Summary
holding that party accepting remittitur under protest may cross-appeal when party who benefits appeals for other reasons
Summary of this case from Brault v. FlynnOpinion
No. 81SC121
Decided February 22, 1983.
Certiorari to the Colorado Court of Appeals.
David L. Kofoed, Roger T. Castle, for petitioners.
Sherman Howard, Lee Dale, for respondent.
En Banc.
An appeal was taken from a jury verdict in favor of the plaintiffs in a defamation action. The court of appeals reversed, 632 P.2d 280 (Colo.App. 1980), and we granted certiorari. We reverse the court of appeals and return this case to the court of appeals with directions to remand to the district court for proceedings in accordance with the views set forth in this opinion.
I. [2] Facts
On July 4, 1972, Sergeant Jack Burns of the Denver Police Department Bomb Squad was severely injured when a bomb which he was attempting to disarm exploded. Sergeant Burns lost the major parts of both hands, suffered a loss of hearing and partial blindness.
Sergeant Burns and his wife, Yvonne Burns, had experienced marital difficulties, and Mrs. Burns filed for divorce several months prior to the explosion. The couple reconciled shortly before the accident and remained together for some time after the accident while Mrs. Burns cared for her injured husband. However, in 1974, two years after the accident, Mrs. Burns sought and was granted a divorce.
On April 7, 1976, the respondent, McGraw-Hill Broadcasting Co., aired a program entitled "dangerous occupations" on its local affiliate, KMGH-TV. The program was broadcasted as a part of the 5:00 P.M. news and contained a report on the misfortunes of Sergeant Burns. The reporter, Marion Brewer, broadcasted a story which contained the following language:
"[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.) The statement referring to Mrs. Burns and the five children was deleted from the station's 10:00 P.M. broadcast of the story.
Mrs. Burns filed a defamation and invasion of privacy action against McGraw-Hill, alleging that the use of the word "deserted" in the broadcast was defamatory and caused her and her children to suffer damages to their reputation and to be held up to hate, contempt, and ridicule in their community.
The jury returned a general verdict awarding the petitioners a total of $175,000 — $75,000 for Mrs. Burns and $25,000 for each of the four children. After the verdict was announced, McGraw-Hill filed motions for a directed verdict, new trial, and judgment notwithstanding the verdict. The trial court denied the motions but ordered that the petitioners accept a remittitur reducing the award to $25,000 for Mrs. Burns and to $5,000 for each of the children or face a new trial. The petitioners accepted the remittitur "under protest" as a method for contesting the validity of the trial court's order. McGraw-Hill appealed the remitted judgments and petitioners cross-appealed the order of remittitur.
II. [10] Remittitur A. [11] Appealability
The petitioners accepted the trial court's remittitur "under protest" and argue that they should be able to cross-appeal a remittitur if the other party appeals the final judgment. The traditional rule is that a party who elects to accept a remittitur may not appeal the propriety of the trial court's order. Colorado City v. Liafe, 28 Colo. 468, 65 P. 630 (1901). The rationale is that a party who is satisfied with a judgment should not be allowed to perfect a no-risk appeal and that a party who in fact disputes the remittitur may seek a retrial and thereafter appeal. If the party receives a favorable verdict on retrial, the necessity of appeal is eliminated, and judicial time and resources are not wasted.
We agree that the direct appeal of a remittitur by a party who accepts the trial court's offer is not appealable. However, we conclude that a party who accepts a remittitur under protest may cross-appeal the order when the party who benefits from it appeals for different reasons.
The federal courts have on occasion permitted direct appeals of an order granting a remittitur. See, e.g., Bonn v. Puerto Rico International Airlines, Inc., 518 F.2d 89 (1st Cir. 1975); United States v. 1160.96 Acres of Land, 432 F.2d 910 (5th Cir. 1970); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970); Steinberg v. Indemnity Insurance Co. of North America, 364 F.2d 266 (5th Cir. 1966); Delta Engineering Corp. v. Scott, 322 F.2d 11 (5th Cir. 1963). The rationale of the federal courts is that the remittitur is sufficiently adverse to the appellant to warrant appeal and that judicial resources would be more efficiently utilized by allowing appellate review of the order at the earliest possible time. See Note, Appealability of Judgments Entered Pursuant to Remittitur in Federal Courts, 1975 Duke L.J. 1150. However, the United States Supreme Court held in Donovan v. Penn Shipping Co., 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977) (per curiam), that a party may not appeal a remittitur order he has accepted in federal courts.
