The opinion of the Court was delivered by HANDLER, J.
This case involves a tort action brought against a newspaper seeking damages for defamation and emotional distress attributable to the publication of a false obituary. The Court is called on to address whether an obituary that reports a death, this being the only false statement, can possibly have a defamatory interpretation. In addition, the Court must decide whether the publication of a false obituary can give rise to damages for the negligent infliction of emotional harm. The trial court and Appellate Division held that defamation and emotional-harm claims were without merit as a matter of law. Plaintiffs appeal these rulings arguing that defendant's publication of a false obituary without verifying its accuracy caused damage to reputation and emotional harm that should be compensated under our tort law.
On February 15, 1985, the defendant, a newspaper, The Princeton Packet, Inc. ("The Packet"), which publishes on Tuesday
This obituary was incorrect because Marcy Decker was not dead. All other information in the obituary — her age, residence, and family relationships — was accurate (except, of course, the references to those circumstances in the past tense and the funeral arrangements). Plaintiff notified defendant by a telephone call two days after the publication that she was in fact alive. The Packet printed the following retraction on February 19, 1985:
On February 14, 1986, Marcy Decker, her son, Jackson Decker, and her mother, Charlotte Goldberg, filed a complaint against The Packet and the unknown John Doe who submitted the obituary notice, alleging (i) libel; (ii) negligent infliction of emotional distress; (iii) intentional infliction of emotional distress; and (iv) gross negligence. The Packet responded by filing a motion for summary judgment, contending that the publication of a false obituary is not defamatory as a matter of law, and that the first amendment barred this lawsuit.
During discovery, the following facts became available about plaintiffs' claims against defendant. First, plaintiffs alleged that when the obituary was published, plaintiff Marcy Decker "was under extreme emotional distress" that was "aggravated" by the publication. At that time, she was in an "emotional" legal battle with her former fiance as well as a custody battle with her former husband and had attempted suicide twice prior to the publication of the obituary. She also claims that "due in part to the publication of the false obituary and its effect on
Plaintiffs deposed three employees of defendant to establish their claims that The Packet was unaware of who had submitted the obituary, that it took no steps to determine the validity of the notice, and that it would not have published the obituary had the person normally in charge of obituaries been on the job. The depositions showed that The Packet normally receives obituaries through three sources: (1) other area daily newspapers, (2) funeral directors, and (3) press releases left in a box maintained for that purpose in the lobby.
Mr. Willever, the editor of The Packet, testified that the normal procedure at The Packet in 1985 was to verify the information contained in the obituary by communicating with the funeral home or calling the telephone number on the press release. Ms. Willever noted that generally any release he had ever done had a telephone number on it. He also testified that The Packet does not normally retain information it receives for the publication of obituaries and that there was no record of who handled this notice.
Mr. Chimenti, the executive editor in charge of the day-to-day operations of the Packet in 1985, testified that he was the person who found Ms. Decker's obituary in the press-release box in the lobby, and he made the decision to publish it without any attempt to verify the information in the release. He stated that the notice was typed on 8 1/2 X 11 white bond paper, was not in an envelope, was unsigned with no telephone number on it, and that he could not remember whether it was dated. He did not know of any accepted procedure in the newspaper community concerning the publication of obituaries, but testified
The third employee deposed was Gloria Halpern, the Lifestyle Editor of The Packet. She testified that she normally handled obituaries but was on vacation at the time that Ms. Decker's obituary was published. Ms. Halpern stated that about five percent of obituary notices are from private individuals, that some press releases do not have telephone numbers, and that she would call the family to verify any unsigned obituary. She reported that there was and still is no formal written policy concerning the publication of obituaries, but the understanding is that now all obituaries are to be verified.
The trial court entered summary judgment in favor of defendant and dismissed plaintiffs' complaint. It concluded that as a matter of law "the mere publication of a false notice of death is not defamatory and cannot support any claims for libel in this case." According to the court, the obituary "does not impute to the plaintiff anything wrong, It doesn't hold her up to ridicule." It also dismissed the defamation claims of Ms. Decker's mother and son, holding that they could not be defamed by a false notice concerning Ms. Decker, as the statement was not directed towards them.
Finally, the court concluded that plaintiffs were not entitled to any recovery based on any claims for negligent or intentional infliction of emotional distress. It rejected plaintiffs' negligent-infliction-of-emotional-distress claim because New Jersey case law does not allow recovery for the negligent infliction of
Plaintiffs appealed to the Appellate Division, which upheld the trial court's ruling, Decker v. The Princeton Packet, Inc., 224 N.J.Super. 726 (1988). In rejecting plaintiffs' defamation claims, the appellate court stated that
The court concluded that "the general rule is well established that the mere publication of an improvident obituary is not defamatory in the absence of additional material of a defamatory nature published in connection therewith." Ibid. The court also upheld the dismissal of the emotional-distress claims. The court did not rule on plaintiffs' intentional infliction of emotional distress claims because Ms. Decker's attorney had conceded at the oral argument that she could not prove intention. Id. at 729. However, the Appellate Division agreed with the trial court that plaintiffs did not state a cause of action for the negligent infliction of emotional harm. Ibid.
