Bueno v. Denver Pub. Co.

• Citation: 32 P.3d 491
• Decision Date: 02 March 2000
• Docket Number: No. 97CA1569.,97CA1569.
• Parties: Manuel Edward (Eddie) BUENO, Plaintiff-Appellee and Cross-Appellant, v. DENVER PUBLISHING COMPANY, a Colorado corporation, d/b/a Rocky Mountain News, Defendant-Appellant and Cross-Appellee.
• Court: Court of Appeals of Colorado

32 P.3d 491

Manuel Edward (Eddie) BUENO, Plaintiff-Appellee and Cross-Appellant, v. DENVER PUBLISHING COMPANY, a Colorado corporation, d/b/a Rocky Mountain News, Defendant-Appellant and Cross-Appellee.

No. 97CA1569.

Colorado Court of Appeals, DIV. I.

March 2, 2000.

Rehearing Denied May 3, 2001.

Certiorari Granted October 1, 2001.

Roger T. Castle, P.C., Roger T. Castle, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Baker & Hostetler, LLP, Marc D. Flink, Todd L. Lundy, Denver, Colorado, for Defendant-Appellant and Cross-Appellee

Opinion by Judge METZGER.

Defendant, the Denver Publishing Company, a Colorado corporation, d/b/a Rocky Mountain News, appeals the judgment entered on the jury verdict in favor of plaintiff, Manuel Edward ("Eddie") Bueno. We affirm.

On Saturday, August 27, and Sunday, August 28, 1994, defendant published a four-page, 13-column article under the headline "Denver's Biggest Crime Family." This article was the culmination of six-months' research, drafting, and editing by employees of defendant.

The article described the criminal activities of several of the 18 Bueno siblings, and it included a "family tree" drawing with photographs of all of them. Plaintiff's photograph appeared just below the headline "Denver's Biggest Crime Family," and its caption stated: "Eddie, 55, the oldest of the Bueno children." In the Saturday edition, a photograph of Freddie Bueno, the youngest brother, bore the caption "Freddie, 28, only Bueno brother who stayed out of trouble. Living in the Midwest." This caption was deleted from the Sunday edition.

The article contained over 25 statements which referred in critical terms to the "Bueno brothers," the "Bueno boys," the "older brothers," the "older boys," or the "Bueno family" as being criminals. For example, it said:

The younger Buenos got jobs, trying to break from the criminal patterns of their older brothers.... But the older Buenos began to lure the younger ones into a life of crime by the promise of easy money.

. . . .

Joey can't help but look at his older brothers who robbed. They're out of prison now.

. . . .

Despite her attempts to be both mother and father to her 18 children, Della Bueno was unable to keep her sons out of crime.

. . . .

The younger brothers recall waking up many nights at 2 or 3 a.m. when their older brothers tumbled home drunk.

. . . .

[Madeline Bueno Stern] blames her older brothers for corrupting her younger ones.

. . . .

The Bueno girls got into minor scrapes with the law.... But their crimes paled next to their brothers' . . . .

The older Bueno brothers are in their 40s and 50s now. They're out of prison, but most of their younger brothers will be in for a long, long time.

After plaintiff left home at the age of 13, he supported himself by working odd jobs. He later married, joined the United States Army and served for six years before receiving an Honorable Discharge, and worked thereafter in the Denver area. He and his wife, a registered nurse, reared three children. He was never arrested for a crime, nor was he ever charged with a crime. After he left home, he had virtually no contact with his family and had no involvement whatsoever in his siblings' criminal activities. Defendant knew these facts at the time the article was being prepared and published.

Plaintiff sued defendant, asserting four claims for relief: negligence, defamation, invasion of privacy for giving publicity to private facts, and invasion of privacy for placing him in a false light. His wife asserted a claim for loss of consortium.

Before trial, the trial court entered summary judgment in favor of defendant on the negligence and invasion of privacy for giving publicity to private facts claims. It also dismissed, with plaintiff's agreement, his wife's loss of consortium claim.

At the close of the evidence, the trial court granted defendant's motion for directed verdict on the defamation claim.

The jury returned a verdict in favor of plaintiff on the false light — invasion of privacy claim. It awarded him $47,973.90 for noneconomic losses, $5,280 for economic losses arising out of loss of earnings and medical treatment, and assessed $53,253.90 for exemplary damages.

Defendant appeals; plaintiff conditionally cross-appeals.

I.

Defendant first argues the trial court erred in submitting the claim for false light — invasion of privacy to the jury. It contends Colorado should not recognize that claim. We disagree.

In Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970), the supreme court first recognized in Colorado "a right of privacy, an invasion of which may be compensated by damages." However, the court specifically declined to categorize comprehensively the character of all invasions which may constitute a violation of the right of privacy.

