Mullen v. Meredith Corp.
353 P.3d 598
Or. Ct. App.2015Background
- Plaintiff (a corrections sergeant) asked KPTV reporter Hanrahan not to film or identify him during coverage of nearby gunshots because inmates had threatened him; Hanrahan agreed and plaintiff allowed filming on his property.
- A morning broadcast later included 3.4 seconds of footage showing plaintiff and his home; supervisors and inmates saw the broadcast and plaintiff believed inmates could locate his home.
- Plaintiffs sued for breach of contract, negligence, negligent infliction of emotional distress (NIED), and intentional infliction of emotional distress (IIED).
- Defendants moved to strike the three tort claims under Oregon’s anti‑SLAPP statute, ORS 31.150; the trial court denied the motion, concluding defendants had not shown the claims arose from protected speech.
- The court of appeals reviewed de novo, held defendants met the threshold showing that the tort claims arose out of conduct in furtherance of free speech on an issue of public interest, and proceeded to assess whether plaintiffs showed a probability of prevailing.
- The court concluded plaintiffs failed to present substantial evidence establishing a probability of success on negligence, NIED, or IIED, and reversed with instructions to grant the special motion to strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs’ tort claims “arise out of” protected speech under ORS 31.150(2)(d) | The broadcast portion showing plaintiff is not a protected public‑interest act because identification/filming of his likeness was wrongful and not necessary to reporting | The broadcast was conduct in furtherance of free speech on a matter of public interest (news of neighborhood gunfire); thus claims are subject to anti‑SLAPP review | Held for defendants: plaintiffs’ claims arise out of conduct in furtherance of free speech on an issue of public interest; defendants met prima facie burden |
| Whether plaintiffs presented a probability of prevailing on negligence | KPTV’s breach of promise and broadcast foreseeably put plaintiff at risk; negligence claim seeks noneconomic damages | Negligence claim lacks allegation of physical injury or independent legally protected interest beyond contractual obligations | Held for defendants: negligence claim fails because no physical injury or independent tort duty beyond contract was pleaded |
| Whether plaintiffs presented a probability of prevailing on negligent infliction of emotional distress | Plaintiffs allege a special relationship based on defendants’ agreement and reliance, creating heightened duty | No special relationship existed (mere limited agreement with a stranger); no invasion of a recognized legally protected interest absent physical injury | Held for defendants: NIED fails—no special relationship or recognized protected interest supporting noneconomic recovery |
| Whether plaintiffs presented a probability of prevailing on intentional infliction of emotional distress | Plaintiffs argue defendants knew severe distress was substantially certain from airing plaintiff’s likeness | Evidence shows at most negligence or inadvertent editorial error; no evidence persons who reedited/broadcast knew distress was certain | Held for defendants: IIED fails—no adequate evidence of intent or extreme/outrageous conduct |
Key Cases Cited
- Staten v. Steel, 222 Or. App. 17 (Or. App. 2008) (describing anti‑SLAPP purpose and legislative intent)
- Young v. Davis, 259 Or. App. 497 (Or. App. 2013) (explaining two‑step anti‑SLAPP burden‑shifting framework)
- Neumann v. Liles, 261 Or. App. 567 (Or. App. 2014) (standard of review and taking facts in plaintiffs’ favor for anti‑SLAPP analysis)
- Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1 (Or. 1987) (negligence duty analysis in Oregon)
- Conway v. Pacific Univ., 324 Or. 231 (Or. 1996) (when a contract creates or limits tort duties; special‑relationship discussion)
- Paul v. Providence Health Sys.‑Oregon, 351 Or. 587 (Or. 2012) (limits on emotional‑distress recovery absent physical injury or protected interest)
- Sheets v. Knight, 308 Or. 220 (Or. 1989) (elements of IIED)
- Doe v. Gangland Prods., Inc., 730 F.3d 946 (9th Cir. 2013) (anti‑SLAPP application to broadcast identifications; plaintiffs must prove illegitimacy in second step)
- M.G. v. Time Warner, 89 Cal. App. 4th 623 (Cal. Ct. App. 2001) (broad view of public‑interest framing for anti‑SLAPP analysis)