Pfannenstiel v. Osborne Publishing Co.

• Decision Date: 19 September 1996
• Docket Number: Civil Action No. 94-1186-FGT.
• Citation: 939 F. Supp. 1497
• Parties: Jim PFANNENSTIEL, Plaintiff, v. OSBORNE PUBLISHING CO., Sandra Trail, Floyd Bose, and City of Osborne, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

939 F. Supp. 1497

Jim PFANNENSTIEL, Plaintiff, v. OSBORNE PUBLISHING CO., Sandra Trail, Floyd Bose, and City of Osborne, Kansas, Defendants.

Civil Action No. 94-1186-FGT.

United States District Court, D. Kansas.

September 19, 1996.

COPYRIGHT MATERIAL OMITTED

Caleb Boone, Hays, KS, for Jim Pfannenstiel.

Philip W. Hardman, Dietz & Hardman, Osborne, KS, for Osborne Publishing Co., Sandra Trail.

Allen G. Glendenning, Watkins, Calcara, Rondeau, Friedeman, Bleeker, Glendenning & McVay, Chtd., Great Bend, KS, for Floyd Bose, City of Osborne, Kansas.

MEMORANDUM AND ORDER

THEIS, District Judge.

This is a defamation action brought under Kansas law. Jurisdiction is based on diversity of citizenship. The defendants are Osborne Publishing Company, Inc., which publishes the weekly Osborne County Farmer, Sandra Trail, a reporter and editor of the newspaper, the City of Osborne, Kansas, and Floyd Bose, Osborne's Chief of Police. The matter is before the court on motions for summary judgment brought by the defendants.

1. Uncontroverted Facts¹

On or about September 5, 1992, a Dodge Daytona owned by the plaintiff, Jim Pfannenstiel, was stolen from the premises of Bohm's Garage, plaintiff's place of employment. Officer Kim Rothenberger of the Osborne City Police Department investigated the theft. A Michael J. Cantrell² was found with the car and other stolen items in Arkansas and was arrested on previous charges arising there.

Osborne Police Chief Floyd Bose gave information concerning the theft to Sandra Trail of the Osborne County Farmer. Bose testified in deposition that he is certain he correctly told Trail that the car was stolen from Pfannenstiel. Bose testified that he did not reveal the identity of the suspect. Trail testified in deposition that she did not remember the words Chief Bose used to tell her about the automobile theft. She testified that by the end of the conversation, she was certain Pfannenstiel had stolen the car from his employer's premises. She recalled that Jim Pfannenstiel was the only name given to her and she remembered asking him about whether he was from Arkansas because Pfannenstiel is a common name in the Hays, Kansas, area.

After talking to Chief Bose, Trail wrote the following, which was printed in the September 10, 1992, issue of the Osborne County Farmer:

According to Osborne Police Chief Floyd Bose, a 1984 Dodge Daytona was apparently taken from Bohm's garage Saturday night by an employee, Jim Pfannenstiel. Also taken were a Ruger pistol, tools and $200.

The car, along with the pistol and tools, were found Monday in Fulton County, Ark., and Pfannenstiel was arrested by authorities there on previous charges. Local authorities may extradite him after he faces charges in Arkansas.

The local investigation, Bose said, was conducted by Officer Kim Rothenberger.

On the day of the publication, Trail learned of the error and a correction was placed on the Farmer's Telenews telephone line.

The front page of the next issue of the Farmer, issued on September 17, 1992, included a correction which stated, in part:

A story in last week's paper incorrectly reported the theft of a stolen car from Bohm's garage in the Industrial Park.

Instead of being stolen by Jim Pfannenstiel as stated, the car, a Dodge Daytona, was owned by Pfannenstiel. The car was located in Salem, Ark., in the possession of Michael Joe Cantrell who was taken into custody.

The Osborne County Farmer staff apologizes for the mistake and the problems it caused Pfannenstiel and anybody else involved.

The issue also contained a piece, voluntarily written by Trail, entitled "Anatomy of a Mistake." In that document Trail apologized to Pfannenstiel. Trail wrote that she had misunderstood the information presented to her by Bose, for which she took complete responsibility. Trail wrote: "Jim Pfannenstiel was put through needless pain and anxiety. I cannot forgive myself for having caused that, even if it was unintentional." She did note, however, that the mistake never would have occurred had the police department allowed her to read the police report. Apparently, the Osborne Police Department consistently denies media requests for copies of its reports.

Pfannenstiel contends he has suffered damage to his reputation and mental anguish as a result of the erroneous article. There is no evidence, however, that plaintiff has undergone any treatment for medical or mental problems related to this incident. Likewise, there is no evidence that plaintiff's employment was adversely affected. Plaintiff retained his friends and social acquaintances. He frequented the same public establishments that he had before.

Some time after the incident at issue in this case, plaintiff moved to Burlington, Colorado, and started a business in Colby, Kansas, with Gerald "Buddy" Potts.³ Neither plaintiff nor Potts could testify to any business or customers they have lost as a result of the article.

The plaintiff listed a number of witnesses who, he said, could testify about the damage to his reputation. With certain exceptions detailed below, each of these witnesses testified that they did not believe the article when they read it, and they thought no less of plaintiff as a result of reading the article. Several testified further that they do not know of anyone who believed the article. Danny Williams testified that he did not even know whom the article was discussing, but his opinion of plaintiff was not lowered as a result of the article. Linda Streit testified that she was confused by the article, but was told within hours of reading it that it was in error. Her opinion of plaintiff did not change as a result of the article, and she does not believe his reputation in the community has been damaged.

Plaintiff's business partner testified that he believes some people think less of the plaintiff after the article was published. He was unable, however, to identify any such people. He claims to have overheard portions of other people's conversations over coffee and donuts. Potts could only name two people he heard discuss the plaintiff in connection with the article. They were Duane Spears and Bob Schellinger. However, each testified in deposition that he did not believe the article when he read it. Schellinger, in addition to some other witnesses, testified about teasing plaintiff about the article, but plaintiff was upset and did not respond with good humor.

Plaintiff testified in deposition that he had never spoken with anyone who had believed the September 10 article and had encountered no one who thought less of him because of the article. Plaintiff testified that several people mentioned the article to him in jest. Plaintiff has lost no income in the past and expects to lose no income in the future as a result of the article.

In response to the motion for summary judgment, plaintiff submitted the affidavits of five Osborne citizens. Each affidavit stated that the affiant had read the September 10 article and believed upon reading it that Pfannenstiel had stolen a car. Each affiant stated further that he/she believed substantial damage was done to plaintiff's reputation as a result of the article. However, at deposition, three of the affiants testified that they did not know plaintiff before the article was published and either did not know his reputation in the community or knew him to be of good reputation both before and after the publication. Another testified that she knew the article was in error at the time she read it. She also was unaware of Pfannenstiel's reputation in the community. Furthermore, she was aware of only one person who had believed the article, and that person did not know who Pfannenstiel was. The fifth affiant's deposition reveals that although he heard others discussing the article, he did not know whether or not they had believed it.

Plaintiff has also presented the expert testimony of Daryl Moen, a journalism professor at the University of Missouri. Professor Moen testified in deposition that Sandra Trail did not ask sufficient questions of Chief Bose to verify the information he had given her. In his opinion, she failed to follow standard journalistic practices. He opined further that this failure constitutes reckless disregard for the truth. Moen defined reckless disregard as "not following basic journalistic practices in cases where you could cause damage to a person's reputation." (Moen deposition at 19).

2. Standards for Summary Judgment

The court is familiar with the standards governing the consideration of a motion for summary judgment. The Federal Rules of Civil Procedure provide that summary judgment is appropriate when the documentary evidence filed with the motion "shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A principal purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. ..." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The court's inquiry is to determine "whether there is the need for a trial — whether, in other words, there are any 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).

The burden at the summary judgment stage is similar to the burden of proof at trial. The court must enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact on its claim(s). Rule 56, however, imposes no requirement on the...