Torrance v. Morris Publishing Group, LLCTorrance v. Morris Publishing Group, LLC
In thеse related appeals involving an action for libel, defamation, and invasion of privacy, we affirm the grant of summary judgment to all defendants and the order denying plaintiff s motion to remand the case to Toombs County. The relevant facts follow.
The underlying action arose out of the publication of a series of articles entitled “Justice Betrayed” by the Savannah Morning News in 2003. The articles questioned circumstances surrounding the 1997 death of Henry Dickerson, Jr., a 28-year-old African-American, in Vidalia, and the ensuing investigation by the police and the Georgia Bureau of Investigation (“GBI”). Dickerson, a convicted peeping Tom, was found dead at the bottom of a pool at the home of Vidalia’s city attorney, Reid Threlkeld, on April 28,1997. According to the articles, the police concluded that Dickerson was peeping through a window at Threlkeld’s teenaged daughter, when, “with his pants and underwear around his ankles,” Dickerson suffered a cоcaine-induced heart spasm, stumbled 12 feet across the yard, and fell into the pool. The previous night, William Torrance, Vidalia’s city manager and plaintiff S. T.’s father, had scared away an individual believed to be Dickerson from outside of S.T.’s window. S. T. was 17 years old at the time, and she reportedly had heard someone trying to open her window.
Vickey Horton Tapley, a GBI agent assigned to investigate Dickerson’s death,
1
included
The first installment of the four-part series, published in the Savannah Morning News on February 27, 2003, reported the information as follows:
Tapley wrote in her report that the window outside Torrance’s daughter’s room had been nailed shut because she let boys in through it. The dаughter told police that she heard someone trying to enter through the window — not passively peeping — even though her parents were awake in the bedroom next door. Did Dickerson and the daughter know each other? No, the daughter told investigators.
The second article, published on the following day, continued as follows:
The city manager said it was unlikely the prowler could have entered his daughter’s room because her window was painted shut. But in a report to a Crime Lab investigator, Tapley reported that the girl’s window had been nailed shut to prevent her from letting people into her room. Torrance said he had no idea where Tapley got that information.
Based on these articles, S. T. filed an action against the owner and publisher of the Savannah Morning News, its managing editor, and the reporters who wrote the articles (“the Newspaper defendants”), 2 as well as Jackie Ayeni, the Vidalia police officer who invеstigated the incident at S. T.’s window. Suit was filed on February 5, 2004, in the Superior Court of Toombs County, where Ayeni then resided. No other defendant resided or maintained a place of business in that county.
In the complaint, S. T. claimed that “[o]ne of the false but clearly intended messages of the... series was that, based on an untruth that the window into Plaintiffs room had to be nailed shut because she let boys in through it, Plaintiff possibly knew and/or had a relationship with [Dickerson].” S. T. alleged that by publishing false statements and her picture, the Newspaper defendants had defamed her and invaded her privacy by portraying her in a false light. S. T. further alleged that Ayeni provided false information to the reporters who wrote the articles, knowing that the information would be published, and with intent to injure and defame S. T. 3
In their responsive pleading, the Newspaper defendants asserted as an affirmative defense that jurisdiction and venue were not proper in Toombs County. In her answer, Ayeni asserted that the statute of limitation had expired on any claim against her. Thereafter, all defendants removed the action to Richmond County pursuant to
Thereafter, S. T. amended her complaint to allege that all defendants were joint tortfeasors because they conspired to defame her, such that venue was proper in Toombs County. S. T. also filed a motion to remand the
Case No. A06A1363
1. S. T. contends that the trial court erred in granting summary judgment to Ayeni based on the expiration of the one-year statute of limitation applicable to actions for injuries to the reputation,
So viewed, the evidence conclusively demonstrates that S. T.’s claims against Ayeni are time-barred. As noted above, S. T. originally claimed Ayeni defamed her; S. T. subsequently amended her complaint to allege that the defendants conspired to defame her and that they invaded her privacy by placing her “in a false light in the public eye.” One of the authors of the articles, reporter and defendant Bret Bell, submitted an affidavit stating that he and/or fellow reporter Tuck Thompson interviewed Ayeni on or about June 20, 2002, and July 25, 2002, and that these were the only occasions on which either reporter obtained any substantive information related to S. T. or her father. The articles were published beginning on February 27, 2003, and the complaint was filed on February 4, 2004.
