Barreca v. Nickolas, 03-0439.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSTREIT, Justice.
Citation683 N.W.2d 111
PartiesFrank BARRECA and The Factory, L.L.C., A Limited Liability Company, Appellants, v. George T. NICKOLAS and The City of Davenport, Appellees.
Docket NumberNo. 03-0439.,03-0439.
Decision Date16 June 2004

James D. Bruhn of Farwell & Bruhn, Clinton, for appellants.

Brian Heyer, Assistant City Attorney, Davenport, for appellees.

STREIT, Justice.

While presiding at a public meeting, a Davenport alderman repeated an anonymous informant's false allegation that illicit and nefarious activities — involving minors, thongs, and water — were afoot at a local teen dance club. The club and one of its owners sued for defamation and intentional infliction of emotional distress. The district court dismissed both claims on summary judgment.

We reverse the grant of summary judgment on the defamation claim because there is a genuine issue of material fact as to whether the alderman abused his qualified privilege. We affirm dismissal of the intentional infliction of emotional distress claim, however, because the plaintiffs have not shown they suffered severe or extreme emotional distress.

I. Facts and Prior Proceedings

On July 30, 2001, George Nickolas, a Davenport alderman, presided as mayor pro tem at a Committee of the Whole meeting of the Davenport City Council. At this public meeting, Nickolas stated:

I got a call from a lady who was concerned about teenage thong contests and wet underwear contests they ran and wet t-shirt contests being held at what is supposed to be an all-age nightclub called "The Factory," and she was looking for [it] at least being brought up on the floor. She couldn't give a name, fortunately I taped it and played it for the Police Department and I'm not sure what they are doing, but they indicated they would look into it. If anybody has any other leads on this matter, they certainly can turn it over.... Major Schaeffer here will be the point of contact if anyone has any other leads — this lady was very upset ... that teenage girls were being encouraged to wear skimpy bathing suits and participate in whatever contest they had and that young boys were encouraged to strip down to their underwear and perform... I don't know what, and also that they had wet t-shirt contests. Now that is something that adult establishments — some places do, but if we're encouraging our minor youths to do this, then there needs to be somebody to look into it and see whatever action might be taken.

Nickolas's statement was broadcast numerous times on local television and radio. Nickolas also played a tape of the anonymous phone call to local media outlets.

Nickolas had not attempted to contact Frank Barreca, one of the owners and the general manager of The Factory, before repeating the allegations. Barreca first learned of the anonymous phone call while watching the evening news. The next day Nickolas admitted on local television the allegations were false. Barreca claims that after the false allegations were aired, The Factory suffered a decline in business and closed. Barreca also alleges he personally suffered "a great deal of humiliation, embarrassment, stress, and loss of sleep."

Barreca and The Factory sued Nickolas and the City of Davenport for slander and intentional infliction of emotional distress.1 The plaintiffs' claim against the City was based upon the theory Nickolas was acting within the scope of his duties and responsibilities as an alderman.

The district court granted summary judgment for the defendants on both claims. The court held Nickolas's statement was qualifiedly privileged, because he was only "attempting to seek information about an issue that would affect the community" and did not harbor any ill-will towards the defendants. See Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 117 (Iowa 1984)

(qualified privilege defeated upon a showing the defendant acted with "actual malice," i.e., with "ill-will or wrongful motive"). With respect to the intentional infliction of emotional distress claim, the district court held the plaintiffs had not proven (1) Nickolas's statement was sufficiently "outrageous" or (2) severe or extreme emotional distress.

On appeal, the plaintiffs argue the district court erred in granting summary judgment on the slander claim, because (1) the defendants were not entitled to a qualified privilege; (2) even if the defendants were entitled to a qualified privilege, in determining whether the defendants had abused the privilege the court incorrectly defined "actual malice" as wrongful motive, as opposed to a knowing or reckless disregard for the truth; and (3) even if actual malice is defined as wrongful motive, there is sufficient evidence to show Nickolas harbored ill-will towards the plaintiffs. The plaintiffs likewise contend the district court erroneously dismissed the intentional infliction of emotional distress claim because there is sufficient evidence to show (1) Nickolas's conduct was outrageous and (2) Barreca suffered severe or extreme emotional distress.

