Furgason v. Clausen, 10841

• Court: Court of Appeals of New Mexico
• Writing for the Court: DONNELLY; APODACA; HARTZ; HARTZ; With respect to the first theory of liability
• Citation: Furgason v. Clausen, 785 P.2d 242, 109 N.M. 331, 1989 NMCA 84 (N.M. App. 1989)
• Decision Date: 10 October 1989
• Docket Number: No. 10841,10841
• Parties: , 18 Media L. Rep. 1369 James M. FURGASON, Plaintiff-Appellant, v. Christopher CLAUSEN and Donrey, Inc., a Nevada Corporation, authorized to do business in New Mexico as Donrey Outdoor Advertising Company, also dba Donrey Media Group dba and/or publishing the Alamogordo Daily News, Defendants-Appellees.

Page 242

785 P.2d 242

109 N.M. 331, 18 Media L. Rep. 1369

James M. FURGASON, Plaintiff-Appellant, v. Christopher CLAUSEN and Donrey, Inc., a Nevada Corporation authorized to do business in New Mexico as Donrey Outdoor Advertising Company, also dba Donrey Media Group dba and/or publishing the Alamogordo Daily News, Defendants-Appellees.

No. 10841.

Court of Appeals of New Mexico.

Oct. 10, 1989.

Certiorari Denied Dec. 5, 1989.

[109 N.M. 332] Lisa K. Durrett, Charles W. Durrett, Durrett, Jordan & Durrett, P.C., Alamogordo, for plaintiff-appellant.

Frank K. Wilson, Rory L. Rank, Wilson & Rank, Alamogordo, for defendants-appellees.

OPINION

DONNELLY, Judge.

Appellant James M. Furgason appeals from an order granting summary judgment and dismissing his complaint for libel against defendants Christopher Clausen, Donrey, Inc., and the Alamogordo Daily News for publishing a false report of his arrest. We discuss: (1) whether the court erred in determining that the publication in question was protected by the fair-report privilege; (2) whether the district court erred in determining the status of appellant; and (3) propriety of summary judgment. We reverse.

Appellant is the owner and proprietor of "Furgi's Pub" in Alamogordo. He also was appointed to serve on an advisory committee chosen by the mayor to deal with issues involving alcoholism and driving while intoxicated (Mayor's Committee). On January 9, 1987, appellant's home was burglarized, and among the items stolen were his wallet and a pistol. Several weeks later, on January 22, 1987, a man identifying himself as James M. Furgason was arrested by a city police officer on charges of paint sniffing and carrying a pistol as a concealed weapon. The individual arrested was carrying a driver's license showing his picture but bearing the name, address, and other personal data of appellant. At the time of the arrest the man told police that he was 32 years of age, that he was unemployed, and that he had no vehicle.

The next morning defendant Clausen, a reporter employed by the Alamogordo Daily News, reviewed the arrest reports prepared by the city police. The newspaper customarily published reports of the names of persons arrested by the local police. On learning that the name James M. Furgason appearing on the arrest report was the same as that of appellant, Clausen discussed the arrest report with Detective Ray Bailey and Captain Truman Nix of the Alamogordo Police Department. Both officers confirmed that the person arrested had been identified as James M. Furgason.

Clausen also received a typed copy of a Crime Stoppers' news release from the city police soliciting information from the public concerning the burglary of appellant's home and describing the burglary as the crime of the week. The Crime Stoppers' news release stated that among the items stolen were appellant's wallet and a .357 magnum revolver.

Clausen prepared a news story for publication concerning the facts of the Furgason arrest, which was published in the January 23, 1987 noon edition of the Alamogordo Daily News. The headline and lead paragraphs of the article reported,

Bar owner accused of sniffing paint

A prominent local bar owner who serves on the Mayor's Committee for Driving While Intoxicated and Alcoholism was arrested Thursday night for abuse of chemical substance and negligent use of a deadly weapon.

James M. Furgason, 41, 1407 Rockwood, who owns the popular bar and package store, Furgi's, 817 Scenic Dr., was arrested at 9:45 p.m. Thursday night after allegedly being observed sniffing paint.

The news story also reported, among other things, that "[a]ccording to the report by Department of Public Safety officer Greg Cavelli, Furgason was sniffing paint in the covered restroom entrance of the 10th Street Conoco Service Station," that a search of Furgason revealed that he was carrying a .357 caliber revolver tucked into his waistband, and that following his arrest "Furgason was booked into the Otero County Jail under a $3,500 bond and is scheduled to be arrainged [sic] before [a magistrate judge] Friday afternoon."

