Does the Conditional Privilege for Public Health and Safety Reporting Extend to Reports to Neighbors? - Schmitz v. Aston, 197 Ariz. 264, 3 P.3d 1184 (Ariz.App. Div. 2000)
|||IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE
|||1 CA-CV 98-0121
|||March 16, 2000
|||STEPHEN SCHMITZ AND SHARON SCHMITZ, HUSBAND AND WIFE,
DEFENDANTS, COUNTERCLAIMANTS- APPELLANTS, CROSS-APPELLEES,
DANIEL ASTON AND CYNTHIA ASTON, INDIVIDUALLY AND AS HUSBAND AND WIFE,
PLAINTIFFS, COUNTERDEFENDANTS- APPELLEES, CROSS-APPELLANTS.
|||Appeal from the Superior Court of Maricopa County Cause No. CV 94-05240
The Honorable Paul A. Katz, Judge
|||Holloway Odegard & Sweeney, P.C. by Kevin B. Sweeney Charles M. Callahan
Phoenix and Meyers Law Firm by J. Tyrrell Taber Phoenix Attorneys for Defendants,
Counterclaimants-Appellants, Cross-Appellees Stanley M. Slonaker Attorney
for Plaintiffs, Counterdefendants-Appellees, Cross-Appellants Phoenix
|||The opinion of the court was delivered by: Michael D. Ryan, Presiding
|||AFFIRMED IN PART; REVERSED IN PART;
|||¶1 Stephen and Sharon Schmitz and Daniel and Cynthia Aston were neighbors.
The Schmitzes came to believe that Mr. Aston had molested their daughter.
They told several neighbors, who had children about the same age as their
daughter, that they suspected that Mr. Aston had molested their daughter.
The Astons subsequently sued for defamation, intentional infliction of emotional
distress, and false light invasion of privacy. After trial, a jury awarded
the Astons nearly two million dollars in damages. Through various post-trial
rulings, the trial court reduced the amount of the award to about $500,000.
Both sides appealed.
|||¶2 The Schmitzes appeal from the trial court's judgment on jury verdicts
against them in the amounts of $250,000 for emotional distress and $25 nominal
damages for defamation. They argue that the defamation claim should never
have been submitted to the jury because the trial court found that their
statements were conditionally privileged and the Astons did not prove that
the Schmitzes abused the privilege. The Schmitzes also contend that the
court erred in failing to vacate the $250,000 punitive damage award against
Mrs. Schmitz individually. The Astons cross-appeal from the trial court's
judgments as a matter of law which vacated the jury's awards of $900,000
for intentional infliction of emotional distress damages, $100,000 general
damages for defamation, and $250,000 punitive damages against Mr. Schmitz.
The Astons also cross-appeal from the trial court's directed verdict of
their false light invasion of privacy claim.
|||¶3 We conclude that the trial court should not have applied a conditional
privilege to the defamatory statements the Schmitzes made to their neighbors.
Thus, we reject the Schmitzes' claim that the court erred in submitting
the Astons' defamation claim to the jury. Also, with respect to the defamation
claim, we hold that the trial court erred in vacating the jury's award of
general damages. We also hold that the trial court erred in vacating the
jury's award on the Astons' claim for intentional infliction of emotional
distress. Instead, the court should have ordered a remittitur. We affirm
the trial court's directed verdict on the Astons' claim for false light
invasion of privacy, but for a different reason than primarily relied upon
by the trial court. We further hold that sufficient evidence supports the
award of punitive damages against Mrs. Schmitz, but we remand for the trial
court to consider a remittitur. Finally, we affirm the trial court's order
vacating the punitive damages against Mr. Schmitz. Therefore, we affirm
in part, reverse in part, and remand for further proceedings. *fn1
|||A. Factual History *fn2
|||¶4 The Schmitzes and the Astons were backyard neighbors in Scottsdale.
The Schmitzes have three children, Lauren, Liza, and Michael. The Astons
have a daughter, Jillian. Because of their closeness in age, Jillian and
Liza were friends. In the fall of 1992, when both girls were five years
old, Mrs. Schmitz and Mrs. Aston noticed changes in their children's behavior.
Jillian was reluctant to play at Liza's house; Liza had begun to masturbate
and become argumentative with family and friends.
|||¶5 In early February 1993, Mrs. Aston telephoned Mrs. Schmitz and expressed
concerns that the girls had engaged in sexual play while together at the
Aston home. Over the course of a few conversations, Mrs. Aston told Mrs.
