Summary
explaining that the newspaper's statement the "texting driver hits four motorcycles" was substantially true where the plaintiff "admitted throughout the pendency of the case, and through her plea in the criminal case, that she was distracted by her phone while driving and hit and injured seven motorcyclists" even if she was not actually texting
Summary of this case from Lahuti v. Gannett Co.Opinion
No. 107539
05-23-2019
Kary MYLES, Plaintiff-Appellant, v. RAYCOM MEDIA, INC., et al., Defendants-Appellees.
Denman & Lerner Co., L.P.A., and John S. Salem, Mentor, for appellant. McDonald Hopkins Co., L.P.A., and Matthew John Cavanagh, Cleveland, for appellees.
Denman & Lerner Co., L.P.A., and John S. Salem, Mentor, for appellant.
McDonald Hopkins Co., L.P.A., and Matthew John Cavanagh, Cleveland, for appellees.
JOURNAL ENTRY AND OPINION
LARRY A. JONES, SR., J.:
{¶ 1} Plaintiff-appellant Kary Myles ("Kary Myles") appeals from the trial court's judgment granting summary judgment in favor of defendant-appellee WOIO, L.L.C. ("WOIO"). Myles's case against WOIO was based on defamation, which she alleged was due to WOIO's description of her as a "texting driver" following a motor vehicle accident for which she was admittedly at fault. For the reasons that follow, we affirm.
Procedural and factual history
{¶ 2} On May 7, 2014, Myles was involved in a motor vehicle accident in Valley View, Ohio. Specifically, she drove her vehicle into four motorcycles while they were stopped at a red light. The motorcycles had a total of seven people on them; all seven people were injured. Myles admitted fault on the scene, telling the police that she had been looking down at her phone moments before the accident.
{¶ 3} Based on Myles's admission that she had been looking at her phone, the police suspected that she may have been text messaging at the time of the accident. Therefore, Myles's cell phone was turned over to the Cuyahoga County Prosecutor's Office for forensic analysis.
{¶ 4} On May 26, 2014, WOIO, which is a Cleveland news media outlet, published a report on its website about the accident. The entirety of the article was in the following form:
Texting driver hits four motorcycles
VALLEY VIEW, OH (WOIO) – Investigators are requesting the phone records of a woman they say plowed into four motorcycles at a red light.
She admitted it happened as she was looking down at her phone. Police have
launched an investigation to see if that driver had been texting.
It happened earlier this month in Valley View, at the intersection of Canal Road and Fosdick Road.
There were seven people on those bikes, and all of them were hurt. One was even seriously hurt, with a fractured skull, bleeding on the brain, and more. Valley View police found no evidence the driver of the car tried to brake or avoid the motorcycles. Records also show that the driver admitted to looking down at her phone.
Now detectives are having the phone analyzed for any record of texting. She could now face felony charges.
{¶ 5} Thereafter, the prosecutor's office found no evidence that the phone was sending or receiving text messages at the time of the crash. Nonetheless, the matter was presented to a grand jury that, on June 24, 2014, indicted Myles on four counts of aggravated vehicular assault. See Cuyahoga C.P. No. CR-14-586380.
{¶ 6} Meanwhile, on June 5, 2014, WOIO had published another article, that was titled "Grand Jury to consider charges on driver distracted by phone during crash." The sum and substance of the article was (1) "A Cuyahoga County Grand Jury will consider felony charges against a driver for plowing into a group of motorcycles as police say she looked down at her phone" and (2) "Investigators say they just analyzed that phone with the help of Cuyahoga County prosecutors. They found the driver was not texting, but doing some activity with her phone."
{¶ 7} On June 25, 2014, the day after Myles was indicted, WOIO published another report titled, "Driver indicted in distracted driving crash." The article included details that were previously reported and, for the first time, referenced Myles by name, stating that "A Chagrin Falls woman, Kary Myles, is now facing years in prison after police say she plowed into a group of motorcycles when she looked down at her phone. * * * Myles was indicted on Wednesday with four counts of aggravated vehicular assault." The June 25 report also included two hyperlinks, titled as (1) "Driver indicted in distracted driving crash" and (2) "texting driver hits four motorcycles."
{¶ 8} On July 9, 2014, WOIO published a fourth report on the accident, which was titled "Woman who crashed into group of motorcycles has 1st court appearance." The report referred to Myles by name, included previously reported information (including that she had not been texting), and added that she had been arraigned and was out on bond. It contained the same two hyperlinks mentioned above.
{¶ 9} In a letter dated July 11, 2014, from Myles's attorney to the general manager at WOIO, the attorney complained to the news outlet about its description of Myles as a "texting driver" and demanded the removal of that language. Through its attorney, WOIO responded via letter dated July 15, 2014, claiming that the reports were due to a "texting crash."
