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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. MacDonald v. Riggs (08/31/2007) sp-6152

MacDonald v. Riggs (08/31/2007) sp-6152, 166 P3d 12

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

JUDY MACDONALD, )
) Supreme Court No. S- 12025
Appellant,)
) Superior Court No.
v. ) 1JU-03-228 CI
)
JACK RIGGS and MERLE G. WILSON,) O P I N I O N
)
Appellees. ) No. 6152 - August 31, 2007
)
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Michael A. Thompson, Judge.

          Appearances:  Z. Kent Sullivan, Baxter  Bruce
          Sullivan  P.C., Juneau, for Appellant.   Jack
          L. Riggs, pro se, Anchor Point.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          MATTHEWS, Justice.
          FABE,  Chief Justice, with whom BRYNER, Justice, joins,
dissenting.


I.   INTRODUCTION
          Judy  MacDonald  sued Jack Riggs for assault,  battery,
false  imprisonment,  and  intentional  infliction  of  emotional
distress.  The jury found for Riggs on all claims and awarded him
$35,000 in damages from MacDonald on his defamation counterclaim.
MacDonald  appeals the superior courts denial of her  motion  for
judgment notwithstanding the verdict (JNOV) on the counterclaim.
          With  respect  to  the three arguments  that  MacDonald
presents, we conclude as follows:
     (1)   there  was  sufficient evidence  regarding  defamatory
statements by MacDonald to create a jury question as to liability
for defamation;
     (2)  MacDonalds statute of limitations defense fails because
the  date  of  Riggss counterclaim relates back to  the  date  of
MacDonalds complaint; and
     (3)   since MacDonalds defamatory statements are slander per
se,  an  award of damages could be made without proof  of  actual
damages.
II.  FACTS AND PROCEEDINGS
          The  City  of Tenakee Springs passed a local  ordinance
prohibiting  the use of motorized vehicles in many areas  in  and
around  the  town.   This lawsuit resulted from  a  dispute  over
whether   the  ordinance  prohibited  the  use  of  a   motorized
wheelbarrow.   Judy MacDonald, then a sixty-four-year-old  widow,
regularly used the wheelbarrow in question to haul groceries  and
supplies  on a road that provided the only access to her property
from  a  nearby  boat  landing.  On one  occasion  she  drove  an
excavator  up  the  road.  In 2001 the City  of  Tenakee  Springs
created a legal research committee to investigate the legality of
the  use  of  the wheelbarrow and the excavator on the  road  and
appointed MacDonalds neighbor, Merle Wilson, chair.
          After  the  committee was formed, Wilson took  it  upon
himself to personally impound the wheelbarrow.  In the course  of
the  impoundment he assaulted MacDonald, striking her with either
a  logging  chain or the metal end of a dog leash.   Wilson  also
attempted  a citizens arrest, ostensibly because MacDonald  tried
to assault him, and took MacDonald to his nearby house.  At trial
Wilson claimed that his actions were in self-defense.
          There was a factual dispute at trial over the extent to
which  Jack Riggs was involved.  MacDonald claims that Riggs,  an
ex-boyfriend, threatened her with a rifle during the assault  and
that after the assault both Riggs and Wilson forced her to return
to  Wilsons  house.  Riggs and Wilson claim that  Riggs  did  not
appear at the scene until after the assault occurred and that  he
was unarmed.  Riggs also claims that his actions after the attack
were aimed at assisting her with her injuries.
          After the attack MacDonald left Wilsons house and  made
her way to a nearby beach where other neighbors were present.   A
neighbor took her by boat into the center of town, where she  was
seen  by  local EMTs and had her injuries photographed. The  EMTs
flew  her  to a hospital in Juneau for additional treatment.   In
Juneau she was diagnosed with a skull fracture and transferred to
Harborview  Hospital  in Seattle.  She was discharged  after  two
days  at  Harborview but remained in a hotel in Seattle with  her
daughter  for  a week in case she needed followup treatment.   At
trial  Wilson  suggested that MacDonalds  injuries  were  not  as
severe as she claimed.
          Wilson  pled nolo contendere to assault and received  a
sentence  of six months in jail and four years probation.   Riggs
was  not  charged with assault.  After the assault, the  City  of
Tenakee  Springs initiated a lawsuit against MacDonald to  enjoin
her   from  using  the  motorized  wheelbarrow.   This  suit  was
eventually  settled  in  favor  of  MacDonald.   MacDonald   also
obtained a protective order against Riggs.
          With  respect to the lawsuit resulting in this  appeal,
MacDonald  originally brought claims of assault,  battery,  false
imprisonment,  and  intentional infliction of emotional  distress
against  Wilson,  individually and in his  official  capacity  as
Chairman  of  the Tenakee Springs Legal Research  Committee,  the
City  of  Tenakee Springs, and Riggs.  MacDonald  also  sued  the
parties listed above and Mayor Vicki Wisenbaugh, individually and
in   her  official  capacity,  under  42  U.S.C.   1983.    Riggs
counterclaimed  for  defamation.  The City  of  Tenakee  Springs,
Vicki  Wisenbaugh,  and  Wilson, in his official  capacity  only,
settled with MacDonald.  Since Wilson had pled nolo contendere in
his  criminal  case, the superior court granted summary  judgment
against  him  on MacDonalds claims of assault and  battery.   The
jury  awarded MacDonald $210,720.74 in damages from Wilson  as  a
result  of  the assault.  The jury found for Riggs on the  claims
against him and awarded him $35,000 in damages from MacDonald for
his  defamation  counterclaim.   MacDonald  made  motions  for  a
directed verdict and JNOV on the defamation counterclaim, both of
which were denied.  She now appeals the denial of her motion  for
JNOV.
III. DISCUSSION
          When  reviewing the denial of a motion  for  JNOV,  our
role  is  not to weigh conflicting evidence or judge .  .  .  the
credibility of the witnesses, but is rather to determine  whether
the  evidence,  when viewed in the light most  favorable  to  the
nonmoving party, is such that reasonable men could not differ  as
to their judgment.1
          MacDonald   argues  that  there  was  no  evidence   of
unprivileged  defamatory statements at trial  and  that  even  if
there  were such evidence the statements would be time-barred  by
the statute of limitations.  She also argues that Riggs presented
no  evidence  that  he suffered actual harm  resulting  from  the
defamatory statements.
     A.   Reasonable  Jurors  Could  Find  that  MacDonald   Made
          Unprivileged Defamatory Statements.
          
