TOLER (JOSEPH E.) VS. SUD-CHEMIE,INC., ET AL.
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RENDERED: MARCH 4, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001686-MR
JOSEPH E. TOLER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 05-CI-008765
SUD-CHEMIE, INC.; JUDE WARE;
DON VOTAW, GLEN SHULL; AND
MIKE WATSON
APPELLEES
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CAPERTON AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
CAPERTON, JUDGE: The Appellant, Joseph Toler, appeals the September 1,
2009, order of the Jefferson Circuit Court granting a directed verdict to Appellees
Sud-Chemie, Inc. and Glen Shull, and from a jury verdict in favor of Appellees
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Jude Ware, Mike Watson, and Don Votow, on the defamation claim filed by Toler
against the Appellees below. On appeal, Toler argues that the trial court
erroneously applied the constitutional “actual malice” standard for overcoming the
qualified privilege in this case, instead of the more plaintiff-friendly common-law
standard set forth in Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 782 (Ky. 2004).
Toler also argues that the court gave prejudicially erroneous liability instructions to
the jury as to the individual defendants against whom claims remained. Having
reviewed the record, the arguments of the parties, and the applicable law, we
affirm in part, reverse in part, and remand.
The Appellee, Sud-Chemie Inc., manufactures catalysts for various
chemical operations. It operates two plants in Louisville, and several more in
various locations in the United States. Toler was employed in a management
position as a Shift Coordinator at the company’s South Plant, located on Crittenden
Drive at the time the events pertinent to this matter occurred. He has been
employed by Sud-Chemie since 1976.2 As a Shift Coordinator, Toler was
responsible for scheduling employees and overseeing production, which included
supervising maintenance, operator, and laborer/helper workers.3 Toler also had the
authority to recommend to his supervisors that an employee be disciplined. Toler
2
Toler was initially employed by the Girdler Chemical Company, which became United
Catalysts Company, and eventually, Sud-Chemie, Inc.
3
The terms and conditions of employment for maintenance, operator, and laborer/helper
employees of Sud-Chemie are governed by a Collective Bargaining Agreement with their
respective union. As a supervisory employee, Toler was not affiliated with any union, although
he was a union member when he worked for Sud-Chemie in non-supervisory positions.
2
became a Shift Coordinator in 1999. He initially worked on the day shift, but was
thereafter transferred to the night shift, which he worked from 6:30 p.m. to 6:00
a.m. Toler remained on the night shift until his employment was terminated in
April 2005. Toler states that he had a spotless work record while in management,
that his last formal evaluation in February of 2005 was very positive, and that he
received the highest mark in the evaluation area of trustworthiness.
The events giving rise to the termination of Toler’s employment
began in February 2005. On February 21, an operator named Allen Trice was sent
home for refusing to perform a job that Toler instructed him to do. Toler states
that when Trice refused to perform the assigned job, Toler called his boss, Troy
Wise. Toler states that Wise told him to tell Trice to get his union steward, and
then to explain to Trice and the steward that Trice had to do his assigned work.
Toler states that he did this, but Trice still refused to perform the job. Toler states
that he then told Trice, in accordance with Wise’s instructions, that Trice was
suspended, and he sent Trice home. None of the individuals who ultimately made
statements against Toler were present when Toler sent Trice home. Toler said that
Trice stated as he was leaving that Toler would be sorry because Sud-Chemie
would not fire a black man.
Toler stated that his last involvement with Trice was approximately a
week later, when he attended one of Trice’s grievance meetings. Toler states that
at that meeting Trice apologized for his earlier threat to Toler. Scott Hinrichs,
Director of Human Resources, testified that Toler had handled the Trice situation
3
correctly, and Trice was subsequently terminated. Trice then filed a charge of
discrimination against Sud-Chemie with the EEOC on March 7, 2005, asserting
that he was terminated because of his race4. The company received Trice’s EEOC
complaint on March 17, 2005.
On March 16, 2005, Hinrichs received information that because of employee
Mike Watson’s concern about Toler’s involvement in Trice’s termination, the
company would be provided with several written statements from company
employees regarding racial comments made by Toler. On March 23, 2005, four
employees, Mike Watson,5 Bob Deweese,6 Glen Shull,7 and Don Votaw,8 provided
such statements which were given to Sud-Chemie management by Appellee Jude
Ware.9 Sud-Chemie asserts that these employees had no involvement in the
4
Trice is African-American. Toler is Caucasian.
