Wayment v. Clear Channel Broadcasting, Inc.

• Decision Date: 15 April 2005
• Docket Number: No. 20030854.,20030854.
• Citation: 2005 UT 25,116 P.3d 271
• Parties: Holly WAYMENT, Plaintiff and Appellant, v. CLEAR CHANNEL BROADCASTING, INC., a Texas corporation dba KTVX Channel 4, and Jon Fischer, and Patrick Benedict, individuals, Defendants and Appellees.
• Court: Utah Supreme Court

116 P.3d 271

2005 UT 25

Holly WAYMENT, Plaintiff and Appellant, v. CLEAR CHANNEL BROADCASTING, INC., a Texas corporation dba KTVX Channel 4, and Jon Fischer, and Patrick Benedict, individuals, Defendants and Appellees.

No. 20030854.

Supreme Court of Utah.

April 15, 2005.

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Elizabeth King Burgess, Don L. Davis, Robert C. Alden, Derek L. Davis, Salt Lake City, for plaintiff.

Randy L. Dryer, Sean D. Reyes, Salt Lake City, for defendants.

DURHAM, Chief Justice:

¶ 1 This case concerns a defamation claim brought by a reporter against her former employer, the owner of a local television station, regarding statements allegedly made about the reasons for her departure from the company. In reviewing the order of the district court, which granted summary judgment to the employer, we must decide whether the reporter qualifies as a "public figure," entitling her employer to heightened First Amendment protection with regard to the allegedly defamatory statements about her. We must also determine whether the reporter submitted sufficient evidence on summary judgment that the employer actually made any of these statements. In addition, the employer raises the qualified privilege accorded employer-employee communications as an alternative ground for affirmance.

¶ 2 We hold that the reporter does not qualify as a public figure under the circumstances of this case. We affirm summary judgment for the employer with respect to the statements allegedly made by one of its agents, Jon Fischer. However, we reverse and remand with respect to the statements allegedly made by another of its agents, Patrick Benedict.

BACKGROUND

¶ 3 When reviewing a district court's grant of summary judgment, "we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party," here, the plaintiff. Nyman v. Anchor Dev., L.L.C., 2003 UT 27, ¶ 7, 73 P.3d 357. We recite the facts of this case accordingly.

¶ 4 Plaintiff Holly Wayment (Wayment) began working as a health reporter for a local television station, KTVX Channel 4, in Salt Lake City, Utah, on April 12, 1999. She originally signed a two-year written contract, which was extended until January 1, 2002. After that date, the written contract expired, but Wayment continued working at KTVX as an at-will employee.

¶ 5 At the time Wayment was hired, KTVX was owned by United Television, Inc. In October 2001, the station was acquired by Clear Channel Broadcasting, Inc. Jon Fischer (Fischer) became the KTVX news director and Wayment's direct boss. Patrick Benedict (Benedict) was hired as the assistant news director and began work on May 1, 2002.

¶ 6 Wayment's job as KTVX health reporter involved giving on-air reports, between one and four minutes in length, on local or national health matters at least five days a week. Wayment also appeared in KTVX special reports on such topics as colon cancer, medical breakthroughs, summer safety, the AirMed helicopter ambulance, breast cancer awareness, and sleep anxiety. In 2001, she appeared in a half-hour special entitled, "The Truth About Tobacco." On at least one occasion, Wayment reported live from the Utah AIDS Foundation's local Oscar Night Gala during KTVX's evening newscast following the national Academy Awards broadcast. At least sixty-three of Wayment's stories mentioned the Huntsman Cancer Institute or its employees. During Wayment's employment, KTVX promoted her reports in fifteen- and thirty-second commercials.

¶ 7 In addition to her reporting activities, Wayment served on the board of directors of the local nonprofit organization Candlelighters for Childhood Cancer in 2001, participated in the Race for the Cure breast cancer research fundraiser in 2000 and 2001, spoke at the March of Dimes WalkAmerica fundraiser in 2001, and acted as Master of Ceremonies for the Utah Diabetes Center Gala in 2002.

¶ 8 Early in her employment with KTVX, after doing a story about a four-year-old girl with ovarian cancer, Wayment developed a relationship with the girl and her family. As a result, while the family was in Salt Lake City periodically for the girl's chemotherapy, Wayment would take the girl "to the ballet, the Sundance Institute, dinners and movies—anything to keep the little girl's mind off her cancer." This experience led Wayment to develop the idea of establishing a "buddy system" in the community, whereby Salt Lake residents would be paired with children being treated for cancer. To this end, she approached Dr. Joseph Yost, Director of the Center for Children at the Huntsman Cancer Institute (Huntsman), whom she knew as a result of her reporting activities. They discussed Wayment's idea informally.