          MacDonald argues that Riggs failed to elicit or provide
testimony  addressing any of the elements necessary  to  prove  a
defamation claim.  The elements of defamation are (1) a false and
defamatory statement; (2) an unprivileged publication to a  third
party; (3) fault amounting at least to negligence on the part  of
the   publisher;  and  (4)  the  existence  of  either   per   se
actionability  or special harm.2  It is also necessary  that  the
recipient  of  the  defamatory  communication  understand  it  as
intended to refer to the plaintiff.3
          There  is  evidence  that MacDonald  made  unprivileged
statements  to  third  parties after the assault  that  could  be
construed  as  defamatory against Riggs.  MacDonald testified  on
direct examination that when she arrived in Tenakee Springs after
the  attack  she  told  a local resident, Barbara  Scanlan,  what
happened.   On cross-examination by Wilson, MacDonald stated  the
following:
          A    . . . I sat down in the chair, and . . .
               Barbara Scanlan came out . . . .
               
          Q    And  did you tell Barb Scanlan . . . how
               you sustained your injuries?
               
          A    She asked me what happened to me, and  I
               told her what happened.
               
          Q    As youve told us here in court?
               
          A    Yes.
               
(Emphasis  added.)   This  testimony  viewed  in  a  light   most
favorable  to non-movant Riggs would allow a reasonable  jury  to
infer   that  MacDonald  told  Scanlan  her  version  of   Riggss
involvement,  as  she had told it in court.  In  court  MacDonald
claimed that Riggs had threatened her with a rifle and forced her
back to Wilsons home at gunpoint.4
          MacDonalds daughter, Cynthia Roman, testified that  she
was   concerned  about  her  mothers  safety  immediately   after
returning  from  Seattle because neither one  of  them  had  been
arrested.   They were still out there.  (Emphasis  added.)   When
asked  about the use of the word they on cross-examination, Roman
stated  [Riggs]  was there.  A reasonable jury could  infer  from
this  testimony that MacDonald had told her daughter  that  Riggs
threatened her with a rifle and held her captive at gunpoint.5
          There  is  little  question that MacDonalds  statements
implicating   Riggs  as  a  participant  in  the   assault   were
defamatory.  A statement is defamatory if it tends  to  harm  the
reputation of another so as to lower him in the estimation of the
community  or to deter third persons from associating or  dealing
with him.6 Accusing someone of holding a woman at gunpoint in the
aftermath  of a vicious attack would qualify as defamatory  under
this definition.
          A  reasonable  jury  could also find  the  elements  of
falsity and fault.  Since the jury found for Riggs, it is evident
that  it  did  not  believe MacDonalds version of  events.   With
respect to fault, this element is met if a person knows that  the
statement is false and that it defames the other.7  Assuming  the
story  was  false, it is unlikely that MacDonald would have  told
the  entire  story to someone, as it was told in  court,  without
knowledge of the false and defamatory nature of her statements.
          Thus,   a  reasonable  jury  relying  on  the  evidence
described above, viewing the evidence in the light most favorable
to  Riggs,  could find that MacDonald knowingly  made  false  and
defamatory statements about Riggs.  The statements discussed were
not  made  in the course of any judicial proceeding and therefore
were not privileged.8
     B.   Riggss  Counterclaim  Relates  Back  to  the  Date   of
          MacDonalds Complaint.
          
