Mullen v. Meredith Corp.

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: ORTEGA, P.J.
• Citation: Mullen v. Meredith Corp., 271 Or App 698, 353 P.3d 598 (Or. App. 2015)
• Decision Date: 17 June 2015
• Docket Number: 10C19936,A149990.
• Parties: Patrick J. MULLEN and Sarah J. Mullen, Plaintiffs–Respondents, v. MEREDITH CORPORATION, a foreign business corporation, dba KPTV; and Mark Hanrahan, Defendants–Appellants.

271 Or.App. 698

353 P.3d 598

Patrick J. MULLEN and Sarah J. Mullen, Plaintiffs–Respondents

v.MEREDITH CORPORATION, a foreign business corporation, dba KPTV; and Mark Hanrahan, Defendants–Appellants.

10C19936

A149990.

Court of Appeals of Oregon.

Argued and Submitted Jan. 30, 2014.

Filed June 17, 2015.

Duane A. Bosworth, Portland, argued the cause for appellants. With him on the briefs were Derek D. Green and Davis Wright Tremaine LLP.

Rick J. Glantz, Salem, argued the cause for respondents. With him on the brief were M. David Daniel and Vick & Glantz, LLP.

Before ORTEGA, Presiding Judge, and DUNCAN, Judge, and DeVORE, Judge.

Opinion

ORTEGA, P.J.

This case concerns a television news story about gunshots fired in the West Salem neighborhood where Mullen (plaintiff) and his wife (together, plaintiffs) live. Plaintiffs sued defendants Meredith Corporation, doing business as KPTV, and Hanrahan, a KPTV reporter, because plaintiff was shown for 3.4 seconds in a broadcast of the story, contrary to an agreement that plaintiff, a corrections officer, allegedly had made with defendants due to safety concerns. Plaintiffs asserted claims for breach of contract, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.

Defendants responded with a special motion to strike the three tort claims under ORS 31.150, Oregon's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. The trial court denied defendants' motion and entered a limited judgment based on its determination that defendants had failed to make the necessary prima facie showing that plaintiffs' claims “arise[ ] out of a statement, document or conduct described in [ORS 31.150(2) ].” ORS 31.150(3). We disagree with the trial court's reasoning and conclude that defendants established that plaintiffs' tort claims come within the reach of the statute. Accordingly, we proceed to the second inquiry, argued to but not reached by the trial court, and conclude that plaintiffs have failed to show a probability that they will prevail on their tort claims. We therefore reverse the trial court's limited judgment and remand with instructions that the trial court grant defendants' special motion to strike.

In order to provide context for our review, we begin by describing the anti-SLAPP statute. The purpose of ORS 31.150 is to “permit a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage.” Staten v. Steel, 222 Or.App. 17, 27, 191 P.3d 778 (2008), rev. den., 345 Or. 618, 201 P.3d 909 (2009). The statute “provide[s] for the dismissal of claims against persons participating in public issues, when those claims would be privileged under case law, before the defendant is subject to substantial expenses in defending against them.” Id. at 29, 191 P.3d 778 (addressing legislative intent).

ORS 31.150 provides, in relevant part:

“(1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim. The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F. Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.

“(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:

“ * * * * *

“(d) Any other conduct in furtherance of the exercise of * * * the constitutional right of free speech in connection with a public issue or an issue of public interest.¹

“(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.

“(4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

In Young v. Davis, 259 Or.App. 497, 501, 314 P.3d 350 (2013), we explained the two-step process set out in ORS 31.150 :

“Thus, the resolution of a special motion to strike under Oregon's anti-SLAPP statute requires that the court engage in a two-step burden-shifting process. First, the court must determine whether the defendant has met its initial burden to show that the claim against which the motion is made ‘arises out of’ one or more protected activities described in subsection (2). Second, if the defendant meets its burden, ‘the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.’ If the plaintiff succeeds in meeting that burden, the special motion to strike must be denied. ORS 31.150(3).”

With that context in mind, we take the following facts from the pleadings and from the supporting and opposing affidavits submitted to the trial court, ORS 31.150(4), and state them “in the light most favorable to plaintiffs.” Neumann v. Liles, 261 Or.App. 567, 570 n. 2, 323 P.3d 521, rev. allowed, 356 Or. 516, 340 P.3d 47 (2014).

Plaintiff is a sergeant with the Department of Corrections and works at the Oregon State Penitentiary. Inmates, some of whom have since been released, have threatened to kill him. As a result, he keeps his home address private, varies his route home from work, and lists the prison address on his hunting and fishing licenses and with the DMV.

On January 10, 2010, at about 10:00 p.m., gunshots were fired in plaintiffs' neighborhood, some of which struck their home. The next day, three television news crews arrived to report on what had happened. Plaintiff told Hanrahan, a reporter for KPTV, that he was a sergeant for the department and that he was very concerned for his personal safety and that of his family. He told Hanrahan that, if he was shown on the news in front of his home, current and former inmates would discover where he and his family lived, and he asked Hanrahan not to film or identify him in any of the news reports. After Hanrahan agreed not to use his image, plaintiff allowed defendants to film on his property. When plaintiff noticed defendants filming him standing in his yard talking to a neighbor, he approached Hanrahan to ask why he was being filmed. Hanrahan assured plaintiff that defendants would not broadcast any film that showed him.

That night, defendants twice broadcast the story about the incident, reporting that the gunshots penetrated homes in the neighborhood and discussing the ongoing sheriffs investigation. Those broadcasts did not show plaintiff. According to a declaration from defendants' content director, however, early the following morning the story was recut for a different reporter. In that recut footage, shown in the morning's news broadcast, plaintiff appeared for 3.4 seconds.

When plaintiff returned to work, two of his supervisors told him that they had seen the morning newscast and expressed concern for the safety of plaintiff and his family, and about 25 inmates told plaintiff that they had seen him on television. One inmate told plaintiff that the news report had enough information to allow him to find out where plaintiff lived. Afraid for himself and his family, plaintiff immediately moved his family out of their house and plaintiffs placed the house for sale. They could not afford both rent and mortgage payments and believed they would have to sell in a short sale. The sudden move and the threat of danger were disruptive and stressful for plaintiffs.

Plaintiffs sued defendants, alleging four claims: (1) breach of contract, based on the breach of defendants' promise not to show plaintiff in their news report in exchange for being allowed access onto his property; (2) negligence, based on defendants' failure to prevent the broadcast of plaintiff's likeness, which caused reasonably foreseeable harm to plaintiffs; (3) negligent infliction of emotional distress, based on a special relationship between the parties that imposed on defendants a heightened duty toward plaintiffs; and (4) intentional infliction of emotional distress. Defendants moved to strike the second, third, and fourth claims under ORS 31.150, contending that plaintiffs' claims arose out of defendants' “conduct in furtherance of the exercise of their constitutional right to free speech in connection with a public issue or an issue of public interest.” ORS 31.150(2)(d).

In denying defendants' motion to strike, the trial court explained that, although plaintiffs had conceded that news reports of the shooting constitute an issue of public interest, “the analysis cannot end there”:

“The more precise issue is whether [d]efendants were entitled to show [plaintiffs] ‘likeness', identity and location as part of the news broadcast. In other words, does the filming of [plaintiff] as part of the news broadcast constitute an issue of public interest?”

In concluding that the filming of plaintiff was not “protected expression under ORS 31.150,” the court discussed a number of defamation cases addressing the question of what constitutes a public figure, and noted that defendants “could have easily reported the news of the shooting without filming” plaintiff. The court ultimately...