And the gist includes an implication that the Tatums' motive for deceiving readers was to conceal that Paul had suffered from a mental illness that the Tatums failed to confront. B. Appellees argue that a public controversy existed over the official cause of Paul's death. In Tatum v. The Dallas Morning News, Inc., No. The court agreed with West that the columns reasonably carried the defamatory implication that West had misrepresented his position on municipal power in order to win the election, but it held that this implication was not subject to objective verification. But in late 2015, the 5th District Court of Appeals ruled that the lawsuit could go forward. Find an Obituary. 3. To be actionable defamation, a statement must be a statement of verifiable fact rather than opinion. All rights reserved. Arbitration & Mediation Antitrust & Trade Regulation Again, a statement is defamatory if it tends to (i) injure the subject's reputation, (ii) expose him to public hatred, contempt, ridicule, or financial injury, or (iii) impeach his honesty, integrity, or virtue. Finally, appellees cite West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994). The new Dallas Morning News app combines two apps into one. Id. Appellees, however, do not contend that the Tatums are public officials or general-purpose public figures. Awareness, frank discussion, timely intervention, treatmentthose are the things that save lives. Id. Next, specifically as to Paul's death, Blow wrote that the paid obituary said Paul died as a result of injuries sustained in an automobile accident, but Paul's death turned out to have been a suicide. Blow continued, There was a car crash, all right, but death came from a self-inflicted gunshot wound in a time of remorse afterward. In the third paragraph after that statement, Blow wrote, I'm troubled that we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception.. In this libel-by-implication case, a column written by Steve Blow and published by The Dallas Morning News (collectively, Petitioners) was reasonably capable of meaning that John and Mary Ann Tatum acted deceptively and that the accusation of deception was reasonably capable of defaming the Tatums. We do not consider the defamatory statement itself in determining whether the plaintiff is a public figure. [1] The Dallas woman first went public with her story of depression and suicide attempts in my column three years ago. See id. Sch. Defamation has two forms: slander and libel. A reasonable juror could conclude that a hypothetically true column would have been less damaging to the Tatums' reputation because it would have mentioned that the Tatums claimed to have written the obituary in a good faith belief in its truth and without an intent to deceive. Slander is an oral defamation. Generally speaking, the column's italicized words quoted above reflect a theme of alleged dishonesty by people, including those who wrote Paul's obituary, who refuse to acknowledge that someone committed suicide. If, as concerns the present case, the plaintiff is a private individual rather than a public official or public figure, the elements of defamation are: (1) the defendant published a statement, (2) the statement was defamatory concerning the plaintiff, and (3) the defendant acted with negligence regarding the statement's truth.2 Neely, 418 S.W.3d at 61; WFAATV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). Are the column's statements about the Tatums nonactionable opinions? Appellees argue that the column is a fair comment on a matter of public concern, specifically society's tendency to avoid open discussion of suicide and how that leaves its dangers underestimated. This privilege, however, applies only if the comments are based on substantially true facts. One month later, on Father's Day, June 20, 2010, DMN published a column written by Blow. Commercial Record Daily Business newspaper published in Dallas, Texas. When reviewing a traditional summary judgment for a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Although there is evidence that people in Paul's high school community were discussing his death generally, and that unspecified others in north Dallas were also discussing it before the column was published, there is no evidence that the cause or manner of Paul's death affected anyone other than the Tatums. Appellees' contrary argument fails on the first prong we referenced abovethe existence of a public controversy for the Tatums to participate in. & Com.Code Ann. 73.002(b)(1)(B), and (ii) a reasonable and fair comment on or criticism of a matter of public concern published for general information, id. The above parts alone could cause a person of ordinary intelligence to read the column as accusing the Tatums of deceit by writing an obituary that stated a false cause of Paul's death and concealed the true cause of his death (for their own self-benefit and to the detriment of society as a whole). Redirecting to https://www.si.com/nfl/cowboys/news/dallas-cowboys-cut-move-dallas-cowboys-reveal-tyron-smith-contract-plan-change The court then vacated its judgment and stayed the case pending the resolution of a defamation case then pending in the Texas Supreme Court. Supreme Court of Texas. See Neely, 418 S.W.3d at 62; Bentley, 94 S.W.3d at 57985. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 119 (Tex.2000). We acknowledge that evidence of a negligent investigation, standing alone, does not raise a fact issue on actual malice: [T]he failure to investigate the facts before speaking as a reasonably prudent person would do is not, standing alone, evidence of a reckless disregard for the truth, but evidence that a failure to investigate was contrary to a speaker's usual practice and motivated by a desire to avoid the truth may demonstrate the reckless disregard required for actual malice. Kass reviewed Cargill's report about the accident, interviewed the Tatums, reviewed Paul's conduct before and after the accident as reported by his friends, and reviewed other documents such as Paul's medical history and death certificate. One was an email to Blow in which the author wrote, He [Paul] was a popular and accomplished young man and many people understood to whom you referred.. We thus conclude that Denton Publishing Co. is still controlling law. There was no evidence the complained of act was a producing cause of the Tatums' damages. The gist also implies that the explanation the Tatums gave for the cause of Paul's death was false and that Paul committed suicide because of remorse rather than because of injuries suffered in the auto accident. Prac. Id. THE DALLAS MORNING NEWS, INC. AND STEVE BLOW, PETITIONERS, v. JOHN TATUM AND MARY ANN TATUM, RESPONDENTS No. Rhetorical hyperbole is extravagant exaggeration employed for rhetorical effect. App.Dallas Dec. 30, 2015, pet. Blow, who did not contact the Tatums before writing his column, called for the public to more openly discuss mental illness, which is often a factor in suicides. at 66. We resolve this question in the Tatums' favor. 29, 2013), aff'd, 41 N.E.3d 38 (Mass.2015). Family Law We therefore decline to follow West. 73.002(b)(1)(B). 73.002(b)(2). Moved Permanently. Additionally, the summary judgment evidence established that the Tatums were out of town the day the column was published. Constr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118, 127 (Tex.2010) (citing dictionaries as aids to interpreting an insurance policy). Bentley, 94 S.W.3d at 591. Steve Blow is a columnist for The Dallas Morning News. Appellees also assert that the obituary's omission of Paul's suicide shows that it was in fact a deception. But as discussed above, deception implies intent to deceive, and the Tatums raised a genuine fact issue as to whether they had such an intent. The column was privileged as a fair, true, and impartial account of official proceedings. The Court issued an opinion resolving the case on May 11, 2018. To the extent West is similar to the instant case, we disagree with it. News | Dallas Morning News 7848 News In this Section: Public Safety Weather Politics Crime Transportation Man accused of stealing earthquake donations from Flower Mound mosque arrested. And, for a matter to be a public controversy, its resolution must affect people beyond its immediate participants. The Tatum filed suit alleging libel and libel per se against Petitioners alleging that the column at issue defamed them. hb```f``ra`a``b`@ r`@([E,X42+r3gpxp~bgecfag^l|%Y>6ZQSkGX{3`e.eVdXVPx\f;nx2_WaL) CpUR L@E QF 8+PH\~9 SY/01.dep|CG}jn@ Lkc |F | Id. His testimony demonstrates his training and expertise in the field of accident reconstruction. If a publication is of ambiguous or doubtful import, however, the jury must determine its meaning. The actual column, however, can be read to allow and encourage the reader to conclude that the Tatums had no basis for attributing Paul's death to injuries sustained in the earlier car crash and that they wanted to deceive the obituary's readers about the cause of Paul's death, perhaps to conceal their own failure to save his life through an intervention. See Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 107071 (5th Cir.1987) (courts have upheld actual malice findings when the supposed source of the story disclaimed giving the information); see also Celle v. Filipino Reporter Enter., Inc., 209 F.3d 163, 190 (2d Cir.2000) (defendant's self-contradictory testimony about the source of his information supported actual malice finding). We conclude that the Tatums adduced no evidence of this requirement. "With its unanimous ruling, the court affirmed that Steve Blow's piece was clearly an opinion column protected by law.". at 1001 & n.1. But a statement couched as an opinion may be actionable if it expressly or implicitly asserts facts that can be objectively verified. That is, as Neely illustrates, enough to raise a genuine fact issue on the fair comment privilege. 