II. Standard of Review

As we recently stated in Delaney v. International Union UAW Local No. 94, appellate review of an entry for summary judgment is well-settled:

We, like the district court, are obliged to view the factual record in the light most favorable to the resisting party, affording that party all reasonable inferences that the record will bear. Summary judgment is proper only if the record made shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. If the conflict in the record concerns only the legal consequences flowing from undisputed facts, entry of summary judgment is proper.... Our review, therefore, is for the correction of errors at law.

675 N.W.2d 832, 834 (Iowa 2004) (quoting Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 649-50 (Iowa 2000)); see also Jones v. Palmer Communications, Inc., 440 N.W.2d 884, 889 (Iowa 1989)

(explaining unique role of summary judgment in defamation cases), overruled on other grounds by Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 224 (Iowa 1998).

III. Merits
A. Defamation

The law of defamation is composed of the twin torts of libel and slander. Huegerich v. IBP, Inc., 547 N.W.2d 216, 221 (Iowa 1996). "The gist of an action for libel or slander is the publication of written or oral statements which tend to injure a person's reputation and good name." Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994). At issue in this appeal is slander. See Restatement (Second) of Torts § 568 (1977) (slander defined generally as "the publication of defamatory matter by spoken words ...") [hereinafter Restatement].

At common law, slander was generally not actionable unless the plaintiff proved actual damage. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 112, at 788 (5th ed.1984) [hereinafter Prosser on Torts]. Exceptions to the rule developed, however: certain statements, characterized as "slander per se," did not require proof of special harm or any other damage to reputation. Vinson, 360 N.W.2d at 116. In such cases, "proof of the defamation itself is considered to establish the existence of some damages, and the jury is permitted, without other evidence, to estimate their amount." Prosser on Torts § 112, at 788.

Over the years, we have characterized a variety of statements as slander per se. See, e.g., Shultz v. Shultz, 224 Iowa 205, 211, 275 N.W. 562, 565 (1937) (imputation of loathsome disease); Arnold v. Lutz, 141 Iowa 596, 598, 120 N.W. 121, 121 (1909) (adultery); Haynes v. Ritchey, 30 Iowa 76, 77 (1870) (bestiality); see Hicks v. Walker; 2 Greene 440, 442 (Iowa 1850) (theft). See generally Patrick J. McNulty, The Law of Defamation: A Primer for the Iowa Practitioner, 44 Drake L.Rev. 639, 650-52 (1996) (cataloguing Iowa slander per se cases, which the author suggests fall into four general categories: imputation of (1) certain indictable crimes, (2) loathsome disease, (3) incompetence in occupation, and (4) unchastity) [hereinafter McNulty]; cf. Prosser on Torts § 112, at 788-93 (recognizing same four categories in other jurisdictions). In the case at bar, the district court treated Nickolas's statements about illicit behavior at The Factory as slander per se. See Lara, 512 N.W.2d at 785

(recognizing "[s]landerous imputations affecting a person in his or her business, trade, profession, or office" as slander per se); Restatement § 573 (same). Neither party challenges this characterization on appeal.

The defendants asserted a qualified privilege as an affirmative defense to the plaintiffs' slander per se claim. See Mills v. Denny, 245 Iowa 584, 586, 63 N.W.2d 222, 224 (1954) ("Privileged communications are divided into two main general classes, namely: (1) those that are absolutely privileged, and those that are qualifiedly or conditionally privileged."). The law affords defendants privileges because

[s]ometimes one is justified in communicating to others, without liability, defamatory information.... The law recognizes certain situations may arise in which a person, in order to protect his own interests or the interests of others, must make statements about another which are indeed libelous. When this happens, the statement is said to be privileged, which simply means no liability attaches to its publication.

Vojak v. Jensen, 161 N.W.2d 100, 105 (Iowa 1968); see Mills, 245 Iowa at 587,

63 N.W.2d at 224 ("The doctrine of privileged communication is based upon the principle of good public policy.... It rests upon the same basis of necessity that is found in other tort laws. Instances abound where the individual must surrender his personal rights and suffer loss for the benefit of the common welfare.").2 A qualified privilege is a defeasible immunity from liability; that is, a qualified privilege may be defeated under certain circumstances. See Vojak, 161 N.W.2d at 105. A qualified privilege is lost when it is abused. Jones, 440 N.W.2d at 892. For...

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