Some states allow appeal of remittiturs by statute or by rule. See, e.g., Neb. Rev. Stat. § 25-1929 (1979); Tenn. Code Ann. § 20-10-102 (1980 Repl. Vol. 4); Tex. R. Civ. P. 328. In Mulkerin v. Somerset Tire Service, Inc., 110 N.J. Super. 173, 264 A.2d 748 (1970), the New Jersey Supreme Court adopted the rule that a plaintiff may cross-appeal a remittitur which has been accepted. The court reasoned that if the traditional rule was to conserve judicial resources and to encourage finality of judgments, these policy arguments would be frustrated if the case were appealed by the other party. The Wisconsin Supreme Court declared that it would be unfair to allow a defendant who receives the benefit of remittitur to also have the sole opportunity to appeal all issues without the risk that the original verdict might be reinstated. Plesko v. Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130 (1963). See generally Note, Remitting Parties' Right to Cross-Appeal, 49 N.C.L. Rev. 141 (1970).
In our view, cross-appeals of remittiturs should be permitted when the party for whom the remittitur was granted appeals on other grounds. The reasons supporting the traditional rule are not present when the plaintiff is forced into the position of responding to an appeal by the defendant. Judicial economy is best achieved by reviewing the remittitur judgment at the same time other issues in the case are resolved. A new trial may be completely avoided if the trial court's order is found erroneous and the original verdict is reinstated. Moreover, such a rule encourages the defendant to pursue only meritorious appeals because of the chance that the appellate court may reinstate the original verdict while ruling against the appellant on all other issues.
B. [17] Amount of Verdict
The rule in Colorado is that a "verdict in a personal injury case is not to be set aside unless the damages awarded are grossly and manifestly excessive, or, on the other hand, are grossly and manifestly inadequate." Gibbons v. Choury, 169 Colo. 267, 269, 455 P.2d 649, 650 (1969); Odell v. Public Service Co., 158 Colo. 404, 407 P.2d 330 (1965); C.R.C.P. 59(a)(5). Likewise, in a defamation case, we will not set aside the jury's determination of damages unless the damages are "so outrageous as to strike everyone with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted with prejudice, partiality or corruption." Riss Co. v. Anderson, 108 Colo. 78, 85, 114 P.2d 278, 281 (1941); Tunnel Mining and Leasing Co. v. Cooper, 50 Colo. 390, 115 P. 901 (1911).
In a case where general damages are granted, a new trial and not remittitur is the proper remedy if passion and prejudice have affected the verdict. Tunnel Mining and Leasing Co. v. Cooper, supra; Davis Iron Works Co. v. White, 31 Colo. 82, 71 P.2d 384 (1903); Hartford Fire Insurance Co. v. Kolar, 30 Colo. App. 1, 488 P.2d 1114 (1971). The jury's award can be reduced only if it is found to be excessive and unjust. Mayer v. Sampson 157 Colo. 278, 402 P.2d 185 (1965); Riss Co. v. Anderson, supra. As we said in Marks v. District Court, 643 P.2d 741, 744 (Colo. 1982), "where the trial judge has made a finding that the excessive jury verdict resulted from bias, prejudice, and passion, firmly established precedent requires that a new trial on all issues be granted." That rule is premised on the notion that the entire fact-finding process may have been tainted by the same extraneous factors which led to the excessive verdict.
It is also well-recognized in Colorado that a trial court has the "power to grant a new trial under C.R.C.P. 59 or in the alternative, to deny the new trial on the condition that the plaintiff will agree to a remittitur of the amount of the damages found by the court to be excessive." Id. The option of remittitur or new trial is permissible in cases where the trial court considers the damages manifestly excessive, C.R.C.P. 59(a)(5), but cannot conclude that the damages were a product of bias, prejudice, or passion. See Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997 (1972); Kresse v. Bennett, 151 Colo. 549, 379 P.2d 807 (1963).
