Duran v. Detroit News, Inc.

• Decision Date: 19 July 1993
• Docket Number: Docket Nos. 137254,WJBK-T,137325,N
• Citation: 504 N.W.2d 715,200 Mich.App. 622
• Parties: , 21 Media L. Rep. 1891 Consuelo Sanchez DURAN and Augusto Sanabria, Plaintiffs-Appellants, v. THE DETROIT NEWS, INC., a Michigan corporation, Pete Waldmeir, and Robert H. Giles, jointly and severally, Defendants-Appellees. Consuelo Sanchez DURAN and Augusto Sanabria, Plaintiffs-Appellants, v. Lori MATHEWS, the Detroit Free Press, and Channel 7 of Detroit, Inc., d/b/a WXYZ TV, jointly and severally, Defendants-Appellees, and Gillett Communications of Detroit, Inc., a Delaware corporation, d/b/aot Participating.
• Court: Court of Appeal of Michigan — District of US

Page 715

504 N.W.2d 715

200 Mich.App. 622, 21 Media L. Rep. 1891

Consuelo Sanchez DURAN and Augusto Sanabria, Plaintiffs-Appellants, v. THE DETROIT NEWS, INC., a Michigan corporation, Pete

Waldmeir, and Robert H. Giles, jointly and

severally, Defendants-Appellees.

Consuelo Sanchez DURAN and Augusto Sanabria, Plaintiffs-Appellants, v. Lori MATHEWS, the Detroit Free Press, and Channel 7 of

Detroit, Inc., d/b/a WXYZ TV, jointly and

severally, Defendants-Appellees,

and

Gillett Communications of Detroit, Inc., a Delaware

corporation, d/b/a WJBK-TV, Not Participating.

Docket Nos. 137254, 137325.

Court of Appeals of Michigan.

Submitted March 11, 1993, at Detroit.

Decided July 19, 1993, at 9:20 a.m.

Released for Publication Sept. 23, 1993.

Thurswell, Chayet & Weiner by Cyril V. Weiner, Southfield, for Consuelo Sanchez Duran and Augusto Sanabria.

Butzel Long by James E. Stewart and Leonard M. Niehoff, Detroit, for the Detroit

News, Inc., Pete Waldmeir, and Robert H. Giles.

Honigman Miller Schwartz & Cohn by Herschel P. Fink, Detroit, for Lori Mathews, the Detroit Free Press, and Channel 7 of Detroit, Inc.

Before: Gribbs, P.J., and Holbrook, Jr., and Neff, JJ.

HOLBROOK, Judge.

Plaintiffs appeal as of right two Wayne Circuit Court orders dated January 16, 1991, granting summary disposition to all defendants. We affirm.

I

Plaintiff Consuelo Sanchez Duran became a judge in Colombia in 1980. In the course of her judicial duties she indicted Pablo Escobar, a reputed drug lord, for the murder of Guillermo Cano, a Colombian newspaper editor. Several threats were made against Sanchez Duran and her family, some of which were reported in Colombian and American newspapers. Sanchez Duran resigned from the bench on August 30, 1988. A Colombian newspaper announced that she was leaving the country but did not reveal her destination. On September 1, 1988, Sanchez Duran and her husband, plaintiff Augusto Sanabria, left Colombia for the United States.

While in the United States, plaintiffs used their real names. Sanchez Duran was appointed Colombian Consul in Detroit. Other consulates were informed by mail of Sanchez Duran's appointment. As a normal business practice, Sanchez Duran would give people her business card inscribed with her name when she thought it was necessary.

Plaintiffs signed a lease in their own names for an apartment in Southfield. Other residents of the apartment complex knew Sanchez Duran had been a magistrate threatened by a drug cartel. Sanchez Duran regularly went to work at the consulate in Detroit. She also shopped at public stores and dined in public restaurants. On the other hand, plaintiffs kept an unlisted telephone number, did not join any social clubs or organizations, and did not attend any concerts, sporting events, or motion pictures. The United States Department of State initially hired security guards for the plaintiffs. On February 9, 1989, plaintiffs moved to a different apartment in Detroit, again using their real names.

On February 12, 1989, The Detroit News published an article written by Pete Waldmeir that exposed Sanchez Duran's history and her presence in Detroit. The next day the newspaper published a second article written by Waldmeir that stated that plaintiffs had moved into a Detroit riverfront apartment. That evening, Channel 7 of Detroit, Inc., doing business as WXYZ TV, broadcast a report concerning plaintiffs with a reporter standing in front of plaintiffs' apartment complex and interviewing one of the residents. On February 14, 1989, the Detroit Free Press published an article by Lori Mathews that specified the Riverfront Apartments as plaintiffs' residence. The following day Gillett Communications of Detroit, Inc., doing business as WJBK-TV, broadcast a story about plaintiffs that again revealed the Riverfront Apartments as plaintiffs' residence. WXYZ also broadcast an interview with Waldmeir.

