Moreover, a public figure must prove actual malice by clear and convincing evidence. ", "We are sorry for the Tatum family's tragic loss of their son," said Mike Wilson, editor of The News. Id. I understand why people don't include it, she told me. Bentley, 94 S.W.3d at 591. We are unpersuaded by appellees' contrary arguments. Public figure status is a question of law for the court. See Waste Mgmt. Think of how much more attention we pay to the latter. Arbitration & Mediation We agree with the Tatums. He was an excellent and popular student, an outstanding athlete, and had no history of mental illness. As to whether Blow misrepresented his investigation and the sources of his information, Blow testified by deposition that he learned the information about Paul's death that he used in his column from one of his colleagues at DMN. Constr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118, 127 (Tex.2010) (citing dictionaries as aids to interpreting an insurance policy). Insurance Law 13, 2015, pet. Am. Appellees, however, counter that no ordinary reader would think the column defames the Tatums. Dallas Morning News Leading daily newspaper serving the Dallas-Fort Worth area. To the extent West is similar to the instant case, we disagree with it. We held that these affidavits provided clear and specific evidence that the post was about Misko, even though Misko was not named in it. Supreme Court of Texas. We next consider appellees' summary judgment ground that the column contains only nonactionable opinions. The 2010 column, Shrouding suicide leaves its danger unaddressed, urged the public to talk more openly about suicide. Our ePaper and live News feed are now together in one app. 73.002(b)(1)(B). We reject the Tatums' second appellate issue. Generally speaking, the column's italicized words quoted above reflect a theme of alleged dishonesty by people, including those who wrote Paul's obituary, who refuse to acknowledge that someone committed suicide. Based on the record before us, we conclude that the Tatums were not limited-purpose public figures. We thus conclude that the Tatums pled claims for both libel per quod and libel per se. There is thus some evidence from which a reasonable factfinder could find negligence's first prongthat appellees should have known of the defamatory statement's falsity, but failed to use reasonable care to ascertain the truth of the column's gist. Morning News, Inc., 493 S.W.3d 646, see flags on bad law, and search Casetext's comprehensive legal database . Agriculture Law (quoting Bell Publ'g Co. v. Garrett Eng'g Co., 170 S.W.2d 197, 204 (Tex.1943)). As the Court notes, the obituary stated that their son died "as a result of injuries sustained in an automobile accident." Their son had shot himself after he had been involved in a car accident. Id. The Tatums wrote an obituary for Paul and paid DMN to publish the obituary in the Dallas Morning News newspaper. Benjamin has a Bachelors in philosophy and a Master's in humanities. denied), further supports this conclusion. Accordingly, the court held that the columns were nonactionable opinions. The Dallas Morning News Access ePaper Optimized for your device. Prac. Dist., 858 S.W.2d 337, 341 (Tex.1993) (A motion [for summary judgment] must stand or fall on the grounds expressly presented in the motion.). Courthouse News brings us this lawsuit filed two days ago in Dallas County District Court: John Tatum and Mary Ann Tatum v. The Dallas Morning News, inc. and Steve Blow. Finally, the Tatums point to their minister's testimony that he called Blow to express his concerns about the column and that Blow's first response was, Did I get my facts right?. On Petition for Review from the Court of Appeals for the Fifth District of Texas. Are the Tatums limited-purpose public figures? See id. Admiralty & Maritime Law We assume without deciding that the defamatory publication in this case generally involved a matter of public concern (preventing suicides), and the Tatums do not dispute that appellees are media defendants. The column purported to support this gist with the factual assertion that Paul committed suicide out of remorse, implicitly calling the obituary's statement that Paul died as a result of injuries sustained in an automobile accident a lie. at *4. at 1020. In this libel-by-implication case, a column written by Steve Blow and published by The Dallas Morning News (collectively, Petitioners) was reasonably capable of meaning that John and Mary Ann Tatum acted deceptively and that the accusation of deception was reasonably capable of defaming the Tatums. at 10. In Lipsky, for example, the supreme court said, Defamation's elements include (1) the publication of a false statement of fact to a third party 460 S.W.3d at 593 (emphasis added). Rhetorical hyperbole is extravagant exaggeration employed for rhetorical effect. The Tatums argue that there was, focusing specifically on the intent that the word deception implies. ); see also Civ. Even assuming that investigations by the police and the medical examiner are official proceedings, the column does not purport to report about those proceedings. That question remains to be decided by the factfinder. Additionally, the summary judgment evidence established that the Tatums were out of town the day the column was published. See id. Get free summaries of new Supreme Court of Texas opinions delivered to your inbox! Legal Ethics In two appellate issues, the Tatums urge that the trial court erred in granting the summary judgment dismissing their libel and DTPA claims. I'm told there was a time when the word cancer was never mentioned. 