The trial court in this case never made a finding that the jury's verdict was influenced by passion, prejudice, or corruption. The court did express the opinion that it was "shocked" by the size of the verdict, and that the verdict was not appropriate based on the evidence adduced at trial. In our view, the trial court is required to grant a new trial if the verdict was a product of bias, prejudice, or passion. Marks v. District Court, supra. If, instead, the trial court concludes that the verdict was not influenced by extraneous considerations, but that the damages were manifestly excessive in light of the evidence presented at trial, then the trial court's order of remittitur should stand. Of course, if the trial court on reconsideration concludes that neither bias, prejudice, nor passion influenced the jury verdict and that the verdict was not manifestly excessive, then the jury verdict should be permitted to stand. We therefore remand the case back to the trial court for a finding either that the verdict was a product of passion or prejudice; or that the verdict was manifestly excessive based on the evidence presented at trial; or that the verdict should be permitted to stand. The trial court shall then either grant a new trial, or permit the verdict or the remitted judgment to stand.
III. [22] Fact/Opinion
The court of appeals relied on Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979), and Burns v. Denver Post, Inc., 43 Colo. App. 325, 606 P.2d 1310 (1979), to reach the conclusion that the allegedly defamatory statements were constitutionally protected expressions of opinion, and said:
Mrs. Burns brought suit against both the Denver Post and McGraw-Hill. The suit was severed for trial and both jury verdicts were subsequently appealed. Thus, the court of appeals heard two different appeals entitled Burns v. Denver Post, Inc.: 43 Colo. App. 325, 606 P.2d 1310 (1979) (Denver Post), and 632 P.2d 280 (Colo.App. 1980) (McGraw-Hill).
"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."
Burns v. Denver Post, Inc., 632 P.2d 280, 281 (Colo.App. 1980) (emphasis in original). We believe the court of appeals' statement of what constitutes protected opinion is overly broad and unnecessarily extends protection to the expression of a defamatory opinion which may be actionable.
A statement may be defamatory "if it tends so to 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." Restatement (Second) of Torts § 559 (1976); C.J.I. — Civ. 2d § 22.8 (1980); see also Knapp v. Post Printing Publishing Co., 111 Colo. 492, 144 P.2d 981 (1943); Republican Publishing Co. v. Mosman, 15 Colo. 399, 24 P. 1051 (1890); W. Prosser, Handbook of the Law of Torts 739 (4th ed. 1971). The jury found, and the record contains evidence, that Mrs. Burns was damaged by the news story's description of her relationship with her former husband. In the context of the broadcast, Mrs. Burns was portrayed in a manner which suggested that she had unjustifiably and malignantly abandoned her severely injured and partially blind and deaf husband.
The finding of a defamatory connotation by the jury was a reasonable conclusion based on the story which was broadcasted. A finding that the language used was defamatory must be predicated on the context of the entire story and the common meaning of the words utilized. Cianci v. New Times Publishing Co., 639 F.2d 54 (2d Cir. 1980); Restatement (Second) of Torts § 563 (1977). The word "deserted," when used in reference to the marital and family relationship, commonly means "to abandon without warning, permission, or right" or "to leave in the lurch." Webster's New International Dictionary (2d ed. 1961). See also Black's Law Dictionary 532 (rev. 4th ed. 1968) ("deserted" means abandonment occurring without legal justification either in the consent or the wrongful conduct of the other party). "Deserted," when used in the everyday sense, is a term of derision. When juxtaposed in a sympathetic news story about a tragically injured police officer, the term can be interpreted as attributing to Mrs. Burns and the children an act of the "the basest ingratitude . . . deserving the contempt of all right minded people." Burns v. Denver Post, Inc., 632 P.2d at 282 (Ruland, J., dissenting) (quoting Smith v. Smith, 73 Mich. 445, 41 N.W. 499 (1889)). A reasonable jury could conclude that the term was defamatory in the context of McGraw Hill's news broadcast. In addition, the defamatory language does not have to prejudice the plaintiff in the eyes of a majority of the community. It is only necessary that the plaintiff be prejudiced in the eyes of a "substantial and respectable minority" of the community. Restatement (Second) of Torts § 559, comment e (1976); Burrascano v. Levi, 452 F. Supp. 1066 (D. Md. 1978), aff'd, 612 F.2d 1306 (5th Cir. 1979); W. Prosser, supra at 743.
