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Lavin v. Maine Medical Center

Superior Court of Maine, Cumberland

March 15, 2017

ROBERT LAVIN, Plaintiff
v.
MAINE MEDICAL CENTER, Defendant

          Thomas D. Warren, Justice

         Before the court is a motion by defendant Maine Medical Center (MMC) to dismiss plaintiff Robert Lavin's amended complaint for defamation. Lavin alleges that he was an employee of MMC and that he was falsely accused by "management" of being under the influence of alcohol at work. Amended Complaint ¶ 8.

         To state a cause of action for defamation, the Plaintiff must allege:

(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting to 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.

Morgan v. Kooistra, 2008 ME 26 ¶ 26, 941 A.2d 447; Restatement (Second) Torts § 558.

         "Special harm" in the context of defamation means economic or pecuniary harm. Restatement (Second) Torts § 575 comment b. A defamatory communication may be actionable without special harm if the defamatory communication would adversely affect the plaintiff in his business or profession (slander per se) or if the defamatory communication is written (libel). See Cookson v. Brewer School District, 2009 ME 57 ¶ 27, 974 A.2d 276; Ballard v. Wagner, 2005 ME 86 ¶ 10, 877 A.2d 1083.

         Lavin has asserted two counts in his complaint. Count I sets forth a claim of defamation. Count II sets forth a claim for "slander/libel per se" asserting that the alleged defamation by MMC falls within the subcategories of defamation that, as noted above, do not require proof of economic or pecuniary damages.

         While Lavin's amended complaint includes factual allegations that he was falsely accused of being under the influence at work, allegedly in retaliation for some complaints he made about inappropriate conduct by other employees, it provides almost no detail as to the alleged defamation itself.

         For purposes of a motion to dismiss, the material allegations of the complaint must be taken as admitted. The complaint must be read in the light most favorable to plaintiff to determine if it sets forth elements of a cause of action or alleges facts that would entitle petitioner to relief pursuant to some legal theory. In re Wage Payment Litigation, 2000 ME 162 ¶ 3, 759A.2d217.

         At the same time, the court is not obliged to accept conclusory allegations and legal conclusions that are bereft of any supporting factual allegations. In this case count I of the amended complaint simply recites the elements of defamation (Amended Complaint ¶¶ 18-22), stating only that the defamatory statement was communicated "through inter-company "communication and self-published by plaintiff." Amended Complaint ¶ 21. Moreover, there is no direct allegation of special harm except an apparent reference to the ad damnum clause. Amended Complaint ¶ 22. This is insufficient.

         Similarly, although Count II purports to be a claim for both slander per se and libel, it merely recites the elements of slander per se and nowhere alleges that the defamation was ...


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