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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. MacDonald v. Riggs (08/31/2007) sp-6152
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JUDY MACDONALD, | ) |
| ) Supreme Court No. S- 12025 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 1JU-03-228 CI |
| ) | |
| JACK RIGGS and MERLE G. WILSON, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6152 - August 31, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Michael A. Thompson, Judge.
Appearances: Z. Kent Sullivan, Baxter Bruce
Sullivan P.C., Juneau, for Appellant. Jack
L. Riggs, pro se, Anchor Point.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
FABE, Chief Justice, with whom BRYNER, Justice, joins,
dissenting.
I. INTRODUCTION
Judy MacDonald sued Jack Riggs for assault, battery,
false imprisonment, and intentional infliction of emotional
distress. The jury found for Riggs on all claims and awarded him
$35,000 in damages from MacDonald on his defamation counterclaim.
MacDonald appeals the superior courts denial of her motion for
judgment notwithstanding the verdict (JNOV) on the counterclaim.
With respect to the three arguments that MacDonald
presents, we conclude as follows:
(1) there was sufficient evidence regarding defamatory
statements by MacDonald to create a jury question as to liability
for defamation;
(2) MacDonalds statute of limitations defense fails because
the date of Riggss counterclaim relates back to the date of
MacDonalds complaint; and
(3) since MacDonalds defamatory statements are slander per
se, an award of damages could be made without proof of actual
damages.
II. FACTS AND PROCEEDINGS
The City of Tenakee Springs passed a local ordinance
prohibiting the use of motorized vehicles in many areas in and
around the town. This lawsuit resulted from a dispute over
whether the ordinance prohibited the use of a motorized
wheelbarrow. Judy MacDonald, then a sixty-four-year-old widow,
regularly used the wheelbarrow in question to haul groceries and
supplies on a road that provided the only access to her property
from a nearby boat landing. On one occasion she drove an
excavator up the road. In 2001 the City of Tenakee Springs
created a legal research committee to investigate the legality of
the use of the wheelbarrow and the excavator on the road and
appointed MacDonalds neighbor, Merle Wilson, chair.
After the committee was formed, Wilson took it upon
himself to personally impound the wheelbarrow. In the course of
the impoundment he assaulted MacDonald, striking her with either
a logging chain or the metal end of a dog leash. Wilson also
attempted a citizens arrest, ostensibly because MacDonald tried
to assault him, and took MacDonald to his nearby house. At trial
Wilson claimed that his actions were in self-defense.
There was a factual dispute at trial over the extent to
which Jack Riggs was involved. MacDonald claims that Riggs, an
ex-boyfriend, threatened her with a rifle during the assault and
that after the assault both Riggs and Wilson forced her to return
to Wilsons house. Riggs and Wilson claim that Riggs did not
appear at the scene until after the assault occurred and that he
was unarmed. Riggs also claims that his actions after the attack
were aimed at assisting her with her injuries.
After the attack MacDonald left Wilsons house and made
her way to a nearby beach where other neighbors were present. A
neighbor took her by boat into the center of town, where she was
seen by local EMTs and had her injuries photographed. The EMTs
flew her to a hospital in Juneau for additional treatment. In
Juneau she was diagnosed with a skull fracture and transferred to
Harborview Hospital in Seattle. She was discharged after two
days at Harborview but remained in a hotel in Seattle with her
daughter for a week in case she needed followup treatment. At
trial Wilson suggested that MacDonalds injuries were not as
severe as she claimed.
Wilson pled nolo contendere to assault and received a
sentence of six months in jail and four years probation. Riggs
was not charged with assault. After the assault, the City of
Tenakee Springs initiated a lawsuit against MacDonald to enjoin
her from using the motorized wheelbarrow. This suit was
eventually settled in favor of MacDonald. MacDonald also
obtained a protective order against Riggs.