Justice Dubofsky's dissent would inexplicably grant reporters broad discretion in determining the meaning of potentially defamatory language. We do not believe that the word "deserted" can be wrenched from the context of the facts of this case and thereby rendered innocuous. Most words have multiple definitions; the inquiry must focus on the manner and context in which they are used. Uncritical reliance on dictionary definitions oversimplifies the task. Furthermore, to excuse the language in this case as an example of "a sort of rhetorical hyperbole" is again to ignore the context and effect of the story.
Nevertheless, McGraw Hill argues that the use of "deserted" in this context was constitutionally protected opinion. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the United States Supreme Court indicated that some expressions of opinion are entitled to constitutional protection: "We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Id. at 339-40, 94 S.Ct. at 3007, 41 L.Ed.2d at 805. That language acknowledges the importance of free expression to the political processes of a democratic society and the desirability of competing ideas in furthering democratic goals. In Bucher v. Roberts, supra, we recognized the rationale of Gertz and the danger in causing liability to occur for defamation in cases where the publisher has advanced an essentially ambiguous statement subject to conflicting interpretations. We said that "[o]nce a court needs to speculate concerning the meaning the statement purports to convey, as must be done here, we enter the area of opinion as opposed to factual assertion." 198 Colo. at 4, 595 P.2d at 241.
Bucher, however, does not immunize all forms of opinion. The court of appeals would consider a statement protected opinion if it concluded that a word may admit more than one meaning. 632 P.2d at 281. Such a test is overbroad. Most words have more than one meaning. Moreover, Bucher does not place all allegations of improper motive in a category of unconditionally privileged speech. Such a construction of the case would erect an unconditional privilege for any attack on personal integrity or reputation. While allegations referring to a person's motives may suffer from a certain indefiniteness, a defamation action may be brought in appropriate circumstances. A speaker is not accorded free speech protection for attacks on an individual's reputation interests by framing the attack as "opinion." Neither Gertz nor Bucher have eliminated all defamation actions based on allegations concerning matters of motive, integrity, and political characterization. See, e.g., Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976); Kuhn v. Tribune-Republican Publishing Co., 637 P.2d 315 (Colo. 1981). See also Note, Fact and Opinion After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, 34 Rutgers L. Rev. 81 (1981).
In Bucher, we cited approvingly Restatement (Second) of Torts § 566 (1976). Section 566 contains important limitations on the scope of protected opinion. Comment c of section 566 explains that a plaintiff may recover in defamation if the expressed opinion is based on undisclosed or assumed defamatory facts of which the listener is unaware. The opinion must appear reasonably to the listener to be based on defamatory facts which the reporter has not disclosed to the audience but which the audience can reasonably expect to exist. See, e.g., Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir. 1978); Ollman v. Evans, 479 F. Supp. 292 (D.D.C. 1979); Beckman v. Dunn, 276 Pa. Super. 527, 419 A.2d 583 (1980).
Section 566 provides: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion."
The United States Court of Appeals for the Second Circuit adopted an analysis similar to the Restatement in Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.), cert. denied sub nom. Hotchner v. Doubleday Co., 434 U.S. 834 (1977):
"Liability for libel may attach, however, when a negative characterization of a person is coupled with a clear but false implication that the author is privy to facts about the person that are unknown to the general reader. If an author represents that he has private, first-hand knowledge which substantiates the opinions he expresses, the expression of opinion becomes as damaging as an assertion of fact."
An opinion based on undisclosed facts is contrasted with an opinion which is based on circumstances set forth by the publisher and which support the proffered opinion. See Restatement (Second) of Torts § 566, comment b (1976). Bucher v. Roberts, supra. See also Note, Fact and Opinion After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, supra.
