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Scheman v. Hopkington Basketball Association, Inc.; 30 Mass.L.Rptr. 89; Can You be Liable for Defamation by NOT Saying Something?

The practice area of torts has several types of causes of action. The most commonly considered actions are those in negligence. "In order to prevail on a claim for ordinary negligence, a plaintiff must show “that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage.” Jupin v. Kask, 447 Mass. 141, 146 (2006)." Scheman v. Hopkinton Basketball Ass'n, Inc., CIV.A. 2011-04166, 2012 WL 3030249 (Mass. Super. July 18, 2012)

But there are other torts, equally as interesting, such as intentional infliction of emotional distress. "In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must show “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct ...; (2) that the conduct was ‘extreme and outrageous,’ was ‘beyond all possible bounds of decency’ and was ‘utterly intolerable in a civilized community’ ...; (3) that the actions of the defendant were the cause of the plaintiff's distress ...; and (4) that the emotional distress sustained by the plaintiff was ‘severe’ (citations omitted)” (internal quotation marks omitted). Howell v. Enterprise Publ'g Co., 455 Mass. 641, 672 (2010)

In the recent case of Scheman v. Hopkinton Basketball Ass'n, Inc., however, the issue of defamation was most prevalent. The court reiterated the law: "To prevail on a libel claim, a plaintiff must ordinarily establish that the defendant published a written statement of and concerning the plaintiff, that was both defamatory and false,3 and either caused economic loss or is actionable without proof of economic loss.4" Stanton v. Metro Corp., 438 F.3d 119, 124 (1st Cir.2006), Scheman v. Hopkinton Basketball Ass'n, Inc., CIV.A. 2011-04166, 2012 WL 3030249 (Mass. Super. July 18, 2012)

What is so intereseting about this case is that the defamation claim moved past a motion for summary judgment, even though the fact pattern showed that the defendant did NOT say something, claiming that silence may have amounted to defamatory conduct. The fact pattern is as follows.

The Hopkington Basketball Association is a children's basketball league. It had been around for three years at the time of this action and was run primarily by volunteers. The plaintiff in this case was a basketball coach who had been appointed to coach the 7th grade A team. About a week after his appointment, the board received a few complaints about the plaintiff's coaching style and, when presented with another applicant, decided to remove the coach.

The league approached the coach and asked that he submit his resignation and explain to the parents and children that he was leaving the team. Coach Scheman didn't agree. So, the league removed him, appointed his replacement, and sent an email to the parents stating, basically, that the the coach was removed after an investigation and that they were confident that the season would be a great success.

Of course, the children's parents had some concerns from receiving that email and began to ask questions about the circmstances surrounding the coach's removal. Those requests were initially met with silence, followed by an email reiterating the league's position that the coach was removed for confidential reasons and that the matter would not be discussed further. Within days, the Penn State child molestation scandal broke. Children in the coach's son's grade began calling his father a child molester. The league, although aware of these new facts, remained silent. Mr. Scheman brought suit.

Among other grounds, the league moved to dismiss the action based on there not being sufficient facts plead to support a claim for defamation. The court denied this, stating, “Words not inherently disparaging may ... have that effect if viewed contextually, i.e., in the light of attendant circumstances.” Id., citing Smith, 374 Mass. at 529–530 (letter stating that plaintiff was no longer welcome at restaurant due to her actions was susceptible of disparaging interpretation), and Sharratt, 365 Mass. at 145. Scheman v. Hopkinton Basketball Ass'n, Inc., CIV.A. 2011-04166, 2012 WL 3030249 (Mass. Super. July 18, 2012)

Essentially, the court took the position that although the league said nothing directly defamatory, due to the circumstances, the league's minimal explanation may amount to defamatory conduct. Click here to learn more about .

Categories: Defamation, Libel, damages

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