MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	189	
Docket:	   Yor-16-538	
Argued:	   June	14,	2017	
Decided:	  September	7,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR,	J.	
	
	
                                BRUCE	PLANTE	et	al.	
                                         	
                                        v.	
                                         	
                                 RONALD	P.	LONG	
	
	
GORMAN,	J.	

      [¶1]	 	 Bruce	 and	 Dennis	 Plante	 appeal	 from	 the	 entry	 of	 a	 summary	

judgment	in	the	Superior	Court	(York	County,	Douglas,	J.)	in	favor	of	Ronald	P.	

Long	on	their	defamation	action.		The	court	concluded	that	the	Plantes	failed	

to	make	the	necessary	prima	facie	showing	that	Long	acted	with	actual	malice.		

We	affirm	the	judgment.	

                                   I.		BACKGROUND	

      [¶2]	 	 The	 following	 facts	 are	 taken	 from	 the	 parties’	 statements	 of	

material	 fact	 and	 reflect	 the	 summary	 judgment	 record	 in	 the	 light	 most	
2	

favorable	to	the	plaintiffs	as	the	“part[ies]	against	whom	summary	judgment	

was	entered.”1		See	Diviney	v.	Univ.	of	Me.	Sys.,	2017	ME	56,	¶	14,	158	A.3d	5.	

         [¶3]		Bruce	is	the	Assistant	Fire	Chief	for	the	Town	of	Berwick.		He	also	

works	as	a	delivery	driver	for	Gagnon	Propane	and	previously	served	on	the	

Town’s	Board	of	Selectmen.		Dennis	is	the	Fire	Chief	for	the	Town	of	Berwick.		

Long	 is	 a	 resident	 of	 Berwick	 and	 has	 a	 history	 of	 publicly	 criticizing	 the	

Berwick	Fire	Department,	including	its	leadership,	and	opposing	proposed	fire	

department	 projects.	 	 The	 plaintiffs	 have	 both	 conceded	 that	 they	 are	 public	

figures.2			

         [¶4]		On	October	27,	2011,	Long	was	jogging	with	his	wife	on	Worster	

Road	 in	 Berwick.	 	 Bruce,	 who	 was	 driving	 a	 propane	 truck	 down	 that	 road,	

“pulled	 wide	 around”	 Long,	 who	 waved.	 	 Bruce	 perceived	 Long’s	 wave	 and	

facial	expression	as	harassing	and	was	“upset.”		He	pulled	the	truck	to	a	stop	

about	 150	 feet	 from	 Long	 and,	 while	 “hanging	 on	 the	 edge	 of	 the	 truck”	 and	

raising	 his	 voice	 due	 to	 the	 distance	 between	 them,	 twice	 yelled	 to	 Long,	

     1		On	appeal,	Bruce	challenges	the	court’s	grant	of	summary	judgment	as	to	Counts	2	and	3	of	the	

complaint,	 which	 concern	 emails	 sent	 by	 Long	 on	 October	 28,	 2011.	 	 Dennis	 challenges	 the	
judgment	as	to	Counts	5	and	6,	which	concern	emails	sent	by	Long	on	April	24,	2012,	and	May	23,	
2012.	 	 The	 Plantes	 also	 challenge	 the	 court’s	 grant	 of	 summary	 judgment	 in	 Long’s	 favor	 as	 to	
Count	9	 for	 punitive	 damages.	 	 We	 address	 only	 those	 facts	 relevant	 to	 the	 counts	 at	 issue	 on	
appeal.	

     2		Long	attempted	to	have	the	suit	dismissed	in	its	entirety	pursuant	to	the	anti-SLAPP	statute,	

14	M.R.S.	§	556	(2016).		We	affirmed	the	trial	court’s	(Fritzsche,	J.)	determination	that	this	attempt	
was	not	timely.		Plante	v.	Long,	Mem-15-91	(Nov.	10,	2015).			
                                                                                         3	

“[H]ey,	 are	 you	 looking	 for	 me?”	 	 After	 Long	 replied	 that	 he	 was	 not	 looking	

for	 Bruce	 and	 that	 he	 had	 “just	 [been]	 waving,”	 Bruce	 responded,	 “[D]on’t	

bother.”	 	 Bruce	 got	 back	 in	 the	 truck	 and	 drove	 away.	 	 Although	 he	 had	

intended	to	“let	Mr.	Long	know	he	wanted	nothing	to	do	with	him,”	Bruce	had	

not	intended	to	“instigate	a	fight.”			

      [¶5]		The	next	day,	Long	sent	an	email	to	the	chief	and	a	captain	of	the	

Berwick	 Police	 Department	 alleging	 that	 Bruce	 was	 harassing	 him	 and	

recounting	 the	 events	 of	 the	 previous	 day.	 	 In	 the	 email,	 Long	 stated	 that	

Bruce	had	yelled,	“Hey	do	you	want	some	of	this?		Are	you	fucking	looking	for	

me?”	 and,	 “Hey	 I	 said	 do	 you	 want	 some	 of	 this?	 	 Are	 you	 looking	 for	 me?”		

Long	 stated	 that	 he	 had	 heard	 that	 Bruce	 had	 “tried	 to	 intimidate	 [several	

other	people]	by	this	very	behavior,”	and	he	asked	the	police	to	contact	those	

people	 to	 “further	 [their]	 investigation.”		Long	further	 stated	that	 “[Bruce]	 is	

clearly	mentally	unstable	and	I	fear	for	what	he	is	capable	of	doing.	.	.	.	[He]	is	

in	a	position	to	make	me	worry	about	the	safety	of	my	family	and	myself.”		The	

same	day,	copying	Berwick’s	police	chief	and	another	individual,	Long	sent	a	

second,	very	similar	email	to	Bruce’s	employer	at	Gagnon	Propane.		
4	

         [¶6]	 	 At	 some	 point,3	 Dennis	 drove	 behind	 Long	 in	 a	 vehicle	 with	 fire	

department	insignia	on	it.		There	were	initially	two	other	vehicles	between	the	

parties’	cars.		Long	turned	down	another	road,	pulled	over,	pulled	back	onto	

the	road	after	Dennis	passed	him,	and	followed	Dennis.			

         [¶7]	 	 On	 April	 24,	 2012,	 Long	 sent	 an	 email	 to	 the	 Berwick	 Board	 of	

Selectmen	and	others,	stating	in	part	that	the	Plantes	had	been	following	and	

harassing	people.		On	May	23,	2012,	Long	sent	an	email	to	the	Berwick	police	

chief	and	copied	another	individual.		The	email	stated	in	part	that	Bruce	and	

Dennis	 had	 “lied,	 followed,	 intimidated,	 and	 harassed	 people	 to	 get	 ‘Their	

Cause’	pushed	through.”			

	        [¶8]	 	 In	 June	 of	 2013,	 the	 Plantes	 filed	 a	 complaint	 against	 Long	

containing	eight	counts	of	libel	and	one	count	of	punitive	damages.		Over	the	

course	 of	 nearly	 three	 years,	 the	 parties	 engaged	 in	 a	 protracted	 discovery	

process	 and	 motion	 practice.	 	 Although	 they	 failed	 to	 reach	 complete	

agreement	 through	 alternative	 dispute	 resolution,	 they	 did	 stipulate	 to	 the	

dismissal	 of	 Counts	 1	 and	 7	 of	 the	 complaint.	 	 In	 May	 of	 2016,	 Long	 filed	 a	

motion	 for	 summary	 judgment	 on	 the	 remaining	 seven	 counts,	 which	 the	




     3		The	record	provides	no	temporal	information	about	this	event.		
                                                                                                             5	

court	 granted	 on	 November	 7,	 2016,	 after	 a	 nontestimonial	 hearing.	 	 The	

Plantes	timely	appealed.		