Schmitz that Jillian had said that the girls were kissing and playing "bum
to bum" and "pee to pee." When Mrs. Schmitz asked Liza where
she had learned these games, Liza became agitated and gave various responses,
including that she had learned them from her sister's friend while at the
|||¶6 On February 10, 1993, Mrs. Schmitz took Liza to see her pediatrician,
Dr. Ziltzer. Mrs. Schmitz gave the doctor Liza's medical history and said
that she suspected that Liza had been sexually abused. Mrs. Schmitz explained
that Liza had been sexually acting out, but that these activities only occurred
with her friend Jillian. She told Dr. Ziltzer that she suspected Jillian's
father, Dan Aston, might be the perpetrator because he had babysat the two
girls alone several times and on one of these occasions he had bought Liza
a tee-shirt and had given her a dollar.
|||¶7 Dr. Ziltzer asked Liza whether anyone had touched her in her private
area, and Liza said "no." Liza's physical examination indicated
that there was some redness in the vaginal area, but there was no evidence
of trauma to the genital area, infections, or sexually transmitted diseases.
Although the findings were inconclusive, Dr. Ziltzer reported that Liza's
physical examination could be consistent with the suspicions of abuse described
by Mrs. Schmitz. Based on Mrs. Schmitz's concerns and Liza and Jillian's
inappropriate sexual play, Dr. Ziltzer made a referral to Child Protective
Services ("CPS") for further investigation.
|||¶8 Dr. Ziltzer's partner, Dr. Fischler, discussed Liza's examination with
Mrs. Schmitz. Because of Mrs. Schmitz's concerns and suspicions, Dr. Fischler
suggested that she contact the police department and CPS. Dr. Fischler also
recommended that Liza see Dr. Harrison, a psychologist who had extensive
experience in treating sexually abused children.
|||¶9 Shortly thereafter, Mrs. Aston contacted Mrs. Schmitz to learn the
results of Liza's examination. Mrs. Schmitz told Mrs. Aston that the doctor
had found signs of molestation and that she should also take Jillian to
be examined. Mrs. Aston became very upset and made repeated telephone calls
to her husband, who was working out of town. That evening, Mr. Aston telephoned
Mrs. Schmitz. During their conversation, Mr. Aston became extremely angry
that Mrs. Schmitz thought that his daughter had also been molested.
|||¶10 On February 16, 1993, Mrs. Schmitz contacted the Scottsdale Police
Department to report that Liza had been sexually molested. She told the
police that the pediatrician had "confirmed" that Liza had been
molested. The next day, Crisis Intervention Specialists Riccio and Perlman
*fn3 visited the Schmitzes' home. Mrs.
Schmitz explained to Riccio and Perlman that Liza had been acting out sexually
with her younger brother and her friend, Jillian. Mrs. Schmitz also stated
that she suspected that Mr. Aston was the perpetrator because he had babysat
the two girls alone. Ms. Perlman spoke with Liza separately for approximately
fifteen minutes. She avoided any direct or leading questions and primarily
allowed Liza to volunteer information. However, Ms. Perlman did ask Liza
if anyone had given her "bad touches." Liza responded "no."
Ms. Perlman told Mrs. Schmitz that based on the interview, she had no indication
that Liza had been sexually abused. Mrs. Schmitz became quite upset because
she expected a more in-depth interview. She repeated her belief that Mr.
Aston molested Liza.
|||¶11 About a week later, the Schmitzes met with Dr. Harrison to discuss
the possibility of Liza beginning therapy sessions. Dr. Harrison had previously
discussed the case with Dr. Fischler, and was aware of the examination results.
During this meeting, the Schmitzes expressed their concerns about Liza's
behavior, which they believed indicated that she had been sexually abused.
The following day, Liza began therapy. Dr. Harrison did not ask Liza directly
about any sexual abuse. Her approach was to gradually build a rapport with
Liza in the hope that she would spontaneously talk about any abuse that
might have occurred. Dr. Harrison asked the Schmitzes to refrain from talking
to Liza about her treatment or the alleged molestation. But, Dr. Harrison
told the Schmitzes they could answer any of Liza's questions.
|||¶12 Three days later, Crisis Intervention Specialist Riccio contacted
the Schmitzes to follow up on their progress. Mrs. Schmitz told him that
they had sought psychological care and that the doctor was eighty to ninety
percent certain that Liza had been molested. *fn4
Mr. Riccio stated that if the doctor believed a re-interview was appropriate,
one would be completed and a detective would be assigned to the case.
|||¶13 During March, Liza continued therapy. Mrs. Schmitz told Dr. Harrison
that Liza was acting out and exhibiting a lot of anger at home. Dr. Harrison
also observed Liza exhibit anger during their sessions. It was during these
sessions that Liza began to talk about "naughty things." However,
she neither volunteered any information regarding her sexual play with Jillian,
nor disclosed the identity of any alleged perpetrator of sexual abuse.
|||¶14 In late March or early April, the Schmitzes began to notify some neighbors
that they suspected that Liza had been sexually molested by Mr. Aston. Mrs.