Courts have not uniformly applied the distinction between facts and opinions. This is not surprising, considering the necessary indefiniteness of any test which attempts to provide foolproof standards for making the distinction. The surrounding circumstances and factual context of any defamation action will determine whether a fact or an opinion has been published. In Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), for example, the Second Circuit held that the word "fascist" in reference to a well-known columnist was an "opinion" deserving protection. The court concluded, however, that the word "libeller" was "a factual assertion relating to Buckley's journalistic integrity." 539 F.2d at 895-96. The Second Circuit, in a subsequent case, Cianci v. New Times Publishing Co., supra, experienced difficulty in applying the distinction it drew in Buckley between "fascist" (opinion) and "libeller" (fact). The court said, in commenting on Buckley:
"Since surely [calling Buckley a libeller was] Littell's opinion, our decision must mean that when an `opinion' is something more than a generally derogatory remark but is laden with factual content, such as charging the commission of serious crimes, the First Amendment confers no absolute immunity. . . ."
639 F.2d at 63 (emphasis added). Thus, the Second Circuit recognized the imprecision of clearly defining the difference between fact and opinion and acknowledged that some forms of opinion could provide a basis for a defamation action.
Other courts have recognized that an opinion may have as pernicious and harmful effect as other forms of defamation. The court in McManus v. Doubleday, 513 F. Supp. 1383 (S.D.N.Y. 1981), relied on Cianci to hold that an allegation that a priest has "homicidal tendencies" may support a defamation action. That "opinion" was considered so laden with factual content (and the underlying facts were false) that it was actionable against one who had knowledge of the falsity or probable falsity of the underlying facts but who still published the defamatory remarks. 513 F. Supp. at 1385.
In Rinaldi v. Holt, Rinehart Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943 366 N.E.2d 1299 (1977), cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977), the allegation that a former supreme court justice was "probably corrupt" was found to be an actionable defamatory statement. The court held that accusations of criminal activity, "even in the form of opinion, are not constitutionally protected." Id. at 382, 397 N.Y.S.2d at 951, 366 N.E.2d at 1307. A number of other courts have held that allegations of criminal or non-criminal behavior, expressed as opinion, without an adequate exposition of underlying facts supporting the statement, may support a libel action. See Kotlikoff v. Community News, 89 N.J. 62, 444 A.2d 1086 (1982) (facts upon which opinion based fully disclosed); Pritsker v. Brudnoy, 8 Media. L. Rep. (BNA) 1754, ___ N.E.2d ___ (Mass.App.Ct. 1982) (underlying facts disclosed). See also Edwards v. National Audubon Society, 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977) (accusation that scientists are "paid liars" not opinion); Hotchner v. Castillo-Puche, supra (allegations that plaintiff was a "hypocrite" and a "toady" who exhibited "two-faced behavior" could support a libel action); Brady v. Ottaway Newspapers, 84 A.D.2d 226, 445 N.Y.S.2d 786 (N.Y.App. Div. 1981) (allegation of corruption actionable opinion); Fields Foundation, Ltd. v. Christensen, 103 Wis.2d 465, 309 N.W.2d 125 (1981) (statements of dishonorable, unethical or unprofessional conduct of a doctor when phrased as opinion are capable of defamatory meaning); Good Government Group v. Superior Court, 22 Cal.3d 672, 586 P.2d 572, 150 Cal.Rptr. 258 (1978) (allegations of "blackmail" and "extortion" actionable if understood as fact).
We believe that opinions which imply the existence of an undisclosed defamatory factual predicate may support a cause of action in defamation. If a listener cannot evaluate the alleged defamatory language because no basis for the statement has been disclosed, a defamation action may properly be brought. As one commentator recognized, opinions may lose their constitutional protection when "the average reader [or listener or viewer] perceives the comment as essentially an assertion of fact, in light of the relative specificity of the language used and the relative insufficiency of the connection of such language to supporting fact." Hill, Defamation and Privacy Under the First Amendment, 76 Colum. L. Rev. 1205, 1234 n. 133 (1976) (commenting on Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 447 P.2d 840 (1968)). See also Note, Fact and Opinion After Gertz v. Robert Welch, Inc: The Evolution of a Privilege, supra.
