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April 17, 1982


The opinion of the court was delivered by: DUFFY


In this diversity action alleging defamation, invasion of privacy, assault and battery, and trespass, defendants move for summary judgment. Plaintiffs cross-move for summary judgment on one of its defamation claims and on its trespass claim. In addition, both parties move for costs and attorneys' fees incurred in responding to each others motion.

 This action results from the broadcast on WCBS-TV of an encounter on May 22, 1979 between defendant Arnold Diaz, then WCBS-TV's New Jersey investigative correspondent, and Irving Machleder, president of Flexcraft in Newark, New Jersey. Flexcraft is a New Jersey corporation which manufactures industrial adhesives and coatings, chemical products and arts and crafts materials at its building in Newark.

 Certain facts about the events of May 22 are undisputed. Acting on a tip received that day from an unidentified person, Diaz went to a lot in Newark, New Jersey adjacent to the Flexcraft building with a film crew to investigate reported dumping of chemical wastes. When he arrived at the lot, Diaz saw several large drums strewn about. The drums were marked with labels that said "hazardous" and "flammable." After walking around and examining the barrels, Diaz and the film crew approached the neighboring building with the belief that the abandoned chemical barrels were on Flexcraft property. Diaz was unaware at the time that the lot on which these drums lay was in fact owned by the Newark Housing Authority. Diaz walked to a side door of the building. An issue of fact exists as to whether Diaz actually entered the doorway. Diaz claims that he and his crew did not enter it but stood outside while the cameraman took a picture of an area 8 to 10 feet inside the building that was illuminated by the camera's lights. Immediately, Bruce Machleder, who is the son of the plaintiff Irving Machleder and who was working in the area near the doorway, asked Diaz and his crew to stop filming and to leave because several of the company's trade secrets were within plain view. Bruce alleges that Diaz was actually inside the building at this time. Diaz then inquired: "can you tell me about the drums in the back," and Bruce replied that Diaz should go around to the office at the front of the building.

 As Diaz and his crew walked to the front of the building, Diaz noticed a man walking away from the building who Diaz presumed to be a member of the Flexcraft management. Cameras rolling, Diaz approached the man, who turned out to be Irving Machleder, and asked him if he knew anything about the dumped chemical barrels. Machleder said that he did not want to be filmed for television and advised Diaz to call the "housing department." Diaz persisted and moved his microphone closer to Machleder in an attempt to elicit a response. Machleder became agitated and turned back to his office. Diaz and his crew followed him. Machleder claims, and defendants deny, that during this time one of the members of the camera crew jabbed him in the ribs. Once Machleder was back in his office with the door closed, Diaz came in. According to Diaz, he was invited in by Bruce Machleder who answered several questions posed by Diaz off-camera. Bruce explained to Diaz that Flexcraft had reported the abandoned chemical barrels to the authorities.

 Diaz then returned to his car and called his researcher Ann Sorkowitz at the WCBS-TV offices in New York on his car's two-way radio. He asked her to call the Newark Housing Authority ("NHA"), the United States Coast Guard ("USCG") and the New Jersey Turnpike Authority ("NJTA") to confirm Bruce's assertion that Flexcraft had reported the dumping and to obtain any additional information about the barrels.

 Diaz then went to the Newark City Hall to speak with officials at the Mayor's office and the Fire Department. He subsequently returned to the lot next to Flexcraft to find Newark Deputy Fire Chief Joseph McLaughlin inspecting the dumpsite. Diaz interviewed Deputy Chief McLaughlin on camera and then returned with his crew to the WCBS-TV news studio in Manhattan. There, Ms. Sorkowitz told Diaz that Flexcraft had reported the chemical dumping to both USCG and NJTA. Apparently, NHA did not return Ms. Sorkowitz's call that afternoon.

 Later that evening, the following news report was aired by WCBS-TV on its Six O'Clock news program:

JIM JENSEN: Barrels of chemicals haphazardly strewn in an Elizabeth, New Jersey field depot -- it is a nightmare which Arnold Diaz started telling you about five months ago. This evening Arnold has an exclusive report on yet another case of chemical waste discarded without care in New Jersey. Arnold....
ARNOLD DIAZ: Thanks, Jim. Yesterday I got a call from a viewer who asked to remain anonymous. "Diaz", he said, "while you're investigating the chemical dumping problem, go take a look in Newark on Avenue P." So I went there today, and here's the result.
Just off the Turnpike, in an area full of oil refineries and chemical companies I found the spot -- 527 Avenue P in Newark. I saw hundreds of drums of chemical waste that had been dumped there and left to rot. On the drums were labels, like "flammable", "hazardous." I went further back among the drums and found many that had rusted, the contents spilling onto the ground, and, even worse, spilling into a waterway that runs behind the land. The slimy green water reeked of the noxious odor of chemicals.
Now, just who owns these barrels, what's inside of them and how they got there I really don't know. But I do know there is a small business on the property over there, and I went inside to try to get some answers. So I went to the office of Flexicraft [sic], a company that uses chemicals to make art supplies, and found the manager outside.
FLEXICRAFT [sic] MANAGER: "Get that damn camera out of here."
ARNOLD DIAZ: "Sir --- sir /--":
FLEXICRAFT [sic] MANAGER: "I don't want to be involved with you people..."
ARNOLD DIAZ: "Just tell me why -- why are those chemicals dumped in the back...."
FLEXICRAFT [sic] MANAGER: "I don't want --- I don't need --- I don't need any publicity...."
ARNOLD DIAZ: "Why are the chemicals dumped in the back?"
FLEXICRAFT [sic] MANAGER: "We don't -- we didn't dump 'em."
ARNOLD DIAZ: "Who did?"
FLEXICRAFT [sic] MANAGER: "You call the Housing Department. They have all the information."
ARNOLD DIAZ: The manager told me off camera that for years the city has known all about the problem of chemical dumping on the land. So I went to City Hall, where the Mayor's Assistant said the Fire Department would check out the problem immediately. And when I got back to the scene, there they were, trying to find out what's in the barrel.
DEPUTY CHIEF J. McLAUGHLIN, NEWARK FIRE DEPARTMENT: "Well, it looks like the residue of a manufacturing plant that put out a ...

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