5
Watson reported that Toler had commented, in reference to the African-American employees
that, “all I work around is a bunch of dumb n----rs.” See Appellant’s Trial Exhibit No. 1.
6
Deweese was initially named as a party to this suit. However, as he has since passed away, he
was dismissed from the suit without objection by any party. Deweese had provided a written
statement indicating that Toler had talked about “the lazy n---r’s [sic] on his shift and how he
would fire their black a—if they didn’t jump when he said so.” See Appellant’s Trial Exhibit
No. 1.
7
Shull’s written statement was unsigned, and was actually transcribed by another employee,
Jude Ware, who is also a party to this lawsuit. Therein, Shull stated that Toler had referred to
Sud-Chemie’s African-American employees as “Little Africa”, and referred to one AfricanAmerican employee as “The Gorilla”. See Appellant’s Trial Exhibit No. 1. Sud-Chemie asserts
that it did not learn of his identity until discovery commenced in this litigation. Accordingly,
Sud-Chemie states that it did not interview Shull along with the other employees as part of its
investigation of the allegations against Toler, nor did it rely on his statement in making the
decision to terminate Toler.
8
Votow reported to the company that Toler had referred to African-American employees as
“stupid f----ng n----rs,” “Jungle Bunnies,” “dumb-a-- n----rs,” “dumb n----r b—ch,” and “gorillalooking n----r.” See Appellant’s Trial Exhibit No. 1.
9
All of these employees are Caucasian.
4
disciplinary issue between Toler and Trice when they provided these written
statements to management.
Thereafter, Sud-Chemie, through Hinrichs, scheduled meetings with
Votow, Watson, and Deweese to discuss the allegations contained in their written
statements. Hinrichs interviewed these employees between March 29, 2005, and
April 5, 2005. During the course of those interviews, each employee
acknowledged and affirmed their statements.
Subsequently, on April 14, 2005, Hinrichs and Bill Furlong, SudChemie’s Plant Manager, met with Toler to discuss the allegations raised by the
employees, and to inform Toler of the EEOC charge filed by Trice. During the
course of that meeting, Toler acknowledged that using racist language in the
workplace at Sud-Chemie was a “firing offense”, and that the company had a zero
tolerance policy with respect to the use of racist language in the workplace. Toler
further agreed that it would be reasonable for an employee to report to
management any incidents of racial discrimination or harassment, and that the
company, Hinrichs and Furlong, had an obligation to investigate any such reports.
Toler nevertheless takes issue with the timeliness of the reports, asserting that the
employees should have reported the statements at the time they were allegedly
made, as opposed to providing them in concert following Trice’s termination.
Toler testified that during the meeting, Hinrichs and Furlong told him
the names of the employees who had provided written statements, and gave him
the opportunity to explain why he thought those individuals would make such
5
accusations. Toler states that he was provided with the information contained in
the statements but that Hinrichs refused to match any of the individuals with their
particular statements. Toler stated that he first gained access to the actual
statements through the discovery process at trial and had not seen them before that
time. Regardless, Toler denied the accusations10 and testified that he advised
Hinrichs and Furlong that he believed the statements made by the employees were
part of a “union gang-up” against him.
In support thereof, Toler stated that he believed Watson was “out to
get him” because he was a union steward. With respect to Don Votaw, he stated
he had trouble getting Votaw to do his work, and that on one occasion in March of
2003, he had reported Votaw for not doing his job. That report apparently resulted
in a written proposal for discipline of Votow. Sud-Chemie asserts that Votaw was
ultimately never disciplined by Toler, and that they were unaware of any prior
disciplinary issues between Votaw and Toler when they decided to terminate
Toler11. Nevertheless, Toler testified at trial that he had to “get on” Votaw and
Shull every day to do their work. With respect to Deweese, Toler stated that while
he was supervising Deweese in 2000, he and Deweese had “words” over
Deweese’s performance of his job. Hinrichs also testified that Toler had stated that
Deweese was a friend of Lonny Hampton, a shift coordinator that Sud-Chemie had
10
Sud-Chemie asserts that while denying the use of racist language in the workplace, Toler
acknowledged using racist language outside of the workplace in reference to African-American
individuals.
