Richie v. Paramount Pictures Corp., CX-94-2249

• Decision Date: 30 May 1995
• Docket Number: Nos. CX-94-2249,CX-94-2249,C5-94-2501,s. CX-94-2249
• Citation: 532 N.W.2d 235
• Parties: 24 Media L. Rep. 1009 James RICHIE, et al., Appellants, v. PARAMOUNT PICTURES CORPORATION, et al., Respondents (), Defendants (C5-94-2501), Hubbard Broadcasting, Inc., d/b/a KSTP, et al., Defendants (), Kathy Tatone, Respondent (C5-94-2501). Nos. , C5-94-2501.
• Court: Minnesota Court of Appeals

Page 235

532 N.W.2d 235

24 Media L. Rep. 1009

James RICHIE, et al., Appellants, v. PARAMOUNT PICTURES CORPORATION, et al., Respondents (CX-94-2249), Defendants (C5-94-2501) Hubbard Broadcasting, Inc., d/b/a KSTP, et al., Defendants (CX-94-2249) Kathy Tatone, Respondent (C5-94-2501).

Nos. CX-94-2249, C5-94-2501.

Court of Appeals of Minnesota.

May 30, 1995.

Review Granted July 20, 1995.

Syllabus by the Court

1. On these facts, summary judgment was inappropriate in a defamation action involving defamation per se.

2. Minnesota's choice of law rule permits application of Minnesota law in a defamation claim in which the plaintiffs and one of the respondents are Minnesota residents and the injury occurred in Minnesota.

3. Summary judgment based on an attorney's immunity from tort liability to third parties is inappropriate where a fact question exists as to whether the attorney was acting within her capacity as a client's attorney when the alleged tort occurred.

4. On these facts, providing photographs to a talk show for use during a broadcast was not an activity protected from defamation liability by qualified privilege because it is not a proper occasion to which the privilege extends.

Tyrone P. Bujold, Arthur S. Beeman, Robert J. Gilbertson, Robins, Kaplan, Miller & Ciresi, Minneapolis, for appellants.

John P. Borger, Eric E. Jorstad, Faegre & Benson, Minneapolis, for Paramount Pictures Corp., et al.

Kevin P. Hickey, Bassford, Heckt, Lockhart, Truesdell, & Briggs, P.A., Minneapolis, for Kathy Tatone.

Considered and decided by RANDALL, P.J., and DAVIES and JONES, ^* JJ.

OPINION

RANDALL, Judge.

Appellants challenge summary judgments granted separately to respondents Paramount Pictures Corporation (Paramount) and MoPo Productions, Inc. (MoPo) and respondent Kathy Tatone on appellants' claims for defamation and false light invasion of privacy. ¹ Appellants argue that the district court erred in finding they were required to show actual harm to their reputations to maintain their defamation action and failed to do so. They also contend the district court erroneously determined respondent Tatone was protected by attorney immunity and qualified privilege. We agree that summary judgment was inappropriate and reverse.

FACTS

Denise Richie, the goddaughter of appellants James Richie (her paternal uncle) and Karen Gerten (her maternal aunt), successfully litigated a civil lawsuit against her parents (not Richie and Gerten) for sexual abuse. Her father was found liable for sexually abusing Denise and her mother for failing to intervene. Denise was awarded a large jury verdict in the action, in which she was represented by respondent Kathy Tatone.

A representative of the Maury Povich show (the "show"), a nationally broadcast talk show, learned of Denise's case and contacted Tatone to arrange for Denise's appearance on the show. Tatone claims that she handled all of the arrangements; the show's representative contacted Denise directly only once, to determine whether she was articulate and would make a good guest.

The show requested photographs of Denise and her parents (the defendants in the lawsuit) to use in the broadcast. Tatone contacted Denise, who told Tatone to send a photo of her with her parents in which she was wearing a graduation gown. Tatone sent the only photograph she found in Denise's albums in which Denise appeared with a couple and was wearing a gown. The problem was the man and the woman in the photograph were appellants, not Denise's parents. The record does not show any double-checking or further follow up by Tatone to verify that the man and the woman in the photograph were Denise's parents. A second photograph of Denise with her parents and brother was also sent.

A representative of the show said she attempted on the morning of the interview to confirm with Tatone that Denise's parents were the people pictured in the graduation gown photograph and Tatone said they were. Tatone claims not to recall this conversation. The photograph with appellants was selected for use because it was of better quality and in better condition than the other photograph, the one with Denise's parents in it.

The photograph incorrectly featuring appellants as Denise's parents was broadcast several times during the taped interview, when references to Denise's father and mother and their conduct were being made. Appellants became aware of the mistaken use of their likenesses on November 5, 1992, the day the show was broadcast. Both immediately contacted counsel. A retraction was aired on the December 18, 1992, show. The host, Maury Povich, apologized and explained that appellants were not connected with Denise's abuse.

