Sullivan v. Baptist Memorial Hosp.

• Decision Date: 12 July 1999
• Citation: 995 S.W.2d 569
• Parties: Karen SULLIVAN, Appellee, v. BAPTIST MEMORIAL HOSPITAL, Appellant.
• Court: Tennessee Supreme Court

Page 569

995 S.W.2d 569

Karen SULLIVAN, Appellee, v. BAPTIST MEMORIAL HOSPITAL, Appellant.

Supreme Court of Tennessee,

at Jackson.

July 12, 1999.

Paul E. Prather, Steven W. Likens, Kiesewetter, Wise, Kaplan, Schwimmer & Prather, PLC, Memphis, for Appellant.

Stephen H. Biller, Sara L. Hall, Memphis, for Appellee.

O P I N I O N

ANDERSON, C.J.

We granted the appeal in this defamation case to determine whether the element of publication is satisfied when an employee is compelled to disclose to a prospective employer the reason given for termination by a former employer. The trial granted summary judgment to defendants, concluding that the plaintiff self-published statements failed to satisfy the publication element of defamation. The Court of Appeals reversed, adopting the minority view that self-publication satisfies the publication element when 1) the defendant can reasonably foresee that the plaintiff will be compelled to publish the defamatory statement and 2) the plaintiff is in fact compelled to publish the defamatory statement on subsequent employment applications.

After our review of the record and applicable law, we conclude that compelled self-publication does not satisfy the publication element essential to a prima facie case of defamation because it is contrary to the well-settled law of this State, which reflects the majority view, and contrary to important policy principles. Accordingly, we reverse the Court of Appeals' judgment and reinstate the trial court's grant of summary judgment to the defendant.

BACKGROUND

Plaintiff Karen Sullivan ("Sullivan") worked full-time for defendant Baptist Memorial Hospital ("Baptist") as a neonatal nurse in the neonatal intensive care unit. While working for Baptist, Sullivan also performed temporary nursing services for St. Francis Hospital ("St. Francis") through a nursing service staffing agency. St. Francis was in the process of setting up its own neonatal unit and employed several Baptist nurses.

According to the record, Baptist grew suspicious that its nurses were taking Baptist's property, i.e. certain medical devices, in an effort to assist St. Francis in the development of its neonatal unit. That suspicion focused on Sullivan.

Thereafter, Susan Parsons ("Parsons"), a Baptist nurse, said she told Sullivan's supervisor that Sullivan took neonatal IV catheters from Baptist to use at St. Francis. ¹ Parsons also said she had a conversation with Sullivan in which Sullivan confided that she had taken the angiocaths to St. Francis, about which Parsons testified as follows:

[Sullivan] preceded to tell me that [a St. Francis physician] had even asked her opinion of pumps, what kind of pumps to order for their unit. Then she went on to say that I even took some angiocaths and covered her mouth, put her hand over her mouth and started speaking quietly and softly and looked around the room as if to see if there was anybody around.

And at the same time she said, I guess I shouldn't say that too loudly. But I took those over there because the old angiocaths they were using were the old type we used to use here. And they didn't work very well so I took them some of our newer ones.

When Baptist confronted Sullivan with Parsons' accusations, Sullivan denied the conversation and denied taking Baptist's property for use at St. Francis. Nonetheless, Baptist terminated Sullivan for misappropriating its propery.

After her termination, Sullivan applied for a neonatal nurse position at both Methodist Hospital and Jackson Madison County Hospital. She says that she was compelled to reveal the defamatory reason Baptist terminated her, and, as a result, neither hospital hired her. Sullivan then filed suit in circuit court against Baptist alleging defamation and other causes of action. ²

Baptist filed a motion for summary judgment on the grounds that it did not publish the defamatory information, which is an essential element of a defamation action. Sullivan conceded that Baptist did not publish the information but contended that the publication element of her defamation claim was satisfied because she was compelled to publish Baptist's defamatory statements on subsequent employment applications.

