made about him were made by the defendants
with the knowledge that they were false or
with reckless disregard for their truth
or falsity? YES NO
OR
4c. Has plaintiff proven by clear
and convincing evidence that defendant
excessively published these statements? YES NO
OR
4d. Has plaintiff proven by clear
and convincing evidence that defendant
did not reasonably believe the statement
to be necessary for the purpose for which
the privilege was granted? YES NO
If you have answered "yes" to either
questions #4a, #4b, #4c or #4d, proceed
to question #5.
If you have answered "no" to questions
#4a, #4b, #4c and #4d, your deliberations
are complete.
5. What is the amount of pecuniary
damages that plaintiff has proven by a
preponderance of the evidence he sustained
which were proximately caused by the
acts of the defendants? $
6. Has plaintiff proven by a
preponderance of the evidence
that the conduct of the defendants
was willful, wanton or malicious and
that an award of punitive damages is
warranted? YES NO
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4078-94T1
IAN DAVID KASS,
Plaintiff-Appellant,
v.
GREAT COASTAL EXPRESS, INC.,
Defendant-Respondent.
_________________________________________________________________
HUMPHREYS, J.A.D., dissenting and concurring.
I concur in the reversal of the judgment substantially for
the reasons stated by the majority. I respectfully dissent from
the holding that the new trial be on all issues. The new trial
should be limited to the only issue raised and decided on this
appeal, whether the jury was properly instructed on qualified
privilege.
The issues in this case, except for qualified privilege,
were all properly tried and determined. The jury decided that
the defendant made defamatory statements about plaintiff
(interrogatory #1), that the statements were false (interrogatory
#2), that the plaintiff sustained pecuniary damages of $15,000
(interrogatory #5) and that there was no basis for punitive
damages (interrogatory #6). The jury was properly instructed as
to these issues. No one has challenged the jury's determination
of these issues. No sound reason has been advanced as to why
these issues should be retried.
A primary reason for the use of jury interrogatories is to
prevent what the majority has ordered here, a new trial on the
whole case. See Terminal Constr. Corp. v. Bergen Cty. Sewer
Auth.,
18 N.J. 294, 319 (1955); see also 5A Moore's Federal
Practice § 49.02 (2d ed. 1990). A new trial on all issues is
especially unwarranted where, as here, the jury has "clearly and
unmistakably resolved" certain issues. Acken v. Campbell, 67
N.J. 585, 590, 593 (1975) (Clifford, J., dissenting).
As to the cases relied upon by the majority, we concluded in
Ahn v. Kim,
281 N.J. Super. 511, 534 (App. Div.), certif.
granted,
142 N.J. 518, 519 (1995), that the erroneous jury
instruction "irremediably tainted the jury's special verdicts."
In Acken v. Campbell, supra, 67 N.J. at 589, a majority of the
Court reached the same conclusion. In Moraca v. Ford Motor Co.,
66 N.J. 454, 461 (1975), the Court decided that in the framework
of that product liability case, the plaintiff's contributory
negligence was not separable and therefore the full issue of
liability, including contributory negligence, should be retried.
In the present case, the confusion on qualified privilege
casts no taint, irremediable or remediable, on the other issues
decided by the jury. Nor is the qualified privilege issue
closely intertwined with or inseparable from the issues properly
determined by the jury.
Contrary to the majority opinion, a trial on only the
qualified privilege issue will be less confusing than a trial on
all issues. The judge will simply advise the jury that (1) it
has previously been determined that the defendant made certain
false and defamatory statements about the plaintiff; and (2) that
the only issue for this jury is whether plaintiff has by clear
and convincing evidence overcome the defendant's qualified
privilege. See interrogatory #4 in the majority opinion at
p. 19.
Under the majority decision, the jury will be confronted
with six interrogatories which require the jury to apply
different standards of proof. See majority opinion at pp. 17-19.
Far preferable is to give the jury only one interrogatory (#4)
involving the application of only one standard of proof.
Particularly unwarranted is a retrial on damages. The
plaintiff sought "at least" $546,000 in compensatory damages and
also "special" damages. The jury awarded plaintiff $15,000 in
compensatory damages. The jury by its answer to interrogatory #6
precluded any special or punitive damages. Neither party has
appealed from the jury's decision on damages. I cannot conceive
of any reason why the parties and the trial court should be
burdened with another trial on the "clearly and unmistakably
resolved" issue of the plaintiff's damages. See McAndrew v.
Mularchuk,
38 N.J. 156, 161-162 (1962) (retrial should be on
liability only, damages having been fully tried and determined by
the jury); Abbamont v. Piscataway Tp.,
269 N.J. Super. 11, 33
(App. Div. 1993), aff'd,
138 N.J. 405 (1994) (retrial should be
on liability only, no basis having been shown for a retrial of
compensatory damages); Lewis v. Preschel,
237 N.J. Super. 418,
424 (App. Div. 1989) (retrial should only be on allocation of
damages because the total dollar damages had already been
determined and need not be addressed again).
Unnecessary litigation, here relitigation, places undue
strain on the litigants and the court. Our trial courts are
already overburdened with congested calendars and backlogs. We
should not increase that burden unnecessarily.
Footnote: 1 From the record, we are able to conclude that "quit under
load" references an allegation that plaintiff left a depot where
he had been dispatched to retrieve a shipment of product without
loading his tractor trailer with the product. Plaintiff admits
having arrived at the depot under the impression that the product
would be loaded into defendant's tractor-trailer by depot
employees. When plaintiff learned that he would be required to
load his trailer himself, he unhitched the trailer, which was
owned by defendant, and left the trailer and the product at the
depot. Plaintiff drove home in the tractor, which was
plaintiff's property.
Footnote: 2 Although Dairy Stores purports to abandon the label of
malice, the Supreme Court, in a decision from the same term as
Dairy Stores, wrote that the qualified privilege will protect
statements unless they were made with malice. Sisler, supra, 104
N.J. at 272, n.3 (citing Coleman, supra, 29 N.J. at 376-79).