          MacDonald  argues  that even if there  is  evidence  of
defamation  the jury should have been barred from considering  it
because  of  the  two-year statute of limitations for  defamation
lawsuits.9  MacDonald filed her complaint on March 21, 2003,  and
Riggs  filed  his  answer and counterclaim  on  April  15,  2003.
MacDonald  argues  that  because the statute  of  limitations  on
defamation  is  two  years,  Riggs was  barred  from  relying  on
          evidence of defamatory statements made prior to April 15, 2001.
All  of the evidence at trial concerned statements made after the
assault occurred on April 2, 2001, but before April 15, 2001.  We
hold  that Riggss counterclaim should relate back to the date  of
the complaint.
          Much of the Alaska jurisprudence on relation back deals
with  amendments to pleadings.  Civil Rule 15(c)  specifies  that
amendments  to pleadings relate back to the date of the  original
pleading if the claim or defense in the amendments arose  out  of
the conduct, transaction or occurrence set forth or attempted  to
be  set  forth  in the original pleading.  Under Rule  15(c)  [a]
compulsory  counterclaim relates back to the  date  of  a  partys
answer; a permissive counterclaim does not.10  This court has not
yet  dealt  with the issue presented here:  whether a  defendants
counterclaim  should relate back to the date the plaintiff  filed
the  complaint.   Unlike  Civil Rule 15,  Civil  Rule  13,  which
addresses  counterclaims,  does  not  specify  when  and   if   a
counterclaim  should relate back to the date  of  the  plaintiffs
complaint.
          Many   federal   jurisdictions  have   addressed   this
question.11  Most federal courts have elected to toll the statute
of  limitations for compulsory counterclaims from  the  date  the
complaint is filed:
               Although there is some conflict  on  the
          subject, the majority view appears to be that
          the  institution of plaintiffs suit tolls  or
          suspends  the  running  of  the  statute   of
          limitations     governing    a     compulsory
          counterclaim.    This   approach    precludes
          plaintiff,  when  the claim and  counterclaim
          are   measured  by  the  same  period,   from
          delaying the institution of the action  until
          the  statute  has  almost run  on  defendants
          counterclaim  so that it would be  barred  by
          the  time  defendant  advanced  it.   Nor  is
          plaintiff apt to be prejudiced by the tolling
          of  the  statute,  since  he  presumably  has
          notice at the time he commences his action of
          any  counterclaim arising  out  of  the  same
          transaction  as  his  suit.   Moreover,   the
          necessarily  close relationship  between  the
          timely  claim  and the untimely  counterclaim
          should insure that the latter is not stale in
          the sense of evidence and witnesses no longer
          being available; they should be as accessible
          for adjudicating the counterclaim as they are
          for the main claim.[12]
          