Schmitz primarily made the statements, which were told to four neighbors
with children. At the time, none of these neighbors were friends with the
Astons nor did their children play with Jillian. Others in the neighborhood,
and some of the faculty at Jillian's preschool, learned of the Schmitzes'
allegations against Mr. Aston from these neighbors.
|||¶15 Later in April 1993, a neighbor told Mrs. Aston that the Schmitzes
were notifying some neighbors that her husband was a child molester. During
this conversation, Mrs. Aston became so distraught that she had to carry
on the discussion from the ground. She was so upset that she could not care
for her daughter and had to take her to a friend's house. Mrs. Aston then
went to the police station and contacted Crisis Intervention Specialist
Riccio. He told her that no investigation was occurring at that time.
|||¶16 In an effort to prevent the situation from escalating, Riccio telephoned
Mrs. Schmitz. Mrs. Schmitz indicated that her suspicions of Mr. Aston had
increased and that she was concerned for other neighborhood children. She
told Riccio that she was only telling neighbors with children. Riccio warned
Mrs. Schmitz that there might be legal consequences to her actions; however,
Mrs. Schmitz said that out of concern for the children's safety she had
to do what was right.
|||¶17 In response to the Schmitzes' statements to neighbors, the Astons
circulated a letter stating that if the neighbors had any concerns they
could contact Riccio for information. They also spoke with neighbors about
what they viewed as the Schmitzes' false accusations. The Astons also began
displaying tee-shirts around the neighborhood which contained various slogans,
such as "You Named the Wrong Person." The Astons hung these tee-shirts
from their backyard trees, car windows, and wore them while jogging through
the neighborhood. During this time, Liza continued her therapy sessions
with Dr. Harrison.
|||¶18 Apart from Liza's therapy sessions, Mrs. Schmitz had discussions with
Liza about secrets and the need for children to disclose secrets about molestation.
Mrs. Schmitz also read children's books to Liza that had stories about the
topic of child sexual abuse and the need to disclose. Toward the end of
April and the beginning of May 1993, Liza began to discuss secrets with
Dr. Harrison. Liza specifically referred to her sexual play with Jillian.
However, Liza still did not identify Mr. Aston as her perpetrator. In May,
Dr. Harrison learned from Mrs. Schmitz that Liza's behavioral problems had
increased as a result of seeing Mr. Aston jog in the neighborhood.
|||¶19 In early June, Mrs. Schmitz expressed her belief to Dr. Harrison that
Liza was close to naming Mr. Aston as the perpetrator. She explained that
she had read books with Liza which discussed how adults threaten children
to prevent them from disclosing secrets. Mrs. Schmitz suspected that Mr.
Aston might have threatened Liza, and that had been the reason for Liza's
failure to identify him as the perpetrator. Three weeks later, on June 23,
1993, after four months of therapy, Liza revealed to Dr. Harrison that Mr.
Aston had touched her bottom on two occasions. Dr. Harrison understood that
when Liza said "bottom" she was referring to the buttocks area.
Two weeks later, Liza again told Dr. Harrison that Mr. Aston had touched
her, and that she was afraid of him. *fn5
|||¶20 As a result of Liza's disclosure, the Scottsdale Police were again
contacted. Detective Cwengros, who had extensive training in the investigation
of sex crimes, was assigned the case. Cwengros received information about
the pediatrician's findings and learned from Dr. Harrison that Liza had
stated that she had been inappropriately touched by Mr. Aston. Cwengros
interviewed Liza alone, at which time she stated that Mr. Aston had touched
her under her clothing in her vaginal area. Based on Liza's demeanor and
spontaneous responses, Cwengros had no reason to disbelieve her.
|||¶21 Later, Cwengros also spoke with the Astons. Having previously interviewed
Liza, Cwengros focused his questioning on whether Mr. Aston had the opportunity
to commit a sexual crime against Liza. Mr. Aston admitted that on one occasion
he babysat his daughter, Jillian, and her friend Liza by himself. Mr. Aston
expressed embarrassment about discussing the matter, and was angry about
being accused of sexual molestation. Cwengros submitted a report to the
Maricopa County Attorneys' Office for a charging decision; however, he made
no recommendation concerning prosecution. Mr. Aston was never charged with
committing any offenses.
|||B. Procedural History
|||¶22 The litigation began with the Astons filing a complaint against the
Schmitzes, alleging causes of action for defamation, false light invasion
of privacy, and negligent and intentional infliction of emotional distress.