11
Toler nevertheless testified that Votaw’s direct boss, Tony Risinger, stripped the maintenance
break room of its television and ordered Votaw not to work on crossword puzzles as a result of
Toler’s March 2003 discipline of Votaw.
6
recently fired, an event which Hampton blamed on Toler. Concerning Shull, Toler
testified at trial that on one occasion he had to instruct Shull to do his job, although
he did not impose any discipline on Shull at that time.
During the course of the trial, Hinrichs testified that in the event an
employee files a false report with the Company regarding any workplace matter,
such action is grounds for the immediate termination of that individual’s
employment. Hinrichs nevertheless stated that he had no reason to believe that any
of the statements submitted to him by the employees were falsified in any manner,
and that he had no reason to disbelieve the statements at issue.
Following the investigation, Hinrichs and Furlong decided to
terminate Toler’s employment on April 15, 2005. This lawsuit followed, in which
Toler alleged defamation against the aforementioned defendants and against SudChemie for republishing the statements. He also alleged that Sud-Chemie
wrongfully terminated him both because of the false statements and because of his
Caucasian race.12 Trial was held on July 21 and 22, 2009.
At the conclusion of Toler’s case-in-chief, Sud-Chemie moved for a
directed verdict, arguing that Toler had failed to establish his burden of proof.
Specifically, Sud-Chemie asserted, in accordance with Stringer v. Wal-Mart
Stores, Inc., 151 S.W.3d 781 (Ky. 2004), that Toler had failed to prove that the
statements had been issued with actual malice, that is, a knowledge of falsity or a
12
On January 23, 2008, the trial court dismissed Toler’s racial discrimination claim upon SudChemie’s motion for summary judgment. Accordingly, we do not address that matter further
herein.
7
reckless disregard of the truth or falsity of the statements and, further, that he had
failed to prove the falsity of the statements. In addition, Sud-Chemie relied upon
Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63 (Ky. App. 2006), in
arguing that Toler had to prove actual malice in order to overcome the qualified
privilege to which Sub-Chemie is entitled. They asserted that Toler had presented
no proof that Sud-Chemie knew the statements were false, nor that they uttered or
wrote the statements with a reckless disregard for the truth thereof.
In response, Toler asserted that Cargill was not applicable to this case,
and that he merely needed proof of falsity and defamatory language in order to get
his case to a jury. Sud-Chemie attempted to rebut that argument by asserting that
Stringer also requires more than falsity, and indeed requires that a plaintiff prove
actual malice, that is, a knowing or reckless disregard or the falsity of the
statements.
The trial court agreed with Sud-Chemie, ruling that Toler had to prove
a knowing or reckless disregard for the truth in order to overcome Sud-Chemie’s
qualified privilege. Accordingly, the trial court granted Sud Chemie’s motion,
along with a directed verdict motion filed by Shull, on the ground that Toler had
failed to prove any damage as a result of Shull’s statements. Toler argued that he
was not required to prove that Shull’s statement had gotten him fired or caused him
to have lost wages, because general compensatory damages and injury to
reputation are presumed upon the publication of defamatory statements. The trial
8
court disagreed, and dismissed Toler’s claims against Shull. The following day,
the trial convened with only Watson, Ware, and Votaw remaining as defendants.
During the course of the trial, Watson, Ware, and Votaw each testified.
Watson stated that at the time that he made his statement, he was a union steward
at Sud Chemie. He stated that he frequently participated in grievance processing,
and that he had also participated in the discharge grievance processing of Allen
Trice. Watson testified that as an employee at Sud Chemie, he had in fact heard
Toler make racially derogatory remarks about African-American employees.
Watson further testified that although he had heard Toler make the remarks a few
months prior to the time he submitted his statement, he kept this information to
himself until it appeared to him that Toler may have discharged Trice on the basis
of his race. Watson testified that he wanted to make sure the company was aware
of Toler’s racial remarks because he wanted to ensure that Trice was not being
mistreated by Toler.
