JANE P. WISEMAN, Presiding Judge.
¶ 1 Roy D. Nelson and Susan E. Ryan appeal from a trial court order granting summary judgment in favor of American Hometown Publishing, Inc., and American Hometown Publishing, Inc., d/b/a Guthrie News Leader. The issue appealed is whether the trial court erred in granting Defendants judgment as a matter of law. This appeal stands submitted pursuant to Supreme Court Rule 1.36, 12 O.S.2011, ch. 15, app.1, without appellate briefing. After de novo review of the record and applicable law, we affirm in part and reverse in part the trial court decision and remand for further proceedings.
¶ 2 On May 17, 2010, Nelson and Ryan (collectively, Plaintiffs) filed a lawsuit against Newspaper Holdings, Inc., d/b/a/ Guthrie News Leader, asserting claims for negligence, libel, and punitive damages arising from publication of an incorrect listing of Plaintiffs' home address as the address of a registered sex offender. Plaintiffs filed an amended petition on June 14, 2010, naming as defendants Newspaper Holdings, Inc., a foreign corporation, d/b/a Guthrie News Leader, American Hometown Publishing, Inc., a foreign corporation, and American Hometown Publishing, Inc., a foreign corporation, d/b/a Guthrie News Leader (collectively, Defendants).
¶ 3 Stating that they live at 9051 West College Avenue, Guthrie, Oklahoma, Plaintiffs allege:
¶ 4 Plaintiffs state they heard gunfire on their property on the day the News Leader published the list of offenders and then throughout that day and into the morning hours of June 15, 2009, they heard cars drive by and people shout things at them. According to Plaintiffs, they live on a rural dirt road and "[t]he amount of traffic that [they] experienced in front of their house for the thirty-six hour period following the publication of the `Sex Offender Issue,' was large compared to usual traffic, and the Plaintiffs interpreted it as threats intended toward a convicted sex offender and they feared for their safety."
¶ 5 Plaintiffs allege Ryan brought the mistake to the attention of the managing editor of the Guthrie News Leader, Belinda Ramsey, on June 15, 2009, the day after the publication. Plaintiffs state, "Later that same day a person named Nixie Goff, purporting to be an employee of the newspaper, called Mrs. Ryan to let her know that it was in fact the newspaper's mistake and not the mistake of the reporting law enforcement agency." Although Ryan demanded the newspaper print a conspicuous correction in the following Sunday edition of the newspaper, the newspaper instead "issued a non-conspicuous correction in the Obituaries Section of the following Wednesday edition, and refused to publish a correction in the following Sunday edition." Plaintiffs further claim the newspaper left the incorrect address on its website until October 31, 2009.
¶ 6 Plaintiffs assert negligence on the part of Defendants in failing to use ordinary care
¶ 7 Defendants sought summary judgment on Plaintiffs' claims. Below are the material facts Defendants list as undisputed in their motion followed by Plaintiffs' responses:
¶ 8 Defendants argue that the article in question "is constitutionally-protected speech on a matter of public concern, and is substantially true and privileged" and Plaintiffs therefore cannot recover under a theory of libel or negligence. They also assert Plaintiffs, as a matter of law, cannot maintain a claim for negligence based on this publication and "cannot maintain a separate cause of action for Punitive Damages."
¶ 9 In response, Plaintiffs set out their own statement of undisputed material facts. Plaintiffs state that in the June 14, 2009, edition of the News Leader, Defendants listed Plaintiffs' address as that of Donald Crown, a registered sex offender. Defendants do not dispute this fact but dispute the other 16 facts recited below that Plaintiffs list as undisputed.
¶ 10 Plaintiffs claim that Defendants admit that the incorrect information was a result of the News Leader's error and not that of the reporting law enforcement agencies. According to Plaintiffs, although Ryan spoke to Ramsey on June 15, 2009, informed her of the error, and asked Ramsey to provide a conspicuous correction, Defendants left the incorrect sex offender edition of the newspaper on its website until October 31, 2009. Plaintiffs claim that someone fired an automatic rifle at or near their residence on the morning of June 14, 2009, and that between the hours of 7:00 p.m., and midnight that day, several vehicles drove past Plaintiffs' residence. Plaintiffs have video evidence of an occupant of a pick-up truck driving past the residence that day yelling, "Pervert." They provided Defendants with video evidence of a white pick-up truck driving by the residence on July 22, 2009, "blaring its horn" and video footage showing a black truck driving by on April 20, 2010, with an occupant yelling, "Freaks." Additional video footage showed someone firing gunshots at or near the residence on August 6, 2010, and August 27, 2010, and a white pick-up blaring its horn on September 17, 2010. Further video footage was provided showing someone breaking out Plaintiffs' lights at the entrance of their property on February 10, 2011, the driver of a red pick-up driving by on July 22, 2011, and extending his middle finger, a black pick-up driving by and blaring its horn on August 9, 2011, the driver of a white pick-up pointing a pistol at the residence on July 21, 2011, and the driver of a silver SUV breaking out the lights at the entrance to Plaintiffs' property on September 15, 2011. Plaintiffs allege they purchased new video surveillance equipment on January 7, 2011.
