Erickson v. Jones Street Publishers

• Decision Date: 10 April 2006
• Docket Number: No. 26133.,26133.
• Citation: 629 S.E.2d 653
• Parties: Linda ERICKSON, Appellant, v. JONES STREET PUBLISHERS, LLC, Respondent.
• Court: South Carolina Supreme Court

629 S.E.2d 653

Linda ERICKSON, Appellant, v.JONES STREET PUBLISHERS, LLC, Respondent.

No. 26133.

Supreme Court of South Carolina.

Heard January 19, 2006.

Decided April 10, 2006.

Rehearing Denied May 24, 2006.

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Russell S. Stemke, of Island Law Offices, of Isle of Palms, for Appellant.

John J. Kerr, of Buist, Moore, Smythe, & McGee, P.A., of Charleston, for Respondent.

Justice BURNETT:

Linda Erickson(Appellant) appeals the dismissal of her causes of action for defamation, invasion of privacy, and negligence against Jones Street Publishers, LLC(Newspaper).We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Newspaper publishes the Charleston City Paper, a free weekly newspaper with a circulation of about 30,000.Newspaper on January 19, 2000, published a front-page news story titled "In A Child's Best Interest: Is the guardian ad litem program giving children a voice?"In a promotional teaser in the table of contents on page three, Newspaper stated:

Protecting the Children

The Guardian Ad Litem program has come under fire recently for a series of transgressions.One high profile case has a Guardian reportedly becoming romantically involved with the father of a child.Critics claim volunteers with a lack of training and professional expertise have too much authority.How did this happen, and what is being done to remedy the situation?

In introductory paragraphs preceding the main body of the article, Newspaper stated:

Every child in the judicial system needs to have a voice.Parents have the benefit of experience, age, and lawyers to make their case.But what of a 7-year-old boy whose family is crumbling right in front of him and only sees himself to blame — who is to speak for him?

In South Carolina, they are called Guardian Ad Litems (GALs).In a perfect world, they provide an objective perspective for what's best for the child — mom's house, dad's house, neither.But what happens if their objectivity is compromised?What if, while carrying out their duties, they step across the line, like sleeping with the client's father?

It's already happened, and the result is a public effort to abolish half of the GAL system and radically modify the other half.

The article then began with a subsection titled "Whom to Believe?"In that first subsection, Newspaper recounted the claims of Pat Beal, a Summerville grandmother who said her daughter and two grandchildren had moved into her home to escape the daughter's physically abusive husband.Pat Beal said her "then six-year-old granddaughter began to complain of pain in her `private area — vaginal pain'" and that "her granddaughter would cry out `No, Daddy' in her dreams."The family took the granddaughter to doctors to investigate "possible molestations," as well as to a lawyer who ultimately contacted the Department of Social Services, according to the article.

In the article, Pat Beal stated that "the [guardian] assigned to the case did not do a thorough job of interviewing the family and did not even talk to the granddaughter"; the guardian prevented an arrangement between the parents in which the mother(Pat Beal's daughter) would get full custody of the children; the guardian "manipulated the judge into barring [Pat Beal] from contacting her granddaughter without supervision"; and the guardian, in the final divorce decree, "had it written that she[Pat Beal] could have no contact with either of her minor grandchildren."Pat Beal further stated in the article that she"became incensed when a second psychologist said that she had `coached' her granddaughter into alleging sexual abuse at the hands of her father"; that she and her husband had "spent $64,000 fighting the decree in court, and were eventually successful"; and that she had joined a court reform movement begun by those who have been through "equally harrowing experiences with custody and abuse battles."

The article did not name the guardian who represented Pat Beal's granddaughter.Appellant testified there were only a handful of private, non-lawyer guardians in Dorchester County at the time.Two local lawyers testified they and others involved in the Dorchester County family court system were familiar with the "Beal case," and knew Appellant was the guardian who had worked on it.Furthermore, it apparently is undisputed Appellant was sufficiently identified in the article because Newspaper did not attempt to defend on that ground.¹

Appellant alleged the teaser, introductory paragraphs, and "Whom to Believe" subsection constituted defamation by libel.Appellant alleged and testified the false and defamatory statements included the charge she failed to properly investigate the case or speak with the child she represented, that she improperly blocked and tried to prevent the mother from getting full custody of the children, that she manipulated a family court judge, that she caused a court order to be written preventing Pat Beal from having visitation with her granddaughter, and that she had a sexual relationship with the father of a child she represented.

