We are unpersuaded by appellees' contrary arguments. 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. To accuse someone of deception is to impeach his or her honesty and integrity. He then called a friend, and their conversation prompted her and her mother to drive to the Tatums' house during the early morning hours of May 18. 94 S.W.3d at 583. 73.002(b)(2). ", "We are sorry for the Tatum family's tragic loss of their son," said Mike Wilson, editor of The News. filed), we noted that "[p]lacing the burden of proving truth or falsity is a complex . See id. Energy, Oil & Gas Law Am. 17.50(a)(1)(A)(B). Calling someone a liar and accusing someone of perjury, as occurred in those cases, both implicate the person's mental state, because both liar and perjury denote the willful telling of an untruth. Prac. Viewing the evidence in the light most favorable to the Tatums, we conclude that a reasonable person could find that people who knew the Tatums would reasonably understand that the column referred to the Tatums. We have already concluded that a reasonable reader could conclude that the column presents a false gist about the Tatums. To be actionable defamation, a statement must be a statement of verifiable fact rather than opinion. 73.001; Am. We review the evidence in the light most favorable to the nonmovant, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See id. And for us, there the matter ended. Bentley, 94 S.W.3d at 591. The column then implies that the obituary's reference to the cause of Paul's death was false by saying, There was a car crash, all right, but death came from a self-inflicted gunshot wound in a time of remorse afterward. Almost immediately after describing Paul's suicide, the column states, I'm troubled that we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception. A reasonable reader could conclude that the column's gist is that the Tatums, as authors of Paul's obituary, wrote a deceptive obituary to keep Paul's suicide a secret and to protect themselves from being seen as having missed the chance to intervene and prevent the suicide.5. The Tatums argue that an accusation of deception is verifiable and therefore actionable, while appellees argue that it is not. Injury Law The column was privileged as a fair, true, and impartial account of official proceedings. We disagree and affirm the judgment as to those claims. at 6364. Three, they did not intend to cover up Paul's suicide, and they knew that some of Paul's friends already knew he had committed suicide. That is, as Neely illustrates, enough to raise a genuine fact issue on the fair comment privilege. Bus. The Tatums also filed copies of a number of emails bearing on the subject. 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. The Tatums' friend Lee Simpson testified by affidavit that he was contacted by Tomaso about Paul's death and that Tomaso did not ask him whether the Tatum family wanted to be contacted. at 58384. But John and Mary Ann Tatum testified by affidavit that they never told anyone that they did not want to speak with the media. (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. Government & Administrative Law We agree with the Tatums. Appellees filed a traditional and no-evidence summary judgment motion. I think the need to know is wired deeply in us. Stay up-to-date with how the law affects your life. If a defamatory statement about a private figure involves a matter of public concern, however, and the defendant is a media defendant, the private figure plaintiff must prove actual malice to recover punitive damages. The hypothetical person of ordinary intelligence is one who exercises care and prudence, but not omniscience, when evaluating an allegedly defamatory communication. Tax Law That appeal is also being decided today, John Tatum and Mary Ann Tatum v. Julie Hersh, No. Health Care Law Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 875 (Tex.App.Dallas 2014, no pet. 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. 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. We conclude only that a reasonable factfinder could conclude that this is the column's gist, and this opinion should not be construed to hold that this is necessarily the column's gist. at *4. 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.. Id. DMN also asserted the following no-evidence grounds: There was no evidence that the Tatums were consumers. To the extent a negligence standard applies, there was no evidence of negligence. Here, the column did not mention Paul or the Tatums by name. at *5. Arbitration & Mediation C.Procedural History and Appellate Issues. We reject the Tatums' second appellate issue. For the reasons discussed below, we conclude that they did. See Deception, Webster's Third New International Dictionary of the English Language Unabridged (1981) (the act of deceiving, cheating, hoodwinking, misleading, or deluding); see also Deceive, id. The column omits the reasons why the Tatums believed their account of the cause of Paul's suicide was true. Appellees also argue that the column cannot reasonably be read to suggest that Paul had a mental illness. Rather, this case turns on the verifiability of the column's accusation of deception against the Tatums. We are not persuaded by appellees' characterization of the column as nonactionable rhetorical hyperbole. More than 1,000 people attended Paul's funeral. In May 2010, Paul was a seventeen-year-old high school student. There was no evidence that appellees published a false statement of fact. In Lipsky, for example, the supreme court said, Defamation's elements include (1) the publication of a false statement of fact to a third party 460 S.W.3d at 593 (emphasis added). And the secrecy surrounding suicide leaves us greatly underestimating the danger there. b. Civil Rights The gist is that they stated a false cause of death, shrouded Paul's suicide in secrecy, intended to mislead and deceive the readers, and may have wanted to conceal Paul's mental illness and their own failure to intervene. The medical examiner ruled the teens death a suicide. 16-0098 Supreme Court of Texas May 11, 2018. Securities Law These affidavits create a reasonable inference that persons who knew the Tatums also knew that the column referred to them. Some obituary readers tell me they feel guilty for having such curiosity about how people died. Education Law The column's headline and opening sentence announce that deception and secrecy are the column's topics. OPINION . 73.002(b)(2). 73.002(b)(1)(B). The Tatum filed suit alleging libel and libel per se against Petitioners alleging that the column at issue defamed them. 186 0 obj <> endobj Applying the Milkovich analysis and considering the accusations in context, the court held that the statements were actionable statements of fact. At issue is. There is also evidence from which a reasonable factfinder could conclude that Blow had a motive to avoid learning any additional facts about Paul's death. 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? 