They also sought punitive damages. The Schmitzes counterclaimed, with causes
of action for negligent and intentional infliction of emotional distress.
These claims were based on two activities of the Astons. One was the Astons'
display of tee-shirts around the neighborhood accusing the Schmitzes of
making false accusations. The other occurred after the Schmitzes moved out
of the neighborhood in August, 1993. Mr. Aston went to the Schmitzes' new
home several times and parked nearby. He testified that he did this for
the purpose of inflicting pain on the Schmitzes. Mrs. Schmitz saw him at
least twice and became quite upset.
|||¶23 The Schmitzes filed a motion for partial summary judgment on the Astons'
defamation claim contending that any conversations with law enforcement
were privileged and that there was no evidence of their falsity or conscious
disregard of their probable falsity. The Schmitzes also filed motions for
partial summary judgment regarding the Astons' claims for punitive damages
and false light invasion of privacy. The trial court granted the Schmitzes'
motion for summary judgment with respect to their conversations with law
enforcement finding that these conversations were "subject to qualified
immunity." However, the court denied both motions for summary judgment
regarding the punitive damages and false light invasion of privacy claims.
The case then proceeded to trial.
|||¶24 At the conclusion of the presentation of evidence, the trial court
granted the Schmitzes a directed verdict on the Astons' false light invasion
of privacy claim. The court found that the facts were insufficient to support
this claim because there was inadequate publication. The court also found
it duplicated the Astons' other claims. With respect to the defamation claim,
the trial court determined that under Restatement (Second) of Torts (1977)("Restatement")
and Arizona public policy the statements the Schmitzes made to their neighbors
were conditionally privileged. However, the court denied the Schmitzes'
motion for a directed verdict on the Astons' punitive damages claims. Additionally,
the court denied the Schmitzes' motions for judgment as a matter of law
on the Astons' defamation and intentional infliction of emotional distress
claims. The court also directed verdicts on both the Schmitzes' and the
Astons' claims and counterclaims of negligent infliction of emotional distress,
finding that neither party could show the necessary harm required to satisfy
|||¶25 The jury returned a verdict in favor of the Astons on their defamation
claim, finding general damages to be $100,000 and emotional distress damages
to be $250,000. The jury also returned verdicts in favor of the Astons on
their intentional infliction of emotional distress claim in the amount of
$900,000 and awarded punitive damages of $250,000 against Mr. Schmitz and
$250,000 against Mrs. Schmitz. Finally, the jury found against the Schmitzes
on their counterclaim.
|||¶26 Subsequently, the Schmitzes filed a motion for judgment as a matter
of law as to the jury verdicts. The trial court granted the Schmitzes' motion
with respect to the general damages award of $100,000 on the defamation
claim, finding that the evidence did not demonstrate that any reputational
damage occurred to the Astons. Instead, the court awarded the Astons nominal
damages in the amount of $25. However, the court affirmed the jury's award
of $250,000 for emotional distress for defamation, finding that enough evidence
was presented to sustain this award.
|||¶27 In addition, the court granted the Schmitzes' motion for judgment
as a matter of law with respect to the $900,000 award for intentional infliction
of emotional distress and vacated the jury's verdict. The court stated that
the purpose of an award for intentional infliction of emotional distress
was to compensate, not to punish. It found that no reasonable person, under
the facts in this case, could determine that the Astons suffered such emotional
distress as to warrant this high of an award. The court found the award
duplicative of the defamation claim and the result of the jury's anger,
passion, and prejudice. The court further stated that the award shocked
the conscience of the court.
|||¶28 As for punitive damages, the trial court initially upheld the jury's
verdict with respect to punitive damages against both Mr. and Mrs. Schmitz
separately. However, after a second set of motions was filed by the Schmitzes,
the court granted judgment as a matter of law and vacated the jury's verdict
of punitive damages against Mr. Schmitz. But the court refused to disturb
the jury's $250,000 punitive damage verdict against Mrs. Schmitz.
|||¶29 We first address the defamation claim and the issue of conditional
privilege. We conclude that the trial court erred in applying a conditional
privilege to the defamatory statements the Schmitzes made to the neighbors.