We  find  the majority federal rule to be based on sound  policy.
Therefore,  if Riggss counterclaim is compulsory, it will  relate
back to the date of MacDonalds complaint.
          Under  Alaska  Civil  Rule  13(a)  a  counterclaim   is
compulsory if it arises out of the transaction or occurrence that
is  the  subject  matter  of  the opposing  partys  claim.   When
          determining whether a counterclaim is based on the same
transaction  or occurrence we look to such things as whether  the
claims  are  logically related; whether they  involved  the  same
testimony,  parties, and exhibits; whether the facts are  related
in  time,  space, and origin; and whether the two claims  form  a
convenient trial unit.13  Here, both MacDonalds claim and  Riggss
counterclaim  are  closely related to Riggss involvement  in  the
assault,  so  they are related in origin.  The  two  claims  also
involve  the  same  parties and the same exhibits  and  formed  a
convenient   trial   unit.   Finally,  Riggss  counterclaim   was
logically related to MacDonalds assault claim.  If the  jury  had
found  for MacDonald on the assault claim against Riggs, it would
not  have  been  able to find for Riggs on the  defamation  claim
since  a  defendant is not liable for true statements. Therefore,
we  find that Riggss counterclaim was compulsory and relates back
to the date of MacDonalds complaint and Riggs may recover for any
defamatory  statements made by MacDonald after  March  21,  2001.
Because  the  assault occurred on April 2, 2001,  any  defamatory
statements regarding his role in the assault would have been made
after that date.
     C.   JNOV Regarding Damages Was Properly Denied.
          Slander  per  se  includes instances  where  the  words
impute  a  serious  crime to the plaintiff.14  According  to  the
Restatement  (Second)  of  Torts,  such  serious  crimes  include
offenses  punishable  by  imprisonment  in  a  state  or  federal
institution.15   The defamatory statements in this  case  involve
Riggs   threatening  MacDonald  with  a  rifle.  Alaska   Statute
11.41.220(a)(1)(A)  defines  assault  in  the  third  degree   as
plac[ing]  another  person in fear of imminent  serious  physical
injury by means of a dangerous instrument.  As a class C felony,16
this  is  punishable by jail time of not more than five  years.17
Therefore,  Riggss  defamation claim  involves  slander  per  se.
Slander  per se enables a jury to award general damages  for  the
purpose  of  compensating the plaintiff for  the  harm  that  the
publication has caused to his reputation.18
          Under Alaska law general damages for defamation per  se
may  be  awarded  without  any proof  of  damages.   In  City  of
Fairbanks  v. Rice, we noted that the superior court was  correct
in  finding that statements that are defamatory per se  obviat[e]
the  need for proof of damages.19  Similarly, in Alaska Statebank
v.  Fairco  this  court  upheld damages  for  a  defamation  case
involving  slander  per se on the basis that  [p]roof  of  actual
damages was . . . not necessary to support the award[].20
          Even  though  no proof of actual damages  was  required
given  the  slander  per se character of  Riggss  claim,  he  did
provide   evidence  of  actual  injury.   Riggs  testified   that
MacDonald destroyed [his] life.  In Gertz v. Robert Welch,  Inc.,
the  United States Supreme Court noted that it is appropriate  to
compensate  a defamation plaintiff for such things as  impairment
of   reputation   and   standing  in  the   community,   personal
humiliation,  and  mental  anguish and  suffering.21   MacDonalds
defamation  occurred  in a very small town and  involved  serious
allegations  against  Riggs.   Viewed  in  this  context,  Riggss
testimony could enable a reasonable juror to award damages on the
          basis that MacDonalds statements harmed Riggss reputation and
standing in the community and caused him emotional distress.
          The  superior court instructed the jury that for  Riggs
to  recover on his claim of defamation the jury had to find  that
Riggs  incurred  actual harm.  Since under Alaska  law  proof  of
actual damages is not required in cases involving slander per se,
this  instruction may have been erroneous.22  But any error would
have been favorable to MacDonald and thus may be ignored.
          Civil Rule 61 states that [t]he court at every stage of
the  proceeding  must  disregard  any  error  or  defect  in  the
proceeding  which does not affect the substantial rights  of  the
parties.   Here, since any error that occurred was  favorable  to
MacDonald, her substantial rights have not been impacted.
          We therefore conclude that the superior court correctly
denied MacDonalds motion for JNOV regarding damages.
IV.  CONCLUSION
          We  AFFIRM the superior courts denial of the motion for
JNOV  because there was sufficient evidence of defamation  for  a
reasonable  jury  to  find for Riggs.  The defamatory  statements
were not time-barred by the statute of limitations because Riggss
counterclaim  relates  back to the date of MacDonalds  complaint.
Since the defamatory statements in question were slander per  se,
Riggs did not have to provide proof of damages, and any error  in
the jury instructions on damages was harmless.
FABE,   Chief   Justice,  with  whom  BRYNER,   Justice,   joins,
dissenting.
I.   Introduction
          While the standard of review for the denial of a motion
for judgment notwithstanding the verdict is a deferential one,  I
believe  the  court today strains that deference  beyond  reason.
The  court holds that the record supports a finding of defamation
per se, yet it identifies no direct testimony that MacDonald made
a  statement  about  Riggs, much less a  statement  that  defamed
Riggs.   Instead,  the  court infers such a  statement  based  on
MacDonalds testimony that she told a neighbor what happened  mere
minutes after the assault and her daughters oblique references to
they  and  them  in  expressing concern for her  mothers  safety.
Neither  statement  affords  a basis  from  which  a  jury  could
reasonably  conclude that MacDonald made a defamatory  statement,
much  less  a  statement  that was defamatory  per  se   a  legal
category that requires that a statement be so unambiguous  as  to
be  reasonably  susceptible  of  only  one  interpretation.1    I
therefore respectfully dissent from the courts decision to uphold
the  denial of a motion for a JNOV.  Moreover, the jurys  verdict
in  spite  of  the lack of evidence is not surprising  given  the
trial  courts  failure  to  instruct  the  jury  that  privileged
statements  cannot serve as a basis for defamation  liability   a
failure that under the circumstances constitutes plain error.
II.  The Record Does Not Support the Jurys Verdict.
          In  finding  a basis for the jurys verdict,  the  court
cites  no  direct  testimony of a defamatory  statement,  instead
relying  on  inferences from the testimony of MacDonald  and  her
daughter.   The court relies on MacDonalds testimony  that,  upon
arriving in town and in search of help, she told Barbara  Scanlan
what happened.  MacDonald testified that when she arrived in town
with  blood  .  .  . dripping in [her] face and in  [her]  mouth,
Barbara  Scanlan said that she looked awful.  MacDonald  reported
her  response:  It  is awful.  MacDonald then proceeded  to  tell
Scanlan what had happened.  At no point during MacDonalds  direct
testimony  did she indicate that this conversation  included  any
mention  of Riggs.  Nor did she mention Riggs when cross-examined
about  her  statement  to  Scanlan.  To conclude  that  MacDonald
defamed  Riggs,  the  court relies on the  following  interchange
between MacDonald and Wilson during Wilsons cross-examination:
          Q.   And  did you tell Barb Scanlan . . . how
               you sustained your injuries?
               
