598 N.E.2D 207

KEY v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

No. 89-12879

Court of Claims of Ohio

62 Ohio Misc. 2d 242; 598 N.E.2d 207; 1990 Ohio Misc.

July 2, 1990, Decided


SUBSEQUENT HISTORY: [***1]
Reporter's Note: The referee's report was adopted by the Court of Claims on August 23, 1990. An appeal to the court of appeals was dismissed on June 9, 1991.
As Amended.

DISPOSITION:
So recommended.




COUNSEL:
Jerry Lee Key, pro se.
Anthony J. Celebrezze, Jr., Attorney General, John P. Reichley and M. Celeste Cook, Assistant Attorneys General, for defendant.

JUDGES:
R. Michael Smith, Referee.

OPINIONBY:
SMITH

OPINION:
[*244] [**208] Findings of Fact and Conclusions of Law
This case requires a determination of whether an employee of defendant Department of Rehabilitation and Correction ("DRC") slandered plaintiff Jerry Lee Key by making certain statements to other inmates of the Southern Ohio Correctional Facility ("SOCF").
Plaintiff is an inmate in the custody and control of defendant at SOCF pursuant to R.C. 5120.16. Donald Neal is employed by defendant as a unit supervisor and, at the time when the events at issue transpired, was in charge of the unit in which plaintiff was incarcerated. On or about June 17, 1989, inmates Dennis Duff and Edward Moran approached Neal to discuss a change of cell assignments. Duff indicated his desire to be moved into the cell then occupied solely by plaintiff. Neal allegedly [***2] indicated that he had reason to believe plaintiff was a homosexual. Both Duff and Moran promptly informed plaintiff of the conversation with Neal.
Plaintiff filed a complaint in this court on October 6, 1989. In light of the court's allowable jurisdiction and the acts alleged, plaintiff's complaint is construed to set forth a single cognizable action, which is one for defamation. Pursuant to Civ.R. 53(A), a referee was appointed by a judge of the Court of Claims to hear the matter. The cause was heard on June 18, 1990 at SOCF [*245] and, based upon the evidence presented, is determined as set forth hereinafter.
Defamation, which includes both the tort of libel as well as that of slander, is essentially an invasion of the interest in another's good name and reputation. While the tort of libel is available for written publications, that of slander will lie for oral communications. Also, both torts require a demonstration that the words at issue were falsely and maliciously spoken.
Initially, it must be determined whether the supervisor made any statement which might potentially be construed as defamatory. This was a principal issue at trial, and one fully contested by the [***3] parties. Plaintiff offered testimony that defendant's employee expressly uttered a direct statement that plaintiff was a homosexual. Defendant maintained throughout the hearing that, at most, Neal merely inquired whether Duff or Moran had heard that plaintiff may have been a homosexual and that he never, at any time, asserted that plaintiff was so inclined. Nevertheless, it was admitted that the supervisor had, as his primary purpose for the exchange, the goal of suggesting to inmate [**209] Duff that he (Duff) might wish to rethink his cell assignment request based upon the matter raised by Neal's question or statement.
Particular guidance for the resolution of this factual dispute may be found in the law of slander. The applicable legal standard provides that a cause of action will lie even if defendant uttered only an expression of opinion or suspicion. "A mere insinuation is as actionable as a positive assertion, if the meaning is plain, and it has been held repeatedly that the putting of the words in the form of a question will in no wise reduce the liability of the defendant." Schoedler v. Motometer Gauge & Equip. Corp. (1938), 134 Ohio St. 78, 85, 11 O.O. 487, 490, 15 N.E.2d 958, 961. [***4]
Based upon this common-sense view, it need not be determined with certainty that supervisor Neal directly stated as his view that plaintiff was a homosexual. It is sufficient that he implied that such was the case. In consideration of all the evidence adduced upon this issue, it is determined by a preponderance of the evidence that supervisor Neal, either directly or by insinuation, informed Duff and Moran of his fear that plaintiff was a homosexual. This is sufficient, supposing all other elements of the cause of action have been met, to constitute the utterance of a defamatory statement.
Defendant also asserted at trial that plaintiff, in his case in chief, failed to allege and prove sufficient damages. The law of slander differs from that of libel on the treatment of this issue. In an action for libel, [*246] damages may be presumed for a great many categories of publication, considered libelous per se, because of the much greater harm and likelihood of malice associated with written publications. Thus, it is sufficient that a written statement merely exposed another to hatred, ridicule, contempt or disgrace in order for a plaintiff to avoid the requirement of proving [***5] special damages.
The law of slander, on the other hand, is much more circumscribed so that, except for certain limited categories of statements, an action cannot be maintained upon a slander unless the plaintiff is able to prove that he was the object of special damage. See, e.g., Davis v. Brown (1875), 27 Ohio St. 326. The usual rule is that in order to be classified as slanderous per se, a communication must impute not only an act which is subject to criminal indictment, but one which, by its nature, also involves moral turpitude. Id. See, also, Alfele v. Wright (1867), 17 Ohio St. 238.
