Petersen v. Dacy, No. 19388

CourtSupreme Court of South Dakota
Writing for the CourtGILBERTSON; SABERS
Citation550 N.W.2d 91,1996 SD 72,132 Lab.Cas.P 58
Docket NumberNo. 19388
Decision Date24 April 1996
Parties132 Lab.Cas. P 58,155, 11 IER Cases 1532, 1996 SD 72 Sharon PETERSEN, Plaintiff and Appellant, v. Mike DACY, Diane Dacy, Scott Anshutz, and Julie Anshutz, dba Mr. G's, D & A Properties, Daschutz, A and D Properties, and Dacy/Anshutz, and Cheryl Cerny, as Manager of Mr. G's and Individually, All Jointly and Severally, Defendants and Appellees. . Considered on Briefs

Page 91

550 N.W.2d 91
132 Lab.Cas. P 58,155, 11 IER Cases 1532,
1996 SD 72
Sharon PETERSEN, Plaintiff and Appellant,
v.
Mike DACY, Diane Dacy, Scott Anshutz, and Julie Anshutz, dba
Mr. G's, D & A Properties, Daschutz, A and D Properties, and
Dacy/Anshutz, and Cheryl Cerny, as Manager of Mr. G's and
Individually, All Jointly and Severally, Defendants and Appellees.
No. 19388.
Supreme Court of South Dakota.
Considered on Briefs April 24, 1996.
Decided June 19, 1996.

Gwendolyn LaPrath, Gregory, for plaintiff and appellant.

Robert B. Anderson of May, Adam, Gerdes, & Thompson, Pierre, for defendants and appellees.

GILBERTSON, Justice.

¶1 Sharon Petersen appeals the partial summary judgment granted to Defendants in a defamation and slander action brought by Petersen. We affirm.

Page 92

FACTS AND PROCEDURE

¶2 Sharon Petersen worked as a clerk at Mr. G's, a convenience store/gas station, from October 1991 to May 17, 1994. Petersen's duties at Mr. G's required her to sell scratch lottery tickets to the store's customers. On May 17, 1994, Petersen was terminated from her job at Mr. G's by Cheryl Cerny, the store manager. Cerny discharged Petersen in Cerny's office, alone and with the door closed, after Petersen failed to satisfactorily explain why lottery tickets were missing during Petersen's work shifts at Mr. G's. It was later determined Cerny believed Petersen had failed to properly account for over $300 and possibly as much as $1500 in scratch lottery tickets between May 12 and May 15, 1994. Petersen has consistently claimed, and the Department of Labor's Unemployment Division has concluded, that Petersen did not steal scratch lottery tickets from Mr. G's. 1

¶3 Cerny discussed Petersen's termination with three of Mr. G's store clerks. She also discussed it with Petersen's husband, a part-time employee of Mr. G's, when the subject was initiated by Petersen's husband. No third parties were present during these discussions.

¶4 Petersen brought an action against the owners of Mr. G's and Cerny claiming defamation and wrongful termination. Defendants moved for summary judgment which Petersen resisted by motion and supporting documents. The circuit court granted Defendants' motion for partial summary judgment on counts one through eight, inclusive, all defamation claims. The court's order was declared to be a final judgment pursuant to SDCL 15-6-54(b). The circuit court did not dismiss count nine, the wrongful termination claim. The circuit court based its judgment on its determination that all of the alleged defamatory communications were subject to the conditional privilege established in SDCL 20-11-5(3), that no genuine issue of material fact existed, and that Defendants were entitled to judgment as a matter of law. Petersen appeals.

STANDARD OF REVIEW

¶5 Our standard of review on a motion for summary judgment is well established. In reviewing a grant or denial of summary judgment,

'we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.'

Trippet Special Trust v. Blevins, 1996 SD 29 p 6, 545 N.W.2d 216, 221 (quoting BankWest, N.A. v. Groseclose, 535 N.W.2d 860, 863 (S.D.1995)).

ANALYSIS AND DECISION

¶6 Defamation is either libel or slander. SDCL 20-11-2. Both are statutorily defined as unprivileged communications. SDCL 20-11-3, 20-11-4. If a communication is privileged, it cannot constitute defamation and is not actionable. Peterson v. City of Mitchell, 499 N.W.2d 911, 915 (S.D.1993). SDCL 20-11-5 provides the statutory definition of privileged communication. SDCL 20-11-5(3) provides:

A privileged communication is one made: [i]n a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information[.]

Page 93

The statute further provides that, under the subsection quoted above, "malice is not inferred from the communication or publication."

¶7 In reviewing appeals brought under SDCL 20-11-5(3), we have stated our first line of inquiry is to determine whether the communication involved was between interested individuals. Peterson, 499 N.W.2d at 915 (quoting Uken v. Sloat, 296 N.W.2d 540, 542-43 (S.D.1980)). " 'An infallible test in determining whether a communication ... is or is not privileged is to ask whether, if true, it is a matter of proper public interest in relation to that with which it is sought to associate it.' " Id. (quoting McLean v. Merriman, 42 S.D. 394, 399, 175 N.W. 878, 880 (1920)). We have also cited the Restatement (Second) of Torts with approval in determining whether the communication was made to an interested person:

An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.