II

Plaintiffs filed two suits. In their complaints against The Detroit News, its publisher Robert H. Giles, and Waldmeir (collectively the News defendants), plaintiffs alleged actions for defamation, invasion of privacy by public disclosure of embarrassing private facts, false-light invasion of privacy, intentional and negligent infliction of emotional distress, and reckless endangerment. In their complaint against Mathews, the Detroit Free Press, WXYZ, and WJBK, plaintiffs alleged invasion of privacy, reckless endangerment, and intentional and negligent infliction of emotional distress. Defendants moved for summary disposition under MCR 2.116(C)(8) and (10).

The trial court first considered the motion brought by the News defendants. Finding as a matter of law that the words reported were not capable of a defamatory meaning, the trial court granted these defendants summary disposition under MCR 2.116(C)(8) with respect to the claim of defamation. The trial court further ruled that Sanchez Duran was a public figure, the statements were not false, and actual malice was totally absent. The trial court granted the News defendants summary disposition of the claims of invasion of privacy on the grounds that there was no genuine issue of material fact because the reports did not cast plaintiffs in a false light, were not embarrassing to plaintiffs, and were not intrusive upon plaintiffs' seclusion because defendants "never forced their way into her private areas of employment or domicile." In granting the News defendants summary disposition under MCR 2.116(C)(8) with respect to the claims of intentional and negligent infliction of emotional distress, the trial court determined that defendants' actions as news reporters could "hardly be classified as outrageous." The trial court found that this state does not recognize a cause of action for reckless endangerment and thus dismissed the claim. The trial court then ruled that its analysis was applicable to the respective claims against Mathews, the Detroit Free Press, WXYZ, and WJBK. Plaintiffs now appeal the trial court's orders. ¹

III

A motion under MCR 2.116(C)(8), for summary disposition based upon a failure to state a claim upon which relief can be granted, tests the legal sufficiency of a claim by the pleadings alone. Wolfe v. Employers Health Ins. Co. (On Remand), 194 Mich.App. 172, 174, 486 N.W.2d 319 (1992). The court must accept as true all well-pleaded factual allegations as well as any conclusions that can be drawn from the facts. Paul v. Bogle, 193 Mich.App. 479, 495, 484 N.W.2d 728 (1992). The motion should be granted only if the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery. Hutchinson v. Allegan Co. Bd. of Rd. Comm'rs (On Remand), 192 Mich.App. 472, 475, 481 N.W.2d 807 (1992).

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim and should be granted only when it is impossible for the claim to be supported at trial because of a deficiency that cannot be overcome. Holland v. Liedel, 197 Mich.App. 60, 64, 494 N.W.2d 772 (1992). In deciding such a motion, the court must give the benefit of reasonable doubt to the nonmovant and determine whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Bedker v. Domino's Pizza, Inc., 195 Mich.App. 725, 728, 491 N.W.2d 275 (1992). This Court liberally finds a genuine issue of material fact. However, where the opposing party fails to adduce evidence to establish a material factual dispute, the motion is properly granted. Mascarenas v. Union Carbide Corp., 196 Mich.App. 240, 243, 492 N.W.2d 512 (1992).

IV

Plaintiffs first argue that the trial court erred in granting defendants summary disposition of the claims of negligent infliction of emotional distress. Citing Parnell v. Booth Newspapers, Inc., 572 F.Supp. 909 (WD Mich, 1983), and Apostle v. Booth Newspapers, Inc., 572 F.Supp. 897 (WD Mich, 1983), plaintiffs argue defendants' negligence and breach of journalism standards caused plaintiffs to suffer severe emotional distress by witnessing each other's distress. However, we find that the tort of negligent infliction of emotional distress is inapplicable where a plaintiff claims to have been injured by publication of false statements about the plaintiff. Deitz v. Wometco West Michigan TV, Inc., 160 Mich.App. 367, 380-381, 407 N.W.2d 649 (1987). Although the circumstances in the present case concern substantially true statements about the plaintiffs, we decline to apply the tort of negligent infliction of emotional distress beyond the situation where a plaintiff witnesses negligent injury to a third person and suffers mental disturbance as a result. Id.; Wargelin v. Mercy Health Corp., 149 Mich.App. 75, 385 N.W.2d 732 (1986). Accordingly, the trial court did not err in granting defendants summary disposition of the claims of negligent infliction of emotional distress.

Plaintiffs next argue that the trial court erred in granting summary disposition of the claims of intentional infliction of emotional distress. The four elements of this tort are: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602, 374 N.W.2d 905 (1985). The trial court must determine as a matter of law whether the defendant's conduct was so extreme and outrageous to withstand a motion for summary disposition. Id.; Sawabini v. Desenberg, 143 Mich.App. 373, 383, 372 N.W.2d 559 (1985). In this case, the statements were offensive to plaintiffs because they publicized plaintiffs' location in Detroit when there were death threats against them. However, defendants' conduct was not so outrageous or extreme to establish liability in tort in light of the fact that plaintiffs used their own names and did not attempt to completely hide their identities while in Detroit. Thus, the trial court did not err in granting defendants summary...