The trial court granted Baptist's motion for summary judgment, on the grounds that self-published statements do not satisfy the publication element of a cause of action for defamation and are not actionable under Tennessee law. The Court of Appeals reversed. It reasoned that "the law in Tennessee should recognize the principle of compelled self-publication," and held that the publication element required for a defamation claim can be met if 1) the publication of the defamatory statement is reasonably foreseeable to the defendant, and 2) the plaintiff is compelled to republish the defamatory statement. The Court of Appeals limited its holding to apply only "to those cases in an employment setting in which the plaintiff is forced to republish false and defamatory reasons for his or her termination on subsequent job applications."

We granted the defendant's application for permission to appeal.

ANALYSIS

We begin our analysis by noting the applicable standard of review. The trial court's grant of summary judgment is purely a question of law; accordingly, our review is de novo, and no presumption of correctness attaches to the lower courts' judgments. E.g., City of Tullahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn.1997).

To establish a prima facie case of defamation in Tennessee, the plaintiff must establish that: 1)a party published a statement; 2)with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement. See Restatement (Second) of Torts § 580 B (1977); Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn.1978). "Publication" is a term of art meaning the communication of defamatory matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 821 (Tenn.1994).

The sole issue involved in this appeal is whether Sullivan's "compelled" repeating of Baptist's defamatory reasons for termination satisfies the publication element of a defamation action. Adopting the Court of Appeals' reasoning, Sullivan argues that the publication element is satisfied because: 1) Baptist could reasonably foresee that Sullivan would have to communicate the defamatory reasons for her termination to a third party; and 2) Sullivan was in fact compelled by prospective employers to reveal the defamatory reasons for her termination.

Urging this Court to adopt the doctrine of self-publication and to affirm the Court of Appeals, Sullivan insists that only "compelled" self-publication in an employment setting, as opposed to voluntary self-publication, should be actionable. Baptist, on the other hand, argues that the Court of Appeals' decision is contrary to precedent, the majority view, Tennessee's employee-at-will doctrine, important jurisprudential concerns, and other policy principles.

This Court first considered the doctrine of self-publication in a non-employment context in Sylvis v. Miller, 96 Tenn. 94, 33 S.W. 921 (1896). In Sylvis, the plaintiff received a defamatory letter through the mail which he opened and showed to several friends and relatives. The trial court instructed the jury that the plaintiff's publication of defendant's defamatory statements would not support a defamation action. On appeal, this Court reasoned that the "defendant is not answerable for anything the plaintiff may choose to do with the letter after it has once safely reached his hands," and held that "[i]f a person receives a letter containing libelous matter, he will not be justified in publishing it." Id. at 922. Accordingly, we affirmed the trial court.

Three years later, in Kansas City, M. & B.R. Co. v. Delaney, 102 Tenn. 289, 52 S.W. 151 (1899), this Court was again presented with an opportunity to adopt the doctrine of self-publication, this time in an employment setting. In Delaney, the plaintiff's agent obtained a recommendation letter from plaintiff's previous employer, which alleged that plaintiff, a union member, had left his employment during a strike. Though the defendant showed the letter only to the plaintiff's agent, the plaintiff showed the letter to potential employers. This Court stated that "[u]nder the authorities, the company is not liable for any of the consequences of the act of [plaintiff] in making publication of the letter after it reached his hands." Id. at 152. Applying Sylvis, this Court held that the plaintiff was not justified in publishing the defamatory letter. Id. at 152-53.

Sullivan attempts to distinguish this early Tennessee precedent by arguing that the self-publication in Sylvis was outside the employment context and the self-publication in Delaney was voluntary. Sullivan contends that only "compelled" self-publication in an employment context should be actionable.

As one commentator has observed, however, "compulsion" is present in every defamation case involving self-publication of the reason for termination by a former employer:

"Compulsion" within the meaning of the doctrine would automatically occur when a prospective employer asks an applicant for his or her employment history and reason(s) for leaving the previous place of employment, and the applicant repeats the termination reason given by the former employer. All former employers will be held to have foreseen or to have had an obligation to foresee that the former employee would be asked to provide this information and would thus be "compelled" to answer.

Ronald Turner, Compelled Self-Publication: How Discharge Begets Defamation, 14 Empl. Rel. L.J. 19, 27-28 (1988). Thus, we do not find persuasive Sullivan's argument that our prior decisions rejecting the doctrine of self-publication are distinguishable because the self-publication in those cases...