Braun v. Soldier of Fortune Magazine, Inc.

• Decision Date: 13 August 1992
• Docket Number: No. 91-7130,91-7130
• Citation: 968 F.2d 1110
• Parties: , 20 Media L. Rep. 1777 Michael F. BRAUN, Plaintiff-Appellee, v. SOLDIER OF FORTUNE MAGAZINE, INC. and Omega Group, Ltd., Defendants-Appellants. Michael F. BRAUN and Ian Braun, Plaintiffs-Appellees, v. SOLDIER OF FORTUNE MAGAZINE, INC. and Omega Group, Ltd., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1110

968 F.2d 1110

61 USLW 2141, 20 Media L. Rep. 1777

Michael F. BRAUN, Plaintiff-Appellee, v. SOLDIER OF FORTUNE MAGAZINE, INC. and Omega Group, Ltd.,

Defendants-Appellants.

Michael F. BRAUN and Ian Braun, Plaintiffs-Appellees, v. SOLDIER OF FORTUNE MAGAZINE, INC. and Omega Group, Ltd.,

Defendants-Appellants.

No. 91-7130.

United States Court of Appeals Eleventh Circuit.

Aug. 13, 1992.

F. Chadwick Morriss, James W. Garrett, Jr., Dennis R. Bailey, Rushton, Stakely, Johnston & Garrett, Pa., Montgomery, Ala., E. Barrett Prettyman, Jr., Ronald J. Wiltsie, II, A. Lee Bentley, III, Hogan & Hartson, Washington, D.C., for defendants-appellants.

L. Gilbert Kendrick, Stephen R. Glassroth, Kendrick & Glassroth, John C. Cason, Montgomery, Ala., for plaintiffs-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before ANDERSON and DUBINA, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Soldier of Fortune Magazine, Inc., and its parent, Omega Group, Ltd., (hereinafter collectively referred to as "SOF") appeal a $4,375,000 jury verdict against them in a consolidated tort action brought by Michael and Ian Braun, the sons of a murder victim. The jury found that SOF acted with negligence and malice in publishing a personal service advertisement through which plaintiffs' father's business partner hired an assassin to kill him. We affirm the judgment entered on the jury's verdict.

I. FACTS

In January 1985, Michael Savage submitted a personal service advertisement to SOF. After several conversations between Savage and SOF's advertising manager, Joan Steel, the following advertisement ran in the June 1985 through March 1986 issues of SOF:

GUN FOR HIRE: 37 year old professional mercenary desires jobs. Vietnam Veteran. Discrete [sic] and very private. Body guard, courier, and other special skills. All jobs considered. Phone (615) 436-9785 (days) or (615) 436-4335 (nights), or write: Rt. 2, Box 682 Village Loop Road, Gatlinburg, TN 37738.

Savage testified that, when he placed the ad, he had no intention of obtaining anything but legitimate jobs. Nonetheless, Savage stated that the overwhelming majority of the 30 to 40 phone calls a week he received in response to his ad sought his participation in criminal activity such as murder, assault, and kidnapping. The ad also generated at least one legitimate job as a bodyguard, which Savage accepted.

In late 1984 or early 1985, Bruce Gastwirth began seeking to murder his business partner, Richard Braun. Gastwirth enlisted the aid of another business associate, John Horton Moore, and together they arranged for at least three attempts on Braun's life, all of which were unsuccessful. Responding to Savage's SOF ad, Gastwirth and Moore contacted him in August 1985 to discuss plans to murder Braun.

On August 26, 1985, Savage, Moore, and another individual, Sean Trevor Doutre, went to Braun's suburban Atlanta home. As Braun and his sixteen year-old son Michael were driving down the driveway, Doutre stepped in front of Braun's car and fired several shots into the car with a MAC 11 automatic pistol. The shots hit Michael in the thigh and wounded Braun as well. Braun managed to roll out of the car, but Doutre walked over to Braun and killed him by firing two more shots into the back of his head as Braun lay on the ground.

II. PROCEEDINGS BELOW

On March 31, 1988, appellees Michael and Ian Braun filed this diversity action against appellants in the United States District Court for the Middle District of Alabama, seeking damages for the wrongful death of their father. Michael Braun also filed a separate action seeking recovery for the personal injuries he received at the time of his father's death. The district court consolidated these related matters.