With respect to the lawsuit resulting in this appeal,
MacDonald originally brought claims of assault, battery, false
imprisonment, and intentional infliction of emotional distress
against Wilson, individually and in his official capacity as
Chairman of the Tenakee Springs Legal Research Committee, the
City of Tenakee Springs, and Riggs. MacDonald also sued the
parties listed above and Mayor Vicki Wisenbaugh, individually and
in her official capacity, under 42 U.S.C. 1983. Riggs
counterclaimed for defamation. The City of Tenakee Springs,
Vicki Wisenbaugh, and Wilson, in his official capacity only,
settled with MacDonald. Since Wilson had pled nolo contendere in
his criminal case, the superior court granted summary judgment
against him on MacDonalds claims of assault and battery. The
jury awarded MacDonald $210,720.74 in damages from Wilson as a
result of the assault. The jury found for Riggs on the claims
against him and awarded him $35,000 in damages from MacDonald for
his defamation counterclaim. MacDonald made motions for a
directed verdict and JNOV on the defamation counterclaim, both of
which were denied. She now appeals the denial of her motion for
JNOV.
III. DISCUSSION
When reviewing the denial of a motion for JNOV, our
role is not to weigh conflicting evidence or judge . . . the
credibility of the witnesses, but is rather to determine whether
the evidence, when viewed in the light most favorable to the
nonmoving party, is such that reasonable men could not differ as
to their judgment.1
MacDonald argues that there was no evidence of
unprivileged defamatory statements at trial and that even if
there were such evidence the statements would be time-barred by
the statute of limitations. She also argues that Riggs presented
no evidence that he suffered actual harm resulting from the
defamatory statements.
A. Reasonable Jurors Could Find that MacDonald Made
Unprivileged Defamatory Statements.
MacDonald argues that Riggs failed to elicit or provide
testimony addressing any of the elements necessary to prove a
defamation claim. The elements of defamation are (1) a false and
defamatory statement; (2) an unprivileged publication to a third
party; (3) fault amounting at least to negligence on the part of
the publisher; and (4) the existence of either per se
actionability or special harm.2 It is also necessary that the
recipient of the defamatory communication understand it as
intended to refer to the plaintiff.3
There is evidence that MacDonald made unprivileged
statements to third parties after the assault that could be
construed as defamatory against Riggs. MacDonald testified on
direct examination that when she arrived in Tenakee Springs after
the attack she told a local resident, Barbara Scanlan, what
happened. On cross-examination by Wilson, MacDonald stated the
following:
A . . . I sat down in the chair, and . . .
Barbara Scanlan came out . . . .
Q And did you tell Barb Scanlan . . . how
you sustained your injuries?
A She asked me what happened to me, and I
told her what happened.
Q As youve told us here in court?
A Yes.
(Emphasis added.) This testimony viewed in a light most
favorable to non-movant Riggs would allow a reasonable jury to
infer that MacDonald told Scanlan her version of Riggss
involvement, as she had told it in court. In court MacDonald
claimed that Riggs had threatened her with a rifle and forced her
back to Wilsons home at gunpoint.4
MacDonalds daughter, Cynthia Roman, testified that she
was concerned about her mothers safety immediately after
returning from Seattle because neither one of them had been
arrested. They were still out there. (Emphasis added.) When
asked about the use of the word they on cross-examination, Roman
stated [Riggs] was there. A reasonable jury could infer from
this testimony that MacDonald had told her daughter that Riggs
threatened her with a rifle and held her captive at gunpoint.5
There is little question that MacDonalds statements
implicating Riggs as a participant in the assault were
defamatory. A statement is defamatory if it tends to harm the
reputation of another so as to lower him in the estimation of the
community or to deter third persons from associating or dealing
with him.6 Accusing someone of holding a woman at gunpoint in the
aftermath of a vicious attack would qualify as defamatory under
this definition.
A reasonable jury could also find the elements of
falsity and fault. Since the jury found for Riggs, it is evident
that it did not believe MacDonalds version of events. With
respect to fault, this element is met if a person knows that the
statement is false and that it defames the other.7 Assuming the
story was false, it is unlikely that MacDonald would have told
the entire story to someone, as it was told in court, without
knowledge of the false and defamatory nature of her statements.
Thus, a reasonable jury relying on the evidence
described above, viewing the evidence in the light most favorable
to Riggs, could find that MacDonald knowingly made false and
defamatory statements about Riggs. The statements discussed were
not made in the course of any judicial proceeding and therefore
were not privileged.8
B. Riggss Counterclaim Relates Back to the Date of
MacDonalds Complaint.
