Upchurch v. New York Times Co.

• Decision Date: 09 March 1993
• Docket Number: No. 23845,23845
• Citation: 431 S.E.2d 558,314 S.C. 531
• Court: South Carolina Supreme Court
• Parties: , 21 Media L. Rep. 1568 Freda UPCHURCH, Jimmy Upchurch, Kevin Upchurch, Chase Upchurch, Dee Dee Upchurch Allen, and Michelle Upchurch Wood, Appellants, v. The NEW YORK TIMES COMPANY, d/b/a Spartanburg Herald, and Ralph Grier, Respondents. . Heard

Page 558

431 S.E.2d 558

314 S.C. 531, 21 Media L. Rep. 1568

Freda UPCHURCH, Jimmy Upchurch, Kevin Upchurch, Chase Upchurch, Dee Dee Upchurch Allen, and Michelle Upchurch Wood, Appellants, v. The NEW YORK TIMES COMPANY, d/b/a Spartanburg Herald, and Ralph Grier, Respondents.

No. 23845.

Supreme Court of South Carolina.

Heard March 9, 1993.

Decided May 3, 1993.

Wade S. Weatherford, III, of Gaffney, and J. Bruce Foster, Spartanburg, for appellants.

Carl F. Muller and Wallace K. Lightsey, both of Wyche, Burgess, Freeman & Parham, Greenville, and Deborah R. Linfield, of The New York Times Co., New York, for respondents.

HARWELL, Chief Justice:

This is an action for intentional infliction of emotional distress. Appellants Freda Upchurch, Jimmy Upchurch, Kevin Upchurch, Chase Upchurch, Dee Dee Upchurch Allen, and Michelle Upchurch Woods appeal a directed verdict in favor of respondents The New York Times Company, d/b/a Spartanburg Herald, and Ralph Grier, a reporter for the Spartanburg Herald. We affirm.

I. FACTS ¹

On August 18, 1986, Bodie Upchurch, the son and brother of appellants, was lifting weights at the Gaffney YMCA. He began feeling unwell and decided to discontinue his workout. A short while later, while Bodie was driving home, he collapsed and died. He was twenty-three years old and in apparent good health.

The next morning, an autopsy to determine the cause of death commenced in the presence of two law enforcement officers from the Gaffney Police Department. A white, powdery substance was detected in Bodie's nostrils during the initial examination of his body. A swab of the substance was forwarded to State Law Enforcement Division (SLED) for analysis to determine whether the substance was cocaine. The law enforcement officers reported the discovery of the white, powdery substance to their chief of police, who cautioned them to divulge nothing about the discovery to anyone until the results of the SLED analysis revealed the identity of the substance.

Despite official secrecy regarding the discovery of the white, powdery substance, rumors quickly began circulating in the community that cocaine was implicated in Bodie's death. Soon respondents were seeking official confirmation that law enforcement suspected the white, powdery substance to be cocaine. Law enforcement refused to comment regarding the cause of Bodie's death. The request for a drug screen prepared by the coroner and forwarded to SLED was not in the possession of respondents, and there is no evidence that respondents were aware of the existence of the request. An alternative explanation was inferable that the white, powdery substance in Bodie's nostrils was chalk or talc used by Bodie when he was lifting weights. Nevertheless, respondents published a front page article and Bodie's picture under a banner headline exclaiming "Cocaine Suspected In Death." The same day the article was published, SLED toxicology reports came back negative as to the presence of cocaine. In fact, Bodie died of an obstruction of blood to his heart resulting from previously undiagnosed coronary atherosclerosis.

Appellants brought this action for intentional infliction of emotional distress, alleging that the newspaper article contained false information that law enforcement suspected cocaine was involved in Bodie's death, that respondents knew or should have known that the statements contained in the article were false, and that their publishing the article constituted outrageous conduct entitling appellants to recover for the emotional harm they had suffered as a result of reading the article. At the conclusion of a jury trial, the trial judge directed a verdict in favor of respondents on the grounds that the statements contained in the article were substantially true at the time of publication. According to the trial judge, an article which truthfully reports a matter of public concern is protected under the free press guarantees of the First Amendment, and, as a result, cannot be considered to be such extreme and outrageous conduct so as to constitute intentional infliction of emotional distress.

II. DISCUSSION

Appellants contend that the trial judge erred in directing a verdict for respondents. We disagree.

As an initial matter, we find respondents' reliance on substantial truth as a defense to the tort of intentional infliction of emotional distress to be misplaced. This defense is applicable in defamation actions. See, e.g., Capps v. Watts, 271 S.C 276, 246 S.E.2d 606 (1978); see also Holtzscheiter v. Thomson Newspapers, Inc., 306 S.C. 297, 411 S.E.2d 664, 671 (1991) (Toal, J., dissenting) (in an invasion of privacy claim, whether a news statement was "substantially true" is of no consequence). Moreover, we disagree with the trial judge that respondents' allegedly tortious acts are shielded simply by virtue of the protections guaranteed the press by the First Amendment. The publisher of a newspaper has no special immunity from the application of general laws, and he has no special privilege to invade the rights and liberties of others. Nicholson v. McClatchy Newspapers, 177 Cal.App.3d 509, 223 Cal.Rptr. 58 (1986) (quoting The Associated Press v. Nat. Labor Rel. Bd., 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937)). Thus, the fact that respondents' speech may be constitutionally privileged does not automatically protect them from private action. See The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (action for invasion of privacy). However, when a newspaper (1) lawfully obtains (2) truthful information about (3) a matter of public significance, liability may be imposed only if it serves a need to further a state interest of the highest order. Id. at 536-37, 109 S.Ct. at 2610-11, 105 L.Ed.2d at 457. If the test articulated in Florida Star is not met, torts committed by the press are actionable more readily, particularly when a private party is involved. See, e.g., Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 232 Cal.Rptr. 668 (1986) (television crew's alarming absence of sensitivity and civility in filming and broadcasting last moments of dying man's life without regard to the decedent's wife's subsequent protestations presented a question for the jury as to the wife's cause of action for intentional infliction of emotional distress); Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir.1971) (First Amendment does not give publication license to intrude into a home simply because the person subjected to intrusion reasonably is suspected of committing a crime).

Accordingly, a correct analysis of respondents' liability to appellants would have addressed the threshold inquiry under Florida Star. We perceive that we need not review the facts under Florida Star in order to determine whether to uphold the directed verdict, however. We find that we must affirm the trial judge because appellants possess no basis upon which to assert a cause of action for intentional infliction of emotional distress.

The tort of intentional infliction of emotional distress arises when one by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. Ford v. Hutson, 276 S.C. 157, 162, 276 S.E.2d 776, 778 (1981) (quoting Restatement (Second) of Torts § 46 (1965)). In order to recover for the intentional infliction of emotional distress, a plaintiff must establish that (1) the defendant intentionally or recklessly inflicted severe emotional distress, or was certain or substantially certain that such distress would result from his conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it. Id.

The law limits claims of intentional infliction of emotional distress to egregious conduct toward a plaintiff proximately caused by a defendant. Christensen v. Superior Court, 54 Cal.3d 868, 820 P.2d 181, 2 Cal.Rptr.2d 79 (1991). It is not enough that the conduct is intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware. Id. at 903, 820 P.2d at 202, 2...