Colbert v. World Publishing Co.

1987 OK 116, 747 P.2d 286, 14 Media L. Rep. (BNA) 2188, 1987 Okla. LEXIS 277, 1987 WL 1975

• Court: Supreme Court of Oklahoma
• Decided: November 24, 1987
• Docket: 62856
• Status: Published

Opinions

KAUGER, Justice.

The two questions presented are: 1) whether the statute of limitations in an action for false light invasion of privacy is the one year limitation period prescribed for libel and slander actions pursuant to 12 O.S. 1981 § 95 (Fourth), or if because the cause of action is an unenumerated tort, the two year limitation period contained in 12 O.S. 1981 § 95 (Third) governs; and 2) whether mere negligence by a media defendant is sufficient to allow recovery for false light invasion of privacy. We find that the two year limitation period is controlling, and that the standard of liability is measured not by negligence but by knowingly or recklessly casting the appellee in a false light.

On July 3, 1980, the appellants, World Publishing Company and Newspaper Printing Corporation, published a newspaper article reporting the death of a former, local school teacher who had been convicted of a gruesome murder, and who was reported to be mentally ill. Attached to this article was a photograph of the appellee, Frenche Colbert. Shortly after Colbert, a resident of Phoenix, Arizona, was told about the article by members of his family — who knew he was not a convicted murderer, mentally ill or dead — he returned to Oklahoma. Friends and acquaintances who saw him during his Oklahoma visit teased and ridiculed him, even though they knew that he was neither a murderer nor mentally ill. Colbert contacted the newspaper concerning the possibility of a correction or retraction; however, the article was not retracted or corrected and, ten days later, Colbert returned to Phoenix. Twenty-three months later, in June, 1982, Colbert commenced this action, claiming that the appellants had recklessly placed him in a highly offensive false light in the public eye causing him severe mental anguish and distress, and seeking actual and punitive damages.

The appellants answered, admitting the publication of the article and photograph in question, but denying any knowledge or reckless disregard as to the falsity of the publicized matter, or the false light in which the appellee might have been placed. As an affirmative defense, the appellants claimed that the petition was filed more than one year after the publication, and was, therefore, barred by the one-year Statute of Limitations on actions for defamation. (The Statute of Limitations issue was disposed of in a pre-trial ruling, and was not presented to the jury.)

The appellants also urged that no liability for false light invasion of privacy could be imposed absent a showing of actual knowledge or reckless disregard as to the falsity of the published matter. However, in a subsequent pre-trial ruling, the trial court decided that in order to show sufficient “reckless disregard” to recover for false light invasion of privacy, one need not show that the appellants subjectively entertained serious doubts as to the truth of the publication¹ — the proper test to be applied when a public figure or public official seeks recovery from a media defendant in a libel action.² The trial court rejected the proposed jury instructions proffered by the appellants which would have required a finding of actual knowledge or recklessness of the false light in which the appellee was cast. Instead, the trial court instructed the jury that the appellee would be entitled to recover if the appellants were found to be negligent.

The evidence of fault in this case is that several years prior to the publication in question, the appellee’s sister sent his photograph to the appellants, together with information about his recent graduation from law school. The photograph was somehow mishandled in the appellants’ archives, and in an unknown way, it was included with material regarding the infamous and unfortunate school teacher. There was no showing of malice in law, in the sense of actual knowledge or reckless disregard of the falsity of the publication, or of the false light in which the plaintiff would be cast.³ Based on the absence of proof of recklessness, the trial court refused to submit the claim for punitive damages to the jury, but it allowed the jury to consider the actual damages which the ap-pellee might have suffered as a result of the appellants’ negligence. The jury returned a verdict for the appellee, fixing his damages at $65,000.

I

BECAUSE THE TORT OF FALSE LIGHT INVASION OF PRIVACY IS AN UNENUMERATED TORT, THE STATUTE OF LIMITATIONS IS TWO YEARS PURSUANT TO 12 O.S. 1981 § 95 (Third).

