STEVENS INSTITUTE OF TECHNOLOGY v. RONALD HINE, AARON LEWIT et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3574-04T23574-04T2

STEVENS INSTITUTE OF

TECHNOLOGY,

Plaintiff-Appellant/

Cross-Respondent,

v.

RONALD HINE, AARON LEWIT and

FUND FOR A BETTER WATERFRONT, INC.,

Defendants-Respondents/

Cross-Appellants.

________________________________________

 

Argued January 18, 2007 - Decided July 31, 2007

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, HUD-L-288-03.

Timothy J. O'Neill argued the cause for

appellant/cross-respondent (Windels Marx Lane &

Mittendorf, attorneys; Mr. O'Neill, of counsel and

on the brief; Charles M. Fisher, on the brief).

Edward Lloyd argued the cause for respondents/

cross-appellants (Environmental Law Clinic,

Columbia Law School, and New Jersey Appleseed

Public Interest Law Center, attorneys; Mr. Lloyd,

Renee Steinhagen and Ira Karasick, on the brief).

Diane Stolbach argued the cause for non-party

respondents Diane Gans and George Vallone

(Kraemer, Burns, Mytelka, Lovell & Kulka,

attorneys; Arnold K. Mytelka, of counsel; Ms.

Stolbach, on the brief).

PER CURIAM

Plaintiff Stevens Institute of Technology ("Stevens") appeals from trial court orders granting summary judgment to defendants Ronald Hine, Aaron Lewit and Fund for a Better Waterfront ("Fund"), as well as from various other orders entered by the trial court prior to the grant of final summary judgment. Defendants cross-appeal from the denial of their application for counsel fees, costs and sanctions. After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part and remand for further proceedings.

The disputes between the parties require that we balance the rights of plaintiff to protect its reputation and standing in the community and the rights of defendants to express their views on certain of plaintiff's activities. The disputes, moreover, occurred in the context of increasing development along the Hudson County waterfront, leaving a shrinking amount of land available either for private development or for public use.

The matter has a complex factual and procedural background which must be set forth in order to analyze the issues on appeal. Because we are considering an appeal from a grant of summary judgment, we view the facts in the most favorable light to Stevens. Atlantic Mut. Ins. Co. v. Hillside, 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).

I

Plaintiff Stevens, a private institution of higher education organized as a not-for-profit corporation, is located in Hoboken on a campus overlooking the Hudson River. The Fund is also a not-for-profit corporation. The Fund's stated purpose, according to its certificate of incorporation, is "educational and legal efforts to improve the environment, the waterfront, the quality of life in Hoboken and neighboring communities." Its by-laws authorize it to engage in efforts directed to "1) improvement of the environment and quality of life along the Hudson River; 2) promotion of a public waterfront along the Hudson River fully accessible to and for the enjoyment of the public; and 3) advocacy of appropriate development along the Hudson River." Defendant Hine is the executive director of the Fund, and defendant Lewit is the president of the Fund.

During the late 1990's Stevens began the planning for the construction of a new six-story building on campus to be known as the Babbio Center for Technology Management. The selected site contained serpentine rock, which includes the mineral chrysotile. Chrysotile contains asbestos fibers, and when chrysotile is disturbed, it tends to break along its cleavage planes, releasing asbestos fibers. Stevens, aware of the presence of serpentine rock and that construction of the Babbio building would necessitate blasting, retained consulting and environmental engineers, PMK Group, to advise it as to the best method of proceeding.

After inspecting the site and conducting two different forms of testing, PMK issued a report to Stevens in February 1999 containing a number of recommendations, including "use of constant wetting of the intact rock at the point of excavation, as well as of the waste as it is generated and during the course of its handling on-site." The report also dealt with the question of disposing of the loose rock generated by the blasting.

The waste generated by the excavation of serpentine bedrock is not classified as an asbestos-containing waste subject to prevailing asbestos waste control regulations, nor is its handling subject to prevailing asbestos contracting regulations. Therefore, the waste rock is not subject to the packaging, transport and disposal requirements promulgated by these codes for "commercial" asbestos-containing waste.

Given the potential that the handling of this material will result in the release of some amount of fugitive airborne asbestos fibers, it is recommended that the rock waste be controlled during its transport and immediately landfilled. Specifically, we recommend that the rock waste:

(i) be kept wet during transport in secured, covered vehicles; and

(ii) be transported directly to a landfill where it would be dumped and covered on a daily basis without further crushing or other processing.

