Mitchell v. Globe Intern. Pub., Inc.

• Decision Date: 04 September 1991
• Docket Number: Civ. No. 91-3001.
• Citation: 773 F. Supp. 1235
• Parties: Nellie MITCHELL, Plaintiff, v. GLOBE INTERNATIONAL PUBLISHING, INC. d/b/a "Sun", Defendant.
• Court: U.S. District Court — Western District of Arkansas

773 F. Supp. 1235

Nellie MITCHELL, Plaintiff, v. GLOBE INTERNATIONAL PUBLISHING, INC. d/b/a "Sun", Defendant.

Civ. No. 91-3001.

United States District Court, W.D. Arkansas, Harrison Division.

September 4, 1991.

Phillip H. McMath, McMath Law Firm, Little Rock, Ark., Roy E. Danuser, Mountain Home, Ark., for plaintiff.

Philip S. Anderson, Williams & Anderson, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

The October 2, 1990, edition of the Sun published a photograph of the plaintiff in conjunction with a "story" entitled, "World's oldest newspaper carrier, 101, quits because she's pregnant!" The "story" purports to be about a "papergal Audrey Wiles" in Stirling, Australia, who has been delivering papers for 94 years. Readers are told that the papergal became pregnant by a man she met on her newspaper route.

The plaintiff, Nellie Mitchell, is a 96-year-old resident of Mountain Home, Arkansas. Ms. Mitchell has operated a newsstand since 1963. Prior to that she delivered newspapers on her paper route. The defendant, Globe International Publishing, Inc., publishes the Sun. The defendant also publishes the Examiner. In 1980 the Examiner ran an article entitled "Granny's a paperboy at age 85." The article was about Ms. Mitchell. The picture of Ms. Mitchell appeared with this article as well.

Based on the Sun article, the plaintiff filed this action for defamation on November 30, 1990, in the Circuit Court of Baxter County, Arkansas. The action was removed to this court on January 7, 1991, on the basis of diversity of citizenship.

Globe contends it is entitled to judgment as a matter of law because the article and photograph in question did not convey false and defamatory statements about the plaintiff. It is further contended that summary judgment is appropriate because there is no proof of actual malice. Plaintiff, naturally, strenuously opposes the motion.

Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed.R.Civ.P. 56. The Supreme Court has issued the following guidelines for trial courts to determine whether this standard has been satisfied.

The inquiry performed is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). See also Agristor Leasing v. Farrow, 826 F.2d 732 (8th Cir.1987); Niagara of Wisconsin Paper Corp. v. Paper Industry Union-Management Pension Fund, 800 F.2d 742, 746 (8th Cir.1986).

The Eighth Circuit Court of Appeals has advised trial courts that summary judgments should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir.1979), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979). The Court has recently reviewed the burdens of the respective parties in connection with a summary judgment motion. In Counts v. MK-Ferguson Co., 862 F.2d 1338 (8th Cir.1988), the court stated:

The burden on the party moving for summary judgment is only to demonstrate, i.e., `to point out to the District Court,' that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.

Id. at 1339, quoting, City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir.1988) (citations omitted) (brackets in original).

However, the Court of Appeals for this circuit has also held that the court, in ruling on the motion for summary judgment, must give the non-moving party "the benefit of the reasonable inferences that can be drawn from the underlying facts." Fischer v. NWA, Inc., 883 F.2d 594, 598 (8th Cir.1989) (citing Trnka v. Elanco Products, 709 F.2d 1223 (8th Cir.1983).

The law of defamation has undergone a radical change as a result of the Supreme Court's opinion in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny. Determination of the appropriate standard of fault is, or may be, dependent on the status of the plaintiff, the status of the defendant, and the subject matter of the defamatory material. The court will not attempt to present an overview of the constitutional fault doctrines. See generally Lisa R. Pruitt, The Law of Defamation: An Arkansas Primer, 42 Ark.L.Rev. 915 (1989). Rather, we will begin by determining the appropriate standard to be used when a private plaintiff is involved.

The standard of fault to be applied in cases involving a private plaintiff and a media defendant was left to the states so long as liability without fault was not imposed. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789 (1974). Subsequently, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), the court rejected the media/non-media distinction referred to in Gertz. Instead, the court focused on the content of the defamatory statements indicating there was a reduced constitutional value to speech on matters of purely private concern. Id. at 761, 105 S.Ct. at 2946. The court concluded "that permitting recovery of presumed and punitive damages in defamation cases absent a showing of `actual malice' does not violate the First Amendment when the defamatory statements do not involve matters of public concern." Id. at 763, 105 S.Ct. at 2947.

The Arkansas Supreme Court has stated that in a suit by a private individual against a media defendant the standard of care is that of ordinary negligence, not actual malice as the defendant contends. Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983) (Dodrill II); KARK-TV v. Simon, 280 Ark. 228, 232, 656 S.W.2d 702, 704 (1983); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 632, 590 S.W.2d 840, 844 (1979), cert. denied, 444 U.S. 1076, 100 S.Ct. 1024, 62 L.Ed.2d 759 (1980). The actual malice standard would be applicable to a claim for punitive damages.

In Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983) (Dodrill II), the court stated that no presumed damages were available in cases against media defendants. In light of the holding in Dun & Bradstreet, the court's holding in Dodrill II that damages to reputation may not be presumed is open to revision, at least in cases involving statements made by a private plaintiff that do not involve matters of public concern. See Lisa R. Pruitt, The Law of Defamation: An Arkansas Primer, 42 Ark.L.Rev. 915, 980-982 (1989).

Defendant argues that the Arkansas Supreme Court has refused to follow Dun & Bradstreet in subsequent cases. Defendant cites Hogue v. Ameron Inc., 286 Ark. 481, 695 S.W.2d 373 (1985) and Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990). Hogue, however, contains no discussion of the public concern test and does not even cite Dun & Bradstreet. The Hogue court merely noted it was an open question whether the concept of libel per se still existed in cases involving non-media defendants. Defendant infers from this that the court intended to adhere to Dodrill II with regard to media defendants. However, it is not apparent from the reported decision that the court was even aware of the Dun & Bradstreet decision.

The Ransopher case is more closely on point. In Ransopher the court noted that "absent the enhanced First Amendment considerations attending cases of `public concern' or media defendants, both libel per se and slander per se permit substantial or compensatory damages without proof of actual loss." Ransopher, 302 Ark. at 481-82, 791 S.W.2d 686. The court went on to note that "we may entertain an argument in the future that the awarding of compensatory damages without proof of loss should not occur...." Id. at 483, 791 S.W.2d 686. From this it does appear that the Arkansas Supreme Court would not allow an award of presumed damages in a case involving a media defendant. Thus, plaintiff must establish actual damage to her reputation. The showing of actual damage to reputation required by other Arkansas cases has been slight. Partin v. Meyer, 277 Ark. 54, 639 S.W.2d 342 (1982). See also Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985) (slight evidence of damage sufficient to get to jury).

A cause of action for defamation generally has six elements: (1) the defamatory nature of the statement of fact; (2) the statement's identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant's fault in the publication; (5) the statement's falsity; and (6) the damages suffered by the plaintiff. Lisa R. Pruitt, The Law of Defamation: An Arkansas Primer, 42 Ark.L.Rev. 915, 920 (1989). See also H. Brill, Arkansas Law of Damages § 35-8 (2d Ed.1990). The defendant argues the article in question was satire, humor, or fiction and was not meant to be a truthful statement of facts. As such, defendant urges that a different standard is appropriate for works of those genres. Specifically, defendant states a different standard has been developed for determining malice in these situations, namely: whether the author intended, or recklessly...