Opinion
No. 78-1052
Decided December 31, 1980. Rehearing denied March 5, 1981 Certiorari granted June 29, 1981.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
David L. Kofoed, Roger T. Castle, for plaintiffs-appellees.
Dawson, Nagel, Sherman and Howard, Lee Dale, for defendant-appellant.
Division II.
In this libel action, McGraw Hill Broadcasting Company, Inc., (McGraw Hill) appeals from a judgment entered upon jury verdicts in favor of plaintiffs. We reverse.
This case involves many of the same legal and factual considerations this Court recently addressed in Burns v. Denver Post, Inc., 43 Colo. App. 325, 606 P.2d 1310 (1979). The chief difference, aside from the party defendant and additional parties plaintiff, lies in the words alleged to be defamatory.
Plaintiffs are the children and ex-wife of a former Denver police sergeant who in 1972 sustained injuries when a bomb he was attempting to disarm exploded. Sergeant and Mrs. Burns had had marital difficulties prior to the accident, and Mrs. Burns had filed for divorce a few months before Sergeant Burns' injuries. Those injuries included partial blindness, the loss of major parts of both hands, and severely diminished hearing. Mrs. Burns was granted a divorce in 1974.
On April 7, 1976, nearly four years after the accident, McGraw Hill, through a news program broadcast on television Channel 7, published a statement which contained language plaintiffs allege to be defamatory. In material part, that publication was as follows:
"[B]omb squad was called out to do its job, take care of an explosive device and keep it from harming any property or individuals. It seemed to be a routine bomb call; the explosive device was found wired to a car. But the bomb squad's experts were confident they could handle it. As the officers went to work, Sgt. Jack Burns was in charge. That was the last bomb he'll ever work on. It exploded . . . taking all of his right hand, parts of his left hand, most of his eyesight and much of his hearing. In addition, his wife and five children have deserted him since the accident. He's not sure he and his family adequately assessed what might be the consequences of an accident on the job with the bomb squad and he advises those interested in a dangerous occupation to do so." (emphasis added)
Mrs. Burns received obscene telephone calls, severe criticism, and a purported loss of business income, all allegedly as a result of the broadcast's use of the word "deserted." In addition, the Burns' children asserted variously that they were subjected to ridicule by their school teachers and classmates, and suffered great embarrassment and emotional distress also in consequence of the broadcast.
On appeal, it is urged that the trial court erred in denying McGraw Hill's motion for a directed verdict. McGraw Hill, relying inter alia on Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979), and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), insists that its use of the word "deserted" in this context is, by virtue of the First Amendment, protected as an expression of opinion. We agree.
In Burns, supra, this Court (quoting Bucher) stated:
"Once a court needs to speculate concerning the meaning the statement purports to convey . . . we enter the area of opinion as opposed to factual assertion."
As we read Burns and Bucher, we may not inquire into what meaning is most naturally or reasonably attributable to a publisher's use of given language. The question, rather, is whether the words used are used in such circumstances and are of such a nature as to admit of only one meaning. Here, we cannot say categorically that the word "deserted," as used in the context of the broadcast at issue, carries solely opprobrious connotations.
Therefore, we conclude that use of the word "deserted" in this context constituted protected expression of opinion. As a result, we are bound by Burns and Bucher to hold that the trial court erred in denying McGraw Hill's motion for directed verdict.
The judgment is reversed.
JUDGE SMITH concurs.
JUDGE RULAND dissents.