Several hours after the newspaper was published, the city police, while attending the magistrate court arraignment, discovered that the person arrested and identified as James M. Furgason was an imposter, that he had falsely informed Officer Cavelli that he was James M. Furgason, and that the driver's license he had shown police was the driver's license which had been stolen earlier from appellant's home. The individual arrested was subsequently identified as Garland Erven and was charged with having burglarized appellant's residence. Subsequent investigation revealed that Erven had altered appellant's driver's license and placed his own photograph over the picture of appellant on the license.

Thereafter, in its January 25, 1987 edition the newspaper printed a front page story reporting that Erven had impersonated appellant by using a driver's license taken from appellant's wallet, which had been stolen during the burglary of appellant's home on January 9, 1987.

Appellant filed suit against defendants for defamation, alleging that the January 23 newspaper article was libelous and seeking actual and punitive damages.

On February 27, 1987, defendants filed a motion to dismiss the complaint for failure to state a claim or, alternatively, seeking summary judgment. After a hearing, the district court entered an order granting summary judgment. The order recited in part that the newspaper article which gave rise to this lawsuit was privileged under the fair and accurate report privilege, that the privilege was not abused, that appellant was a "limited public figure," that defendants did not act with malice, that defendants did not know the content of the news article was false or did not negligently fail to recognize that the article was false, and that defendants were entitled to summary judgment as a matter of law.

I. FAIR AND ACCURATE REPORT PRIVILEGE

The news article which is the subject of this suit was written by Clausen using information obtained from the police arrest report, conversations with city police officials, information independently obtained by Clausen after inquiries posited to the city clerk, and information contained in the local telephone directory.

The first two paragraphs of the news article identified the person arrested as "James M. Furgason, 41, 1407 Rockwood, who owns the popular bar and package store, Furgi's, 817 Scenic Drive * * * after allegedly being observed sniffing paint." The headline together with the lead paragraph also identified the person arrested as a prominent local bar owner who served on the Mayor's Committee.

Appellant argues that the district court erred in determining his complaint was not actionable based on a finding that the news article was privileged under the fair and accurate report privilege. Stover v. Journal Publishing Co., 105 N.M. 291, 731 P.2d 1335 (Ct.App.1985), cert. denied, 484 U.S. 897, 108 S.Ct. 230, 98 L.Ed.2d 189 (1987), reaffirmed the fair report privilege as a defense in an action for defamation. As observed in Stover,

The essence of the fair report privilege is that no liability will attach for the republication of the defamatory statements so long as the republication is a fair and accurate report of an official or public proceeding. The Restatement (Second) of Torts Sec. 611 (1977) articulates the privilege as follows:

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

Id. at 294, 731 P.2d at 1338.

Determination of whether a privilege applies to material alleged to be defamatory is a question of law to be decided by the court. Coronado Credit Union v. KOAT Television, Inc., 99 N.M. 233, 656 P.2d 896 (Ct.App.1982).

The fair report privilege protects against liability even though the publisher may not believe the material reported. Id. However, the privilege may be abused where the published account is discolored or garbled from that of the proceedings which are reported, or where the publisher draws conclusions or adds comments or insinuations of his own which are defamatory of the character of appellant. See Henderson v. Dreyfus, 26 N.M. 541, 191 P. 442 (1919); Stover v. Journal Pub. Co.; see also Moritz v. Kansas City Star Co., 364 Mo. 32, 258 S.W.2d 583 (1953); Haynik v. Zimlich, 30 Ohio Misc.2d 16, 508 N.E.2d 195 (1986). In order to qualify for the fair report privilege a newspaper is not required to reprint an official report verbatim; it may instead summarize or abridge its contents. Lavin v. New York News, Inc., 757 F.2d 1416 (3d Cir.1985); Appleby v. Dailey Hampshire Gazette, 395 Mass. 32, 478 N.E.2d 721 (1985).

In Bufalino v. Associated Press, 692 F.2d 266, 272 (2d Cir.1982), the court considered the breadth of the rule contained in Restatement (Second) of Torts Section 611 (1977), holding: "[o]nly reports of official statements or records made or released by a public agency are protected by the Sec. 611 privilege. Statements made by lower-level employees that do not reflect official agen cy action cannot support the privilege." (Emphasis in original.)

As observed in Restatement (Second) of Torts, supra, Section 611, comment h:

An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this...