¶ 11 The trial court granted summary judgment in favor of Defendants by holding that the alleged trespasses, vandalism, and harassment were not caused by errors or omissions of Defendants and that Plaintiffs' damages were the result of intervening causes. It further found that Plaintiffs were not mentioned in the newspaper article and that there was only a mistake of address. The court held "[t]hat as a matter of law the Defendant newspaper getting the address wrong and then issuing a correction in the next publication is not libel per se." The court stated, "That we need matters like this published in the paper." The court further held that "the standard for the Plaintiffs to properly state a claim for punitive damages against the Defendant newspaper is actual malice, and that Plaintiffs did not meet this burden."
¶ 12 Plaintiffs appeal.
¶ 13 Summary judgment is properly granted "when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Davis v. Leitner, 1989 OK 146, ¶ 9,
¶ 14 An appeal from an order granting summary judgment is subject to de novo review. Shull v. Reid, 2011 OK 72, ¶ 3, 258 P.3d 521. "In its re-examination of the trial tribunal's legal rulings an appellate court exercises plenary, independent and nondeferential authority." Bronson Trailers & Trucks v. Newman, 2006 OK 46, ¶ 5, 139 P.3d 885.
¶ 15 Plaintiffs list the following issues to be addressed on appeal: (1) whether the record supported summary judgment, (2) whether summary judgment was premature, (3) whether the trial court erred in finding that Defendants' actions were not libel per se, (4) whether the trial court's conclusion regarding intervening cause was reversible error because that issue was not raised or briefed by either party, (5) whether the trial court's holding regarding the standard for punitive damages was reversible error, and (6) whether the trial court made a statement that indicated bias in favor of the news media. With the exception of the sixth issue, all of the issues raised are comprised within the fundamental question of whether summary judgment was properly granted in Defendants' favor.
¶ 16 Plaintiffs assert claims against Defendants for negligence, libel, and punitive damages. In their negligence claim, they assert Defendants "failed to use ordinary care in confirming, updating, and disseminating registered sex offender information to the public through both their newspaper ... and their website."
¶ 17 After review of the record and pertinent authority, we conclude as a matter of law that Plaintiffs cannot state a separate claim of negligence against Defendants. We agree with Defendants, as stated in their motion for summary judgment and supporting brief, that "`[n]egligence' is the standard of fault that a private figure plaintiff must ultimately prove in a libel case that goes to trial, but `negligence' is not an independent tort theory based on publication of a newspaper article."
¶ 18 In support of their argument, Defendants cite Jordan v. World Publishing Company, 1994 OK CIV APP 30, 872 P.2d 946, in which the principal of a public school brought suit against a newspaper for negligence after the newspaper printed a letter to the editor that the plaintiff claimed the newspaper falsely attributed to the principal. The principal, a public figure, sought to recover against the newspaper for negligence in publishing the letter with its false attribution and for negligent infliction of emotional distress; he did not plead actual malice after being given an opportunity to amend his petition. The newspaper argued that the nature of the action was for libel, or false light invasion of privacy, both of which require a finding of malice before liability could attach against a newspaper for damages to a public figure. Id. ¶ 8. The trial court agreed and dismissed the action. Id. ¶ 4.
¶ 19 On appeal, this Court held that because the substance of the plaintiff's claim was a false publication and he was without dispute a public figure, the plaintiff was constitutionally required in a libel action like this to plead and prove actual malice. Id. ¶ 14. The Court further noted that, pursuant to Colbert v. World Publishing Co., 1987 OK 116, 747 P.2d 286, "a plaintiff in false light privacy cases must plead and prove actual malice." Id. ¶ 9. The Jordan Court found its case very similar to "Decker v. Princeton Packet, 116 N.J. 418, 561 A.2d 1122 (1989)" in which the New Jersey Court held that "`the first amendment requires that plaintiff establish at least the same level of intent to recover for the infliction of emotional harm as is necessary to find defamation.'" Jordan, 1994 OK CIV APP 30, ¶ 11, 872 P.2d 946.