The facts alleged could support at least two recognizable theories of recovery: libel and false light invasion of privacy. Because Frenche Colbert is unquestionably a private figure, as opposed to a public official or public figure, recovery could be secured under a libel theory without proof of malice.⁴ He would merely need to prove the negligent publication of a defamatory falsehood by which he suffered damage.⁵ However, an action based on this theory of recovery would have to be brought within one year of publication.⁶

The theory of recovery, which is generally referred to as false light invasion of privacy, in some ways overlaps the more familiar defamation.⁷ Additionally, it may serve, when paired with a defamation claim, as an alternative or cumulative avenue for relief from a single wrongful occurrence.⁸ The significant differences between libel and false light invasion of privacy are in the interests sought to be protected and the degree of fault which must be shown in order to effect recovery. In an action for libel, recovery is sought primarily for the injury to one’s reputation. The focus of the action is on the effect of the publication on what others may think of the person.⁹ Under the theory of false light invasion of privacy, the interest to be vindicated is the injury to the person’s own feelings.¹⁰ Although single publication could conceivably touch both interests, in this case no injury to the reputation of Prenche Colbert is alleged nor was any proven. The trial court properly refused to apply the one year limitation period prescribed for recovery under the theory of libel.

The proper limitation period in which to commence an action to recover for mental anguish and emotional distress under the theory of false light invasion of privacy is two years. We have recently discussed the rationale for determining the controlling limitations period in such actions. In Williams v. Lee Way Motor Freight, 688 P.2d 1294, 1297 (Okla.1984), we held that an action for injury to the rights of another not arising on contract must be brought within two years, unless it falls among the specifically enumerated tort claims which must be brought within one year.¹¹ In Williams, recovery was sought by an employee for mental anguish and emotional distress suffered on the job, based on the relatively new tort theory of intentional infliction of emotional distress. The trial court entered summary judgment in favor of the employer, finding that the action should have been brought within one year of the alleged injury. On appeal, the employer urged a statutory construction which would group the new tort of intentional infliction of emotional distress with the other tort theories specifically enumerated in 12 O.S. 1981 § 95(4).¹²

This Court held that the Legislature’s failure to include this new tort theory with the other more traditional theories, which had to be initiated within one year, was indicative of the Legislature’s intent that actions of this type be governed by the more general, two-year statute of limitations provided by 12 O.S. 1981 § 95(3).¹³ This reasoning is applicable here because the tort theory of false light invasion of privacy is not listed with those specific theories which must be sued upon within one year. The general two-year limitation period was applied correctly.

II

THE DEGREE OF FAULT REQUIRED FOR THE TORT OF FALSE LIGHT INVASION OF PRIVACY IS THE KNOWING AND RECKLESS DISREGARD OF THE FALSE LIGHT IN WHICH THE PERSON IS BEING CAST

A.

The tort theory of invasion of privacy first gained judicial recognition in Oklahoma in the case of Munley v. ISC Financial House, Inc., 584 P.2d 1336 (Okla.1978), as an adjunct to the recognized right to recover for intentional infliction of emotional distress. The Munley court regarded both tort theories as part of a “modern development in the law to afford some redress to plaintiffs that have suffered from certain previously non-actionable forms of anti-social behavior.”¹⁴ The Court was careful to avoid the implication that a lawsuit could be premised on mere harm to one’s feelings. The Court discussed with approval the standard advanced in the Restatement of the Law of Torts (Second), which required intentional conduct which would reasonably be regarded as extreme or outrageous, or intentional intrusion upon the solitude or seclusion of another in a manner that would be highly offensive to a reasonable person. No recovery was allowed in that case because, although the intrusion into Munley’s solitude was intentional, the Court found that it was not such as would have been highly offensive to a reasonable person.