                                            II.		DISCUSSION	

	       [¶9]		This	appeal	requires	us	to	determine,	viewing	the	facts	in	the	light	

most	favorable	to	the	Plantes	as	the	nonmoving	parties,	whether	any	genuine	

issue	 of	 material	 fact	 exists	 and	 whether	 Long	 is	 entitled	 to	 judgment	 as	 a	

matter	 of	 law.	 	 Diviney,	 2017	ME	 56,	 ¶	14,	 158	A.3d	 5;	 see	 M.R.	 Civ.	 P.	 56(c).	

“When	the	defendant	is	the	moving	party,	[he]	must	establish	that	there	is	no	

genuine	 dispute	 of	 fact	 and	 that	 the	 undisputed	 facts	 would	 entitle	 [him]	 to	

judgment	as	a	matter	of	law.		It	then	becomes	the	plaintiff’s	burden	to	make	

out	a	prima	facie	case	and	demonstrate	that	there	are	disputed	facts.”		Diviney,	

2017	 ME	 56,	 ¶	 14,	 158	 A.3d	 5	 (alterations	 omitted)	 (citation	 omitted)	

(quotation	marks	omitted).		We	will	assume,	for	purposes	of	this	opinion,	that	

the	statements	made	by	Long	were	false.4		The	issue	to	be	decided,	therefore,	

is	 whether	 the	 Plantes	 have	 made	 a	 prima	 facie	 showing	 of	 actual	 malice.5		



   4		Although	there	are	many	factual	disputes	about	what	each	party	actually	said	or	did	during	the	

incidents	 that	 Long	 complained	 about,	 a	 trier	 of	 fact	 who	 believed	 the	 Plantes’	 versions	 of	 what	
occurred	could	rationally	find	that	Long’s	statements	describing	the	incidents	were	false.			

    5		Long	also	asserts	that	his	statements	consisted	of	opinion	rather	than	fact	and	were	therefore	

not	actionable.		Because	we	conclude	that	the	Plantes	have	failed	to	make	the	required	prima	facie	
showing	of	actual	malice,	however,	we	do	not	reach	that	issue.			
6	

See	Lester	v.	Powers,	596	A.2d	65,	69	(Me.	1991)	(setting	out	the	elements	of	

defamation).	

	     [¶10]		The	Plantes	are	public	figures	and,	as	we	have	explained,		

       [d]iscussion	 of	 public	 officials	 and	 public	 figures	 on	 matters	 of	
       public	 concern,	 the	 U.S.	 Supreme	 Court	 has	 declared,	 deserves	
       special	favor	in	a	democratic	society,	and	thus	such	discussion	is	
       subject	 to	 a	 conditional	 privilege—the	 “First	 Amendment	
       privilege”—that	 can	 be	 overcome	 only	 by	 clear	 and	 convincing	
       evidence	of	[actual	malice,	i.e.,]	knowledge	or	disregard	of	falsity.			
       	
Id.	at	69	(quoting	New	York	Times	Co.	v.	Sullivan,	376	U.S.	254,	279-80	(1964)).		

Thus,	in	order	to	survive	summary	judgment,	the	Plantes	must	present	some	

evidence	 that	 at	 least	 one	 of	 Long’s	 false	 statements	 was	 made	 with	 “‘actual	

malice’—that	is,	with	knowledge	that	it	was	false	or	with	reckless	disregard	of	

whether	 it	 was	 false	 or	 not.”	 	 Harte-Hanks	 Commc’ns,	 Inc.	 v.	 Connaughton,	

491	U.S.	 657,	 659	 (1989)	 (quoting	 Sullivan,	 376	 U.S.	 at	 279-80).	 	 In	 other	

words,	 they	 must	 produce	 evidence	 that	 could	 demonstrate	 that	 it	 is	 highly	

probable	that,	at	the	time	he	sent	the	allegedly	defamatory	emails,	Long	in	fact	

knew	that	his	statements	were	false	or	that	he	acted	“with	[a]	high	degree	of	

awareness	 of	 their	 probable	 falsity.”	 	 Michaud	 v.	 Town	 of	 Livermore	 Falls,	

381	A.2d	 1110,	 1116	 (Me.	 1978)	 (quotation	 marks	 omitted);	 see	 Taylor	 v.	

Comm’r	of	Mental	Health	&	Mental	Retardation,	481	A.2d	139,	154	(Me.	1984)	

(explaining	that	the	“clear	and	convincing”	standard	of	proof,	which	protects	
                                                                                         7	

“important	public	interest[s],”	requires	a	plaintiff	to	prove	her	allegations	“to	

a	high	probability”).	

	     [¶11]		In	response	to	Long’s	motion	for	summary	judgment,	the	Plantes	

offered	evidence	contradicting	Long’s	accounts	of	the	events	in	question	and	

demonstrating	a	contentious	history	between	the	parties.		See	supra	¶¶	4-7.		If	

believed	by	a	trier	of	fact,	the	same	evidence	that	showed	Long’s	statements	to	

be	false	and	the	relationship	between	Long	and	the	Plantes	to	be	contentious	

could	 also	 give	 rise	 to	 an	 inference	 that	 Long	 bore	 the	 Plantes	 ill	 will.		

Contrary	 to	 the	 Plantes’	 assertions,	 however,	 the	 evidence	 of	 falsity,	 even	

combined	 with	 the	 inference	 of	 ill	 will,	 would	 not	 be	 sufficient	 to	 support	 a	

clear	and	convincing	determination	of	actual	malice.	

      [¶12]	 	 The	 element	 of	 objective	 falsity	 is	 distinct	 from	 that	 of	 actual	

malice.	 	 At	 trial,	 a	 fact-finder	 must	 be	 presented	 with	 sufficient	 evidence	 to	

allow	her	to	conclude	that	the	defendant	‘“in	fact	entertained	serious	doubts	as	

to	the	truth	of	his	publication”’	regardless	“of	the	assumed	objective	falsity	of	

the	remarks.”		Michaud,	381	A.2d	at	1114-15	(quoting	St.	Amant	v.	Thompson,	

390	U.S.	727,	 731	 (1968)).	 	 We	 have	 consistently	 refused	 to	 conclude	 that	 a	

fact-finder	 may	 infer	 that	 a	 defendant	 was	 “consciously	 untruthful”	 from	

evidence	that	her	accusations	were	in	fact	false	even	if	that	evidence	coincides	
8	

with	 indicia	 of	 the	 defendant’s	 ill	 will	 towards	 the	 plaintiff,	 e.g.,	 that	 the	

defendant	 destroyed	 or	 discarded	 her	 written	 records	 of	 the	 events	 in	

question.	 	 Lester,	 596	 A.2d	 at	 71-72	 (concluding	 that	 the	 plaintiff’s	 proposed	

inference	 of	 actual	 malice	 was	 “unsupported	 speculation”	 and	 inadequate	 to	

survive	a	defendant’s	motion	for	summary	judgment);	see	Michaud,	381	A.2d	

at	 1115-16.	 	 Rather,	 we	 have	 been	 clear	 that	 “[e]vidence	 that	 some	 of	 [the	

defendant’s]	 factual	 premises	 were	 objectively	 false,	 or	 even	 that	 no	

reasonable	 person	 could	 have	 believed	 them	 to	 be	 true,	 does	 not	 show	 that	

she	 knew	 or	 disregarded	 their	 falsity.”	 	 Lester,	 596	 A.2d	 at	 71.	 	 Permitting	 a	

fact-finder	to	draw	such	an	inference	would	effectively	merge	the	elements	of	

falsity	and	actual	malice,	thereby	reducing	the	heightened	burden	assumed	by	

public	 figure	 plaintiffs	 in	 defamation	 actions	 and	 diminishing	 the	 “breathing	

space”	 for	 protected	 speech	 that	 Sullivan	 and	 its	 progeny	 require.		

