*1 denying not err in ingly, the trial court did judgment motion for a defendant’s
acquittal. judgment is affirmed. BURNS, Individually
Yvonne C. and as
parent guardian and natural of Kevin Burns; Burns,
Burns and Renee Steven individual; Bryan an indi
vidual, Plaintiffs-Appellees, POST, INC.,
The DENVER a Colorado corporation, Defendant, Kofoed, Castle, Roger L. T. Den- David ver, Broadcasting Company, plaintiffs-appellees. McGraw Hill for Inc., corporation, a New York Dawson, Howard, Nagel, Lee Sherman & Dale, Denver, defendant-appellant. for No. 78-1052. BERMAN, Judge. Court action, Hill Broad- this libel McGraw Div. II. Inc., (McGraw Hill) casting Company, ap- Dec. 1980. peals upon jury from a entered Rehearing Denied March 1981. plaintiffs. in favor of We reverse. verdicts Certiorari Granted many This case involves of the same
and factual
considerations
recently addressed in Burns v. Denver
Colo.App.,
program on television Channel broadcast *2 281 published a statement which contained As we Bucher, lan- read Burns and we may not guage plaintiffs allege inquire meaning into what is most naturally In part, material that was as reasonably or publisher’s attributable to a follows: given language. use of question, rath- squad was er, called out to do its is “[B]omb whether the words used are used
job,
explosive
take care of an
device and
such circumstances and are of such a nature
keep it from harming any property or
as to
Here,
admit of
meaning.
we
individuals.
It seemed to be a routine
say
cannot
categorically that the word “des-
call;
bomb
explosive
the
device was
erted,” as used in the context of the broad-
found wired to a car. But
the bomb
issue,
cast at
carries solely opprobrious con-
squad’s experts
they
were confident
could notations.
work,
handle it. As the officers went to
Therefore, we conclude that use of the
Sgt.
charge.
Jack Burns was in
That was
word “deserted” in this context constituted
the last bomb he’ll ever work on.
It
protected expression
opinion.
of
As a re-
exploded
hand,
. ..
taking
right
all of his
sult, we are
by
bound
Burns and Bucher to
hand,
of his left
eye-
most of his
hold that
the trial court erred in denying
sight and
much of his
In addi-
McGraw Hill’s motion for directed verdict.
tion, his wife and five children have des-
is reversed.
erted him since the accident. He’s not
sure he and his family adequately as-
SMITH, J., concurs.
might
sessed what
consequences
be the
of
an accident
job
on the
with the bomb
RULAND, J., dissents.
squad and he advises those interested in a
RULAND, Judge, dissenting.
dangerous occupation
(empha-
to do so.”
I respectfully dissent.
added)
sis
Initially, I disagree with the majority’s
Mrs. Burns
telephone
received obscene
characterization of the word “deserted” as
calls,
criticism,
severe
purported
and a
loss
expression
the
opinion.
of an
I have no
income,
of business
allegedly
all
as a result
quarrel with the statement
in Bucher that
of the broadcast’s use of the word “desert-
a
speculate
court needs to
concern-
addition,
“[o]nce
ed.”
In
the Burns’ children as-
ing
meaning” (emphasis added)
the
of
serted
a
variously
they
subjected
that
were
to
purportedly
statement,
by
defamatory
ridicule
their
then
school teachers and class-
mates,
opinion
the statement
is an
great
suffered
rather than a
embarrassment
However, here,
emotional distress
consequence
also in
factual assertion.
to invest
of the broadcast.
the term “deserted” with connotations of
approbation
speculative
is not a
venture.
appeal,
urged
it
is
that
Whether
every-day
considered in its
sense
trial court erred in denying McGraw Hill’s
or as
concept,
a
invariably
term
motion for a directed verdict. McGraw
implies
unjustified forsaking
of a solemn
Hill, relying
Roberts,
inter alia on Bucher v.
obligation.
implication
And this obvious
of
1,
198 Colo.
(1979),
“Once a
of Torts
Comment e
court
speculate
§
needs to
concern-
ing the meaning
reasonably interpreted
the statement
is
purports
statement
convey
to
attributing
... we
opin-
enter the area of
to Ms. Burns an act of “the
opposed
ion as
to factual
ingratitude
assertion.”
deserving
basest
. . .
the con-
tempt
right
people.”
of all
minded
Smith
Smith,
73 Mich.
Hence, I would characterize defendant’s report
news as a past factual statement of a
event and thus being actionable as defama-
tory.
Furthermore, accept I cannot majori-
ty’s stringent distinguishing test for fact opinion. Few,
from any, if carry precise
such a meaning as to be understand- Thus, only
able in way. practical
effect, majority’s place test will virtual-
ly any statement protected within the
bounds of being opinion, rather than fact.
Nor do I view Burns v. Denver Colo.App., (1979) disposi- P.2d 1310 First,
tive here. at issue in
that case did not state that
wife and children had “deserted” him.
Rather, the article said that Ms. Burns
had divorced him because she “couldn’t live
with a blind man.” Secondly, peti- while a
tion for writ of certiorari was denied in that
case, such denial does necessarily not consti- approval
tute of the Appeals opin- Court of 35(f) (1979
ion. See C.A.R. Cum.Supp.).
Thus, view, my this court should address
the appellant’s other contentions for rever-
sal. WILEY, Plaintiff-Appellant,
William E. VALLEY,
BANK OF FOUNTAIN Third-Party
Defendant and
Plaintiff-Appellee, WILEY, Third-Party
Daniel R.
No. 79CA0847. Court of
Div. III.