Lund v. Chicago and Northwestern Transp. Co., C4-90-1945

CourtCourt of Appeals of Minnesota
Writing for the CourtEDWARD D. MULALLY; CRIPPEN
Citation467 N.W.2d 366
PartiesRichard John LUND, Appellant, v. CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY, et al., Respondents.
Docket NumberNo. C4-90-1945,C4-90-1945
Decision Date26 March 1991

Syllabus by the Court

Statements made in employer posting were protected expressions of opinion and, thus, nonactionable.

Debra E. Schmidt, Grannis, Grannis, Hauge, Eide, Anderson & Keller, P.A., Eagan, for appellant.

David A. Donna, Ann K. Grossman, Lindquist & Vennum, Minneapolis, for respondents.

Considered and decided by CRIPPEN, P.J., and PETERSON and MULALLY, * JJ.



Richard Lund sued his employer for defamation and infliction of emotional distress. Concluding that the allegedly defamatory statements were constitutionally protected expressions of opinion and that Lund had not established the elements for a claim of emotional distress, the trial court entered summary judgment in favor of the employer. Lund appeals. We affirm.


On August 29, 1988, various employees of the Chicago and Northwestern Transportation Company (C & NW) participated in a "brainstorming session" to discuss general problems and concerns. Such meetings were commonly held and were part of the company's effort to promote open communication. Richard Lund, an employee of C & NW and the plaintiff in this action, was not present at the meeting.

A C & NW manager, Ray Peterson, compiled his notes of the meeting into a typed, four-page memorandum. Most of the 85, numbered entries concerned employees' complaints with management's practices and responses to problems. However, line 66 of the memorandum read as follows:


The memorandum was posted on the company bulletin board, and additional copies were sent to other company offices. Upon Lund's request, C & NW removed the memorandum. Although unauthorized, copies of the memorandum were reposted, apparently by Lund's coworkers. The company removed those copies as well.

After the initial posting, employees verbally harassed Lund. There were also two instances when some unidentified person placed a foreign substance (analyzed as a pepper derivative) in Lund's coffee. Lund claims to have experienced various emotional and physical problems arising from these incidents. His absences, which Lund contends were due to sickness, almost doubled in 1989 over 1988 or 1987.

Lund sued C & NW, claiming defamation and infliction of emotional distress. On C & NW's motion for summary judgment, the trial court concluded that the challenged portion of the memorandum was protected either under the first amendment, as opinion, or by a qualified privilege. Concluding also that the facts did not support Lund's claims for emotional distress, the court granted C & NW's motion. Lund appeals, arguing that the memorandum is not entitled to constitutional protection and that material issues of fact preclude summary judgment.


1. Did the trial court err by awarding C & NW summary judgment on Lund's defamation claim?

2. Did the trial court err by awarding C & NW summary judgment on Lund's claims based on infliction of emotional distress?


To be defamatory, a statement must be communicated to someone other than the plaintiff, must be false, and must tend to harm the plaintiff's reputation in the community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). Since the United States Supreme Court decided Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), numerous courts, including the Minnesota Supreme Court, have held that expressions of opinion, even if defamatory, are constitutionally protected. See Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986); Diesen v. Hessburg, 455 N.W.2d 446, 450-51 (Minn.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991). The federal circuit courts developed a four-factor test to distinguish opinion from fact, which considered 1) the statement's precision and specificity; 2) the statement's verifiability; 3) the social and literary context in which the statement was made; and 4) the statement's public context. See Janklow, 788 F.2d at 1302-03.

In Milkovich v. Lorain Journal Co., --- U.S. ----, ----, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990), the Supreme Court recently reviewed the issue of opinion protection. The Court rejected the lower courts' "artificial dichotomy between 'opinion' and fact," holding that not all statements of opinion are constitutionally protected. Recognizing that expressions of opinion may imply assertions of objective facts, the Court concluded that only opinions relating to matters of public concern that are incapable of being proven true or false, and statements that cannot reasonably be interpreted as stating actual facts, are constitutionally protected. Id. at ----, 110 S.Ct. at 2705-07.