Ware testified that at the time the events in the matter sub judice
occurred, he was the Chief Union Steward. Ware stated that his responsibilities
included working with management in an effort to process grievances and
employee concerns. Ware stated that he participated in the processing of Allen
Trice’s grievance, and that he collected the statements from Watson, Shull, Votaw,
and Deweese, and submitted them to the company via the appropriate union chain
of command. Ware testified that he had never heard Toler make any racial
remarks.
9
Votaw testified that he had recently heard Toler make racial remarks
in the workplace. According to Votaw, Toler’s remarks were constant and
consistent, despite the fact that Toler and Votaw rarely worked together. That
testimony was apparently echoed by the testimony of Mike Long, a former
neighbor of Toler’s and a fellow Sud-Chemie manager. Long testified that he had
frequently heard Toler make racist remarks both in and outside of the workplace.
Long stated that he had known Toler for nearly 33 years, and had been his
neighbor for approximately 7 years. Long stated that he first heard Toler make
racist remarks more than 22 years ago.
At the conclusion of all the evidence, the matter was submitted to the
jury for deliberation. The jury returned a verdict for the defendants by a vote of
10-2. The court entered judgment on the jury verdict on September 1, 2009. This
appeal followed.
On appeal, Toler asserts that there is no question that the statements at
issue were defamatory per se. In support thereof, Toler relies upon Louisville
Taxicab and Transfer Co. v. Ingle, 229 Ky. 578, 17 S.W.2d 709, 710 (Ky. App.
1929)13 to argue that the statements prejudiced him in the performance of his
profession, because it was unanimously acknowledged that racist statements were a
“firing” offense at Sud-Chemie. Having asserted that the statements were
defamatory per se, Toler further argues, in reliance upon Stringer, supra, that the
13
Case involving false publication that chauffeur was discharged for drinking, wherein Court
held that false words imputing unfitness for trade or profession are libelous per se.
10
law presumes damage to Toler by mere publication of the defamatory remarks.
Toler therefore argues that the only true issue in this matter was the burden Toler
had to meet to overcome the qualified privilege of the Appellees. Toler now
argues that the trail court erroneously interpreted the law on this issue, and that it
gave prejudicially erroneous liability instructions to the jury.
At the outset, we note that, as set forth in Gibbs v. Wickersham, 133
S.W.3d 494, 495 (Ky. App. 2004), the appropriate standard of review for appeal of
a directed verdict is as follows:
The standard of review for an appeal of a directed verdict
is firmly entrenched in our law. A trial judge cannot
enter a directed verdict unless there is a complete absence
of proof on a material issue, or there are no disputed
issues of fact upon which reasonable minds could differ.
Where there is conflicting evidence, it is the
responsibility of the jury to determine and resolve such
conflicts. A motion for directed verdict admits the truth
of all evidence favorable to the party against whom the
motion is made. Upon such motion, the court may not
consider the credibility of the evidence or the weight it
should be given, this being a function reserved for the
trier of fact. The trial court must favor the party against
whom the motion is made, complete with all inferences
reasonably drawn from the evidence. The trial court then
must determine whether the evidence favorable to the
party against whom the motion is made is of such
substance that a verdict rendered thereon would be
“palpably or flagrantly” against the evidence so as “to
indicate that it was reached as a result of passion or
prejudice.” In such a case, a directed verdict should be
given. Otherwise, the motion should be denied.
It is well-argued and documented that a motion for a
directed verdict raises only questions of law as to
whether there is any evidence to support a verdict. While
it is the jury’s province to weigh evidence, the court will
11
direct a verdict where there is no evidence of probative
value to support the opposite result and the jury may not
be permitted to reach a verdict based on mere speculation
or conjecture.
Gibbs v. Wickersham, 133 S.W.3d 494, 495 (Ky. App. 2004)(Internal citations
omitted).
As noted, Toler argues that the circuit court should not have directed a
verdict for Sud-Chemie on the basis of its qualified privilege defense. In making
this argument, Toler acknowledges the seminal case of New York Times v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d. 686 (1964) articulated a
constitutional privilege under the First and Fourteenth Amendments for those who
write or speak about a public official.14 Therein, the Court held that in order to
recover for defamation, a public official suing a media defendant must prove actual
malice, which the Court defined as knowledge that the statements at issue were
false or with reckless disregard of whether they were false or not. In Cargill v.
