McCartney v. Oblates of St. Francis De Sales , 80 Ohio App. 3d 345 ( 1992 )

I would find that there exists a genuine issue of material fact as to whether a qualified or conditional privilege exists in this case.

Additional evidence that was before the trial court is as follows. When McCartney was convicted in 1983 for contributing to the unruliness and delinquency of a minor, he immediately informed St. Francis officials and faculty about the conviction and the circumstances leading to that conviction. Despite this knowledge, St. Francis officials saw no reason to limit or sever McCartney's contact with the students at St. Francis and permitted McCartney to remain on the faculty both as a teacher and yearbook adviser for a period of five years following his conviction. When Miguel and Tom joined the yearbook three years later, McCartney told them about his conviction. Miguel and Tom's parents were also told about McCartney's conviction. (Also, according to Mr. McCartney, Mr. Lopresto and Father Sanford's testimony, McCartney's 1983 conviction was well known). Nevertheless, Miguel and Tom were permitted to develop a close relationship with McCartney which proved to be positive and beneficial to them. In the early months of 1988, St. Francis officials began to suspect McCartney's participation in the publication of an "underground" student newspaper. In response, they raided the yearbook publications office, searched McCartney's desk, terminated his employment and replaced him with Father Sanford as yearbook adviser. As a result, McCartney filed his first lawsuit against appellees (with the exception of Father Sanford), alleging defamation and invasion of privacy. Within two months of taking over as yearbook adviser, Father Sanford demoted Miguel and Tom, who had continued to associate with McCartney, from their former positions on the yearbook staff.

As to Miguel, Father Sanford was continuously "picking on him" and threatening to fire him from the yearbook staff. When Miguel's mother, Adoracion Kelsey, called Father Sanford to discuss this matter with him, he turned the conversation "* * * in a different direction"; "out of nowhere," he said that "* * * McCartney had spent time in jail for corrupting minors, and he said something to the fact you don't want your son to associate with somebody like that." As to the meeting that followed several days later between the Kelseys and Fathers Sanford and Olszewski, Mr. Kelsey stated:

"The whole meeting, the first part of the meeting, was just a continual attack on him (McCartney) * * * I just knew it was over and over again at every turn and angle."

Mrs. Kelsey had to remind Fathers Sanford and Olszewski several times that the meeting between them was not to discuss McCartney. Fathers Sanford and Olszewski then imposed theabsolute restriction that Miguel not associate with McCartneyat all, or he would be fired from the yearbook staff. Mrs. Kelsey summarized the events as follows:

"* * * The whole situation did him (Miguel) a lot of harm * * *. He was innocent. He was caught up between two people, twopeople fighting, and he was caught up in the middle." (Emphasis added.)

As to Tom, on the night of the "overnight," Father Sanford, knowing that McCartney's 1983 conviction involved giving alcohol to a St. Francis student, telephoned Mrs. Lopresto and told her that a student had witnessed her son drinking in the St. Francis parking lot with McCartney. After confirming that her son had not been drinking that night, Mrs. Lopresto called Father Sanford to inform him of such and, at that time, "Fr. Sanford changed his story by indicating that a faculty member of the school saw my son drinking alcohol with John McCartney." Mrs. Lopresto then agreed to attend a meeting with Fathers Sanford and Olszewski because she was afraid that her son would be expelled from school for drinking. At the meeting, Fathers Sanford and/or Olszewski said that McCartney had been convicted of corrupting a minor and that it was unhealthy for him to be with boys Tom's age. "At the end of the meeting Fr. Olszewski said he was mistaken about my son drinking and that the matter was closed."

As to the issue of privilege, the majority correctly points out that all that is necessary to entitle such communications to be regarded as privileged is, that the relation of the parties should be "``such as to afford reasonable ground for supposing an innocent motive for giving information, and to deprive the act of an appearance of officious intermeddling with the affairs of others.'" Hahn v. Kotten (1975), 43 Ohio St. 2d 237, 246, 72 O.O.2d 134, 140, 331 N.E.2d 713, 720, quoting West v. PeoplesBanking Trust Co. (1967), 14 Ohio App. 2d 69, 74, 43 O.O.2d 197, 200, 236 N.E.2d 679, 682. Further, although the majority opinion contains no direct authority applying the privilege to an occasion involving communications between school teachers and/or officials and parents of a student on matters pertaining to their common interest in the student, it is clear that such an occasion would generally warrant application of the privilege. See, e.g., Nodar v. Galbreath (Fla. 1984), 462 So. 2d 803; Dobbynv. Nelson (1978), 2 Kan. App. 2d 358, 579 P.2d 721.

