[Cite as Sullins v. Raycom Media, Inc., 2013-Ohio-4697.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99235
LAVELLE SULLINS PLAINTIFF-APPELLANT
vs.
RAYCOM MEDIA, INC., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: RECONSIDERATION DENIED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-771804
BEFORE: Rocco, J., Boyle, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 24, 2013 ATTORNEYS FOR APPELLANT
Joshua R. Cohen Peter G. Pattakos Cohen, Rosenthal & Kramer 700 West St. Clair Avenue The Hoyt Block Building - Suite 400 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES WUAB AND WOIO, L.L.C.
Michael K. Farrell Melissa A. Degaetano Baker & Hostetler L.L.P. PNC Center 1900 East 9th Street Suite 3200 Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY CRIME STOPPERS
George S. Crisci Jonathan D. Decker Zashin & Rich Co., L.P.A. 55 Public Square, 4th Floor Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE PINPOINT MEDIA, INC.
Daniel Thiel 75 Public Square Suite 650 Cleveland, Ohio 44113
KENNETH A. ROCCO, J.: {¶1} Defendants-appellees WOIO and WUAB (collectively, “WOIO”) have filed a
motion for reconsideration or, alternatively, to certify conflict arguing that this court’s
August 15, 2013 decision: (1) imposes liability without fault, (2) ignores the lack of
evidence showing negligence on the part of WOIO, and (3) is contrary to the Ohio
Supreme Court’s application of the fair report privilege in Oney v. Allen, 39 Ohio St.3d
103, 529 N.E.2d 471 (1988). For the reasons that follow, WOIO’s motion is denied.
{¶2} WOIO first argues that this court should reconsider its August 15, 2013
decision because the court “based its ruling” on “the incorrect statement that ‘[u]nless a
privilege applies, damages and fault are generally presumed to exist if a statement is
defamatory per se’” and thereby “impose[s] liability” on appellees “without fault.” We
disagree.
{¶3} As set forth in our August 15, 2013 decision, we found that appellees’
inaccurate depiction of Sullins on the Warrant Unit program as a fugitive presently
wanted and evading arrest on an outstanding warrant for passing bad checks is
defamation per se and that the innuendo that Sullins is a bad check artist is defamation per
quod. We further found that Sullins presented sufficient evidence to defeat summary
judgment as to whether appellees were negligent in publishing false statements about him
and that there was an issue of fact as to whether appellees’ defamatory statements were
privileged. This court has not presumed anything regarding appellees’ fault in this case.
Rather, based on our review of the record, we determined that there are genuine issues
of material fact as to who, if anyone, bears responsibility for the defamatory depiction of Sullins on the Warrant Unit program. Accordingly, this argument lacks merit.
{¶4} WOIO also contends that our decision in this case is at odds with the Ohio
Supreme Court’s decision in Oney v. Allen, 39 Ohio St.3d 103, 529 N.E.2d 471 (1988).
Once again, we disagree. In Oney, the issue was whether publication by a newspaper
that “Mike Oney, 32, of Noble Road, Shiloh,” had been indicted for “trafficking” was a
“fair and impartial” report of an indictment of “Mike Oney (aka) Stoney” for
“trafficking” and, as such, was privileged pursuant to R.C. 2317.05. Id. at 103-105.
Oney claimed that the privilege was inapplicable because the defendants added
information that was not in the indictment, i.e., the age and address of Mike Oney, and
failed to include information that was in the indictment (“aka Stoney”), in the report. Id.
at 106.
{¶5} In Oney, the prosecutor had given a reporter “off the record” a list of
individuals (including addresses, dates of birth, and social security numbers) who were
going to be indicted on drug trafficking charges. Id. at 103-104. The list included
“Oney, Mike (aka) Stoney.” The prosecutor claimed that he told the reporter that a court
order protected the indictments from becoming public until the defendants were in
custody. Id. The reporter claimed that he was given the list with the understanding
that he would not publish the names until after the sheriff’s department began to arrest the
individuals. Id. The court did not need to consider whether any “understanding” to
delay publication impacted the reporting privilege because, prior to publication, the
indictment of Mike Oney for trafficking was publicly reported on the criminal court’s docket. Id. at 103-104, 107. The reporter compared the names on the list he had
received from the prosecutor with those listed on the court’s docket and published an
article reporting on the indictments the following day. Id. at 103-104.