Greater Salem Baptist Church, 215 S.W.3d 63 (Ky. App. 2006), our courts
extended the same First Amendment protections of the media to churches when
writing or speaking about public officials or figures.
14
The Court later extended this privilege to “otherwise private individuals” if caught up in a
matter of general or public interest. See Rosenbloom v. Metromedia, 403 U.S. 29, 31-32 (1971).
This ruling was later abrogated by the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),
wherein it held that the actual malice standard should not apply to individuals who were not
public figures of some sort, nor could the media invoke the constitutional protections outlined in
NY Times v. Sullivan when writing about a private individual. It opined instead that the states
were free to permit such individuals and entities to avail themselves of the full protection of the
common law of libel and slander against the media, so long as some reasonable “fault” standard
applied in such cases. In McCall v. Courier-Journal and Louisville Times Co., Inc., 623 S.W.2d
882 (Ky. 1981), our Kentucky Supreme Court chose simple negligence as the appropriate
standard to be applied in cases involving the media and “private figure” defendants.
12
Toler argues that in the matter sub judice, no churches, media
organizations, or public officials or figures are involved, thus the First Amendment
protections addressed in the aforementioned cases are inapplicable. Instead, Toler
asserts that Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 782 (Ky. 2004) is
applicable to the facts of the matter sub judice, and that the protections set forth
therein must be measured in terms of the common law of libel and slander as
opposed to the actual malice standard set forth in Cargill.
Toler asserts that under the common law of libel and slander a
defendant entitled to the defense of qualified privilege is entitled to an instruction
requiring a finding of malice as a condition to recover, but is not entitled to a
directed verdict if the plaintiff proves the falsity of the defamatory publication.
Toler argues that in the matter sub judice, he proved that the defamatory
publications were false, that they were published, and that this was sufficient for
the case to go to a jury, who should have then determined whether or not qualified
privilege was a good defense. In essence, Toler argues that it was the task of the
jury and not the Court, to determine if Toler had proven the malice necessary to
overcome Sud-Chemie’s qualified privilege in this case.
In response, the Appellees assert that the directed verdict concerning
Sud-Chemie was appropriate based upon its defense of qualified privilege. The
Appellees argue that they met their burden to establish the defense of truth by a
preponderance of the evidence, and that Toler did not provide sufficient evidence
to rebut that assertion. Further, the Appellees assert that a qualified privilege exists
13
in the matter sub judice, and that Stringer and Cargill have established that one
must show “actual malice” in order to overcome a qualified privilege.
In reviewing the arguments of the parties, we note that Kentucky law
is clear that a plaintiff can establish a prima facie case of defamation by showing:
(1) defamatory language; (2) about the plaintiff; (3) which is published; and (4)
causes injury to his reputation15. Stringer at 793. Further, it is clear that truth is a
complete defense which is deeply rooted in Kentucky law. Id. at 796. Since the
law will not presume misconduct of a person, the falsity of defamatory words is
presumed. Id. Consequently, the defendant has the burden of proving truth as an
affirmative defense or “justification” by a preponderance of the evidence. Id.
Accordingly, “if the evidence supports, without contradiction or room for
reasonable difference of opinion, the defense that these [statements] were
substantially true, it would necessarily follow that the jury should have been
directed to find a verdict for the defendant, because the truth is always a complete
defense.” Stringer at 796, citing Herald Pub. Co. v. Feltner, 158 Ky. 35, 164
S.W.370, 372 (Ky. App. 1914).
Further, our courts have recognized a series of qualified or conditional
privileges, including situations where the communication at issue is one in which
the party who has an interest makes the statements to another having a
corresponding interest. See Tucker v. Kilgore, 388 S.W.2d 112, 114-5 (Ky. 1965);
and Holdaway Drugs, Inc. v. Braden, 582 S.W.2d 646, 649-50 (Ky. 1979). In such
15
As noted previously, injury to reputation is presumed in cases where the remarks at issue are
defamatory per se.
14
situations, the statements are communications within the employing company
which are necessary to its functioning. Caslin v. General Electric Co., 608 S.W.2d
69, 70 (Ky. App. 1980).