2015 WL 5156908, at *6 n.6. He made his way home from the accident scene and began drinking champagne. Nonetheless, a journalist may not omit and juxtapose facts in such a way as to make the facts reported convey a false gist or meaning. His testimony demonstrates his training and expertise in the field of accident reconstruction. They also produced evidence from which a reasonable jury could find that (i) Blow misrepresented his investigation and sources of information and (ii) Blow had some motive not to probe into the column's truth regarding the Tatums and the obituary. In his affidavit, Blow said that he wrote the column to express his opinion that it is troubling that society allows suicide to remain cloaked in secrecy and deception, and that secrecy about suicide leaves us greatly underestimating the danger of it. He also testified by deposition that if he discovered a deception, a misleading obituary, that's fair game for commentary. Additionally, Julie Hersh testified by deposition that she met with Blow before he published the column and that they were both outraged by the lack of discussion about suicide. The Tatums sued both appellees for libel and libel per se. Newspapers don't write about suicides unless they involve a public figure or happen in a very public way. But in late 2015, the 5th District Court of Appeals ruled that the lawsuit could go forward. Specifically, the Tatums produced evidence that Blow did not contact them to determine the basis for their choice of words in Paul's obituary, and that this failure to contact them was a breach of journalistic standards and the newspaper's own policies. Our decision in Backes v. Misko, No. Regardless, the statements involved in Haynes are not similar to the accusation of deception that we address here. Even if the statements in a publication are not defamatory when taken individually, a publication can be defamatory if it creates a defamatory impression by omitting material facts or juxtaposing facts in a misleading way. (describing general-purpose public figures as those who have achieved such pervasive fame or notoriety as to be public figures for all purposes). & Rem.Code Ann. %%EOF In that case, Dr. Neely was disciplined for self-prescribing medications, but a news broadcast about him could reasonably have been understood to report that he was actually disciplined for operating on patients while using dangerous drugs or controlled substances. Here, because we have concluded that the evidence in this case raises a genuine fact issue as to whether the column is substantially true, the summary judgment cannot be upheld based on the fair comment privilege. Steve Blow is a columnist for The Dallas Morning News. And those who did know were already aware of the confusion caused by the obituary. 051400951CV, 2015 WL 5156908, at *5, *8 (Tex.App.Dallas Aug. 28, 2015, pet. The Dallas Morning News published the obituary on May 21, 2010. Oddly, it was considered an embarrassing way to die. Specifically, the following circumstantial evidence bears on, or could have affected, the Tatums' state of mind when they wrote the obituary and supports the verifiability of the column's gist: (i) the Tatums searched for answers to the question of why Paul did it; (ii) both Tatumsand we note that Mary Ann Tatum is a mental health professionaltestified that Paul had no history of mental illness associated with suicidal behavior; (iii) Paul left no suicide note; (iv) Paul's texts to friends after the accident made it seem that something had happened in the accident to change his state of mind; (v) the vehicle's condition made it seem probable that Paul hit his head in the accident; and (vi) the Tatums researched online and discovered that emerging scientific data links brain injury to suicidal behavior. Examples of defamation per se include (i) accusing someone of a crime, (ii) accusing someone of having a foul or loathsome disease, (iii) accusing someone of serious sexual misconduct, and (iv) disparaging another's fitness to conduct his or her business or trade. Did the Tatums raise a genuine fact issue that appellees acted with the necessary degree of culpability? (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. A reasonable juror could conclude that a hypothetically true column would have been less damaging to the Tatums' reputation because it would have mentioned that the Tatums claimed to have written the obituary in a good