MacDonald argues that even if there is evidence of
defamation the jury should have been barred from considering it
because of the two-year statute of limitations for defamation
lawsuits.9 MacDonald filed her complaint on March 21, 2003, and
Riggs filed his answer and counterclaim on April 15, 2003.
MacDonald argues that because the statute of limitations on
defamation is two years, Riggs was barred from relying on
evidence of defamatory statements made prior to April 15, 2001.
All of the evidence at trial concerned statements made after the
assault occurred on April 2, 2001, but before April 15, 2001. We
hold that Riggss counterclaim should relate back to the date of
the complaint.
Much of the Alaska jurisprudence on relation back deals
with amendments to pleadings. Civil Rule 15(c) specifies that
amendments to pleadings relate back to the date of the original
pleading if the claim or defense in the amendments arose out of
the conduct, transaction or occurrence set forth or attempted to
be set forth in the original pleading. Under Rule 15(c) [a]
compulsory counterclaim relates back to the date of a partys
answer; a permissive counterclaim does not.10 This court has not
yet dealt with the issue presented here: whether a defendants
counterclaim should relate back to the date the plaintiff filed
the complaint. Unlike Civil Rule 15, Civil Rule 13, which
addresses counterclaims, does not specify when and if a
counterclaim should relate back to the date of the plaintiffs
complaint.
Many federal jurisdictions have addressed this
question.11 Most federal courts have elected to toll the statute
of limitations for compulsory counterclaims from the date the
complaint is filed:
Although there is some conflict on the
subject, the majority view appears to be that
the institution of plaintiffs suit tolls or
suspends the running of the statute of
limitations governing a compulsory
counterclaim. This approach precludes
plaintiff, when the claim and counterclaim
are measured by the same period, from
delaying the institution of the action until
the statute has almost run on defendants
counterclaim so that it would be barred by
the time defendant advanced it. Nor is
plaintiff apt to be prejudiced by the tolling
of the statute, since he presumably has
notice at the time he commences his action of
any counterclaim arising out of the same
transaction as his suit. Moreover, the
necessarily close relationship between the
timely claim and the untimely counterclaim
should insure that the latter is not stale in
the sense of evidence and witnesses no longer
being available; they should be as accessible
for adjudicating the counterclaim as they are
for the main claim.[12]
We find the majority federal rule to be based on sound policy.
Therefore, if Riggss counterclaim is compulsory, it will relate
back to the date of MacDonalds complaint.
Under Alaska Civil Rule 13(a) a counterclaim is
compulsory if it arises out of the transaction or occurrence that
is the subject matter of the opposing partys claim. When
determining whether a counterclaim is based on the same
transaction or occurrence we look to such things as whether the
claims are logically related; whether they involved the same
testimony, parties, and exhibits; whether the facts are related
in time, space, and origin; and whether the two claims form a
convenient trial unit.13 Here, both MacDonalds claim and Riggss
counterclaim are closely related to Riggss involvement in the
assault, so they are related in origin. The two claims also
involve the same parties and the same exhibits and formed a
convenient trial unit. Finally, Riggss counterclaim was
logically related to MacDonalds assault claim. If the jury had
found for MacDonald on the assault claim against Riggs, it would
not have been able to find for Riggs on the defamation claim
since a defendant is not liable for true statements. Therefore,
we find that Riggss counterclaim was compulsory and relates back
to the date of MacDonalds complaint and Riggs may recover for any
defamatory statements made by MacDonald after March 21, 2001.
Because the assault occurred on April 2, 2001, any defamatory
statements regarding his role in the assault would have been made
after that date.
C. JNOV Regarding Damages Was Properly Denied.
Slander per se includes instances where the words
impute a serious crime to the plaintiff.14 According to the
Restatement (Second) of Torts, such serious crimes include
offenses punishable by imprisonment in a state or federal
institution.15 The defamatory statements in this case involve
Riggs threatening MacDonald with a rifle. Alaska Statute
11.41.220(a)(1)(A) defines assault in the third degree as
plac[ing] another person in fear of imminent serious physical
injury by means of a dangerous instrument. As a class C felony,16
this is punishable by jail time of not more than five years.17
Therefore, Riggss defamation claim involves slander per se.