          A.   She asked me what happened to me, and  I
               told her what happened.
               
          Q.   As youve told us here in court?
               
          A.   Yes.2
               
          The court infers from this testimony that MacDonald not
only mentioned Riggs to Scanlan, but that she also stated that he
brandished a weapon in a manner sufficient to constitute assault.
Then,  to  support  a jury verdict with no special  damages,  the
court  concludes  that this inferred statement, although  nowhere
          laid out in testimony, was defamatory per se  a subcategory of
defamation that requires that a statement be so unambiguous as to
be reasonably susceptible of only one interpretation.3
          Contrary  to  the  inference drawn by the  court,  this
testimony  falls far short of supporting a claim  that  MacDonald
made   an   unambiguous  statement  defaming  Riggs.    MacDonald
testified  that  when  she told Scanlan  how  she  sustained  her
injuries,  her explanation of those injuries was consistent  with
her  testimony in court.  But MacDonald did not testify in  court
that  Riggs  injured  her.   In  fact,  she  testified  that  she
sustained her injuries during Wilsons physical assault.   Because
Riggss  actions were not related to her injuries, this  testimony
does not even support a conclusion that MacDonald mentioned Riggs
to  Scanlan, much less that she defamed him.  The only thing that
can reasonably be inferred from MacDonalds testimony is that when
she  told Scanlan how she sustained her injuries, her explanation
was consistent with her in-court statements.
          A  second  statement cited by the court also  fails  to
support  the denial of MacDonalds motion for a JNOV.   The  court
quotes the testimony of MacDonalds daughter, Cynthia Roman,  that
she was concerned about her mothers safety because neither one of
them  had been arrested.  They were still out there.4  The  court
concludes  that  these indirect references, coupled  with  Romans
statement on cross-examination that [Riggs] was there,5 support a
finding of defamation per se.
          I  simply  cannot  agree  that these  vague  statements
support a conclusion that MacDonald made an unambiguous statement
to  Roman defaming Riggs.   In fact, the testimony does not  even
allude  to any statements by MacDonald  defamatory or  not.   And
contrary   to  the  courts  assumption,  it  is  not  a  foregone
conclusion that because Roman testified that she feared  for  her
mothers safety, MacDonald must have told her that Riggs assaulted
her.   In  fact,  Riggs  was present at  the  scene,  and  it  is
eminently  reasonable  for a daughter to  fear  someone  who  was
present  at  the  scene of a vicious attack on her  mother.   And
Roman  testified that she was concerned about her mothers  safety
even  before the attack, stating, I had been in Tenakee the  week
before  [the assault], and I had insisted she go to the  [Village
Public  Safety Officer] with me because I feared for her  safety.
When  asked to explain her concern, Roman testified that she  had
been  informed by a young man in town that Merle and  Riggs  have
tape recorders and theyre running around and theyre saying theyre
going  to  do something.  Roman also testified that she had  read
letters  from Riggs to her mother threatening to burn her  house,
threatening  to  poison  her  dogs.   In  sum,  Romans  testimony
provided ample support for her fear without MacDonald having told
Roman  anything  about Riggss actions on the day of  the  attack.
The  courts  inference that MacDonald must have told  Roman  that
Riggs  assaulted her is simply not justifiable when Roman had  so
many  independent reasons to fear for her mothers  safety  around
Riggs  including his presence at the scene of a vicious attack on
her  mother, his threatening letters, and a warning from a  young
man  in town.  Because the record lacks support for a finding  of
defamation,  much  less defamation per se, I  would  reverse  the
          superior courts denial of MacDonalds motion for a JNOV.
III. It Was Plain Error Not To Instruct the Jury on Privilege.
          Given  the  lack  of  evidence  of  any  statement   by
MacDonald about Riggs, one might wonder how the jury arrived at a
verdict of defamation.  The jurys verdict can be explained by the
trial  courts  failure to explain the boundaries of privilege  to
the  jury.   As a result, the jury was unaware that it could  not
legally  base  its  verdict  on MacDonalds  testimony  in  court.
Because  the  need for such an instruction was  obvious  and  its
omission  very  likely  affected the jurys  verdict,  the  courts
failure to instruct the jury on privilege amounts to plain  error
and would require reversal even if MacDonald had not moved for  a
JNOV.
          Although  the court correctly notes that MacDonald  did
not  object to the jury instructions,6 this does not preclude our
review  of the issue for plain error.7  Plain error exists  where
there  is an obvious mistake that creates a high likelihood  that
the  jury  will  follow  an  erroneous  theory  resulting  in   a
miscarriage  of  justice. 8  The courts failure to  instruct  the
jury  on  the boundaries of privilege in this case was an obvious
mistake.   The clear rule in Alaska is that witness testimony  is
absolutely  privileged.  Over thirty years  ago  we  adopted  the
virtually unanimous position of legal authorities that defamatory
testimony  by  a  witness  in a judicial  proceeding  .  .  .  is
absolutely privileged.9  And one element of any defamation  claim
is  an  unprivileged publication.  In a case such  as  this  one,
without  any direct evidence of statements other than those  made
in  the  course of judicial proceedings, it was an obvious  error
not to instruct the jury on the boundaries of privilege.
          I  am fortified in this conclusion by the fact that, in
addition  to  the  absolute privilege that  undoubtedly  protects
MacDonalds trial testimony, conditional privilege likely protects
one  of the statements on which the court today relies.  We  have
previously  recognized  a  conditional privilege  for  speech  on
matters  of public safety.10  Thus, any statement MacDonald  made
to  Scanlan upon her arrival in town  mere minutes after she  was
assaulted and her skull was fractured  may be protected  by  this
conditional  privilege.   Even assuming MacDonald  had  mentioned
Riggs to Scanlan, and even if she had stated that Riggs had a gun
two  statements  that  are not reflected  in  the  record    both
statements advance MacDonalds interest in her own safety and that
of  her  community.11   Public policy supports the  view  that  a
crime  victim seeking help mere minutes after an assault occurred
should  not  be concerned about liability.  Moreover, information
about  whether any of the assailants had a weapon is  undoubtedly
critical  to  law enforcement personnel who may  respond  to  the
situation.
          The  trial courts failure to instruct the jury  on  the
issue  of  privilege  very likely allowed the  jury  to  reach  a
verdict  based on an erroneous theory.12  In the absence  of  any
direct evidence of a defamatory statement by MacDonald, the jurys
verdict strongly suggests that it considered MacDonalds testimony
in  reaching its verdict.  As a result, it is highly likely  that
the  trial  courts failure to instruct the jury on the boundaries
          of privilege affected the outcome of the case.
          Because  the trial courts failure to instruct the  jury
on  the  boundaries of privilege very likely affected the verdict
in  this case, and the only inference supported by the record  is
the  inference  that  the  jury must have  mistakenly  considered
privileged  statements in returning a verdict  of  defamation,  I
respectfully dissent from the courts opinion.
_______________________________
     1     Holiday  Inns of Am., Inc. v. Peck, 520  P.2d  87,  92
(Alaska  1974); see also Ben Lomond, Inc. v. Schwartz,  915  P.2d
632, 635 (Alaska 1996).

