A & B-Abell Elevator Co. v. Columbus/Central Ohio Building & Construction Trades Council

73 Ohio St. 3d 1
CourtOhio Supreme Court
DecidedAugust 2, 1995
DocketNo. 93-2415
StatusPublished
Cited by321 cases

This text of 73 Ohio St. 3d 1 (A & B-Abell Elevator Co. v. Columbus/Central Ohio Building & Construction Trades Council) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A & B-Abell Elevator Co. v. Columbus/Central Ohio Building & Construction Trades Council, 73 Ohio St. 3d 1 (Ohio 1995).

Opinions

Alice Robie Resnick, J.

The pivotal issue in this case is whether the communications by appellants and cross-appellees to DAS and the city were published on a privileged occasion.3 If a conditional or qualified privilege extends to those who provide information to government officials in connection with the qualifications of bidders for public-work contracts, then only two issues remain. The first is whether Abell presented sufficient evidence at trial regarding “actual malice” to withstand a directed verdict on its defamation claim. If not, the second issue becomes whether Abell is nevertheless entitled to pursue its other claims for tortious interference and unlawful disparagement.

QUALIFIED PRIVILEGE

In Ohio, “libel”4 is defined generally as a false written publication, made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession. Becker v. Toulmin (1956), 165 Ohio St. 549, 553, 60 O.O. 502, 504, 138 N.E.2d 391, 395; Cleveland Leader Printing Co. v. Nethersole (1911), 84 Ohio St. 118, 95 N.E. 735, paragraph two of the syllabus. See Matalka v. Lagemann (1985), 21 Ohio App.3d 134, 136, 21 OBR 143, 145, 486 N.E.2d 1220, 1222 (defamation); Hersch v. E.W. Scripps Co. (1981), 3 Ohio App.3d 367, 374, 3 OBR 430, 438, 445 N.E.2d 670, 678; Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co. (1974), 43 Ohio App.2d 105, 107, 72 O.O.2d 313, 315, 334 N.E.2d 494, 497.

The defendant in a libel action may invoke the defense of “conditional” or “qualified privilege.” Hahn v. Kotten (1975), 43 Ohio St.2d 237, 243, 72 O.O.2d 134, 138, 331 N.E.2d 713, 718. See McCartney v. Oblates of St. Francis de Sales (1992), 80 Ohio App.3d 345, 354, 609 N.E.2d 216, 222, jurisdiction denied (1992), 65 Ohio St.3d 1443, 600 N.E.2d 685; Douglas Elec. Corp. v. Grace (1990), 70 Ohio App.3d 7, 12, 590 N.E.2d 363, 366; Hersch, supra, at 374-375, 3 OBR at 438, 445 N.E.2d at 678-679. Where the circumstances of the occasion for the alleged defamatory communications are not in dispute, the determination of whether the occasion gives the privilege is a question of law for the court. Worrell v. [8]*8Multipress, Inc. (1989), 45 Ohio St.3d 241, 248-249, 543 N.E.2d 1277, 1283; Becker v. Toulmin, supra, at 554, 60 O.O. at 505, 138 N.E.2d at 395; Mauk v. Brundage (1903), 68 Ohio St. 89, 67 N.E. 152, paragraph two of the syllabus. See McCartney, supra, at 355, 609 N.E.2d at 223; West v. Peoples Banking & Trust Co. (1967), 14 Ohio App.2d 69, 74-75, 43 O.O.2d 197, 200, 236 N.E.2d 679, 682.

No single statement or formula can sufficiently describe when publication of defamatory matter should be conditionally or qualifiedly privileged. It is generally agreed, however, that the best description was that offered by Baron Parke in Toogood v. Spyring (1834), 149 Eng.Rep. 1044, 1049-1050, 1 C.M. & R. 181, 193: A publication is privileged when it is “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.” See Hahn, supra, at 244, 72 O.O.2d at 138, 331 N.E.2d at 718; Prosser & Keeton, The Law of Torts (5 Ed.1984) 825, Section 115; 2 Harper, James & Gray, The Law of Torts (2 Ed.1986) 219, Section 5.26.

In Hahn, this court explained further that:

“ ‘ “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 whether 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. This general idea has been otherwise expressed as follows: A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.” ’ ” (Emphasis omitted.) Id. at 245-246, 72 O.O.2d at 139, 331 N.E.2d at 719, quoting 33 American Jurisprudence (1941) 124-125, Libel and Slander, Section 126.

The defense of qualified privilege is deeply rooted in public policy. It applies in a variety of situations where society’s interest in compensating a person for loss of reputation is outweighed by a competing interest that demands protection. Accordingly, the privilege does not attach to the communication, but to the [9]*9occasion on which it is made. It does not change the actionable quality of the publication, but heightens the required degree of fault. This affords some latitude for error, thereby promoting the free flow of information on an occasion worthy of protection. Jacobs v. Frank (1991), 60 Ohio St.3d 111, 114, 573 N.E.2d 609, 612; Surace v. Wuliger (1986), 25 Ohio St.3d 229, 231, 25 OBR 288, 290, 495 N.E.2d 939, 941; Hahn, supra, at 244, 72 O.O.2d at 138, 331 N.E.2d at 718-719; Prosser & Keeton, The Law of Torts, supra, at 824-825, Section 115; 2 Harper, James & Gray, The Law of Torts, supra, Sections 5.21 and 5.25; 50 American Jurisprudence 2d (1970), Libel and Slander, Sections 195 and 196.

One type of interest protected by a qualified privilege is the public interest. The “public interest” privilege “involves communications made to those who may be expected to take official action of some kind for the protection of some interest of the public.” Prosser & Keeton, The Law of Torts, supra, at 830, Section 115. See, also, 3 Restatement of the Law 2d, Torts (1977) 281, Section 598.5

We recognized such a privilege in Jacobs, supra, at paragraph one of the syllabus:

“Public policy concerns dictate that those who provide information to licensing boards pursuant to R.C.

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Bluebook (online)
73 Ohio St. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-b-abell-elevator-co-v-columbuscentral-ohio-building-construction-ohio-1995.