Dameron v. Washington Magazine, Inc.

Decision Date24 December 1985
Docket NumberNos. 84-5056,84-5082,s. 84-5056
Citation779 F.2d 736,250 U.S.App.D.C. 346
Parties, 54 USLW 2380, 12 Media L. Rep. 1508 Merle W. DAMERON, Appellant, v. WASHINGTON MAGAZINE, INC., et al. Merle W. DAMERON v. WASHINGTON MAGAZINE, INC., et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (Civil Action No. 83-01248).

Sally A. Buckman, with whom Timothy M. Biddle, Washington, D.C., was on brief, for appellant in No. 84-5056 and cross-appellee in No. 84-5082.

Peter F. Axelrad, with whom David E. Beller, William L. Reynolds, Baltimore, Md., and Michael H. McConihe, Washington, D.C., were on brief, for appellees in No. 84-5056 and cross-appellants in No. 84-5082.

Before ROBINSON, Chief Judge, WRIGHT and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge.

Plaintiff Merle Dameron appeals from the district court's grant of summary judgment to the defendant in this defamation action. We agree with the district court's conclusion that the alleged libel was protected, but differ on the basis for such protection. The district court found that the defendants' statements about Dameron derived from an official report of a government proceeding. We do not believe the official report privilege applies in the circumstances of this case. However, we find that Dameron's role in a major public occurrence resulted in his becoming an involuntary, limited-purpose public figure. Under the controlling precedents, this status also forms a basis for protection, at least in the absence of actual malice by the alleged defamer. Accordingly, we affirm the court's grant of summary judgment.

I. BACKGROUND

This case arises from The Washingtonian magazine's publication in October 1982 of a lengthy article entitled "The Inside Story of the Crash of Air Florida's Flight 90: A False Feeling of Security." As the title suggests, the article was primarily a dramatic account of a much-publicized 1982 airplane crash in Washington, D.C. (replete with details of what the doomed passengers said to loved ones before leaving home for the airport, what jokes were exchanged in the cockpit before take-off, and so on).

Interwoven with the narrative account of the crash of Flight 90 were a number of sidebars that reported on aviation safety and air crashes in general. These reports included "How Dangerous Is It to Fly in Bad Weather?" and "Jet Airliners Are Almost Perfect Machines Until...." The present suit is based on a two-sentence paragraph on the eleventh page of the article in a short sidebar entitled "Is National Airport an Accident Waiting to Happen?"

This section detailed safety problems specific to Washington's National Airport--the unusually large number of flights daily, its excessively short runways, the requirement that pilots avoid the air space around the White House--but concluded that the FAA had taken a number of special precautions with respect to National and that National's safety record Since then--despite hair-raising talk among controllers about computer malfunctions, fatigue-induced errors, and reports of "near misses" in mid-air--it is believed that no major crash has been caused solely by controller errors. They have been assigned partial blame in a few accidents, including the 1974 crash of a TWA 727 into Mt. Weather in Virginia upon approach to Dulles (92 fatalities), the 1977 Southern Airways crash in Georgia, and the 1978 collision of a Pacific Southwest Airlines jet with a light plane over San Diego (142 fatalities).

                was good.  The sidebar concluded with a few paragraphs designed to put National's problems in context.  The report noted that in recent years airport facilities have very rarely played any role in crashes.  ("[A]irport inadequacies were partially to blame in only 6 percent of all fatal accidents.")    The article also reported that the air-traffic-control system is rarely to blame in accidents.  The section explained that in 1956, inadequate air-traffic control caused a major in-air crash over the Grand Canyon, and that this debacle resulted in the FAA's creation and the present air-traffic-control system.  The section concluded with the following two sentences
                

Plaintiff Merle Dameron was the sole air traffic controller on duty at Dulles on the day the TWA plane crashed into Mt. Weather in 1974. He contends that he was not in fact to blame for the accident, that he was never found blameworthy, and that he was wholly exonerated by a federal district court, which dismissed tort claims brought against the government on the theory of controller negligence. Dameron asserts that The Washingtonian's statement that he was partly to blame for the death of 92 people libels him--that the statement is false, brings him into disrepute, and has caused him humiliation and mental anguish. He does not allege malice.

