Hyde v. City of Columbia

Decision Date15 June 1982
Docket NumberNo. WD,WD
Citation637 S.W.2d 251
PartiesSandra K. HYDE, Appellant, v. CITY OF COLUMBIA, Missouri; Nate Brown, Tribune Publishing Co., d/b/a Columbia Daily Tribune: Walter Potter, Missourian Publishing Assn., Inc. d/b/a Columbia Missourian, Respondents. 32406.
CourtMissouri Court of Appeals

Fred Dannov, Columbia, for appellant.

Terence C. Porter, Columbia, for Nate Brown & Tribune Pub. Co.

Hamp Ford, Knight, Ford, Wright, Atwell & Parshall, Columbia, for City of Columbia, Mo.

Before SHANGLER, P. J., and PRITCHARD and DIXON, JJ.

SHANGLER, Presiding Judge.

The plaintiff Hyde sued the City of Columbia for the negligent disclosure of her name and address by the city police to reporter Brown of the Columbia Daily Tribune and to reporter Potter of the Columbia Missourian and for the negligent publication of that information subsequently by the newspapers. The petition alleges that on August 20, 1980, after midnight, the plaintiff was abducted and kidnapped by an unknown male assailant but escaped from his car; that she made a full report of that incident to the City of Columbia Police Department; that on that date, the police, without knowledge or authority of the plaintiff, released her name and address to the reporters for publication when the police knew the assailant was still at large; that on that very day the Columbia Daily Tribune published that information and on the next day, August 21, 1980, the Columbia Missourian published that information with the knowledge that the assailant was not in custody. The petition then alleges that the release and publication of her name and address identified the plaintiff to the unknown assailant who thereafter terrorized her on seven different occasions. The petition joined the reporters Brown and Potter, the newspapers Columbia Daily Tribune and Columbia Missourian and the City of Columbia as defendants. The prayer was for actual damages.

The several defendants moved to dismiss the petition on the general ground that the allegations failed to state a claim for relief. The memorandum of reporter Brown and newspaper Columbia Daily Tribune explicated the grounds more specifically: "The plaintiff's petition fails to state a claim against these defendants either as an action for libel, or for the invasion of privacy." The memorandum of the defendant City of Columbia explicated the petition amounted to neither a claim of outrageous conduct nor of an invasion of privacy and that the information disclosed to the press was, in any event, a public record under §§ 610.010 and 610.025, so the disclosure was not actionable. The motions were sustained and the court dismissed the petition with prejudice. The plaintiff appeals the judgment, but only as to the defendants City of Columbia, reporter Brown and newspaper Columbia Daily Tribune. 1

A petition suffices as against a motion to dismiss if the averments, when accorded every reasonable intendment, invoke a substantive remedy. Williamson's Estate v. Williamson, 380 S.W.2d 333, 338 (8-10) (Mo.1964). The pleader need only allege a state of ultimate facts which show the petitioner is entitled to relief and demands such a judgment. Rule 55.05; Sutton v. Sutton, 567 S.W.2d 147(1-3) (Mo.App.1978). The facts asserted in the affidavit of a party (as by response to an interrogatory) 2 are competent to interstice and support a pleading against a motion to dismiss. Rule 55.28, Litzinger v. Pulitzer Publishing Company, 356 S.W.2d 81, 87(2, 3) (Mo.1962). The several defendants confront the petition, alternatively, as an attempt to plead the outrageous conduct, invasion of privacy and negligence torts-and, in turn, discount efficacy on each theory. The tenor of the petition, however, as well as the insistent disclaimer by counsel to the court on the motion argument of any other premise of recovery, make clear that the pleader intends only a cause of action in negligence. Actionable negligence encompasses essential proofs: a duty by the defendant to protect the plaintiff from harm, neglect of that duty, and injury to the plaintiff from that neglect. Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 498(7, 8) (Mo.App.1973). To plead the ultimate fact of actionable negligence (and hence a substantive remedy well-stated), the petitioner must describe the duty owned by the defendant, the breach the petitioner charges, and the injury which results. Einhaus v. O. Ames Co., 547 S.W.2d 821(4, 5) (Mo.App.1977).

