Northland Wheels Roller Skating Center, Inc. v. Detroit Free Press, Inc.

• Decision Date: 08 September 1995
• Docket Number: Docket No. 154162
• Citation: 539 N.W.2d 774,213 Mich.App. 317
• Parties: NORTHLAND WHEELS ROLLER SKATING CENTER, INC., Plaintiff-Appellant/Cross-Appellee, v. DETROIT FREE PRESS, INC., Defendant-Appellee/Cross-Appellant, and Gannett Co., Inc., and the Detroit News, Defendant/Appellee, and Gillett Communications of Detroit, d/b/a WJBK, WDIV, WKBD, Inc., City of Detroit and City of Detroit Police Department, Defendants, and Kirk Television, d/b/a WXYZ, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 774

539 N.W.2d 774

213 Mich.App. 317

NORTHLAND WHEELS ROLLER SKATING CENTER, INC. Plaintiff-Appellant/Cross-Appellee, v. DETROIT FREE PRESS, INC., Defendant-Appellee/Cross-Appellant and Gannett Co., Inc., and the Detroit News, Defendant/Appellee and Gillett Communications of Detroit, d/b/a WJBK, WDIV, WKBD Inc., City of Detroit and City of Detroit Police Department, Defendants, and Kirk Television, d/b/a WXYZ, Defendant.

Docket No. 154162.

Court of Appeals of Michigan.

Submitted March 14, 1995, at Detroit.

Decided Sept. 8, 1995, at 9:20 a.m.

Released for Publication Nov. 17, 1995.

Neal Bush, John F. Royal, and Wendell Davis, Detroit, for plaintiff.

Honigman Miller Schwartz & Cohn by Herschel P. Fink, Detroit, for Detroit Free Press, Inc.

Butzel Long by James E. Stewart and Leonard M. Niehoff, Detroit, for the Detroit News, Inc.

Before MARILYN J. KELLY, P.J., and TAYLOR and MARKEY, JJ.

MARKEY, Judge.

Plaintiff appeals as of right from the trial court's grant pursuant to MCR 2.116(C)(8) of summary disposition for defendants Knight-Ridder, doing business as The Detroit Free Press and Gannett Co., Inc., and The Detroit News, doing business as The Detroit News, on the basis of the statutory fair reporting privilege afforded to the press in § 2911(3) of the Revised Judicature Act, as amended by 1988 P.A. 396, M.C.L. § 600.2911(3); M.S.A. § 27A.2911(3). Defendant Detroit Free Press also cross appeals the trial court's denial of sanctions. We affirm.

On October 27, 1989, defendant Free Press published an article about a fatal shooting incident that occurred two days' earlier on Eight Mile Road in Detroit, a short distance from plaintiff's skating rink located at 22311 West Eight Mile Road. According to the article, entitled "Teen shot outside roller rink was caught in others' dispute," one teenager died and another was wounded in the leg as a result of the drive-by shooting that occurred "outside a northwest Detroit roller skating rink," but was subsequently described as "outside the nearby Woodland Arms Apartments." The article stated that police attributed the shooting to an argument that occurred inside plaintiff's roller rink that evening, although the victim did not enter the rink. The article also noted the following:

Neighbors near the skating rink said Wednesday nights often mean trouble. "It's become a common thing," said neighbor Gail Reed, 25. Rink owner Herman Davis, 51, said he provides a safe environment inside with metal detectors and security guards. But he said he can't control what goes on when 500 to 700 people leave.

That same day, defendant News also published an article regarding the shooting. The article highlighted three separate drive-by shootings that occurred in Detroit on October 25. Defendant News reported that as the two teenagers were leaving plaintiff's skating rink that night, one teenager was "slain in front of the Northland Skating Rink, 22045 W. Eight Mile" and the other was wounded as a result of gang violence, although the victims were merely bystanders. The story also stated that as a result of an argument that began inside plaintiff's rink, the gunman fired ten to fifteen shots into a crowd of teenagers as they left the rink. Several other defendant television stations also carried the story. ¹

In response, plaintiff filed its libel complaint alleging, inter alia, that defendant Free Press and defendant News published stories that were not fair and accurate reports of the police department's news release, which it alleges merely stated that "[t]he compl[ainants] were walking from a nearby skating rink when the perp[etrators] rode by and fired shots, striking the compl[ainants] as described." ² As a result of defendants' allegedly false and defamatory statements, which cast plaintiff in a false light among its business patrons and the community by portraying plaintiff's roller rink as an unsafe establishment, plaintiff alleged that it suffered substantial loss of business, profit, and good will.

