Monday, October 14, 2013

Twitter, Defamation and the Airlines Employee

This post examines an opinion the Tennessee Court of Appeals recently issued in a civil case:  Patterson v. Grant-Herms, 2013 WL 5568427 (2013). As to what the suit involved and how it arose, the opinion begins by noting that

Jennifer Patterson, an operations agent employed by Southwest Airlines, filed this action against Natalie Grant–Herms, asserting causes of action for slander, defamation, libel, and false light invasion of privacy

Patterson alleged that Grant–Herms made untrue statements and posted false and defamatory comments about her on Facebook and Twitter relative to a confrontation between the two when Grant–Herms and her three children attempted to board a plane in violation of Southwest Airlines policy.

Patterson v. Grant-Herms, supra.

According to the brief Grant-Herms filed on appeal, the encounter occurred as follows:

On March 24, 2011 Herms purchased tickets to travel to Seattle. . . . [Sh]e was traveling with her family, which consisted of her husband, four-year old twins, Gracie and Isabella, and 3-month-old daughter, Sadie. Herms was in line to board along with her infant and one of her twins. Her husband and the other twin was [sic] further back in the row. 

She was asked by Patterson, the Southwestern employee working at the gate, whether everyone with her were [sic] Business Select passengers. Herms stated herself and her infant were Business Select passengers, but her 4 year old was not.

Patterson told Herms the 4 year old would not be able to board with her. Herms [said] she had purchased a Business Select ticket for her infant . . . and they needed to get on board to save seats for the rest of the family.

Patterson replied that either the daughter had to get out of line or all of them but the daughter was not going to board the plane with Business Select passengers. Herms [told] her husband . . . Gracie would not be allowed to board with her. 

Herms had a stroller and began walk down the gate. . . . She was upset over what she saw as poor customer service by the gate agent.

Brief of Appellee, 2013 WL 1952905.  The brief says that after Grant-Herms boarded the plane, she tweeted.”  Brief of Appellee, 2013 WL 1952905. 

According to the opinion, in the Complaint Patterson filed to initiate the suit, she alleged

Grant–Herms posted the following statements on Twitter, Facebook and

ii. `I fly @southwestair at least 75x/year. just had WORST experience. Me; A1, Sadie: A3 Gracie A34. Woman refused 2 let Gracie board w/ me.’

iii. Defendant tweeted: `Nashville. Gate A25. Flight to Denver. Her name is Jennifer. She said “get over it. Follow the rules. Or don't fly.”’

iv. She has done this to me before. She has the WORST customer service. My daughter is FOUR.

v. She re-tweeted: `that is ridiculous! [W]hat did she expect? Her walk on herself & find her seat like a grown adult?’

vi. `If your [sic] sympathize with me, when you respond be sure & include @southwestair in tweet. They need to know this WRONG.’

vii. Sadie had MAJOR blowout. I think it's in response to our southwest air experience. She decided to leave them a gift on their plain. Teehee. Asked me what they can do. I don't want free flight. Just apology from Jennifer. It's 4th time she's done it to me. Time will tell.

viii. Well, we've caused quite a stir, tweeps. @southwestair just called me. I appreciate their concern & prompt attention 2 the problem.

ix. I've got wifi on my flight. I'm impressed with how quickly @southwestair responded to my complaint. I'll keep u posted as to what they do.

Patterson v. Grant-Herms, supra.

After the case had been filed for a while and both women had been deposed, Grant-Herms filed a motion for summary judgment, arguing that (i) her statements did not “rise to the level of defamation pursuant to Tennessee law” and could not “be reasonably construed to hold” Patterson “up to public hatred, contempt or ridicule” and/or (ii) did not constitute false light invasion of privacy because her “language at issue is not highly offensive to a reasonable person.”  Brief of Appellee, supra.  The trial judge granted her motion, which effectively ended the suit.  Patterson v. Grant-Herms, supra. Patterson appealed, which resulted in this opinion.  Patterson v. Grant-Herms, supra.

As Wikipedia explains, and as I have noted in prior posts, a motion for summary judgment asserts that there are no “genuine issues of material fact” that need to be resolved at trial, and therefore asks the judge to enter judgment for the party filing the motion as a matter of law.  As Wikipedia notes, a "`material fact’ is one which, depending upon what the factfinder believes `really happened,’ could lead to judgment in favor of one party, rather than the other.” 

On appeal, Patterson argued, as to her defamation claim, that Grant-Herms’ “statements were `both undisputed and patently false,’ and `an attempt by [Grant–Herms] to paint [Patterson] as someone that would endanger the welfare of a four-year-old child.’”  Patterson v. Grant-Herms, supra.  In ruling on her argument, the court explained that

a statement is defamatory where `it tends so to harm the reputation of another as to lower him [or her] in the estimation of the community or to deter third persons from associating or dealing with him [or her].’ Secured Fin. Solutions, LLC v. Winer, 2010 WL 334644 (Tennessee Court of Appeals 2010) (quoting Restatement (Second) of Torts § 559 (1977)).

