Crismale v. Walston

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CRISMALE v. WALSTON—CONCURRENCE

LAVINE, J., concurring. I concur in the result, but
write separately to express my disagreement with one
aspect of the majority opinion.
The majority concludes that the statement made by
the defendant Christopher Andrew Walston1 to a
reporter—‘‘I nailed him, and I nailed him good’’—is a
statement of fact, as claimed by the plaintiff, Nicholas
Crismale, not a statement of opinion, as asserted by the
defendant, but is not defamatory. The majority opinion
states that ‘‘it appears clear to us that the defendant
was telling the reporter that he was the person responsi-
ble for alerting the authorities to the plaintiff’s activities;
he detected those activities and exposed them to the
enforcement officers, which is exactly what the parties
agree happened in this case.’’
I do not agree. In my view, the statement could be
viewed as a statement of fact or a statement of opinion
or an amalgam of both. It could be viewed as a statement
of fact if interpreted to mean: ‘‘I am responsible for
his arrest.’’ However, to conclude that it is merely a
statement of fact, the majority engages in some creative
interpretation of the statement. The statement can be
viewed as, in part, expressing an opinion because stat-
ing that you have ‘‘nailed’’ someone ‘‘good’’ does not
seem to be merely a statement of objectively verifiable
fact; rather, it also carries the broader implication that
a bad person is getting his or her just desserts by being
harshly and deservedly punished. It is factual insofar
as it states that the defendant’s actions caused the plain-
tiff to be arrested; but it carries an implication of opinion
insofar as it expresses the speaker’s view that someone
who ought to be punished is being punished. It is, in
other words, not a mere factual assertion, but also a
gleeful proclamation that justice has been done.
In determining whether a statement is fact or opinion,
which is a question of law; see Goodrich v. Waterbury
Republican-American, Inc., 188 Conn. 107, 110, 448
A.2d 1317 (1982); context is critical. ‘‘To determine
whether a statement constitutes protected opinion or
actionable fact, courts consider the totality of the cir-
cumstances, including such factors as: (1) the specific
language used; (2) whether the statement is verifiable;
(3) the general context of the statement; and (4) the
broader context in which the statement appeared.
‘‘The emphasis in the test for determining the action-
ability of an allegedly defamatory statement of opinion
is whether the statement contains an objectively verifi-
able assertion. To ascertain whether the statements in
question are provably false factual assertions, as
required for defamation liability, courts consider the
totality of the circumstances. In applying the totality
of the circumstances test for determining whether a
published statement constitutes an ‘opinion,’ the court
seeks to determine whether the allegedly defamatory
statements are objectively capable of proof or disproof,
for a reader cannot rationally view an unverifiable state-
ment as conveying actual facts. Where the allegedly
defamatory statement lacks a plausible method of verifi-
cation, a reasonable reader will not believe that the
statement has specific factual content.
‘‘It has also been ruled that in the context of a defama-
tion claim, the test for whether a statement constitutes
fact or opinion is whether an ordinary or reasonable
person would be likely to understand the remark as an
expression of the source’s opinion or as a statement of
existing fact . . . .’’ (Footnotes omitted.) 50 Am. Jur.
2d 533–34, Libel and Slander § 163 (2017).
Colloquial and figurative expressions used to embel-
lish disclosed facts may be viewed as statements of
opinion. Goodrich v. Waterbury Republican-American,
Inc., supra, 188 Conn. 121–22. In addition, ‘‘[s]tatements
that are relative in nature and depend largely upon the
speaker’s viewpoint are expressions of opinion.’’ Fuste
v. Riverside Healthcare Assn., Inc., 265 Va. 127, 132,
575 S.E.2d 858 (2018).
I would also note that the defendant repeated his
statement that he had ‘‘nailed’’ the plaintiff. The second
iteration was for emphasis, which, I think, supports the
argument that the statement is tinged with opinion.
Under all of the circumstances, I believe that the
statement resides more on the opinion side of the ledger
and, thus, cannot be defamatory. However, I am
unaware of any case decided by our Supreme Court or
this court that clearly addresses this question in the
present context.
For the foregoing reasons, I respectfully concur in
the result.
1
Jeffrey Samorajczyk and Todd Aaron Chemacki were also named as
defendants. The trial court rendered summary judgment in favor of those
defendants, and the merits of that judgment are not before this court.
Throughout this concurring opinion, I, thus, refer to Walston as the defen-
dant. See footnote 1 of the majority opinion.