{¶ 10} Myles's attorney responded in a letter dated July 16, 2014, challenging the description a "texting crash." But Myles's attorney went on to state that "I checked the website upon receipt of your letter and was pleased to learn that the ‘texting driver’ headline was changed to ‘distracted driver’ yesterday afternoon and that shortly thereafter the link was deleted entirely by your client." Myles's attorney further stated the following in the letter:
I have spoken to my client about WOIO's response to this matter. She is still extremely distraught regarding these publications and I have advised her that the next step would be to file a
formal lawsuit for defamation. Please advise if you are willing to enter into pre-litigation dialogue regarding this matter based on the new information provided herein.
{¶ 11} In November 2014, a Cuyahoga County Grand Jury returned another indictment against Myles; it charged her with the same four counts of aggravated vehicular assault that had been previously charged, and added seven additional counts for misdemeanor negligent assault. See Cuyahoga C.P. No. CR-14-590925.
{¶ 12} In January 2015, the first indictment against Myles was dismissed. In May 2015, Myles entered into a plea agreement with the state of Ohio in the second criminal case. Under the agreement, Myles pleaded guilty to three counts of misdemeanor negligent assault. The remaining counts were dismissed. The trial court sentenced Myles to a $ 300 fine.
{¶ 13} After the conclusion of the criminal prosecution, and also in May 2015, Myles filed the within action. She named numerous defendants in addition to WOIO; those other defendants were dismissed. Her complaint against WOIO was that its use of the description of her as a "texting driver" "imputed criminal conduct to her which she did not commit." She sought relief on the grounds of (1) invasion of privacy/false light, (2) defamation, and (3) intentional infliction of emotional distress. None of her allegations were relative to the June 5, 2014 report. Attached as an exhibit to Myles's complaint were numerous online comments that had been posted in response to the reports; many of them were disparaging toward Myles.
{¶ 14} WOIO filed a motion to dismiss that was denied. WOIO answered and counterclaimed. In its counterclaim, the news outlet sought a declaratory judgment that it had "not defamed, placed a false light upon, or caused emotional distress to Myles."
{¶ 15} After discovery was completed, WOIO filed a motion for summary judgment that Myles opposed. The trial court granted the news media outlet's summary judgment motion and this appeal ensued, with Myles contending in her sole assignment of error that "[i]t was error to grant summary judgment in favor of WOIO."
Law and Analysis
Summary judgment standard
{¶ 16} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs. , 123 Ohio App.3d 158, 162, 703 N.E.2d 841 (4th Dist.1997). "When reviewing a trial court's ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court." Mergenthal v. Star Banc Corp. , 122 Ohio App.3d 100, 103, 701 N.E.2d 383 (12th Dist.1997). Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd. , 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).
Trial court's judgment
{¶ 17} In regard to Myles's defamation claim, the trial court found that Myles admitted that she was distracted by her phone and negligent in her driving and, therefore, the distinction between a "texting driver" and a "distracted driv[er] who admittedly used her phone at the time of the accident" was "insignificant." The court reasoned that, although Myles was " ‘not technically texting while driving,’ ‘the substance, gist, or sting of the [WOIO's] story is true, and supports the headline of "texting driver hits four motorcycles.’ "
{¶ 18} Similarly, relative to Myles's invasion of privacy/false light claim, the trial court found that there was "no materially false statement." Because the court found that Myles had not presented claims for defamation or invasion of privacy/false light, it necessarily found no claim for the intentional infliction of emotional distress, because that is a derivative claim. Based on its findings, the court rendered summary judgment in favor of WOIO, and found that its decision also satisfied WOIO's counterclaim for a declaratory judgment that it did not defame, place false light upon, or cause emotional distress to Myles.
{¶ 19} For the reasons discussed below, we agree with the trial court.
There are generally two types of defamation: slander and libel. Slander is generally considered to be the result of a spoken statement, and libel is generally derived from written statements. Baxter v. Sandusky Newspapers, Inc. , 6th Dist. Erie No. E-11-006, 2012-Ohio-1233, 2012 WL 1018841, ¶ 26, citing Dobbs, Hayden, Bublick, The Law of Torts , Section 518, 170-171 (2d Ed.2011).
{¶ 20} To establish a claim for defamation, a plaintiff must show that: (1) the defendant made a false statement of fact, (2) the statement was defamatory, (3) the statement was published, (4) the plaintiff suffered injury as a proximate result of the publication, and (5) the defendant acted with the requisite degree of fault in publishing the statement. Am. Chem. Soc. v. Leadscope, Inc. , 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 77.
{¶ 21} Thus, defamation occurs when a publication contains a false statement " ‘made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.’ " Jackson v. Columbus , 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 9, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council , 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995).
{¶ 22} As mentioned, the trial court found that the "substance, gist, or sting" of the statement "texting driver hits four motorcycles" was true. It has been held that
[t]he publication need not be literally true to receive protection [from a defamation claim]. It is enough if the publication is substantially true. That means the gist or sting of the defamation must be true even if details are not. Read literally, some judicial statements seem to say that a publication is true if it generates no more opprobrium or distaste in the readers' minds than the truth.
