§ 6.4.5.8 ABUSE OF PRIVILEGE

• Jurisdiction: Arizona

§ 6.4.5.8 Abuse of Privilege. Since there is often a qualified or conditional privilege in communications associated with employment, the courts have to consider if there is sufficient evidence of actual malice, both in summary judgment proceedings and on directed verdict and new trial issues. The following cases have considered the evidence presented, and found sufficient evidence to justify a finding of actual malice: Currier v. Western Newspapers, Inc., 175 Ariz. 290, 855 P.2d 1351 (1993) (reversed summary judgment, finding sufficient evidence of malice); Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986) (court found sufficient evidence to present jury question of malice); Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 447 P.2d 840 (1968) (sufficient evidence for jury on retrial); Lewis v. Oliver, 178 Ariz. 330, 873 P.2d 668 (App. 1993) (in a 2–1 decision, majority reversed summary judgment based on evidence of malice); Hansen v. Stoll, 130 Ariz. 454, 636 P.2d 1236 (App. 1981) (jury verdict affirmed); Hirsch v. Cooper, 153 Ariz. 454, 737 P.2d 1092 (App. 1986) (summary judgment should not have been granted to defendant); Selby v. Savard, 134 Ariz. 222, 655 P.2d 342 (1982) (jury verdict affirmed); Starkins v. Bateman, 150 Ariz. 537, 724 P.2d 1206 (App. 1986) (jury verdict affirmed).

The following cases have found that the evidence was not sufficient to prove actual malice on the part of the defendant: Aspell v. American Contract Bridge League, 122 Ariz. 399, 595 P.2d 191 (App. 1979) (affirmed a directed verdict); Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 812 P.2d 1096 (App. 1991) (affirmed summary judgment); Ross v. Duke, 116 Ariz. 298, 569 P.2d 240 (App. 1977)...