In such instances, the communication is privileged if made in good
faith and without actual malice. Id. Stringer also affirmed the existence of a
qualified privilege relating to the conduct of employees because of the common
interests implicated in the employment context. Stringer, 151 S.W.3d at 796.
Further, if a qualified privilege exists, and is not abused, there may be no recovery
for defamation. Stringer, 151 S.W.3d at 797. Certainly, we have held that the
existence of a qualified privilege is a question to be resolved by the trial court as a
matter of law. Landrum v. Braun, 978 S.W.2d 756, 757-58 (Ky. App. 1998). In so
stating, however, we note that Landrum was recently overruled by our Kentucky
Supreme Court in Calor v. Ashland Hospital Corp., 2010 WL 3374251 (Ky.
2010)(To be published), wherein the Court held that the issue of whether a
qualified privilege is waived or abused is a question properly submitted to a jury
and cannot be decided by a court as a matter of law. Further, we note that in
Stringer, the Court held that:
The significance of the defense of qualified privilege or
conditional privilege is that it removes the presumption
of malice otherwise attaching to words that are actionable
per se and thereby casts on the plaintiff a technical
burden of proof in that respect. This does not require
any greater degree of proof by the plaintiff because the
offensive character of the words still is sufficient by itself
to support an inference of malice. The practical
difference, therefore, is that in the one case the
15
instructions do not require a finding of malice as a
condition to recover and in the other they do.
Stringer, 151 S.W.3d at 797, citing Tucker v. Kilgore, 388 S.W.2d 112, 114 (Ky.
1965)(Emphasis added). Further, in addressing the connection between the falsity
of the words and the presumption of malice, the Stringer court stated:
It is clear that “when ... there is any evidence of actual
malice or malice in fact, the case should go to the jury.”
While actual malice “requires a showing of knowledge of
falsity of the defamatory statement or reckless disregard
of its truth or falsity,” “[m]alice can be inferred from the
fact of ... falsity.”
Stringer, 151 S.W.3d at 799 (internal citations omitted)16.
Thus, Toler argues that in the matter sub judice, in order to simply get
his case to a jury, he was not required to prove malice, but rather simply to raise a
sufficient issue of material fact as to whether the statements at issue were false.
Toler argues that the jury would then be the proper body to decide whether SudChemie’s defense of qualified privilege applied to Toler’s claim, that is, if the
statements at issue were made with malice.
Having reviewed the record and applicable law, we are compelled to
agree with Toler concerning this issue. Certainly, if the statements at issue were in
fact falsely attributable to Toler, they are of such a nature as to be found
16
See also, Tucker v. Kilgore, 388 S.W.2d at 114. See also McClintock v. McClure, 171 Ky. 714,
188 S.W. 867 (Ky. App. 1916): “The fact that the publication was made in a qualifiedly
privileged communication simply relieves the publication from the presumption of malice
otherwise attendant, and puts upon the [plaintiff] the burden of proving malice; but it does not
change the actionable quality of the words published, nor is there any difference in the malice in
the one case presumed but in the other to be proven ... which is merely an evidential distinction
and nothing more.”
16
defamatory per se in accordance with Louisville Taxicab, supra. The parties
unanimously agree that the making of such statements was an offense mandating
termination at Sud-Chemie. Thus, it can clearly be said, in accordance with
Louisville Taxicab, that the statements at issue in the matter sub judice, if in fact
they were falsely alleged, prejudiced Toler in the performance of his profession.
Having so found, we agree with Sud-Chemie that the qualified
privilege applies in this instance, as the statements made were internal
communications between company employees, and as the company had an interest
in addressing comments in the work place which were allegedly racist in nature.
Thus, if Sud-Chemie can establish that the qualified privilege in this instance was
not abused, in accordance with our law as referenced above, it would be entitled to
a verdict in its favor. However, ultimate entitlement to a jury verdict and whether
a directed verdict was appropriate are two different issues. We address the latter
herein.
In the matter sub judice, the statements at issue are of a purely private
concern about a private individual. Accordingly, although constitutional
protections for free speech and freedom of the press require heightened proof
requirements and other modifications to the common law of defamation, such
concerns are not implicated herein. Thus, we measure the sufficiency of Toler’s
defamation claims in light of the elements established in prima facie cases of
common law libel and slander and the defenses offered by Sud-Chemie et al. See
Stringer, supra, at 793.
