SEAN MCCAUSLAND v. CITY OF ATLANTIC CITY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6687-04T56687-04T5

SEAN MCCAUSLAND,

Plaintiff-Appellant,

v.

CITY OF ATLANTIC CITY, MAYOR

LORENZO LANGFORD, in his

official and personal capacities,

and BENJAMINE FITZGERALD, in his

official and personal capacities,

Defendants-Respondents.

________________________________________________________________

 

Submitted May 2, 2006 - Decided

Before Judges Kestin and Lefelt.

On appeal from the Superior Court

of New Jersey, Law Division,

Atlantic County, Docket No.

L-1725-05.

Alterman & Associates, attorneys

for appellant (Stuart J. Alterman,

of counsel; Kristofer B. Chiesa,

on the brief).

Jasinski & Williams, attorneys

for respondents (Karen M. Williams,

of counsel; Peter P. Perla, Jr.,

on the brief).

PER CURIAM

Alleging defamation, plaintiff Sean McCausland, an Atlantic City police officer and former President of the Police Benevolent Association (PBA), sued Mayor Lorenzo Langford, the City, and Benjamin Fitzgerald, formerly the City's Business Administrator. Plaintiff now appeals from Judge Perskie's order, on defendants' motion in lieu of answer, which dismissed plaintiff's complaint without prejudice to any action he may bring in the Division of Workers' Compensation. Plaintiff argues that he "pleaded a cognizable cause of action for defamation and intentional infliction of emotional distress," that the Mayor's "defamatory statements proximately caused" him harm, and that the Mayor was "not shielded by immunity" because the statements were made with actual malice "outside the scope of his employment." We reject these arguments and affirm substantially for the reasons stated by Judge Perskie in his thorough and perceptive oral decision of July 11, 2005.

In his complaint, plaintiff alleged that on April 9, 2002, the Mayor and the other defendants instigated an Internal Affairs investigation of plaintiff by claiming he was rude, loud and offensive at a City Council meeting. Plaintiff also alleged the Mayor, on February 7, 2004, in an Atlantic City Press article, referred to plaintiff as someone who has "mastered the art of suburban warfare[,] has no connection to Atlantic City, [and] has contributed nothing to the city, but takes all he can out of the city." The Mayor was also quoted as "definitely question[ing] [McCausland's] leadership as the president of the PBA." Plaintiff also alleged that on February 10, 2004, the Mayor, in a memorandum, claimed that plaintiff had lied to the Chief of Police regarding a rumored sick-out during President's Day weekend and sought disciplinary action against plaintiff. On May 19, 2004, according to plaintiff's complaint, the Mayor stated in another Atlantic City Press article that plaintiff was "persona non grata," had "lost the confidence of the rank-and-file PBA membership and [was] on his way out." The Mayor also allegedly told another police officer that plaintiff was "a piece of sh-t."

In addition, after plaintiff had expressed an interest in being assigned to the intelligence section or police personnel section, plaintiff was transferred on July 11, 2004, from the PBA office to the Police Community Partnership Unit, which was alleged to be contrary to past practices. On July 14, 2004, a police sergeant informed plaintiff that he was precluded by the Deputy Mayor from providing security outside the Mayor's office, which was a function of the Police Community Partnership Unit. As a result of this conduct and the Mayor's statements, plaintiff alleged that he has suffered severe stress and anxiety along with a tarnished reputation throughout the community.

Upon a motion to dismiss, plaintiff's complaint must be searched "'in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989) (quoting DiCristofaro V. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). Undoubtedly, Judge Perskie was well aware of this review standard and was also aware that "[w]hether the meaning of a statement is susceptible of a defamatory meaning is a question of law for the court" to resolve. Ward v. Zelikovsky, 136 N.J. 516, 529 (1994) (citing Kotlikoff v. Comm. News, 89 N.J. 62, 67 (1982)). It is, after all, the court's responsibility to distinguish non-actionable "'obscenities, vulgarities, insults, epithets, name-calling . . . verbal abuse' . . . and statements of rhetorical hyperbole" from true defamatory language. Ibid. (quoting and citing Rodney A. Smolla, Law of Defamation, 4.03, at 4-10, 4.04[1], at 4-12 (1986)).

Judge Perskie had this to say about plaintiff's defamation allegations.

[A]s any or all of these comments are they do not rise to the level that would pierce the protections that are afforded to, among others, Lorenzo Langford, in public comments. . . . I therefore do not reach the question that was briefed as to whether the actual malice standard applies or what the purpose of the statements was or even what the effect of the statements was as I am satisfied that they are not capable as a matter of law of being considered defamatory. To some extent they are opinion, to some extent while not opinion they are comments that are, and I'm referring specifically for example, mastered the art of suburban warfare or no connection to Atlantic City, contributed nothing but takes all that he can out of the city, these are what I'm going to call, for lack of a better phrase, political judgments. They may or may not be true. They are in the eye of the beholder. Even if true they do not as a matter of law adversely affect anyone's perception or could not as a matter of law adversely affect anyone's perception of the plaintiff's honesty or integrity. In fact, in some instances I accept or I assume that these attacks by the mayor probably helped the plaintiff in some people's minds. In any event, as a matter of law they do not constitute defamatory comments. Questioning his leadership as the president of the PBA falls into the same category. I don't know what to make of persona non grata or piece of shit. They are personal characterizations. Certainly as to the latter, it is at the least unpleasant and offensive. But I am not persuaded that as a matter of law that constitutes a defamatory comment.

We agree completely with Judge Perskie and find the alleged comments do not constitute actionable defamation. "'No matter how obnoxious, insulting or tasteless'" these comments may be, they are "'a part of life for which the law of defamation affords no remedy.'" Id. at 529-30 (quoting Smolla, supra, 4.3, at 4-11).

An actionable defamatory statement tends to injure a person's reputation or to deter others from having any contact with the person. Id. at 529 (citing Restatement (Second) of Torts 559 (1977)). Actionable defamatory statements must state, imply, or suggest specific facts that can be proven true or false. Id. at 531 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S. Ct. 2695, 2705, 111 L. Ed. 2d 1, 17 (1990)). We restrict defamation actions to statements that can be verified in some plausible fashion in order to avoid jury speculation that may impair a person's exercise of First Amendment rights. Ibid. None of the statements in this case met these tests, and Judge Perskie correctly dismissed plaintiff's defamation cause of action.

Therefore, like the trial judge, we also find it unnecessary to address whether the Mayor was immune from suit for making defamatory statements against a public figure such as plaintiff. See New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686, 701 (1964). This is so because the Mayor did not make any statements that can be considered defamatory under the controlling law.

In addition, Judge Perskie correctly dismissed plaintiff's claim for intentional infliction of emotional distress. Although the judge relied upon the exclusivity provision of the Workers' Compensation Act, N.J.S.A. 34:15-8, to reach his decision, we need not address this issue because we find that the allegations of statements and conduct are not actionable under the intentional infliction of emotional distress cause of action. See Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988). To be actionable under this cause of action, the Mayor's statements and conduct had to be "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Ibid. (quoting Restatement, supra, at 46 comment d). Plaintiff's allegations were not sufficiently egregious to support such a cause of action. Accordingly, plaintiff's complaint was properly dismissed.

 
Affirmed.

(continued)

(continued)

7

A-6687-04T5

May 26, 2006