Allegedly defamatory language must be examined in the context in which it is uttered. It would not be possible for us to establish a hard and fast rule which could govern every situation. Protecting the important competing interests of free speech and reputation requires a flexible approach anchored in the context of each cause of action. In Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir. 1980), the Ninth Circuit adopted an analysis which identified three factors to examine when speech which might be considered protected opinion is in issue: First, whether the statement complained of is "cautiously phrased in terms of apparency." Id. at 784. For example, the use of "in my opinion," while not determinative, may provide the reasonable listener with grounds to discount that which follows. Second, the entire published statement must be examined in context, not just the objectionable word or phrase. Third, all the circumstances surrounding the statement, including the medium through which it is disseminated and the audience to whom it is directed, should be considered. We find the Ninth Circuit's approach a better way to protect both free speech and reputation than the test applied by the court of appeals in this case.
Language of apparency is a factor, though it cannot be determinative. Merely by prefacing a defamatory remark with the phrase "in my opinion" should not be a complete shield to responsibility for defamation. As Judge Friendly noted: "It would be destructive of the law of libel if a writer could escape liability for accusations of crime simply by using, explicitly or implicitly, the words "I think." Cianci v. New Times Publishing Co., 639 F.2d at 64. See also Fact and Opinion After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, 34 Rutgers Rev. 81, 107-08 (1981).
The respondent's statement that Mrs. Burns "deserted" her husband after he was injured was not supported by disclosed facts or circumstances which would allow an average listener to evaluate the purported opinion. In this context, reasonable people could have believed that the reporter had inside knowledge of the facts which would support her charge that Mrs. Burns "deserted" Jack Burns. The broadcast reported nothing about the circumstances surrounding Mrs. Burns' divorce; the story only presented the reporter's view of what effect the accident had on Jack Burns' life. The undisclosed circumstances would be crucial to a proper understanding of the marital relationship between Jack Burns and his former wife.
The statement broadcasted by McGraw-Hill could have been interpreted by a substantial number of members of the community and by the jury as a statement of fact susceptible to proof or disproof. A false statement of defamatory fact may support a defamation action. Buckley v. Littell, supra; Kuhn v. Tribune-Republican Publishing Co., 637 P.2d 315 (Colo. 1981). Even if the statement could be characterized as an opinion, it will support a defamation action if the language is defamatory and the underlying defamatory facts which provide a basis for the opinion are false and are not disclosed in the context of the broadcast. Cianci v. New Times Publishing Co., supra; McManus v. Doubleday, supra; Restatement (Second) of Torts § 566 (1976). The opinion was thus not unconditionally protected under the United States or Colorado Constitutions.
Both Bucher v. Roberts, supra, and Burns v. Denver Post, Inc., supra, are distinguishable in that the challenged statements did not contain defamatory falsehoods. The context of each allegedly defamatory communication was fully and clearly disclosed in those cases so that the listener or viewer could evaluate the statements. We believe that the jury in this case was reasonable in finding that Mrs. Burns had been libeled by the false representation of her relationship with her husband.
IV. [44] Reckless Disregard
We have held that the news media's reporting of a "matter of public or general concern" is protected unless the alleged defamatory statements are made with actual malice; in other words, with knowledge that the statement was false or with reckless disregard of whether it was false or not. Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982). See also New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Kuhn v. Tribune-Republican Publishing Co., 637 P.2d 315 (Colo. 1981); DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980); Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450 (1975). There is ample evidence in the record to support the conclusion that the respondent had proceeded with reckless disregard of the truth or falsity of the action attributed to Mrs. Burns and the children.