¶ 9 Wayment first told her boss, Fischer, of her "buddy system" idea in early May 2002,¹ indicating that she had already approached Huntsman to suggest that it provide some form of support, and that Huntsman had responded favorably. Fischer reacted to this information with surprise and concern, telling Wayment that her solicitation of support for her project from Huntsman, a health care provider whose activities were at times covered by the media, "created a conflict of interest with her duties as a health reporter." Fischer then called Benedict into his office and asked Wayment to repeat what she had told him about her idea and her contact with Huntsman. Benedict agreed that Wayment's actions could create a "perception for bias," however unjustified. Fischer then told Wayment he would have to discuss this matter with his superiors.

¶ 10 On May 3, Fischer asked Wayment to submit a written statement to him, relating what she had told him. Later that day, Wayment sent Fischer the following e-mail:

As requested, here is more information about my efforts to help kids with cancer. It all began during my first year at ABC4 when, after doing a story on Tarrin, a four-year-old with ovarian cancer, I realized the need was there.

After getting to know her family, I learned that they drove twice a month for six hours up to Salt Lake for Tarrin to get her chemotherapy treatment. However, the family was financially strapped, so when Tarrin was not undergoing treatment they basically sat in their room at the Ronald McDonald House and watched television.

I spent that next year, practically every week, doing an activity with Tarrin and/or her family. I found that many local organizations (i[.]e[.] the Ballet, the Sundance Institute) were eager to give free or low-cost tickets to families with cancer. I covered the cost for events that were not donated (i.e. dinners, movies, transportation). It began as a project to help a little girl keep her mind off her cancer. Then, when her cancer became terminal, it became a project to allow her to have experiences before she died. For example, Tarrin always wanted to be a ballerina. One month before her death, I took her to Ballet West's Nutcracker performance where we sat on the V.I.P. row. Tarrin was able to even go back stage during intermission and meet the prima ballerina.

One month later, I spoke at Tarrin's funeral and vowed I would work to help other children in her situation.

Since that time after much thought, and much feedback from friends, I have wanted to start a program where normal people in the community can help small children and their families battle this horrible disease. To gain experience and insight, I served on the Board of Candlelighters for Childhood Cancer. This is a group of people, who are mostly people who have had children with cancer, who serve as a support group for families. This group, however, does not provide a link to people in the community. Nor, is there an emphasis on activities.

Thus, through my work at ABC 4, I have gotten to know Dr. Joe Yost, the Director of the Center for Children at the Huntsman Cancer Institute. One day when we met for coffee (six months ago), I talked to him about my idea. As a doctor who works closely with children with cancer, he said a big part of getting over the disease is getting your mind off the disease. He loved the idea, and said this is definitely something the Intermountain West needs. He loved the idea so much, he told me the Huntsman Cancer Institute Center For Children would like to be a part of it. He thought the group would be a big benefit to the kids treated there.

Since that time, Dr. Yost and I have talked on and off, and kept in touch through email. Three creative directors at local advertising agencies are volunteering their time to think of a name and logo—so that part of the project is being worked on right now. Some of the names being thought of are WonderKids, and KaliedaKids.

But basically, here's where we are: Huntsman Center For Children has agreed to run the program. A link could be provided on their web site. And, they have a secretary who could field calls. The Center also has nonprofit status with the government, a security screening program in place for volunteers, plus a solid base of volunteers wanting to help out in the community.

We would have most tickets donated for volunteers and families with cancer. But the Center would pay for fees not covered. An example of this would be covering the cost of a bus to take a group of children, volunteers, and a nurse to a play. Doctor Yost and I discussed that the fees the Center would cover would be minimal. The rest is based on donation and volunteer work. Hence, we also discussed that in no way does the Huntsman Cancer Institute expect special treatment from me because of my volunteer work with this group. Also, I do not expect to receive any special treatment from them.

This is simply what I see as a wonderful opportunity to help the thousands of children battling this insidious disease. I feel it is a way I can use my skills as a person, and a "local celebrity" for a good cause.

¶ 11 On May 14, 2002, Fischer informed Wayment that he had...