Nelson v. Am. Hometown Publ'g, Inc.

333 P.3d 962

Roy D. NELSON and Susan E. Ryan, Plaintiffs/Appellants,

v.AMERICAN HOMETOWN PUBLISHING, INC., a foreign corporation; and American Hometown Publishing, Inc., a foreign corporation, d/b/a Guthrie News Leader, Defendants/Appellees.

No. 111193.

Court of Civil Appeals of Oklahoma, Division No. 4.

Feb. 24, 2014.

Certiorari Denied May 19, 2014.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Bill Graves, Trial Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

Thomas A. Ryan, Thomas A. Ryan, PLLC, Oklahoma City, Oklahoma, for Plaintiffs/Appellants.

S. Douglas Dodd, Jon E. Brightmire, Amanda L. Thrash, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma, for Defendants/Appellees.

JANE P. WISEMAN, Presiding Judge.

¶ 1 Roy D. Nelson and Susan E. Ryan appeal from a trial court order granting summary judgment in favor of American Hometown Publishing, Inc., and American Hometown Publishing, Inc., d/b/a Guthrie News Leader. The issue appealed is whether the trial court erred in granting Defendants judgment as a matter of law. This appeal stands submitted pursuant to Supreme Court Rule 1.36, 12 O.S.2011, ch. 15, app.1, without appellate briefing. After de novo review of the record and applicable law, we affirm in part and reverse in part the trial court decision and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On May 17, 2010, Nelson and Ryan (collectively, Plaintiffs) filed a lawsuit against Newspaper Holdings, Inc., d/b/a/ Guthrie News Leader, asserting claims for negligence, libel, and punitive damages arising from publication of an incorrect listing of Plaintiffs' home address as the address of a registered sex offender. Plaintiffs filed an amended petition on June 14, 2010, naming as defendants Newspaper Holdings, Inc., a foreign corporation, d/b/a Guthrie News Leader, American Hometown Publishing, Inc., a foreign corporation, and American Hometown Publishing, Inc., a foreign corporation, d/b/a Guthrie News Leader (collectively, Defendants).

¶ 3 Stating that they live at 9051 West College Avenue, Guthrie, Oklahoma, Plaintiffs allege:

That on or about June 14, 2009, the Defendants ... published a list of sex offenders registered in Logan County in the local newspaper, Guthrie News Leader. The list incorrectly listed the Plaintiffs' address as that of a registered sex offender named Donald Joseph Crown, a middle-aged white male.

¶ 4 Plaintiffs state they heard gunfire on their property on the day the News Leader published the list of offenders and then throughout that day and into the morning hours of June 15, 2009, they heard cars drive by and people shout things at them. According to Plaintiffs, they live on a rural dirt road and “[t]he amount of traffic that [they] experienced in front of their house for the thirty-six hour period following the publication of the ‘Sex Offender Issue,’ was large compared to usual traffic, and the Plaintiffs interpreted it as threats intended toward a convicted sex offender and they feared for their safety.”

¶ 5 Plaintiffs allege Ryan brought the mistake to the attention of the managing editor of the Guthrie News Leader, Belinda Ramsey, on June 15, 2009, the day after the publication. Plaintiffs state, “Later that same day a person named Nixie Goff, purporting to be an employee of the newspaper, called Mrs. Ryan to let her know that it was in fact the newspaper's mistake and not the mistake of the reporting law enforcement agency.” Although Ryan demanded the newspaper print a conspicuous correction in the following Sunday edition of the newspaper, the newspaper instead “issued a non-conspicuous correction in the Obituaries Section of the following Wednesday edition, and refused to publish a correction in the following Sunday edition.” Plaintiffs further claim the newspaper left the incorrect address on its website until October 31, 2009.

¶ 6 Plaintiffs assert negligence on the part of Defendants in failing to use ordinary care when they confirmed, updated, and disseminated information regarding registered sex offenders in their newspaper and on their website. They contend Defendants' negligence led to gunshots being fired near their property and to other harassing and intimidating behavior being directed at them. They also assert a claim for libel alleging Defendants failed to use ordinary care when they confirmed, updated, and disseminated registered sex offender information to the public through the newspaper and on the News Leader's website, which led to gunshots being fired near Plaintiffs' home and to harassment and intimidation. Plaintiffs also seek punitive damages, alleging that, although Defendants “had been given accurate information from the reporting law enforcement agency,” Defendants “failed to engage in the minimal editing effort to verify the accuracy of the addresses of convicted sex offenders.” Plaintiffs contend that Defendants “intentionally, willfully, recklessly, and/or exhibiting gross negligence caused the false publication to be disseminated in their newspaper and on their website.”