Slander per se enables a jury to award general damages for the
purpose of compensating the plaintiff for the harm that the
publication has caused to his reputation.18
Under Alaska law general damages for defamation per se
may be awarded without any proof of damages. In City of
Fairbanks v. Rice, we noted that the superior court was correct
in finding that statements that are defamatory per se obviat[e]
the need for proof of damages.19 Similarly, in Alaska Statebank
v. Fairco this court upheld damages for a defamation case
involving slander per se on the basis that [p]roof of actual
damages was . . . not necessary to support the award[].20
Even though no proof of actual damages was required
given the slander per se character of Riggss claim, he did
provide evidence of actual injury. Riggs testified that
MacDonald destroyed [his] life. In Gertz v. Robert Welch, Inc.,
the United States Supreme Court noted that it is appropriate to
compensate a defamation plaintiff for such things as impairment
of reputation and standing in the community, personal
humiliation, and mental anguish and suffering.21 MacDonalds
defamation occurred in a very small town and involved serious
allegations against Riggs. Viewed in this context, Riggss
testimony could enable a reasonable juror to award damages on the
basis that MacDonalds statements harmed Riggss reputation and
standing in the community and caused him emotional distress.
The superior court instructed the jury that for Riggs
to recover on his claim of defamation the jury had to find that
Riggs incurred actual harm. Since under Alaska law proof of
actual damages is not required in cases involving slander per se,
this instruction may have been erroneous.22 But any error would
have been favorable to MacDonald and thus may be ignored.
Civil Rule 61 states that [t]he court at every stage of
the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties. Here, since any error that occurred was favorable to
MacDonald, her substantial rights have not been impacted.
We therefore conclude that the superior court correctly
denied MacDonalds motion for JNOV regarding damages.
IV. CONCLUSION
We AFFIRM the superior courts denial of the motion for
JNOV because there was sufficient evidence of defamation for a
reasonable jury to find for Riggs. The defamatory statements
were not time-barred by the statute of limitations because Riggss
counterclaim relates back to the date of MacDonalds complaint.
Since the defamatory statements in question were slander per se,
Riggs did not have to provide proof of damages, and any error in
the jury instructions on damages was harmless.
FABE, Chief Justice, with whom BRYNER, Justice, joins,
dissenting.
I. Introduction
While the standard of review for the denial of a motion
for judgment notwithstanding the verdict is a deferential one, I
believe the court today strains that deference beyond reason.
The court holds that the record supports a finding of defamation
per se, yet it identifies no direct testimony that MacDonald made
a statement about Riggs, much less a statement that defamed
Riggs. Instead, the court infers such a statement based on
MacDonalds testimony that she told a neighbor what happened mere
minutes after the assault and her daughters oblique references to
they and them in expressing concern for her mothers safety.
Neither statement affords a basis from which a jury could
reasonably conclude that MacDonald made a defamatory statement,
much less a statement that was defamatory per se a legal
category that requires that a statement be so unambiguous as to
be reasonably susceptible of only one interpretation.1 I
therefore respectfully dissent from the courts decision to uphold
the denial of a motion for a JNOV. Moreover, the jurys verdict
in spite of the lack of evidence is not surprising given the
trial courts failure to instruct the jury that privileged
statements cannot serve as a basis for defamation liability a
failure that under the circumstances constitutes plain error.
II. The Record Does Not Support the Jurys Verdict.
In finding a basis for the jurys verdict, the court
cites no direct testimony of a defamatory statement, instead
relying on inferences from the testimony of MacDonald and her
daughter. The court relies on MacDonalds testimony that, upon
arriving in town and in search of help, she told Barbara Scanlan
what happened. MacDonald testified that when she arrived in town
with blood . . . dripping in [her] face and in [her] mouth,
Barbara Scanlan said that she looked awful. MacDonald reported
her response: It is awful. MacDonald then proceeded to tell
Scanlan what had happened. At no point during MacDonalds direct
testimony did she indicate that this conversation included any
mention of Riggs. Nor did she mention Riggs when cross-examined
about her statement to Scanlan. To conclude that MacDonald
defamed Riggs, the court relies on the following interchange
between MacDonald and Wilson during Wilsons cross-examination:
Q. And did you tell Barb Scanlan . . . how
you sustained your injuries?
A. She asked me what happened to me, and I
told her what happened.
Q. As youve told us here in court?
A. Yes.2
The court infers from this testimony that MacDonald not
only mentioned Riggs to Scanlan, but that she also stated that he
brandished a weapon in a manner sufficient to constitute assault.