We are aware that such rock waste could be subject to stockpiling at a location other than a landfill, and could foreseeably be utilized as a component of a fill or ultimately sold as a component for some other bulk commercial product. It is our opinion that the waste rock's potential to act as a source of airborne asbestos fiber release as a result of its handling away from the excavation site constitutes a liability concern motivating this disposal scheme.

Those involved in the planning and construction of the Babbio Center were aware of these recommendations. The November 27, 2001, minutes of the meeting of the planning team, which included representatives of the contractors, contain the following statements:

9. Creamer and Terminal were requested to review their excavation plan with Stevens. Creamer has requested PMK's soil/rock profile . . . to assist them in this process.

10. The site needs to be well watered to avoid excessive dust. Stevens will perform air sampling of the site to insure asbestos threshold levels are not exceeded.

The importance of watering the site was again stressed to the contractor in a memo from the physical plant director of Stevens. "As a reminder, the PMK report dated 2/5/99 recommends, 'use of constant wetting of the intact rock at the point of excavation, as well as the waste as it is generated and during the course of its handling on-site.'"

At the same time that Stevens was proceeding with the planning and development of the Babbio Center, efforts were also under way to develop the large parcel of land at the northern end of Hoboken previously occupied by the Maxwell House coffee plant. The Fund took a strong interest in the various development proposals and worked closely with two of the prospective developers, Daniel Gans and George Vallone, to see to the inclusion of public park land as part of the development. Stevens also had an interest in participating in the development of this tract, which was in very close proximity to its campus. The minutes of meetings of the Fund's board reveal that the members opposed the proposals submitted by Stevens.

In late 2000, Stevens received approval from the Hoboken Planning Board to proceed with the Babbio Center. The record before us does not contain the proceedings before that board and whether any of the defendants in this matter appeared in connection with the Stevens application.

In the initial planning stages, Stevens envisioned the construction of a multi-level garage accompanying the Babbio Center. According to the record before us, Stevens revised its plans in this regard in light of the opposition such a garage generated in the surrounding community and replaced the multi-level garage with a one-level garage. Stevens nonetheless hoped in the future to obtain approval for such a multi-level garage and wanted to build the Babbio Center with a forty-foot foundation wall with that prospect in mind. In October 2001 the president of Stevens wrote the following letter to Hoboken's zoning officer:

As you know, Stevens Institute of Technology recently received Planning Board approval for a new Management Building with a 105-space garage structure below the building.

Presently, we are hoping to construct a deeper foundation to the garage structure, with an overall depth of approximately 40 feet. Stevens takes this action at its own risk. We hope in the future to include this foundation area as part of a soon-to-be adjacent garage, which will be the subject of a new application.

If Stevens does not receive approval for the new garage structure, then the foundation of the Management Building will be nothing more than a foundation, with no access on entry points. No action by you or any city official to permit this foundation will be deemed by Stevens to be an approval to construct anything more than the approved 105-space garage structure below the Management Building. Further, Stevens will not hold the city or any official responsible for Stevens' potential inability to construct a larger garage structure, if same is denied by the Planning Board.

There is no indication in the record before us that Hoboken expressed any reservations to this approach, which we infer involved greater excavation and more blasting than would otherwise be necessary.

Construction did not commence immediately upon receipt of that approval. It was not until March 2002 that Stevens received an initial blasting permit to commence excavation of the foundation for the Center. Prior to commencing any blasting, the contractor notified the various entities that would potentially be affected, including the North Hudson Sewer Authority, Hoboken's Department of Environmental Services, Verizon, Hoboken's Water Company, Public Service Electric & Gas, and the Army Corps of Engineers. There is no indication in the record that the blasting continued beyond the six- to eight-week period initially envisioned.

Blasting commenced on the morning of March 11, 2002. The site, however, was not watered, as had been consistently recommended. According to the deposition of Roger Cole, who was the Vice President of Facilities and Support Services for Stevens, this was due to certain drought restrictions that had been imposed. Stevens had requested a waiver of these restrictions to permit watering of the site, but its request was denied. Stevens appealed that denial and was ultimately able to obtain approval from the Hoboken Board of Health and the New Jersey Department of Environmental Protection ("DEP") to commence watering.

Neighbors in the vicinity of the work observed dust clouds being generated by the blasting and contacted defendant Hine who began to investigate. He learned that the site contained serpentine rock and contacted several geologists to learn more about the nature of that substance. As a result of the information he obtained, Hine attempted to contact Cole, leaving a message asking whether Stevens was testing and monitoring for the presence of asbestos. He also contacted a member of the Hoboken city council.

