Kenney v. Wal-Mart Stores, Inc., SC 84770.

• Citation: 100 S.W.3d 809
• Decision Date: 01 April 2003
• Docket Number: No. SC 84770.,SC 84770.
• Parties: Carolyn KENNEY, Respondent, v. WAL-MART STORES, INC., Appellant.
• Court: Missouri Supreme Court

Page 809

100 S.W.3d 809

Carolyn KENNEY, Respondent, v. WAL-MART STORES, INC., Appellant.

No. SC 84770.

Supreme Court of Missouri, En Banc.

April 1, 2003.

Michael S. Cessna, Bentonville, for Appellant.

Michael W. Blanton, Lee's Summit, Thomas C. Locke, Independence, for Respondent.

Joseph E. Martineau, Benjamin A. Lipman, St. Louis, for amicus curiae.

WILLIAM RAY PRICE, JR., Judge.

I.

Wal-Mart Stores appeals a verdict entered against it awarding Carolyn Kenney $33,750 in actual damages and $392,083 in punitive damages. The Court finds that the trial court erred in submitting a materially altered verdict director. The judgment is reversed and the case is remanded.

II.

A. Background

Carolyn Kenney is the grandmother of Lauren Kenney, a minor child, and the mother of Lauren's father, Christopher. Chris Kenney and Lauren's mother, Angela Miles (now Angela Mueller), were never married and had not sought a formal declaration of visitation rights. Chris had regular visitation with Lauren "at least every other weekend" and sometimes during the week. When keeping Lauren, Chris would stay at his mother's home and Ms. Kenney would frequently pick up Lauren from Angela's home.

In August 1996, Chris learned that Angela might leave Missouri and move to Georgia with her sister. Chris and Ms. Kenney took Lauren to a friend's house at the Lake of the Ozarks over Labor Day weekend in an effort to keep Lauren in Missouri until a custody hearing the following Tuesday. Christopher Kenney called Angela from the lake on Saturday and told her of the custody hearing and that he was keeping Lauren for the weekend. He did not tell Angela where he and Lauren were.

Angela reported Lauren as a missing child to the Kansas City Missouri Police Department. On Sunday, she and her family placed up to 100 missing child posters around the Kansas City area. These posters contained a picture of Ms. Kenney and Lauren and stated:

Last seen 1:30 p.m. on 8/30/96 leaving her home with paternal grandmother, Carolyn Kenney, in a 1996 or 1997 white Honda Accord, no visible license plate, now with father Christopher Kenney, and grandmother at unknown location.

Angela and her family also contacted KSHB-TV 41, which broadcast a report identifying Lauren as a missing child and in the custody of Christopher and Carolyn Kenney.

At trial, Ms. Kenney admitted that the textual statements and photographs contained on the poster were true as of Saturday and Sunday of Labor Day weekend, 1996. She did dispute that Lauren was "missing" because Angela knew that Lauren was with Chris Kenney, even though Chris refused to tell Angela his location. In any event, Ms. Kenney claims that the poster became false, and thus defamatory, after she returned home and was no longer with Chris and Lauren Kenney or on Tuesday, September 3, 1996, when Lauren was returned to Angela Miles.

B. Failure to Remove the Poster

One of the missing person posters made its way into the Missing Children's Network display case in the Lee's Summit Wal-Mart. The Missing Children's Network is a partnership program between Wal-Mart and the National Center for Missing and Exploited Children (NCMEC). As part of the agreement, the NCMEC packages approved posters and ships them to Wal-Mart stores each month.

To protect against inaccurate information, Wal-Mart's policy is to display only those posters provided by the NCMEC and to keep the display case locked. Should an unauthorized poster be placed in the display, it is Wal-Mart's policy that the poster be taken down immediately. Wal-Mart headquarters mandated that its associates are expected to maintain the display cases and keep the displays updated.

The unauthorized poster created by Angela Miles and her family was not immediately removed from the Wal-Mart display. There was evidence that as many as three different persons contacted Wal-Mart managers on at least four occasions regarding the poster, beginning on the Sunday of Labor Day weekend. Even if the poster was initially true, there was also evidence that the poster was not removed for days after Lauren was returned to Angela and ceased to be missing.

C. Damages

Carolyn Kenney had prior emotional problems as the result of being terminated from her job at Hallmark earlier in 1996. She sought treatment from a psychiatrist for these emotional problems prior to and after this incident involving the missing child poster. Ms. Kenney testified that the emotional problems resulting from the loss of her job were not the same as the problems resulting from the poster, because there was no publication that she lost her job at Hallmark.