Harte-Hanks,	491	U.S.	at	686	(quotation	marks	omitted);	see	Lester,	596	A.2d	

at	69	(citing	Sullivan,	376	U.S.	at	279-80).			

       [¶13]	 	 Nonetheless,	 the	 Plantes	 argue	 that	 we	 “reach[ed]	 too	 far”	 in	

Lester	 and	 that	 we	 should	 merge	 the	 elements	 of	 falsity	 and	 malice	 in	 cases	

involving	 “personal	 knowledge.”	 	 Their	 argument	 ultimately	 relies	 on	

language	 the	 United	 States	 Supreme	 Court	 included	 in	 a	 decision	 in	 which	 it	
                                                                                         9	

reversed	 a	 libel	 judgment.	 	 See	 Time,	 Inc.	 v.	 Pape,	 401	 U.S.	 279,	 290	 (1971)	

(concluding	that	a	magazine	article	summarizing	a	report	by	the	United	States	

Commission	 on	 Civil	 Rights	 that	 discussed	 police	 brutality	 did	 not	

demonstrate	 actual	 malice).	 	 In	 explaining	 its	 holding,	 the	 Court	 determined	

that	the	Court	of	Appeals	had	erred	in	concluding	that	“‘malice’	in	the	sense	of	

an	‘intent	to	inflict	harm	through	falsehood’	.	.	.	might	reasonably	be	inferred	

from	 the	 very	 act	 of	 deliberate	 omission,	 and	 the	 issue	 of	 malice	 was	

consequently	 one	 for	 the	 jury.”	 	 Id.	 at	 285.	 	 The	 Court	 went	 on	 to	 state,	

however,	 that	 it	 might	 be	 reasonable	 to	 infer	 actual	 malice	 from	 an	 act	 of	

deliberate	 omission	 “when	 the	 alleged	 libel	 purports	 to	 be	 an	 eyewitness	 or	

other	direct	account	of	events	that	speak	for	themselves.”		Id.	

      [¶14]	 	 Twelve	 years	 later,	 the	 Court	 again	 discussed	 the	 “eyewitness”	

inference	mentioned	in	Pape	and	emphasized	that	its	applicability	was	limited	

to	 circumstances	 where	 the	 events	 at	 issue	 are	 so	 defined	 or	 obvious	 that	

there	is	no	room	for	ambiguity:	

      [T]he	 only	 evidence	 of	 actual	 malice	 on	 which	 the	 District	 Court	
      relied	 was	 the	 fact	 that	 the	 statement	 was	 an	 inaccurate	
      description	of	what	[the	eyewitness]	had	actually	perceived.		[The	
      eyewitness]	 of	 course	 had	 insisted	 “I	 know	 what	 I	 heard.”	 	 The	
      trial	 court	 took	 him	 at	 his	 word,	 and	 reasoned	 that	 since	 he	 did	
      know	 what	 he	 had	 heard,	 and	 he	 knew	 that	 the	 meaning	 of	 the	
      language	 employed	 did	 not	 accurately	 reflect	 what	 he	 heard,	 he	
      must	 have	 realized	 the	 statement	 was	inaccurate	 at	 the	 time	 he	
10	

       wrote	it.		Analysis	of	this	kind	may	be	adequate	when	the	alleged	
       libel	 purports	 to	 be	 an	 eyewitness	 or	 other	 direct	 account	of	
       events	 that	 speak	 for	 themselves.	 	 Here,	 however,	 adoption	 of	 the	
       language	 chosen	 was	 one	 of	 a	 number	 of	 possible	 rational	
       interpretations	 of	 an	 event	 that	 bristled	 with	 ambiguities	 and	
       descriptive	challenges	for	the	writer.		The	choice	of	such	language,	
       though	 reflecting	 a	 misconception,	 does	 not	 place	 the	 speech	
       beyond	 the	 outer	 limits	 of	 the	 First	 Amendment’s	 broad	
       protective	umbrella.		
       	
Bose	 Corp.	 v.	 Consumers	 Union	 of	 the	 U.S.,	 Inc.,	 466	 U.S.	 485,	 512-513	 (1984)	

(citations	omitted)	(quotation	marks	omitted).6			

	       [¶15]		This	restriction	on	the	applicability	of	the	eyewitness	inference—

that	 the	 inference	 may	 be	 made	 only	 when	 the	 events	 “speak	 for	

themselves”—is	also	found	in	two	cases	the	Plantes	rely	on	in	their	assertion	

that	the	falsity	of	Long’s	statements	should	be	sufficient	to	allow	an	inference	

of	malice.		The	first	is	Mahoney	v.	Adirondack	Publishing	Co.,	517	N.E.2d	1365	

(N.Y.	 1987),	 a	 case	 in	 which	 the	 New	 York	 Court	 of	 Appeals	 considered	 the	

eyewitness	 inference	 before	 ultimately	 deciding	 that	 it	 provided	 no	 support	

for	the	plaintiff.		The	New	York	court	held:	

        The	 inference	 depends	 for	 its	 validity	 on	 the	 premise	 that	 the	
        eyewitness	 could	 not	 have	 perceived	 and	 understood	 anything	
        but	 the	 truth.	 	 Thus,	 in	 reporting	 something	 else,	 the	 observer	

    6		In	its	decision,	the	First	Circuit	referred	to	the	need	for	“objective	facts”	that	“should	provide	

evidence	 of	 negligence,	 motive,	 and	 intent	 such	 that	 an	 accumulation	 of	 the	 evidence	 and	
appropriate	 inferences	 supports	 the	 existence	 of	 actual	 malice.”	 	 Bose	 Corp.	 v.	 Consumers	 Union	 of	
the	U.S.,	Inc.,	692	F.2d	189,	196	(1st	Cir.	1982).			
                                                                                      11	

       must	 have	 departed	 from	 the	 truth	 by	 design.	 	 The	 underlying	
       premise	 is	valid,	however,	 only	 if	 the	 events	 were	 unambiguous	
       and	 the	 setting	 was	 such	 that	 the	 observer	 could	 not	 have	
       misperceived	 those	 events.	 	 Such	 conditions,	 however,	 cannot	
       simply	be	assumed;	as	the	proponent	of	the	inference	and	the	bearer	
       of	 the	 burden	 of	 proof	 of	 actual	 malice,	 the	 plaintiff	 must	
       demonstrate	that	they	exist.		No	such	showing	was	made	here.	
       	
Id.	at	1369	(emphasis	added).	

