Hughley v. McDermott

KARWACKI, Judge. David E. Hughley appeals from a summary judgment rendered against him by the Circuit Court of Prince George’s County in the defamation action he filed against Michael T. McDermott, the appellee. We disagree with the hearing judge’s conclusion that the pleadings, depositions, answers to interrogatories, admissions and affidavits filed in the proceeding showed that there was no genuine dispute between the parties as to any material fact and that the appellee was entitled to judgment as a matter of law. Consequently, under Rule 2-501, summary judgment was not appropriate, and we shall vacate that judgment and remand the case for trial.

We restate the questions presented by the parties as follows: 1. Did the appellee enjoy an absolute privilege in publishing the allegedly defamatory matter because of appellant’s actual or implied consent to its publication? 2. Was the content of the publications actionable as defamation? 3. Did the appellee abuse the qualified privilege he enjoyed to publish the defamatory matter concerning the appellant?

We address these issues in the context of the role of the court in hearing a motion for summary judgment, which the ³⁹⁴ Court of Appeals succinctly described in Berkey v. Delia, 287 Md. 302, 304-05 , 413 A.2d 170 (1980): The function of a summary judgment proceeding is not to try the case or to attempt to resolve factual issues, but to determine whether there is a dispute as to a material fact sufficient to provide an issue to be tried. Peck v. Baltimore County, 286 Md. 368 , 410 A.2d 7 (1979); Honaker v. W.C & A.N. Miller Dev. Co., 285 Md. 216, 231 , 401 A.2d 1013 (1979); Dietz v. Moore, 277 Md. 1, 4-5 , 351 A.2d 428 (1976), and cases there cited. All inferences must be resolved against the moving party when a determination is made as to whether a factual dispute exists.

This is true even if the underlying facts are undisputed. Peck, 286 Md. at 381 [ 410 A.2d 7 ]; Honaker, 285 Md. at 231 [ 401 A.2d 1013 ]; Merchants Mortgage Co. v. Lubow, 275 Md. 208, 217 , 339 A.2d 664 (1975); James v. Tyler, 269 Md. 48, 53-54 , 304 A.2d 256 (1973); Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14 , 155 A.2d 691 (1959); and White v. Friel, 210 Md. 274, 285 , 123 A.2d 303 (1956). We have observed that the function of the trial judge on such a motion is much the same as that which he performs at the close of all the evidence in a jury trial when a motion for a directed verdict or a request for peremptory instructions makes it necessary that he determine whether an issue requires resolution by a jury or may be decided by the court as a matter of law. Honaker [285 Md.] at 232 [ 401 A.2d 1013 ], citing Porter v. General Boiler Casing Co., 284 Md. 402, 413 , 396 A.2d 1090 (1979).

In Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 , 265 A.2d 256 (1970), cited in Peck, Honaker and Porter , we said, “[E]ven where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact.” The record before the hearing judge discloses the following “facts.” ³⁹⁵ The appellant applied to the Maryland-National Capital Park and Planning Commission (MNCPPC) for the position of a Park Police Officer in October of 1981. He was accepted as a Park Police candidate on August 9, 1982. At that time he was advised that he would have to complete candidate training school, as well as a 12 month probationary period before final acceptance as a Park Police Officer. He worked as a police dispatcher through November of 1982 and then entered the Police Academy in Prince George’s County.

After completing his training at the Academy in April of 1983, he began field patrol training. When the appellant learned that he might be transferred to the horse mounted training unit, he wrote to Captain George Klotz, who was the commanding officer of that unit. He advised Captain Klotz that he had “no love of horses,” and would be uncomfortable in mounted training. Captain Klotz met with the appellant, and the appellant explained his reservations about working with horses, relating his limited personal experiences with horses which included vivid childhood recollections of falling off a pony and of a disfiguring injury suffered by his uncle who was kicked in the face by a horse.

Nevertheless, Captain Klotz informed the appellant that he was a “natural” for mounted training because he “was bowlegged and skinny,” and convinced the appellant to “try” the mounted unit. He began training with the mounted unit on August 15, 1983. The appellant’s first contact with horses precipitated the onset of nausea which plagued the appellant whenever he rode a horse or was in a stall with one. His symptoms progressed from “mild stomach problems” to vomiting.

At first the appellant was determined to overcome his fear which he felt produced the physical discomfort he experienced. At the conclusion of the first week of training the appellant informed Captain Klotz that he was “uncomfortable.” On the morning of Monday, August 22, 1983, the appellant had stomach cramps and diarrhea, and called in sick. On the following Tuesday and Wednesday he participated in the program but advised his supervisors of his ³⁹⁶ condition. The appellant was absent from work from August 25 until September 6 because he was experiencing leg, back and hip pain from riding horses.

The appellant sought medical treatment from Dr. Gary Jones at his group health association for this problem. When he returned to work on September 6, 1983, the appellant again spoke with Captain Klotz who insisted that the appellant complete mounted training, notwithstanding appellant’s pleas that his illnesses were related to contact with horses. Later that day the appellant went to see Dr. Ann L.B. Williams, another physician at his group health association. On September 7, 1983, Dr. Williams, after consulting a psychiatrist, wrote a letter to MNCPPC on the appellant’s behalf which recommended that the appellant be excused from mounted training because of his “extreme anxiety with associated physical symptoms” when around horses.