Ms. Kenney did not see the KSHB broadcast when it occurred on September 2, 1996. However, people called her home that evening to inquire about the report and she later saw a videotape of the segment. She testified that she felt "embarrassed, shocked, hurt, [and] concerned" as a result of the broadcast. She also felt that the broadcast hurt her "very deeply" and injured her reputation.

While Ms. Kenney testified that she was not seeking damages from Wal-Mart for either the KSHB broadcast¹ or the Hallmark termination, she was unable to distinguish the harm from the KSHB broadcast and the poster. Ms. Kenney felt that the injury to her reputation from the poster was "equally painful and devastating" to that from the television broadcast. She believed "they [were] the same kind of injury." Her husband, Thomas Kenney, also testified that both the KSHB 41 broadcast and the poster "hurt" and "bothered" her. Further, Ms. Kenney did not attempt to differentiate harm that might have resulted from the additional 99 posters that Angela Miles and her family posted at other locations.

The missing child poster was displayed in Wal-Mart for up to ten days where somewhere between 4000 and 6000 people walked past it each day. As a result of the poster, Ms. Kenney testified that she felt "embarrassed, shocked, mad." Like the television report, Ms. Kenney did not actually see the poster while it was on display. She testified that several people told her that they saw the poster, though she did not remember precisely how many people, nor could she identify anyone. Ms. Kenney did not get medical treatment for the embarrassment, hurt, and shock caused by the poster. She testified that she had already sought treatment before and she did not want to let the incident cause her problems and hurt her family.

Although Ms. Kenney claimed damage to her reputation, she was not aware of any family members who actually saw the poster at Wal-Mart and could not identify anyone who treated her in a lesser fashion as a result of seeing the poster. But, she did not believe that someone would "walk up and just tell [her] that they're going to treat [her] any less." She could not name anyone who respected her less or thought her reputation was not as good because of the poster. The only person Ms. Kenney could name, Patty Wyke, testified that the poster did not affect her relationship with Ms. Kenney. Finally, there was evidence that Ms. Kenney visited a psychologist again in 1998. She complained of the damage to her reputation resulting from the Hallmark incident, but did not mention the poster displayed at Wal-Mart.

The jury returned a verdict finding that Wal-Mart published the poster by failing to remove it from its premises. The jury awarded Ms. Kenney $33,750 in compensatory damages and $392,083 in punitive damages.

III.

Wal-Mart asserts nine points on appeal. It is necessary for this Court to address only two: The submitted verdict director and the sufficiency of proof of actual damage.

A trial court's instructional error is reversible where "the error substantially prejudiced a party." Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 329 (Mo.App. 2000). Any deviation from an approved MM instruction is presumed prejudicial error unless the contrary is shown. State v. Westfall, 75 S.W.3d 278, 284 n. 27 (Mo. banc 2002).

The model instruction for MAI 23.06(1) requires that plaintiff prove: "Fifth, the plaintiff's reputation was thereby damaged." (emphasis added). However, the instruction, as submitted to the jury, read: "Fifth, the poster directly caused or directly contributed to cause damage to Plaintiff." Arguing this instruction to the jury, Ms. Kenney's trial counsel said: "You saw my client on the witness stand in describing how it felt to know that four to six thousand people a day were looking at that poster, and you could see how she was on that witness stand. Does anyone doubt that that at least contributed to cause damage to her?"

Missouri, as well as several other states — including Arkansas, Kansas, and New York — have adopted rules requiring a plaintiff to prove reputational harm before allowing recovery for other related injuries, such as emotional distress, in defamation cases. See MAI 23.06(1) (requiring the jury to find damage to plaintiffs reputation as an element of the verdict director); Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000) (citing Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993)) (listing "6) damage[to] the plaintiffs reputation" as the final element for a claim of defamation); Little Rock Newspapers v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (Ark.1983); Gobin v. Globe Publg Co., 232 Kan. 1, 649 P.2d 1239 (Kan.1982); France v. St. Clare's Hosp. & Health Ctr., 82 A.D.2d 1, 441 N.Y.S.2d 79 (1981); Salomone v. Mac-Millan Publ'g Co., 77 A.D.2d 501, 429 N.Y.S.2d 441 (N.Y.App.Div.1980).

Tort law has historically required injury to reputation as a prerequisite to other emotional damage in defamation actions. "Defamation is not concerned with the plaintiffs own humiliation, wrath or sorrow, except as an element of `parasitic' damages attached to an independent cause of action." WILLIAM L. PROSSER, THE LAW OF TORTS, § 111, at 737 (4th ed.1971). "Harm to reputation or good name is the essence of libel and slander, so the plaintiff...