¶ 7 Defendants sought summary judgment on Plaintiffs' claims. Below are the material facts Defendants list as undisputed in their motion followed by Plaintiffs' responses:

1. The Guthrie News Leader (News Leader) published a story on June 14, 2009, titled, “Registered sex offenders on the rise locally” and a list of 97 registered sex offenders who live in Logan County, Oklahoma, with their photographs and claimed addresses. The list was provided by the Logan County Sheriff's office and the City of Guthrie Police Department. (Disputed. “Defendant published the claimed addresses of 96 of the registered sex offenders living in Logan County. It published one of the sex offenders' addresses as that of the Plaintiffs.”)

2. Ryan telephoned the News Leader on June 15, 2009, spoke with the publisher and editor Belinda Ramsey, and advised her that Ryan's address, 9051 West College Avenue, Guthrie, Oklahoma, had appeared in the newspaper the day before under the photograph of a sex offender. (Disputed. “Mrs. Ryan specifically requested a conspicuous correction.”)

3. “Belinda Ramsey advised plaintiff Ryan she would check with the Sheriff to see if there had been a mistake and if there had been, the [News Leader] would get it corrected.” (Undisputed.)

4. A staff writer for the newspaper, Nixie Goff, telephoned Ryan on June 15, 2009, and advised her that an error had been made in the use of her address in the News Leader the day before. Goff told Ryan that a correction would be published on June 17, 2009, which was the next edition of the News Leader. (Disputed. Ryan told Goff she wanted the correction to appear in the next Sunday edition of the News Leader.)

5. A correction was published on June 17 on page three of the newspaper. The headline read “Correction” and beneath the headline was the following: “ ‘In a June 14, 2009 published list of registered sex offenders residing in Logan County, Donald Joseph Crown was mistakenly identified as residing at 9051 West College Avenue. His current actual address is 9051 East College Avenue in Guthrie.’ ” (Undisputed.)

6. Nelson's name did not appear in the newspaper on either June 14, 2009, or June 17, 2009. (Undisputed.)

7. Ryan's name did not appear in the newspaper on either June 14, 2009, or June 17, 2009. (Undisputed.)

8. “Despite expressing their belief that there are some readers of the [News Leader] who believe Plaintiffs' residence is the residence of a sex offender, neither [Nelson nor Ryan] can identify any individual who believed that either of them was a registered sex offender as a result of having read the [News Leader].” (Disputed. “Plaintiffs identify Belinda Ramsey as an individual who believed that either Mr. Nelson or Mrs. Ryan was a registered sex offender as a result of reading it in the [News Leader], and was not convinced otherwise until she checked with the Sheriff's Department.”)

9. Plaintiffs did not allege any special damages or offer any evidence of special damages. (Disputed. “Plaintiffs allege special damages in that the subject publication caused members of the community to target them with gunfire, vandalism, and harassment, and that in response to this they were compelled to upgrade their video surveillance equipment.”)

¶ 8 Defendants argue that the article in question “is constitutionally-protected speech on a matter of public concern, and is substantially true and privileged” and Plaintiffs therefore cannot recover under a theory of libel or negligence. They also assert Plaintiffs, as a matter of law, cannot maintain a claim for negligence based on this publication and “cannot maintain a separate cause of action for Punitive Damages.”

¶ 9 In response, Plaintiffs set out their own statement of undisputed material facts. Plaintiffs state that in the June 14, 2009, edition of the News Leader, Defendants listed Plaintiffs' address as that of Donald Crown, a registered sex offender. Defendants do not dispute this fact but dispute the other 16 facts recited below that Plaintiffs list as undisputed.

¶ 10 Plaintiffs claim that Defendants admit that the incorrect information was a result of the News Leader's error and not that of the reporting law enforcement agencies. According to Plaintiffs, although Ryan spoke to Ramsey on June 15, 2009, informed her of the error, and asked Ramsey to provide a conspicuous correction, Defendants left the incorrect sex offender edition of the newspaper on its website until October 31, 2009. Plaintiffs claim that someone fired an automatic rifle at or near their residence on the morning of June 14, 2009, and that between the hours of 7:00 p.m., and midnight that day, several vehicles drove past Plaintiffs' residence. Plaintiffs have video evidence of an occupant of a pick-up truck driving past the residence that day yelling, “Pervert.” They provided Defendants with video evidence...