Both defendants filed motions for summary disposition ³ pursuant to M.C.R. § 2.116(C)(8) and M.C.R. § 2.116(C)(10), asserting that (1) their respective stories were based upon official police accounts of the shooting and, therefore, were privileged, (2) the stories were not defamatory, and (3) plaintiff failed to allege any specific false statements of fact concerning the shooting. The trial court granted defendants' motions for summary disposition. With respect to defendant News, the trial court found that the article regarding the three slayings "appeared to be supported by the police statements. And the statute [i.e., § 2911(3) ] would apply." Moreover, even if the shooting at issue did not occur in front of the rink, the court did not believe that the statement was defamatory because the preliminary complaint record (PCR) reflected that the conflict leading up to the shooting originated at the rink. Because the PCR is a public document and it, along with the police records, supported the statements contained in defendant News' article, the trial court found as a matter of law that the article was not defamatory.

With respect to defendant Free Press, the trial court again determined that although the shooting did not occur in front of plaintiff's business, the police records supported the fact that the shooting victims were congregating in plaintiff's parking lot as they left the skating rink. Also, the court noted that the complaining witness' statement focused primarily on plaintiff's rink. On the basis of the contents of the police records and the fair reporting privilege contained in § 600.2911(3), the trial court granted summary disposition for both defendant News and defendant Free Press, holding that plaintiff had failed to state a claim upon which relief could be granted.

Plaintiff appeals, asserting that the trial court erred in granting defendants' motions for summary disposition, because the news articles were defamatory, discovery was not permitted, genuine issues of material fact existed regarding falsity, and the court failed to address plaintiff's claim of false-light invasion of privacy. Defendant Free Press cross appeals from the trial court's failure to award to it sanctions based upon plaintiff's frivolous pleadings. We affirm.

When addressing defamation claims implicating First Amendment freedoms, appellate courts must make an independent examination of the record to ensure against forbidden intrusions into the field of free expression and to examine the statements and circumstances under which they were made to determine whether the statements are subject to First Amendment protection. Garvelink v. Detroit News, 206 Mich.App. 604, 608-609, 522 N.W.2d 883 (1994). Moreover, the trial court's grant of summary disposition is reviewed de novo because this Court must review the record to determine whether the moving party is entitled to judgment as a matter of law. Id. at 607, 522 N.W.2d 883. M.C.R. § 2.116(C)(8) permits a court to grant summary disposition for a defendant where the plaintiff has failed to state a claim upon which relief can be granted, i.e., where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. A motion under M.C.R. § 2.116(C)(8) therefore tests whether the plaintiff's pleadings allege a prima facie case. Id. at 607-608, 522 N.W.2d 883.

The elements of a libel cause of action are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. Rouch v. Enquirer & News of Battle Creek (After Remand), 440 Mich. 238, 251, 487 N.W.2d 205 (1992) (Rouch II ); Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc., 197 Mich.App. 48, 51, 495 N.W.2d 392 (1992). In cases involving a private plaintiff, a defendant that is a member of the news media, and a publication regarding an area of public concern, the constitution requires that the plaintiff bear the burden of proving falsity. Rouch II, supra at 252, 487 N.W.2d 205; Royal Palace, supra.

This case presents an issue of first impression because it requires this Court to determine the scope of the fair reporting privilege contained in M.C.L. § 600.2911(3); M.S.A. § 27A.2911(3), following its amendment in 1988 P.A. 396, ⁴ which now states in pertinent part:

Damages shall not be awarded in a libel action for the publication or broadcast of a fair and true report of matters of public record, a public and official proceeding, or of a governmental notice, announcement, written or recorded report or report generally available to the public, or act or action of a public body, or for a heading of the report which is a fair and true of the report. This privilege shall not apply to a libel which is contained in a matter added by a person concerned in the publication or contained in the report of anything said or done at the time and place of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, which was not a part of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body. [Emphasis added to show amended language.]

The first question we must address on appeal is whether the information defendants published in their articles regarding the shooting and its connection to plaintiff's skating rink was cloaked with the fair reporting privilege afforded by § 2911(3) as amended. The existence of a privilege that immunizes a defendant from liability for libel is a question of law that this Court determines de novo. Koniak v....