	      [¶16]		The	second	is	Ventura	v.	Kyle,	8	F.	Supp.	3d	1115	(D.	Minn.	2014),	

a	 defamation	 action	 arising	 from	 a	 passage	 in	 Chris	 Kyle’s	 autobiography	

describing	 an	 altercation	 with	 Jesse	 Ventura.	 	 In	 that	 case,	 Ventura	 asserted,	

inter	alia,	that	Kyle’s	claim	that	he	had	punched	Ventura	was	completely	false	

because	there	had	never	been	any	kind	of	physical	altercation	between	them.		

Id.	at	1121-22.		The	United	States	District	Court	for	the	District	of	Minnesota	

denied	 summary	 judgment	 to	 Kyle	 after	 concluding	 that,	 although	 it	 was	

possible	 that	 he	 had	 misperceived	 Ventura’s	 words,	 Kyle’s	 statement	 of	

“punching	 out”	Ventura	 did	not	relate	to	an	ambiguous	event	and,	 therefore,	

an	inference	of	actual	malice	could	be	drawn	from	the	falsity	of	the	statement.		

Id.	

	      [¶17]	 	 Even	 assuming	 that	 these	 cases	 demonstrate	 that	 some	 other	

courts	 are	 moving	 towards	 a	 less	 rigorous	 review	 of	 the	 element	 of	 malice,	

neither	 provides	 any	 support	 for	 the	 Plantes	 because	 they	 have	 not	 carried	
12	

their	burden	of	showing	that	the	events	in	question	were	unambiguous	or	that	

Long	 could	 not	 have	 misperceived	 them	 or,	 alternatively,	 that	 an	 event	

described	by	Long	never	occurred.	

	     [¶18]		According	to	his	version	of	events,	Bruce—who	admits	to	being	

“upset”	 at	 the	 time	 and	 believing	 that	 Long	 was	 “harassing”	 him—pulled	 his	

truck	over	150	feet	from	Long,	“[hung]	on	the	edge	of	the	truck,”	and	yelled	at	

Long,	“[A]re	you	looking	for	me?”	and	“[D]on’t	bother.”		Bruce’s	account	of	the	

incident	 is	 strikingly	 similar	 to	 Long’s	 and,	 given	 Bruce’s	 acknowledgement	

that	 he	 was	 upset	 and	 yelling	 and	 the	 considerable	 distance	 between	 the	

parties,	 what	 Bruce	 actually	 said	 could	 have	 been	 misperceived	 by	 Long.		

Cf.	Mahoney,	517	N.E.2d	at	1369-70.		Likewise,	Dennis	admits	to	having	driven	

a	fire	department	vehicle	behind	Long	for	a	period	of	time,	an	event	that	could	

have	 been	 misperceived	 by	 Long	 given	 his	 apparent	 fear	 of	 Bruce,	 his	 belief	

that	Dennis	never	disciplined	or	controlled	Bruce,	and	his	history	of	criticizing	

the	 fire	 department.	 	 These	 events	 bear	 a	 great	 resemblance	 to	 those	 in	

Mahoney,	 see	id.—events	 capable	 of	 misperception	 and	 thus	 not	 suitable	 to	

support	 any	 inference	 of	 actual	 malice.	 	 They	 do	 not	 resemble	 the	 issue	 in	

Ventura—where	the	parties’	dispute	concerned	whether	a	physical	altercation	
                                                                                                              13	

had	 or	 had	 not	 occurred,	 an	 event	 that	 could	 not	 have	 been	 misperceived,	

see	Ventura,	8	F.	Supp.	3d	at	1121-22.7		

        [¶19]	 	 Even	 if	 we	 were	 to	 adopt	 such	 an	 “eyewitness”	 	 inference,	 it	

would	 not	 be	 applicable	 here.	 	 Although	 we	 agree	 that	 Long	 might	 fit	 the	

definition	 of	 an	 eyewitness,	 the	 events	 he	 described	 do	 not	 “speak	 for	

themselves,”	 so	 the	 Plantes	 gain	 no	 benefit	 from	 the	 application	 of	 any	

possible	 eyewitness	 inference	 of	 actual	 malice.8	 	 Because	 the	 Plantes	 have	


   7	 	 The	 Plantes	 also	 draw	 our	 attention	 to	 Welsh	 v.	 City	 and	 County	 of	 San	 Francisco,	 No.	
C-93-3722,	1995	WL	714350	(N.D.	Cal.	Nov.	27,	1995),	in	which	the	parties	disputed	whether	the	
defendant	 had	 in	 fact	 “physically	 grabbed	 and	 kissed	 the	 plaintiff	 against	 her	 will.”	 	 Id.	 at	 *5	
(alterations	omitted)	(quotation	marks	omitted).		Although	the	United	States	District	Court	for	the	
Northern	District	of	California	merged	the	elements	of	falsity	and	actual	malice,	we	note	that—just	
as	 in	 Ventura—the	 material	 fact	 in	 dispute	 was	 whether	 an	 incident	 of	 physical	 contact	 had	
occurred.		See	id.		Whether	such	physical	contact	occurred	is	an	unambiguous	event,	i.e.,	an	event	
that	neither	party	could	have	misperceived.		
   8	 	 A	 third	 opinion	 of	 the	 United	 States	 Supreme	 Court	 also	 bears	 on	 Bruce’s	 claims	 on	 appeal.		

In	Masson	 v.	 New	 Yorker	 Magazine,	 Inc.,	 501	 U.S.	 496	 (1991),	 the	 Court	 held	 that	 an	 author’s	
“deliberate	alteration	of	the	words	uttered	by	a	plaintiff	does	not	equate	with	knowledge	of	falsity	
.	.	.	unless	the	alteration	results	in	a	material	change	in	the	meaning	conveyed	by	the	statement.”		Id.	
at	 517.	 	 In	 so	 holding,	 the	 Court	 explained	 that	 the	 “protection	 for	 rational	 interpretation”	 of	
ambiguous	 events	 enunciated	 in	 Pape	 and	 Bose	 does	 not	 extend	 to	 “[the]	 orthodox	 use	 of	 a	
quotation”	 by	 an	 author—“the	 quintessential	 direct	 account	 of	 events	 that	 speak	 for	 themselves.”		
Id.	at	519	(quotation	marks	omitted).	

   Although	Long’s	October	28,	2011,	emails	attributed	the	use	of	specific	language	to	Bruce	using	
quotation	 marks,	 Masson	 does	 not	 save	 Bruce’s	 claims	 from	 summary	 judgment.	 	 The	 differences	
between	Long’s	and	Bruce’s	accounts	of	the	events	of	October	27,	2011,	are	not	material.		See	supra	
¶	18.	 	 Given	 the	 parties’	 underlying	 relationship,	 the	 addition	 or	 omission	 of	 a	 single	 instance	 of	
profanity	and	the	words	“[D]o	you	want	some	of	this?”	are	not	significant;	either	version	of	events	
leads	 the	 reader	 to	 conclude	 that	 a	 hostile	 interaction	 took	 place	 alongside	 the	 road	 that	 day.		
See	Masson,	501	U.S.	at	517	(“Minor	inaccuracies	do	not	amount	to	falsity	so	long	as	the	substance,	
the	gist,	the	sting,	of	the	libelous	charge	be	justified.”	(quotation	marks	omitted)).		Further,	Long’s	
use	of	quotation	marks	was	not	the	“orthodox”	or	“quintessential”	use	contemplated	by	the	Court	in	
Masson.		Id.	at	519.		In	stark	contrast	to	Long’s	hasty	report	of	his	interaction	with	Bruce,	Masson	
considered	the	use	of	quotations	that	an	author	for	the	New	Yorker	Magazine	incorrectly	attributed	
to	the	plaintiff	although	she	had	access	to	many	hours	of	taped	interviews	against	which	to	verify	
14	

failed	 to	 produce	 any	 evidence	 of	 the	 sort	 required	 to	 establish	 actual	

malice—evidence	 of	 the	 defendant’s	 negligence,	 motive,	 and	 intent—they	

could	not	prevail	at	trial,	and	Long	is	entitled	to	a	summary	judgment.	