More recently, in the case of McCormack v. Oklahoma Publishing Company, 613 P.2d 737 (Okla.1980), we again considered the elements of an action based on invasion of privacy, specifically adopting the treatment of that subject in the Restatement of the Law of Torts (Second). One of the claims for relief in that case was that there was publicity placing McCormick in a false light. Relying on the Restatement, the court defined the elements of this claim:

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”¹⁵

The Restatement’s use of the language “knowledge or ... reckless disregard as to the falsity” reflects the view taken by the Supreme Court of the United States in Time, Inc. v. Hill, 385 U.S. 374, 389-90, 87 S.Ct. 534, 542-43, 17 L.Ed.2d 456, 467-68 (1967). There, the Court stated:

“We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person’s name, picture or portrait, particularly as related to non-defamatory matter. Even negligence would be a most elusive standard, especially where the content of the speech itself affords no warning of prospective harm to another through falsity. A negligence test would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.”¹⁶

The Court also held that in contrast to statements falling within the constitutional guarantee of freedom of the press, knowingly false statements and false statements made with reckless disregard of the truth, do not enjoy constitutional protection.¹⁷

Subsequently, the Supreme Court of the United States determined in the case of Cantrell v. Forest City Publishing Company, 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974), that a private figure might recover against a media defendant under a false-light theory of invasion of privacy for the publication of knowing or reckless falsehoods. However, the Court specifically avoided the opportunity to discuss the issue of whether a state could properly apply a more relaxed standard of fault, such as negligence, to this theory of recovery.¹⁸

Relying on the foregoing authority, the appellee argues that the adoption of a more relaxed standard, such as negligence, would not offend the federal constitution. Only three jurisdictions have allowed a plaintiff to recover under a negligence theory.¹⁹ Those jurisdictions concluded that because of the strong similarity between a false light claim and a defamation claim the Gertz v. Welch, 418 U.S. 323, 356, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, 809 (1974), standard should replace the Time, Inc. v. Hill, teaching in the area of false light privacy. The relaxation of the Hill rule may be premature because (1) the Hill decision was expressly limited to a private figure involved in a matter of public interest, (2) the Hill opinion was handed down prior to the extension of the constitutional standard to libel suits brought by public figures, (3) the common law restrictions on libel suits are more severe than the restrictions in false light privacy suits, and (4) false light cases often arise where no substantial danger to the sensitivities of the plaintiff appears from the face of the publication.²⁰ The majority of jurisdictions have followed the rule espoused by Hill.21

We have previously considered the test by which recovery of this sort is to be measured, and have adopted the Restatement view — that the defendant must have knowledge of, or act in reckless disregard as to the falsity of the publicized matter or the false light in which another would be placed. This is the equivalent of the Hill teaching that actual malice must be proven with convincing clarity by showing that the defendant had a high degree of awareness of probable falsity or in fact entertained serious doubts as to the truth of the publication.²² In Munley, we said that:

“There is simply no room in the framework of our society for permitting one party to sue on the event of every intrusion into the psychic tranquility of an individual. If recovery for damage done is to be afforded at all, there must be some test by which to weed out those suits premised on mere discord between individuals while preserving those where the conduct of individuals involved has clearly exceeded tolerable bounds of social deportment.”²³

We find that the right of action for false light invasion of privacy is a product of the same societal need as the tort of outrage or intentional infliction of emotional distress,²⁴ which will lie only in the presence of extreme and outrageous conduct. We have adopted a standard of knowing or reckless conduct to afford recovery to those who suffer mental anguish by reason of a false light invasion of privacy.²⁵ Consequently, we are committed to that standard, and will not now adopt a standard of recovery which imposes liability on one who accidentally or negligently injures the feelings of another.

B.

At the conclusion of all the evidence, during arguments on the parties’ motions for directed verdict, the appellee conceded the absence of malice, offered no objection to the trial court’s elimination of the issue of punitive damages from the jury’s consideration, and failed to request a pertinent jury instruction.²⁶ The trial court refused to submit the issue of punitive damages to the jury upon a failure of proof on the issue of malice.²⁷ This finding is consistent with our review of the evidence. The malice necessary to create a jury question on the issue of punitive damages would have been reflective of the same standard needed to establish recovery for false light invasion of privacy — knowing or reckless disregard of the false light in which the appellee was being cast. The appellee stated in the record that he was bringing this action only under the negligence theory.²⁸ He has waived the issue of whether the newspaper’s conduct could constitute reckless disregard and thus meet the Hill standard of malice. Therefore, we find appellee’s possibility of recovery foreclosed. Having failed to show reckless disregard, he may not recover for his mental anguish and emotional distress under the theory of false light invasion of privacy, and having failed to bring this action within the year following publication, he may not recover for the negligent injury to his reputation under a libel theory.

