Sullivan v. Pulitzer Broadcasting Co.

• Decision Date: 13 May 1986
• Docket Number: No. 67616,67616
• Citation: 709 S.W.2d 475
• Parties: , 12 Media L. Rep. 2187 James H. SULLIVAN, Appellant, v. The PULITZER BROADCASTING COMPANY, Respondent.
• Court: Missouri Supreme Court

Page 475

709 S.W.2d 475

54 USLW 2612, 12 Media L. Rep. 2187

James H. SULLIVAN, Appellant, v. The PULITZER BROADCASTING COMPANY, Respondent.

No. 67616.

Supreme Court of Missouri,

En Banc.

May 13, 1986.

Edward P. McSweeney, Michael J. Coleman, St. Louis, for appellant.

Robert B. Hoemeke, Richard A. Wunderlich, Joseph E. Martineau, Helmut Starr, St. Louis, for respondent.

WELLIVER, Judge.

This case involves an appeal from an order of the trial court dismissing a suit against respondent, the Pulitzer Broadcasting Company. Appellant, James H. Sullivan, claims that respondent aired five news broadcasts, each of which purportedly related false information of and concerning appellant. Appellant alleges that these newscasts damaged his reputation and standing in the community; and he further alleges that he has and will suffer emotional trauma, medical expenses, and loss of employment. The trial court sustained a motion to dismiss. The crucial issue on appeal is whether appellant can evade the two year statute of limitations for defamation actions by urging that we denominate his claim as one for "false light invasion of privacy" and also treat such a claim as one not governed by the statute of limitations for defamation actions. After a well-reasoned opinion by the Court of Appeals, ¹ Eastern District, suggesting that the judgment be affirmed, that Court transferred the case to this Court due to the question involved. We treat this case as if on original appeal. Mo. Const. art. V, § 10. We affirm.

Appellant filed suit on November 7, 1983, alleging that on five occasions, beginning on November 22, 1978 and ending on November 29, 1978, respondent broadcast over its television station a story concerning appellant, which, taken as a whole,

intentionally and maliciously conveyed the false impression that plaintiff, then Administrator of City Hospital # 1 and an employee of the City of St. Louis was unlawfully and improperly building a home with materials stolen from the City of St. Louis, ... and that plaintiff had improperly arranged for an architect employed by the City of St. Louis to prepare the official plans for his home, thus and thereby portraying plaintiff in a false light publicly.

Each of the five separate counts alleges an injury based upon a different broadcast of the story.

Other broadcasts during this period concerning the same story were the subject of a previous lawsuit between these parties resulting in a $5,000 verdict for appellant on a trespass count and against appellant on counts alleging an "intrusion upon seclusion invasion of privacy" and a "false light invasion of privacy." Sullivan v. KSD/KSD-TV, 661 S.W.2d 49, (Mo.App.1983). During oral argument, appellant explained that he knowingly withheld certain counts from this first suit on the assumption that he could bring an action after the running of the two year statute of limitations for libel and slander by characterizing the action as one for false light invasion of privacy.

Appellant's petition further avers that as a direct result of these broadcasts he,

has been greatly injured in his reputation and standing in the community, suffered shame, embarrassment, humiliation, mental anguish, emotional distress and strain and hypertension, been exposed to public contempt and ridicule and has been forced to seek medical treatment, and will be forced to seek medical treatment in the future; further, plaintiff has lost his employment with the City of St. Louis, and the income from said employment.

Respondent filed its answer raising certain affirmative defenses: (1) res judicata and collateral estoppel based upon the prior lawsuit between the parties; and (2) a qualified privilege based in part on the public interest of the information and on appellant's status as a public figure. ² In its motion to dismiss, respondent asserts that the action is (1) barred by the statute of limitations, § 516.140, RSMo 1978; (2) the petition alleges a tort not recognized in Missouri for inaccurate reporting; (3) appellant failed to plead special damages essential to a claim for "false light" invasion of privacy; and (4) appellant failed to plead in haec verba. The trial court sustained the motion to dismiss without specifying the grounds. This Court will sustain the judgment if any of the asserted grounds for dismissal are proper.

