Richmond Newspapers, Inc. v. Lipscomb ( 1987 )

STEPHENSON, J.,

concurring in part and dissenting in part.

I concur with the majority’s holdings that (1) Lipscomb was not a public official, (2) punitive damages should be denied because the evidence is insufficient to support the jury’s finding that Cox acted with “reckless disregard for the truth,” and (3) the trial court properly excluded expert testimony.^* However, I disagree with the majority’s decision to enter final judgment in favor of Lipscomb on the basis of negligence. In my opinion, the majority’s ruling on this point is logically flawed.

The majority relies upon Great Coastal Express v. Ellington, 230 Va. 142, 334 S.E.2d 846 (1985), as authority for the proposition that a finding of negligence is subsumed in a finding of reckless disregard for the truth. At trial, the plaintiff in Great Coastal was required to prove New York Times malice. On appeal, however, we held that the appropriate standard was negligence. We then pointed out that because plaintiff had successfully proved the higher standard, he had necessarily proved negligence. Great Coastal therefore is authority for the proposition that if a plaintiff proves reckless disregard for the truth, he also proves negligence.

Great Coastal cannot serve as authority for the majority’s decision in this case, however, because Lipscomb did not successfully prove reckless disregard for the truth. It is one thing to say that proof of a higher standard includes proof of a lower standard. It is quite another thing to say that failure to prove a higher standard includes proof of a lower standard.

Once the majority decided that Lipscomb failed to prove reckless disregard for the truth, the jury’s verdict became null and void. Nevertheless, the majority seizes upon this void verdict as the predicate for ruling, as a matter of law, that negligence was proved. In my opinion, the majority has invaded the province of the jury.

In a case of this complexity, we should permit a properly instructed jury to decide the issue of negligence. Accordingly, I would remand the case for a new trial.

THOMAS, J., joins, concurring in part and dissenting in part.

* I also agree that the trial court properly submitted the entire article to the jury because the statements of opinion contained in the article were “laden with factual content,” Ollman v. Evans, 750 F.2d 970, 982 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985). I would make clear, however, that “[i]t is for the court, not the jury, to determine as a matter of law whether an allegedly libellous statement is one of fact or one of opinion.” Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 102 (1985).