¶ 20 We decline to follow Jordan in all aspects because Plaintiffs here are clearly private persons and not subject to the same strictures of pleading and proof as a public figure like Jordan. But we concur with the underlying premise in Jordan that when the
¶ 21 Other cases have concluded that a plaintiff could not recast a defamation claim as a different tort claim. See e.g., Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶ 33, 256 P.3d 1021 (agreeing with Jordan "that one cannot circumvent the First Amendment by the label with which the suit is described") and Stewart v. KFOR-TV, 2006 WL 517656 (W.D.Okla.2006)(citing Jordan and concluding the plaintiff could not rely on the same set of facts to recast a defamation claim as a negligence claim).
¶ 22 Because Plaintiffs' allegations of wrongdoing under any theory of recovery involve the gathering and dissemination of information in Defendants' newspaper and on their website, Plaintiffs' negligence claim is not viable as a separate claim. The entry of summary judgment on this question is affirmed. However, this does not preclude Plaintiffs' defamation claim arising from the same allegations of fact.
¶ 23 In their claim for libel, Plaintiffs assert that Defendants "failed to use ordinary care of those similarly engaged in print and electronic media in confirming, updating, and disseminating registered sex offender information to the public through both their newspaper ... and their website." They allege Defendants "disseminated a false claim that the Plaintiffs' address was that of a registered sex offender."
¶ 24 For a private figure to state a claim for defamation, he or she must show:
White v. City of Del City, 2012 OK CIV APP 5, ¶ 21, 270 P.3d 205 (quoting Tanique, Inc. v. State ex rel. Okla. Bureau of Narcotics and Dangerous Drugs, 2004 OK CIV APP 73, ¶ 29, 99 P.3d 1209). It is undisputed that the statement in question was false and that it was published to third parties. Whether it was defamatory to Plaintiffs, whether it was privileged, and what standard of conduct applies to Defendants in this situation remain questions requiring discussion.
¶ 25 "A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Herbert v. Oklahoma Christian Coal., 1999 OK 90, n. 4, 992 P.2d 322. Plaintiffs submitted evidence that they suffered harassment, abuse, and property damage from the public after the publication of their address as that of a sex offender. They allege that the harassment and damage were the result of the perpetrators believing that a sex offender lived in their home. Whether the harassment and vandalism resulted from the publication of their address as that of a sex offender is a question of fact.
¶ 26 "In order for a false statement to be defamatory, it must concern the plaintiff." Gonzalez v. Sessom, 2006 OK CIV APP 61, ¶ 12, 137 P.3d 1245. "A defamatory communication concerns the plaintiff if the recipient either correctly, or mistakenly but reasonably, understands that it was intended to refer to the plaintiff." Id. (citing Restatement (Second) of Torts § 564 (1977)). Section 564 of the Restatement (Second) of Torts provides, "A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer." Comment b. to § 564 provides, in part, the following:
(Emphasis added.)
¶ 27 Comment f. provides:
(Emphasis added).
¶ 28 Here, Defendants printed Plaintiffs' address as the address of a sex offender, and they contend that publication of Plaintiffs' address was a typographical error.
¶ 29 We conclude that Plaintiffs have shown that the communication in the newspaper that a sex offender lived at Plaintiffs' address could reasonably be understood by a recipient to refer to Plaintiffs, either as the sex offender himself in the case of Nelson or as someone housing or residing with a sex offender in the case of Ryan, and further
¶ 30 The News Leader's reference to Plaintiffs' home could also reasonably be regarded as a defamatory statement "concerning" Plaintiffs. For example, in Michaels v. Gannett Co., 10 A.D.2d 417, 199 N.Y.S.2d 778 (N.Y.App.Div.1960), a newspaper article identified the plaintiff as living at his correct address but incorrectly stated that he owed $133,239.88 in unpaid taxes. Id. at 779-80. The court stated, "A jury would have been justified in finding that the article tended to expose the person to whom it referred to `hatred, contempt or aversion,' or that it tended `to induce an evil or unsavory opinion of him in the minds of a substantial number of the community.'" Id. at 780. The court found that it was immaterial that the newspaper did not intend to refer to the plaintiff or that the newspaper's publication of the plaintiff's address was a mistake. Id. at 780.