A case which appears to be directly on point and which contains the currently applicable law on this issue is Davis, supra. That case arose when defendant accused plaintiff of sodomy. The issue upon appeal was whether plaintiff needed to prove special injury in order to maintain his cause of action or whether he might be allowed a presumption of injury based upon the alleged facially injurious character of the words themselves. The Ohio Supreme Court held that, in cases of slander, the words [***6] used must allege an indictable offense involving moral turpitude. Since sodomy was not then a crime in Ohio, the court held that plaintiff must specially prove his injury in order to maintain the action. It is therefore plain from the cases and commentary that an action based upon an accusation that one is a homosexual constitutes slander per quod and cannot be maintained unless plaintiff alleges and proves special and actual damages. French v. Millard (1853), 2 Ohio St. 44; Bigelow v. Brumley (1941), 138 Ohio St. 574, 21 O.O. 471, 37 N.E.2d 584.
Special damages consist of those injuries which may well be the provable natural consequences of defendant's slander, but are neither necessarily nor presumably so. Consequently, plaintiff must allege that he was specifically injured and must also prove the relationship between his injury and the slander alleged. In the present case, plaintiff alleged in his complaint that, due to Neal's remarks, he was subjected to harassment and thereafter had difficulty interacting with the other inmates at SOCF. Also, he asserted that he was caused to [***7] endure suffering and frustration from the circulation and acceptance [**210] of Neal's comments. At trial, plaintiff was able to demonstrate, [*247] by a preponderance of the evidence, that he did suffer injury to his name and reputation within the prison population such that he was subjected to harassment and distasteful invitations.
Even granting that plaintiff was able to demonstrate injury flowing from the publication, he is yet barred from recovering for such injury unless it is shown that the utterance was published with actual malice. This, of course, flows from the legal conclusion that plaintiff's allegations do not constitute slander per se, which would allow a sufficient presumption of legal malice to be implied from the words used. Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144. Consequently, plaintiff must prove, by a preponderance of the evidence, that the statement was issued with, or as a result of, express malice. Such malice is characterized by hatred, ill will, or a desire for revenge. Id.
Furthermore, given the contest of the utterance, i.e. [***8] , that supervisor Neal was responding in his official capacity concerning a matter over which he had responsibility, the existence of a qualified privilege must be considered. As set forth in McKenna v. Mansfield Leland Hotel Co. (1936), 55 Ohio App. 163, 8 O.O. 463, 9 N.E.2d 166:
"A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he, in good faith proceeds to do." See, also, Hahn v. Kotten (1975), 43 Ohio St.2d 237, 72 O.O.2d 134, 331 N.E.2d 713, 85 A.L.R.3d 1147; West v. Peoples Banking & Trust Co. (1967), 14 Ohio App.2d 69, 43 O.O.2d 197, 236 N.E.2d 679; Leibson v. Dept. of Retardation & Developmental Disabilities (1989), 61 Ohio Misc.2d 750, 584 N.E.2d 1363. [***9]
Both actual malice and the existence of a qualified privilege are legally interrelated since a showing of the former negates the existence of the latter. Also, as will be observed from the following, the evidence adduced upon both points was closely interrelated.
At trial, it was shown that defendant had initiated a program intended to reduce violence between the inmates at this maximum security institution. In order to avert incidents of violence, that program required an inquiry and analysis of those very personal, sociologic and/or demographic matters which, in the experience of the prison officials, customarily gave rise to conflict [*248] among inmates. The inquiry was ongoing and became especially focused during considerations of cell assignments.
Thus, prison officials were required to note the race, ethnic origin, language spoken, religion, propensity for future violence, sexual outlook, and any other factors which, in their opinion, provided the incompatibilities between inmates from which violence sprang. There was ample evidence that incompatibility often resulted when one, but not both, of the cellmates was a homosexual and that this variety of incompatibility had [***10] previously resulted in innumerable fights as well as stabbings.
Inmate Duff's purpose in speaking to Neal was to obtain permission to move into the cell with plaintiff. The evidence at trial was clear that, whatever Neal's specific response, he was intent upon avoiding a cell assignment between incompatible inmates. Furthermore, his response was aimed at alerting inmate Duff of his suspicion, based upon confidential inmate and employee sources, that plaintiff may have been incompatible as a cellmate. Consequently, the publication at issue was not uttered maliciously or for the purpose of injuring plaintiff. Moreover, pursuant to the requirements of the program then in effect, Neal had a duty to express his reservations when a non-homosexual inmate sought transfer into a cell with one who was, or may have been, a homosexual. There was believable evidence that his utterance was based upon other, unnamed [**211] sources. Accordingly, there existed a qualified privilege to utter the statement at issue.
It would appear from the evidence that Neal was mistaken about plaintiff's sexual outlook. That alone cannot support a cause of action for slander. Accordingly, it is recommended [***11] that judgment be entered for defendant.
So recommended.