McKinney v. Okoye

• Decision Date: 16 December 2011
• Docket Number: No. S–10–722.,S–10–722.
• Parties: Carla McKINNEY, appellant, v. Matthias I. OKOYE and Nebraska Forensic Medical Services, P.C., appellees.
• Court: Nebraska Supreme Court

282 Neb. 880

806 N.W.2d 571

Carla McKINNEY, appellant,

v.Matthias I. OKOYE and Nebraska Forensic Medical Services, P.C., appellees.

No. S–10–722.

Supreme Court of Nebraska.

Dec. 16, 2011.

Syllabus by the Court

1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a district court's grant of a motion to dismiss de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Libel and Slander. Whether a communication is privileged is a question of law.

3. Appeal and Error. An appellate court reviews questions of law independently of the trial court's decision.

4. Actions: Proof. A plaintiff in a malicious prosecution case must prove that proceedings were commenced or instituted against him or her, that the defendant caused the proceedings to be commenced or instituted, that the proceedings terminated in the plaintiff's favor, that the defendant lacked probable cause to institute or procure the proceedings, that the defendant acted with malice, and that the plaintiff suffered damages.

5. Libel and Slander. An absolute privilege bars an action for libel or slander.

6. Libel and Slander:

Liability:

Immunity.

Judges, attorneys, parties to proceedings, witnesses, and jurors may assert an absolute privilege as an immunity from liability for defamation for publications made during judicial proceedings if the defamatory matter has some relation to the proceedings.

7. Libel and Slander. Absolute privilege applies to statements within a judicial proceeding and statements preliminary or ancillary to judicial proceedings.

8. Criminal Law: Torts. At common law, a private citizen who initiated or procured a criminal prosecution can be sued for the tort of malicious prosecution.

9. Libel and Slander: Case Overruled. Absolute privilege does not bar an action for malicious prosecution. To the extent that Central Ice Machine Co. v. Cole, 2 Neb.App. 282, 509 N.W.2d 229 (1993), holds otherwise, it is overruled.

George H. Moyer, of Moyer & Moyer, Madison, for appellant.

James A. Snowden and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., Lincoln, for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER–LERMAN, JJ.

CONNOLLY, J.

This appeal requires us to decide whether a person who gives information to a prosecutor that results in a criminal prosecution against another has an absolute privilege from liability for malicious prosecution.

Carla McKinney sued Matthias I. Okoye, a pathologist, and Nebraska Forensic Medical Services, P.C. (collectively the appellees), for malicious prosecution. She alleged that Okoye had reported in an autopsy report that an infant under McKinney's care died of injuries from child abuse and that the State charged McKinney with child abuse but later dropped the charges. The district court granted the appellees' motion to dismiss McKinney's complaint. It concluded that an absolute privilege barred McKinney's claim. We reach the opposite conclusion; absolute privilege does not bar a claim for malicious prosecution. We reverse, and remand for further proceedings.

BACKGROUND

McKinney alleges the following facts, which, given the procedural posture of the case, we accept as true.¹

McKinney operated a daycare center in Lincoln, Nebraska. On October 17, 2007, McKinney attempted to wake an infant under her care. The infant was unresponsive, so McKinney called the 911 emergency dispatch service. Paramedics were unable to revive the infant, who was later pronounced dead.

Okoye, who was working for Nebraska Forensic Medical Services, conducted an autopsy on the infant. He reported to prosecutors that the child had died from blunt force trauma to the head, asphyxia, and hemorrhaging into the brain from child abuse. McKinney alleges Okoye acted maliciously and without probable cause in reporting his findings. McKinney was arrested and charged with felony child abuse.

Using the opinions of two other forensic pathologists, McKinney eventually persuaded authorities to drop the charges against her. Nevertheless, she claims that her name remains on a child abuse registry, which prevents her from operating a daycare. And she claims that the incident has greatly diminished her earning capacity.

Under Neb. Ct. R. Pldg. § 6–1112(b)(6), the appellees moved to dismiss McKinney's complaint. The district court granted the appellees' motion. The court concluded that McKinney could not base an action for malicious prosecution on Okoye's statements, because an absolute testimonial privilege shielded them. The court went further, concluding that the privilege shielded Okoye's statements from liability for any tort, and so the court concluded that no amendment could cure McKinney's complaint.

