Opinion
No. 98-1079-CV-W-BD
June 28, 2000
ORDER
Defendant Scripps Howard Broadcasting Company d/b/a KSHB-TV 41 ("KSHB") asks the Court to enter Summary Judgment in its favor and to dismiss plaintiff Carolyn Kenney's lawsuit. (Doc. #83). Plaintiffs lawsuit consists of a sole claim for defamation arising out of a news broadcast by the defendant on September 2, 1996. Plaintiff filed an opposition to the motion and defendant filed a reply to the opposition. For the reasons set forth below, the Motion is granted.
This case was commenced in the Circuit Court of Jackson County, Missouri. Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441 and 1446. This Court has jurisdiction under 28 U.S.C. § 1332 (a)(1).
I. STANDARDS FOR EVALUATING A MOTION FOR SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is granted when the pleadings and evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party, here the defendant, to show the absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The nonmoving party, here the plaintiff, may not rest upon allegations or general denials, but must come forward with specific facts to prove that a genuine issue for trial exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 243 (1986). In doing so, all evidence and inferences therefrom are viewed in the light most favorable to the nonmoving party. Adickes v. S.H.Kress Co., 398 U.S. 144 (1970).
In this case, defendant seeks summary judgment on plaintiffs defamation claim. The elements of a defamation claim under Missouri law are: (1) the publication; (2) of a defamatory statement; (3) that identifies the plaintiff; (4) that is false; (5) that is published with the requisite degree of fault; and (6) that damages the plaintiffs reputation. Overcast v. Billings Mutual Insurance Company, 11 S.W.3d 62, 2000 WL 137005, *7 (Mo. banc 2000); see also MAI 23.06(1).
II. UNDISPUTED MATERIAL FACTS
The following facts are deemed uncontroverted for purposes of defendant's Motion for Summary Judgment.
1. Plaintiff Carolyn Kenney is the paternal grandmother of Lauren Kenney. (Plaintiffs Petition for Damages at ¶ 3).
2. On September 2, 1996, KSHB, a local television station, reported the following 30 second item on its 10:00 p.m. newscast:
Police are on the lookout for a missing girl who may have been abducted by a relative. Sixteen-month-old Lauren Kenney is pictured here with her mother. The child was last seen Friday afternoon when she left her house with her paternal grandmother, Carolyn Kenney. Family members believe the girl's father and grandmother are now with her at an unknown location. Lauren has curly hair and hazel eyes, she is two feet five inches tall, and sixteen months old. If you have any information, please call the Juvenile Division of the Kansas City Police Department or your local law enforcement agency. (Tape of Broadcast, Defendant's Exhibit (hereinafter Def. Ex.W)
3. A picture of Lauren Kenney with her mother accompanied the news report. Also as a part of the newscast, plaintiffs picture was flashed on the screen. (Tape of broadcast, Def. Ex. W).
4. Plaintiff picked up her granddaughter from Angela Miles, Lauren Kenney's mother. on August 30, 1996. (Plaintiffs Exhibit (hereinafter Pl. Ex.) 1, p. 192-93).
5. On September 1, 1996, Angela Miles reported her daughter missing to the Kansas City Police Department. (Def. Ex. B, ¶ 23). Ms. Miles met with Officer Bussiere at the North Patrol Division of the Kansas City Missouri Police Department on Barry Road and explained the circumstances surrounding Lauren's disappearance. Officer Bussiere prepared an investigative report. (Def. Ex. B ¶ 23, Def. Ex. A ¶ 17 and Ex. 3 attached to Def. Ex. A). The investigative report reflects that Detective Blow in the Juvenile Unit was contacted. (Ex. 3 to Def. Ex. A).
6. The Investigation report prepared by Officer Bussiere lists plaintiff Carolyn Kenney as the last person Ms. Miles saw with Lauren Kenney. (Ex. 3 attached to Def. Ex. A).
7. The Investigation Report states that Christopher Kenney told Angela Miles that Lauren Kenney was with him, but Angela Miles did not know where they were located. (Ex. 3 attached to Def. Ex. A).
8. Detective Blow, a detective in the Juvenile Section of the Kansas City Police Department filed a Missing Person Report classifying Lauren Kenney as a missing juvenile who was reported to have been kidnaped by a parent or other relative. (Def. Ex. A ¶¶ 7, 9 and Ex. 1 attached to Def. Ex. A).
9. The Missing Person Report listed plaintiff as the last person to have been seen by Angela Miles with Lauren. (Ex. 1 to Def. Ex. A).
