Ladner v. New World Commc'ns of Atlanta, Inc.

• Decision Date: 27 October 2017
• Docket Number: A17A0883
• Parties: LADNER v. NEW WORLD COMMUNICATIONS OF ATLANTA, INC.
• Court: Georgia Court of Appeals

343 Ga.App. 449

806 S.E.2d 905

LADNER

v.NEW WORLD COMMUNICATIONS OF ATLANTA, INC.

A17A0883

Court of Appeals of Georgia.

October 27, 2017

Mayer & Harper, Randolph A. Mayer, Allen I. P. Lightcap, for appellant.

Duane Morris LLP, Cynthia L. Counts, Christopher D. Kanne, for appellee.

McMillian, Judge.

Shane Ladner appeals from the trial court's grant of summary judgment to New World Communications of Atlanta, Inc. d/b/a Fox 5 Atlanta ("Fox 5") on his defamation claim arising out of a series of televised news reports by Fox 5 reporter Randy Travis ("Travis").

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

Elder v. Hayes, 337 Ga. App. 826, 827, 788 S.E.2d 915 (2016). So viewed, the evidence in this case shows that in 2012, Ladner, then a police officer for the City of Holly Springs, Georgia, completed an application to participate in "Hunt for Heroes," an annual event in Midland, Texas to honor wounded

veterans hos ted by Show of Support, a non-profit organization. As part of the application, Ladner wrote a biographical summary (the "bio"), which he knew was going to be published. The bio stated that Ladner joined the Army in 1989 and in December of that year was assigned to Panama, where he received a shrapnel wound from an expl oded grenade during Operation Just Cause. Ladner did not claim in his bio that he had received the Purple Heart, although he stated that he had received the Medal of Valor.

Based on his application, Ladner was selected to participate in the Hunt for Heroes event, which included a hunting trip, parade, and banquet. Ladner's bio, along with those of the other participants, was featured in the San Angelo Standard-Times in Texas. The Holly Springs Police Department ("HSPD") issued a news release and Twitter posts about Ladner's participation in the event, and a local Georgia paper reported that he had been selected for a charity-sponsored "all-expense paid whitetail deer hunt," describing Ladner as "medically retired from the Army after being wounded

twice—a selfless act that earned him awards for valor."

On November 15, 2012, during the Hunt for Heroes parade, the float carrying Ladner and his wife Meg Ladner ("Meg") was involved in a collision with a train. Tragically, four veterans who were riding on the float were killed and a number of participants suffered serious injury, including Meg, who eventually had her left leg amputated. The incident received national media coverage, and the circumstances surrounding the Ladners' injuries, particularly Meg's, were widely reported. The circumstances of the accident and the Ladners' involvement were published by the media in Georgia and Wisconsin, where Meg's parents lived. A few days after the accident, Ladner issued a public statement, which was reported by a number of outlets including the New York Times, the Los Angeles Times, and a local Texas news station, expressing appreciation for the support the Ladners had received from the Midland, Texas community and thanking the volunteer group that had sponsored the event.

After the Ladners returned home to Georgia, local businesses donated meals and gift cards and offered labor and supplies to modify their home to accommodate Meg's injuries. Numerous fundraisers were held on their behalf, some of which Ladner attended, and these events were publicized in local news and on social media. Most of these articles mentioned that the Ladners were injured at a wounded

veterans' event and/or discussed Ladner's military service. Several articles and a number of fundraising flyers described Ladner as the recipient of one or more Purple Hearts. Ladner gave at least six interviews or statements to local media about the accident and his wife's condition, including a press conference held by the HSPD, and the statements were reported in articles listing ongoing fundraising efforts. Ladner's quoted comments addressed his interactions with Meg during the accident, her medical progress, their need for housing and equipment to accommodate her condition, and his appreciation for the community's support. However, the record contains no recorded statements by Ladner regarding his military service or commendations in these interviews.

During Meg's recovery from the accident, tensions grew between Ladner and some of Meg's relatives. The strain led these relatives to file a Freedom of Information Act (FOIA) request and hire a private investigator. One of Meg's aunts subsequently wrote a letter to the Georgia Attorney General asserting that Ladner had misrepresented his military service and had not been awarded a Purple Heart as he had claimed. An investigator from one Atlanta television station later contacted Meg's cousin regarding Ladner and his use of the state-issued Purple Heart license plate. Meg's cousin, in turn, contacted Travis at Fox 5, a different station, about the situation.

