Ross v. Burns

• Decision Date: 01 February 1980
• Docket Number: No. 77-1488,77-1488
• Citation: Ross v. Burns, 612 F.2d 271 (6th Cir. 1980)
• Parties: 5 Media L. Rep. 2277 Linda ROSS and Mary Wreford, Plaintiffs-Appellants, v. William BURNS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 271

612 F.2d 271

5 Media L. Rep. 2277

Linda ROSS and Mary Wreford, Plaintiffs-Appellants, v.William BURNS, Defendant-Appellee.

No. 77-1488.

United States Court of Appeals Sixth Circuit.

Argued Oct. 18, 1979.

Decided Jan. 3, 1980.

Rehearing Denied Feb. 1, 1980.

Sheridan V. Holzman, Gen. Counsel, ACLU of Michigan, Detroit, Mich., David A. Barrett, Joel Gora, ACLU Foundation, Inc., New York City, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen. of Michigan, Robert A. Derengoski, Sol.Gen., Thomas Casey, Max E. Simon, Asst. Attys.Gen., Lansing, Mich., Robert E. Kostin, Waterford, Mich., for defendant-appellee.

Before MERRITT, BROWN and BOYCE F. MARTIN, Jr., Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Appellants Ross and Wreford were reporters for the Ann Arbor Sun(Sun ), a local biweekly newspaper.On June 28, 1973, they went to the courthouse at Chelsea, Michigan, where appellee Burns, a Michigan State Police officer assigned to undercover narcotics enforcement duty, was scheduled to give testimony at a preliminary hearing.As Burns neared the courthouse, Ross and Wreford began to photograph him.Burns saw the reporters, approached them, and attempted to seize their cameras and film in order to prevent publication of his photograph.A scuffle ensued, the details of which are the subject of conflicting testimony.The altercation ended at the approach of a uniformed policeman.The respondents filed criminal complaints which remain unprosecuted; the record did not indicate Burns filed any complaints against the reporters.

Ross and Wreford each succeeded in obtaining a photograph of Burns before he reached them.These photographs appeared in the July 12, 1973 edition of the Sun, one of them captioned "Know Your Enemies."Beneath the photographs was a "news article" decrying the activities of "undercover 'narcs' " in the Ann Arbor area.

As a result of the courthouse incident, appellants filed a civil rights complaint under 42 U.S.C. § 1983.In Count I, appellants alleged that appellee's conduct violated their First Amendment rights as journalists, their right to Fourth Amendment protection from unreasonable searches and seizures, and their federal statutory right not to be assaulted, battered, and falsely imprisoned by a state police officer.Counts II, III, and IV, all pendent claims based on Michigan law, alleged that appellee's actions constituted assault and battery, false imprisonment, and intentional infliction of emotional distress.

Appellee counterclaimed, alleging that appellants' use of his photographs amounted to invasion of privacy and intentional infliction of emotional distress.The emotional distress action rested on the premise that publication of Burns' identity as an undercover officer increased his risk of recognition in the community and thereby jeopardized his personal safety and efficacy on the job.This exposure, claimed Burns, was a source of great anxiety and emotional distress.

The trial court dismissed appellants' Fourth Amendment allegation and directed a verdict against appellee's invasion of privacy counterclaim.The remaining issues were submitted to a jury which denied relief on each of appellants' claims but found for appellee on his emotional distress counterclaim.The jury assessed $5,000 in compensatory damages and $35,000 in exemplary damages against appellant Ross and $.01 in compensatory damages against appellant Wreford.

After the jury findings, appellants moved for a judgment notwithstanding the verdict or a new trial on their state tort claims and for a judgment notwithstanding the verdict on appellee's emotional distress counterclaim.The trial court issued an opinion and order denying these motions.

This appeal presents four issues:

(1)Appellants contend that the trial court erred in refusing to enter a directed verdict or judgment notwithstanding the verdict on appellee's counterclaim of intentional infliction of emotional distress.In support of that position appellants rely on two distinct arguments.First, they assert that the evidence at trial was insufficient as a matter of law to satisfy the requirements of an emotional distress claim.Second, they argue that the First Amendment guarantee of a free press insulates them against liability to appellee.

(2)Appellants also contend that they were entitled as a matter of law to a directed verdict on their state tort claims of assault and battery and false imprisonment.

(3)Appellants argue that the trial court's instructions to the jury concerning appellee's reliance on a "good faith" defense were erroneous; they also insist that the trial court should have charged the jury more specifically on the legality of appellants' conduct as journalists.

(4) Finally, appellants seek a determination that the award of exemplary damages for the tort of intentional infliction of emotional distress is an impermissible form of recovery.

We now focus on the substance of this appeal and consider appellants' contention that we should reverse the judgment on appellee's emotional distress counterclaim because the evidence at trial was insufficient as a matter of law to permit submission to the jury.We agree.

The rules governing federal court jurisdiction over pendent state claims require us to decide this question in accordance with Michigan law.United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218(1966).Although the Michigan Supreme Court has yet to rule on a case of this nature, the Michigan Court of Appeals has recognized the tort of intentional infliction of emotional distress as a viable cause of action.Frishett v. State Farm Mutual Insurance Co., 3 Mich.App. 688, 143 N.W.2d 612(1966), Lv. den., 379 Mich. 733(1966).The Michigan Court explicitly adopted the definition in Restatement (Second) of Torts§ 46(1948), which reads in applicable part: "(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, . . ."Warren v. June's Mobile Home Village and Sales, Inc., 66 Mich.App. 386, 239 N.W.2d 380, 382(1976).

The Restatement definition implies four distinct elements of proof necessary to sustain a claim.A complainant must produce evidence of "extreme and outrageous" conduct, of the actor's injurious intent or reckless disregard for the consequences of his acts, of causation, and of the actual experience of severe distress before his case will be submitted to a jury.Expounding the meaning of "extreme and outrageous" conduct, the Restatement Commentary emphasizes the high threshold standard of proof required on this element of the tort.The actor's motivation, however deplorable, is a separate question which must not be allowed to infect the objective assessment of his conduct.

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.Liability has been found...