2. In light of Milkovich, Neely, and Bentley, we conclude that the column's gist that the Tatums were deceptive when they wrote Paul's obituary is sufficiently verifiable to be actionable in defamation. Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). Applicable Law and Summary Judgment Grounds. See Neely, 418 S.W.3d at 62 ([S]tatements that are not verifiable as false cannot form the basis of a defamation claim.); see also Am. The hypothetical person of ordinary intelligence is one who exercises care and prudence, but not omniscience, when evaluating an allegedly defamatory communication. Business Law Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex.1960). Rather, we conclude only that it is capable of having that meaning. Specifically, the first affidavit is by Dr. Robert Cargill, who possesses a Ph.D. in bioengineering. Whether a publication is capable of a defamatory meaning is initially a question for the court. Our decision in Backes v. Misko, No. Did appellees establish as a matter of law that the column is privileged as a fair account of official proceedings or as a fair comment on a matter of public concern? They're frustrated when obits don't say. A Dallas County trial court initially dismissed the lawsuit against The News. Stay up-to-date with how the law affects your life. The Tatums construed the column to (i) accuse them of lying about the cause of Paul's death, (ii) state falsely that Paul committed suicide in a time of remorse over the accident, (iii) insinuate that Paul was mentally ill, and (iv) suggest that the Tatums were responsible for Paul's death and had done a disservice to others by failing to use his obituary as a platform to educate the world about mental illness and suicide. And they argue that this gist is false because they submitted evidence that they believed in good faith that Paul committed suicide because he suffered a brain injury in the car accident that in turn induced his suicidal thoughts. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex.2004). We agree with the Tatums' second argument and thus do not address their first. Nonetheless, the Tatums filed affidavits by two experts. Thus, they must prove only negligence to recover compensatory damages. Honesty is the first step. By juxtaposing Paul's story with this discussion, the column invites the reader to associate Paul's suicide with mental illness and the Tatums with those who do not engage in life saving frank discussion and timely intervention. The closing line, Honesty is the first step, also invites the reader to contrast honesty with a dishonest obituary published about Paul's death. The next seven paragraphs describe two recent occurrences meant to illustrate Blow's pointthe events surrounding the deaths of Ted Pillsbury and Paul Tatum. Am. Milkovich lost on summary judgment and appealed all the way to the Supreme Court. See Waste Mgmt. Search by Name. He testified that he knew that Bruce Tomaso and Kevin Sherrington looked into Paul's death, and that he could not remember specifically which of them provided him with the information he used in the column. Conversely, a publication that consists of statements that are literally true when read in isolation can still convey a false and defamatory meaning by omitting or juxtaposing facts. Apply Here Did the Tatums raise a genuine fact issue regarding whether the column was neither true nor substantially true? Based on the above, we conclude that the expert affidavits are not speculative and the trial court did not err by overruling appellees' objections. In this libel-by-implication case, a column written by Steve Blow and published by The Dallas Morning News (collectively, Petitioners) was reasonably capable of meaning that John and Mary Ann Tatum ac. More than 1,000 people attended Paul's funeral. Limited-purpose public figures are generally people who have thrust themselves to the forefront of a particular public controversy to influence its resolution, or who have voluntarily injected themselves or been drawn into a public controversy. Dec 19, 2022 "Sooner or later someone is going to have to give this area credit for good coaching, good kids and good programs." In that regard, the statement must point to the plaintiff and to no one else. There was no evidence DMN committed a false, misleading, or deceptive act listed in 17.46(b), or that the Tatums relied on any complained of act. 73.001 (West 2011). We next ask whether there was evidence that the column's gist was false. Avila v. Larrea, 394 S.W.3d 646, 658 (Tex.App.Dallas 2012, pet. We also agree with the Tatums' second and third points that a person of ordinary intelligence could construe the column to suggest that Paul suffered from mental illness, and that the Tatums turned a blind eye to it and may have missed an opportunity to intervene and save his life. See Deceive, The New Oxford American Dictionary (cause (someone) to believe something that is not true, typically in order to gain some personal advantage). Had he investigated further and learned facts suggesting that the Tatums had no intent to deceive, this would have undercut the whole thrust of the column, which began with a reference to deception and ended with a call for honesty. 