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 southwest.com:
i. `Gracie is 4. FOUR! she wanted her to board by
herself or make us wait Till A34. Even though I was business select!’
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.”’
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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