It appears that the researcher for this report (defendant Daniel Rapoport) had only one source for his information on the Mt. Weather crash: a 1974 National Transportation Safety Board ("NTSB") accident report. See National Transportation Safety Board Aircraft Accident Report: Trans World Airlines, Inc., Boeing 727-231 N54320, Berryville, Virginia, December 1, 1974, Report No. NTSB-AAR-75-16, reprinted in Record Excerpts ("R.E.") at 79-133. In preparing material for the article's author, Rapoport summarized the NTSB report by stating that the Mt. Weather crash was an incident in which "air control failures" were "one of the causes or a contributing factor." Exhibit H, reprinted in R.E. at 232. When the article's author (defendant Larry Van Dyne) incorporated this material in the article, he made what he apparently thought was a purely stylistic change and wrote that the controllers had been partly to blame. Rapoport subsequently edited the article but did not object to the change.

Shortly after the article appeared, Dameron notified The Washingtonian that it had made a mistake, and the magazine printed a correction. Subsequently, Dameron filed suit in District of Columbia Superior Court. The defendants--the magazine (Washington Magazine, Inc. publishes The Washingtonian ), Van Dyne, and Rapoport--removed the case to federal court. (A fourth defendant, another researcher, was dismissed from the suit based on The Washingtonian's assertion that he had not worked on the challenged section of the article.) The defendants now contend that they printed the correction only in an effort to appease Dameron and not out of any belief they had made an error. They assert that the statement printed is substantially, if not precisely, accurate.

The defendants moved for summary judgment on a variety of grounds, including the fair report privilege, the substantial truth of the statement, and the theory that the plaintiff was both a public official and a public figure and that consequently his failure to allege actual malice rendered his suit legally deficient. The district judge granted the defendants' motion. He found that the allegedly libelous statement was protected by the common law conditional privilege

                for press reports of government proceedings.   See Dameron v. Washington Magazine, Inc., 575 F.Supp. 1575 (D.D.C.1983).  In apparent anticipation of an appeal, the judge further found that Dameron was neither a public figure nor a public official and that if the report privilege did not apply there would be a question of fact as to whether the defendants had acted negligently.  See id. at 1576-77 & n.1.  We turn now to examine the basis of the district court's decision and the doctrine that in fact shields the defendants from liability
                
II. THE FAIR REPORT PRIVILEGE

The district court's grant of summary judgment was predicated on the conclusion that "the defendants enjoyed a conditional privilege to publish reports of governmental proceedings." Dameron, 575 F.Supp. at 1577. There is no question that, as a matter of District of Columbia law, publications do enjoy a conditional fair report privilege. See, e.g., Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88-90 (D.C.App.1980), cert. denied, 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981); see also RESTATEMENT (SECOND) OF TORTS Sec. 611. However, the district judge erred in concluding that the privilege applied to the facts of this case. The conditional immunity that applies to the publication of fair and accurate reports of official proceedings is an exception to the common law rule that one who repeats or republishes a defamation uttered by another "adopts" it as his own. " 'The basis of the privilege is the interest of the public in having information made available to it as to what occurs in official proceedings and public meetings.' " Bufalino v. Associated Press, 692 F.2d 266, 271 (2d Cir.1982), cert. denied, 462 U.S. 1111, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983) (quoting RESTATEMENT (SECOND) OF TORTS Sec. 611 comment a ). The availability of the privilege encourages the media to disseminate official records--whether verbatim or in fair summaries--without fear of liability for any false, defamatory material that they might contain. Id.

The privilege's underlying purpose--encouraging the dissemination of fair and accurate reports--also suggests a natural limit to its application. Thus, if the reports are " 'garbled or fragmentary to the point where a false imputation is made about the plaintiff which would not be present had a full and accurate report been made,' " Curtis Publishing Co. v. Vaughan, 278 F.2d 23, 29 (D.C.Cir.), cert. denied, 364 U.S. 822, 81 S.Ct. 57, 5 L.Ed.2d 51 (1960), (quoting HARPER & JAMES, TORTS 432-33 (1956)), or if the reports are otherwise unfair or inaccurate, the privilege does not apply and the publisher is subject to liability. The privilege is similarly unavailable where the report is written in such a manner that the average reader would be...

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