Sparagon v. Native American Publishers, Inc., 1996 SD 3, p 27, 542 N.W.2d 125, 132 (quoting Tibke v. McDougall, 479 N.W.2d 898, 905 (S.D.1992) (quoting Restatement (Second) of Torts § 596)).

¶8 We next must determine whether the communication was made with malice, which would negate the privilege. Peterson, 499 N.W.2d at 916 (citing Tibke, 479 N.W.2d 898 and Mackintosh v. Carter, 451 N.W.2d 285 (S.D.1990)). Because malice may not be inferred under the statute, there must be a specific showing of malice which requires proof of reckless disregard for the truth or actual malice. " 'The real test of whether a defendant's conduct is reckless so as to constitute actual malice is whether he in fact entertained serious doubts as to the truth of his publications.' " Tibke, 479 N.W.2d at 906 (quoting Uken, 296 N.W.2d at...

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22 practice notes
  • Paint Brush Corp. v. Neu, No. 20701
    • United States
    • Supreme Court of South Dakota
    • September 1, 1999
    ...SDCL 20-11-3. [¶ 52.] "If a communication is privileged, it cannot constitute defamation and is not actionable." Petersen v. Dacy, 550 N.W.2d 91, 92 (S.D.1996) (citing Peterson v. City of Mitchell, 499 N.W.2d 911, 915 (S.D.1993)). In a cause of action for defamation, privilege may be raised......
  • Satellite Cable Services, Inc. v. Northern Electric Co-op., Inc., No. 20046
    • United States
    • Supreme Court of South Dakota
    • July 1, 1998
    ...v. Arrow Bar, 452 N.W.2d 138, 140 (S.D.1990). If any basis exists to support summary judgment, affirmance is proper. Petersen v. Dacy, 1996 SD 72, p 5, 550 N.W.2d 91, 92 (citing Trippet Special Trust v. Blevins, 1996 SD 29, p 6, 545 N.W.2d 216, 221); Waddell v. Dewey Cty. Bank, 471 N.W.2d 5......
  • Goepfert v. Filler, No. 19777
    • United States
    • Supreme Court of South Dakota
    • May 14, 1997
    ...434 N.W.2d 758, 760 (S.D.1989). If any legal basis exists to support the circuit court's ruling, affirmance is proper. Petersen v. Dacy, 1996 SD 72, p 5, 550 N.W.2d 91, 92 (citations Analysis and Decision ¶5 The circuit court ruled from the bench: [I]n looking at everything in the light mos......
  • Schipke v. Grad, No. 19632
    • United States
    • Supreme Court of South Dakota
    • December 4, 1996
    ...If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper." Petersen v. Dacy, 1996 SD 72, p 5, 550 N.W.2d 91, 92 (1996) (quoting Trippet Special Trust v. Blevins, 1996 SD 29, p 6, 545 N.W.2d 216, 221 (1996)); Waddell v. Dewey County B......
  • Request a trial to view additional results
22 cases
  • Paint Brush Corp. v. Neu, No. 20701
    • United States
    • Supreme Court of South Dakota
    • September 1, 1999
    ...SDCL 20-11-3. [¶ 52.] "If a communication is privileged, it cannot constitute defamation and is not actionable." Petersen v. Dacy, 550 N.W.2d 91, 92 (S.D.1996) (citing Peterson v. City of Mitchell, 499 N.W.2d 911, 915 (S.D.1993)). In a cause of action for defamation, privilege may be raised......
  • Satellite Cable Services, Inc. v. Northern Electric Co-op., Inc., No. 20046
    • United States
    • Supreme Court of South Dakota
    • July 1, 1998
    ...v. Arrow Bar, 452 N.W.2d 138, 140 (S.D.1990). If any basis exists to support summary judgment, affirmance is proper. Petersen v. Dacy, 1996 SD 72, p 5, 550 N.W.2d 91, 92 (citing Trippet Special Trust v. Blevins, 1996 SD 29, p 6, 545 N.W.2d 216, 221); Waddell v. Dewey Cty. Bank, 471 N.W.2d 5......
  • Goepfert v. Filler, No. 19777
    • United States
    • Supreme Court of South Dakota
    • May 14, 1997
    ...434 N.W.2d 758, 760 (S.D.1989). If any legal basis exists to support the circuit court's ruling, affirmance is proper. Petersen v. Dacy, 1996 SD 72, p 5, 550 N.W.2d 91, 92 (citations Analysis and Decision ¶5 The circuit court ruled from the bench: [I]n looking at everything in the light mos......
  • Schipke v. Grad, No. 19632
    • United States
    • Supreme Court of South Dakota
    • December 4, 1996
    ...If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper." Petersen v. Dacy, 1996 SD 72, p 5, 550 N.W.2d 91, 92 (1996) (quoting Trippet Special Trust v. Blevins, 1996 SD 29, p 6, 545 N.W.2d 216, 221 (1996)); Waddell v. Dewey County B......
  • Request a trial to view additional results

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