faith belief in its truth and without an intent to deceive. The column omits the reasons why the Tatums believed their account of the cause of Paul's suicide was true. Our supreme court, however, has embraced the Milkovich verifiability test. Neely, 418 S.W.3d at 70. Waste Mgmt. 17.50(a)(1)(A)(B). Alabama asked the U.S. Supreme Court to freeze the district court's injunction, which the Court did by a 5-4 decision pending a merits decision. Appellees negated actual malice, defeating the Tatums' libel claims entirely if they are limited-purpose public figures and defeating their exemplary damage claims if they are private figures. Justice Brown delivered the unanimous . But, as Neely holds, a publication's gist can be false through the omission or juxtaposition of facts, even though the publication's individual statements considered in isolation are literally true. Id. Appellees' summary judgment motion argued that (i) they proved the column was true or substantially true and (ii) the Tatums had no evidence of any false statement of fact in the column. Blow, who did not contact the Tatums before writing his column, called for the public to more openly discuss mental illness, which is often a factor in suicides. See id. Haynes is distinguishable. And, for a matter to be a public controversy, its resolution must affect people beyond its immediate participants. For the reasons discussed below, we conclude that their cases are distinguishable or otherwise unpersuasive. 17.46(b)(24); see also Brennan v. Manning, No. Viewing the evidence in the light most favorable to the Tatums, we conclude that a reasonable person could find that people who knew the Tatums would reasonably understand that the column referred to the Tatums. Believing that Paul's suicide was caused by a brain injury he sustained in the earlier automobile accident, the Tatums stated in the obituary that Paul died "as a result of injuries sustained in an automobile accident." We also conclude that the evidence raises a genuine fact issue as to actual malice. (the undisclosed information must be about the goods or services being rendered). Disposal Sys. Education Law at 187. "With its unanimous ruling, the court affirmed that Steve Blow's piece was clearly an opinion column protected by law.". Here, the column did not mention Paul or the Tatums by name. The Neely court explained the fair comment privilege as follows: Comments based on substantially true facts are privileged if fair; comments that assert or affirm false statements of fact are not privileged. Id. Appellees asserted several summary judgment grounds. b. Julie recently wrote a blog item titled Don't omit from the obit, urging more openness about suicide as a cause of death. That decision, which backed the Tatums defamation claims, said readers could construe the column to suggest that Paul suffered from mental illness.. Bentley, 94 S.W.3d at 591; see also N.Y. Times Co. v. Sullivan, 376 U.S. 254, 27980 (1964). Although the West court acknowledged and purported to apply the Milkovich analysis, it disregarded Milkovich's conclusions that accusing a person of being a liar or committing perjury can be sufficiently verifiable to constitute an actionable statement of fact rather than a nonactionable opinion. 051401318CV. at 6768. Am. The Tatums argue that the service at issue is publishing the obituary. Appellees' contrary argument fails on the first prong we referenced abovethe existence of a public controversy for the Tatums to participate in. Naturally, with such a well-known figure, the truth quickly came out. Government Contracts My column told them nothing they didn't already know. And, in his deposition, Blow testified that he thought that people who knew both what the obituary said and that Paul shot himself would recognize the reference in his column. One month later, on Father's Day, June 20, 2010, DMN published a column written by Blow. The evidence shows that DMN published Paul's obituary, and the Tatums do not allege that the obituary itself did not conform to their order. A reasonable juror could conclude that Blow was not honest when he testified about the sources of his information about Paul's death. By pleading Libel and Libel per se separately, they used Libel as a shorthand for libel per quodmuch as the Hancock court used defamation as a shorthand for defamation per quod. See id. For the above reasons, we conclude that the summary judgment cannot be sustained on the grounds that the column stated only nonactionable opinions about the Tatums or that there was no evidence that appellees published any actionable statements of fact. The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. Without naming the Tatums, Blow quoted from the obituary, which said the teen died from injuries sustained in a car accident, and wrote that suicide remains cloaked in such secrecy, if not outright deception., The court's opinion said that in accusing the Tatums of deception, the column was reasonably capable of being defamatory. (a publication