We also conclude that the court erred in vacating the jury's award as to
reputational damages for defamation.
|||¶30 Defamation is a false publication that impeaches another's honesty,
integrity, virtue, or reputation or brings the defamed person into disrepute,
contempt, or ridicule. See Godbehere v. Phoenix Newspapers, Inc., 162 Ariz.
335, 341, 783 P.2d 781, 787 (1989). A statement is defamatory if it tends
to "harm the reputation of another as to lower him in the estimation
of the community or to deter third persons from associating or dealing with
him." Restatement § 559. A person who publishes a false and defamatory
statement concerning a private person is subject to liability if he or she
knows that the statement is false and that it defames the other, acts in
reckless disregard of these matters, or acts negligently in failing to ascertain
the truth or falsity of the statement. See Peagler v. Phoenix Newspapers,
Inc., 131 Ariz. 308, 311-12, 640 P.2d 1110, 1113-14 (App. 1981).
|||¶31 However, under certain circumstances, a person who publishes a defamatory
statement may be protected from liability if the statement is considered
privileged. See Green Acres Trust v. London, 141 Ariz. 609, 612, 688 P.2d
617, 620 (1984); Restatement § 580B. There are two types of privileges,
absolute and qualified. See Green Acres Trust, 141 Ariz. at 612, 688 P.2d
at 620; Restatement §§ 583-612. An absolute privilege is based "upon
a recognition of the necessity that certain persons, because of their special
position or status, should be as free as possible from fear that their actions
in that position might have an adverse effect upon their own personal interests."
Restatement, Chapter 25, Topic 2, Title B, pp. 242-43; see Green Acres Trust,
141 Ariz. at 612, 688 P.2d at 620. The qualified or conditional privilege
is based on the societal value of protecting statements made in response
to a legal, moral, or social duty. See Green Acres Trust, 141 Ariz. at 616,
688 P.2d at 624. To overcome a conditional privilege, a plaintiff must prove
by clear and convincing evidence that the defendant knew the statement was
false, or acted in reckless disregard as to its truth or falsity. See Selby
v. Savard, 134 Ariz. 222, 225, 655 P.2d 342, 345 (1982). In other words,
a plaintiff must show actual malice by clear and convincing evidence. See
Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 487, 724 P.2d 562, 573
|||¶32 The Schmitzes argue that as a matter of law the Astons' defamation
claim should never have been submitted to the jury. Based on the trial court's
finding of a conditional privilege, the Schmitzes argue that the Astons
failed to meet their burden to introduce evidence that the Schmitzes' statements
to their neighbors were made with actual malice. They therefore contend
that the court should have directed a verdict on the Astons' defamation
claim. The Astons counter that the Schmitzes' statements to neighbors that
Mr. Aston sexually molested Liza constituted defamation per se, and that
the trial court erred in granting a conditional privilege to the defamatory
statements made to the neighbors.
|||1. The Trial Court Erred in Applying a Conditional Privilege
|||¶33 We do not have to decide if the Astons met their burden of showing
actual malice because we conclude that the trial court erred in applying
a conditional privilege for three reasons. First, the Schmitzes had no duty
to warn their neighbors of their suspicions. Second, the Schmitzes and their
neighbors did not share a common interest to a sufficient degree to warrant
application of a conditional privilege. Third, public policy does not support
application of a conditional privilege here. Thus we reject the Schmitzes'
argument that the trial court erred in submitting the Astons' defamation
claim to the jury. Because the evidence clearly supports the verdict, we
affirm the jury's award for defamation.
|||¶34 Whether a privilege exists is a question of law for the court, and
whether the privilege was abused is a question for the trier of fact. See
Green Acres Trust, 141 Ariz. at 616, 688 P.2d at 624. The trial court's
classification of the privilege is a question of law that we review de novo.
See Ashton-Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App.
|||There is no strict formula as to when a conditional privilege applies,
but rather we must weigh a person's interest in reputation against society's
interest in free speech and in encouraging certain beneficial communications.
