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Cole v. Chandler5/26/2000
, and Mead filed motions for summary judgment. The court granted Buckley's and Chandler's motions on the basis that they were immune from suit by virtue of the exclusivity and immunity provisions of the Workers' Compensation Act. It granted Mead's motion on the basis that, even if Maine law recognizes defamation by compelled self-publication as a theory of liability, Mead was entitled to immunity by statute or common law. Cole appeals both judgments.
"'We review the entry of summary judgment for errors of law, viewing the evidence in the light most favorable to the party against whom the judgment was entered.'" Prescott v. State Tax Assessor, 1998 ME 250, § 4, 721 A.2d 169, 171 (citation omitted). Summary judgment will be upheld if the evidence produced demonstrates that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. See id.
I. Mead Corporation
Cole's only claim against Mead is for "forced publication of libel and slander." The elements of defamation are as follows:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. See Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (citing Restatement (Second) of Torts § 558 (1977)).
Cole does not allege that Mead communicated the reason for its termination of Cole to any third party and thus the allegedly defamatory statement was not published by Mead. Rather, Cole argues that he himself was forced to publish or communicate the reasons for his termination to prospective employers and that this should satisfy the publication element of the tort of defamation. We need not reach the issue of compelled self-publication, however, because a claim of defamation also requires that the publication be unprivileged, see id., and we find that Mead, in any event, was protected by a conditional privilege under common law.
Whether Mead is entitled to the common law privilege is a question of law. See Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996). "A conditional privilege against liability for defamation arises in settings where society has an interest in promoting free, but not absolutely unfettered, speech." Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (citations omitted). It may arise "in any situation in which an important interest of the recipient of a defamatory statement will be advanced by frank communication." Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996) (citing Lester v. Powers, 596 A.2d at 70). In Lester, we held that a former student was entitled to a conditional privilege against libel for her letter to a college, as part of a professor's tenure review process, stating her version of the professor's conduct during a particular class. See Lester v. Powers, 596 A.2d at 70. In Gautschi v. Maisel, 565 A.2d 1009 (Me. 1989), we held that a faculty member enjoyed a conditional privilege against a claim of slander while serving on a tenure review committee and engaged in reviewing another employee's credentials to determine whether that employee should be granted permanent employment. See id. at 1011. Similarly, Mead was entitled to a conditional privilege in this case against a claim of slander brought by one of its employees arising out of the termination of his employment relationship with Mead.
Cole argues next that, even if Mead is entitled to a conditional privilege, he has raised a genuine issue of material fact whethe
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