10. The Missing Person Report recited that Detective Blow was informed by Tom Kenney, plaintiffs spouse, that Lauren was with her father, Christopher Kenney. (Ex. 1 to Def. Ex. A).
11. Detective Blow called Carolyn Kenny's home on September 1, 1996 to attempt to discover the whereabouts of the child. Detective Blow spoke with Thomas Kenney, plaintiffs husband, and asked if he knew where Lauren was. Thomas Kenney told Detective Blow that Lauren was with plaintiff and Christopher Kenney. (Blow Affidavit, Def. Ex. A, and defendant's undisputed facts 36 and 38, admitted by plaintiff.)
12. On the same day, September 1, 1996, Detective Blow also issued a pick up order for Lauren Kenney requesting law enforcement officials to take Lauren Kenney into custody and notify the Juvenile Section if she was located. (Defendant's Ex. A, ¶¶ 7, 17 and Ex. 1 to Def. Ex. A).
13. The pick up order was sent over the Kansas City area's ALERT system, the Missouri Uniform Law Enforcement System and the National Crime Information Center. (Def. Ex. A, ¶¶ 7, 17).
14. On September 1, 1996, Angela Miles went to KSHB-channel 41 requesting assistance in locating her daughter. Angela Miles was interviewed by station personnel and was asked to provide documentation from the police department evidencing the charges. (Def. Ex. B, ¶¶ 27, 29, 30).
15. Station personnel spoke with Ms. Miles and reviewed one or more of the police reports. (Defendant's Exhibit B ¶ 30; Exhibit E ¶ 20).
16. Plaintiff did not suffer any damage to her professional reputation as a result of the news broadcast, and is not claiming any lost income in the suit. (Pl. Ex. 2, pp. 493-495).
Defendant's uncontroverted fact no. 3 states "Lauren's mother, Angela Miles Mueller (`Miles'), reported her daughter's disappearance to the KCPD at approximately 1:00 p.m. on September 1." Defendant cites three sources for this statement: Affidavits of Detective Blow and Angela Mueller and the Missing Persons Report. Plaintiff denies this statement on the basis of the Deposition of Stephanie Seabrook and Exhibit 4 to her deposition. However, Ms. Seabrook explains in some detail the information provided to the KCMO and Liberty police. While Ms. Seabrook may differ in her recollection of the exact time the reports were made, Exhibit 4 to her deposition, cited by the plaintiff in controverting defendant's factual statement, reflects that the missing persons report was made on September 1 at 1300 hours or 1:00 p.m. Therefore, the Court is unclear what portion of defendant's uncontroverted fact no. 3 plaintiff is controverting. Plaintiffs denials of many of defendant's other undisputed facts similarly refer to documents or testimony that would seem to have warranted plaintiff admitting not denying the fact. Each of the undisputed facts on which the Court relies in its order have been verified by the Court as being not in dispute. To the extent the plaintiff has disputed a fact relied upon by the Court, the Court has concluded that the factual basis cited by plaintiff does not support her position that the fact is disputed.
In response to defendant's undisputed facts numbers 73 and 74 concerning Ms. Miles contact with personnel at channel 41, plaintiff states: "Plaintiff has no way of knowing if this is true or not." Undisputed fact number 75 states: "Miles provided the station with copies of one or more of the reports prepared by the KCPD. the case numbers assigned to the matter, and a KCPD business card." Plaintiff denied this statement on the basis that: "In its Rule 26 disclosures, defendant only provided plaintiff with one police report, namely the Investigative Report, P. Ex. 9. . . ." In the Court's view, the fact that channel 41 did not provide copies of certain documents in its Rule 26 disclosures does not mean that it station personnel were not shown or provided copies on September 1, 1996.
Plaintiff contends the news report defamed her because it falsely accused her of kidnaping her granddaughter, Lauren Kenney.
III. DISCUSSION
Defendant bases its motion for summary judgment on three points. First, defendant contends the uncontroverted evidence shows that the news broadcast was true or substantially true, and plaintiff has no evidence to establish the falsity of the broadcast, an element of a defamation claim for which plaintiff has the burden of proof. Second, defendant argues that the news cast was a fair and accurate account of police records, and, therefore, Missouri's fair report privilege applies in this case to shield defendant from any liability for alleged defamatory statements. Third, defendant maintains that plaintiff has no evidence to support a claim for actual damages resulting from the allegedly defamatory news cast.
Plaintiff opposes the motion based upon her arguments that the news cast was defamatory and not substantially true and that the fair report privilege does not apply in this case. Further, plaintiff contends that even if the fair report privilege applies, defendant abused the privilege thereby rendering it ineffective because the news cast was not a fair and accurate account of the police records. Finally, plaintiff contends her evidence of damages for emotional distress is sufficient to support her claim for actual damages.