Plaintiffs then petitioned this Court for certification on the issues of defamation and negligent infliction of emotional distress, which was granted. 111 N.J. 648 (1988).
It is well established that the threshold issue in any defamation action — "whether the language used is reasonably susceptible of a defamatory meaning" — is a question of law for the court. Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982); Romaine v. Kallinger, 109 N.J. 282, 290 (1988); Lawrence v. Bauer Publishing & Printing, Ltd., 89 N.J. 451, 459 (1982), cert. den., 459 U.S. 999, 103 S.Ct. 358, 74 L.Ed.2d 395 (1982); Coleman v. Newark Morning Ledger Co., 29 N.J. 357,
In making this determination, the court must evaluate the criticized language "according to the fair and natural meaning which it would be given by persons of ordinary intelligence." Herrmann v. Newark Morning Ledger Co., supra, 48 N.J. Super. at 431; Molnar v. Star Ledger, 193 N.J.Super. 12, 18 (App.Div. 1984). The allegedly defamatory statement must be taken in context and the publication considered as a whole. Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 764 (D.N.J. 1981); MacRae v. Afro-American Co., 172 F.Supp. 184, 186 (E.D.Pa. 1959); Mick v. American Dental Ass'n, 49 N.J.Super. 262, 274 (App.Div. 1958), certif. den., 27 N.J. 74 (1958); see Kotlikoff v. The Community News, supra, 89 N.J. at 72.
The court must decide the meaning that a reasonable person would give the language, and if it is capable of both a defamatory and nondefamatory meaning, then a question of fact arises for the jury to decide. Lawrence v. Bauer Publishing & Printing Ltd., supra, 89 N.J. at 459; Karnell v. Campbell, supra, 206 N.J. Super. at 88. Where the criticized statements, however, are not capable of a defamatory meaning, the court is entitled to dismiss summarily a plaintiff's action. Kotlikoff v. The Community News, supra, 89 N.J. at 67-68; see Barbetta Agency, Inc. v. Evening News Publishing Co., 135 N.J.Super. 214, 218 (App.Div. 1975). Thus, if a statement is susceptible of only a non-defamatory meaning, "it cannot be considered libelous, justifying dismissal of the action." Romaine v. Kallinger, supra, 109 N.J. at 290.
A defamatory statement is one that is false and is "`injurious to the reputation of another' or exposes another person to
The principle generally endorsed by most authority throughout the country is that an obituary in which the only false statement concerns the death of the individual, published without malicious intent, is not defamatory per se. See 50 Am. Jur.2d, Libel and Slander § 85 (1970) ("Generally the publication of a death notice falsely reporting the plaintiff's death is not actionable per se, but a contrary rule prevails if the notice is published maliciously and is intended to subject another to ridicule."); Rubinstein v. New York Post Corp., 128 Misc.2d 1, 488 N.Y.S.2d 331 (N.Y. Sup. Ct. 1985); Estill v. Hearst Publishing Co., 186 F.2d 1017, 1022 (7th Cir.1951); O'Neil v. Edmonds, 157 F.Supp. 649 (E.D.Va. 1958); Cardiff v. Brooklyn Eagle, Inc., 190 Misc. 730, 75 N.Y.S.2d 222 (1947); Curry v. Journal Publishing Co., 41 N.M. 318, 68 P.2d 168 (1937); Cohen v. New York Times Co., 153 A.D. 242, 138 N.Y.S. 206 (1912). These cases suggest that publication of a notice of death is usually not defamatory because it does not injure one's reputation. As one court explained, "one is [not] demeaned or belittled by the report of his or her death." Rubinstein v. New York Post Corp., supra, 128 Misc.2d at 3, 488 N.Y.S.2d at 333.
Moreover, if the written report of death includes statements that the person had died under disgraceful circumstances, then the issue of defamation encompasses more than the mere publication of a false report of death. O'Neil v. Edmonds, supra, 157 F. Supp. at 650. Thus, where an obituary not only falsely states the death of a person but also falsely states circumstances surrounding the death and those circumstances might be interpreted as defamatory, a libel action can survive summary dismissal.