On September 12, 1983, appellant was summoned to appear before Lieutenant Robert Fox of the mounted unit. After they discussed the problems which appellant had experienced with horse mounted training, Lieutenant Fox told appellant that he would have to see the appellee. Two days later appellant received a telephone call from Lieutenant Fox advising him to report for an appointment with appellee that evening. The appellee, a psychologist, had contracted with MNCPPC to act as its consultant and to provide counseling and referral services for its employees who needed help in resolving emotional problems which affected their work.

The appellee met with the appellant for approximately 30 minutes on September 14, 1983. At that meeting the appellant described his above mentioned unhappy childhood experiences with horses, and his observations as a Park Police candidate that several mounted officers had injured their knees as a result of horseback riding accidents. He chronicled his physical reactions to horseback riding and to being in a stall with a horse. He ³⁹⁷ told the appellee that Captain Klotz insisted that he ride, and that other officers referred to the captain’s methods of training as “Gestapo tactics.” The appellee advised the appellant that he believed that the appellant had a real phobia of horses and that he would recommend his transfer from mounted training, but Colonel Leslie had told the appellee that if the appellant didn’t ride, the appellant would be fired.

The appellant informed the appellee about Dr. Williams’ letter and that she had consulted a psychiatrist before rendering an opinion. The appellee suggested hypnosis to treat the appellant’s phobia. The appellant refused this suggestion. The appellee insisted that he was going to recommend treatment.

The appellant responded, “you are the psychiatrist, you can recommend anything you want to.” The appellee responded, “I will do that, then____ They told me you had an authority problem but I don’t think you have one, I don’t think you are abnormal.” Finally, the appellee agreed to provide a copy of his diagnosis to the appellant. On September 29, 1983, the appellant was ordered to appear before Major Richard Belt of MNCPPC, Larry Brownlee of the Fraternal Order of Police, and the appellee. The appellee opened the meeting by stating that he had advised Major Belt that appellant’s phobia of horses was real. Appellee next stated that he and appellant had agreed that appellant would submit to hypnosis to treat his phobia.

At that point appellant interrupted and advised those present that he had not agreed to hypnosis. That contradiction precipitated an argument between appellant and appellee, and the meeting deteriorated. The appellee told the appellant to sign a “release” for his lawyers before leaving the meeting. The appellant complied.

That document, preprinted with blanks which were completed in handwriting, is entitled “Consent for Release of Confidential Information.” As completed and signed on September 29, 1983, it provided: I do hereby authorize Michael T. McDermott, Ph.D. to disclose to Major Belt the following information: Diagno ³⁹⁸ sis and Recommendations for the purpose of suitability for mounted training. In retaliation for the embarrassment which appellant’s contradiction of appellee’s report to his clients at the September 29, 1983 meeting had caused appellee, on October 4, 1983, the appellee wrote to Major Belt: At the request of Lt. Fox, I conducted an evaluation of POC David Hughley on September 22, 1983. 1 As an outcome of this evaluation, a meeting was scheduled with you and Mr. Hughley on September 29, 1983. The purpose of these meetings was to determine if POC Hughley suffers a phobic reaction to horses which prevents him from receiving training in the Mounted Unit.

It is my opinion based on the session with Officer Hughley and conversation with other officers that no such phobic reaction exists and the symptoms of anxiety (stomach cramps) are presentations of false and grossly exaggerated symptoms. The symptoms appear to be produced to avoid working in the Mounted Unit and specifically to avoid working under the command of Captain Klotz. In a word, this is termed “malingering.” Most notable in the process of arriving at this diagnosis was POC Hughley’s lack of cooperation with the evaluation and prescribed treatment regimen. I will supply you with a full detailed explanation of these findings in the near future.

If I can be of further assistance in this matter, please feel free to call me. As he had promised, the appellee supplemented that correspondence on October 22,1983. On that date he related to Major Belt: . This report will elaborate on my letter of October 4, 1983 regarding POC Hughley in which I reported my findings that he was “malingering” in regard to work on the Mounted Unit. ³⁹⁹ I met with POC Hughley at my private office on September 22, 1988 2 at the request of Lt.

Fox. In his communication with me Lt. Fox indicated that POC Hughley was being sent to me because he had developed a sudden and severe phobic response to horses. Lt.

Fox also indicated that POC Hughley had been riding horses for over two weeks when the symptoms occurred and there was some concern that the onset of symptoms was a scheme on POC Hughley’s part to get out of the Mounted detail. In my meeting with POC Hughley he came across as quite anxious, deferential, and eager to please. He detailed the severe stomach cramps he developed around horses and communicated the diagnoses of his doctor at GHA. He could not explain why initially he had been able to ride horses without experiencing such symptoms.

Throughout the interview he repeatedly remarked how difficult it was to work for Capt. Klotz because of the Captain’s disciplined approach to training and running the unit. Often these comments were quite bitter, referring to the Captain as the equivalent of a “Nazi.” He also stated that riding was “hard work” (physically taxing) and that it left him quite tired. Upon further exploration of these issues with POC Hughley it surfaced that his stomach cramps first emerged when he was ordered to clean the stables.

Repeatedly he told me of the instances where he had to go home sick and in each case prior to the onset of cramps there was a direct order from a superior officer. I told POC Hughley that I thought his problem was more related to authority figures that [sic] horses, which he denied. So I invited him to participate in one of two psychotherapy programs which have proven extremely effective in the treatment of phobias (either hypnotherapy or systematic desensitization). POC Hughley agreed to pursue the hypnotherapy program and I ⁴⁰⁰ told him I would talk to his superiors about this plan to resolve the horse phobia problem.

On September 27, 1983, as you recall Major, I met with you and outlined the treatment plan for POC Hughley and proposed how his pursuit of treatment could be used to settle the matter. If he went for