Reesman v. Highfill

Decision Date23 July 1997
Docket NumberC-11060
Citation942 P.2d 891,149 Or.App. 374
PartiesWilliam R. REESMAN, Appellant, v. Richard HIGHFILL and Jim Wilson, Respondents, and Jack Murray, Barnard Clark and People Against Aurora Airport Expansion, Defendants. 94; CA A92453.
CourtOregon Court of Appeals

David D. Park, Portland, argued the cause for appellant. With him on the briefs was Elliott & Park.

Billy M. Sime, Salem, argued the cause for respondent Richard Highfill, and William G. Earle, Portland, argued the cause for respondent Jim Wilson. Parks, Bauer, Sime and Winkler, Salem, and Hallmark, Keating & Abbott, P.C., Portland.

Before DEITS, C.J., and De MUNIZ and HASELTON, JJ.


Plaintiff appeals, assigning error to the entry of summary judgment against his claims for defamation and "false light" invasion of privacy. He asserts, particularly, that the trial court erred in concluding that defendants' 1 statements were not capable of defamatory meaning; that plaintiff was a public figure; and that there was no triable issue of fact as to whether defendants acted with actual malice. We generally agree with plaintiff, except that we conclude that he failed to adduce legally sufficient evidence of actual malice with respect to certain aspects of his false light claim. Accordingly, we reverse and remand for further proceedings.

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. 2 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, People Against Aurora Airport Expansion (PAAAX). Defendants were two of the four members of PAAAX's steering committee 3 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 its 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 PEOPLE AGAINST AURORA AIRPORT EXPANSION 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 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"

Plaintiff brought this action, alleging claims of defamation and invasion of privacy by false light. As to the defamation claim, plaintiff alleged that the statements in the flyer "impl[ied] the existence of the following false and defamatory matters" concerning plaintiff:

"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."

Plaintiff's false light claim alleged that his privacy had been invaded in the same three ways.

Defendants moved for summary judgment against both the defamation and the false light claims. As to the defamation claim, defendants raised two alternative arguments. First, the statements in their flyer were not capable of defamatory meaning. Second, plaintiff was a "public figure" for purposes of the publication, and the evidence in the summary judgment record, even when viewed most favorably to plaintiff, did not demonstrate that defendants had acted with "actual malice." With respect to the false light claim, defendants made three alternative arguments: (1) the flyer did not concern "private facts"; (2) the flyer's statements were not "highly offensive"; and (3) the evidence was insufficient to establish that the allegedly actionable statements were made with "actual malice." Plaintiff opposed defendants' motion and also cross-moved for partial summary judgment on the "public figure" issue. The trial court granted defendants' motion and, concomitantly, denied plaintiff's cross-motion:

"Defendants' motions are well-taken. The 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. The alleged defamatory statement is not false nor capable of defamatory reading. The plaintiff is a public figure and therefore subject to the actual malice standard. There is no credible evidence that defendants acted with knowledge of any falsity nor with reckless disregard of the truth. The claim for invasion of privacy also fails for this reason. Additionally, the statement complained of is clearly not a private fact and therefore forms no actionable basis for either a showing of actual malice or false light."

On appeal, plaintiff challenges the entry of judgment against both claims. We begin with the defamation claim. Plaintiff contends that the...

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4 cases
  • Muresan v. Philadelphia Romanian Pentecostal Church
    • United States
    • Oregon Court of Appeals
    • June 17, 1998
    ...proof of more than either knowledge of or reckless disregard as to the falsity of the publicized matter. See Reesman v. Highfill, 149 Or.App. 374, 387-88, 942 P.2d 891 (1997), rev. allowed 326 Or. 464, 952 P.2d 63 (1998) (McNabb held that malice is shown by evidence of knowledge of or reckl......
  • Reesman v. Highfill
    • United States
    • Oregon Supreme Court
    • October 29, 1998
    ...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 Th......
  • Reesman v. Highfill
    • United States
    • Oregon Supreme Court
    • February 10, 1998
  • State v. Folen, s. 94-01-1883C
    • United States
    • Oregon Court of Appeals
    • July 23, 1997

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