Then, to support a jury verdict with no special damages, the
court concludes that this inferred statement, although nowhere
laid out in testimony, was defamatory per se a subcategory of
defamation that requires that a statement be so unambiguous as to
be reasonably susceptible of only one interpretation.3
Contrary to the inference drawn by the court, this
testimony falls far short of supporting a claim that MacDonald
made an unambiguous statement defaming Riggs. MacDonald
testified that when she told Scanlan how she sustained her
injuries, her explanation of those injuries was consistent with
her testimony in court. But MacDonald did not testify in court
that Riggs injured her. In fact, she testified that she
sustained her injuries during Wilsons physical assault. Because
Riggss actions were not related to her injuries, this testimony
does not even support a conclusion that MacDonald mentioned Riggs
to Scanlan, much less that she defamed him. The only thing that
can reasonably be inferred from MacDonalds testimony is that when
she told Scanlan how she sustained her injuries, her explanation
was consistent with her in-court statements.
A second statement cited by the court also fails to
support the denial of MacDonalds motion for a JNOV. The court
quotes the testimony of MacDonalds daughter, Cynthia Roman, that
she was concerned about her mothers safety because neither one of
them had been arrested. They were still out there.4 The court
concludes that these indirect references, coupled with Romans
statement on cross-examination that [Riggs] was there,5 support a
finding of defamation per se.
I simply cannot agree that these vague statements
support a conclusion that MacDonald made an unambiguous statement
to Roman defaming Riggs. In fact, the testimony does not even
allude to any statements by MacDonald defamatory or not. And
contrary to the courts assumption, it is not a foregone
conclusion that because Roman testified that she feared for her
mothers safety, MacDonald must have told her that Riggs assaulted
her. In fact, Riggs was present at the scene, and it is
eminently reasonable for a daughter to fear someone who was
present at the scene of a vicious attack on her mother. And
Roman testified that she was concerned about her mothers safety
even before the attack, stating, I had been in Tenakee the week
before [the assault], and I had insisted she go to the [Village
Public Safety Officer] with me because I feared for her safety.
When asked to explain her concern, Roman testified that she had
been informed by a young man in town that Merle and Riggs have
tape recorders and theyre running around and theyre saying theyre
going to do something. Roman also testified that she had read
letters from Riggs to her mother threatening to burn her house,
threatening to poison her dogs. In sum, Romans testimony
provided ample support for her fear without MacDonald having told
Roman anything about Riggss actions on the day of the attack.
The courts inference that MacDonald must have told Roman that
Riggs assaulted her is simply not justifiable when Roman had so
many independent reasons to fear for her mothers safety around
Riggs including his presence at the scene of a vicious attack on
her mother, his threatening letters, and a warning from a young
man in town. Because the record lacks support for a finding of
defamation, much less defamation per se, I would reverse the
superior courts denial of MacDonalds motion for a JNOV.
III. It Was Plain Error Not To Instruct the Jury on Privilege.
Given the lack of evidence of any statement by
MacDonald about Riggs, one might wonder how the jury arrived at a
verdict of defamation. The jurys verdict can be explained by the
trial courts failure to explain the boundaries of privilege to
the jury. As a result, the jury was unaware that it could not
legally base its verdict on MacDonalds testimony in court.
Because the need for such an instruction was obvious and its
omission very likely affected the jurys verdict, the courts
failure to instruct the jury on privilege amounts to plain error
and would require reversal even if MacDonald had not moved for a
JNOV.
Although the court correctly notes that MacDonald did
not object to the jury instructions,6 this does not preclude our
review of the issue for plain error.7 Plain error exists where
there is an obvious mistake that creates a high likelihood that
the jury will follow an erroneous theory resulting in a
miscarriage of justice. 8 The courts failure to instruct the
jury on the boundaries of privilege in this case was an obvious
mistake. The clear rule in Alaska is that witness testimony is
absolutely privileged. Over thirty years ago we adopted the
virtually unanimous position of legal authorities that defamatory
testimony by a witness in a judicial proceeding . . . is
absolutely privileged.9 And one element of any defamation claim
is an unprivileged publication. In a case such as this one,
without any direct evidence of statements other than those made
in the course of judicial proceedings, it was an obvious error
not to instruct the jury on the boundaries of privilege.