This Court finds that the general rule and its limited exception should govern this case and other similar cases. Here, the only false aspect of the obituary was the death of plaintiff Marcy Decker. Therefore, under the general rule, the obituary is not defamatory per se because the reported death of an individual when viewed from the perspective of a reasonable person of ordinary intelligence and experience does not impugn
This result is also consistent with the policy reasons that undergird the law of defamation, particularly as it affects media defendants. "The evolution of the law of defamation reflects the tension between society's competing interests in encouraging the free flow of information about matters of public concern and in protecting an individual's reputation." Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 135-36 (1986). The publication of obituaries is a function that is almost invariably undertaken by the media and this information is considered newsworthy and clearly a matter of public interest that should be encouraged. Rubinstein v. New York Post Corp., supra, 128 Misc.2d at 3, 488 N.Y.S.2d at 333. Moreover, the chance of an obituary being incorrect appears slight, and the newspaper can promptly publish a correction, which occurred in this case. Thus, the plaintiffs did have an adequate remedy to correct any false statement and the published correction should have prevented the false obituary from causing any continuing effects. As one court stated: "[i]t is one of those errors which will occur in the publication of a newspaper, but this is not to say that all erroneous reports give rise to an action for libel." O'Neil v. Edmonds, supra, 157 F. Supp. at 651. Thus, the rule followed in this case properly allows the free flow of information and yet it affords protection to the reputation of persons who are defamed by a false obituary if the obituary includes defamatory information or is published with the intent to injure. Therefore, we hold that where a newspaper mistakenly prints an obituary for a person who is still alive and then retracts its mistake, there is no defamation per se, since announcing the death of someone is not by itself injurious to one's reputation.
The second claim before this Court is that the actions of defendant establish liability under the tort of negligent infliction of emotional harm. Plaintiff Marcy Decker conceded before the Appellate Division that she could not prove intentional infliction of harm. 224 N.J. Super. at 729. However, plaintiff alleged that the publication of the false obituary based on an unsigned death notice left at defendant's office without any attempt to ascertain its truth or falsity constituted negligence that caused her emotional distress. These injuries included the loss of her job in part due to the obituary, her husband's use of the obituary against her in a custody battle, and the aggravation of emotional distress.
The tort involving the negligent infliction of emotional distress can be understood as negligent conduct that is the proximate cause of emotional distress in a person to whom the actor owes a legal duty to exercise reasonable care. Dreschsel, "Negligent Infliction of Emotional Distress: New Tort Problem for the Mass Media," 12 Pepperdine L.Rev. 889, 896 (1985) [hereinafter Dreschsel]. Thus, to establish liability for such a tort, a plaintiff must prove that defendant's conduct was negligent and proximately caused plaintiff's injuries. The negligence of defendant, however, depends on whether defendant owes a duty of care to the plaintiff, which is analyzed in terms of foreseeability. "[L]iability should depend on the defendant's foreseeing fright or shock severe enough to cause substantial injury in a person normally constituted." Caputzal v. The Lindsay Co., 48 N.J. 69, 76 (1966).
While the foreseeability of injurious consequences is a constituent element in a tort action, foreseeability of injury is particularly important in the tort of negligent infliction of emotional harm. This reflects the concern over the genuineness of an injury consisting of emotional distress without consequent physical injury. In these situations, there must be "an especial likelihood of genuine and serious mental distress,
Thus, recovery for negligent infliction of emotional harm requires that it must be reasonably foreseeable that the tortious conduct will cause genuine and substantial emotional distress or mental harm to average persons. See, e.g., Giardina v. Bennett, 111 N.J. 412, 417 (1988); Buckley v. Trenton Sav. Fund Soc'y, supra, 111 N.J. 355; Procanik v. Cillo, 97 N.J. 339 (1984); Schroeder v. Perkel, 87 N.J. 53 (1981); Portee v. Jaffee, 84 N.J. 88 (1980); Berman v. Allan, 80 N.J. 421 (1979).
Unless a plaintiff's alleged distress is truly genuine and substantial, the tort of negligent infliction should not be broadened to permit recovery of damages. Hence, the genuineness and severity of emotional distress can present threshold questions of law. In cases involving claims relating solely to emotional distress,
Thus, in the Buckley case, the Court observed that plaintiff's emotional-distress "complaints amount to nothing more than aggravation, embarrassment, an unspecified number of headaches, and loss of sleep," and, as a matter of law, could not constitute severe mental distress sufficient to impose liability. Id. at 368.
In this case, the emotional distress alleged by Marcy Decker resulting from the false report of her death, and, derivatively, the emotional distress assertedly experienced by Ms. Decker's son and mother, are not materially different from that described in cases like Buckley, supra, 111 N.J. 355, in which the injury is not sufficiently palpable, severe, or enduring to justify the imposition of liability and the award of compensatory damages. Rather the alleged emotional distress approximates the subjective reactions of ordinary persons who feel victimized by the false report of death, namely, annoyance, embarrassment, and irritation. Further, the distress experienced by Ms. Decker was not occasioned by conduct that itself was egregious or purposeful. Rather it appears to have been caused only by inadvertent conduct, with respect to which there is no suggestion in the record that any serious and substantial distress on the part of Ms. Decker and her family would be particularly foreseeable. These considerations dictate rejection of the claim for the negligent infliction of emotional distress under these circumstances as a matter of law.
In conclusion, we determine that the negligent publication of a false obituary, the falsity of which relates only to the inaccurate or untrue report of death, is not defamatory per se as a
Accordingly, the judgment below is affirmed.
For affirmance — Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 6.
For reversal — None.