     2     French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska  1996);
see also Restatement (Second) of Torts  558 (1977).

     3    Restatement (Second) of Torts  564 cmt. a (1977).

     4    The dissent argues that since MacDonald was answering a
question regarding how she had sustained her injuries, it is only
possible  to  infer that she told Scanlan how she  sustained  her
injuries.   Dissent at 16-17.  Since Riggs was  not  involved  in
physically injuring her, the dissent argues that one cannot infer
that  she  mentioned  Riggs to Scanlan.   Id.  at  17.   However,
MacDonald  had  earlier  testified that  she  told  Scanlan  what
happened in response to a question that asked what happened  when
you  arrived at the store?  The fact that her answers to the  two
different questions were exactly the same strongly suggests  that
her  second  answer should not be read as more limited  than  her
first.

     5     The  dissent argues that this evidence is insufficient
to  support  the jury verdict.  Dissent at 15-16.  While  this  a
close  call,  the  standard of review for a JNOV is  deferential.
This court will only take the step of overturning a jurys verdict
when the evidence, when viewed in the light most favorable to the
nonmoving party, is such that reasonable men could not differ  as
to  their judgment.  Holiday Inns of Am., Inc. v. Peck, 520  P.2d
87,  92  (Alaska  1974).  The reviewing court  may  look  at  the
evidence  and make reasonable inferences which may be drawn  from
the  evidence.  City of Delta Junction v. Mack Trucks, Inc.,  670
P.2d 1128, 1130 (Alaska 1983).  Here, it is reasonable to draw an
inference  from MacDonalds testimony that she told  other  people
that Riggs threatened her with a rifle.

     6     Green v. N. Pub. Co., 655 P.2d 736, 739 (Alaska  1982)
(citing Restatement (Second) of Torts  559 (1977)).

     7     Restatement (Second) of Torts  580B.  With respect  to
defamation  concerning a private person, or concerning  a  public
official or public figure in relation to a purely private matter,
a  person is also liable if they act in reckless disregard of  or
negligently fail to ascertain the false and defamatory nature  of
their statements.  Id.