        The	entry	is:	

                          Judgment	affirmed.	

                                   	        	        	        	        	       	

JABAR,	J.,	dissenting.		

                                           I.		INTRODUCTION	

        [¶20]	 	 I	 respectfully	 dissent	 because	 the	 Court	 has	 improperly	 used	

summary	 judgment	 to	 resolve	 factual	 disputes	 regarding	 motivation,	

knowledge,	or	intent.		The	plaintiffs,	Dennis	and	Bruce	Plante,	are	entitled	to	

have	 a	 jury	 decide	 whether	 Long	 fabricated	 facts	 surrounding	 events	 that	

occurred	between	the	Plantes	and	Long.	




her	 allegedly	 libelous	 statements	 and	 although	 the	 plaintiff	 had	 informed	 a	 fact-checker	 at	 the	
magazine	that	the	quotations	were	incorrect.		Id.	at	500-02,	513.		Indeed,	the	Court	anticipated	just	
such	a	case	as	the	Plantes	present	to	us	today,	acknowledging—after	discussing	the	significance	of	
quotation	 marks—that	 the	 fact	 that	 “the	 [allegedly	 defamatory]	 work	 .	 .	 .	 recreates	 conversations	
from	memory,	not	from	recordings,	might	indicate	that	the	quotations	should	not	be	interpreted	as	
the	 actual	 statements	 of	 the	 speaker	 to	 whom	 they	 are	 attributed.”	 	 Id.	 at	 512-13.	 	 Long’s	 use	 of	
quotations,	which	were	based	solely	on	his	memory	of	a	somewhat	unusual	interaction,	is	therefore	
not	dispositive	in	this	instance.		See	id.	at	517	(“The	use	of	quotations	to	attribute	words	not	in	fact	
spoken	 bears	 in	 a	 most	 important	 way	 on	 [the	 actual	 malice]	 inquiry,	 but	 it	 is	 not	 dispositive	 in	
every	case.”).			
                                                                                     15	

                                   II.		DISCUSSION	

	     [¶21]	 	 The	 Court	 correctly	 sets	 out	 the	 actual	 malice	 element	 of	 the	

Plantes’	defamation	claim	against	Long,	that	the	Plantes	must	prove	“that	the	

defamatory	 material	 was	 published	 with	 actual	 malice.”	 	 Ballard	 v.	 Wagner,	

2005	ME	86,	¶	10,	877	A.2d	1083.		Proof	of	actual	malice	requires	establishing	

“that	 the	 statements	 were	 made	 with	 knowledge	 of	 their	 falsity	 or	 with	

reckless	disregard	for	their	truth	or	falsity.”		Id.	¶	15.	

	     [¶22]	 	 Although	 “[f]alsity	 and	 actual	 malice	 are	 distinct	 concepts,”	 and	

therefore	each	must	be	proven	to	establish	a	claim	for	defamation	of	a	public	

official,	 “[i]t	 may	 be	 possible,	 as	 the	 United	 States	 Supreme	 Court	 has	

suggested,	that	proof	of	falsity	will	support	an	inference	of	actual	malice	when	

the	 alleged	 libel	 purports	 to	 be	 an	 eyewitness	 or	 other	 direct	 account	 of	

events	 that	 speak	 for	 themselves.”	 	 Mahoney	 v.	 Adirondack	 Publ’g	 Co.,	

517	N.E.2d	 1365,	 1369	 (N.Y.	1987)	 (citation	 omitted)	 (quotation	 marks	

omitted).	 	 This	 “inference	 depends	 for	 its	 validity	 on	 the	 premise	 that	 the	

eyewitness	could	not	have	perceived	and	understood	anything	but	the	truth.”		

Id.	 	 The	 crux	 of	 the	 inference	 therefore	 lies	 in	 the	 alleged	 defamatory	

statements	 describing	 a	 version	 of	 the	 facts	 that	 the	 plaintiff	 disputes,	 as	
16	

opposed	 to	 the	 alleged	 defamer’s	 perception	 or	 interpretation	 of	 ambiguous	

events.		See	id.	

	      [¶23]		In	Ventura	v.	Kyle,	a	case	discussed	by	the	Court,	Court’s	Opinion	

¶	16,	and	relied	upon	by	the	Plantes	to	support	their	assertion	that	the	falsity	

of	 Long’s	 statements	 may	 be	 sufficient	 to	 prove	 actual	 malice,	 the	 United	

States	 District	 Court	 for	 the	 District	 of	 Minnesota	 considered	 a	 defamation	

case	concerning	an	autobiography	written	by	Chris	Kyle	containing	a	passage	

in	 which	 he	 claimed	 to	 have	 punched	 former	 wrestler,	 actor,	 and	 Minnesota	

Governor	Jesse	Ventura	in	the	midst	of	a	scuffle	at	a	bar.		8	F.	Supp.	3d	1115,	

1116-17	 (D.	 Minn.	 2014).	 	 The	 court	 concluded	 that	 Ventura,	 through	

affidavits	 of	 witnesses	 to	 the	 encounter,	 “presented	 sufficient	 evidence	 to	

create	a	genuine	issue	of	fact	as	to	whether	Kyle	knowingly	.	.	.	published	false	

statements.”	 	 Id.	 at	 1122.	 	 Although	 the	 court	 stated	 that	 “it	 is	 possible	 Kyle	

could	 have	 misinterpreted	 Ventura’s	 comments	 to	 him	 and	 innocently	

published	 a	 false	 account	 of	 them,”	 because	 a	 jury	 could	 find,	 based	 on	 the	

evidence,	that	Kyle	falsely	wrote	in	his	book	that	he	had	punched	Ventura,	the	

jury	 “could	 reasonably	 conclude	 he	 fabricated	 the	 rest	 of	 his	 story.”	 	 Id.	 at	

1121-22	 (emphasis	 omitted).	 	 The	 court	 therefore	 determined	 that	 a	 jury	
                                                                                      17	

could	 infer	 from	 one	 false	 statement	 concerning	 an	 unambiguous	 event	 that	

Kyle’s	entire	recitation	of	the	encounter	was	false.		Id.	

	     [¶24]		Ventura	is	unlike	Michaud	v.	Town	of	Livermore	Falls,	in	which	we	

held	 that	 where	 a	 “meeting	 led	 to	 high	 emotions	 and	 resulted	 in	 widely	

varying	 perceptions	 and	 interpretations	 of	 the	 participants’	 conduct,	

depending	upon	each	viewer’s	degree	and	position	of	involvement,”	there	was	

no	 proof	 of	 knowledge	 or	 reckless	 disregard	 for	 the	 falsity	 of	 a	 letter	

criticizing	 a	 plaintiff	 who	 had	 been	 a	 participant	 at	 the	 meeting.	 	 381	 A.2d	

1110,	1115	(Me.	1978).		In	Michaud,	we	concluded	that,	“although	[the	letter	

was]	possibly	biased	and	exaggerated,”	there	was	no	evidence	that	it	“was	not	

an	 honest	 communication	 relating	 the	 author’s	 own	 interpretation	 of	 the	

plaintiff’s	conduct.”		Id.		Here	like	the	facts	in	Ventura	and	unlike	the	facts	in	

Michaud,	the	jury	could	infer	that	Long	was	not	honest	about	the	participants’	

conduct.	

