A recent case in Massachusetts illustrates the importance of stating professional opinions as opinions and not facts. In this case, a homeowner hired a firm to investigate the cause of a leaky roof. The investigator stated that the roof had been installed over a fiberboard roof insulation that was soaking wet. The homeowner sued the roof installer who then sued the investigator for defamation.
Defamation is an intentional false communication either published (libel) or publicly spoken (slander) that injures someone’s reputation or good name. The communication must be false and cause actual injury to the party’s reputation, such as a loss of business opportunities.
In the case above, the lower court granted a motion for summary judgment. The motion was affirmed on appeal on the basis that the statement was conditionally privileged and the investigator did not act with reckless disregard for the truth, which would have waived the privilege.
Conditional privilege existed because the court determined that there was a “common business interest” between the homeowner and the investigator and the investigator’s comments furthered this common business interest since it affected the homeowner’s decision as to how to repair the leaky roof. Conditional privilege exists even when there is negligence as long as the statement was not made recklessly. The court found that the roofing contractor failed to introduce sufficient evidence to establish that the investigator published the statements “recklessly.”
There had been discussion by the court as to whether the investigator’s statement was “fact” or “opinion.” The appellate court concluded that the statement by the investigator was not “in any way introduced as an expression of opinion. Nor was the statement expressly qualified or limited as being based on the results of particular observations.” The investigator was lucky that the court also found conditional privilege or else the defamation case may have proceeded to trial.
Remember that truth is always a defense against defamation. Be sure that statements made to third parties are based on facts. Also, statements that are qualified as opinions should also be based on facts. Opinions that may defame another party without some rational basis may result in a defamation claim.
In this case, the investigator should have described how and when he evaluated the problem and included any assumptions or limitations on what was observed. He also should have stated that his conclusions were a “professional opinion” based upon his observations.