Northport Health Services, Inc. v. Owens

107 S.W.3d 889, 82 Ark. App. 355, 2003 Ark. App. LEXIS 451
CourtCourt of Appeals of Arkansas
DecidedMay 28, 2003
DocketCA 02-875
StatusPublished
Cited by6 cases

This text of 107 S.W.3d 889 (Northport Health Services, Inc. v. Owens) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northport Health Services, Inc. v. Owens, 107 S.W.3d 889, 82 Ark. App. 355, 2003 Ark. App. LEXIS 451 (Ark. Ct. App. 2003).

Opinion

Terry Crabtree, Judge.

This is a case involving claims of defamation and wrongful discharge. A Washington County jury returned a verdict in favor of appellees and awarded damages. The trial court later awarded attorney’s fees and costs. Appellants raise four points on appeal, essentially challenging the sufficiency of the evidence to support the verdict. We affirm.

Appellant Northport Health Services (Northport) operates the Fayetteville Health and Rehabilitation Center (Center), and appellant Kristy Unkel is the Director of Nursing at the Center. Appellees Diane Owens and Alisa Main are licensed practical nurses (LPNs) who worked at the Center until they were fired in April 2000, after allegations were made against them by certain certified nurse’s assistants (CNAs) with whom they worked. The specific allegations were that Owens failed to chart a fall by resident Maggie Jones and that Main had verbally abused a resident and failed to give another resident pain medication after being advised by a CNA of the need for such medication. Following their termination, appellees filed suit, alleging that appellants defamed them by reporting the allegations to the state Office of Long Term Care (OLTC) and the Fayetteville Police Department. Appellees also alleged that they were wrongfully terminated in violation of public policy and appellants’ own policies because appellees had made complaints to the Director of Nursing concerning improper patient care. The complaint sought compensatory and punitive damages, attorney’s fees, and costs. Appellants answered, denying the allegations, asserting that they acted in good faith and that the communications to OLTC and the Fay-etteville Police Department were mandated by law and, therefore, privileged. The case was tried to a jury in March 2002.

The jury returned a verdict on interrogatories and found that appellee Owens was wrongfully discharged in violation of public policy but that appellee Main was not wrongfully discharged in violation of public policy. The jury also found that appellant Unkel and other employees had caused appellees to suffer damages by publishing defamatory statements concerning each appellee, that the statements exceeded the scope of the privilege to communicate the statements, and that the statements were not made in good faith. The jury awarded appellee Owens damages of $67,740 on the wrongful-discharge claim and $200,000 on the defamation claim. The jury awarded appellee Main damages of $65,000 on the defamation claim. The trial court entered judgment on the verdict and also awarded appellee Owens attorney’s fees of $15,000 on the wrongful-discharge claim. This appeal followed.

In Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002), the supreme court explained the standard of review for determining whether there was substantial evidence to support the jury verdict:

Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. In determining the existence of substantial evidence, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give it its highest probative value, taking into account all reasonable inferences deducible from it. In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury.

Id. at 262, 85 S.W.3d at 889 (citations omitted). See also Sparks Reg’l Med. Ctr. v. Smith, 63 Ark. App. 131, 976 S.W.2d 396 (1998).

Appellants’ first two points concern the defamation claims. In their first point, appellants argue that they are entitled to judgment as a matter of law. Specifically, appellants argue that there was no substantial evidence that either actionable defamation occurred or that appellees suffered any damages to their reputations. In their second point, appellants argue that the evidence was insufficient to support any award of damages to either appellee.

First, appellants argue that there was no publication because Ark. Code Ann. § 5-28-203(a)(1)(0) (Supp. 2001) requires institutions such as it and persons such as appellant Unkel, the Director of Nursing and thus a facility administrator, to report suspected cases of abuse or neglect to the OLTC. Appellants further argue that Ark. Code Ann. § 5-28-215 (1997) gives them immunity from suit for making such reports. Section 5-28-215 provides:

(a) Any person, official, or institution participating in good faith in the making of a report, . . . pursuant to this chapter shall have immunity from liability and suit for damages, civil or criminal, that otherwise might result by reason of such actions.
(b) The good faith of any person required to report cases of adult abuse, sexual abuse, or neglect shall be presumed.

We hold that there was a publication because “publication” occurs when the defamatory matter is communicated to someone other than the person defamed. Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989). Even though there has been a “publication,” the defamatory statement may be protected by a qualified privilege. Id.

Here, appellants raised the immunity or privilege issue in motions for summary judgment against each appellee. However, there is nothing in the record to indicate that the trial court ruled on the motions for summary judgment. “Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Such entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Robinson v. Beaumont, 291 Ark. 477, 484, 725 S.W.2d 839, 843 (1987) (quoting Mitchell v. Forsyth, 472 U.S. 511 (1985)). Further, appellants could have immediately appealed the denial of a motion for summary judgment based on immunity. Robinson v. Beaumont, supra. Because appellants failed to pursue their motions for summary judgment and proceeded to trial, we hold that they have waived their arguments concerning immunity under Ark. Code Ann. § 5-28-215. Robinson v. Beaumont, supra. See also Ozarks Unltd. Resources Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998).

As their second point, appellants argue that appellees failed to prove any damage to their reputations. In order for liability to attach, there must be evidence that demonstrates a causal connection between defamatory statements made by appellants and the injury to appellees’ reputations. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). A plaintiff must establish actual damage to his reputation, but the showing of harm may be slight. Id.

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107 S.W.3d 889, 82 Ark. App. 355, 2003 Ark. App. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northport-health-services-inc-v-owens-arkctapp-2003.