	     [¶25]		We	have	applied	a	similar	reasoning	when	determining	whether	

an	 allegedly	 defamatory	 statement	 consisted	 of	 opinion	 alone,	 and	 was	

therefore	 not	 actionable,	 or	 consisted	 of	 facts	 and	 was	 therefore	 actionable.		

Lester	 v.	 Powers,	 596	 A.2d	 65,	 71-72	 (Me.	 1991);	 see	 Lightfoot	 v.	 Matthews,	

587	A.2d	462,	463	(Me.	1991)	(stating	that	a	statement	of	fact	is	“an	essential	
18	

element	 in	 an	 action	 for	 defamation”).	 	 In	 differentiating	 between	 fact	 and	

opinion,	we	ask	whether	“it	is	clear	from	the	surrounding	circumstances	that	

the	 maker	 of	 the	 statement	 did	 not	 intend	 to	 state	 an	 objective	 fact	 but	

intended	rather	to	make	a	personal	observation	on	the	facts.”		Caron	v.	Bangor	

Publ’g	Co.,	470	A.2d	782,	784	(Me.	1984).	

	      [¶26]		We	have	held	in	many	cases	that	issues	of	intent	or	animus	can	

rarely	 be	 decided	 as	 a	 matter	 of	 law.	 	 See,	 e.g.,	 Beal	 v.	 Bangor	 Publ’g	 Co.,	

1998	ME	 176,	 ¶	 8,	 714	 A.2d	 805.	 	 In	 Trott	 v.	 H.D.	 Goodall	 Hosp.,	 a	 case	

involving	employment	discrimination,	we	acknowledged	that	“direct	evidence	

of	discriminatory	animus	will	rarely	be	available.”		2013	ME	33,	¶	19,	66	A.3d	

7	 (quotation	 marks	 omitted);	 see	 also	 Levesque	 v.	 Doocy,	 560	 F.3d	 82,	 90	

(1st	Cir.	 2009)	 (stating	 that	 “direct	 evidence	 of	 actual	 malice	 is	 rare”).		

Furthermore,	 “[a]	 factual	 determination	 of	 a	 motivation	 issue	 is	 heavily	

dependent	 on	 inferences,	 circumstantial	 evidence,	 and	 credibility	

determinations	 that	 do	 not	 easily	 allow	 resolution	 by	 summary	 judgment.”		

Stanley	v.	Hancock	Cty.	Comm’rs,	2004	ME	157,	¶	36,	864	A.2d	169	(Alexander,	

J.,	dissenting).	

	      [¶27]		Therefore,	we	must	here	consider	whether	there	is	any	dispute	of	

fact	 presented	 in	 the	 parties’	 statements	 of	 material	 facts	 from	 which	 a	 jury	
                                                                                    19	

could	infer	that	Long	knew	his	versions	of	the	event	he	described	in	his	emails	

were	false.		The	jury	should	decide	whether	Long	intended	to	state	definitive	

facts	in	his	emails,	or	instead	intended	to	state	his	perception	or	opinion	of	the	

events	giving	rise	to	the	emails.		Although	the	Plantes	contend	that	Long	made	

many	 defamatory	 statements,	 this	 case	 revolves	 around	 two	 events—an	

incident	between	Long	and	Bruce,	and	an	incident	between	Long	and	Dennis.		

First,	Long’s	October	28,	2011,	emails	referenced	an	encounter	on	October	27,	

2011,	in	which	Long	alleged	that	Bruce	saw	Long	out	jogging	while	Bruce	was	

driving	 a	 propane	 delivery	 truck,	 got	 out	 of	 the	 truck,	 and	 screamed	

profanity-laced	 threats	 at	 Long.	 	 Second,	 Long’s	 April	 24,	 2012,	 emails	

referenced	 an	 encounter	 where	 Long	 asserted	 that	 Dennis	 followed	 him.	 	 If	

the	 events	 referenced	 by	 these	 emails	 are	 ambiguous	 or	 susceptible	 to	

misperception,	 there	 can	 be	 no	 inference	 that	 Long	 acted	 with	 actual	 malice	

because	 his	 emails,	 though	 possibly	 false,	 show	 only	 a	 misinterpretation	 of	

events.		See	Ventura,	8	F.	Supp.	3d	at	1121;	see	also	McMurry	v.	Howard	Publ’ns,	

Inc.,	612	P.2d	14,	18	(Wyo.	1980)	(“A	subjective	awareness	of	probable	falsity	

cannot	 be	 demonstrated	 under	 the	 standard	 of	 ‘convincing	 clarity’	 by	

evidence	 showing	 that	 the	 publisher	 and	 the	 plaintiff	 disagreed	 with	 respect	

to	their	perceptions	of	events	which	they	both	observed.”	(emphasis	added)).		
20	

If,	 however,	 the	 events	 as	 recounted	 in	 Long’s	 emails	 are	 unambiguous	 and	

nonetheless	 significantly	 differ	 from	 the	 Plantes’	 asserted	 version	 of	 events,	

then	 the	 Plantes	 are	 entitled	 on	 summary	 judgment	 to	 the	 benefit	 of	 the	

inference	 that	 Long,	 as	 an	 eyewitness	 to	 unambiguous	 events,	 made	 false	

statements	 in	 his	 emails	 with	 knowledge	 of	 the	 falsity	 of	 his	 statements.		

Ventura,	8	F.	Supp.	3d	at	1121-22;	see	Mahoney,	517	N.E.2d	at	1369.	

A.	   Counts	2	and	3:	Long’s	Encounter	with	Bruce	

	     [¶28]	 	 Counts	 2	 and	 3	 claimed	 as	 defamatory	 Long’s	 emails	 of	

October	28,	2011—to	 the	 chief	 of	 police,	 a	 police	 captain,	 and	 Bruce’s	

employer	 at	 Gagnon	 Propane—which	 recounted	 Long’s	 version	 of	 the	

October	27	 incident.	 	 Long’s	 emails	 both	 contained	 the	 subject	 line	

“Harassment	 complaint”	 and	 indicated	 that	 he	 wanted	 to	 file	 a	 harassment	

complaint—and	 possibly	 seek	 a	 restraining	 order—against	 Bruce.	 	 Long	

asserted	in	the	emails	that	as	he	and	his	wife	were	jogging,	Bruce	passed	them	

driving	 a	 truck,	 to	 which	 Long	 waved.	 	 The	 emails	 then	 state	 that	 Bruce	

stopped	his	vehicle,	hung	out	the	side,	and	screamed,	“Hey	do	you	want	some	

of	this?	Are	you	fucking	looking	for	me?”		After	Long	ignored	him,	Bruce	got	

much	 louder	 and	 screamed,	 “Hey	 I	 said	 do	 you	 want	 some	 of	 this?	 Are	 you	

looking	 for	 me?”	 to	 which	 Long	 replied,	 “No,	 just	 waving.”	 	 According	 to	 the	
                                                                                      21	

emails,	Bruce	then	responded,	“Don’t	bother,”	got	back	into	the	truck,	and	left.		

