dissenting.

1. The majority holds that it is apparent from the context of the subject newspaper article that Wilkins did not use the phrase “unfit to have a kid” in its legal sense or as a factual statement, and that the average reader would have construed this statement as a hyperbolic opinion that cannot be proved true or false concerning a matter on which reasonable people might differ, i.e., Webster’s parental capabilities. I respectfully dissent.

Wilkins is a well-known professional basketball player. Webster met him while standing in line waiting to get into an Atlanta nightclub. This occurred shortly before she began law school at Georgia State University. After dating him, she gave birth to a female child, Chloe. When he refused to assist with maternity expenses, Webster instituted a paternity action against him. HLA blood testing identified him as the probable father, and Wilkins entered into a child-support agreement with Webster.

She later instituted contempt proceedings against him, for noncompliance with the agreement, and then a complaint for sexual battery, which was dismissed. He thereafter filed a complaint against her for malicious prosecution, to which she filed a counterclaim for sexual harassment. Both were dismissed. Webster’s filing of the sexual battery complaint against Wilkins was reported in various newspapers throughout the country, and some of these reports made mention of the prior paternity action. The acrimonious dissolution of their relationship, and the attendant litigation, were also reported in the local media.

Wilkins subsequently became engaged to another woman, and he asked the defendant newspaper to write an article concerning his impending marriage. After discussing Wilkins’ relationship with Webster, the paternity action, and other litigation between them, the article quotes Wilkins as saying, “She [Webster] gives women in general a bad name ... I probably shouldn’t say this, but I want to take that kid [Chloe] from her. She’s unfit to have a kid.”

A review of the article shows that it is in no way apparent from its context that Wilkins did not use this phrase either in its factual or[*198] legal sense. Moreover, there is evidence in this case showing that Wilkins in fact had planned to sue Webster for custody of the child and give her to his mother and that the reporter who wrote this article was aware of that.

While it is true that reasonable people might hold differing opinions on any given individual’s parental abilities, in this case Webster has presented abundant evidence that she is a very capable and loving parent, and the defendants have presented no evidence that she is not. To the contrary, Wilkins testified that, in fact, he does not know what kind of parent Webster is because he rarely has a chance to see the child. He acknowledged that she “looked pretty healthy” on the few occasions he had seen her. Clearly, Wilkins has not established truth as a defense to Webster’s defamation charge, and he is not entitled to summary judgment on this basis. Compare Pinkston v. City of Albany, 196 Ga. App. 43, 47 (3) (395 SE2d 587) (1990).

Wilkins’ accusatory statement against Webster as a mother explains, without going into detail, why he as father desires to remove the child from her custody. He connotes, by his prefatory remark, that he knows the seriousness of his statement, especially when made to a newspaper reporter instigated and prompted by him to write an article for publication about his marital and family affairs.

Under the law of defamation, if an opinion is expressed without disclosing the underlying factual basis, the opinion is actionable if the opinion implies or creates a reasonable inference that the opinion is justified by the existence of undisclosed defamatory and false facts. Metcalf v. KFOR-TV, 828 FSupp. 1515, 1529 (W.D.Okla. 1992), citing the Restatement of Torts, § 566. “The pivotal questions are whether [the] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.” Eidson v. Berry, 202 Ga. App. 587, 588 (415 SE2d 16) (1992).

Innumerable child custody cases in which parental fitness is drawn in issue demonstrate that the assertion that a parent is unfit to have her child can be interpreted as implying defamatory facts about the parent and is capable of being proved true or false. Perkins v. Courson, 219 Ga. 611, 624 (2) (135 SE2d 388) (1964) holds, e.g., that a parent’s right to child custody may be lost based upon a finding of unfitness where it has been shown “for instance, that the parent is afflicted either mentally or physically to the extent that he cannot provide any care for the child; that he suffers from a serious and contagious disease which would endanger the child; that he has criminal tendencies making it hazardous to expose a child to him; or that he has other such disqualifications not coming within [the Georgia Code].” The Code itself provides that a parent can lose parental power under the law for, among other things, “[f]ailure to provide[*199] necessaries for the child or abandonment of the child ... or [c]ruel treatment of the child.” OCGA § 19-7-1 (b). A parent’s right to custody may be lost if, for instance, the child “is being reared under immoral, obscene, or indecent influences which are likely to degrade [her] moral character and devote [her] to a vicious life and it appears . . . that by reason of the neglect, habitual drunkenness, lewd or other vicious habits, or other behavior of the parents . . . , it is necessary for the welfare of the child to protect the child from such conditions.” OCGA § 19-7-4.

Wilkins’ public statement is that he knew things about Webster which made her unfit to have custody of their daughter. He went further and announced that he as father wanted to deprive the mother of custody. Considering Wilkins’ statement about Webster in context, it is not as a matter of law a mere expression of opinion.