¶ 31 In Fitzpatrick v. Age-Herald Publishing Company, 184 Ala. 510, 63 So. 980, 980 (1913), the Supreme Court of Alabama addressed whether the following statement in a newspaper constituted libel: "`The shooting occurred on Avenue E, between Eleventh and Twelfth streets, in a house which bears a bad reputation with the police.'" The plaintiff, who lived in the house identified by the article, alleged that he was greatly humiliated by the article and that his reputation was greatly impaired. Id. One question before the Court was whether the statement constituted libel of the plaintiff or of the house where he resided. Id. The Court answered this question with the following:
Id. at 981 (emphasis added). The Court concluded "that the publication in question was `of and concerning' the plaintiff, who resided in the house in question." Id. The Court also stated:
Id. at 982.
¶ 32 Although these cases from other jurisdictions are not controlling, they offer insight into how reference to an address can reflect negatively on the owner or occupant of that address. We are persuaded that Plaintiffs have raised sufficient questions of fact on which "reasonable persons might reach different inferences or conclusions," Buck's Sporting Goods, Inc. of Tulsa v. First National Bank & Trust Co. of Tulsa, 1994 OK 14, ¶ 11, 868 P.2d 693, as to whether the statement was of and concerning Plaintiffs and therefore defamatory.
¶ 33 Defendants next assert that the publication was protected by both statutory and common law privilege. The trial court found "[t]hat we need matters like this published in the paper," a statement appearing to invoke the concept of privilege afforded to published statements involving matters of legitimate public interest.
¶ 34 "Fair comment is a common law defense to a defamation action. The principle affords legal immunity for comment by any and all members of the public and extends to virtually all matters of legitimate public interest. Its purpose is to promote the free and open exchange of ideas." Magnusson v. New York Times Co., 2004 OK 53, ¶ 9, 98 P.3d 1070. In Magnusson, the Oklahoma Supreme Court said:
Id. ¶ 10. The Court applied the common law defense of fair comment to a statement representing "the actual opinion of the speaker" on a matter of public concern. Id. ¶ 11. If a statement about an individual can be proven true or false, it is not an opinion. Id. ¶ 13. The sex offender information published by the News Leader here was not a statement or expression of opinion, and cannot be reasonably construed as such, and the fair comment privilege therefore does not apply.
¶ 35 As to the common law fair report privilege, the Oklahoma Supreme Court in Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, ¶ 8, 873 P.2d 983, explained as follows:
¶ 36 Although the information in the present article apparently came from law enforcement sources, it is not clear whether this publication constitutes a report of an official action, proceeding or meeting. As stated above in Wright, the applicability of the fair report privilege depends on "the nature of the occasion at which the republished material was secured for news coverage."
¶ 37 If we assume the published information is of public concern and could be said to have resulted from judicial or other official proceedings and therefore constitutes "a report" subject to the fair report privilege, the question of whether the report was fair, accurate and complete remains a fact question to be determined. Stewart v. NYT Broadcast Holdings, LLC, 2010 OK CIV APP 89, ¶ 19, 240 P.3d 722 ("Whether the reports were substantially accurate presented a question for the jury to determine.").
¶ 38 Defendants also argue that the publication is protected by either the statutory "fair report" or the "fair comment" privilege provided by 12 O.S. § 1443.1.
¶ 39 As to the element of Defendants' conduct, Plaintiffs, to establish their claim for defamation as private persons, must also prove fault on the part of the publisher at least amounting to negligence. In Malson v. Palmer Broadcasting Group, 1997 OK 42, ¶ 9, 936 P.2d 940, the Oklahoma Supreme Court reiterated "that the news media must exercise ordinary care in reporting news stories concerning private individuals." Ordinary care is "`that degree of care which ordinarily prudent persons engaged in the same kind of business usually exercise under similar circumstances.'" Id. (quoting Martin v. Griffin Television, Inc., 1976 OK 13, ¶ 23, 549 P.2d 85). A "`failure to exercise such ordinary care would be negligence.'" Id.
¶ 40 It is not disputed that the News Leader made an error in the publication of the sex offender information as it pertains to Plaintiffs. But whether the News Leader exercised ordinary care in its publication of this information cannot be settled as a matter of law. "[T]he best evidence of ordinary [] care is the degree of care which ordinarily prudent persons, engaged in the same kind of business, customarily have exercised and commonly do exercise under similar circumstances." Malson, 1997 OK 42, ¶ 10, 936 P.2d 940. Plaintiffs are entitled to present evidence on this question to the trier of fact to show that the News Leader failed to exercise ordinary care in these circumstances. The exercise of ordinary care may be established by evidence of the custom and practice in the print media or newspaper business. Id. "The degree of care that an ordinary person should exercise in a given situation normally presents an issue for the jury." Id. ¶ 12. Because facts remain in dispute about whether ordinary care was exercised under the circumstances, we conclude the trial court's grant of summary judgment in favor of Defendants on Plaintiffs' defamation claim cannot be sustained.
