Rupert v. Sellers , 65 A.D.2d 473 ( 1978 )

OPINION OF THE COURT

Simons, J.

The members of this court are unanimous in their opinion that the plaintiffs are entitled to recover in this action, and the opinion of Justice Card amone ably sets forth our resolution of the several issues presented by the parties. Three of us, however, do not find it necessary to predicate our decision upon the Supreme Court’s ruling that there may be no liability without fault in certain defamation actions as enunciated in Gertz v Robert Welch, Inc. (418 US 323). Indeed, for the reasons which follow we find it inappropriate to do so.

This action was tried two years after the Supreme Court decided Gertz and defense counsel in this case was familiar with it. Notwithstanding that earlier decision, counsel in this case requested the court to charge the jury on the traditional common-law rules of libel per se and the court did so without further request or exception. The law as charged thus became the law of the case not open to review in this court. Defendants now urge, for the first time, that the trial court should have applied a fault standard. Obviously the action was not tried or submitted to the jury on that theory and we should not try now to sort out the evidence and isolate statements of the charge to fit the case within some unspecified and amorphous rule unsolicited at the time of trial.

Moreover, we disagree with Justice Cardamone’s belief that Gertz, as implemented by the Court of Appeals decision in Chapadeau v Utica Observer-Dispatch (38 NY2d 196), established a rule which binds us in this case and that there may be no liability in any defamation action without proof of fault. The court in Gertz held that the States, "so long as they do not impose liability without fault * * * may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” (418 US 323, at p 347; emphasis added.) Responding to that decision New York’s highest court decided in Chapadeau that in matters "arguably within the sphere of legitimate public concern,” a plaintiff allegedly defamed could recover from a publisher or broadcaster but only upon a showing that defendant’s conduct was grossly irresponsible (Chapadeau v Utica Observer-Dispatch, supra, p 199).

Logically, it may be contended that these decisions should be extended because a private individual’s right to free speech is no less valuable than that of a publisher or broadcaster and therefore it should be protected by similar standards of proof (see, e.g., Restatement, Torts 2d, § 580B). Neither the Supreme Court nor any New York court, however, has required proof of fault before recovery is permitted in cases such as this which involve private communications by private individuals about private matters. It is particularly inappropriate for an intermediate appellate court to do so upon this record. The Court of Appeals stated well the dangers: "[I]n any defamation case it is perilous, and may be misleading, to generalize about rules unless their consideration is necessary to the disposition of the individual case. The hazard is both tempting and particularly to be eschewed when the applicable law, as in this field, is subject to fluctuating change, due in large measure to the struggles of modern courts in delineating the scope of First Amendment rights.” (Moran v Hearst Corp., 40 NY2d 1071.)

It may be that some higher court will think that this case is a suitable vehicle to modify New York’s common law of private defamation. Foreseeing that possibility, we exercise our power to review the facts (CPLR 5501, subd [c]; and see Time, Inc. v Firestone, 424 US 448) and find that there is evidence in the record sufficient to meet any predictable burden of proof, be it negligence, actual malice or some intermediate degree of fault.