Fox 5 subsequently broadcast a series of five investigative reports by Travis about Ladner during its evening newscasts on April 29, June 12, June 14, June 19, and November 22, 2013. Fox 5 also published five articles involving Ladner on its website on the same dates as the broadcasts. The broadcasts and articles asserted that Ladner had lied about his military record and implied that he may have done so to earn a free hunting trip to Texas, to obtain a free Purple Heart license plate, and to avoid paying ad valorem taxes on his vehicle. The broadcasts also suggested that if Ladner had not misrepresented his record, Meg and he would not have been on the parade float, and they would not have suffered their injuries.

During the broadcasts, Travis presented military and school records that he asserted showed that Ladner's claim that he was injured during the 1989 Panamanian invasion was false, noting that the records indicated that he had not joined the army until 1990 and that he was, in fact, still attending high school during the Panamanian operation. Travis also reported that Ladner's 1994 and 2002 DD-214 discharge forms from his military file, which Ladner had signed, made no mention of a Purple Heart.

Prior to the first broadcast, Ladner issued a statement through his attorney addressing his military record and attaching a DD-214 form from 2004 that reflected that Ladner had received a Purple Heart and other commendations (the "2004 DD-214"). Travis reported on this statement and the 2004 DD-214 in the first Fox 5 broadcast on April 29, and the statement was printed in full in the accompanying website article. The statement explained that Ladner was ordered by his superiors to lie about the circumstances surrounding his injuries because he actually was wounded

while on patrol during "sensitive" drug interdiction tactics in Central America. However, Ladner declined to speak with Travis directly when the reporter confronted him on camera.

Although Travis reported on Ladner's response, he also countered it by noting that the copy of Ladner's military record that he inspected did not contain a copy of the 2004 DD-214 and contained no orders that usually accompany a Purple Heart. Travis's reporting of his findings included strong declarations such as "Shane Ladner had no business being on the float with other war heroes"; "the Army says [Ladner's statement about receiving a Purple Heart is] just not true"; "the Army told us Ladner has no Purple Heart"; Ladner was relying "on a document the Army says does not exist"; and "the Army says Ladner never received a Purple Heart."¹

Approximately six weeks after the first Fox 5 broadcast on April 29, 2013, Cherokee County issued criminal charges against Ladner. The indictment, as amended, asserted seven counts of making a false statement in connection with his application for the Purple Heart recipient license plate and in interviews with police. Those charges remained pending at the time the trial court issued its ruling on the motion for summary judgment.

Ladner filed this defamation action on April 4, 2014, and following discovery, Fox 5 moved for summary judgment.² The motion asserted that Ladner qualified as a limited purpose public figure requiring that he prove actual malice to support his defamation claim, he could not prove such malice, the news reports were privileged reports about government proceedings and records, the challenged statements were substantially true and cannot be proven false, and the reports contained constitutionally protected opinion. The trial court granted the motion for summary judgment, finding that Ladner was an involuntary/limited purpose public figure and that he could not prove the requisite actual malice. This appeal followed.

1. Ladner first asserts that the trial court erred in finding that he was a limited purpose or involuntary public figure and that, instead, he should be considered a private person.

This is a critically important issue, because in order for a public figure to recover in a suit for defamation, there must be proof by clear and convincing evidence of actual malice on the part of the defendant. Plaintiffs who are private persons must only prove that the defendant acted with ordinary negligence.

(Citation and punctuation omitted.) Riddle v. Golden Isles Broadcasting, 275 Ga. App. 701, 703 (1), 621 S.E.2d 822 (2005).

The issue of "[w]hether a person is a public figure is a question of law that requires the court to review the nature and extent of the individual's participation in the specific controversy that gave rise to the alleged defamation." (Citation and punctuation omitted.)

Cottrell v. Smith, 299 Ga. 517, 525 (II)(A), 788 S.E.2d 772 (2016). See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (V), 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

A three-part analysis is used to determine whether an individual is a

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