     8     Statements made in the course of judicial  proceedings
are  protected by the doctrine of absolute privilege.  Lawson  v.
Helmer,  77  P.3d  724,  727-28  (Alaska  2003).   MacDonald   is
concerned   that  the  jury  based  its  verdict  on   privileged
statements  that she made during and regarding the lawsuit.   She
states  that [a] potential explanation for the jurys  verdict  on
the  defamation counterclaim . . . could be that  the  jury  felt
that  if  it  found that Mr. Riggs neither assaulted nor  falsely
imprisoned Judy MacDonald, then it must find that Judy MacDonalds
accusations  in  that  regard  are  defamatory.   The  fact  that
MacDonald  made  accusations about Riggs out of  court  that  she
later  repeated  in  court  would not immunize  the  out-of-court
accusations.  But as to the in-court accusations, the appropriate
method  to address potential jury confusion would have  been  for
the  court  to have issued a jury instruction on privilege.   See
Alaska   Civil  Pattern  Jury  Instruction  16.03  (1989   Rev.).
However,  MacDonald  did not object to the jury  instructions  on
defamation  or  request that a jury instruction on  privilege  be
included, even after raising the issue of privilege in her motion
for  a  directed  verdict.  Therefore, this  issue  can  only  be
reviewed  for  plain error.  Conam Alaska v. Bell Lavalin,  Inc.,
842  P.2d 148, 153 (Alaska 1992).  Plain error will be found when
an  obvious mistake exists such that the jury instruction creates
a  high  likelihood that the jury will follow an erroneous theory
resulting   in  a  miscarriage  of  justice.   Id.    (quotations
omitted).   We do not think there is a high likelihood  that  the
jury  erred  on  this  issue.   No  evidence  was  presented   of
statements  related to the judicial proceedings  that  were  made
prior to the trial, and we are confident that the jury understood
that  making  the  statements only during  the  trial  would  not
support a defamation claim.  After all, it is relatively easy  to
figure  out  that a defamation suit could not be brought  on  the
basis of statements not yet made.

     The   dissent   argues  that  MacDonalds   statements   were
conditionally  privileged.  Even if they  were,  this  would  not
change   the   outcome.   Conditional  privilege   only   shields
defendants  from  liability if they do not abuse  the  privilege.
Restatement  (Second)  of  Torts   599  (1977).    Abuse   of   a
conditional   privilege   occurs  when  a   defendant   publishes
information  that  she  knows to be false  or  acts  in  reckless
disregard  as  to  its truth or falsity.  Id.  600.   Thus,  mere
negligence as to falsity . . . is [not] treated as sufficient  to
amount  to  abuse of a conditional privilege.  Id. cmt.  b.   The
jury  found  in answer to a question in the special verdict  that
MacDonald made defamatory statements regarding Riggs knowing them
to  be false.  She thus abused any conditional privilege that may
have  existed.   Therefore, any error in failing to  instruct  on
conditional  privilege was harmless and thus, by definition,  not
plain.

     9     AS 09.10.070 states that an action for slander must be
commenced within two years of the accrual of the cause of action.

     10    Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 301
(Alaska  2006)  (citing Alaska R. Civ. P. 13(a), (b)  and  15(c);
Mogg v. Natl Bank of Alaska, 846 P.2d 806, 813-14 (Alaska 1993)).

     11     Alaska Civil Rule 13 is identical to Federal Rule  of
Civil Procedure 13.

     12     6  Charles Alan Wright, Arthur R. Miller &  Mary  Kay
Kane,  Federal  Practice and Procedure  1419, at 152-53  (2d  ed.
1990).

     13    Domke, 137 P.3d at 301.

     14    French v. Jadon, 911 P.2d 20, 33 (Alaska 1996).

     15    Restatement (Second) of Torts  571 (1977).

     16    AS 11.41.220(d).

     17    AS 12.55.125(e).

     18    Restatement (Second) of Torts  621 cmt. a (1977).

     19    20 P.3d 1097, 1107 (Alaska 2000).

     20     674  P.2d 288, 295 (Alaska 1983).  In 1974 the United
States  Supreme  Court found the common law rule that  allowed  a
jury  to  presume damages without proof of injury  in  defamation
cases dealing with matters of public concern to violate the First
Amendment,  at least when liability is not based on a showing  of
knowledge of falsity or reckless disregard for the truth.   Gertz
v.  Robert  Welch, Inc., 418 U.S. 323, 349 (1974).  In  1985  the
Court  declined  to  extend  the Gertz  prohibition  on  presumed
damages  to  defamatory statements on matters  that  are  not  of
public  concern.   Dun & Bradstreet, Inc. v. Greenmoss  Builders,
Inc.,  472  U.S. 749, 760-61 (1985).  Since Dun & Bradstreet  the
majority  of  states, Alaska included, have  continued  to  allow
presumed  damages  in  the  absence of  any  proof  of  harm  for
statements  that are defamatory per se and are not about  matters
of   public  concern.   E.g.,  Liberty  Nat.  Life  Ins.  Co.  v.
Daugherty, 840 So. 2d 152, 157 (Ala. 2002); City of Fairbanks, 20
P.3d  at  1107;  Gaudio v. Griffin Health Servs. Corp., 733  A.2d
197,  215  (Conn.  1999); Bryson v. News Am.  Publns,  Inc.,  672
N.E.2d 1207, 1214 (Ill. 1996); Stringer v. Wal-Mart Stores, Inc.,
151  S.W.3d  781, 795 (Ky. 2004); Costello v. Hardy, 864  So.  2d
129,  140 (La. 2004); Marston v. Newavom, 629 A.2d 587, 593  (Me.
1993); Foster v. Noel, 715 So. 2d 174, 184 (Miss. 1998); Chowdhry
v.  NLVH, Inc., 851 P.2d 459, 462 (Nev. 1993); Touma v. St. Marys
Bank,  712  A.2d  619, 622 (N.H. 1998); Constant  v.  Spartanburg
Steel  Prods.,  Inc., 447 S.E.2d 194, 197  (S.C.  1994).   A  few
states have overturned the traditional rule and require proof  of
injury  in  all  defamation cases.  United Ins.  Co.  of  Am.  v.
Murphy, 961 S.W.2d 752, 756 (Ark. 1998); Gobin v. Globe Pub. Co.,
649 P.2d 1239, 1243 (Kan. 1982);  Nazeri v. Mo. Valley Coll., 860
S.W.2d 303, 313 (Mo. 1993); Newberry v. Allied Stores, Inc.,  773
P.2d  1231,  1236 (N.M. 1989).  See generally David A.  Anderson,
Reputation,  Compensation and Proof, 25 Wm. & Mary  L.  Rev.  747
(1984)  (arguing that presumed damages should not be  a  part  of
defamation law).