The function of the court in a defamation action is to determine `whether a communication is capable of bearing a particular meaning, and whether that meaning is defamatory.’ Restatement (Second) of Torts § 614 (1977). It is for the jury to determine `whether a communication, capable of a defamatory meaning, was so understood by its recipient.’ Id. 

Comment d to § 614 advises the court and jury, in performing their respective functions, to `take into account all the circumstances surrounding the communication of the matter complained of as defamatory. Thus the context of written or spoken words is an important factor in determining the meaning that they reasonably might convey to the person who heard or read them.’

Patterson v. Grant-Herms, supra. (Wikipedia explains what the Restatement of Torts is.)

The Court of Appeals then applied these standards to Patterson’s argument:

Considered in light of the entire circumstances, the statements attributed to Grant-Herms were expressions of her frustration and complaints that she was not able to board the flight in a manner she wanted (which would have been be contrary to Southwest policy) and of the circumstances surrounding her efforts. 

While Grant–Herms chose not to include the entire circumstances in her communications and postings, particularly the fact that she did not have the appropriate passes to board the flight as she sought, the words attributed to her could not reasonably be construed to portray Patterson as one who would endanger a 4–year old's welfare.

Construing the words `in their “plain and natural’ import”’, Stones River Motors, Inc. v. Mid-South Publishing Co., Inc., 651 S.W.2d 713 (Tennessee Court of Appeals 1983), the trial court properly determined as a matter of law that Grant–Herms' statements did not rise to the level to constitute actionable defamation.

Patterson v. Grant-Herms, supra. 

It then took up Patterson’s appeal of the judge’s dismissal of her false light invasion of privacy claim.  Patterson v. Grant-Herms, supra.  It noted that, except for holding that Grant-Herms language “`was not highly offensive to a reasonable person’”, the trial judge “did not explain the basis of this holding.”  Patterson v. Grant-Herms, supra. 

The Court of Appeals explained that in

West v. Media General Convergence, Inc., 53 S.W.3d 640 (2001), the Tennessee Supreme Court recognized the tort of false light invasion of privacy as set forth in the Restatement of Torts:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Restatement (Second) of Torts § 652E (1977). As noted in West v. Media General Convergence, Inc., supra, the interest to be protected in a false light claim is `the subjective one of injury to [the] inner person.’ . . .  

Patterson v. Grant-Herms, supra. 

The Court of Appeals found that, “[f]or the reasons set forth below, . . . the [trial] court erred in granting summary judgment on this claim.”  Patterson v. Grant-Herms, supra. 

It began its analysis of the issue by explaining that in her appellate brief, Grant-Herms

argues that the words are not offensive because `[Patterson] works for an airline. As this court is surely aware, airlines are notorious for bad customer service. The statements that were made by [Grant-Herms] are not only not highly offensive, they are sentiments that have likely been uttered by airline passengers for decades.’ 

This argument, however, does not address the threshold question of whether the statements themselves put Patterson in a false light; that is, was there such a major misrepresentation of [her] activities that serious offense may reasonably be expected to be taken.’ Restatement (Second) of Torts § 652E, comment c.

Patterson v. Grant-Herms, supra. 

The court noted that in a earlier case in which it “considered the differences and similarities between a defamation claim and one based on false light invasion of privacy claim”, it explained, with regard to the false light claim, that

`[t]he angle from which the facts are presented, or the omission of certain material facts, results in placing the plaintiff in a false light. ‘“Literal accuracy of separate statements will not render a communication `true’ where the implication of the communication as a whole was false.’” . . . The question is whether [the defendant] made “discrete presentations of information in a fashion which rendered the publication susceptible to inferences casting [the plaintiff] in a false light.” Santillo v. Reedel, 430 Pa. Super. 290, 634 A.2d 264 (Superior Court of Pennsylvania 1993).’

Eisenstein v. WTVF–TV, News Channel 5 Network, LLC, 389 S.W.3d 313 (Tennessee Court of Appeals 2012).

Patterson v. Grant-Herms, supra. 

The Court of Appeals then applied this standard to Patterson’s false light claim:

The materials filed by Grant–Herms did not specifically address the elements of the false light invasion of privacy claim.

To the extent she relied upon the words themselves to negate the `highly offensive to a reasonable person element’ of the claim, construing the words in a light most favorable to Patterson and affording her all reasonable inferences, we believe that a reasonable person could find, under the entire circumstances of the incident, that Grant–Herms' posting of selective facts placed Patterson in a false light by implying that Patterson was rude and a bad service agent, one who was more concerned with adherence to the airline rules and procedures than the welfare of the child, and that these implications caused injury to her. 

Considering the record, Grant–Herms has not shown she is entitled to summary judgment on the false light invasion of privacy claim.

Patterson v. Grant-Herms, supra. 

The court therefore affirmed the trial court’s granting summary judgment to Grant-Herms on the defamation claim but reversed the court’s granting summary judgment on the false light invasion of privacy claim and remanded that part of the case for further proceedings. Patterson v. Grant-Herms, supra. 

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