See MacConnell v. Mitten, 131 Ariz. 22, 23, 638 P.2d 689, 690 (1981). A
court must examine the circumstances to determine whether the person making
the defamatory statement had an obligation to speak. See Green Acres Trust,
141 Ariz. at 616, 688 P.2d at 624.
|||¶35 Based on Restatement section 595 and Arizona public policy, the trial
court determined that the Schmitzes' statements to their neighbors were
conditionally privileged. *fn6 The court
stated that "publication to neighbors of one's good faith suspicions
'there is someone in the neighborhood that may have molested their children'
. . . is of grave, social importance."
|||¶36 Whether a person is conditionally privileged in telling neighbors
that another neighbor is a child molester is a question of first impression
in Arizona. *fn7 Therefore, for guidance,
we look to the Restatement, a source frequently used in defamation cases.
See Burns v. Davis, 301 Ariz. Adv. Rep. 15, ¶ 5 (App. Aug. 10, 1999) (stating
that in determining whether a privilege exists, Arizona courts first look
to case law; however, when none exists, we look to the Restatement); see
also Sanchez v. Coxon, 175 Ariz. 93, 95, 854 P.2d 126, 128 (1993). The Schmitzes
argue that three factors justify a grant of a conditional privilege in this
case: (1) protection of the interest of the recipient or third person; (2)
common interest; and (3) public policy. We conclude that none of the three
factors supports the application of a conditional privilege.
|||A. PROTECTION OF INTEREST OF RECIPIENT OR THIRD Person
|||37 Under Restatement section 595, a publication is conditionally privileged
if "there is information that affects a sufficiently important interest
of the recipient or third person" and the publisher is under a legal
duty to publish the defamatory matter, or publication to the recipient "is
otherwise within the generally accepted standards of decent conduct."
Restatement § 595 (1)(a),(b). An important factor in determining whether
a publication falls within generally accepted standards of decent conduct
is if the publication is made in response to a request rather than volunteered
or if a family or other relationship exists between the parties. See Restatement
§ 595 (2)(a),(b). Although the privilege is clearest when the publisher
has a legal duty to make the statements, courts have applied this privilege
in a wide variety of fact situations, making it difficult to reduce it to
any one formula. See W. Page Keeton et al., Prosser and Keeton on The Law
of Torts § 115, at 826-27 (5th ed. 1984). For example, the privilege has
been applied to situations in which a former employer warns a prospective
employer about an employee, a person notifies an insurance company that
it is being swindled by an insured, a landlord is told that a tenant is
undesirable, a creditor is told about its debtor's insolvency, and a person
is protecting a family member by publication of allegedly defamatory information.
See id.; see also Green Acres Trust, 141 Ariz. at 617, 688 P.2d at 625.
In Arizona, this privilege has been applied to reports made by private investigators
to their employer. See Roscoe v. Schoolitz, 105 Ariz. 310, 315-16, 464 P.2d
333, 337-38 (1970).
|||¶38 The Schmitzes assert that under Restatement section 595 their statements
are privileged because the neighborhood children's safety is a sufficiently
important interest. On the other hand, the Astons contend that the Schmitzes
made their statements to neighbors without having any evidence that Mr.
Aston had sexually abused Liza or that other children might be in danger.
The Astons also argue that the Schmitzes' statements were not requested
by the neighbors but rather volunteered, and no case law conditionally privileges
statements made to neighbors and non-family members which impute such an
egregious crime as sexual molestation to another. While the safety of neighborhood
children may be a "sufficiently important interest," we conclude
that the Schmitzes were under no legal duty to warn their neighbors. We
further conclude that the Schmitzes' conduct did not fall within "generally
accepted standards of decent conduct."
|||¶39 Parents have a legal duty to report sexual abuse of a child in their
care or custody to law enforcement or child protective services. See A.R.S.
§ 13-3620(A). But this statute does not impose any legal duty to report
such matters to neighbors. Thus, under Restatement section 595, to justify
application of a conditional privilege, the Schmitzes' conduct in making
statements accusing Mr. Aston of child molestation must fall within "generally
accepted standards of decent conduct."
|||¶40 We conclude that the Schmitzes' conduct did not fall within generally
accepted standards of decent conduct. The defamatory statements were not
made in response to a request, nor was there a familial or other similar
relationship between the Schmitzes and their neighbors. The initial defamatory
statements were volunteered by Mrs. Schmitz to three different neighbors.
Although two neighbors did request further information, they did so only
after Mrs. Schmitz triggered their inquiry by telling them or their spouses
that there was a serious problem in the neighborhood.
|||¶41 The Schmitzes maintain that a "neighborhood relationship"
is sufficient to support the court's grant of the privilege. We do not agree
for several reasons. First, under the facts of this case, it is difficult
to discern with any reasonable certainty the limits of this neighborhood.