Whether a communication constitutes actionable defamation is a question of law for the Court. Pape v. Reither, 918 S.W.2d 376, 380 (Mo.App. 1996). The applicable inquiry is whether the communication is capable of having a defamatory meaning. Id. Under Missouri law, to "defame" means "to speak evil of one maliciously, to dishonor, to render infamous." Langworthy v. Pulitzer Publishing Company, 368 S.W.2d 385, 389 (Mo. 1963). The statement must be clear as to the person addressed and must cast aspersions on that person's reputation so as to "lower him in the estimation of the community or to deter third persons from associating with him." Pape, 918 S.W.2d at 380 quoting Henry v. Halliburton, 690 S.W.2d 775, 779 (Mo. banc 1985). Further, words do not constitute a defamation solely because they subject one to a ridicule. Langworthy, 368 S.W.2d at 389.
A. The Communication Was Substantially True and Not Defamatory
Defendant argues that the broadcast was substantially true, and thus plaintiff cannot establish all of the elements of a defamation action. Defendant cites to undisputed facts in the record to demonstrate that police were on the lookout for Lauren Kenney, that Lauren Kenney was listed by police as a missing juvenile who may have been abducted by a relative and that a family member believed that plaintiff and Lauren's father were with her at an unknown location. (Defendant's Suggestions In Support of Motion For Summary Judgment, hereinafter Defendant's Suggestions, at 17-22) Plaintiff acknowledges that truth is a complete defense to a claim for liable. (Plaintiffs Suggestions In Opposition to Defendant's Motion For Summary Judgment, hereinafter Plaintiffs Suggestions, at 20) However, according to plaintiff, defendant's Motion for Summary Judgment "ignores two critical principals which undercut its position." ( Id.) First plaintiff argues that defamatory words must be considered in context giving them their plain and ordinarily understood meaning. (Plaintiffs Suggestions at 20-21) Second plaintiff argues that the defendant's interpretation of the statements must be true. ( Id. at 22) Apparently, plaintiff is contending that even if the words themselves are literally true, if a defamatory meaning is conveyed then truth is not available as a defense. See Toney v. ACCO Television, 85 F.3d 383, 387 (8th Cir. 1996).
Plaintiff argues that giving the words of the newscast their plain and ordinarily understood meaning, the news report implies that plaintiff abducted her granddaughter and viewers of the newscast would understand the communication in the same way. ( See Plaintiffs Suggestions at 20-25). Defendant, on the other hand, maintains that taken in their most innocent sense and devoid of any implication, the newscast does nothing more than report that Lauren "may have been abducted by a relative." (Defendant's Suggestions at 20-21; and at 22 n. 5).
The Missouri Supreme Court in Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993), set forth rules of construction to be utilized in the determination of whether a communication may be considered defamatory. That Court held that the standards espoused in earlier precedents should be read together. Thus, the mandate "words must be stripped of any pleading innuendo and construed in their most innocent sense" (the standard urged by defendant) is to be read in tandem with the standard "words must be considered in context, giving them their plain and ordinarily understood meaning and are to be taken in the sense which is the most obvious and natural and according to the ideas they are calculated to convey to those to whom they are addressed" (the standard urged by plaintiff). Id. at 311. See Walker v. Kansas City Star Co., 406 S.W.2d 44. 51 (Mo. 1966) and Brown v. Kitterman, 443 S.W.2d 146, 151 (Mo. 1969).
Applying these rules of construction to the news report at issue, the communication is not capable of having a defamatory meaning and is not actionable. Construed in the most innocent sense, stripped of any pleading innuendo, considering the communication in context and according to the idea it is to convey to the television viewer, the news item does nothing more than report that police are looking for a sixteen month old girl who was last seen with plaintiff. The child may have been abducted by a relative and family members of the child believe she may be with plaintiff and her father at an unknown location. Relying on Lawrence v. Bauer Publishing Printing, Ltd., 176 N.J. Super. 378, 423 A.2d 655 (1980), rev'd on other grounds, 89 N.J. 451, 446 A.2d 469 (1982), plaintiff argues that the words used by defendant — "may have been abducted by a relative" — are "weasel words" and do not eliminate the defamatory insinuation that plaintiff kidnaped her granddaughter. There simply is no insinuation to be made. The newscast does not accuse plaintiff of the abduction or with any other criminal offense. Defendant disclosed all relevant facts in the newscast. At most, the newscast insinuates that plaintiff was involved in actions to withhold Lauren from her mother. Plaintiff does not dispute that she was involved in those actions and, therefore, the insinuation is not defamatory but is true.