On the other hand, the essential elements of a conditionally privileged occasion include good faith and an interest to be upheld. Jacobs v. Frank (1991), 60 Ohio St. 3d 111, 113-114,573 N.E.2d 609, 612; Hahn, supra, 43 Ohio St.2d at 245-246, 72 O.O.2d at 139, 331 N.E.2d at 719; West, supra,14 Ohio App.2d at 72, 43 O.O.2d at 199, 236 N.E.2d at 681; Boden v. AnacondaMinerals Co. (S.D.Ohio 1990), 757 F. Supp. 848, 856-857; 50 American Jurisprudence 2d (1970) 701, Libel and Slander, Section 196; Prosser Keeton, Law of Torts (5 Ed.1984) 826-829, Section 115; Restatement of the Law 2d, Torts (1965) 258, Scope Note; 2 Harper, James Gray, The Law of Torts (2 Ed.1986) 219, Section 5.26; 3 Lee Lindahl, Modern Tort Law (1990) 254, Section 36.22; Eldridge, The Law of Defamation (1978) 461-481, Sections 86 and 87; Sack, Libel, Slander and Related Problems (1980) 303-304, 310-313, Sections VI.3.3. and 3.4. If the surrounding circumstances, therefore, indicate that the occasion is being used as a pretext to advance, in bad faith, an interest that is not entitled to protection, the privilege would not attach to protect defamatory communications made on such an "occasion." See, e.g., Boden, supra, 757 F. Supp. at 856-857.

The concept of pretext is well stated at 50 American Jurisprudence, supra, at 701-703, Sections 196 and 197, wherein it is explained that:

"The occasion and circumstances under which a communication is made determine whether it is privileged. Mere color of a lawful occasion and pretense of a justifiable end cannot shield from liability a person who publishes and circulates defamatory matter. If the defamatory matter was long known to the defendant and to the community, a charge relating thereto is not entitled to protection as qualifiedly privileged on the theory that there was a privileged occasion for publication thereof.

"* * *

"The existence of a conditional or qualified privilege depends upon the bona fides of the communication, and in determining whether or not it exists the court will look to the primary motive or purpose by which the defendant apparently was inspired. The privilege attaches only if the communication was made in good faith to serve the interests of the publisher and the person to whom it was addressed, and it does not exist if the privileged occasion was abused. There is no privilege if the publication was made primarily for the purpose of furthering an interest that is not entitled to protection * * *."

As to the functions of judge and jury, although there is some authority for the position that the issue of conditional privilege is always a question of law, I agree with the majority that the better rule is that where the material facts are in dispute, it is the function of the jury to resolve that factual dispute.

"* * * Undoubtedly the very vagueness of the rules (of privilege) * * * has been of considerable aid to the courts in achieving a degree of flexibility which permits the particular issue to be determined by the court or passed over to the jury, as the particular case seems to demand." Prosser Keeton, Law of Torts, supra, at 835-836. See, also, West, supra,14 Ohio App.2d at 74-75, 43 O.O.2d at 200, 236 N.E.2d at 682, quoting 1 Harper James, The Law of Torts (1956) 466, Section 5.29; 50 American Jurisprudence 2d, supra, at 708-709, Section 200.

In summary judgment proceedings "* * * the presence of competing reasonable inferences from undisputed facts presents a genuine issue of material fact whose resolution should be left to the trier of fact." Duke v. Sanymetal Products Co. (1972),31 Ohio App. 2d 78, 81, 60 O.O.2d 171, 178, 286 N.E.2d 324, 327, quoting Franklin Natl. Bank v. L.B. Meadows Co. (E.D.N.Y.1970), 318 F. Supp. 1339, 1344; see, also, WashingtonCty. Farm Assn. v. B. O. RR. (1972), 31 Ohio App. 2d 84, 91, 60 O.O.2d 174, 178, 286 N.E.2d 287, 291. An inference is not impermissible just because it is based in part on another inference or common human experience. Motorists Mut. Ins. Co. v.Hamilton (1986), 28 Ohio St. 3d 13, 28 OBR 77, 502 N.E.2d 204, syllabus; Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 329, 58 Ohio Op. 122, 130 N.E.2d 820, paragraph two of the syllabus; Neeper v. Cherry Street Mission (Mar. 13, 1992), Lucas App. No. L-91-159, unreported, 1992 WL 48515.

Upon consideration of the entire record of proceedings that was before the trial court in this case, and the law, I would find that there remains a genuine issue of material fact as to the circumstances under which the defamatory statements were made. Although statements in furtherance of the education and well-being of students may be conditionally privileged, a reasonable inference can be drawn from the evidence that was before the trial court that the defamatory statements were made by appellees solely to support their personal, legal and political interests. For this reason, I must dissent.