REVERSED WITH DIRECTIONS TO RENDER JUDGMENT FOR APPELLANTS

DOOLIN, C.J., and HARGRAVE, V.C.J., HODGES, LAVENDER and SUMMERS, JJ., concur.

1 . St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968).

2 . New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094, 1110 (1967).

3 . New York Times Co. v. Sullivan, see note 2, supra.

4 . Gertz v. Welch, 418 U.S. 323, 346, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, 809 (1974).

5 . Martin v. Griffin Television, Inc., 549 P.2d 85, 92 (Okla.1976). See also Annot., "Libel and Slander: Necessity of Expert Testimony to Establish Negligence of Media Defendant in Defamation Action by Private Individual," 37 A.L. R.4th 987 (1985).

6 . Title 12 O.S. 1981 § 95 (Fourth) provides in pertinent part:

"Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: ... Fourth. Within one (1) year: An action for libel, slander, assault, battery, malicious prosecution or false imprisonment....”

7 . McCormack v. Oklahoma Publishing Co., 613 P.2d 737, 740-41 (Okla.1980). See also, Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 89 (W.Va.1984).

8 . Chandler v. Denton, 741 P.2d 855, 862-63 (Okla.1987); Retherford v. Halliburton, 572 P.2d 966, 969 (Okla.1978); Doss Oil Royalty Co. v. Texas Co., 192 Okla. 359, 137 P.2d 934, 936 (1943).

9 . Martin v. Griffin Television, Inc., see note 5, supra.

10 . Munley v. ISC Financial House, Inc., 584 P.2d 1336, 1338-39 (Okla.1978).

11 . Williams v. Lee Way Motor Freight, 688 P.2d 1294, 1297 (Okla.1984).

12 . See note 6, supra.

13 . Title 12 O.S. 1981 § 95 (Third) provides:

"Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: ...

Third. Within two (2) years: ... an action for injury to the rights of another, not arising on contract and not hereinafter enumerated;..."

14 . Munley v. ISC Financial House Inc., note 10, supra.

15 .There is a disagreement among commentators concerning whether the invasion of privacy constitutes a single tort or four separate torts. See Annot., "False Light — Invasion of Privacy— Cognizability and Elements, 57 A.L.R. 4th 23 (1987). However, in McCormack v. Oklahoma Publishing Co., note 7, supra, this Court adopted the Restatement (Second) of Torts § 652A (1977), specifically recognizing that the generic tort of the invasion of the right of privacy is divided into four separate categories:

"(a) unreasonable intrusion upon the seclusion of another,

(b) appropriation of the other's name or likeness,

(c) unreasonable publicity given to the other's private life,

(d) publicity that unreasonably places the other in a false light before the public, ..."

It is the latter tort which concerns us here.

16 . Time, Inc. v. Hill, 385 U.S. 374, 389-90, 87 S.Ct. 534, 542-43, 17 L.Ed.2d 456, 467-68 (1967).

17 . Id. See also, S. Metcalf, "Rights and Liabilities of Publishers and Broadcasters,” §' 2.44, p. 108 (1982).

18 . Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Cantrell v. Forest City Publishing Co., 419 U.S. 245, 250, 95 S.Ct. 465, 469, 42 L.Ed.2d 419, 426 (1974); Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 88 (W.Va.1984); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840, 845 (1979). See also Note, "False Light: Invasion of Privacy?”, 15 Tul.LJour. 113, 133-34 (1979); Restatement (Second) of Torts § 652E, comment d (1977).