All of the critical facts in the news broadcast were substantially true and not in dispute. The "gist" of the newscast is that Lauren Kenney was last seen with plaintiff (a true fact) and that family members believed she may be with plaintiff and her son (a true fact). Therefore, this Court finds no actionable defamation here. See Love v. Commerce Bank of St. Louis, 37 F.3d 1295, 1296 (8th Cir. 1994).
Further, the news report does not "cast aspersions" on plaintiffs reputation or deter third persons from associating with her. Plaintiff admits she did not suffer any damage to her professional reputation as a result of the news item. (Plaintiffs Ex. 2, pp. 493-495). Plaintiff contends she was teased by family members and perhaps third parties about the report (Plaintiffs Ex. 2, pp. 496-501), however, the fact that plaintiff was subjected to ridicule does not render the communication defamatory. Moreover, the purpose of the report was to alert the viewing audience to contact the authorities if they saw the child or knew where she was. The news item accomplishes this purpose. Plaintiffs actions were not the focus of the report. Rather, the focus of the report was locating Lauren Kenney.
B. The Fair Report Privilege Applies
The Court finds that the news report is substantially true and not defamatory. However, even if it could be considered defamatory, defendant argues that the fair report privilege would shelter it from legal responsibility for the defamation. Whether the circumstances in a particular case give rise to a legal privilege is a question of law for the Court. Overcast v. Billings Mutual Insurance Company, 11 S.W.2d at ___, 2000 WL 137005 at *9; Diez v. Pearson, 834 S.W.2d 250, 252 (Mo.App. 1992). For the reasons discussed in this opinion, the Court finds that the fair report privilege applies in this case.
Missouri, adopting Restatement (Second) of Torts § 611 (1976), allows a qualified privilege to apply in certain cases involving the publication of an allegedly defamatory statement contained in the report of a public proceeding. Shafer v. Lamar Publishing Co., 621 S.W.2d 709, 71 (Mo.App. 1981); Lami v. Pulitzer Publishing Company, 723 S.W.2d 458, 459 (Mo.App. 1986). Under that rule:
The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.
Restatement (Second) of Torts § 611. Thus, the privilege is limited to those matters of public concern which are stated in a report of an official action or proceeding or a meeting open to the public. Englezos v. The Newspress and Gazette Company, 980 S.W.2d 25, 32 (Mo.App. 1998). The privilege can only be overcome if the matters published were not a "fair and accurate" report or abridgement of the proceeding or matter. Lami, 723 S.W.2d at 459.
The first issue is whether the subject matter reported by defendant is a matter of public concern. Plaintiff does not dispute that the search for her grandchild was a matter of public concern, and this Court sees no reason to conclude that the search for any allegedly missing child, particularly when the viewing public is requested to assist in locating the child by relaying information to the authorities, is not a matter of public concern. Therefore, the subject matter of the news report at issue is a matter of public concern for purposes of the fair report privilege.
The second issue is whether defendant's news report reflected the report of an official action. Here, defendant argues the news report was an accurate recitation of reports generated by the Kansas City Police Department in response to Angela Miles' complaints. Missouri courts generally acknowledge that police reports are reports of an official action subject to the fair report privilege. See, Erickson v. Pulitzer Publ'g Co., 797 S.W.2d 853, 857 (Mo.App. 1990); Biermann v. Pulitzer Publ'g., 627 S.W.2d 87, 88 (Mo.App. 1981).
The search for Lauren Kenney generated several reports issued by the Kansas City Police Department. According to the evidence presented by the parties in this case, Angela Miles, the mother of the missing child, reported her daughter missing to the Kansas City Police Department. (Def. Ex. B. ¶ 23). On September 1, 1996, based upon Ms. Miles' report and his own investigation, Detective Thomas Blow, a detective in the Juvenile Section of the police department, drafted and filed a Missing Person Report regarding Lauren Kenney. (Def. Ex. A, ¶¶ 7, 17). The Missing Person Report classified Lauren Kenney as a missing juvenile who was reported to have been kidnaped by a parent or other relative. (Def. Ex. C). The report listed plaintiff as the last person to have been seen by Angela Miles with Lauren. ( Id.). The report recited that Detective Blow was informed by Tom Kenney, plaintiffs spouse, that Lauren was with her father. (Id.).