Trial began on December 3, 1990. Appellees contended that, under Georgia law, SOF was liable for their injuries because SOF negligently published a personal service advertisement that created an unreasonable risk of the solicitation and commission of violent criminal activity, including murder. To show that SOF knew of the likelihood that criminal activity would result from placing an ad like Savage's, appellees introduced evidence of newspaper and magazine articles published prior to Braun's murder which described links between SOF personal service ads and a number of criminal convictions including murder kidnapping, assault, extortion, and attempts thereof. ¹ Appellees also presented evidence that, prior to SOF's acceptance of Savage's ad, law enforcement officials had contacted SOF staffers on two separate occasions in connection with investigations of crimes--a solicitation to commit murder in Houston, Texas, and a kidnapping in New Jersey--linked to SOF personal service ads.

In his trial testimony, SOF president Robert K. Brown denied having any knowledge of criminal activity associated with SOF's personal service ads at any time prior to Braun's murder in August 1985. ² Both Jim Graves, a former managing editor of SOF, and Joan Steel, the advertising manager who accepted Savage's advertisement, similarly testified that they were not aware of other crimes connected with SOF ads prior to running Savage's ad. Steel further testified that she had understood the term "Gun for Hire" in Savage's ad to refer to a "bodyguard or protection service-type thing," rather than to any illegal activity.

At the end of the five day trial, the district court gave the following instructions on negligence to the jury:

In order to prevail in this case Plaintiffs must prove to your reasonable satisfaction by a preponderance of the evidence that a reasonable reading of the advertisement in this case would have conveyed to a magazine publisher, such as Soldier of Fortune, that this ad presented the clear and present danger of causing serious harm to the public from violent criminal activity. The Plaintiffs must prove that the ad in question contained a clearly identifiable unreasonable risk, that the offer in the ad is one to commit a serious violent crime, including murder.

Now, while Defendants owe a duty of reasonable care to the public, the magazine publisher does not have a duty to investigate every ad it publishes. Defendants owe no duty to the Plaintiffs for publishing an ad if the ad's language on its face would not convey to the reader that it created an unreasonable risk that the advertiser was available to commit such violent crimes as murder.

Now, of course, the tendency to read the advertisement in question in hindsight is hard to avoid, but it must be avoided. The test for you is not how the advertisement in question reads now in light of subsequent events, but rather how the advertisement read to a reasonable publisher at the time of publication. You should view the facts and these instructions with particular care in this case, in view of the First Amendment to the Constitution, which protects the free flow of truthful and legitimate information even when it is of a commercial rather than a political nature.

The district court further instructed that, if the jury found that SOF was negligent and that this negligence was the proximate cause of appellees' father's death, it could "award damages for the value of the life of Richard Braun," but not for mental anguish, emotional distress, or the family's loss of companionship. The court also stated that, if the jury found that SOF was negligent and that this negligence was the proximate cause of appellee Michael Braun's injuries, it could award full compensation, including recovery for both physical pain and mental anguish. The district court also noted that Georgia law permitted punitive damages for appellee Michael Braun's personal injury claim but that, to award punitive damages, the jury must first find that SOF "acted maliciously or with an entire want of care which constitutes conscious indifference to the consequences."

The jury returned a verdict in favor of appellees and awarded compensatory damages on the wrongful death claim in the amount of $2,000,000. The jury also awarded appellee Michael Braun $375,000 in compensatory damages and $10,000,000 in punitive damages for his personal injury claim. The district court entered judgment in accordance with the jury's verdict on December 7, 1990.

On January 23, 1991, the district court denied SOF's motion for judgment notwithstanding the verdict, but ruled that it would grant SOF's motion for a new trial unless there were an agreement to a remittitur reducing the punitive damages awarded to $2,000,000. Appellees agreed to the remittitur, and an amended judgment was entered on February 6, 1991. 757 F.Supp. 1325. SOF appeals.

III. DISCUSSION

The district court, sitting in Alabama, properly looked to Georgia law in resolving appellees' negligence claims. In Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 494, 61 S.Ct. 1020, 1020, 85 L.Ed. 1477 (1941), the Supreme Court held that "in diversity cases the federal courts must follow conflict of laws rules prevailing in the states in which they sit." Under Alabama law, "the substantive law of the state where the injury occurred is applied when suit is brought in Alabama." Bodnar v. Piper Aircraft Corp., 392 So.2d 1161, 1162 (Ala.1980). Since Richard Braun's murder and appellee Michael Braun's injuries both occurred in Georgia, Alabama conflict of laws rules required that the district court apply Georgia law.

A. Duty Under Georgia Law

To prevail in an action for negligence in Georgia, a party must establish the following elements:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the...