Although this rationale for applying a conditional privilege is broad and
applicable in various contexts, application of a conditional privilege based
on a neighborhood relationship would create privileges in circumstances
like those here, in which the relationship giving rise to the privilege
is subjective rather than objective; the conditional privilege is essentially
defined by the defamer and not by objective criteria. Further, relationships
among neighbors often vary substantially depending upon a variety of factors.
Finally, the Restatement does not expressly find a privilege under these
circumstances, nor have we found any cases suggesting that a neighborhood
relationship creates such a privilege. *fn8
Therefore, we conclude that protection of the interest of the recipient
or third person basis did not support the application of a conditional privilege.
|||b. Common Interest
|||¶42 Although the trial court did not specifically apply the conditional
privilege on the basis of a common interest, it did discuss the common interest
of the parents in the neighborhood. The Schmitzes assert that neighbors
with children in this small subdivision shared a "common interest"
in protecting their children from sexual abuse, such that conditionally
privileging their statements made in an effort to protect this common interest
was proper. We disagree because, in the absence of the probability of imminent
danger, we conclude that neighbors do not commonly depend on other neighbors
to warn them that a possible child molester lives nearby.
|||¶43 Under Restatement section 596, a publication is conditionally privileged
if the circumstances lead a person correctly or reasonably to believe that
another is entitled to know subject matter pertaining to a shared common
|||This privilege has been found in situations involving members of a group
with common pecuniary interests, such as associates in a business enterprise,
tenants in common and co-owners of land, employees talking with other employees
about the organization, and creditors discussing a common debtor. See Green
Acres Trust, 141 Ariz. at 617, 688 P.2d at 625; Restatement § 596; W. Page
Keeton et al., supra, § 115, at 829-30. The privilege has also been recognized
in contexts of a non-pecuniary nature, such as statements between members
of fraternal, religious, or charitable associations communicating about
the conduct of current or prospective members. See W. Page Keeton et al.,
supra, § 115, at 830. "In these contexts, each participant in the association,
group or organization depends on other participants to supply relevant information."
Green Acres Trust, 141 Ariz. at 617, 688 P.2d at 625.
|||¶44 It is true that neighbors may have many common interests. For example,
they can be interested in low crime rates, high property values, clean streets,
and numerous other matters. These interests, however, are "not the
kind of interest that gives rise to a common undertaking which compels protection
from a defamation action." Id. at 618, 688 P.2d at 626. While these
interests may be loosely shared by neighbors, they are not normally the
type derived from participating in an organization with common goals and
objectives. For the most part, the importance of these interests differs
between neighbors. Further, in most instances, neighbors do not usually
depend upon other neighbors to warn them that a suspected child molester
lives in the neighborhood. While it is logical to assume that neighbors
share an interest in protecting their children from sexual abuse, society
as a whole also shares this same common interest.
|||¶45 Moreover, the evidence does not support the conclusion that the children
in this neighborhood were in any more immediate danger than other children
in the city. While the Schmitzes' initial statements were made only to a
small group of neighbors, all of whom had children, most of those neighbors
did not associate with the Astons, and their children did not play with
the Astons' daughter. Thus, any possible danger to neighborhood children
was minimal or non-existent. Therefore, we conclude that a common interest
rationale for applying a conditional privilege did not exist.
|||c. Public Policy
|||¶46 Finally, the Schmitzes maintain that public policy, in the form of
Arizona's reporting statute, see A.R.S. section 13- 3620, favors protecting
children from sexual abuse. They contend this public policy supports the
trial court's application of a conditional privilege to statements they
made to neighbors.
|||¶47 The Schmitzes are correct that public policy encourages publications
made to protect children from sexual abuse. In fact, Arizona has adopted
legislation designed to promote such publications, such as mandatory reporting
of child sexual abuse and neglect, community notification of sex offenders,
and the Internet sex offender website. See A.R.S. §§ 13-3620, 13-3825 to
13-3827 (Supp. 1999). However, these statutes clearly specify who has the
duty to make these publications, and to whom the publications are to be
made. Under A.R.S. section 13-3620, persons who are responsible for the
care of children, such as physicians, school personnel, social workers,
peace officers, or parents, who have reasonable grounds to believe that
a minor has been the victim of neglect or abuse, have a mandatory duty to
immediately report this information to law enforcement or child protective
services. Under A.R.S. sections 13-3825 and 13-3826, when a person convicted
of a sexual offense is released from confinement, local law enforcement
agencies are required to complete a risk assessment and notify the community
under guidelines established by the community notification guidelines committee.