S. T. advances several theories in support of her position that her claims against Ayeni accrued when the newspaper articlеs were published, but none is persuasive. S. T. first urges that we follow the Restatement (Second) of Torts, § 577, comment f, which states:
One is liable for the publication of defamation by a third person whom as his servant, agent, or otherwise he directs or procures to publish defamatory matter. . .. The fact that the defamatory words are spoken with the intention that they be immediately embodied in a physical form makes thespeaking not only the publication of a slander but a libel as wеll, provided they subsequently are so embodied. 9
But S. T.’s position is not supported by the Restatement because there is no evidence in the record that Ayeni directed or procured the reporters to record and publish her comments. Moreover, the reference in the comment to “the speaking” as “the publication of a slander [and] a libel as well” is consistent with Georgia law. “Under
Next, S. T. argues that the limitation period for conspiracy to defame should run from the date of the publication of the articles, because the publication was the object of the conspiracy. Case law does not support this position. In Barnwell v. Barnett & Co., 11 we stated that “a claim for slander or conspiracy to slander remains a claim for injury to reputation subject to the one-year statute of limitation.” 12 In Lee v. Gore, 13 we similarly stated: “It is well established that claims for slander, libel and conspiracy to libel and slander involve injuries to the reputation and not injuries to the person.” 14 S. T.’s claim of conspiracy to defame is indistinguishable from the conspiracy claims asserted in Barnwell and Lee, and is likewise time-barred.
Finally, S. T. argues that her claim for invasion of privacy is an action for injury to her person, and so is subject to the two-year
limitation period in
Case No. A06A1362
2. S. T. contends that the trial court erred in denying her motion to remand the action to Toombs County because venue was properly laid there. She argues that venue was not based “solely” on
First, it is undisputed that Ayeni was the only defendant who resided in Toombs County. Venue in Toombs County “vanished” when Ayeni was granted summary judgment, 20 so S. T. cannot rely on the joint tortfeasor venue provision of the state constitution, 21 which permits a suit against joint tortfeasors residing in different counties to be brought in any county where one of them resides, to establish venue in Toombs County against the Newspaper defendants.
Thus, the issue is whether the trial court correctly determined that the Newspaper
thе Savannah Morning News delivers its newspapers in bulk ... to a shopping center parking lot in Toombs County. The newspapers are picked up there by independent contract carriers who distribute the papers to homes... and also to news racks that are owned by the Savannah Morning News, but rented by the independent carriers. ... [A] regional circulation manager, who lives in an adjoining county, comes to Toombs County from time to time to recruit and train new contract carriers, to deliver supplies, and to pick up some of the subscription revenues.
Based on these facts, which S. T. apparently does not dispute, the trial court concluded that, although the Newspaper defendants transact business in Toombs County, they do not maintain an office there. This Court has consistently defined an “office” for the purposes of
S.T. argues that venue was also based on
3. S. T. next argues that the trial court erred in granting summary judgment to the Newspaper defendants. As stated above, our review on appeal from a grant of
(a) Libel. S. T. argues that the articles were libelous because they falsely reported that her window had to be nailed shut to prevent her from letting boys in her room. 29 Because the statement was privileged and S. T. did not come forward with evidence of malice, however, we affirm the grant of summary judgment to the Newspaper defendants on this claim.
Newspaper libel is “[a]ny false and mаlicious defamation of another in any newspaper, magazine, or periodical, tending to injure the reputation of the person and expose him to public hatred, contempt, or ridicule.” 30 A conditional privilege applies to “[t]ruthful reports of information received from any arresting officer or police authorities.” 31 It is undisputed that the information gleaned from Tapley’s report was information received from a police authority. S. T. argues that the articles are not privileged because they are not substantially accurate accounts of the contents of Tapley’s report. She contends that the information as published in the articles was not “truthful” because it said that S. T.’s window “had been nailed shut,” while Tapley’s report stated that the window was “said to be nailed shut.” The Newspaper defendants argue that this minor discrepancy is not sufficient to deprive the articles of their privilege.
“While generаlly the issue [of] whether privilege exists is for the jury, summary judgment is proper where defendant establishes as a matter of law that he made privileged statements.”
32
To be a “truthful report” and so privileged under
In the case at bar, the statements in the articles concerning S. T.’s window fairly and honestly reported the information contained in Tapley’s report. The articles were fair because they correctly reported that GBI agent Tapley’s report contained information that S. T.’s window was nailed shut due “to the girl letting boys in her window” and that S. T.’s father denied that the window was nailed shut. The articles were honest because Tapley’s report actually did contain information that S. T.’s window had been nailed shut to keep her from letting boys into her room.
35
The discrepancy between the report and the article as to whether the window had been nailed shut or was said to be nailed shut is immaterial.
36
“Although it must be accurate, at least with regard to all material matters, a substantially accurate report may be privileged, as mere inaccuracies not affecting materially the purport of the article are immaterial.”
37
The Newspaper defendants therefore established as a matter
Finally, although S. T. correctly notes that the conditional privilege afforded by
Although the burden is on the plaintiff at trial to prove actual malice, when a defendant moves for summary judgment, it “must negate a plaintiffs claim of actual maliсe by establishing that it lacked knowledge that the defamatory matter was false or did not publish it with reckless disregard as to whether it was false or not.” 39
Here, reporter Bell submitted an affidavit stating that he did not know or suspect that the GBI report in question was erroneous; that he and Thompson interviewed S. T.’s father, who stated that the window was painted shut, not nailed shut; that both accounts were published because either or both could have been correct; and that there was nо statement in the series of articles which either reporter suspected was false with respect to S. T. S. T. did not come forward with evidence of malice so as to create a jury issue on this claim. It follows that the trial court did not err in granting summary judgment to the Newspaper defendants on the issue of libel.
