This is а defamation action, before us on further appellate review. The plaintiff, John P. Harrington, and the two defendants, William M. Costello and John A. Perry, are Roman Catholic priests. Harrington claims that the defendants published, in the parish where Harrington was serving, a false and defamatory statement to the effect that a parishioner had accused Har
Harrington argues that under proper application of the so-called discovery rule, the statute of limitations is tolled until the plaintiff knows the identity of the defendant. He claims that here, although he knew that Costello and Perry had published the defamatory
1. Background, a. Facts. We summarize the facts alleged in Harrington’s complaint, accepting them as true. Golchin v. Liberty Mut. Ins. Co.,
Thereafter, Perry contacted Harrington and informed him of the stalking accusation conveyed by Costello. The accusation of stalking was false, as Harrington explained to Perry; he urged Perry to speak to the parishioner directly. Perry did so, and then spoke again to Harrington, telling him that the parishioner said that she had never told Costello that Harrington was stalking her son. What the parishioner in fact said to Perry, however, was that she had spoken with a coworker, Michael LeBrun, about “her son’s situation,” not Costello, but that she had never informed LeBrun or anyone else that Harrington was stalking her son. Perry thus withheld from Harrington everything the parishioner told him other than that she had not personally conveyed the stalking accusation to Costello.
Harrington then spoke to Costello, who informed Harrington that he, Costello, had been mistaken: it had not been the parishioner who told him of the stalking accusation, but instead had been a coworker of that parishioner, a man who was a member of St. Anthony’s congregation and a Mend of Costello’s. Although Hamngton asked Costello for the name of thе coworker, Costello refused to provide it, as did Perry when Harrington later asked him for the name — although Perry made it clear he knew the name.
On November 6, 2007, Harrington finally learned of Le-Brun’s identity.
b. Procedural history. On November 1, 2010, Harrington filed his complaint against Perry and Costello in the Superior Court. Thereafter, the defendants moved to dismiss the complaint on statute of limitations grounds, arguing that the applicable three-year limitations period, see G. L. c. 260, § 4, barred Harrington’s suit. A Superior Court judge granted the motion, concluding that the discovery rule did not toll the statute of limitаtions, because all the facts giving rise to the cause of action for defamation against the defendants were known to Harrington in 2005, five years before the complaint was filed. The judge also ruled that G. L. c. 260, § 12,
In his appeal to the Appeals Court, the plaintiff argued for the first time that the statute of limitations was tolled until November 6, 2007, because Harrington reasonably could have believed until then that the defendants were permitted or privileged to repeat the defamatory statement about the accusation of stalking a minor to each other and to the religious education directors. The majority of the Appeals Court rejected the claim, agreeing with the motion judge that the statute of limitations had run. Harrington v. Costello,
2. Discussion, a. Standard of review. We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor. Curtis v. Herb Chambers 1-95, Inc.,
b. Statute of limitations and discovery rule. Under G. L.
As indicated, Harrington argues that his action was timely because the discovery rule prevents accrual of a tort cause of action, including one for defamation, until a plaintiff knows, or with reasonable diligence should know, the identity of the defendant who caused his harm, and that Harrington did not know that Costello and Perry were responsible for causing his harm until he learned that they had made up the stalking accusation. We agree with Harrington’s first point but not his second.
i. Knowledge of the defendant’s identity. Under the discovery rule, where a plaintiff has suffered an “inherently unknowable” wrong, for accrual to occur, a plaintiff must have knowledge or sufficient notice of two related facts: (1) that he was harmed; and (2) that his harm was caused by the defendant’s conduct. See Flynn,
Courts in a number of other States faced with this question have concluded that for a cause of action to accruе, the identity of the defendant must be known or reasonably knowable. See, e.g., Tamowsky v. Socci,
ii. Application of discovery rule to this case. As mentioned, claiming that the discovery rule — reformulated to include knowledge of the defendant’s identity as a factor — operates to toll the statute of limitations in this case, Harrington contends that his cause of аction did not accrue until he discovered Le-Brun and learned for the first time of Costello’s (and derivatively Perry’s) true role in constructing the defamatory stalking statement “entirely out of whole cloth.” The argument is that until then, Harrington reasonably could believe that the defendants were conditionally privileged
In January, 2005, Harrington was aware that Costello had related to Perry that a parishioner had accused Harrington of stalking a minor boy — in other words, that Costello had published to Perry a defamatory stalking accusation concerning Harrington. Likewise, Harrington knew at that time that Perry republished the defamatory stalking accusation concerning him to the two religious education directors. Harrington thus had knowledge in early 2005 of the fact of publication and of the defendants’ identities as the publishers of a defamatory statement about him; and he also knew by sometime in 2005 that he had been harmed as a result of the publication, that is, harmed by at least the harassment and ridicule he suffered in the St. Patrick’s community soon after the accusation was published.