{¶6} In concluding that the publication was privileged, the court noted that the
prosecutor’s office had identified Oney, by name, address, age, and social security
number, as the subject of the indictment, and that when Oney went to the sheriff’s
department after learning of the indictment, he confirmed that his address and social
security number were the same. Id. at 107. “Under these facts,” the court “reject[ed]
the argument that [Oney] was never indicted for trafficking.” Id. Because under “the
facts and circumstances which provide the context to the docketed indictment,” the
“pivotal fact” — i.e., “Mike Oney was indicted” — was true, the court determined that
the privilege applied, even though Oney was mistakenly indicted. Id. The court held
that “[a] publication is substantially accurate if it conveys the essence of the official
record to the ordinary reader, without misleading the reader by the inclusion of inaccurate
extra record information or the exclusion of relevant information in the record.” Id. at
106, citing 3 Restatement of the Law 2d, Torts, Section 611, Comment f (1965); Mark
v. Seattle Times, 96 Wash.2d 473, 493, 635 P.2d 1081 (1982).
{¶7} WOIO contends that “[t]his case is no different” because “[i]t is undisputed
that [Sullins] had already been convicted of passing bad checks when the Sheriff’s
department erroneously told Crime Stoppers that he was wanted for passing bad checks.”
The fact is, however, that this case is different. Indeed, the facts of this case that distinguish it from Oney are so obvious, this court did not think it needed to explicitly
distinguish Oney in its opinion.
{¶8} Whereas in Oney, the court determined that the “pivotal” aspect of the
published statement — i.e., that Mike Oney was indicted — was “true,” Oney at 107,
Sullins was not a fugitive, not presently wanted, and not evading arrest for “passing bad
checks” — as represented on the Warrant Unit program — at the time the program aired.
WOIO’s application for reconsideration, as did its briefs, conveys the attitude that
because Sullins had been previously convicted of one count of passing bad checks more
than ten months before the Warrant Unit program aired and because he had been
previously charged with or convicted of other minor misdemeanor or traffic-related
offenses (including offenses for which warrants were outstanding at the time the program
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[Cite as Sullins v. Raycom Media, Inc., 2013-Ohio-4697.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99235
LAVELLE SULLINS PLAINTIFF-APPELLANT
vs.
RAYCOM MEDIA, INC., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: RECONSIDERATION DENIED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-771804
BEFORE: Rocco, J., Boyle, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 24, 2013 ATTORNEYS FOR APPELLANT
Joshua R. Cohen Peter G. Pattakos Cohen, Rosenthal & Kramer 700 West St. Clair Avenue The Hoyt Block Building - Suite 400 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES WUAB AND WOIO, L.L.C.
Michael K. Farrell Melissa A. Degaetano Baker & Hostetler L.L.P. PNC Center 1900 East 9th Street Suite 3200 Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY CRIME STOPPERS
George S. Crisci Jonathan D. Decker Zashin & Rich Co., L.P.A. 55 Public Square, 4th Floor Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE PINPOINT MEDIA, INC.
Daniel Thiel 75 Public Square Suite 650 Cleveland, Ohio 44113
KENNETH A. ROCCO, J.: {¶1} Defendants-appellees WOIO and WUAB (collectively, “WOIO”) have filed a
motion for reconsideration or, alternatively, to certify conflict arguing that this court’s
August 15, 2013 decision: (1) imposes liability without fault, (2) ignores the lack of
evidence showing negligence on the part of WOIO, and (3) is contrary to the Ohio
Supreme Court’s application of the fair report privilege in Oney v. Allen, 39 Ohio St.3d
103, 529 N.E.2d 471 (1988). For the reasons that follow, WOIO’s motion is denied.
{¶2} WOIO first argues that this court should reconsider its August 15, 2013
decision because the court “based its ruling” on “the incorrect statement that ‘[u]nless a
privilege applies, damages and fault are generally presumed to exist if a statement is
defamatory per se’” and thereby “impose[s] liability” on appellees “without fault.” We
disagree.
{¶3} As set forth in our August 15, 2013 decision, we found that appellees’
inaccurate depiction of Sullins on the Warrant Unit program as a fugitive presently
wanted and evading arrest on an outstanding warrant for passing bad checks is
defamation per se and that the innuendo that Sullins is a bad check artist is defamation per
quod. We further found that Sullins presented sufficient evidence to defeat summary
judgment as to whether appellees were negligent in publishing false statements about him
and that there was an issue of fact as to whether appellees’ defamatory statements were
privileged. This court has not presumed anything regarding appellees’ fault in this case.
Rather, based on our review of the record, we determined that there are genuine issues
of material fact as to who, if anyone, bears responsibility for the defamatory depiction of Sullins on the Warrant Unit program. Accordingly, this argument lacks merit.