Scaccia v. Dayton Newspapers, Inc. , 2d Dist. Montgomery No. 22813, 2009-Ohio-809, 2009 WL 440948, ¶ 9, citing Dobbs, Hayden, Bublick at 217, Section 533.
{¶ 23} Upon review, we find that the contested statement was not materially false. Myles admitted throughout the pendency of the case, and through her plea in the criminal case, that she was distracted by her phone while driving and hit and injured seven motorcyclists. On this record, the exact means by which she was distracted was immaterial.
{¶ 24} Moreover, although the title of WOIO's first report refers to "texting," the body of the report made clear that authorities only suspected that the driver (who at that point had not yet been named) had been doing so:
Investigators are requesting the phone records of a woman they say plowed into four motorcycles at a red light.
She admitted it happened as she was looking down at her phone. Police have launched an investigation to see if that driver had been texting.
* * *
Records also show that driver admitted to looking down at her phone.
Now detectives are having that phone analyzed for any record of texting. She could now face felony charges.
{¶ 25} WOIO's subsequent reports, after it was found that Myles had not been texting, made clear that that was the case. The June 5 report titled, "Grand jury to consider charges on driver distracted by phone during crash," stated that Myles had "looked down at her phone," but that it had been reported that she "was not texting, but doing some activity with her phone." The June 25 report titled, "Driver indicted in distracted driving," stated that Myles had "looked down at her phone." And the report of July 9, titled "Woman who crashed into group of motorcycles has 1st court appearance," included previously reported information and did not state that Myles had been texting.
{¶ 26} Although the subsequent reports contained hyperlinks to the first report with the "texting driver" description, it must be considered with all parts of the publications. "[A court should be] always mindful of the caveat that the words of the publication should not be considered in isolation, but rather within the context of the entire [publication] and the thoughts that the [publication] through its structural implications and connotations is calculated to convey to the [viewer] to whom it is addressed." West v. Media Gen. Operations, Inc. , 120 Fed. Appx. 601, 617 (6th Cir.2005), citing Connaughton v. Harte Hanks Communications, Inc. , 842 F.2d 825, 840 (6th Cir.1988).
{¶ 27} Moreover, although the online comments submitted by Myles were not properly before the trial court, they demonstrate that WOIO's description of Myles as a "texting driver" generated "no more opprobrium or distaste in the readers minds than the truth," that is, that she had been distracted by her phone. Scaccia , 2d Dist. Montgomery No. 22813, 2009-Ohio-809 at ¶ 9, citing Dobbs, Hayden, Bublick at 217, Section 533.
The comments were neither sworn nor certified, nor were they authenticated by an affidavit as required under Civ.R. 56(C). See Mitchell v. Internatl. Flavors & Fragrances, Inc. , 179 Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶ 17 (1st Dist.).
For example, some of the comments were as follows: "When I'm in the car the cellphone gets turned off and goes into the glove box. * * *[D]o we really need laws telling us to put down the cellphone and focus on the road?"; "I can't tell you how many people I see on their phones as I'm riding by texting AND talking!!!" (emphasis sic); and "This phone crap needs to stop. We saw 2 idiots on the phone driving east on the turnpike yesterday in the construction zone by I-71, almost causing 2 accidents. They are clueless."
False light/invasion of privacy
{¶ 28} Prior to 2007, the Ohio Supreme Court did not recognize a cause of action for false light/invasion of privacy. The court recognized the cause of action in 2007, defining it as follows:
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 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 of the Law 2d, Torts (1977), Section 652E, adopted.)
Welling v. Weinfeld , 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051, syllabus.
{¶ 29} The trial court found in favor of WOIO on this claim on the same ground it found in its favor on Myles's defamation claim – that the news outlet did not make a materially false statement. Because we agree with the trial court's resolution of the defamation claim, we also necessarily agree with its resolution of the false light/invasion of privacy claim.
Intentional infliction of emotional distress
{¶ 30} Ohio courts have recognized on numerous occasions that when a tort claim is based on statements not found to be defamatory, the tort claim must fail. See, e.g. , A & B-Abell Elevator Co. , 73 Ohio St.3d at 15, 651 N.E.2d 1283 (holding that "where claims such as tortious interference and disparagement are based on statements that are qualifiedly privileged under defamation law, the protection afforded those statements * * * must also apply in the derivative claims."); Vail v. The Plain Dealer Publishing Co. , 72 Ohio St.3d 279, 283, 649 N.E.2d 182 (1995) (holding that because "the statements at issue are constitutionally protected speech, [the] claims for intentional infliction of emotional distress must also fail"). Here, Myles's claim for intentional infliction of emotional distress was based on WOIO's news reports. Because we have agreed with the trial court that the reports were not defamatory, her claim for intentional infliction of emotional distress fails.
{¶ 31} In light of the above, Myles's sole assignment of error is overruled.
{¶ 32} Judgment affirmed.
EILEEN T. GALLAGHER, P.J., and EILEEN A. GALLAGHER, J., CONCUR