17
Having reviewed Stringer and its progeny, and contemporary and
preceding opinions in depth, we believe it is clear that a qualified privilege exists
in the matter sub judice17. Accordingly, there is no question that in keeping with
Stringer and other similar holdings, Toler will ultimately have the burden of
establishing actual malice, or malice in fact to recover. However, we believe
Stringer to be equally clear that it is a task for the jury, and not the court, to
determine whether Toler had proven the malice necessary to overcome SudChemie’s qualified privilege.
Thus, in the matter sub judice, in order to establish a prima facie case
of defamation sufficient to bring his case before a jury, Toler must prove that there
existed defamatory language about himself, which was published and which
caused injury to his reputation. Having reviewed the record, we believe Toler has
met that burden in this instance. While this Court will not opine on the truth or
falsity of the statements at issue, we reaffirm the well-established principle in the
courts of this Commonwealth that the falsity of such statements is presumed. See
Stringer at 796. While truth is certainly a complete defense, in order to establish
17
To that end, we note that Sud-Chemie cites this Court to a number of cases, including Baskett
v. Crossfield, 190 Ky. 751, 228 S.W.673 (Ky. App. 1920), Stewart v. Williams, 218 S.W.2d 948
(Ky. 1949), and Edwards v. Kevil, 133 Ky. 392, 118 S.W.273, 275 (Ky. App. 1909). SudChemie argues, and this Court agrees, that these cases hold that some communications, even if
proved false, were privileged as a matter of law because they were made with good faith and in
the course of a reasonable investigation. Sud-Chemie argues, on the basis of these holdings, that
it entered proof of good faith and reasonable investigation, and that accordingly, the truth or
falsity of the statements at issue is not dispositive, and that Sud-Chemie should be insulated from
liability via qualified privilege unless Toler establishes malice. In reviewing Sud-Chemie’s
arguments in this regard, we note that each of these cases were decided before Stringer. For the
reasons stated herein, we believe that Stringer clearly stands for the proposition that the
existence of malice is a matter for the jury to address, and we so hold.
18
entitlement to a directed verdict, a defendant must support that defense with
evidence that leaves no room for contradiction or reasonable difference of opinion.
Id. Such is not the case in the matter sub judice. Certainly, reasonable minds
could differ as to the truth or falsity of the statements attributed to Toler, as the
evidence on this issue is conflicting. Accordingly, we believe the matter to have
been one appropriate for the jury and not the court to decide. Thus, this Court
finds that the directed verdict to have been in error in this instance, and we reverse.
As his second basis for appeal, Toler argues that the circuit court’s
jury instructions were prejudicially erroneous because they misstated the standard
of proof necessary to show abuse of the qualified privilege. Toler argues that
instead of applying Stringer, the court applied the actual malice standard of NY
Times v. Sullivan. Toler said he did not have to prove this constitutional actual
malice standard and that his proof was complete when he testified as to the falsity
of the defendants’ statements which were defamatory per se. Toler states that this
error was preserved both by specific objections to the court’s instructions and by
tendering instructions with the correct standard.
In response, the Appellees assert that the court did apply the Stringer
standard of proof within the jury instructions. While Toler asserts that the use of
the term “actual malice” was in keeping with the holding in New York Times, the
Appellees argue that the term “actual malice” was in fact referenced by the
Stringer court.
18
See Stringer at 796.18
Regardless, the Appellees argue that
“The communication is privileged if made in good faith and without actual malice.”
19
Stringer clearly sets forth its malice standard by stating that either (1) The
employees knew that their statements were false when they made them; or (2) The
employees acted in reckless disregard of the truth or falsity of the statements.
Stringer at 799.
In addressing this issue, we note that alleged errors regarding jury
instructions are considered questions of law which we examine under a de novo
standard of review. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275
(Ky. App. 2006)(citing Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d
440, 449 (Ky. App. 2006). Further, when examining jury instructions for error,
they must be read as a whole. Bills v. Commonwealth, 851 S.W.2d 466, 471 (Ky.
1993).
