Opinion
Case No. 97-1531.
Opinion Released: July 7, 1998. Opinion Filed: July 7, 1998. This opinion will not be published. See Rule 809.23(1)(b)5, Stats.
APPEAL from an order of the circuit court for Milwaukee County: CHRISTOPHER R. FOLEY, Judge. Affirmed.
Before Wedemeyer, P.J., Fine and Curley, JJ.
Bradley K. Bettinger appeals from the trial court's order dismissing his defamation-by-self-publication claim against his former employer, Field Container Company, L.P., and his former superiors at Field Container, Ronald Trojan and Anthony Grassi (collectively Field Container). The trial court determined that Wisconsin does not recognize a cause of action for defamation by self-publication. Bettinger argues that this court should adopt the tort of defamation by self-publication. We affirm the trial court's order dismissing Bettinger's complaint.
I. BACKGROUND
Bettinger worked at Field Container from August of 1993 to May of 1996. Bettinger's complaint alleged that he was fired from Field Container after Trojan and Grassi falsely accused him of committing sexual harassment and creating a hostile working environment. Bettinger's complaint further alleged that he was compelled to repeat those false accusations to prospective employers, his family and "other significant people," and that, as a result of his compelled disclosure of those false accusations, he "was denied employment opportunities and he has suffered irreparable harm to his reputation."
On February 26, 1997, Field Container filed a motion to dismiss Bettinger's complaint for failure to state a claim upon which relief can be granted, arguing that Wisconsin does not recognize a cause of action for defamation by self-publication. The trial court granted the motion, and entered an order dismissing Bettinger's complaint on April 18, 1997.
II. DISCUSSION
In determining whether a complaint states a claim upon which relief can be granted, the facts pleaded must be taken as admitted. See Morgan v. Pennsylvania Gen. Ins. Co. , 87 Wis.2d 723, 731, 275 N.W.2d 660, 664 (1979). The pleadings are to be liberally construed, and "a claim should be dismissed as legally insufficient only if `it is quite clear that under no conditions can the plaintiff recover.'" Id. (quoted source omitted). We review de novo the trial court's decision to dismiss for failure to state a claim. See Heinritz v. Lawrence Univ. , 194 Wis.2d 606, 610, 535 N.W.2d 81, 83 (Ct.App. 1995).
The Wisconsin Supreme Court has recently set forth the elements of a defamatory communication:
(1) a false statement; (2) communicated by speech, conduct or in writing to a person other than the person defamed; and, (3) the communication is unprivileged and tends to harm one's reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her.
Torgerson v. Journal/Sentinel, Inc. , 210 Wis.2d 525, 534, 563 N.W.2d 472, 477 (1997). A defendant's intentional or negligent communication of a defamatory matter to a person other than the one defamed is referred to as publication. See Ranous v. Hughes , 30 Wis.2d 452, 461, 141 N.W.2d 251, 255 (1966).
As noted, Bettinger's complaint alleged that he himself communicated the allegedly defamatory matter to third parties. The trial court held that, because Bettinger failed to allege that Field Container communicated defamatory matter to a third party, his complaint failed to state a claim for defamation.
Indeed, Bettinger has not identified, and our research has not revealed, any Wisconsin case that has recognized a cause of action for defamation when the plaintiff, rather than the defendant, published the defamatory matter. Although not specifically addressing whether, under any circumstances, Wisconsin will recognize a defamation action based on a plaintiff's publication of a defamatory matter, Suick v. Krom , 171 Wis. 254, 177 N.W. 20 (1920), arguably forecloses such an action.
In Suick , the plaintiff was a customer who purchased some items from the defendant's store and then left the store. As the plaintiff was walking outside the store, the defendant came to the door and, in the presence of many others, shouted to the plaintiff, "Do you want to be arrested?" Id. , 171 Wis. at 255, 177 N.W. at 20. The plaintiff inquired, "For what?" Id. The defendant replied, "For stealing that package of silk you have under your arm." Id. Based upon this defamatory communication, the jury returned a verdict for the plaintiff. The defendant appealed, challenging the jury instruction with regard to the assessment of the plaintiff's damages because it improperly "allow[ed] the jury to take into consideration the circulation of the charges among her relatives, friends, and neighbors." Id. , 171 Wis. at 257, 177 N.W. at 21. The supreme court agreed that the instruction was improper, and stated:
There was evidence in the case that the plaintiff herself told a number of her friends of the incident. The charge as given would permit the jury to give consideration to such circulation. Manifestly, defendant should not be responsible for damages resulting from the circulation of the incident by plaintiff, for which reason the charge was erroneous.
Id. , 171 Wis. at 258, 177 N.W. at 21.
In Lehner v. Kelley , 215 Wis. 265, 270-271, 254 N.W. 634, 636 (1934), the supreme court specifically approved Suick v. Krom , 171 Wis. 254, 177 N.W. 20 (1920), for the proposition that "one who utters a slander is not responsible for the unauthorized repetition thereof."
Bettinger argues, nonetheless, that this court should adopt the tort of defamation by self-publication, and permit claims for defamation when the plaintiff is foreseeably compelled to communicate a defendant's defamatory statement to a third party. We decline Bettinger's invitation to adopt a new cause of action; such a task is properly left to the supreme court or the legislature. See Cook v. Cook , 208 Wis.2d 166, 189, 560 N.W.2d 246, 255-256 (1997) ("The supreme court, `unlike the court of appeals, has been designated by the constitution and the legislature as a law-declaring court.'") (citation omitted); Larson v. City of Tomah , 193 Wis.2d 225, 230, 532 N.W.2d 726, 728 (1995) (the function of the court of appeals is to correct errors of law, not to declare new law); Vollmer v. Luety , 156 Wis.2d 1, 14, 456 N.W.2d 797, 803 (1990) (developing and clarifying the law are functions of the supreme court). We therefore affirm the trial court's dismissal of Bettinger's complaint for failure to state a claim upon which relief can be granted. By the Court. — Order affirmed.
Bettinger cites Downs v. Waremart, Inc. , 903 P.2d 888 (Or.Ct.App. 1995), aff'd in part and rev'd in part, 926 P.2d 314 (Or. 1996), and proposes the following elements for a cause of action:
(1) The defendant-employer makes defamatory statements to the plaintiff-employee;
(2) It was reasonably foreseeable to the defendant that plaintiff would be under a strong compulsion to disclose the content of that statement to prospective employers;
(3) The plaintiff, under compulsion, communicates the defamatory statements to prospective employers; and
(4) Because of that communication, the plaintiff was damaged.
Bettinger acknowledges that this "doctrine creates an exception to the general rule that the defamatory statements must be communicated to third parties other than the person defamed." (Emphasis in original.)
Because we conclude that Bettinger's complaint fails to state a claim upon which relief can be granted, we need not address Bettinger's argument that the Worker's Compensation Act does not bar his claim. See Gross v. Hoffman , 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (if a decision on one point disposes of an appeal, the appellate court will not decide the other issues raised).