In Diversified Management, Inc. v. Denver Post, Inc., supra, we held that the appropriate test for reckless disregard was whether there is "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication," thus adopting the standard expressed in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). See Walker v. Colorado Springs Sun, 188 Colo. 86, 98, 538 P.2d 450, 457 (1975). A key issue to be resolved in determining reckless disregard is the credibility of the reporter or publisher in the context of the surrounding facts and circumstances. The trier of fact must resolve issues of credibility. The burden of proving reckless disregard must be met with convincing clarity. Diversified Management, Inc. v. Denver Post, supra; Kuhn v. Tribune-Republican Publishing Co., supra; Walker v. Colorado Springs Sun, supra.
In Kuhn v. Tribune-Republican Publishing Co., supra, we held that a newspaper account reporting that city officials had improperly accepted complimentary ski area passes was defamatory. We said that a reasonable jury could find that a reporter acted with reckless disregard for the truth when he admitted that he had no bases for most of his erroneous statements; and when he failed to corroborate allegations even though the story was not under time pressure to be published; and when his investigation of the facts was grossly inadequate because he failed to pursue "obvious available sources of possible corroboration or refutation." 637 P.2d at 319. The reporter's failure to verify defamatory statements in Kuhn meant that many of the asserted "facts" were merely fabrications worthy of no First Amendment protection. We held that, in this factual context, "the evidence . . . was sufficiently clear and convincing" to sustain a claim for defamation. Id. at 319. See also Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th Cir. 1975); Alioto v. Cowles Communications, Inc., 519 F.2d 777 (9th Cir. 1975).
Here, a jury could reasonably find with convincing clarity that the defamatory statement was published with reckless disregard of its truth or falsity. The reporter, Marion Brewer, was a college graduate with a communications degree and eight to ten years experience. She had personally interviewed Jack Burns and knew that he was frustrated and bitter over the events surrounding his injuries and the divorce which was granted after the explosion. Any self-serving description by Burns of the relationship between himself and his wife would warrant careful scrutiny and should have been verified by investigation, and viewed with a healthy degree of skepticism. Brewer, like the reporter in Kuhn, failed to investigate other sources of possible corroboration or refutation of her statements. In addition, Brewer was under no time pressure to finish her story; the piece was one part of a feature series on dangerous occupations.
Nevertheless, Brewer testified that she was aware of the marital difficulties of the Burns family before the accident and knew that Mrs. Burns had compelling reasons for divorcing Jack Burns. Brewer knew that Mrs. Burns had filed for divorce before the accident; that there had been a temporary reconciliation before and during Jack Burns' convalescence; and that finally, two years after the accident, Mrs. Burns was granted a divorce. Brewer testified that she had no basis for the use of the defamatory language but consciously chose or accepted the words in the story as an accurate portrayal of the events surrounding Jack Burns' accident. As an experienced reporter, Brewer must also have been aware that the word "deserted," when used in the context of the marital relationship, has an opprobrious connotation in the most common usage of the term. The use of a term with obvious pejorative connotations without underlying factual support is evidence of recklessness especially when the reporter has knowledge that the description is in fact untrue. Brewer knew that Mrs. Burns had not "deserted" Jack Burns in the sense that he was "abandoned" without "warning, permission, or right." Brewer and the station apparently used the word to illustrate more vividly the situation surrounding Jack Burns' accident despite the word's emotional and derogatory connotation when applied to the marital relationship. See Forrest v. Lynch, 347 So.2d 1255 (La.App. 1977).
The evidence in this case supports the jury's conclusion that the respondent published a defamatory statement with reckless disregard for the truth. When one uses language which invites an inference that an individual has acted significantly at variance with community standards, and one fails to provide a factual basis for the derogatory characterization, then one "knowingly risks the likelihood that the statements and inferences are false and thereby forfeits First Amendment protections." Kuhn v. Tribune-Republican Publishing Co., 637 P.2d at 319. The jury's finding of liability in this case is reasonable based on the evidence presented at trial and we will not disturb its findings of fact. We cannot conclude as a matter of law that the jury erred in finding liability.
We reverse the decision of the court of appeals and return this case to the court of appeals with directions to remand to the district court for proceedings consistent with the views expressed in this opinion.
JUSTICE DUBOFSKY dissents. JUSTICE ROVIRA joins in the dissent. JUSTICE LOHR dissents. JUSTICE ROVIRA joins in the dissent.