I am fortified in this conclusion by the fact that, in
addition to the absolute privilege that undoubtedly protects
MacDonalds trial testimony, conditional privilege likely protects
one of the statements on which the court today relies. We have
previously recognized a conditional privilege for speech on
matters of public safety.10 Thus, any statement MacDonald made
to Scanlan upon her arrival in town mere minutes after she was
assaulted and her skull was fractured may be protected by this
conditional privilege. Even assuming MacDonald had mentioned
Riggs to Scanlan, and even if she had stated that Riggs had a gun
two statements that are not reflected in the record both
statements advance MacDonalds interest in her own safety and that
of her community.11 Public policy supports the view that a
crime victim seeking help mere minutes after an assault occurred
should not be concerned about liability. Moreover, information
about whether any of the assailants had a weapon is undoubtedly
critical to law enforcement personnel who may respond to the
situation.
The trial courts failure to instruct the jury on the
issue of privilege very likely allowed the jury to reach a
verdict based on an erroneous theory.12 In the absence of any
direct evidence of a defamatory statement by MacDonald, the jurys
verdict strongly suggests that it considered MacDonalds testimony
in reaching its verdict. As a result, it is highly likely that
the trial courts failure to instruct the jury on the boundaries
of privilege affected the outcome of the case.
Because the trial courts failure to instruct the jury
on the boundaries of privilege very likely affected the verdict
in this case, and the only inference supported by the record is
the inference that the jury must have mistakenly considered
privileged statements in returning a verdict of defamation, I
respectfully dissent from the courts opinion.
_______________________________
1 Holiday Inns of Am., Inc. v. Peck, 520 P.2d 87, 92
(Alaska 1974); see also Ben Lomond, Inc. v. Schwartz, 915 P.2d
632, 635 (Alaska 1996).
2 French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996);
see also Restatement (Second) of Torts 558 (1977).
3 Restatement (Second) of Torts 564 cmt. a (1977).
4 The dissent argues that since MacDonald was answering a
question regarding how she had sustained her injuries, it is only
possible to infer that she told Scanlan how she sustained her
injuries. Dissent at 16-17. Since Riggs was not involved in
physically injuring her, the dissent argues that one cannot infer
that she mentioned Riggs to Scanlan. Id. at 17. However,
MacDonald had earlier testified that she told Scanlan what
happened in response to a question that asked what happened when
you arrived at the store? The fact that her answers to the two
different questions were exactly the same strongly suggests that
her second answer should not be read as more limited than her
first.
5 The dissent argues that this evidence is insufficient
to support the jury verdict. Dissent at 15-16. While this a
close call, the standard of review for a JNOV is deferential.
This court will only take the step of overturning a jurys verdict
when the evidence, when viewed in the light most favorable to the
nonmoving party, is such that reasonable men could not differ as
to their judgment. Holiday Inns of Am., Inc. v. Peck, 520 P.2d
87, 92 (Alaska 1974). The reviewing court may look at the
evidence and make reasonable inferences which may be drawn from
the evidence. City of Delta Junction v. Mack Trucks, Inc., 670
P.2d 1128, 1130 (Alaska 1983). Here, it is reasonable to draw an
inference from MacDonalds testimony that she told other people
that Riggs threatened her with a rifle.
6 Green v. N. Pub. Co., 655 P.2d 736, 739 (Alaska 1982)
(citing Restatement (Second) of Torts 559 (1977)).
7 Restatement (Second) of Torts 580B. With respect to
defamation concerning a private person, or concerning a public
official or public figure in relation to a purely private matter,
a person is also liable if they act in reckless disregard of or
negligently fail to ascertain the false and defamatory nature of
their statements. Id.
8 Statements made in the course of judicial proceedings
are protected by the doctrine of absolute privilege. Lawson v.
Helmer, 77 P.3d 724, 727-28 (Alaska 2003). MacDonald is
concerned that the jury based its verdict on privileged
statements that she made during and regarding the lawsuit. She
states that [a] potential explanation for the jurys verdict on
the defamation counterclaim . . . could be that the jury felt
that if it found that Mr. Riggs neither assaulted nor falsely
imprisoned Judy MacDonald, then it must find that Judy MacDonalds
accusations in that regard are defamatory. The fact that
MacDonald made accusations about Riggs out of court that she
later repeated in court would not immunize the out-of-court
accusations. But as to the in-court accusations, the appropriate
method to address potential jury confusion would have been for
the court to have issued a jury instruction on privilege. See
Alaska Civil Pattern Jury Instruction 16.03 (1989 Rev.).