{¶4} WOIO also contends that our decision in this case is at odds with the Ohio
Supreme Court’s decision in Oney v. Allen, 39 Ohio St.3d 103, 529 N.E.2d 471 (1988).
Once again, we disagree. In Oney, the issue was whether publication by a newspaper
that “Mike Oney, 32, of Noble Road, Shiloh,” had been indicted for “trafficking” was a
“fair and impartial” report of an indictment of “Mike Oney (aka) Stoney” for
“trafficking” and, as such, was privileged pursuant to R.C. 2317.05. Id. at 103-105.
Oney claimed that the privilege was inapplicable because the defendants added
information that was not in the indictment, i.e., the age and address of Mike Oney, and
failed to include information that was in the indictment (“aka Stoney”), in the report. Id.
at 106.
{¶5} In Oney, the prosecutor had given a reporter “off the record” a list of
individuals (including addresses, dates of birth, and social security numbers) who were
going to be indicted on drug trafficking charges. Id. at 103-104. The list included
“Oney, Mike (aka) Stoney.” The prosecutor claimed that he told the reporter that a court
order protected the indictments from becoming public until the defendants were in
custody. Id. The reporter claimed that he was given the list with the understanding
that he would not publish the names until after the sheriff’s department began to arrest the
individuals. Id. The court did not need to consider whether any “understanding” to
delay publication impacted the reporting privilege because, prior to publication, the
indictment of Mike Oney for trafficking was publicly reported on the criminal court’s docket. Id. at 103-104, 107. The reporter compared the names on the list he had
received from the prosecutor with those listed on the court’s docket and published an
article reporting on the indictments the following day. Id. at 103-104.
{¶6} In concluding that the publication was privileged, the court noted that the
prosecutor’s office had identified Oney, by name, address, age, and social security
number, as the subject of the indictment, and that when Oney went to the sheriff’s
department after learning of the indictment, he confirmed that his address and social
security number were the same. Id. at 107. “Under these facts,” the court “reject[ed]
the argument that [Oney] was never indicted for trafficking.” Id. Because under “the
facts and circumstances which provide the context to the docketed indictment,” the
“pivotal fact” — i.e., “Mike Oney was indicted” — was true, the court determined that
the privilege applied, even though Oney was mistakenly indicted. Id. The court held
that “[a] publication is substantially accurate if it conveys the essence of the official
record to the ordinary reader, without misleading the reader by the inclusion of inaccurate
extra record information or the exclusion of relevant information in the record.” Id. at
106, citing 3 Restatement of the Law 2d, Torts, Section 611, Comment f (1965); Mark
v. Seattle Times, 96 Wash.2d 473, 493, 635 P.2d 1081 (1982).
{¶7} WOIO contends that “[t]his case is no different” because “[i]t is undisputed
that [Sullins] had already been convicted of passing bad checks when the Sheriff’s
department erroneously told Crime Stoppers that he was wanted for passing bad checks.”
The fact is, however, that this case is different. Indeed, the facts of this case that distinguish it from Oney are so obvious, this court did not think it needed to explicitly
distinguish Oney in its opinion.
{¶8} Whereas in Oney, the court determined that the “pivotal” aspect of the
published statement — i.e., that Mike Oney was indicted — was “true,” Oney at 107,
Sullins was not a fugitive, not presently wanted, and not evading arrest for “passing bad
checks” — as represented on the Warrant Unit program — at the time the program aired.
WOIO’s application for reconsideration, as did its briefs, conveys the attitude that
because Sullins had been previously convicted of one count of passing bad checks more
than ten months before the Warrant Unit program aired and because he had been
previously charged with or convicted of other minor misdemeanor or traffic-related
offenses (including offenses for which warrants were outstanding at the time the program
aired), Sullins is somehow not entitled to recourse for appellees’ defamatory statements.
This is incorrect. Simply because Sullins was convicted of, or charged with, other
offenses in the past does not mean that he is undeserving of protection from defamatory
statements.
{¶9} Further, in this case, unlike in Oney, the government placed an explicit caveat
on the accuracy of the information it provided, i.e., that the warrant information received
from the sheriff’s department should be updated by checking the court’s docket to
confirm its continued accuracy prior to airing, which appellees arguably failed to do.
What WOIO describes as a “caveat” to the publication of the information in Oney related
only to the timing of the publication, not the accuracy of the information to be published. The court in Oney did not consider whether the prosecutor’s “caveat” to delay
publication of the information the reporter had received impacted the fair report privilege
because prior to the publication, the indictment of Mike Oney for trafficking was publicly
reported on the criminal court’s docket. Oney at 103-104, 107. Once it became part of
the public record, the court found that there was no restriction on the timing of the
publication of that information. Id. at 107.