The pleadings enlarged by the interrogatory evidence, understood in legal effect, posit that the plaintiff reported the kidnapping and assault to the police as an official account of a crime and not for publication, and that the municipality owed the victim a duty not to disclose her identity and address to the reporter for publication without prior consent-and so protect her from the foreseeable risk of intentional harm by the assailant, when the police knew the assailant was still at large and the practice of disclosure was otherwise forbidden in the circumstances by internal policy, 3 but that the municipality breached the duty and the plaintiff suffered emotional harm from the intentional threats of imminent death and injury proximately caused by the negligent conduct of the City of Columbia. The pleadings understood in legal effect posit also that the defendants reporter and newspaper owed a duty to the victim not to publish her identity and address and so protect her from the foreseeable risk of intentional harm by the assailant, when they knew the assailant was still at large and the practice of publication was otherwise forbidden by internal policy, 4 but that reporter Brown and newspaper Columbia Daily Tribune breached the duty and the plaintiff suffered emotional harm from the intentional threats of imminent death and injury proximately caused by the negligent conduct of the reporter and newspaper.

The several defendants contend, nevertheless, that these averments amount to no duty the law fixes upon them, and so none they are bound to observe. The newspaper defendants contend moreover that such a duty were onerous to the free speech and free press the First Amendment protects, and so not a valid limitation to that exercise. The several defendants argue also that, in any event, a crime against persons report is a public record 5 under the Sunshine Law (§§ 610.010 to 610.120), thus, to give publicity to information already public can engender no liability.

In negligence jurisprudence, whether a duty exists presents a question of law. Restatement (Second) of Torts § 4 (1965). When the existence of a duty to use due care rests on a relationship between persons, the law has simply placed the actor under obligation for the benefit of another person-the plaintiff-in the given circumstances. Or, more simply, the law has determined that "the interest of the plaintiff which has suffered invasion (is) entitled to legal protection at the hands of the defendant." Prosser, The Law of Torts § 37, p. 206 and § 53 (4th ed. 1971). Thus, essential to liability for negligence is a relationship the law recognizes as the basis of a duty of care between the inflictor of injury and the person injured. Zuber v. Clarkson Construction Co., 363 Mo. 352, 251 S.W.2d 52, 55 (6, 7) (Mo.1952). The judicial determination of the existence of a duty rests on sound public policy as derived from a calculus of factors: among them, the social consensus that the interest is worthy of protection; the foreseeability of harm and the degree of certainty that the protected person suffered injury; moral blame society attaches to the conduct; the prevention of future harm; considerations of cost and ability to spread the risk of loss; the economic burden upon the actor and the community-and others. 1 Dooley, Modern Tort Law, Liability & Litigation § 3.03 (Supp.1981); Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728, 732(7-9) (bank 1980); Donohue v. Copiague U. Free School District, 64 A.D.2d 29, 407 N.Y.S.2d 874, 877(3, 4) (1978). To these determinants we add that, when the actor is a public agency (or quasi-public institution, such as the press), the role the law assigns to that function. Potter Stewart, "Or of the Press," 26 Hastings L. J. 631, 633 (1975).

Our law imposes the duty on an actor in some circumstances to foresee that the misconduct of a third person will result in injury to another (the plaintiff) and imposes liability for failure to protect against that risk of harm. Zuber v. Clarkson Construction Co., 363 Mo. 352, 251 S.W.2d 52, 55(2-7) (1952); Restatement (Second) of Torts § 302B (1965). This principle of liability has scope even where the misconduct of the third person is intentional or criminal. Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976) expounds the standard (a paraphrase of Restatement (Second) of Torts § 449 (1965) ), l.c. 288(9):

(I)f the foreseeable likelihood that a third person may act in a particular manner is one of the hazards which makes a person negligent, such an act of a third party, whether innocent, negligent, intentionally tortious or criminal, does not prevent that person from being liable for the harm caused thereby.

See also Butler v. Circulus, Inc., 557 S.W.2d 469, 475 (Mo.App.1977). Thus, conduct may be negligent solely because the actor should have recognized that it would expose the person of another to an unreasonable risk of criminal aggression. Restatement (Second) of Torts § 448, comment c (1965). In certain situations, the law expects a reasonable actor to anticipate and protect the plaintiff against the intentional or criminal misconduct of a third person whom the actor has given occasion for association with the plaintiff, when the actor knows or should know that the third person is "peculiarly likely to commit intentional...

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