However, MacDonald did not object to the jury instructions on
defamation or request that a jury instruction on privilege be
included, even after raising the issue of privilege in her motion
for a directed verdict. Therefore, this issue can only be
reviewed for plain error. Conam Alaska v. Bell Lavalin, Inc.,
842 P.2d 148, 153 (Alaska 1992). Plain error will be found when
an obvious mistake exists such that the jury instruction creates
a high likelihood that the jury will follow an erroneous theory
resulting in a miscarriage of justice. Id. (quotations
omitted). We do not think there is a high likelihood that the
jury erred on this issue. No evidence was presented of
statements related to the judicial proceedings that were made
prior to the trial, and we are confident that the jury understood
that making the statements only during the trial would not
support a defamation claim. After all, it is relatively easy to
figure out that a defamation suit could not be brought on the
basis of statements not yet made.
The dissent argues that MacDonalds statements were
conditionally privileged. Even if they were, this would not
change the outcome. Conditional privilege only shields
defendants from liability if they do not abuse the privilege.
Restatement (Second) of Torts 599 (1977). Abuse of a
conditional privilege occurs when a defendant publishes
information that she knows to be false or acts in reckless
disregard as to its truth or falsity. Id. 600. Thus, mere
negligence as to falsity . . . is [not] treated as sufficient to
amount to abuse of a conditional privilege. Id. cmt. b. The
jury found in answer to a question in the special verdict that
MacDonald made defamatory statements regarding Riggs knowing them
to be false. She thus abused any conditional privilege that may
have existed. Therefore, any error in failing to instruct on
conditional privilege was harmless and thus, by definition, not
plain.
9 AS 09.10.070 states that an action for slander must be
commenced within two years of the accrual of the cause of action.
10 Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 301
(Alaska 2006) (citing Alaska R. Civ. P. 13(a), (b) and 15(c);
Mogg v. Natl Bank of Alaska, 846 P.2d 806, 813-14 (Alaska 1993)).
11 Alaska Civil Rule 13 is identical to Federal Rule of
Civil Procedure 13.
12 6 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure 1419, at 152-53 (2d ed.
1990).
13 Domke, 137 P.3d at 301.
14 French v. Jadon, 911 P.2d 20, 33 (Alaska 1996).
15 Restatement (Second) of Torts 571 (1977).
16 AS 11.41.220(d).
17 AS 12.55.125(e).
18 Restatement (Second) of Torts 621 cmt. a (1977).
19 20 P.3d 1097, 1107 (Alaska 2000).
20 674 P.2d 288, 295 (Alaska 1983). In 1974 the United
States Supreme Court found the common law rule that allowed a
jury to presume damages without proof of injury in defamation
cases dealing with matters of public concern to violate the First
Amendment, at least when liability is not based on a showing of
knowledge of falsity or reckless disregard for the truth. Gertz
v. Robert Welch, Inc., 418 U.S. 323, 349 (1974). In 1985 the
Court declined to extend the Gertz prohibition on presumed
damages to defamatory statements on matters that are not of
public concern. Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., 472 U.S. 749, 760-61 (1985). Since Dun & Bradstreet the
majority of states, Alaska included, have continued to allow
presumed damages in the absence of any proof of harm for
statements that are defamatory per se and are not about matters
of public concern. E.g., Liberty Nat. Life Ins. Co. v.
Daugherty, 840 So. 2d 152, 157 (Ala. 2002); City of Fairbanks, 20
P.3d at 1107; Gaudio v. Griffin Health Servs. Corp., 733 A.2d
197, 215 (Conn. 1999); Bryson v. News Am. Publns, Inc., 672
N.E.2d 1207, 1214 (Ill. 1996); Stringer v. Wal-Mart Stores, Inc.,
151 S.W.3d 781, 795 (Ky. 2004); Costello v. Hardy, 864 So. 2d
129, 140 (La. 2004); Marston v. Newavom, 629 A.2d 587, 593 (Me.