2. The trial court also erred in granting summary judgment to Cox.

A publisher who defames a private figure plaintiff may constitutionally be held liable in tort under a standard of ordinary care. Triangle Publications v. Chumley, 253 Ga. 179, 180 (1) (317 SE2d 534) (1984). In this action, Webster is not a limited purpose public figure. Time, Inc. v. Firestone, 424 U. S. 448 (96 SC 958, 47 LE2d 154) (1976). Thus, the issue is one of negligence, and the standard of conduct is defined by reference to the procedures a reasonable publisher in defendant’s position would have employed. Triangle Publications, supra at 181.

While doing research for the article, reporter Auchmutey discovered that after Webster filed the paternity action against Wilkins, he falsely stated that he did not know her. He was thus aware of Wilkins’ propensity for making false statements about Webster. Auchmutey also interviewed Wilkins’ mother, Gertrude Baker. She told him that, as a result of Wilkins’ anger toward Webster, he was planning “to go after” Chloe and give her to Baker, but that Baker did not want to raise the child because Baker was too old. Auchmutey was thus aware that when Wilkins stated that he wanted to take the child away from Webster, he meant it.

Auchmutey also spoke to Webster on several occasions before the article was published. He testified that he did not inquire of her or anyone else whether she is in fact a fit parent, essentially because he interpreted Wilkins’ statement as an expression of his anger rather than a literal accusation that she was not a fit custodian for the child. His focus should have been on how the reader would have interpreted it. In essence, Auchmutey also testified that he interpreted the statement as rhetorical hyperbole. See generally Fram v. Yellow Cab Co., 380 FSupp. 1314, 1329-1330 (19) (W.D. Pa. 1974). The context of the statement, and facts known to Auchmutey and established of record,[*200] wholly belie this characterization.

The evidence in this case presents a triable issue of fact on the question of whether the newspaper was negligent in publishing the allegedly defamatory statement.

3. Webster contends that as a matter of law Wilkins’ statement “[s]he is unfit to have a kid,” referring to their one-year-old daughter Chloe, and the reason he wants to deprive the mother of custody, constitutes slander actionable per se without proof of special damages.

Subsection (a) of OCGA § 51-5-4 states that slander or oral defamation consists in: “(1) Imputing to another a crime punishable by law; (2) Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) Making charges against another in reference to his trade, office, or profession, calculated to injure him therein; or (4) Uttering any disparaging words productive of special damage which flows naturally therefrom.” Webster does not allege the presence of a subsection (4) situation, which requires proof of special damages, but rather that the statement falls into one of the other three categories, where damage is inferred. OCGA § 51-5-4 (b).

Wilkins’ statement that Webster “is unfit to have a kid” is not a charge against her in reference to her trade, office, or profession. Under Georgia’s parental fitness doctrine, the statement can be interpreted as implying that she has committed a crime punishable by law, such as against the child, or is guilty of some debasing act such as would exclude her from society, such as parental unfitness could. See Division 1, supra. This does not mean that the statement is defamatory as a matter of law. Whether it is depends on what construction would be placed on it by the average reader. Mead v. True Citizen, Inc., 203 Ga. App. 361, 362 (417 SE2d 16) (1992); see Stalvey v. Atlanta Business Chronicle, 202 Ga. App. 597, 599 (1) (414 SE2d 898) (1992). Legal definitions are not controlling, Thuma v. Hearst Corp., 340 FSupp. 867, 871-872 (3) (D.Md. 1972), but they are not irrelevant either. Where, as here, the words spoken are capable of having a defamatory per se meaning by intimation or innuendo, whether the words were in fact so understood presents a jury question. See Southland Corp. v. Garren, 135 Ga. App. 77, 78 (2, 3) (217 SE2d 347) (1975) (the statement that plaintiff was “fired for shortages” may be found by a jury to have imputed to her a crime), rev’d on other grounds, 235 Ga. 784 (221 SE2d 571) (1976).

4. Webster urges that, as a matter of law, the statement “[s]he is unfit to have a kid” in the context reported constitutes newspaper libel actionable per se without proof of special damages. OCGA § 51-5-2 (a) provides: “Any false and malicious defamation of another in any newspaper, magazine, or periodical, tending to injure the reputation of the person and expose him to public hatred, contempt, or ridi[*201] cule, shall constitute a newspaper libel.”

What is contained in Division 3, supra, pertains here. The words published by the newspaper concerned the father’s assessment of the mother as unfit to parent their year-old daughter. Whether this tended to injure Webster’s reputation and expose her to public hatred, contempt, or ridicule are questions for the jury. If the jury finds that the words published tended to have this effect, then Webster may recover in accordance with OCGA § 51-5-2 without proof of special damages.

These are all factual matters capable of proof.

I am authorized to state that Presiding Judge Pope joins in this dissent.