Additionally,	the	emails	state	that	Bruce	“is	clearly	mentally	unstable”	and	that	

Long	“fear[s]	what	he	is	capable	of	doing.”		Long	admitted	to	the	content	of	the	

emails	in	his	response	to	the	Plantes’	statement	of	material	facts.			

	     [¶29]	 	 The	 Plantes’	 statement	 of	 material	 facts,	 however,	 describes	 an	

event	 with	 significant	 differences	 from	 that	 indicated	 by	 Long’s	 emails.		

According	 to	 the	 Plantes,	 Long	 smirked	 at	 Bruce	 as	 Bruce	 was	 driving	 by,	

Bruce	stopped	the	truck	to	ask	if	Long	was	looking	for	him,	and	Long	replied	

“no,	I	was	just	waving,”	after	which	Bruce	told	him	“don’t	bother”	and	drove	

away.	 	 The	 Plantes	 denied	 that	 Bruce	 used	 profanities	 during	 the	 encounter	

and	denied	that	he	“screamed”	at	Long.			

	     [¶30]	 	 There	 is	 no	 question	 that	 Long	 and	 the	 Plantes	 gave	 very	

different	versions	of	what	occurred	on	October	27,	2011.		If	Long	is	believed,	

Bruce	 intimidated	 and	 harassed	 him	 with	 provoking	 language,	 screaming,	

“Are	you	fucking	looking	for	me?”	and	“Hey	do	you	want	some	of	this?”		Long	

treated	this	as	threatening	language,	stating	in	his	email	that	he	feared	what	

Bruce	 was	 “capable	 of	 doing.”	 	 If	 Bruce	 is	 believed,	 the	 exchange	 was	 less	

provocative:	 Bruce	 inquired	 in	 a	 raised	 voice	 whether	 Long	 was	 looking	 for	

him,	 but	 he	 did	 not	 scream	 profanities	 or	 yell	 “do	 you	 want	 some	 of	 this?”		
22	

Long’s	 use	 of	 quotation	 marks	 in	 his	 email	 makes	 it	 clear	 that	 there	 was	 no	

misunderstanding	 of	 what	 he	 heard,	 and	 that	 he	 was	 directly	 attributing	 to	

Bruce	the	threatening	language	and	behavior.		Long’s	use	of	quotation	marks	

is	evidence	that	Long	was	not	simply	stating	his	perception	of	what	happened,	

rather,	it	was	a	precise	description	of	the	event.		His	version	of	the	encounter	

is	not	an	ambiguous	interpretation;	it	is	an	unambiguous	transcript	of	Bruce’s	

words—one	that	the	Plantes	dispute.		See	Mahoney,	517	N.E.2d	at	1369.	

       [¶31]	 	 Because	 “words	 and	 punctuation	 express	 meaning,”	 and	

“quotations	 may	 be	 a	 devastating	 instrument	 for	 conveying	 false	 meaning,”	

Masson	 v.	 New	 Yorker	 Magazine,	 501	 U.S.	 496,	 517	 (1991),	 the	 difference	 in	

words	 attributable	 to	 Bruce	 during	 this	 October	 27	 encounter	 is	 dispositive	

here.	 	 If	 Bruce	 is	 believed,	 then	 the	 jury	 could	 infer	 that	 Long	 fabricated	 the	

words	and	conduct	he	attributed	to	Bruce	in	the	October	28	emails,	and	also	

infer	 that	 he	 did	 so	 with	 knowledge	 of	 the	 falsity	 of	 his	 statements.		

See	Michaud,	 381	 A.2d	 at	 1115.	 	 A	 jury	 would	 need	 to	 decide	 between	 two	

competing	 versions	 of	 the	 truth—Long’s	 and	 the	 Plantes’—and	 determine	

whether	 the	 encounter	 was	 benign	 or	 antagonizing.	 	 There	 is	 a	 genuine	

dispute	of	material	fact	as	to	what	Bruce	in	fact	said	to	Long	and	whether	Long	

fabricated	his	version	of	events.		See	Estate	of	Lewis	v.	Concord	Gen.	Mut.	Ins.	
                                                                                        23	

Co.,	 2014	 ME	 34,	 ¶	 10,	 87	 A.3d	 732	 (“A	 genuine	 issue	 of	 material	 fact	 exists	

when	 the	 [jury]	 must	 choose	 between	 competing	 versions	 of	 the	 truth.”	

(quotation	marks	omitted)).		If	the	jury	believes	Bruce,	then	just	as	the	court	

stated	in	Ventura,	8	F.	Supp.	3d	at	1121-22,	it	could	infer	that	Long	fabricated	

the	statements	in	his	emails	attributed	to	Bruce,	and	also	infer	that	Long	had	

knowledge	of	the	falsity	of	his	emails.		It	is	not	for	us	to	decide,	as	the	Court	

does,	the	import	of	the	parties’	relationship	and	whether	the	interaction	was	

“hostile,”	Court’s	Opinion	¶	19	n.8,	we	need	consider	only	whether	the	dispute	

over	the	facts	is	material.		Here,	the	parties	genuinely	dispute	what	occurred	

between	 them	 on	 October	 27,	 and	 whether	 Long	 gave	 an	 honest	 version	 of	

events	in	his	emails.		A	jury	should	determine	who	is	telling	the	truth.	

B.	    Counts	5	and	6:	Long’s	Encounter	with	Dennis	

	      [¶32]		Count	5	alleges	that	Long’s	statements	in	his	April	24,	2012,	email	

to	the	Berwick	Board	of	Selectmen—stating	that	both	Bruce	and	Dennis	were	

following	and	harassing	Berwick	residents—is	defamatory.		Count	6	similarly	

alleges	as	defamatory	Long’s	May	23,	2012,	email	to	the	chief	of	police	stating	

that	 Bruce	 and	 Dennis	 “lied,	 followed,	 intimidated,	 and	 harassed	 people”	 in	

Berwick.		The	Plantes	contend	that	summary	judgment	for	Counts	5	and	6	was	

inappropriate	as	to	Dennis	because	“the	only	information	Long	had	of	Dennis	
24	

following	someone	was	a	single	occurrence	where	[Long]	claims	to	have	been	

followed	by	Dennis.”		

	      [¶33]		Long	admitted	to	the	Plantes’	statement	of	material	fact	that	he	

has	never	been	followed	by	Bruce,	and	in	his	deposition,	Long	recounted	only	

one	occasion	on	which	he	was	ever	followed	by	Dennis.		He	stated	that	he	was	

driving	 in	 Berwick	 toward	 Rochester	 when	 he	 noticed	 Dennis	 following	 in	 a	

white	SUV	“no	more	than	four	or	five	feet”	behind	him,	and	that	he	pulled	over	

to	the	side	of	the	road	to	let	Dennis	pass.			

       [¶34]		Dennis	provided	a	very	different	version	of	the	incident.		Dennis	

acknowledged	that	he	was	in	a	vehicle	behind	Long,	but	he	stated	that	there	

were	 two	 cars	 between	 them	 and	 that	 when	 he	 and	 Long	 turned	 right	 at	 an	

intersection,	the	other	two	cars	turned	left,	so	that	Dennis’s	vehicle	pulled	up	

behind	 Long’s.	 	 According	 to	 Dennis,	 Long	 pulled	 to	 the	 side	 of	 the	 road,	 at	

which	 point	 Dennis	 passed	 him,	 and	 then	 Long	 then	 followed	 him,	 making	

several	 identical	 turns,	 and	 following	 Dennis	 onto	 a	 dead	 end	 road	 into	 an	

industrial	 park,	 including	 a	 U-turn	 out	 of	 the	 industrial	 park.	 	 Dennis	 stated	

that	Long	stopped	only	when	Dennis	pulled	to	the	side	of	the	road	to	let	him	

pass.			
                                                                                        25	

	      [¶35]		As	with	the	October	28	emails	related	to	the	October	27	jogging	

incident,	Long	and	the	Plantes	present	two	very	different	versions	of	the	facts.		