(b) Invasion of Privacy. There are four species of the tort of invasion of privacy: “(1) intrusion upon the plaintiffs seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; (4) appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.” 40 Here, S. T. claims that the publication of her photograph and the information about her window constituted the third type, known as “false light” invasion of privacy. To establish this claim, a plaintiff must show “the existence of false publicity that depicts [her] as something or someonе which she is not [and] must demonstrate that the false light in which she was placed would be highly offensive to a reasonable person.” 41 S. T. argues that summary judgment should not have been granted on this claim because the articles portrayed her as promiscuous, which she is not, and that such a mischaracterization is highly offensive to a reasonable person.
Even assuming, arguendo, that the articles painted S. T. in a false light, she cannot recover on this claim. “[T]he right to recover under an invasion of privacy theory is restricted where matters of public interest are involved. Where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one’s legal right of privacy.” 42 As the trial court succinctly reasoned, the evidence of record in this case raised
suspicion, if not belief, that the young man found dead in the City Attorney’s pool was the sаme person spotted outside plaintiff s window the night before. The circumstances surrounding Dickerson’s death are of public interest and concern, and the public [’s] right to information generated in the investigation by law enforcement authorities . . . defeats plaintiffs claims of [invasion of] privacy as a matter of law.
Judgments affirmed.
Notes
The Superior Court of Richmond County, which issued the orders that are the subject of these appeals, described “Justice Betrayed,” and Tapley’s role, as follows:
The series had to do with a thwarted GBI investigation of drug use, alleged unlawful recording and dissemination of a GBI agent’s [Tapley’s] cellular telephone calls, her federal case against city officials, the mysterious death of a young black man whose body was found in the swimming pool of the city attorney, and belief by some that the deceased had been outside the window of the city manager’s daughter on the night before he died.
The Newspaper defendants include: Daniel Suwyn, managing editor; Tuck Thompson and Bret Bell, reporters; Morris Publishing Group, LLC; Morris Communications Company, LLC; Morris Communications Holding Company, LLC; Southeastern Newspapers Corporation; and Southeastern Newspapers Company, LLC.
The complaint alleges that Ayeni told the reporters that S. T.’s father would rake the ground outside S. T.’s window for footprints.
Dept, of Human Resources v. Nation,
See
Rabun v. McCoy,
(Citation and punctuation omitted.)
Davis v. Hosp. Auth. of Fulton County,
McCandliss v. Cox Enterprises,
Lee v. Gore,
Restatement (Second) of Torts, § 577, comment f.
(Citation omitted.)
McGee v. Gast,
(Citation omitted.) Id. at 695-696 (2).
Supra.
Id. at 635 (2).
Hudson, supra at 633-634 (3).
Kubach, supra at 708-709 (1).
(Citation and punctuation omitted.)
Cabaniss v. Hipsley,
See
Collipp v. Newman,
Ga. Const, of 1983, Art. VI, Sec. II, Par. IV.
(Citations omitted.)
Carroll City/County Hosp. Auth. v. Cox Enterprises,
McLendon v. Albany Warehouse Co.,
Id. at 866 (1).
(Citations omitted.) Id. at 868 (2);
Scott v. Atlanta Dairies Corp.,
McLendon,
supra at 868 (2) (a warehouse operated by a commissioned agent in Calhoun County was an “office”);
Chrysler Credit Corp. v. Brown,
Compare
Mohawk Indus, v. Clark,
Rabun, supra.
S. T. initially contends in her brief that thе articles were libelous for a second reason, that is, because they falsely reported that she knew Dickerson, but she does not argue how the statement defamed her. Rather, it appears from the trial court’s order and appellant’s brief that this statement may relate to pending litigation brought by S. T.’s father, William Torrance. Therefore, we do not address any claim related to this statement.
(Citation omitted.)
Hyre v. Paxson,
Davis v. Macon Telegraph Publishing Co.,
(Citations and punctuation omitted.)
Lawton v. Ga. Television Co.,
S. T. asserted, both in her complaint and her deposition, that Tapley’s statements that S. T.’s window was nailed shut and that she let hoys into her room were false.
Id.
(Citation and punctuation omitted.) Id.
See
(Citations and punctuation omitted.)
Clayton v. Macon Telegraph Publishing Co.,
Cabaniss, supra at 370.
(Citations and punctuation omitted.)
Assn. Svcs. v. Smith,
(Punctuation omitted.)
Tucker v. News Publishing Co.,