     21    418 U.S. 323, 350 (1974); see also Restatement (Second)
of  Torts  621 cmt. a (1977) (noting that general damages can  be
awarded for emotional distress).

     22     The court gave the jury a special verdict form on the
defamation  counterclaim.  Question one asked  whether  MacDonald
made  defamatory statements regarding Riggs knowing  them  to  be
false.   Question two asked, [i]f the answer to  question  #1  is
yes, then what sum of money, if any, is awarded to Mr. Riggs from
Ms.  MacDonald as compensatory damages?  The special verdict form
was appropriate given the slander per se nature of the defamatory
statements.

1     French  v.  Jadon,  Inc., 911 P.2d  20,  32  (Alaska  1996)
(For  a publication to be defamatory per se, the words used  must
be  so  unambiguous as to be reasonably susceptible of  only  one
interpretation  .  .  .  .)  (internal quotations  and  citations
omitted).

     2    Slip Op. at 5.

3    French, 911 P.2d at 32.

     4    Slip Op. at 6.

     5    Id.

6    Slip Op. at 8 n.8.

     7     Shields v. Cape Fox Corp., 42 P.3d 1083, 1087  (Alaska
2002)   (holding  that  trial  courts  failure  to  instruct   on
comparative fault was plain error requiring reversal).

     8     Id. (quoting Alaska Marine Pilots v. Hendsch, 950 P.2d
98, 110 (Alaska 1997)).

     9     Nizinski  v.  Currington, 517 P.2d  754,  756  (Alaska
1974);  see also Gilbert v. Sperbeck, 126 P.3d 1057, 1059 (Alaska
2005); Lawson v. Helmer, 77 P.3d 724, 727 (Alaska 2003).

     10    Taranto  v.  N.  Slope Borough, 992  P.2d  1111,  1115
(Alaska  1999);  see also DeNardo v. Bax, 147  P.3d  672,  678-79
(Alaska  2006)  (holding  that  conditional  privilege  protected
worker who told her coworkers about threats).

     11    Of course, the conditional privilege can be lost where
the speaker acts with malice.  But malice is a higher standard of
fault  than that required for a claim of defamation of a  private
figure.   Moreover, evidence of ill will alone is not  sufficient
to  establish abuse of the privilege.  DeNardo, 147 P.3d at  681.
Finally,  the determination whether the conditional privilege  is
lost  is  generally a factual question for the jury.   We  cannot
conclude  as a matter of law that MacDonald knew that  Riggs  did
not  have a gun.  MacDonald testified that she heard Wilson  yell
at  Riggs  to  bring  a gun.  This statement occurred  during  an
assault  in which Wilson fractured MacDonalds skull.   Under  the
circumstances,  the  jury  could  conclude  that  MacDonald   was
mistaken but that she did not know her statement was false.

     12    In  reaching its conclusion that MacDonald abused  any
conditional  privilege, the court relies on the jurys affirmative
answer  to  a  special  verdict  question  that  asked:  Did  Ms.
MacDonald make defamatory statements regarding Jack Riggs knowing
them  to be false?  But the elements instruction provided to  the
jury  differed from the special verdict question, and,  in  fact,
the  instructions allowed the jury to find liability if MacDonald
reasonably should have known that her statements were false.   As
a result, the jury could have based its special verdict answer on
a  finding  that MacDonald was negligent in failing to  recognize
that  her  statements  were false  a finding  not  sufficient  to
establish  abuse  of a conditional privilege.   Thus,  the  trial
courts failure to instruct the jury on privilege cannot be deemed
harmless error.

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