The jury instruction at issue in the matter sub judice provided that “actual malice”
may be said to exist upon proof that:
…the speaker either (1) knew the statement was
false at the time it was made or (2) acted with “reckless
disregard” as to whether the statement was true or false.
“Reckless disregard” means the speaker either (1)
entertained serious doubts as to the truth or falsity of the
statement or (2) had a high degree of awareness as to
whether the statement was probably false. (TR p. 765).
A review of Stringer reveals that the Court does make a distinction
between “actual malice” and “malice in fact.” The former requires, as the court
outlined in its instruction, either that the speaker knew the statement was false or
that the speaker acted in reckless disregard of the truth or falsity of the statement.
The latter type of malice, malice in fact, can be inferred from the establishment of
20
the falsity of the statements alone. A review of Stringer is clear that in cases where
a qualified privilege exists, which Toler does not dispute to be the case here, the
“burden of showing actual malice is put upon the plaintiff …” Stringer at 797
(Emphasis added). As the Stringer court noted, “In other words, the circumstances
under which the publication was made, if it is privileged, rebut the inference of
malice that under ordinary conditions would arise from such a publication.” Id.
Having reviewed Stringer and the standards set forth therein, we
believe the jury instructions issued by the court below to have been in keeping with
that holding. Accordingly, we decline to find error in the instruction as issued, or
to reverse on this basis, and affirm the jury verdict in favor of Appellees Ware,
Votaw, and Watson.
As his third and final basis for appeal, Toler argues that the circuit
court should not have directed a verdict for defendant Glenn Shull on the basis that
his statement did not cause any special damages to Toler. As noted, the trial court
directed a verdict for Shull upon a finding that Sud-Chemie did not rely upon his
unsigned statement in making its decision to fire Toler. Toler argues that even if
this is true, it was an improper reason to dismiss Shull from the action. Toler states
that Shull’s statement was defamatory per se, and that it was published to Ware
and Hinrichs. While Toler concedes that damages have not been proven, he argues
that special damages are not required as an element of a libel or slander claim in
that the law presumes that the publication of words which are defamatory per se
cause damage.
21
In response, Shull argues that the directed verdict entered by the court
was appropriate. He directs this Court’s attention to the fact that his “statements”
were not signed, or even written in his own hand. He asserts that these statements
were made to Ware, who transcribed them and provided them to management.
Shull argues that as management did not even know that Shull was the author of
the statement, it was therefore not considered at the time of Toler’s discharge, as
the management met with the authors of the other three statements. Shull thus
argues that in the absence of any evidence from Toler that Shull’s statement was
utilized as part of the company’s decision to terminate him, Toler is not able to
establish the injury necessary under Stringer, and that Shull was entitled to a
directed verdict.
Having reviewed the record, we are compelled to agree with Toler on
this issue. Again, turning to the elements required to establish a prima facie case
for defamation, we note that if the statements were false as Toler alleges then they
were defamatory. They were undoubtedly published, first by Shull to Ware, and
then by Ware to Sud-Chemie management, which Shull does not dispute. And, for
the reasons stated previously herein, the nature of such statements, if false, makes
them defamatory per se. Accordingly, damages are presumed. This Court is not
convinced that Sud-Chemie was not influenced and did not rely upon these
statements simply because Shull was not interviewed. The statements and
allegations were submitted to management, and were no doubt considered
22
cumulatively with the other statements. Accordingly, we believe the directed
verdict as to Shull in this instance was in error, and we reverse.
Wherefore, for the foregoing reasons, we hereby reverse the
September 1, 2009, order of the Jefferson Circuit Court granting a directed verdict
to Appellees Sud-Chemie, Inc. and Glen Shull, affirm the jury verdict in favor of
Appellees Jude Ware, Mike Watson, and Don Votow, and remand this matter for
additional proceedings not inconsistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Philip C. Kimball
Louisville, Kentucky
BRIEF FOR APPELLEE, SUD
CHEMIE, INC.:
James U. Smith, III
Oliver B. Rutherford
Louisville, Kentucky
BRIEF FOR APPELLEES, JUDE
WARE, MIKE VOTAW, GLEN
SHULL AND MIKE WATSON:
Robert M. Colone
Sellersburg, Indiana
23
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