19 . Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1092 (5th Cir.1984); Dresbach v. Doubleday & Co., 518 F.Supp. 1285, 1288 (D.C.1981); Crump v. Beckley Newspapers, Inc., see note 18, supra at p. 89.

20 . Time, Inc. v. Hill, see note 16, supra; Curtis Publishing Co. v. Butts, 388 U.S. 130, 148-55, 87 S.Ct. 1975, 1988-92, 18 L.Ed.2d 1094, 1107-11 (1967); S. Metcalf, "Rights and Liabilities of Publishers and Broadcasters,” § 2.47, p. 112, 114-15 (1982).

21 . Fitzgerald v. Penthouse International, Ltd., 691 F.2d 666, 670 (4th Cir.1982); Cantrell v. American Broadcasting Companies, Inc., 529 F.Supp. 746, 759 (N.D.Ill.1981); Holmes v. Curtis Publishing Co., 303 F.Supp. 522, 526 (D.S.C.1969); McCall v. Courier-Journal & Louisville Times, 623 S.W.2d 882, 888 (Ky.1981); McCormack v. Oklahoma Publishing Co., 613 P.2d 737, 740-41 (Okla.1980); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840, 845 (1979); Rafferty v. Hartford Courant Co., 36 Conn.Sup. 239, 416 A.2d 1215, 1218 (1980). See also S. Metcalf, "Rights and Liabilities of Publishers and Broadcasters”, § 2.46, p. 112-13 (1982); Restatement (Second) of Torts § 652E (1977).

22 . Fitzgerald v. Penthouse Intern., Ltd., see note 21, supra; Dresbach v. Doubleday & Co., 518 F.Supp. 1285, 1288 (D.C.1981); Rinsley v. Brandt, 446 F.Supp. 850, 855 (D.Kan.1977); Dodrill v. Arkansas Democrat Co., see note 21, supra; Rafferty v. Hartford Courant Co., see note 21, supra. See also, Restatement (Second) of Torts § 652E, comment d (1977); S. Metcalf, "Rights and Liabilities of Publishers and Broadcasters”, § 2.44, p. 108 (1982).

²³

24 . Id.

25 . McCormack v. Oklahoma Publishing Co., note 7, supra.

26 . The appellee’s attorney stated in the record that:

"I’d rather have Gertz and the language in Gertz, but again we’re dealing in a negligence case and we’re dealing in any kind of reckless wanton behavior, then it’s a jury question because although if we’re talking about actual knowledge in terms (sic) of a subjective standard, someone has to have this conscious subjective idea that I'm going to do something reckless here and I don’t care or I’m going to do this on purpose to hurt somebody, that kind of actual malice standard, we don’t have it here. There’s no way that’s going to be the case. This is a negligence situation. It’s not that type of subjective actual malice.”

27 . Title 23 O.S. 1981 § 9 provides that:

“In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant.”

28 . Even though the petition in this cause alleged that the newspaper recklessly placed the appel-lee in a false light, the appellee alleged that in the pretrial order he stated that he would be bringing this action in negligence. The pretrial order controls the subsequent course of the action and the pleadings are deemed to have been amended to conform to the order. 12 O.S.1981 Ch. 2, App., Rule 5. The discussion of this matter in the record follows:

"THE COURT: And it's been my understanding really from very early on in the case the petition stated reckless, that the paragraph is going to indicate that you are negligent and the photographs admitted on that assumption.

MR. TAYLOR: I might add for the record, too, because in this court we don’t often have written pretrial orders but Your Honor keeps the pretrial orders in the file. The pretrial order was conducted in this case after two or three arguments on the burden of proof and on the standard that would be at issue and that I had stated at that time I would be bringing in a negligence instruction and bringing it on a negligence area and the Defendants made it likewise and indicated they would bring it on actual malice based on New York Times v. Sullivan. That's been the case on pretrial and before.

THE COURT: That was my understanding that the position of the Defendants were going to take was the Time standard should apply. The Plaintiff was going to allege and prove negligence.”