On the morning of April 8, 2002, Cole returned Hine's call. Hine inquired about whether Stevens was monitoring the site, and Cole responded, "No, I don't think so, but let me get back to you." Hine did not wait for any further information but posted an entry on the Fund's website entitled, "Stevens Institute of Technology Blasts Away Historic Serpentine Rock at Castle Point Possibly Sending Asbestos Into Air." Within the entry, Hine stated that Stevens had been blasting and excavating serpentine rock and that the "rock usually contains asbestos, sometimes in a form considered highly dangerous. No precautions or monitoring has taken place as Terminal Construction Company detonates explosives . . . each weekday, sending clouds of dust high in the air. . . . The major health risks linked to asbestos are asbestosis, mesothelioma and lung cancer."

Later that afternoon, however, Cole telephoned Hine and informed him that he had looked into the matter and learned that monitoring was, in fact, taking place. The following day, Hine modified his earlier entry on the Fund website by removing the sentence which had stated that no "precautions or monitoring has taken place." He did not, however, indicate in any way that the entry had been amended.

Members of the board of the Fund met that day and discussed the issue. The minutes of that meeting contain the following statement:

1) Steven's garage excavation - Procedures and protocols have not been taken by Steven's.

Ron [defendant Hine] discovered the rock they are blasting contains asbestos. Aaron [defendant Lewit] collected a sample of dust and sent to be tested. Asbestos is dangerous when it becomes airborne. Steven's did not report any of this to any governmental agency. They have been monitoring, and there was one day where the numbers spiked and other days with significant levels in the air. Steven's is not wetting down the site. Several government oversight agencies are denying jurisdiction because it is naturally occurring. What it comes down to is this: whether or not there were significant levels or posed minimal health hazard, Stevens told no one and tried to cover it up, denying the public's right to information and thereby taking away the public's choice to take precautions, such as close windows, not walk by, take shoes off at the door, etc.

These same minutes stated that Stevens was planning to build a garage with space for seven hundred fifty cars without the approval of the planning board and that the asbestos issue "damages Stevens credibility."

On April 9, Hine made additional entries to his article on the Fund's website, stating "[a] recent test by a Stevens' consultant confirmed that the dust surrounding the construction site contains high levels of asbestos" and that "[n]o precautions have been taken thus far to water down the excavation site or, during the blasting, to prevent the dust from spreading throughout the neighborhood."

Shortly thereafter, Michael Mooney, a science teacher, happened to drive by the scene en route to picking up his young son who was attending an event at a nearby elementary school. Mooney recognized the presence of serpentine rock and was aware that it contained asbestos. He spoke to a teacher at the school and said the children should not be taken to any of the parks near the excavation site while the blasting continued. Mooney also met defendant Lewit and mentioned the issue to him. Lewit obtained samples, and testing confirmed the presence of asbestos.

A small percentage of the air samples that were taken in the same time frame also revealed the presence of asbestos. Although the levels exceeded that permitted by the federal Environmental Protection Agency's Asbestos Hazard Emergency Response Act, 15 U.S.C.A. 2641 to 2654, they did not exceed the permissible exposure limit set by the Occupational Safety and Health Administration ("OSHA"). The record contains subsequent reports prepared by Benjamin Safirstein, M.D., and David M. Kichula, C.I.H., during the course of this litigation. Dr. Safirstein served as plaintiff's expert in the field of pulmonary medicine while Mr. Kichula was plaintiff's expert in industrial hygiene. Their reports concluded that the excavation, and the slight release of asbestos, did not pose a health risk or hazard.

On April 18, Hine, on behalf of the Fund, wrote to the mayor of Hoboken. His letter included the following:

It is urgent that you respond to the health hazard posed by the continued blasting and excavation of the parking garage site . . . . There are many unanswered questions as Stevens . . . continues to suppress information and minimize the problem. For a full month, from when the blasting began on March 11 to April 12, Stevens . . . withheld from the public their knowledge that this operation was sending asbestos into the air, occasionally at levels exceeding the federal [EPA] standards. During this same time period, Stevens failed to take the most basic of precautionary measures, refusing to hydrate the site and control the dust.

He also wrote that "[n]early every day significant amounts of chrysotile (white asbestos) have been detected by Stevens' own monitoring system" and that "[w]e have spent considerable time talking to state and local officials regarding this problem."