qualified for the privilege only if it purported to be, and was, only a fair, true and impartial report of what was stated at a city council meeting). With staffers in D-FW, Austin, Washington and along the Mexican border, we follow the story whatever it goes to deliver the deepest reporting in the Lone Star State. The trial court later lifted the stay and again rendered a take-nothing summary judgment against the Tatums. The summary judgment evidence included a copy of the printed version of the newspaper column that prompted this suit. Neely's substantial truth analysis is instructive. The medical examiner ruled the teens death a suicide. Id. (A publication is of and concerning the plaintiff if persons who knew and were acquainted with him understood from viewing the publication that the defamatory matter referred to him.). Three, they did not intend to cover up Paul's suicide, and they knew that some of Paul's friends already knew he had committed suicide. The gist also implies that the explanation the Tatums gave for the cause of Paul's death was false and that Paul committed suicide because of remorse rather than because of injuries suffered in the auto accident. Entertainment & Sports Law We agree with the Tatums. As to the Tatums' first point, we agree that the column is capable of a defamatory meaning about them because a person of ordinary intelligence could read the column to accuse the Tatums of deception about the cause of Paul's death and a statement is defamatory if it impeaches a person's honesty or integrity. We construe an allegedly defamatory publication as a whole, in light of the surrounding circumstances, based on how a person of ordinary intelligence would perceive it. filed). Transportation Law The Tatums' live pleading asserted Libel as count 1 and Libel per se as count 2. Appellees made objections to the affidavits in the trial court, which the trial court overruled. Id. THE DALLAS MORNING NEWS, INC. AND STEVE BLOW v. JOHN TATUM AND MARY ANN TATUM; from Dallas County; 5th Court of Appeals District (05-14-01017-CV, 493 SW3d 646, 12-30-15) 7. The Tatums' argument fails because the information that DMN allegedly failed to disclose does not concern the service they bought. But a statement couched as an opinion may be actionable if it expressly or implicitly asserts facts that can be objectively verified. Election Law We disagree. They already face a grief more intense than most of us will ever know. For the above reasons, we conclude that a person of ordinary intelligence could construe the column to suggest that Paul suffered from mental illness and his parents failed to confront it honestly and timely, perhaps missing a chance to save his life. The trial court granted summary judgment for Petitioners. Accordingly, the Tatums submitted enough evidence to raise a genuine fact issue regarding whether they believed what they said in the obituary was true, did not intend to mislead or deceive anyone, and did not believe Paul suffered from mental illness. (to cause to believe the false); Deceive, Garner's Dictionary of Legal Usage (3d ed.2011) (to induce someone to believe in a falsehood); Deceive, The New Oxford American Dictionary (2001) (cause (someone) to believe something that is not true, typically in order to gain some personal advantage).3 Thus, a person of ordinary intelligence could, under the circumstances, at this point alone read the column to have a defamatory meaning by impeaching the Tatums' honesty and integrity. But a topic is not a public controversy merely because some people are talking about it: A general concern or interest will not suffice. Thus, there is evidence that Blow did not investigate this column with the same thoroughness that he did for a previous column and that his explanation for the difference was not true. Subscribe to Justia's The Tatums' first appellate issue argues that the trial court erred by granting summary judgment on their libel claims. You're all set! 73.001. 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Must prove actual malice by clear and convincing evidence the 2010 column, Shrouding suicide its... Decided by the obituary on May 21, 2010 for Paul and paid DMN publish! Included a copy of the printed version of the confusion caused by obituary. Honest when he testified about the goods or services being rendered ) that acted! Tatums ' live pleading asserted libel as count 1 and libel per se this suit ( a ) b! Contrary argument fails because the information that DMN allegedly failed to disclose does not the. Information must be germane to the plaintiff 's participation in the field accident. Appeals for the Dallas Morning News newspaper urged the public to talk more openly about suicide rhetorical is! History of mental illness Optimized for your device June 20, 2010 ruling the..., we conclude that the Tatums by name which the trial court,,! For Review from the court of Texas opinions delivered to your inbox account of the newspaper that... 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