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.. You're all set! Are the column's statements about the Tatums nonactionable opinions? In two of their cases, the court held that statements accusing someone of causing someone else to commit suicide were nonactionable opinions because the cause of a suicide is not objectively verifiable. We conclude that summary judgment was proper as to the Tatums' DTPA claims but not as to their libel claims. His testimony demonstrates his training and expertise in the field of accident reconstruction. For this privilege to apply, however, the law requires that the comment at issue purported to be, and was, only a fair, true and impartial report of what was stated at the meeting, regardless of whether the facts under discussion at such meeting were in fact true, unless the report was made with malice. Denton Publ'g Co., 460 S.W.2d at 883. Rhetorical hyperbole is extravagant exaggeration employed for rhetorical effect. Appellees argue that a public controversy existed over the official cause of Paul's death. Heritage Capital, 436 S.W.3d at 875. He was born on January 12, 1953 to Albert Tatum and . And those who did know were already aware of the confusion caused by the obituary. She has since written a book, Struck by Living. Civ. That decision, which backed the Tatums defamation claims, said readers could construe the column to suggest that Paul suffered from mental illness.. We agree that the column's gist associates the obituary with deception, which denotes an intention to deceive, often for personal advantage. The trial court granted summary judgment for Petitioners. In adopting the verifiable as false test in Bentley and Neely, the Texas Supreme Court relied on the United States Supreme Court's decision in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). This site is protected by reCAPTCHA and the Google. Id. 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). We disagree. The Tatums assert two appellate issues: (1) The trial court erred by granting summary judgment on their libel claims; and (2) the trial court erred by granting summary judgment on their DTPA claims. Texas Supreme Court This argument misses the point. As to whether Blow misrepresented his investigation and the sources of his information, Blow testified by deposition that he learned the information about Paul's death that he used in his column from one of his colleagues at DMN. Turner, 38 S.W.3d at 115. Like a cat putting its nose to the wind, that curiosity is part of how we gauge the danger out there for ourselves and our loved ones. Heritage Capital, 436 S.W.3d at 875. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. THE DALLAS MORNING NEWS, INC. AND STEVE BLOW v. JOHN TATUM AND MARY ANN TATUM Oral argument was held on January 10, 2018. 4. 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. 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." Zoning, Planning & Land Use. We thus conclude that Denton Publishing Co. is still controlling law. We also conclude that the evidence raises a genuine fact issue as to actual malice. The column (i) uses the word deception, (ii) juxtaposes the discussion of Paul's suicide and obituary with the story of the fabrication after Ted Pillsbury's suicide, and (iii) juxtaposes the discussion of Paul's suicide and obituary with advocacy regarding secrecy, suicide, and the need for honesty and intervention. The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. Believing that Paul's suicide was caused by a brain injury he sustained in the earlier automobile accident, the Tatums stated in the obituary that Paul died as a result of injuries sustained in an automobile accident. The obituary was published on May 21, 2010. Thus, if the column's false gistthat the Tatums wrote Paul's obituary with the intent to deceiveis more damaging to the Tatums' reputations than a true statement would have been, then the gist is not substantially true. 29, 2013), aff'd, 41 N.E.3d 38 (Mass.2015). Whether a statement is a statement of fact or opinion is a question of law. Similarly, Julie Hersh, who was mentioned in the column, testified by deposition that she knew that Blow was referring to Paul Tatum's death when she read the column. 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. But appellees do not explain how the column amounts to rhetorical hyperbole. Prac. 17.46(b)(24) (West 2011). See Waste Mgmt. Turner, 38 S.W.3d at 114. The elements of the Tatums' claims were thus (i) they were consumers, (ii) DMN used or employed the act or practice defined in 17.46(b)(24), (iii) the Tatums relied on DMN's act or practice to their detriment, and (iv) DMN's act or practice was a producing cause of economic or mental-anguish damages. See Neely, 418 S.W.3d at 64 (We determine a broadcast's gist or meaning by examining how a person of ordinary intelligence would view it.) (footnote omitted). The column was true or substantially true. hbbd``b`@q?`]$^@' BD A:X %@b5$t.#'PFF 6 By using the statement In my opinion Mayor Jones is a liar as an example of an actionable statement of fact, the Court took the position that such a statement can be proven false. But averting our eyes from the reality of suicide only puts more lives at risk. In the interest of judicial economy, we consider all grounds presented to the trial court and preserved on appeal. To support their premise, appellees point to evidence that some people in the community were discussing Paul's suicide before the column was published. Because the evidence in Neely raised a genuine fact issue as to whether a news broadcast was substantially true, the court held that the defendants were not entitled to summary judgment based on the fair comment privilege. Whether a publication is capable of a defamatory meaning is initially a question for the court. Do you think that might be important for parents to understand? Health Law Alabama asked the U.S. Supreme Court to freeze the district court's injunction, which the Court did by a 5-4 decision pending a merits decision. John and Mary Ann Tatum, whose 17-year-old son shot himself, sued The News and now-retired Metro columnist Steve Blow in 2011 over allegations that the column accused the couple of lying about their son's death. Id. When reviewing a no-evidence summary judgment, we determine whether the nonmovant adduced sufficient evidence to raise a genuine issue of fact on the challenged elements. I'm told there was a time when the word cancer was never mentioned. Appellees asserted several summary judgment grounds. Because the evidence raises a genuine fact issue that the column's gist was neither true nor substantially true, appellees' traditional and no-evidence summary judgment grounds addressing truth and substantial truth cannot support the trial court's judgment. And no-evidence summary judgment was proper as to actual malice the fair comment.. Preserved on dallas morning news v tatum oyez column did not mention Paul or the Tatums were consumers them. A negligence standard applies, there was no evidence of negligence S.W.3d 865 875! Opening sentence announce that deception and secrecy are the column 's statements about the Tatums believed their account official! 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