¶ 41 There are several remaining issues raised by Plaintiffs on appeal regarding
12 O.S.2011 § 1441. "A publication is libelous per se (when the defamatory impact is apparent on its face) if it `exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation....'" Gaylord Entm't Co. v. Thompson, 1998 OK 30, ¶ 35, 958 P.2d 128 (quoting 12 O.S.1991 § 1441). "To determine whether a publication is libelous per se, the writing must be measured by its natural and probable effect upon the mind of the average lay reader." Id. ¶ 35.
¶ 42 Unlike libel per se where the publication is susceptible only to a defamatory meaning, a "publication is deemed libelous per quod if the words are reasonably susceptible of both a defamatory and an innocent meaning," meaning that extrinsic facts are required to show a defamatory meaning. Id. ¶ 35. "Whether a writing is libelous per se presents an issue of law for the trial court's resolution." Id. "A fact determination, if necessary to decide whether a publication is libelous per quod, is for the jury." Id.
¶ 43 The trial court here held that "as a matter of law the Defendant newspaper getting the address wrong and then issuing a correction in the next publication is not libel per se." Based on the nature of the publication here and the standard to be applied in ascertaining whether it is libelous per se, this conclusion cannot as a matter of law be upheld. One could reasonably conclude that the impact of the publication of Plaintiffs' address as that of a convicted sex offender is apparent on its face and susceptible of but one opprobrious meaning, can be "measured by its natural and probable effect upon the mind of the average lay reader," Id. ¶ 35, and could expose Plaintiffs to public hatred or contempt. Whether it is susceptible of a different, innocent meaning is an issue for the trial court. If otherwise found actionable after consideration of the elements discussed above,
¶ 44 On the question of punitive damages, Plaintiffs stated in their response and objection to the motion for summary judgment, "if there is no finding of liability against the Defendant, then punitive damages will not stand as a separate cause of action." Plaintiffs are correct that punitive damages do not constitute a separate cause of action, but not for the reason argued — this conclusion is not dependent on a finding of "no liability." Punitive damages, like compensatory damages, do not stand alone as a separate cause of action; they constitute an element of damage subject to proof in connection with Plaintiffs' cause of action for libel.
¶ 45 Although punitive damages do not constitute a separate cause of action, this does not preclude Plaintiffs from seeking their recovery subject to appropriate supporting evidence and proper instructions.
¶ 46 It is conceded that Plaintiffs are not public figures but private persons. Pursuant to Martin v. Griffin Television, Inc., 1976 OK 13, ¶ 28, 549 P.2d 85, the standard of actual malice is to be applied for the recovery of punitive damages where the defamed party is a private person. The actual malice standard requires the defendant to have acted with knowledge that the publication was false, or with reckless disregard for whether it was false.
¶ 47 Because we reverse the summary judgment entered on Plaintiffs' libel claim, the issue of punitive damages with its requisite burden of proof in regard to a libel claim by private persons must be revisited on remand.
¶ 48 Finally, Plaintiffs cite two provisions of the Code of Judicial Conduct which they contend the trial court violated. Rule 2.2 of the Code of Judicial Conduct, 5 O.S. 2011, ch. 1, app. 4, provides, "A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially." Rule 2.4 of the Code of Judicial Conduct, 5 O.S.2011, ch. 1, app. 4, provides:
Plaintiffs ask this Court to resolve the issue of "[w]hether the District Judge's statement that both he and his son were Journalism Majors prior to the initiation of the proceedings... was an indication or manifestation of bias in favor of the news media" in violation of the Code of Judicial Conduct. We decline to find that this statement alone regarding a college major indicates bias in favor of the news media.
¶ 49 Although we conclude that Plaintiffs cannot assert a separate cause of action for negligence arising from this publication, we further conclude that material issues of fact remain that preclude the entry of judgment as a matter law in favor of Defendants on Plaintiffs' libel claim. Accordingly, we affirm in part and reverse in part the order of the trial court granting summary judgment and remand the case for further proceedings on Plaintiffs' libel claim consistent with this Opinion.
¶ 50
BARNES, C.J., and THORNBRUGH J. (sitting by designation), concur.
White v. City of Del City, 2012 OK CIV APP 5, ¶ 21, 270 P.3d 205 (quoting Tanique, Inc. v. State ex rel. Okla. Bureau of Narcotics and Dangerous Drugs, 2004 OK CIV APP 73, ¶ 29, 99 P.3d 1209).
