Schenck v. Oregon Television, Inc.

934 P.2d 480, 146 Or. App. 430
CourtCourt of Appeals of Oregon
DecidedFebruary 12, 1997
Docket94-10-07049; CA A91533
StatusPublished
Cited by1 cases

This text of 934 P.2d 480 (Schenck v. Oregon Television, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schenck v. Oregon Television, Inc., 934 P.2d 480, 146 Or. App. 430 (Or. Ct. App. 1997).

Opinion

EDMONDS, J.

In this defamation case, plaintiff appeals from a judgment dismissing his claims against defendants Valentine, Penz and Goebel under ORCP 21, and from a summary judgment in favor of Oregon Television, KPTV and Lars Larson (media defendants). ORCP 47. We reverse.

Defendants Valentine, Penz and Goebel are either elected public officials or public employees who allegedly made defamatory statements about plaintiff. The trial court dismissed them as individual defendants on the ground that they were not proper defendants under ORS 30.285(3)1 and substituted the State of Oregon as the sole party defendant. The trial court then dismissed the complaint against the state because of plaintiffs failure to comply with the notice provisions of ORS 30.275(2)(b).2 The state concedes that [433]*433removing the individual defendants as party defendants was error because it deprived plaintiff of pursuing the theory that they were not acting in the course and scope of their public duties, thereby negating the requirement of notice under ORS 30.275(2)(b). Krieger v. Just, 319 Or 328, 876 P2d 754 (1994); Berry v. State of Oregon, 141 Or App 225, 917 P2d 1070 (1996).

In October 1993, media defendants broadcast a television news report in which plaintiff alleges that defamatory statements were made. In March 1994, the same report was rebroadcast. Although he was aware of the October broadcast, plaintiff made no demand for a retraction until April 11, 1994. Plaintiff concedes that he watched the October 1993 broadcast but alleges that he did not know about the March rebroadcast until early April. This action is based on the March broadcast. Plaintiff alleges that on April 11, 1994, he sent media defendants a demand for retraction. Media defendants moved for dismissal, ORCP 21 A(8), on the ground that the complaint did not allege a timely demand for retraction in accordance with ORS 30.160(1). That statute provides:

“(1) In an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff shall not recover general damages unless:
“(a) A correction or retraction is demanded but not published as provided in ORS 30.165; or
“(b) The plaintiff proves by a preponderance of the evidence that the defendant actually intended to defame the plaintiff.”

ORS 30.165 provides, in part:

“(1) The demand for correction or retraction shall be in writing, signed by the defamed person or the attorney of the person and be delivered to the pubhsher of the defamatory statement, either personally, by registered mail or by certified mail with return receipt at the publisher’s place of business or residence within 20 days after the defamed person receives actual knowledge of the defamatory statement. The demand shall specify which statements are false and defamatory and request that they be corrected or retracted. [434]*434The demand may also refer to the sources from which the true facts may be ascertained with accuracy.
“(2) The publisher of the defamatory statement shall have not more than two weeks after receipt of the demand for correction or retraction in which to investigate the demand * * * .” (Emphasis supplied.)

There is no contention that a correction or retraction was made. In support of their motion, media defendants argued to the trial court that ORS 30.165(1) required plaintiff to demand retraction within 20 days of the October 1993 broadcast, even though the action was based on the March 1994 rebroadcast. They reasoned that, because the March 1994 rebroadcast was simply a republication of what had occurred in 1993, there had to be a demand for a retraction under ORS 30.160(l)(a) that was timely to the October broadcast. The trial court agreed with the argument and granted the motion to dismiss. However, in its order, it allowed plaintiff to replead, but only on the alternative ground under ORS 30.160(l)(b). Plaintiff filed a second amended complaint alleging that media defendants intended to defame plaintiff. Media defendants moved for summary judgment on the ground that there was no evidence in the record that would allow an objectively reasonable juror to conclude that media defendants actually intended to defame plaintiff. The court granted the motion and entered a judgment of dismissal.

Plaintiff appeals from the judgment of dismissal and assigns error to the order dismissing his first amended complaint for failure to allege a demand for retraction that was timely under ORS 30.160 and 30.165. He does not assign error to the trial court’s ruling on summary judgment that there is no evidence that media defendants intended to defame plaintiff. Rather, he argues that the March 1994 rebroadcast amounted to a new publication of the defamatory statements and that his April 11 demand for retraction was therefore timely made. Media defendants respond that the statute requires a retraction within the prescribed time from the actual knowledge of the defamatory statements — not from a later, second, third or fourth publication or broadcast. The issue is whether plaintiffs failure to demand a timely retraction after the October 1993 broadcast prevents him from [435]*435bringing a claim for defamation following the March rebroadcast.

The Supreme Court has interpreted ORS 30.155 to ORS 30.175 to require plaintiffs, as a condition precedent to the recovery of general damages, to plead and prove either “[the] defendant’s intent to defame or, in the absence of such intent, the failure to retract upon demand." Holden v. Pioneer Broadcasting Co., 228 Or 405, 409, 365 P2d 845 (1961). ORS 30.165 requires that “the demand for correction or retraction shall be [made] * * * within 20 days after the defamed person receives actual knowledge of the defamatory statement.” Central to the resolution of this case is the interpretation of the statutory phrase “defamatory statement.” This court’s task in interpreting a statute is to discern the intent of the legislature.

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Related

Kraemer v. Harding
976 P.2d 1160 (Court of Appeals of Oregon, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
934 P.2d 480, 146 Or. App. 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schenck-v-oregon-television-inc-orctapp-1997.