ASSIGNMENTS OF ERROR

McKinney assigns that the district court erred in (1) applying the testimonial privilege to Okoye's report and (2) refusing to allow McKinney to amend her complaint.

STANDARD OF REVIEW

An appellate court reviews a district court's grant of a motion to dismiss de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.²

Whether a communication is privileged is a question of law. ³ An appellate court reviews questions of law independently of the trial court's decision.⁴

ANALYSIS

Absolute Privilege Does Not Bar McKinney's Malicious Prosecution Claim

McKinney's complaint is somewhat unclear as to whether she is alleging a claim for defamation or malicious prosecution. The district court considered both. But before this court, McKinney claims that she is asserting a claim only for malicious prosecution. So we will address only that claim.

The rules governing malicious prosecution are grounded on competing public policies: A person who knows that a crime has been committed should not be deterred from reporting it to public officials out of fear of civil liability.⁵ Conversely, a person wrongly charged with criminal conduct has an important interest in his freedom and his reputation.⁶ A plaintiff in a malicious prosecution case must prove that

• proceedings were commenced or instituted against him or her;

• the defendant caused the proceedings to be commenced or instituted;

• the proceedings terminated in the plaintiff's favor;

• the defendant lacked probable cause to institute or procure the proceedings;

• the defendant acted with malice; and

• the plaintiff suffered damages.⁷

Here, the appellees do not argue that McKinney has failed to allege any of these elements. Instead, the appellees argue that an absolute privilege bars McKinney's claim.

An absolute privilege bars an action for libel or slander. ⁸ Although referred to as a “privilege” because of historical reasons, in reality, it is an immunity because it is based on the speaker's position or status.⁹ Absolute privilege recognizes the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions might have an adverse effect upon their own personal interests.¹⁰ In defamation actions, we have, at least in part, adopted the rule of absolute privilege from the Restatement (Second) of Torts.¹¹ Under the Restatement, judges,¹² attorneys,¹³ parties to proceedings, ¹⁴ witnesses,¹⁵ and jurors ¹⁶ may assert an absolute privilege as an immunity from liability for defamation for publications made during judicial proceedings if the defamatory matter has some relation to the proceedings.¹⁷ We have stated that this privilege applies to statements within a judicial proceeding and statements preliminary or ancillary to judicial proceedings.¹⁸

The absolute privilege rule appears in the Restatement as a defense to defamation, injurious falsehood, and invasion of privacy.¹⁹ At common law, absolute privilege was “an immunity only against slander and libel actions.” ²⁰ Before our decision in Kocontes v. McQuaid,²¹ this court had seldom, if ever, extended absolute privilege beyond actions for defamation. But in Kocontes, we stated that the privilege would bar a claim for interference with a business expectancy.

While we have historically been reluctant to apply absolute privilege to bar torts other than defamation, the Nebraska Court of Appeals has applied it to bar other tort actions—including malicious prosecution.²²

In Central Ice Machine Co. v. Cole,²³ the Court of Appeals held that the absolute privilege barred claims for malicious prosecution. In Cole, Central Ice Machine Company (Central Ice) sued Ronald A. Cole for malicious prosecution for statements he had made while consulting one of Central Ice's customers. Cole had told the customer that products the customer had purchased from Central Ice were defective. Later, Cole testified as an expert witness in a lawsuit between Central Ice and the customer.

Central Ice later sued Cole for malicious prosecution, claiming that Cole's statements were the reason that its customer had sued the company. The district court granted summary judgment to Cole, finding that because he was an expert witness in the later legal proceedings, he was immune from liability. The Court of Appeals affirmed. The court noted that a witness generally enjoyed an absolute immunity from civil liability for his or her testimony. But the Court of Appeals refused to find any distinction between statements Cole made as a consultant and those he made as a witness. And the court refused to recognize an exception to witness immunity for malicious prosecution claims.

In Cole, the underlying action that the defendant was alleged to have instigated was civil, while here, the underlying action is criminal. But this presents merely a difference in nomenclature, not substantive elements. The elements for malicious prosecution—which deals with the wrongful institution of criminal proceedings—and wrongful use of civil proceedings are essentially identical.²⁴ Further, while the...