051400566CV, 2015 WL 1138258 (Tex.App.Dallas Mar. 1. The Supreme Court reversed, holding that the columns accusation of deception was reasonably capable of injuring the Tatums standing in the community but that Blows implicit statement that the Tatum acted deceptively was an opinion and thus not actionable. What is the column's gist regarding the Tatums? And for us, there the matter ended. He was an excellent and popular student, an outstanding athlete, and had no history of mental illness. Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotations and citations omitted). That appeal is also being decided today, John Tatum and Mary Ann Tatum v. Julie Hersh, No. Turner, 38 S.W.3d at 114. Obituaries Section. These affidavits create a reasonable inference that persons who knew the Tatums also knew that the column referred to them. Naturally, with such a well-known figure, the truth quickly came out. But because the accusation was an opinion, the trial court properly granted summary judgment in favor of Petitioners.The Tatum filed suit alleging libel and libel per se against Petitioners alleging that the column at issue defamed them. Consumer Law The column was true or substantially true. Read Tatum v. Dall. Star-Telegram (Fort Worth) The Newspaper distributed in Dallas/Fort Worth metroplex counties of Collin, Dallas, Delta, Denton, Ellis, Hunt, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise. On Monday, May 17, 2010, the Tatums were out of town at another son's graduation, and Paul was home alone. In their second appellate issue, the Tatums contend that the trial court erred by granting summary judgment on their DTPA claims against DMN. Because these privileges are affirmative defenses, see Denton Publ'g Co. v. Boyd, 460 S.W.2d 881, 882, 885 (Tex.1970) (interpreting predecessor statute to 73.002), appellees' summary judgment motion had to conclusively prove their elements to prevail.6. 3 On June 20, 2010Father's Day, and about one month after Paul's suicidethe paper published a column by Blow entitled "Shrouding Suicide Leaves its Danger Unaddressed." 4 We remand the case for further proceedings consistent with this opinion. See id. Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 114748 (8th Cir.2012); Scholz v. Bos. But I don't think we should feel embarrassment at all. Yet we're nearly blind to the greater threat of self-inflicted violence. Plaintiffs sued Defendant for intentional infliction of emotional distress (IIED), claiming that Defendant exploited the tragedy of their son's death by encouraging the criticism of their son's obituary. In part, we don't talk about suicide because we don't talk about the illness that often underlies itmental illness. denied) (objection that opinions are speculative can be raised for the first time on appeal). Immigration Law Crediting the Tatums' evidence as we must, we conclude that a reasonable factfinder could find that the column's gist was false. Subscribe to Justia's In our analysis of this question, we focus on DMN's second no-evidence ground and particularly the first requirement of 17.46(b)(24)that the defendant fail[ed] to disclose information concerning goods or services. Id. There was a car crash, all right, but death came from a self-inflicted gunshot wound [page break] in a time of remorse afterward. For the reasons discussed below, we conclude that they did. The trial court granted summary judgment for Petitioners. 3. Suicide is the third-leading cause of death among young people (ages 15 to 24) in this country. Construction Law at *4. The court did not state the basis for any of its rulings. I'm troubled that we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception. DMN asserted the following traditional summary judgment grounds against the Tatums' DTPA claims: DMN did not commit a false, misleading, or deceptive act that the Tatums relied on. Based on his investigation, he concluded that the primary impact involved in the accident was moderate to severe, and that the accident was severe enough that it would have subjected a human occupant of the vehicle to, at a very minimum, the risk of a mild TBI [traumatic brain injury], such as a concussion.. The trial court granted Defendant's motion to dismiss Plaintiffs' action under the Texas Citizens Participation Act. Examples of defamation per se include (i) accusing someone of a crime, (ii) accusing someone of having a foul