Appellant presented evidence that the child's "vaginal pain" was actually caused by pinworms.Investigations by Appellant, DSS, physicians, and a psychologist revealed no evidence William Litchfield had sexually abused his daughter.Appellant testified she concluded Pat Beal had coached her granddaughter to falsely accuse her father of sexual molestation in order to gain an advantage in the divorce and custody battle.A psychologist reached the same conclusion.Appellant testified the child, unprompted, said she"told the doctor that my daddy did something that he really didn't.My nana [Pat Beal] told me to because she wanted me to — my nana asked me to tell the doctor that my daddy hurt me and he really didn't.And my mama and grandpa are afraid we're going to get in trouble."

The family court judge in the Litchfield divorce decree ordered the parties to deny access or visitation of Pat Beal with the grandchildren until she"has completed a course of counseling which addresses the issues of coaching and interfering with the relationship of these parents and children."The order, the result of a settlement between the parties, was not appealed and Pat Beal's visitation rights were restored after she completed the required counseling.

Appellant exemplified something of a Horatio Alger tale.She testified she had a somewhat troubled childhood and adolescence, growing up in New York with an alcoholic father.She left home, dropped out of school at the age of sixteen, and had a failed relationship with a heroin addict.She later met and married and the couple had two children, moving to Charleston after her husband joined the Air Force.Appellant's husband was killed in a car wreck when she was twenty-five years old.Appellant passed tests of General Educational Development, obtaining her "GED."She then went to college for eight years while working part-time jobs and taking care of her children, eventually obtaining a bachelor's degree in sociology.Appellant ultimately obtained a master's degree in counseling and, finally, realizing part of her dream, became a licensed professional counselor able to work with children and families.

Appellant had planned to begin her own counseling business in Dorchester County, but Appellant and two lawyers testified her reputation and chance to start a counseling business were ruined by the defamatory newspaper article.No lawyer needing a guardian ad litem or family counselor could take a chance on hiring such a controversial person because it would simply bring too many extraneous issues and problems into a case.

Appellant testified she worked from her home as a guardian ad litem and counselor in divorce and other family-related cases, and she considered her role to be a private, confidential one involving very personal matters.She understood that legislators, family court officials, and others at the time were publicly debating potential changes in the guardian system, but she did not speak out publicly on the topic.

Newspaper defended the case primarily on the grounds the information in the article was true and accurate, i.e.,Appellant had not properly investigated the case, had reached erroneous conclusions and recommendations too summarily, and had manipulated the family court.The author of the article, Bill Davis, testified he and Newspaper handled the story carefully and appropriately.Davis testified he tried to contact Appellant before publishing it even though none of his notes contained her telephone number.He did not try to contact attorneys involved in the Beal case.Davis conceded his only source for the "Whom to Believe" subsection was a fifteen-to thirty-minute telephone conversation with Pat Beal.Davis admitted he could have obtained the Litchfields' publicly recorded divorce decree, which refuted or at least called some of Pat Beal's claims into question.²In addition, Newspaper contended Appellant was a public figure or public official required to prove constitutional actual malice, which she was unable to do, in order to prevail in the lawsuit.

The trial initially progressed in the usual manner.It appears that, by the third day, Wednesday, the trial judge expressed concern about the potential length of the trial.³Newspaper suggested the evidence initially should be limited to issues of Appellant's status and whether she had presented sufficient evidence of actual malice to submit the case to the jury.The judge, in turn, suggested the parties agree to bifurcate the case between liability and damages, an idea Appellant initially resisted.By Friday morning, the decision to bifurcate the case apparently had been agreed upon and was understood by the parties, as the judge directed Appellant, "I don't want you to...