Later, in Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo.1997), the court recognized the tort claim for invasion of privacy in the nature of unreasonable publicity given to one's private life. The court also noted that a majority of jurisdictions recognized that the right of privacy may be invaded in four different ways: 1) unreasonable intrusion upon the seclusion of another; 2) appropriation of another's name or likeness; 3) unreasonable publicity given to another's private life; and 4) publicity that unreasonably places another in a false light.

More recently, a division of this court recognized a claim of invasion of privacy by intrusion upon one's seclusion. See Doe v. High-Tech Institute, Inc., 972 P.2d 1060 (Colo.App.1998). Additionally, in Dittmar v. Joe Dickerson & Associates, LLC, 9 P.2d 1145 (Colo.App.1999), a division of this court recognized the claim of invasion of privacy by appropriation of another's name or likeness.

In all of these cases, the courts relied heavily on the analysis contained in the Restatement (Second) of Torts (1977) for guidance.

To establish a claim for false light invasion of privacy a plaintiff must establish by clear and convincing evidence that:

1) the defendant publicized false information concerning the plaintiff that placed the plaintiff before the public in a false light or false position, in other words, otherwise than as he is;

2) the false light in which the plaintiff was placed would be highly offensive to a reasonable person;

3) the defendant had knowledge of, or acted in reckless disregard as to, the falsity of the matter it publicized about the plaintiff and the false light in which the plaintiff would be placed. Additionally, the jury must find by a preponderance of the evidence that the publicity caused the plaintiff to incur damages, injuries, and losses.

See Restatement (Second) of Torts § 652E (1977).

A sizeable majority of other jurisdictions have recognized the existence and viability of this claim, either by statute or by decision. See Doe v. Roe, 638 So.2d 826 (Ala.1994); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781 (1989); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, sub nom., Little Rock Newspapers, Inc. v. Dodrill, 444 U.S. 1076, 100 S.Ct. 1024, 62 L.Ed.2d 759 (1980); Fellows v. National Enquirer, Inc., 42 Cal.3d 234, 228 Cal.Rptr. 215, 721 P.2d 97 (1986); Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982); Barbieri v. News-Journal Co., 56 Del. 67, 189 A.2d 773 (1963); Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So.2d 1239 (Fla.1996), cert. denied, 520 U.S. 1115, 117 S.Ct. 1245, 137 L.Ed.2d 327 (1997); Cabaniss v. Hipsley, 114 Ga.App. 367, 151 S.E.2d 496 (1966); Lovgren v. Citizens First National Bank, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987 (1989); Winegard v. Larsen, 260 N.W.2d 816 (Iowa 1977); Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975); McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849 (1982); Harnish v. Herald-Mail Co., 264 Md. 326, 286 A.2d 146 (1972); Board of Dentistry v. Kandarian, 268 Mont. 408, 886 P.2d 954 (1994); Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987)(citing false light — invasion of privacy as codified in Neb. Rev.Stat. § 20-204 (1983)); Romaine v. Kallinger, 109 N.J. 282, 537 A.2d 284 (1988); McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla.1980); Russell v. Thomson Newspapers, Inc., 842 P.2d 896 (Utah 1992); Lemnah v. American Breeders Service, Inc., 144 Vt. 568, 482 A.2d 700 (1984); Eastwood v. Cascade Broadcasting Co., 106 Wash.2d 466, 722 P.2d 1295 (1986); Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1983); Perere v. Louisiana Television Broadcasting Corp., 721 So.2d 1075 (La.App.1998); Deitz v. Wometco West Michigan TV, 160 Mich.App. 367, 407 N.W.2d 649 (1987); Moore v. Sun Publishing Corp., 118 N.M. 375, 881 P.2d 735 (1994), cert. denied, 118 N.M. 430, 882 P.2d 21 (1994); Dean v. Guard Publishing Co., 73 Or.App. 656, 699 P.2d 1158 (1985); Larsen v. Philadelphia Newspapers, Inc., 375 Pa.Super. 66, 543 A.2d 1181 (1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1568, 103 L.Ed.2d 935 (1989).

Other jurisdictions have not adopted the tort. See Falwell v. Penthouse International, Ltd., 521 F.Supp. 1204 (W.D.Va.1981); Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989); Peterson v. Idaho First National Bank, 83 Idaho 578, 367 P.2d 284 (1961); Near East Side Community Organization v. Hair, 555 N.E.2d 1324 (Ind. App.1990); Elm Medical Laboratory, Inc. v. RKO General, Inc., 403 Mass. 779, 532 N.E.2d 675 (1989); Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn.1998); Prescott v. Bay St. Louis Newspapers, Inc., 497 So.2d 77 (Miss.1986); Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475 (Mo.1986); Arrington v. New York Times Co., 55 N.Y.2d 433, 434 N.E.2d 1319, 449 N.Y.S.2d 941 (1982), cert. denied, 459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994 (1983); Renwick v. News & Observer Publishing, Co., 310 N.C....