In Hunt v. University of Minnesota, 465 N.W.2d 88 (Minn.App.1991), this court construed Milkovich as narrowing, but not abolishing, the constitutional protection for opinions. The Hunt court also emphasized that cases applying the federal courts' four-factor test, although not binding after Milkovich, are still helpful for determining whether a statement implies actual facts that can be proven false.

The opinion-fact determination is a question of law. See Gernander v. Winona State Univ., 428 N.W.2d 473, 475 (Minn.App.1988); see also Restatement (Second) of Torts Sec. 566 comment c (1977) (the court determines whether an expression of opinion may reasonably be understood to imply the assertion of undisclosed facts). Applying the four-factor test of Janklow, the trial court determined that the words contained in line 66 were clearly statements of opinion.

We agree. In Lee v. Metropolitan Airport Comm'n, 428 N.W.2d 815 (Minn.App.1988), coworkers had referred to the plaintiff as a "fluffy," a "bitch," and flirtatious. Id. at 821. This court held that such comments regarding Lee's social life and personal characteristics were, as a matter of law, too imprecise in nature to be actionable defamatory statements. Id.

Whether office gossip or railroad shop vernacular, like the statements in Lee, the terms in line 66 lack precision and specificity. Furthermore, in the context of the setting in which they were spoken, this lack of precision and specificity blunts any connotation of conduct sufficiently reprehensible to constitute defamation, whether measured by constitutional or common law standards. As the trial court recognized, two of the terms, "move-ups" and "shit heads," are plural and do not necessarily apply to Lund exclusively. Moreover, the underlying facts to be inferred from these terms are unclear. Although uncomplimentary, "shit heads" does not suggest verifiably false facts about Lund.

The terms "favoritism" and "brown nose" require a similar conclusion. They are not themselves factual assertions, and it is unclear what, if any, underlying facts they imply. Even if the terms are viewed as hybrid statements of opinion and fact, we conclude that the ambiguous implications of the words prevent them from being proven true or false. See Hunt, 465 N.W.2d at 94-95. We hold that the statements were constitutionally protected expressions of opinion and, therefore, not actionable. 1

C & NW also claims that the statements in the memorandum are conditionally privileged. See, e.g., Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379-80 (Minn.1990). Because we decide that C & NW's statements are constitutionally protected, we need not address whether they are also entitled to a qualified privilege.


Lund claims that C & NW intentionally and negligently inflicted emotional distress by allowing repeated postings of the memorandum, verbal harassment by coworkers, and repeated instances of adulteration of his coffee. With the essential facts undisputed, the trial court ruled that C & NW was entitled to summary judgment on these claims as a matter of law.

To recover for negligent infliction of emotional distress, Lund must show that C & NW placed him within a zone of danger of physical impact, prompting reasonable safety concerns and causing severe emotional distress and resultant physical injury. See Stadler v. Cross, 295 N.W.2d 552, 553-54 (Minn.1980); Lee, 428 N.W.2d 815, 823. Although an exception to this rule allows recovery for mental anguish or suffering caused by a direct invasion of the plaintiff's rights, such as defamation, see Lee, 428 N.W.2d at 823-24, because we affirm the summary judgment on Lund's defamation claim, he must satisfy the "zone of danger" test to recover damages for emotional distress.

Lund asserts that C & NW failed to prevent the second instance of adulteration which caused him mental anguish. Given the minimal danger actually posed, however, the trial court correctly concluded that Lund could not have reasonably feared for his safety. We affirm the grant of summary judgment on this claim.

To establish a claim for intentional infliction of emotional distress, Lund must show that (1) the conduct was extreme and outrageous; (2) the conduct was intentional or reckless; (3) the conduct caused emotional distress; and (4) the distress was severe. Hubbard v. United Press Int'l, 330 N.W.2d 428, 438-39 (Minn.1983). The supreme court in Hubbard emphasized that the conduct must be " 'so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community,' " and that a "similarly heavy burden" falls on the plaintiff's allegations of mental distress. Id. at 439 (quoting Haagenson v. National Farmers Union Property & Casualty Co., 277 N.W.2d 648, 652-53 n. 3 (Minn.1979)).

Lund's claim does not reach the requisite level of severity. Line 66, although vulgar, is not especially shocking or egregious. On these facts, summary judgment was appropriate.


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