Sims v. Kiro, Inc.

• Decision Date: 30 May 1978
• Docket Number: No. 5400-I,5400-I
• Citation: 20 Wn.App. 229,580 P.2d 642
• Court: Washington Court of Appeals
• Parties: , 4 Media L. Rep. 1149 Richard SIMS, d/b/a Bicentennial Shop, Appellant, v. KIRO, INC., Respondent/Cross-Appellant.

Page 229

20 Wn.App. 229

580 P.2d 642, 4 Media L. Rep. 1149

Richard SIMS, d/b/a Bicentennial Shop, Appellant, v. KIRO, INC., Respondent/Cross-Appellant.

No. 5400-I.

Court of Appeals of Washington,Division 1.

May 30, 1978.

McMullen, Brooke, Knapp & Alexander, Robert E. Brooke, Seattle, for appellant.

Preston, Thorgrimson, Ellis, Holman & Fletcher, Gordon G. Conger, Seattle, for respondent cross-appellant.

CALLOW, Judge.

Richard Sims operated a retail business at the Seattle Center known as the "Bicentennial Shop" which specialized in souvenirs of the 1976 bicentennial celebration. The shop was in the Seattle Center International Bazaar located in the basement of the Food Circus building.

On January 2, 1976, KIRO-TV went to the Seattle Center and video-taped background for a news feature. A short segment was taped depicting a newsman reporting from the main floor of the Food Circus. Thereafter, closeup shots of bicentennial merchandise on display in the store were video tape recorded. These closeup shots, by themselves, did not identify Sims' shop. Neither Sims nor the outside of his shop was pictured. The World's Fair clock on display at the Seattle Center was video-taped to close the background segment.

The video tape described above was used as background for the following commentary:

After only three or four years of concentrated advance publicity it is finally our Nation's Bicentennial Year. It is the sort of thing you can predict fairly accurately. After all, if you can't trust your calendar, who can you trust? And it certainly hasn't caught our Nation's spirit of good old American free enterprise napping.

About six or eight months ago, I bought a radiometer you know, one of those little things with the alternating black and white paddles that spins when the sun shines on it. Well, it isn't likely to wear out in this climate! But what really impressed me about it was the piece of paper attached to it it was red, white and blue and marked my radiometer as a genuine Bicentennial item. After I had torn it to shreds and burned it, I started looking around at all the other Bicentennial merchandise.

Do the same and you will find that some of it has been on sale for four years or more. Probably the most tasteless is the Spirit of '76 casket, but the offerings range from Liberty Bell booze bottle, through red-white-and-blue telephones, to Bicentennial locomotives for your electric train.

Congress created the American Revolution Bicentennial Administration to manage our official National Celebration and it's licensing products none genuine without this mark, royalties to be divided up among the various state and territorial observances. That's led to bootleg products with a counterfeit seal and thoughts of prosecution. The original semi-official organization is the U. S. Bicentennial Society, made up of historian types who saw the commercial explosion coming back in 1971 and has since been waging a mostly ineffective campaign against it while licensing products itself.

There is also the Peoples Bicentennial Commission. They call it the "Buy-centennial," b-u-y, and they're afraid all the commercial hoopla is going to turn people off the genuine 200th Anniversary events. They could be right. The organizations are arguing among themselves over which has the right to peddle official souvenirs. Whatever, nobody is being forced to buy any of it. Some of the manufacturers are giving up and going back to their more normal color schemes. And, if you'd like to pick up a remainder or two of our Nation's 200th birthday, why don't you wait and pick up some real bargains, say about March, 1977. You may even be able to snap up the official recycled World's Fair July Fourth, 1976, countdown clock, which, incidentally, isn't working right now.

Ken Rickey, Eyewitness News

On February 10, 1976, Sims filed a complaint for damages alleging that KIRO had broadcast a defamatory publication concerning his business. KIRO moved to dismiss the action with prejudice. The motion was in the nature of one to dismiss for failure to state a claim upon which relief can be based under CR 12(b)(6). The trial court considered the motion as a motion for summary judgment pursuant to CR 56 in view of the fact that evidentiary materials were considered. After viewing the broadcast in question, the trial court dismissed the case on the basis that the plaintiff had not been identified as a party engaged in wrongdoing and the comments made by the broadcaster were fair, truthful comments concerning a matter of public interest.

Sims contends that the broadcast was capable of a defamatory meaning and that whether the broadcast and the innuendo conveyed to the consuming public were of and concerning him, and whether they created an injurious false impression of his business, were questions for the jury.

The major issue presented is whether the plaintiff has proved that he was the subject of the allegedly defamatory statement. The elements of a cause of action for defamation are stated in section 558 of Restatement (Second) of Torts (1977) as:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

The burden of proving the elements of the cause of action are on the plaintiff, including the requirement that the plaintiff prove that the communication was made of and concerning him. Hillman v. Star Publishing Co., 64 Wash. 691, 117 P. 594 (1911); Farber v. Cornils, 94 Idaho 326, 487 P.2d 689 (1971); Restatement (Second) of Torts § 580A, comment f (1977).

We hold that if it can be said as a matter of law that the plaintiff has failed to submit convincingly clear proof of his identity as a target of an allegedly libelous statement, the trial court must dismiss the action when a motion for summary judgment is brought on that basis by the defendant.

A broadcast must be considered as a complete picture and not by isolated segments. Gaffney v. Scott Publishing Co., 35 Wash.2d 272, 277, 212 P.2d 817 (1949); James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834 (1976). A court is bound to invest words with their natural and obvious meaning, and may not extend language by innuendo or by the conclusions of the pleader. The defamatory character of the language used must be certain and apparent from the words themselves, and so must the identification of the plaintiff as the person defamed. Landau v. Columbia Broadcasting System, 205 Misc. 357, 128 N.Y.S.2d 254 (1954), aff'd, 1 A.D.2d 660, 147 N.Y.S.2d 687 (1955). One cannot by implication identify himself as the target of an alleged libel if the allegedly false statement does not point to him. Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890, 100 A.L.R.2d 218 (1960). This is not to say that it is necessary that a plaintiff be mentioned by name in order to recover damages, but it is sufficient if viewers, hearers or readers will conclude from a perusal of the article that the plaintiff is the one against whom publication is aimed. Ryan v. Hearst Publications, Inc., 3 Wash.2d 128, 100 P.2d 24 (1940). We find in P. Ashley, Say It Safely 30 (3d ed. 1966), the following:

The test is not whom the story intends to name but who a part of the audience may reasonably think is named "not who is meant but who is hit," as one court put it.

The plaintiff would have the jury decide whether or not the plaintiff has been identified by the statements. We are cited to Pitts v. Spokane Chronicle Co., 63 Wash.2d 763, 388 P.2d 976, 9 A.L.R.3d 550 (1964), and Purvis v. Bremer's, Inc., 54 Wash.2d 743, 344 P.2d 705 (1959), which held that a statement may be libelous depending upon the surrounding circumstances and the meaning conveyed to the publication's audience. Likewise, our attention is called to Taskett v. KING Broadcasting Co., 86 Wash.2d 439, 546 P.2d 81 (1976), which held that a private individual may recover damages for defamation where the substance makes substantial danger to reputation apparent on a showing that the defendant was aware, or should have been aware, that the statement was false or would create a false impression in some material respect. These holdings deal with the substance of the statements themselves as libelous, and not with the question of the identification of the plaintiff. Further, in each of these cases no doubt was presented as to the person about whom the statements were made. In each case the person was specifically named. We do not reach an analysis of the statement made in the case before us as to whether its content could be said to be libelous or not.

Our holding is based, rather, on the failure of the proof to show with...