The initial question we must decide is whether appellant pleads a cause of action upon which relief may be granted and, if so, whether the action is barred by an applicable statute of limitations. Respondent contends that appellant's petition states a claim for defamation, and because the action was instituted just short of five years after the alleged tortious action the suit is barred by the two year statute of limitations for libel and slander. § 516.140, RSMo 1978. ³ Appellant, however, argues that this Court should recognize and denominate a separate tort of "false light invasion of privacy" and that the petition should be read as pleading such a cause of action. Appellant further contends that the two year statute of limitations should not control and argues in favor of the five year statute of limitations. § 516.120, RSMo 1978. Our precise inquiry, therefore, focuses on whether, under the facts of this case, appellant can avoid the statute of limitations bar by treating the action as a "false light invasion of privacy" rather than as a defamation.

A tort for "invasion of privacy" originated in an 1890 law review article written by Samuel D. Warren and his law partner, Louis D. Brandeis. Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). See generally G. White, Tort Law in America 173-76 (1980); Felcher & Rubin, Privacy, Publicity, and the Portrayal of Real People by the Media, 88 Yale L.J. 1577 (1979). See also Note, Tort Recovering for Invasion of Privacy, 59 Neb.L.Rev. 808 (1980). They wrote the article in response to the "yellow journalism" of the era, particularly after newspapers published stories about the private affairs of the "social elite," of which Warren was a member. The authors suggested that people have a "right to be let alone" in their private affairs. In the mid 1930s, the American Law Institute acknowledged the need for such a cause of action:

A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.

4 Restatement of Torts § 867 (1939). Some of the examples offered in the comments to § 867 illustrate the initial scope of this action:

2. A, as an advertisement for a baby food, publishes a picture of B, a mother nursing her child, without B's consent. B has a cause of action against A.

3. From a skylight in an operating room in a hospital, A takes moving pictures of an abdominal operation performed upon B, a woman. A shows these pictures publicly. B has a cause of action against A.

4 Restatement of Torts § 867, Illustrations, at 461. Then, in 1960, Prosser suggested that the single tort for "invasion of privacy" was actually four distinct torts:

What has emerged from the decisions is no simple matter. It is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, "to be let alone." Without any attempt to exact definition, these four torts may be described as follows:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

It should be obvious at once that these four types of invasion may be subject, in some respects at least, to different rules; and that when what is said as to any one of them is carried over to another, it may not be at all applicable, and confusion may follow.

Prosser, Privacy, 48 Calif.L.Rev. 382, 389 (1960). In their second restatement, the A.L.I. adopted Prosser's classification. Restatement (Second) of Torts 652A. ⁴ It might be noted, however, that a number of commentators question Prosser's attempt to organize the law into four distinct "factual" categories. See e.g., L. Eldredge, The Law of Defamation 301 n.1 (1978); Blaustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L. Rev. 962 (1964). See also Comment, the Absence of False Light From the Wisconsin Privacy Statute, 66 Marq.L.Rev. 99, 105 n.46 (1982).

Since the early twentieth century, Missouri has recognized a cause of action for an "invasion of privacy." Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076 (1911). In Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942), this Court acknowledged the general "right of privacy" not to have certain private affairs made public--the tort urged by Warren and Brandeis and subsequently adopted by the A.L.I. There, the Court quoted approvingly from both the Harvard Law Review article and § 867 of 4 Restatement of Torts. The Court, however, cautioned that the "right to be let alone" was subject to a common law privilege permitting the publication of matters of public interest. Elsewhere in the opinion, the Court added that the right to privacy involved true statements, while "[r]ecovery for untrue statements should be on the libel count." Barber v. Time, Inc., supra, 159 S.W.2d at 296. See also Langworthy v. Pulitzer Publishing Co., 368 S.W.2d 385 (Mo.1963). In addition to recognizing the particular invasion of privacy for the publication of private matters, other cases suggest that an invasion of privacy occurs when one unreasonably intrudes upon the...