Court: Massachusetts Appeals Court; October 12, 2012; Massachusetts; State Appellate Court
Kevin Barrows appeals a summary judgment from the Superior Court concerning his defamation and slander claims against the Wareham fire district and the board of water commissioners (the town), as well as against Michael Martin, the superintendent of the water department. Barrows contends that the judge erred in ruling that the town was exempt from liability under G. L. c. 258, § 10(c), and that Martin was protected by a conditional privilege regarding the allegedly defamatory statements. The appeal raises two primary issues: (1) whether a defamation claim based on allegations of reckless conduct by a municipal employee constitutes an intentional tort under G. L. c. 258, § 10(c), and (2) whether Martin's actions fall under the privilege afforded to public officials performing their duties. The court concludes that (1) municipalities are exempt from liability for reckless defamation claims, as slander and libel are included in the torts listed in G. L. c. 258, § 10(c), and (2) Martin did not engage in misconduct sufficient to negate his conditional privilege. The summary judgment is therefore affirmed.
In terms of facts, Barrows was a foreman in the water department and was presented with allegations of gross misconduct by Martin on July 18, 2005, which led to his termination the following day. Barrows contested the allegations, which included taking dirt from a cemetery and allowing construction materials to be stored improperly. An affidavit from former selectman Cynthia Parola suggested that Martin had a vendetta against Barrows. Following an appeal to the prudential committee, Barrows was reinstated with back pay after the committee found no justifiable grounds for his termination. The Wareham conservation commission later determined that Barrows had violated regulations, leading to significant remediation costs for the town.
Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law, per established case law. The moving party must demonstrate the absence of a triable issue. The town asserts that summary judgment was correctly granted on counts I and II under G. L. c. 258, § 10(c), and also argues it was appropriate for count III due to the privilege of public officials' statements in their official duties.
The Massachusetts Tort Claims Act replaces the common-law doctrine of governmental immunity, allowing public employers to be liable for negligent acts of employees within the scope of their employment. However, the Act exempts intentional torts, meaning public employers cannot be sued for the intentional tortious conduct of employees. The scope of this exemption includes a representative list of intentional torts, indicating that any intentional tort falls under the exemption.
Barrows contends that his complaint alleges reckless misconduct in defamation, which should not be exempt under § 10(c). He cites Forbush v. Lynn, which distinguished willful, wanton, and reckless conduct from intentional torts exempted by the Act. The court clarifies that while wanton or reckless conduct implies a high likelihood of harm, it equates to intentional conduct. Forbush involved personal injury from reckless conduct, which is not specifically exempted under the Act.
The court disagrees with Barrows, stating that the tort of defamation fundamentally concerns the harm to reputation, not the nature of the misconduct, and therefore his claim does not avoid the exemption under § 10(c).
Barrows misinterprets both the nature of defamation and its classification as an intentional tort in § 10(c). Defamation involves the publication of material that ridicules or shows contempt for the plaintiff, as established in Draghetti v. Chmielewski. It encompasses spoken or written words that harm reputation, with Massachusetts law requiring that false statements must discredit the plaintiff in the eyes of a significant segment of the community. Notably, defamation is distinct among intentional torts because it does not necessitate intentional misconduct; liability exists for the publication of false statements about private individuals regardless of whether the act was intentional, reckless, or negligent. Courts have affirmed that the wrongful nature of defamation against a private party is independent of the defendant's intentions. Consequently, negligent publication of defamatory statements can lead to liability, and intent is either presumed or imputed, reinforcing that responsibility exists even in careless acts. The Legislature has recognized this unique aspect by specifically including defamation in § 10(c).
The Restatement (Second) of Torts, § 500 comment f (1964) distinguishes between intentional and reckless misconduct in personal injury torts but does not apply this distinction to defamation. In defamation cases, the focus is on the outcome—specifically, the injury to the plaintiff's reputation—rather than the nature of the misconduct. Any degree of misconduct, whether intentional, reckless, or negligent, suffices to establish a defamation claim for a private party. Thus, it is irrelevant which level of fault is pleaded for purposes of § 10(c) exemptions. Statements about a private party published negligently can be as defamatory as those published intentionally.
Regarding the claim against Martin, he contends that summary judgment is warranted due to an absolute or, alternatively, a conditional privilege for statements made by public officials in their official roles. Such statements are conditionally privileged to prevent defamation lawsuits from hindering public officials’ duties, particularly when addressing important public issues. However, a conditional privilege can be forfeited through various abuses, including publication with knowledge of falsity or reckless disregard for the truth. Recklessness is the minimum misconduct required to lose this privilege. Abuse can also occur through unnecessary or excessive publication, with plaintiffs needing to prove the defendant acted recklessly in such cases. A conditional privilege is further compromised when actual malice is established.
Martin conducted an investigation between April and July 2005, interviewing town employees and contractors before confronting Barrows. This investigation did not demonstrate a reckless disregard for the truth. Barrows’s supervisor was present during the initial confrontation, and Barrows later requested that his hearing be public to allow community observation, which was not deemed excessive publication. Parola’s affidavit claiming Martin sought to eliminate Barrows did not prove Martin acted in bad faith or inadequately investigated Barrows’s conduct. Consequently, the motion for summary judgment on count III was affirmed. Under General Laws c. 258, § 10(c), claims arising from intentional torts, including malicious prosecution and slander, are excluded from the Act. The distinction between reckless misconduct and intentional misconduct was emphasized, noting that reckless conduct can establish intentional emotional distress, despite being categorized as an intentional tort. Barrows alleged that the town's assertions were false and reckless; however, the nature of personal injury from an intentional act is classified as battery, also excluded under § 10(c). In defamation claims, Massachusetts typically requires falsehood for recovery, though a truthful statement can be actionable if published with actual malice. However, as Barrows is a private party, the standard established in New York Times Co. v. Sullivan does not apply.
Torts requiring specific intent include assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, invasion of privacy, interference with advantageous relations, and interference with contractual relations, with relevant case law cited for each. Intentional infliction of emotional distress requires intentional or reckless misconduct, with a claim based on reckless misconduct falling under an exemption in § 10(c). Fraudulent misrepresentation and deceit can also stem from intentional or reckless actions, while negligent misrepresentation is distinct and not exempt since it is nonintentional. The Act mirrors the Federal Tort Claims Act (FTCA), which excludes all forms of defamation from liability. Massachusetts courts have not definitively addressed whether public officials possess absolute privilege during official duties, typically only recognizing conditional privilege. In a related case, the judge noted that Barrows acknowledged conducting activities that resulted in approximately $150,000 in cleanup costs for material improperly disposed of, with no evidence suggesting animus from Martin towards Barrows.
