Virginia Lawyers Weekly VA Lawyers Weekly
Although all of the complained-of news reports fall within the statute of limitations, plaintiff’s defamation claims are dismissed because the statements are true and lack the necessary “sting” to be actionable defamation. Further, some of the statements are opinions.
Plaintiff’s claim for intentional infliction of emotion distress is dismissed because defendant did not engage in outrageous conduct. His negligent infliction claim fails because he did not show he suffered a physical injury resulted from his claimed emotional distress.
Facts
Plaintiff was the athletic director at defendant college. Defendant advised him that he was being placed on administrative leave on June 12, 2016, and officially terminated him on June 28, 2019. After the June 12 notice, plaintiff emailed the athletic department and said he was taking some personal time.
A June 27, 2019, news story quoted Paine, a college official, as saying plaintiff was taking some time off, that he couldn’t comment further and would not comment on speculation whether plaintiff was still the athletic director.
A July 18 news story reported that plaintiff and defendant had severed their relationship and quoted Paine as saying plaintiff asked that the college not make comments to the press, that plaintiff’s request would be honored and that a search for a new athletic director would be conducted later in the summer.
A July 19 news story reported that defendant was looking for a new athletic director and that plaintiff’s request not to comment to the press would be honored.
Plaintiff issued a press release to announce he was suing defendant. Defendant declined to comment. In an Oct. 3, 2019 news story, defendant told reporters that “Ferrum College has been more than fair to Mr. Naff, and we have acted in the best interest of the College and its athletics department.”
In his complaint, plaintiff alleged that he has suffered “suffered physical injury in the form of worsened prostate problems and weigh loss followed by unusual weight gain, severe emotional distress, depression, insomnia, crying spells, anger, fear, stress, lack of pleasure and enjoyment in activities, interference with family relations, loss of income and benefits, loss of employment, loss of self-esteem and self-confidence, humiliation, anxiety, financial hardship, and other damages.”
Discussion
Defendant has responded with a plea in bar, arguing that the statute of limitations bars plaintiff’s defamation claims.
“The Court finds that all the articles, including the June 27, 2019, are properly before the Court, finding they relate back to the original filing. Also, the statute of limitations was extended by one hundred twenty-six days (126) days because of the Declaration of Judicial Emergency for all but a portion of the June 27 statement. The Plea in Bar is overruled. …
“Plaintiff alleges that the statements referred to herein are defamatory by implying that he (i) was terminated due to performance reasons, (ii) lacked integrity and credibility to perform his job duties, (iii) was unfit to perform his job duties, (iv) was prejudice in profession and trade, and (v) struggled with addiction therefore unfit for his job. …
“The Court finds that these statements are not actionable as a matter of law as they are not false, are not defamatory, and do not reasonably imply a defamatory meaning. None of the statements are false, namely: taking time off, on leave, no comment, ask not to comment and have not been contacted to make a comment. All the statements are true.
“Furthermore, none of these statements contain the requisite ‘sting.’ There is nothing in these statements that are unpleasant or offensive, much less imply that the Plaintiff was terminated for performances reasons, unfit for his job or struggled with addiction. The statements made in the news article are neutral and do not imply any actionable defamatory statements.
“The plaintiff is attempting to extend the meaning of the words used by the defendant which is explicitly prohibited in defamation by implication claims. …
“Lastly, the statement made to the Roanoke Times on October 3, 2019, the Court finds is an opinion of the defendant. The defendant’s statement ‘I can assure you that Ferrum College has been more than fair to Mr. Naff, and we have acted in the best interest of the College and its athletics department,’ is relative in nature and depends largely on a speakers viewpoint, hence the statement is an expression of opinion. … Therefore, there is not an actionable claim for defamation as a matter of law. …
“The liability for intentional infliction of emotional distress ‘arises only when the emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it.’ …
“The Court finds that the plaintiff has failed to state facts sufficient to establish that the defendant’s conduct was outrageous or intolerable and failed to establish a causal connection between defendant’s conduct and the emotional distress. …
“The plaintiff asserts a claim for negligent infliction of emotional distress against the defendant. The plaintiff must plead sufficient facts to establish that the plaintiff suffered a ‘physical injury’ caused by the defendant’s negligence. Myseros v. Sisslet, 239 Va. 8, 11 (1990).
“Plaintiff allegations are insufficient to demonstrate a physical injury which is required for a negligent intentional emotional distress claim. Evidence of symptoms or magnification of physical injury not [merely] of an underlying emotional disturbance is required.”
Plaintiff physical complaints “are very close to the claims made by plaintiff in Myseros. The plaintiff has set forth in his amended complaint typical symptoms of an emotional disturbance, not physical injury, therefore the plaintiff has failed to set forth sufficient facts for a cause of action of negligent infliction of emotional distress.”
The plea in bar regarding the statute of limitations is overruled. Defendant’s demurrers to the defamation and emotion distress counts are sustained. The complaint is dismissed with prejudice.
Naff v. Ferrum College, Case No. CL20-3549, April 19, 2021, Franklin County Cir. Ct. (Moreau). Carrol M. Ching, Todd Leeson for the parties. VLW 021-8-068, 10 pp.