{¶10} Finally — and most significantly — in this case, unlike in Oney, there was
significant, potentially misleading, extra-record information included in the publication.
This is not a case in which the fact that a warrant had been issued for Sullins’s arrest for
passing bad checks was matter-of-factly reported in a police news blotter. If that were
the case, appellees’ publication might well have been protected by the fair report
privilege.
{¶11} Appellees, however, did not simply publish inaccurate information, received
from the sheriff’s department, regarding the warrant that had been previously issued for
Sullins’s arrest. Sullins was identified on the Warrant Unit program as a fugitive from
justice, one of “Cleveland’s 25 Most Wanted” — someone wanted more than all other
wanted persons, someone so dangerous that the narrator of the program cautioned
viewers: “Do not attempt to apprehend these people. You leave that to the
professionals.”
{¶12} Whereas Oney was a case in which, based on the undisputed facts, the court
determined that the privilege applied as a matter of law, this case is one in which, based on disputed facts — including the effect of the “caveat” from the sheriff’s department to
update the warrant information received prior to airing, whether the “caveat” was
complied with, and the impact of identifying Sullins as a fugitive wanted on an
outstanding warrant for passing bad checks and as one of “Cleveland’s 25 Most Wanted”
— the determination of whether the representations made regarding Sullins on the
Warrant Unit program constituted a “substantially accurate,” “fair and impartial
reporting” of the warrant information received from the sheriff’s department is more
appropriately resolved by a jury. See, e.g., Young v. Morning Journal, 76 Ohio St.3d
627, 628, 669 N.E.2d 1136 (1996).
{¶13} Finally, WOIO contends that because it did nothing but broadcast a program
that it “understood * * * to be based on official, public records provided by the sheriff’s
department,” and did not participate in creating, editing, or producing the Warrant Unit
program, it cannot be liable for any defamatory statements relating to Sullins.
{¶14} Citing Amann v. Clear Channel Communications, Inc., 165 Ohio App.3d
291, 2006-Ohio-714, 846 N.E.2d 95 (1st Dist.2006), and several authorities from
jurisdictions outside Ohio, WOIO argues that there is no factual basis for imposing
liability on WOIO in this case because “relying on wire services, news aggregators, and
similar organizations as to the content they deliver is entirely reasonable and not
negligent.” However, as discussed above, this is not a case in which WOIO simply
republished material taken from a reputable news service. Further, Amann was not a
defamation case. It involved whether a broadcaster owed a duty of care to its audience to investigate the accuracy of claims made in the advertisements it broadcast. Id. at ¶ 6.
{¶15} The other cases cited by WOIO in support of this argument are likewise
distinguishable. For example, Young v. Russ, 11th Dist. Lake No. 2003-L-206,
2005-Ohio-3397, involved a defamation claim arising out of a news story that reported
that the plaintiff had harmed children at the school where he worked after a child had
recanted the claims. The Eleventh District held that the anchorman who merely
introduced the story but had no involvement in the origination or investigation of the
story, no role in drafting scripts for, editing, modifying, or contributing to the story, and
no involvement in the decision to pursue or air the story, had no liability. Id. at ¶ 55.
As to the news reporter who investigated the story and the broadcast station who decided
to air the story with knowledge that the child had recanted, the court held that an issue of
fact existed as to their alleged negligence. Id. at ¶ 52-53. McPeek v. Leetonia
Italian-American Club, 174 Ohio App.3d 380, 2007-Ohio-7218, 882 N.E.2d 450 (7th
Dist.), involved a defamation action arising from disciplinary proceedings in a social club.
{¶16} Despite its attempt to minimize its role, WOIO did something in this case.
It selected the Warrant Unit program for airing on its station, with knowledge of its
content and format, including the segment entitled “Cleveland’s 25 Most Wanted.” It
selected the program for airing in the hopes of entertaining and attracting viewers to its
station by its arguably sensationalist, inflammatory content. WOIO’s argument that it
had nothing to do with the content of the program it had selected to air, had no role in
ensuring that the information provided in the program was accurate, and had no information as to how the local fugitives identified as “Cleveland’s 25 Most Wanted”
were chosen, does not, as WOIO contends, absolve it of liability, but rather, creates an
issue of fact for the jury to decide. None of the authorities cited by WOIO supports a
contrary conclusion.
{¶17} Accordingly, for the reasons set forth above, WOIO’s application for
reconsideration or, alternatively, to certify conflict is denied.
_______________________________________ KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR