Reesman v. Highfill

Decision Date29 October 1998
Docket NumberC-11060
Citation965 P.2d 1030,327 Or. 597
PartiesWilliam R. REESMAN, Respondent on Review, v. Richard HIGHFILL and Jim Wilson, Petitioners on Review, and Jack Murray, Barnard Clark and People Against Aurora Airport Expansion, Defendants. CC 94; CA A92453; SC S44639.
CourtOregon Supreme Court

Keith J. Bauer, of Parks, Bauer, Sime & Winkler LLP, Salem, argued the cause for petitioner on review Richard Highfill. With him on the petition was Billy M. Sime.

William Earle, of Abbott, Davis, Rothwell, Mullin & Earle, PC, Portland, argued the cause for petitioner on review Jim Wilson. With him on the petition was Alan Gladstone.

David D. Park, of Elliot & Park, Portland, argued the cause for respondent on review.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, DURHAM, KULONGOSKI and LEESON, JJ.

LEESON, Justice.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

Plaintiff William Reesman brought this action for defamation and invasion of privacy by false light after defendants 1 printed and distributed a flyer between March 11 and March 17, 1994, on behalf of the organization People Against Aurora Airport Expansion (PAAAX). The circuit court entered summary judgment for defendants. Plaintiff appealed, and the Court of Appeals reversed. Reesman v. Highfill, 149 Or.App. 374, 942 P.2d 891 (1997). For the reasons that follow, we reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

FACTS

The facts, as reported by the Court of Appeals, are uncontested:

"Plaintiff is the sole shareholder and chief aerobatics pilot of Mig Magic, Inc., a business engaged in air show performances. Plaintiff's performances are notable in that he flies former Communist bloc aircraft. Plaintiff has received local media attention because of his performances.

"Between 1989 and, at least, March 1994, plaintiff kept and maintained his aircraft at the Aurora State Airport in the Aurora/Charbonneau area. Beginning in 1991, the airport was the object of controversy because of plans for expansion that had provoked the opposition of some local residents. Those residents formed an association, [PAAAX]. Defendants were two of the four members of PAAAX's steering committee and were actively involved in the association's legal efforts to stop the airport's expansion. Between the fall of 1991 and January 1994, PAAAX engaged in extensive litigation and incurred substantial unpaid attorney fees; defendants, as members of the steering committee, were personally obligated for those fees. Plaintiff, although aware of the airport controversy, did not participate in it.

"On March 1, 1994, while plaintiff was testing a new engine in his Chinese MiG-17 in the airspace above the Aurora Airport, a fuel line broke. The jet caught fire, and plaintiff was forced to make an emergency landing at Aurora Airport. The next day, The Oregonian published an article regarding the incident. That article, headlined 'Pilot escapes death in burning jet,' included a picture of the burnt MiG and a caption that stated: 'An explosion and fire rocked Bill Reesman's Chinese MiG-17 fighter Tuesday as he tried a corkscrew climb over the Aurora Airport going 300 mph.' The text of the article stated, in part:

" 'Bill Reesman was testing a new jet engine on Tuesday, pushing his Chinese MiG-17 fighter through a corkscrew climb over the Aurora Airport when at 2,000 feet and 300 mph, he knew he was in trouble.

" 'With a bang and a shake, the supersonic warplane caught fire.

" ' "I felt an explosion in the tail of the aircraft and the flight controls started vibrating pretty badly," Reesman said. ["]I knew I had very serious problems. There were 40-foot flames coming out of the left side of the fuselage."

" ' * * * * *

" 'Even so, his only concern Tuesday afternoon had been keeping the aircraft and its full load of 400 gallons of jet fuel from hitting the surrounding hazelnut orchards and crashing on somebody's house.

" ' * * * * *

" 'After switching off the single, centrifugal-flow jet engine and opening the cockpit canopy, Reesman scrambled out, he said, and "ran faster than any 53-year old man has ever done before."

" 'In less than five minutes, 14 firefighters from Aurora Fire Department * * * started attacking the blaze with fire-suppressing foam. Reesman said he tried to stop them and warn them to get away as fast and as far as they could.

" ' "I've seen those things blow up before," he said, "and [it's] pretty bad." ' "On March 18, 1994, defendants published and distributed a flyer to citizens in Aurora and Charbonneau. The flyer's main purpose was to solicit contributions towards PAAAX's outstanding attorney fees of approximately $20,000. Above the flyer's text was a photocopy of The Oregonian's picture of the burnt MiG and its accompanying caption and headline. The text of the flyer read:

" 'New developments in negotiations between [PAAAX] and the Oregon Aeronautics Div. are the cumulative result of your loyal financial support. Contributions are still urgently needed to help defray already accrued attorney's fees. They will be gratefully received by,

Jim Wilson, Treas.

* * *

" 'All of us are beneficiaries of our neighbor's generosity and a positive indication of our progress is the establishment of an AIRPORT ADVISORY COMMITTEE. Composed of representatives from Charbonneau and Aurora, it will receive complaints concerning noise pollution, flight path violations and act as a forum for airport actions that may impact the surrounding community.

" 'The Oregonian quotes the jet pilot as saying, "I've seen these things blow up before and it's pretty bad", adding that upon scrambling out he, "ran faster than any 53 year old man had ever run before." He stated he was executing a "corkscrew climb" which, under certain conditions, is definitely frowned upon by FAA [Federal Aeronautics Administration] authorities. Rather than commend the pilot for his impetuous candor, may we ask why YAK ATTACK, an air show company, is based at Aurora? And, why are aerial acrobatics permitted over heavily residential Charbonneau and Aurora?

" 'This sequence of events, not entirely unexpected by homeowners, does much to justify and explain their vigorous opposition to airport expansion and the virtual guarantee of increased jet traffic to follow.

" 'Recommended takeoff and landing patterns are routinely ignored by many pilots. The Jet accident indicates a potential for disaster. Had it occurred over Charbonneau or Aurora results could have been catastrophic. That it did not is only attributable to a benign providence. None of us can be too sanguine about the environmental destruction sure to come with airport expansion.

" 'With thanks from your Steering Committee:

" 'Dick Highfill, Jack Murray, Bernie Clark, Jim Wilson' " Reesman, 149 Or.App. at 376-79, 942 P.2d 891 (footnotes omitted; emphasis added).

Plaintiff's complaint alleged that the emphasized statements in the flyer, taken in the context in which they appear, "imply the existence of the following false and defamatory matters" concerning him:

"a. That the 'corkscrew climb' maneuver in which plaintiff was piloting his jet aircraft was an aerobatic maneuver prohibited by the FAA because of safety concerns, when in truth and in fact flying the plane in a corkscrew pattern, as was being done by plaintiff at the time of the accident, is a safety maneuver designed to insure the plane remains above and in close proximity to the airstrip in the event of an emergency.

"b. That plaintiff was performing aerobatic maneuvers over the populated areas of Aurora and Charbonneau, a violation of Federal Aviation Regulations for which plaintiff's pilot's license could be revoked, when in truth and in fact, plaintiff was piloting the plane in a lawful manner for purposes of testing a newly installed engine.

"c. That plaintiff is among the 'many pilots' who routinely ignore recommended takeoff and landing patterns, thereby unreasonably placing the safety of Aurora and Charbonneau homeowners at risk, when in truth and in fact plaintiff strictly observes all rules and regulations governing the safe operation of aircraft." (Emphasis added.)

According to plaintiff, those implications portray him as an unsafe pilot who "presents an unreasonable risk of harm to the neighboring community." Plaintiff's complaint also alleged Defendants responded that plaintiff had failed to state a claim for relief and, as an affirmative defense, alleged that plaintiff was a public figure and that there was no triable issue of fact about whether defendants acted with actual malice. Defendants moved for summary judgment on plaintiff's defamation and invasion of privacy claims; plaintiff filed a cross-motion for partial summary judgment on defendants' public figure affirmative defense. The circuit court granted each of defendants' motions and denied plaintiff's motion, reasoning that "[t]he pleadings and the submissions make it clear that there is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law."

that the same implications placed him in a false light that was highly offensive to him and would be highly offensive to a reasonable person.

On plaintiff's defamation claim, the Court of Appeals reversed, holding that the three statements were capable of defamatory meaning because, although they could be read as making "merely general observations" that did not pertain specifically to plaintiff, "the statements, taken in context, could reasonably be read otherwise and are capable of defamatory meaning." Reesman, 149 Or.App. at 381, 942 P.2d 891. The court also held that plaintiff was neither a public figure nor a limited public figure. Id. at 384, 942 P.2d 891. On plaintiff's invasion of privacy claim, the court held that summary judgment on the entire claim was error, because there were disputed...

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