Taking	 the	 facts	 and	 all	 reasonable	 inferences	 in	 the	 light	 most	 favorable	 to	

the	Plantes,	see	Budge	v.	Town	of	Millinocket,	2012	ME	122,	¶	12,	55	A.3d	484,	

a	jury	could	infer	that	Long	knew	of	the	falsity	of	his	statement	in	the	April	24,	

2012,	and	May	23,	2012,	emails	that	Dennis	“followed”	him.			

	      [¶36]		It	is	up	to	the	jury	to	determine	the	credibility	of	the	parties	and	

decide	who	has	told	the	truth.		See	State	v.	Hodsdon,	2016	ME	46,	¶	8,	135	A.3d	

816.		The	question	of	whether	there	were	other	cars	in	between	Dennis’s	and	

Long’s	 vehicles	 and	 whether	 Long	 then	 followed	 Dennis	 are	 questions	 of	

unambiguous	 fact,	 rather	 than,	 as	 Long	 argues,	 subjective	 belief	 regarding	

Dennis’s	intentions.		See	Caron,	470	A.2d	at	784.		It	is	one	thing	to	misperceive	

being	 followed	 by	 another	 vehicle,	 even	 if	 several	 car	 lengths	 behind,	 but	

there	 is	 no	 ambiguity	 to	 Dennis’s	 assertion	 that	 Long	 then	 pulled	 over	 and	

followed	Dennis,	making	several	identical	turns,	and	Long	did	not	deny	doing	

so.		If	the	jury	were	to	believe	Dennis’s	version	of	events,	rather	than	Long’s,	it	

could	 infer	 that	 Long	 fabricated	 his	 story,	 which	 would	 allow	 it	 to	 infer	 that	

Long	acted	with	actual	malice.		See	Mahoney,	517	N.E.2d	at	1369.		The	dispute	

over	which	version	of	events	is	true	is	a	genuine	dispute	of	material	fact,	see	
26	

Estate	 of	 Lewis,	 2014	 ME	 34,	 ¶	 10,	 87	 A.3d	 732,	 and	 the	 court	 erroneously	

granted	Long’s	motion	for	summary	judgment	as	to	Counts	5	and	6,	insofar	as	

those	counts	relate	to	Dennis.	

                                     III.		CONCLUSION	

	       [¶37]	 	 The	 dissent	 in	 Stanley	 v.	 Hancock	 County	 Commissioners	 stated	

that	

        recently,	 liberal	 use	 of	 summary	 judgment	 practice	 to	 resolve	
        factual	disputes	regarding	motivation	or	intent—almost	always	in	
        favor	 of	 a	 defendant—has	 been	 sharply	 criticized	 as	 violative	 of	
        both	 the	 basic	 purpose	 of	 the	 summary	 judgment	 rule	 and	 the	
        essential	 right	 to	 a	 trial	 by	 jury	 guaranteed	 by	 our	 state	 and	
        federal	 constitutions	 and	 our	 civil	 rules.	 	 Arthur	 R.	 Miller,	 one	 of	
        the	preeminent	civil	practice	scholars	of	our	time,	observes	that:	
        “Overly	 enthusiastic	 use	 of	 summary	 judgment	 means	 that	
        trialworthy	 cases	 will	 be	 terminated	 pretrial	 on	 motion	 papers,	
        possibly	compromising	the	litigants’	constitutional	rights	to	a	day	
        in	court	and	jury	trial.”	
	
2004	 ME	 157,	 ¶	 38,	 864	 A.2d	 169	 (Alexander,	 J.,	 dissenting)	 (footnotes	

omitted)	 (citing	 Arthur	 R.	 Miller,	 The	 Pretrial	 Rush	 to	 Judgment:	 Are	 the	

“Litigation	Explosion,”	“Liability	Crisis,”	and	Efficiency	Cliches	Eroding	Our	Day	

In	 Court	 and	 Jury	 Trial	 Commitments?	 78	 N.Y.U.	 L.	 Rev.	 982,	 1071	 (2003)).		

Miller	has	also	observed	that	

        when	 viewing	 the	 material	 on	 a	 pretrial	 motion	 without	 the	
        safeguards	 and	 environment	 of	 a	 trial	 setting,	 courts	 may	 be	
        tempted	 to	 treat	 the	 evidence	 in	 a	 piecemeal	 rather	 than	
        cumulative	fashion,	draw	inferences	against	the	nonmoving	party,	
                                                                                       27	

      or	discount	the	nonmoving	party’s	evidence	by	weighing	it	against	
      contradictory	 evidence.	 	 Judges	 are	 human,	 and	 their	 personal	
      sense	 of	 whether	 a	 plaintiff’s	 claim	 seems	 “implausible”	 can	
      subconsciously	 infiltrate	 even	 the	 most	 careful	 analysis.		
      Encouraged	 by	 systemic	 concerns	 suggesting	 that	 summary	
      judgment	 is	 desirably	 efficient,	 judges	 may	 be	 motivated	 to	 seek	
      out	 weaknesses	 in	 the	 nonmovant’s	 evidence,	 effectively	
      reversing	the	historic	approach.	
      	
Miller	at	1071.			

      [¶38]	 	 Here,	 the	 Court	 has	 compared	 Long’s	 versions	 with	 the	 Plantes’	

versions	 and	 determined	 that	 the	 two	 are	 similar	 enough	 that	 the	 Plantes	

cannot	prove	that	Long	fabricated	his	version	of	the	events.		I	disagree.		Long’s	

assertions	 in	 his	 emails	 that	 he	 felt	 intimidated	 by	 the	 Plantes’	 behaviors	 do	

not	automatically	transform	his	statements	about	the	events	to	which	he	and	

the	Plantes	were	eyewitnesses	into	misperceptions	or	statements	of	opinion.		

Long’s	emails	recount	facts	regarding	the	incidents,	and	several	of	those	facts	

are	 material	 and	 disputed	 by	 the	 Plantes.	 	 Because	 the	 Plantes	 are	 the	

nonmoving	party,	they	are	entitled	to	all	favorable	inferences	and,	in	this	case,	

to	have	their	claims	heard	by	a	jury.	

	     [¶39]		For	these	reasons	I	would	vacate	the	court’s	summary	judgement	

and	remand	for	trial.	

	     	      	      	      	      	

	
28	

Gene	R.	Libby,	Esq.,	and	Tyler	J.	Smith,	Esq.	(orally),	Libby	O’Brien	Kingsley	&	
Champion,	LLC,	Kennebunk,	for	appellants	Bruce	Plante	and	Dennis	Plante	
	
Jonathan	 W.	 Brogan,	 Esq.	 (orally),	 and	 Joshua	 D.	 Hadiaris,	 Esq.,	 Norman,	
Hanson	&	DeTroy,	LLC,	Portland,	for	appellee	Ronald	P.	Long	
	
	
York	County	Superior	Court	docket	number	CV-2013-148	
FOR	CLERK	REFERENCE	ONLY	
