Opinion
16-P-562
01-12-2017
Timothy J. O'BRIEN v. Arthur MILANO& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from summary judgment entered in favor of the defendants on the plaintiff's claims of defamation, intentional interference with an advantageous business relationship, respondeat superior, and negligent hiring and supervision. We affirm.
Background . The plaintiff has worked as a paramedic for various organizations in the geographic area of the defendant hospital, Berkshire Medical Center (BMC). He was previously accused of sexually inappropriate and disruptive behavior at BMC, and in connection with those accusations, he filed an action in the Superior Court and secured defamation judgments against BMC and its director of emergency medical services. See O'Brien v. Chretien , 82 Mass. App. Ct. 1117 (2012).
In the earlier case, the plaintiff attempted to secure a paramedic job with the Westfield fire department, and erroneous statements were made to the department's officers indicating that BMC had issued a "no trespass" order against the plaintiff and that the plaintiff's "medical control" had been revoked.
In the present case, the following facts are undisputed: In 2011, the plaintiff was hired as a paramedic by Action Ambulance Service (Action), which has an "Advanced Life Support Paramedic Affiliation Agreement" with BMC. Following the hire, Action's vice-president of operations, James Scolforo, was told by the vice-president of human resources at BMC, Arthur Milano, that the plaintiff's access to BMC was restricted due to past "disruptive and sexually inappropriate" behavior. Scolforo later received a letter from Milano regarding their conversation, which stated that the plaintiff was not allowed on the premises of BMC in his professional capacity. Action then terminated the plaintiff, and he filed the underlying complaint in Superior Court. The judge allowed the defendants' summary judgment motion on the following grounds: (1) there was no defamation, as the statements were conditionally privileged; (2) there was no improper motive or means in Milano's actions, defeating the claims for intentional interference with an advantageous business relationship; (3) there was no tortious conduct on Milano's part, so the respondeat superior claim failed; and (4) there was no evidence to support the negligent hiring claim against BMC.
These facts are based on the statement of material facts agreed upon by the parties.
The plaintiff was not restricted from seeking medical care or visiting a friend or relative at BMC.
Discussion . We review the allowance of a motion for summary judgment de novo. Federal Natl. Mort. Assn . v. Hendricks , 463 Mass. 635, 637 (2012). Through that lens, we discern no error and conclude that the defendants were entitled to summary judgment as to each count.
a. Defamation . "The elements of a claim of defamation are that the defendant was at fault for the publication of a ... statement regarding the plaintiff, capable of damaging the plaintiff's reputation in the community, which either caused economic loss or is actionable without proof of economic loss." Kilnapp Enterprises, Inc . v. Massachusetts State Auto. Dealers Assn. , 89 Mass. App. Ct. 212, 217 (2016) (quotation omitted). However, defamatory statements can be conditionally privileged. A defendant bears the burden of proving such a privilege. Downey v. Chutehall Constr ., 86 Mass. App. Ct. 660, 665 (2014). "[A] publication will be deemed conditionally privileged if the publisher of the statement and the recipient have a common interest in the subject and the statement is ‘reasonably calculated to further or protect that interest.’ " Id . at 666, quoting from Sheehan v. Tobin , 326 Mass. 185, 190-191 (1950). The conditional privilege includes an employee making "disparaging comments about the performance of an employee of another company with which the first has a business relationship in so far as the comments are relevant to that relationship." Humphrey v. National Semiconductor Corp ., 18 Mass. App. Ct. 132, 133 (1984). Conditional privilege is not absolute, however, and may be lost by abuse "if the person who disseminates the allegedly defamatory material acts for a purpose other than protecting the interest for the protection of which the privilege is given, i.e., for some ulterior purpose." Id . at 134.
In the instant matter, Milano's comments regarding the plaintiff's restricted access to BMC stemming from past "disruptive and sexually inappropriate" behavior were conditionally privileged. BMC and Action had a business relationship, and the plaintiff's professional ability to access BMC was directly related to that relationship. The plaintiff argues that, if the statements were deemed privileged, they would constitute an abuse of privilege because they were reckless. We disagree. Conditional privilege is abused if the plaintiff proves "that the defendant published the defamatory information recklessly ... with knowledge of its falsity or with reckless disregard for the truth." Foley v. Polaroid Corp. , 400 Mass. 82, 95 (1987) (quotation omitted). While false statements in the plaintiff's previous case resulted in defamation judgments in his favor, Milano was not a party to that action and the present facts are entirely different. To be clear, the statements published by Milano were recognized as truthful by the plaintiff himself. The record demonstrates that the statements in question furthered a business relationship between Action and BMC and were within the scope of the doctrine of conditional privilege.
The plaintiff acknowledged that he was prohibited from going to BMC emergency department in his answer to a request for admissions and in the trial on his first complaint.
b. Intentional interference . The defendants were granted summary judgment on the plaintiff's claims of intentional interference with an advantageous business relationship. To prevail on a claim of "intentional interference with advantageous relations, a plaintiff must prove that (1) he had an advantageous relationship with a third party ...; (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions." Blackstone v. Cashman , 448 Mass. 255, 260 (2007).
While the plaintiff had a contract with Action and suffered obvious harm in the termination of his job, there was no improper means or motive behind Milano's actions. There is no evidence of any malice by Milano, and, as noted above, his statements were protected as conditionally privileged. As such, the plaintiff could not succeed on a claim for intentional interference against Milano or BMC, as any such allegations against BMC are derived from Milano's conduct.
c. Respondeat superior . The plaintiff's claim against BMC under the doctrine of respondeat superior, which imposes liability on an employer for torts committed by its employees within the scope of their employment, also fails. See Dias v. Brigham Med. Assocs., Inc ., 438 Mass. 317, 319-320 (2002) ; Lev v. Beverly Enterprises-Mass ., 457 Mass. 234, 238 (2010). As Milano committed no tortious act, there is no basis for a respondeat superior claim. BMC was properly granted summary judgment on this claim.
d. Negligent hiring and supervision . The final claim raised by the plaintiff was against BMC for negligent hiring and supervision of Milano. This doctrine is violated "when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge or reassignment." Foster v. The Loft, Inc ., 26 Mass. App. Ct. 289, 291 (1988) (quotation omitted). As there was no evidence that BMC was aware of any past tortious conduct by Milano, and the plaintiff failed to establish any basis in tort for Milano's conduct as a result of the statements he made, there is no basis for a claim for negligent hiring and supervision.
The defendants' request for appellate attorney's fees is denied.
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Judgment affirmed .