“Statutes of limitations provide the temporal finality necessary for the orderly conduct of human affairs.” Doe v. Harbor Schs., Inc.,
We appreciate that the parties here are Roman Catholic priests;
c. Statute of limitations and G. L. c. 260, § 12. Harrington argues that even if the discovery rule itself did not toll the statute of limitations in this case, the statute was tolled pursuant to G. L. c. 260, § 12.
We agree with Harrington that, as alleged in the complaint, the defendants took steps to deceive him. According to his complaint, despite never having been told by LeBrun (or anyone else) that a parishioner had accused Harrington of stalking her son, Costello published the accusation and told. Harrington that a third party provided him with the information. Furthermore, despite receiving information from the parishioner that she did not tell anyone that Harrington was stalking her son, Perry only informed Harrington that the parishioner did not tell Costello. At best, while these acts concealed from Harrington an appreciation of the defendant’s malicious motivation in publishing the defamatory stalking allegation about him, they did not conceal the publication or identity of the publishers, i.e., the facts giving rise to the defamation claim itself. See Crocker,
Judgment affirmed.
Notes
Although a statement must be both false and defamatory to be actionable, see Restatement (Second) of Torts § 558(a) (1977), for ease of reference in this opinion, we will use only the word “defamatory.” At this point in the case, we accept as true Harrington’s allegations that the statement at issue was both false and defamatory.
The complaint does not indicate how Harrington learned of this information.
It is not clear from the complaint whether Harrington alleges that LeBrun said he had never accused Harrington of stalking the parishioner’s son, or that LeBrun said he had never stated that the parishioner had accused Harrington of stalking her son.
General Laws c. 260, § 12, provides:
“If a person liable to a personal action fraudulently conceals thecause of such action from the knowledge of the person entitled to bring it, the period prior to the discovery of his cause of action by the person so entitled shall be excluded in determining the time limited for the commencement of the action.”
The defendants’ motion to dismiss included attachments of letters and other documents that wеre not attached to or referenced in Harrington’s complaint, and the defendants’ brief filed in this court included references to additional facts that not only were not in or raised by the complaint, but were described without any apparent source in the record at all. We infer that the defendants’ motive for presenting these materials was to paint the plaintiff in as negative a light as possible in an effort to influence the view taken of the case by judges who might be hearing it. The attachment of these materials to the motion to dismiss was inappropriate, and the rеference on appeal to other
See, e.g., Koe v. Mercer,
In Collins v. Nuzzo,
But see, e.g., Guebard v. Jabaay,
We thus agree with Harrington that the discovery rule applies generally to defamation cases. Our holding in Flynn v. Associated Press,
Although Harrington failed to raise his conditional privilege argument
See Bratt v. International Business Machs. Corp., 392 Mass. 508, 513 n.8 (1984) (Massachusetts has recognized mutual interest conditional privilege); J.R. Nolan & L.J. Sartorio, Tort Law § 7.13, at 221 (3d ed. 2005) (conditional privilege exists if publisher and recipient share common interest, and communication is “reasonably calculated to protect and to further such common interest”). See also Sheehan v. Tobin,
See Stone v. Essex County Newspapers, Inc.,
Harrington also claims that accrual was delayed because he reasonably believed that Costello’s and Perry’s statements were protected opinions under the First Amendment to the United States Constitution until he learned of LeBrun’s identity. This claim lacks merit. Learning LeBrun’s identity would not affect whether the statements themselves were opinions rather than factual assertions. See Aldoupolis v. Globe Newspaper Co.,
“To prevail on a claim of defamation, a plaintiff must establish that the defendаnt was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss” (footnote omitted). White v. Blue Cross & Blue Shield of Mass., Inc.,
Even taking reasonable inferences in Harrington’s favor, it is unclear from the complaint that his removal from diocesan housing was connected to the publication of the defamatory stalking allegation. But assuming that the removal was so linked, it appears to have occurred mоre than three years before Harrington’s complaint was filed.
The problem of defendants waiting in perpetuity is further highlighted by Harrington’s conditional privilege argument. For a claim of defamation, a conditional privilege is an affirmative defense; the burden rests on the defendant to prove that his defamatory statements were otherwise privileged. See Humphrey v. National Semiconductor Corp.,
As discussed previously, Harrington also suggests that apart from conditional privilege, until he learned LeBrun’s identity and spoke to LeBrun, he reasonably could have believed that Costello was not negligent in publishing the defamatory stalking allegation to Perry and Perry was not negligent in republishing it to the directors of the rеligious education program in which the parishioner’s son was enrolled. As discussed supra, our cases indicate generally that a plaintiff’s cause of action for negligence is not tolled until the
Whether the statute of limitations is tolled under G. L. c. 260, § 12, is a separate inquiry from the application of the discovery rule. See Patsos v. First Albany Corp.,
Hairington appears to confine his argument concerning the application of G. L. c. 260, § 12, to a claim that the defendants engaged in actual fraud. Therefore, we do not reach the question whether a fiduciary duty existed between Harrington and the defendants.