1993); Foster v. Noel, 715 So. 2d 174, 184 (Miss. 1998); Chowdhry
v. NLVH, Inc., 851 P.2d 459, 462 (Nev. 1993); Touma v. St. Marys
Bank, 712 A.2d 619, 622 (N.H. 1998); Constant v. Spartanburg
Steel Prods., Inc., 447 S.E.2d 194, 197 (S.C. 1994). A few
states have overturned the traditional rule and require proof of
injury in all defamation cases. United Ins. Co. of Am. v.
Murphy, 961 S.W.2d 752, 756 (Ark. 1998); Gobin v. Globe Pub. Co.,
649 P.2d 1239, 1243 (Kan. 1982); Nazeri v. Mo. Valley Coll., 860
S.W.2d 303, 313 (Mo. 1993); Newberry v. Allied Stores, Inc., 773
P.2d 1231, 1236 (N.M. 1989). See generally David A. Anderson,
Reputation, Compensation and Proof, 25 Wm. & Mary L. Rev. 747
(1984) (arguing that presumed damages should not be a part of
defamation law).
21 418 U.S. 323, 350 (1974); see also Restatement (Second)
of Torts 621 cmt. a (1977) (noting that general damages can be
awarded for emotional distress).
22 The court gave the jury a special verdict form on the
defamation counterclaim. Question one asked whether MacDonald
made defamatory statements regarding Riggs knowing them to be
false. Question two asked, [i]f the answer to question #1 is
yes, then what sum of money, if any, is awarded to Mr. Riggs from
Ms. MacDonald as compensatory damages? The special verdict form
was appropriate given the slander per se nature of the defamatory
statements.
1 French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996)
(For a publication to be defamatory per se, the words used must
be so unambiguous as to be reasonably susceptible of only one
interpretation . . . .) (internal quotations and citations
omitted).
2 Slip Op. at 5.
3 French, 911 P.2d at 32.
4 Slip Op. at 6.
5 Id.
6 Slip Op. at 8 n.8.
7 Shields v. Cape Fox Corp., 42 P.3d 1083, 1087 (Alaska
2002) (holding that trial courts failure to instruct on
comparative fault was plain error requiring reversal).
8 Id. (quoting Alaska Marine Pilots v. Hendsch, 950 P.2d
98, 110 (Alaska 1997)).
9 Nizinski v. Currington, 517 P.2d 754, 756 (Alaska
1974); see also Gilbert v. Sperbeck, 126 P.3d 1057, 1059 (Alaska
2005); Lawson v. Helmer, 77 P.3d 724, 727 (Alaska 2003).
10 Taranto v. N. Slope Borough, 992 P.2d 1111, 1115
(Alaska 1999); see also DeNardo v. Bax, 147 P.3d 672, 678-79
(Alaska 2006) (holding that conditional privilege protected
worker who told her coworkers about threats).
11 Of course, the conditional privilege can be lost where
the speaker acts with malice. But malice is a higher standard of
fault than that required for a claim of defamation of a private
figure. Moreover, evidence of ill will alone is not sufficient
to establish abuse of the privilege. DeNardo, 147 P.3d at 681.
Finally, the determination whether the conditional privilege is
lost is generally a factual question for the jury. We cannot
conclude as a matter of law that MacDonald knew that Riggs did
not have a gun. MacDonald testified that she heard Wilson yell
at Riggs to bring a gun. This statement occurred during an
assault in which Wilson fractured MacDonalds skull. Under the
circumstances, the jury could conclude that MacDonald was
mistaken but that she did not know her statement was false.
12 In reaching its conclusion that MacDonald abused any
conditional privilege, the court relies on the jurys affirmative
answer to a special verdict question that asked: Did Ms.
MacDonald make defamatory statements regarding Jack Riggs knowing
them to be false? But the elements instruction provided to the
jury differed from the special verdict question, and, in fact,
the instructions allowed the jury to find liability if MacDonald
reasonably should have known that her statements were false. As
a result, the jury could have based its special verdict answer on
a finding that MacDonald was negligent in failing to recognize
that her statements were false a finding not sufficient to
establish abuse of a conditional privilege. Thus, the trial
courts failure to instruct the jury on privilege cannot be deemed
harmless error.
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