Dragonas v. School Committee of Melrose9/6/2005
the parents shared a common and legitimate interest in the communication of such information. See Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950); Foley v. Polaroid Corp., 400 Mass. 82, 95 (1987); Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 558 (2003). That information would include the teacher's sense of responsibility for the students under her supervision, her temperament, and her command of the language of the country they were visiting.
A conditional privilege may, however, be lost if the defendant abuses it. The burden of proving abuse of the privilege is on the plaintiff. Foley v. Polaroid Corp., 400 Mass. at 95. "The conditional privilege is lost if the defendant (1) knew the information was false, (2) had no reason to believe it to be true, or (3) recklessly published the information unnecessarily, unreasonably, or excessively." Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. at 558, and cases cited. Lastly, the conditional privilege may be lost if the plaintiff proves the defendant acted out of malice. Malice, in this sense, occurs when the "defamatory words, although spoken on a privileged occasion, were not spoken pursuant to the right and duty which created the privilege but were spoken out of some base ulterior motive." Dexter's Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct. 217, 223 (1987). This "may consist either in a direct intention to injure another," Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 514 (1984), quoting from Retailers Commercial Agency, Inc., petitioner, 342 Mass. 515, 521 (1961), or an "intent to abuse the occasion [giving rise to the privilege] by resorting to it 'as a pretence,' . . . or 'reckless disregard' of the rights of another." Ezekiel v. Jones Motor Co., 374 Mass. 382, 390 (1978). Reckless disregard of the rights of another can occur through "unnecessary, unreasonable or excessive publication." Bratt v. International Bus. Machs. Corp., supra at 515.
Although spite or ill will can support a finding of malice, it is not enough to show that the defendant merely disliked the plaintiff or that such animosity was part of the defendant's motivation. Sack on Defamation § 9.3.1 (3d ed. April, 2005). See Restatement (Second) of Torts § 603 comment a, at 292 (1977) (" f the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege"). Instead, the conditional privilege is lost only "if the publication is not made chiefly for the purpose of furthering the interest which is entitled to protection" (emphasis supplied). Ezekiel v. Jones Motor Co., 374 Mass. at 390 n.4. See Novecon Ltd. v. Bulgarian-Am. Enterprise Fund, 190 F.3d 556, 567 (D.C. Cir. 1999) (court looks to "primary motive"). Compare Restatement (Second) of Torts § 603 comment a, at 292 (abuse of privilege if publication is "made solely from spite or ill will") (emphasis supplied).
In the instant case, there is both a "privileged" and an "unprivileged" explanation for Burke's conduct at the meeting. The privileged explanation was that he was thoroughly and honestly briefing the parents about all of his concerns regarding Dragonas's conduct and competence to ensure that they made a fully informed decision about sending their children to Germany with her. The unprivileged explanation is that he used the occasion as a pretext to demean a teacher he personally disliked, to generate parental opposition to her participation in a program that she had founded and cared deeply about, and to pressure her into retirement.
Considering the fa
Page 1 2 3 4 5 6 7 8 Massachusetts Employee Leasing Services
Employee Leasing Services
|