Plaintiffs argument that while defamatory statements made by Angela Miles to the police may be privileged, the privilege was lost when the police reports were republished to defendant (Plaintiffs Suggestions In Opposition, pp. 28-29) is erroneous. The fair report privilege protects the media even in the event it publishes a defamatory statement contained in a report of an official action. Restatement (Second) of Torts, § 611.
Detective Blow also issued a pick up order for Lauren Kenney which notified law enforcement personnel that the police department was seeking to determine the whereabouts of the child. (Def. Ex. A, ¶¶ 10, 11). The pick up order requested any law enforcement official who came into contact with Lauren Kenney to take her into custody and notify the juvenile section. ( Id.). As is the usual procedure with the department, the pick up order was sent over additional law enforcement computer networks. including the local ALERT system covering Kansas City and surrounding communities, the Missouri Uniform Law Enforcement System which reaches law enforcement personnel throughout the state, and the National Crime Information Center, a computer network which reaches law enforcement officials nationwide. ( Id.).
On the same day, Angela Miles filed a charge with the Police Department. (Def. Ex. B, ¶ 23). The Investigation Report prepared in response to the charge lists the offense as a "Child Custody Violation" and Christopher Kenney, Lauren Kenney's father, as the suspect. (Def. Ex. K). The Investigation Report lists plaintiff as the last person seen with Lauren Kenney. ( Id.). The report maintains that Christopher Kenney admitted to Ms. Miles that he had Lauren with him, but Ms. Miles did not know where they were located. ( Id.).
It is clear from the uncontroverted evidence that the police department was searching for Lauren Kenney and had issued a pick up order for her. (Defendant's Ex. A, ¶¶ 7, 17). At the same time, Angela Miles enlisted the assistance of defendant in locating her child. It is undisputed that Ms. Miles went to defendant's television station, was interviewed by station personnel about the situation and was asked to provide documentation from the police department evidencing the charges filed in the matter. (Def. Ex. B, ¶¶ 27, 29, 30). The parties are in dispute as to how many of the police reports, described above, defendant reviewed prior to airing the newscast. Viewing the evidence in the light most favorable to plaintiff, defendant's station personnel reviewed at least the Investigative Report prepared by the police department prior to airing the newscast. (Plaintiffs Response to Uncontroverted Facts, ¶ 75). It is unclear whether or not defendant's station personnel reviewed the actual Missing Person Report or relied on Angela Miles' recitation of the same. However, the Court is not convinced such a fact is relevant for purposes of the privilege. See Warren v. Pulitzer Pub. Co., 78 S.W.2d 404 (Mo. 1934) (defendant's impartial account of church trial privileged even though based upon newspaper articles and interviews rather than reporter's eyewitness accounts of the trial); Medico v. Time, Inc., 643 F.2d 134, 147 (3rd Cir. 1980) (how defendant obtained knowledge of FBI materials is irrelevant and defendant's news article entitled to privilege under Restatement (Second) Torts § 611 as a fair and accurate summary of the FBI materials). In any event, the Investigation Report states that Lauren Kenney was last seen with her grandmother, the plaintiff here. (Defendant's Ex. K). The Investigation Report also reiterates Ms. Miles' belief, which was confirmed by Detective Blow's conversation with Tom Kenney, that Lauren was with her father. (Defendant's Ex. K C).
There is no support for plaintiffs argument that the fair report privilege is inapplicable because Angela Miles provided defendant with the police reports rather than defendant collecting them directly from the police department. (Plaintiffs Suggestions in Opposition, p. 27).
Plaintiff complains that defendant's news cast omits some of the information contained in the police reports thereby rendering the news cast inaccurate and destroying the privilege. Specifically, plaintiff argues that defendant failed to include in its news report that there was no custody order in effect regarding custody of Lauren Kenney. Defendant reported the information gleaned from the police reports to assist law enforcement in locating Lauren Kenney. The Missing Persons Report, Pick Up Order and Investigation Report issued by the police were in effect despite the lack of a custody order. The purpose of defendant's newscast was to locate Lauren Kenney, not to argue custody rights. The 10:00 news report at issue here was a fair and accurate account of the police reports.
IV. CONCLUSION
The news report aired by defendant on September 2, 1996 regarding the search for Lauren Kenney was not defamatory as to plaintiff. Further, even if the news cast was defamatory, the fair report privilege shields defendant from any liability to plaintiff because the news cast was a fair and accurate report of the police reports generated in the search by the Kansas City Police Department. For these reasons.
IT IS ORDERED that defendant's Motion for Summary Judgment (Doc. #83) is granted.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came before the Court. The issues have been determined and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that defendant's Motion for Summary Judgment (Doc. #83) is granted.