or loathsome disease, (iii) accusing someone of serious sexual misconduct, and (iv) disparaging another's fitness to conduct his or her business or trade. Contact us. A no-evidence summary judgment should be reversed if the evidence is sufficient for reasonable and fair-minded jurors to differ in their conclusions. This case involves libel, which is a defamation expressed in written or other graphic form. 497 U.S. at 1921. Banking The Dallas Morning News is an independent paper positioned for growth. About three months later, they filed an amended traditional and no-evidence summary judgment motion. From the people we hire to the way we work, let them tell you how we are different. The Tatums' DTPA claims are based on 17.46(b)(24) of the DTPA, which provides that it is a false, misleading, or deceptive act or practice to fail [] to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. Tex. Appellees won a take-nothing summary judgment. Appellees make a threshold argument that the Tatums must satisfy the standard for libel per se because they did not plead or prove libel per quod or special damages. You're all set! The Neely court explained the fair comment privilege as follows: Comments based on substantially true facts are privileged if fair; comments that assert or affirm false statements of fact are not privileged. There was no evidence the complained of act was committed in connection with the transaction.. 73.001. 73.001; Am. Grief Support. They also sued DMN for DTPA violations. 6. Established in 1885, The Dallas Morning News is Texas' leading newspaper and the flagship newspaper subsidiary of DallasNews Corporation. Rather, the Tatums contend that DMN should have disclosed that its columnist, Blow, had previously written columns critical of obituaries that had appeared in the newspaper. Professional Malpractice & Ethics We agree with the Tatums on all three points. A statement is defamatory if it tends to (i) injure a person's reputation, (ii) expose him to public hatred, contempt, ridicule, or financial injury, or (iii) impeach his honesty, integrity, or virtue. denied), further supports this conclusion. This opinion should not be construed to hold that the column necessarily defamed the Tatums. Similarly, although there is evidence that the Tatums disagreed with the manner of death finding of suicide on Paul's death certificate and tried to persuade the medical examiner to change it, there is no evidence that the outcome of this alleged controversy affected anyone except the Tatums. The Supreme Court has held that a defamation plaintiff must prove falsity if (i) the plaintiff is a public figure, or (ii) the defendant is a media defendant and the statement involves a matter of public concern. Prac. Environmental Law A statement does not have to refer to the plaintiff by name, however, if people who know and are acquainted with the plaintiff reasonably understand from reading the statement that it referred to the plaintiff. Main, 348 S.W.3d at 395; see also Houseman v. Publicaciones Paso del Norte, S.A., 242 S.W.3d 518, 525 (Tex.App.El Paso 2007, no pet.) Constitutional Law See Civ. We construe an allegedly defamatory publication as a whole in light of the surrounding circumstances and based on how a person of ordinary intelligence would perceive it. 418 S.W.3d at 64. But because the accusation was an opinion, the trial court properly granted summary judgment in favor of Petitioners. Id. Id. For example, the internal sources that Blow said he contacted before publishing the column denied having discussed the matter with him. Prac. Listen, the last thing I want to do is put guilt on the family of suicide victims. Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 1920 & n.6 (1990); Phila. We review a summary judgment de novo. But the Tatums adduced evidence of more than a mere negligent investigation. We agree with the Tatums. The Dallas Morning News published the obituary on May 21, 2010. Id. Id. at *5. It has received nine Pulitzer Prizes since 1986, as well. The column was not capable of the defamatory meaning ascribed by the Tatums. denied) (mem.op.) More recently, a paid obituary in this newspaper reported that a popular local high school student died as a result of injuries sustained in an automobile accident.. %PDF-1.5 % We disagree. We must take evidence favorable to the nonmovant as true, and we must indulge every reasonable inference and resolve every doubt in the nonmovant's favor. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. (A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way.). Paul's friend went in the house and found Paul dazed, confused, irrational, incoherent, and apparently in physical anguish and holding one of the family's firearms. Paul's friend left him alone to tell her mother the situation, and as she left she heard a gunshot. 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