The blasting activities naturally resulted in waste rock requiring disposal. It was initially trucked by Empire Ltd. to a temporary stockpile area for clean soil or rock located in Carlstadt, a site within the jurisdiction of the New Jersey Meadowlands Commission. For reasons evidently not connected to these defendants, the owner of adjoining premises became concerned about this stockpiling, and the Commission was contacted. The Commission issued a cease and desist order, prohibiting the dumping of any more asbestos-containing rock. The Commission rejected PMK's contention that the waste rock qualified as clean fill, and Stevens was ordered to wet and cover the existing waste with a minimum of two feet of clean fill. It also had to make alternate arrangements to dispose of the balance of the waste rock.

On May 3, 2002, the Jersey Journal published two short pieces on the blasting operation, one by Cole and one by Lewit. They ran side by side on a page headed "Opinion", with the further subheading "In Your Opinion." In Lewit's article, he stated "toxic dust settled on Sinatra Park and the Little League Field, [and] went into the air over Hoboken." He also wrote that "[w]hile contaminating our air, Stevens . . . pursues the purchase of the remaining waterfront properties. Stevens . . . now appears to be the latest waterfront developer to thwart Hoboken's vision of a continuous waterfront park."

The following week, on May 12, the Fund's website published another letter which stated in pertinent part:

Remember that windstorm a couple of weeks ago, which blew all that filthy grit into your skin, eyes, and lungs? Thanks to excavating by the Stevens Institute of Technology permitted by the City of Hoboken, that could have contained asbestos.

On June 9, the Hoboken Reporter published a letter to the editor from Hine in which he wrote:

[t]he removal of 20 to 30 thousand cubic yards of serpentine rock at Stevens . . . has posed a serious health crisis for our community. Recent tests commissioned by the New Jersey Meadowlands Commission . . . reveal asbestos levels as high as 15 percent in this rock. Two samples contained 10 percent actinolite, a potent carcinogen, whose sharp needle-like fibers can readily become airborne.

. . . .

This is perhaps our first lesson in the dangers posed by the partnership between the City of Hoboken and Stevens . . . . This is a serious, serious problem that demands forceful action on the part of the City, Stevens, the State DEP and other agencies that are obligated to protect our health and safety.

In September, Hine wrote to the Hoboken Planning Board, complaining that the actual construction under way did not conform with the approvals Stevens had previously received. We interpret this letter to refer to the decision on Stevens' part, which we noted earlier, to construct a forty-foot foundation wall for the Babbio Center. In December, Hoboken issued a stop work order but eventually permitted completion of the Babbio Center itself.

On December 22, the Hoboken Reporter published another letter from Hine, in which he stated that "[t]he excavation provided further evidence of Stevens' arrogance as they failed to notify the public of the potential asbestos hazard and proceeded to dump this hazardous material in the Meadowlands illegally."

In January 2003, Stevens commenced this suit, seeking damages for defamation, invasion of privacy and prima facie tort. Defendants filed their answer and in April moved for partial summary judgment, dismissing the claims for prima facie tort and invasion of privacy. Plaintiff cross-moved to compel discovery.

At the conclusion of argument on these motions in June, the trial court granted partial summary judgment, dismissing the claim of invasion of privacy but denied the motion with respect to prima facie tort. As to discovery, the trial court limited defendants' obligation to produce documents to those published between January 1, 2000, and January 15, 2003, the date plaintiff filed its complaint. In addition, the trial court permitted only the depositions of defendants Hine and Lewit.

In November, plaintiff returned to the trial court, seeking discovery from Gans and Vallone, evidently to explore whether there had been an understanding of some sort between the two developers and defendants that defendant Fund would have a significant, if not exclusive, role in administering the park they were proposing in conjunction with the Maxwell House site. According to plaintiff, defendants were motivated by this potential to oppose Stevens' efforts to become involved in the development of the tract. In January 2004, the trial judge denied the request to depose the two men and in March refused a request for reconsideration.

Defendants filed another motion for summary judgment, seeking to dismiss plaintiff's claims for defamation and for prima facie tort. Plaintiff identified ten statements it deemed defamatory: 1) Hine's posting of April 8, 2002, on the Fund's website that "no precautions or monitoring" was being done in connection with the blasting; 2) Hine's postings of April 11 that the "dust surrounding the construction site contains high levels of asbestos" and 3) that "[n]o precautions have been taken thus far to water down the excavation site or, during the blasting, to prevent dust from spreading throughout the neighborhood; 4), 5) and 6) those portions of Hine's letter of April 18, to Hoboken's mayor, set forth earlier in this opinion; 7) Lewit's statement to the Jersey Journal of May 3, that "toxic dust settled on Sinatra Park and the Little League field [and] went into the air over Hoboken"; 8) the May 12 letter published on the Fund's website, set forth earlier; 9) Hine's June 9 letter to the editor of the Hoboken Reporter, set forth earlier; and 10) Hine's December 22 letter to the Hoboken Reporter, set forth earlier.

The trial court heard extensive oral argument on defendant's motion. Indeed, the argument spanned three days, and the trial court made rulings on various aspects of the motion at different points throughout the argument. In sum, the trial court held that seven of the ten statements identified by Stevens as defamatory were either true or were not verifiably false statements of fact but three of the statements were, for purposes of summary judgment, reasonably susceptible of false and defamatory meaning, and possibly made with malice, that is, published knowingly or with reckless disregard for the truth. It nonetheless granted summary judgment with respect to the defamation count, finding that Stevens had failed to present a sufficient issue of fact as to whether these three statements harmed Stevens' reputation or caused it other damages.

The trial court, however, denied defendants' motion for summary judgment on the prima facie tort claim and granted plaintiff's motion to amend that count. It also extended discovery for an additional ninety days on that count.

Shortly thereafter, Stevens again renewed its motion to depose Gans and to compel him to produce certain documents. The trial court again denied the application to depose Gans but did permit plaintiff to serve him with ten interrogatories. Plaintiff's subsequent motion to compel more specific answers to its interrogatories was denied.

In December, defendants renewed their motion for summary judgment with respect to the remaining claim of prima facie tort. That motion was granted in February, and this appeal followed.

On appeal, Stevens contends that the trial court erred in dismissing its claim of prima facie tort, in dismissing its claim of defamation and in limiting its ability to take discovery.

II

We turn first to plaintiff's claim that the trial court erred in dismissing its claim of prima facie tort. In this count of its complaint, Stevens recited the following allegations as the basis for its claim: that defendants had engaged in a course of wrongful conduct designed to harass and discredit it, disrupt its activities, harm its business relationships, and generally make it difficult for it to function in the Hoboken community; that they had maliciously published or persuaded or attempted to persuade others to publish false statements in an effort to create a public health scare and harm its reputation in the community; that they had routinely made complaints to government officials to incite controversy, generate investigatory action and stop construction of the Babbio Center; and that they had prodded journalists to investigate Stevens and publish derogatory information about it.

A prima facie tort "is designed to redress unjustified 'intentional, willful or malicious harms' where no adequate common law or statutory remedy exists." Silvestre v. Bell Atl. Corp., 973 F. Supp. 475, 485 (D.N.J. 1997), aff'd without opinion, 156 F.3d 1225 (3d Cir. 1998). See also Aikens v. Wisconsin, 195 U.S. 194, 204, 25 S. Ct. 3, 5, 49 L. Ed. 154, 159 (1904) (Justice Holmes wrote that "prima facie, the intentional infliction of temporal damages is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape").

This court has recognized the existence of a prima facie tort cause of action. Trautwein v. Harbourt, 40 N.J. Super. 247, 266 (App. Div.), certif. denied, 22 N.J. 220 (1956). See also Perry v. Gold & Laine, P.C., 371 F. Supp. 2d 622, 627 (D.N.J. 2005). In Trautwein, the court rejected a cause of action for malicious exclusion from membership in a fraternal organization, but found "no difficulty with the theoretical concept . . . that intentional, willful or malicious harms of any kind are actionable unless justified." Supra, 40 N.J. Super. at 266.

However, in Taylor v. Metzger, 152 N.J. 490, 522-23 (1998), a case involving a claim of racial discrimination under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42, the Supreme Court reviewed the theoretical basis of the prima facie tort doctrine as well as the reasoning of Trautwein and declined to recognize a claim in prima facie tort under the facts of that case. The Court defined prima facie tort, in accordance with the Restatement, as proving that "[o]ne who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor's conduct does not come within a traditional category of tort liability." Id. at 522 (quoting Restatement (Second) of Torts 870 (1979)).

The Taylor Court explained that "[a] prima facie tort cause of action would encompass the 'intentional, willful and malicious harms' that fall within the gaps of the law. Prima facie tort claims have been most frequently permitted only in the limited situations in which plaintiffs would have no other causes of action." Id. at 523 (citation omitted). The Court reasoned that

[t]he LAD prohibits racial harassment in the workplace and, in this case, forbids the conduct of defendant that allegedly gives rise to the prima facie tort claim. Moreover, the tort of intentional infliction of emotional distress encompasses the conduct that in these circumstances would be targeted by a claim based on prima facie tort. Even if allegations of racial harassment were insufficient to state an LAD claim or a claim of intentional infliction of emotional distress, a prima facie tort cause of action should not be used to overcome those deficiencies. Prima facie tort should not be invoked when the essential elements of an established and relevant cause of action are missing. "Prima facie tort should not become a 'catch-all' alternative for every cause of action which cannot stand on its legs."

[Ibid. (citations and quotation omitted, emphasis added).]

We consider the Taylor analysis wholly applicable here. Plaintiff's claim of prima facie tort is essentially encompassed within its claim of defamation. Whether or not plaintiff prevailed upon its claim for defamation is immaterial to the analysis. The tort of defamation afforded plaintiff a legal avenue to seek to redress the wrongs allegedly caused by defendants' conduct, and there was thus no "gap" to fill through a prima facie tort claim.

Further, plaintiff's claim of prima facie tort was predicated upon the same conduct as its claim of defamation. LoBiondo v. Schwartz illustrates the deficiency in this regard with plaintiff's prima facie tort claim. 323 N.J. Super. 391 (App. Div.), certif. denied, 162 N.J. 488 (1999). In that case, the plaintiffs sued the defendants, who had opposed expansion of a beach club owned by the plaintiffs, alleging defamation, intentional interference with business advantage and intentional infliction of emotional distress. Id. at 395-96. The jury returned a verdict in the plaintiffs' favor on all three counts. Id. at 405. On appeal, we reversed, finding no evidence of malice that would support a defamation claim. Id. at 413. We held that the dismissal of the defamation claim also demanded dismissal of the remaining claims. Id. at 417.

[I]f an intentional tort . . . is predicated upon the same conduct on which the defamation count is predicated, the defamation cause completely comprehends the malicious interference cause. That is to say, if the alleged defamation is not actionable, then its consequences are also not actionable because the conduct that caused those consequences was privileged. . . . It would obviously be intolerably anomalous and illogical for conduct that is held not to constitute actionable defamation nevertheless to be relied on to sustain a different cause of action based solely on the consequences of that alleged defamation. Thus, since there was no actionable defamation here, there can be no claim for damages flowing from the alleged defamation but attributed to a different intentional tort whose gravamen is the same as that of the defamation claim.

[Ibid. (citations omitted).]

From our review of the record, we are satisfied that, contrary to plaintiff's argument, the same conduct of defendants underlies plaintiff's claim of prima facie tort as underlies its claim of defamation.

It would make no sense . . . to deem certain

expressions immune from suit as libel, and then find them sufficient in the identical factual context to constitute a prima facie tort; or to make truth an absolute defense in libel and defamation suits, but then to allow a prima facie tort claim based on the same facts merely because defendant was motivated by ill will and caused economic injury.

[Nat'l Nutritional Foods Ass'n. v. Whelan, 492 F. Supp. 374, 384 (S.D.N.Y. 1980).]

We recognize that the trial court, in granting summary judgment on the claim of prima facie tort, expressed the view that this court might expand the scope of a prima facie tort "to include factual situations in which other torts brought on the same facts fail." We decline to do so. We consider such an expansion inappropriate in light of the views expressed by our Supreme Court in Taylor v. Metzger, supra. We are satisfied the trial court correctly granted summary judgment on plaintiff's claim of prima facie tort.

III

We turn now to plaintiff's claim that the trial court erred in dismissing its claim of defamation. There are several aspects to plaintiff's argument. Initially, they contend that the trial court erred in treating two of the statements in issue as statements of opinion, and thus not subject to a claim of defamation.

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)). See also Pressler, Current N.J. Court Rules, comment 5 on R. 4:46-2 (2007) ("summary judgment technique is encouraged in defamation actions"). Moreover, "[i]n order to survive a summary judgment motion, a plaintiff must produce substantial evidence of actual malice." Hopkins v. City of Gloucester, 358 N.J. Super. 271, 279 (App. Div. 2003).

"Defamation imposes liability for publication of false statements that injure the reputation of another." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 765 (1989). "[T]he elements of a defamation claim are: (1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher." DeAngelis, supra, 180 N.J. at 13 (citing Restatement (Second) of Torts, supra, at 558).

False statements about public officials or, in this case, a public institution are not actionable unless published with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706-07 (1964); DeAngelis, supra, 180 N.J. at 13; Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 165 (1999). "To satisfy the actual malice standard, [the] plaintiff must establish by clear and convincing evidence . . . that [the] defendant published the statement with 'knowledge that it was false or with reckless disregard of whether it was false.'" DeAngelis, supra, 180 N.J. at 13 (quoting Sullivan, supra, 376 U.S. at 279-80, 285-86, 84 S. Ct. 726, 729, 11 L. Ed. 2d at 706-07, 710) (citation omitted); Gulrajaney v. Petricha, 381 N.J. Super. 241, 255 (App. Div. 2005). "A publisher's hostility or ill will is not dispositive of malice." DeAngelis, supra, 180 N.J. at 14.

"Whether the meaning of a statement is susceptible of a defamatory meaning is a question of law for the court." Ward v. Zelikovsky, 136 N.J. 516, 529 (1994). In determining whether statements are defamatory, courts "must consider the content, verifiability, and context of the challenged statements." Ibid. "The 'content' analysis requires courts to consider the 'fair and natural meaning that will be given [to the statement] by reasonable persons of ordinary intelligence.'" DeAngelis, supra, 180 N.J. at 14 (quoting Ward, supra, 136 N.J. at 529 and Romaine v. Kallinger, 109 N.J. 282, 290 (1988)). In that regard, while the "use of epithets, insults, name-calling, profanity and hyperbole may be hurtful to the listener and are to be discouraged, . . . such comments are not actionable." Ibid. (citing Ward, supra, 136 N.J. at 529-30). An "analysis of verifiability requires courts to determine whether the statement is one of fact or opinion," with statements of opinion enjoying absolute immunity as a matter of constitutional law. Ibid.

Plaintiff asserted that the statement of defendant Hine in his letter of April 18 to Hoboken's mayor that the excavation site was a health hazard and his statement in his June 9 letter to the Hoboken Reporter that the excavation posed a "serious health crisis" were defamatory. The trial court found these statements to be statements of opinion and thus not actionable. Plaintiff contends they were demonstrably false statements of fact.

"A factual statement can be proved or disproved objectively while an opinion statement generally cannot." Ibid.

Only if the statement "suggested specific factual assertions that could be proven true or false could the statement qualify as actionable defamation." The more fact based the statement, the greater likelihood that it will be actionable. Conversely, where the statement consists of "[l]oose, figurative or hyperbolic language, [it] will be . . . more likely to be deemed non-actionable as rhetorical hyperbole or a vigorous epithet."

[Id. at 14-15 (citations omitted).]

"Pure" expressions of opinion on matters of public concern are protected and are not actionable. Kotlikoff v. Cmty. News, 89 N.J. 62, 68-69 (1982).

Here, the trial court correctly characterized these two statements in Hine's letters of April 18 and June 9 as expressions of opinion by Hine. Defendants were told by several reliable sources that the asbestos released during blasting could pose a health hazard. That plaintiff's expert reports belie that conclusion does not establish a claim for defamation. Statements premised on matters that are subject to scientific debate are generally considered statements of opinion and not capable of having a defamatory meaning. Freyd v. Whitfield, 972 F. Supp. 940, 945-46 (D. Md. 1997).

We are persuaded, nonetheless, that there is merit to plaintiff's contention that the court should not have granted summary judgment on this issue when the time for discovery had not yet elapsed. By the time the trial court ruled on defendants' motion for summary judgment, plaintiff had not completed deposing defendant Hine. The trial court may have been skeptical about plaintiff's ability to produce sufficient evidence in a continued deposition to defeat defendants' motion. Plaintiff should not, however, have been deprived of the opportunity to do so. Standridge v. Ramey, 323 N.J. Super. 538, 547 (App. Div. 1999).

We are also persuaded that there is merit to plaintiff's contention that the trial court erred in concluding that it had presented insufficient evidence of damage. In connection with defendants' motion, plaintiff pointed to its interrogatory answers to the effect that it had suffered mitigation damages, that is, its employees were forced to divert considerable time and energy at the expense of Stevens in order to respond to the charges put forth by defendants. Plaintiff contended that its employees were compelled to attend meetings of the City Council and the Planning Board to address defendants' statements; to reply to a complaint defendants filed with OSHA; and to respond to the Commission's actions in refusing to accept further waste rock and ordering the placement of a two-foot earthen cover over the material already in place.

The trial court deemed this insufficient for failure to detail the employees in question and the amount of loss Stevens incurred. We are unable to agree. Initially, the parties have not pointed us to any reported New Jersey authority which would preclude such mitigation damages in a defamation suit, and we are unable to perceive a reason in logic or policy why they should not be deemed a proper item of damage. The Court of Appeals for the Third Circuit, applying New Jersey law, concluded that New Jersey would allow such mitigation damages. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1150 (3d Cir. 1990).

If a party has a valid claim for defamation and has expended time and effort to lessen the damage to its reputation, it should be compensated for those efforts. A failure to do so would not make it whole. Defendants were fully entitled to explore the nature of those damages in discovery; their failure to do so should not serve to plaintiff's detriment.

IV

Plaintiff's remaining argument is that the trial court erred in precluding it from deposing Gans and Vallone. We agree, particularly in the context of this matter, in which plaintiff contended that defendants' opposition to this project sprang in large measure from defendants' expectation that they would benefit from the development proposed by Gans and Vallone. That Gans and Vallone ultimately did not proceed with this development does not detract from the motives posited by Stevens. We consider the substitute put forth by the trial court, the submission of ten written interrogatories, to be an unsatisfactory technique to attempt to obtain sufficient information to support plaintiff's claim (if, indeed, it will be able to do so at all.)

We are sensitive, as was the trial court, to the need to protect Gans and Vallone from harassing and intrusive questioning. That need should be met, however, by proper limitations upon the scope of their depositions, not by preventing them entirely.

V

Defendants have cross-appealed from the trial court's denial of their application for sanctions and counsel fees of $861,800. The trial court denied the application on the ground that plaintiff's claims were not frivolous. In light of the fact that we have determined that the matter must be remanded to the trial court for further proceedings on plaintiff's defamation claim, we are unable to conclude that this litigation may fairly be characterized as frivolous for purposes of N.J.S.A. 2A:15-59.1 and R. 1:4-8. The trial court's order in that regard is affirmed.

VI

Any party reviewing this matter cannot escape noticing the acrimony with which this litigation has been conducted. Litigation is, by definition, an adversarial process, and we recognize that both sides have a great deal at stake. A long-established institution of higher learning has been accused of acting in gross disregard of the public health and of various incidents of deceit and lack of candor. An organization ostensibly organized to seek a better environment for its community has been accused of disregarding the truth in favor of its own self-interest. We trust, nonetheless, that the parties and their counsel will strive to conclude the remand proceedings swiftly, reasonably and professionally.

So much of the Order of July 29, 2004, as granted summary judgment to defendants on Count 2 of the complaint sounding in defamation is reversed and the matter remanded to the trial court. The Order of February 6, 2005, granting summary judgment to defendants on the claim of prima facie tort is affirmed. The Order of July 24, 2005, denying defendants' motion for fees, costs and sanctions is affirmed.

On the appeal, the orders under review are affirmed in part and reversed in part and the matter remanded to the trial court for further proceedings. On respondents' cross-appeal, the order under review is affirmed. We do not retain jurisdiction.

 

It was undisputed below that plaintiff was a "public institute" and that the actual malice standard applied.

The portion of Hine's letter of April 18 at issue stated:

[i]t is urgent that you respond to the health hazard posed by the continued blasting and excavation of the parking garage site . . . . There are many unanswered questions as Stevens . . . continues to suppress information and minimize the problem. For a full month, from when the blasting began on March 11 to April 12, Stevens . . . withheld from the public their knowledge that this operation was sending asbestos into the air, occasionally at levels exceeding the federal . . . [EPA] standards. During this same time period, Stevens failed to take the most basic of precautionary measures, refusing to hydrate the site and control the dust.

The June 9 letter stated:

[t]he removal of 20 to 30 thousand cubic yards of serpentine rock at Stevens . . . has posed a serious health crisis for our community. Recent tests commissioned by the New Jersey Meadowlands Commission . . . reveal asbestos levels as high as 15 percent in this rock. Two samples contained 10 percent actinolite, a potent carcinogen, whose sharp needle-like fibers can readily become airborne.

. . . .

This is perhaps our first lesson in the dangers posed by the partnership between the City of Hoboken and Stevens . . . . This is a serious, serious problem that demands forceful action on the part of the City, Stevens, the State DEP and other agencies that are obligated to protect our health and safety.

(continued)

(continued)

33

A-3574-04T2

July 31, 2007