Appellants sued Paramount Pictures and MoPo for defamation and false light invasion of privacy, and Hubbard Broadcasting (the local broadcaster) and Kathy Tatone for defamation. They alleged impairment of their reputations in the community, humiliation, and mental anguish and suffering. Hubbard Broadcasting was dismissed from the action by stipulation.

Paramount/MoPo's second motion for partial summary judgment was granted. The district court found New York law required proof of harm to reputation before a defamation claim can be established and that Minnesota law had to recognize such a limitation under Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). It also found appellants could not meet this requirement. In addition, the district court found Minnesota does not recognize the tort of false light invasion of privacy. Judgment for Paramount/MoPo was entered immediately, and appellants filed an appeal.

While appeal was pending, Tatone moved for summary judgment below on grounds of attorney immunity. The district court granted the motion based on qualified privilege and appellants' inability to prove harm to reputation. Appellants appealed that decision as well, and the cases were consolidated by this court.

ISSUES

1. Did the district court err in concluding appellants had to show they could prove harm to their reputations resulting from the respondents' defamatory actions to withstand summary judgment and failed to do so?

2. If a conflict exists between New York and Minnesota defamation law, which state's laws should be applied in this action?

3. Is Tatone protected from liability to appellants under the rule prohibiting third parties from recovering from an attorney for activities performed within the scope of the professional relationship?

4. Did the district court err in finding Tatone is protected by a qualified privilege from liability for providing the wrong photograph to the show?

ANALYSIS

When reviewing a grant of summary judgment, an appellate court examines the record to determine whether any issues of material fact exist or whether the district court erred in its application of the law. Hopkins v. Empire Fire & Marine Ins., 474 N.W.2d 209, 212 (Minn.App.1991). Facts are viewed in the light most favorable to the nonmoving party; doubts and factual inferences are resolved against the moving party. Id.

I. Harm-to-Reputation Prerequisite

The district court relied on Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), to rule that Minnesota law imposes a harm-to-reputation prerequisite on private figure plaintiffs in defamation cases against media defendants. We do not believe Gertz mandates that a plaintiff must show by direct proof that actual harm to reputation has occurred to withstand summary judgment in a defamation case per se, as here, where a direct inference of incest was publicly lodged against appellants.

In Gertz, the United States Supreme Court held that private figure plaintiffs cannot recover presumed damages in defamation cases unless actual malice is proved. Id. at 350, 94 S.Ct. at 3012. Further, under a lesser standard of proof, a plaintiff is limited to damages for "actual injuries." Id., at 350, 94 S.Ct. at 3012. By broadly defining "actual injuries" to include loss of reputation, mental anguish and suffering and humiliation, however, the Court implied that actual harm to reputation did not have to be established. Id. at 350, 94 S.Ct. at 3012. This was confirmed in Time, Inc. v. Firestone, in which the Court stated: "In [Gertz ] we made it clear that States could base awards on elements other than injury to reputation." 424 U.S. 448, 460, 96 S.Ct. 958, 968, 47 L.Ed.2d 154 (1976).

Thus, after Gertz, a private figure plaintiff cannot recover for presumed harm to reputation absent a showing of actual malice, at least in cases involving matters of public concern. Jacobson v. Rochester Communications, 410 N.W.2d 830, 836 n. 7 (Minn.1987) (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 756, 105 S.Ct. 2939, 2944, 86 L.Ed.2d 593 (1985)). ² But first amendment principles do not require that harm to reputation be proved as an essential element of a defamation claim. See, e.g., Little Rock Newspapers v. Dodrill, 281 Ark. 25, 660 S.W.2d 933, 936 (1983) (imposing harm-to-reputation prerequisite but noting not constitutionally required); Hearst Corp. v. Hughes, 297 Md. 112, 466 A.2d 486, 491-93 (1983) (trier of fact constitutionally barred from awarding damages for presumed harm to reputation, but not proven harms); accord Restatement (Second) of Torts § 621 at 320 (1977). This point is conceded by respondents in their brief.

We conclude that the district court erred in determining as a matter of law that appellants have not alleged facts showing harm to their reputations occurred. Defamation law has long recognized that certain types of defamatory statements are actionable per se without proof of special damages. W. Page Keeton, et al., Prosser & Keeton on Torts § 112 (5th ed. 1984). In cases involving such defamatory per se statements, damage to reputation is presumed, and compensatory damages can be awarded on this basis. See Becker v. Alloy Hardfacing & Eng'g, 401 N.W.2d 655, 661 (Minn...