Under A.R.S. section 13-3827, the Department of Public Safety is required
to maintain an Internet sex offender website to provide information to the
|||¶48 But none of these statutes imposes on neighbors a duty to warn other
neighbors that a child may have been a victim of sexual abuse or that children
in the neighborhood may be at risk. Any community notification that is required
by law is undertaken by law enforcement and involves only sexual offenders
whose risk has been determined to necessitate such notification.
|||Furthermore, those sexual offenders subject to public notification laws
have been convicted of a sexual offense before any notification is made
to the community.
|||¶49 Although we agree that safety of children is an important societal
interest, when balanced with a person's interest in not having his or her
reputation damaged by unsupported allegations of sexual molestation, we
believe that our decision must be in favor of protecting the reputation
of the innocent person. There may be situations in which a neighbor's warning
to another neighbor should be conditionally privileged. But in this situation,
we think that adequate alternatives existed. The police, for example, are
trained to investigate and substantiate such allegations. If, as here, the
police and the prosecutor conclude that a crime did not occur, parents can
still take steps to protect their children. But, when probable cause is
lacking and there is no evidence of immediate danger, we believe that parents
should not be conditionally privileged to tell neighbors that another neighbor
is a possible molester. A parent is under no duty to warn others, and it
seems to us that public policy does not warrant conditionally shielding
defamatory statements under such circumstances.
|||¶50 For these reasons, we hold that the trial court erred in ruling that
a conditional privilege applied to the Schmitzes' statements accusing Mr.
Aston of child molestation. Thus, we reject the Schmitzes's argument that
the court should have directed a verdict on the defamation claim. Accordingly,
we affirm the jury's verdict on the defamation claim.
|||2. Reputation Damages for Defamation
|||¶51 The Astons argue that the trial court erred in vacating the jury's
award of $100,000 for damage to their reputations on their defamation claim
and awarding only nominal damages of $25. The Astons maintain that the evidence
supports the jury's original award of reputational damages. We conclude
that the trial court erred in vacating the award and awarding only nominal
damages because the defamation here was per se and, in such cases, damages
|||¶52 In order to maintain an action for defamation, the plaintiff must
prove that special harm occurred. See Restatement § 575. However, if the
defamatory statement is actionable per se, injury is presumed and the plaintiff
does not have to meet the burden of proving special harm in order to recover
nominal or compensatory damages. See Modla v. Parker, 17 Ariz. App. 54,
56, 495 P.2d 494, 496 (1972); see also W. Page Keeton et al., supra, § 112,
at 788. An oral statement is defamatory per se if it imputes the commission
of crimes involving moral turpitude. See Hansen v. Stoll, 130 Ariz. 454,
457, 636 P.2d 1236, 1239 (App. 1981); Roscoe, 105 Ariz. at 312, 464 P.2d
at 335; see also Restatement § 571(b).
|||¶53 The statements here were defamatory per se. Cf. Miles v. National
Enquirer, Inc., 38 F. Supp. 2d 1226, 1229 (D. Colo 1999) (holding statements
that plaintiff was a pedophile and sexual offender are defamatory per se).
Thus, damages were presumed. See Hirsch v. Cooper, 153 Ariz. 454, 457, 737
P.2d 1092, 1095 (App. 1986). "Presumed damages may be awarded by juries
with very little guidance as to their amount." 1 Robert D. Sack, Sack
on Defamation § 10.3.3 (3d ed. 1999).
|||Nevertheless, presumed damages are intended to be an approximate compensation
for real injury. See id. Although evidence supports the trial court's finding
that the Astons did not suffer significant harm to their reputations, *fn9
such a finding is irrelevant in a defamation per se case. Thus, we hold
that the court erred in vacating the award for general or reputational damages
on the defamation claim. We so hold because damages for defamation per se
are presumed, and the jury is permitted to award a reasonable sum for the
presumed harm suffered. We conclude that the jury award of $100,000 was
reasonable. Accordingly, we remand to the trial court with directions to
reinstate the jury's award of general damages for defamation.
|||B. Intentional Infliction of Emotional Distress
|||¶54 The trial court granted judgment as a matter of law in favor of the
Schmitzes on the Astons' claim for intentional infliction of emotional distress.
We review de novo a trial court's ruling with respect to judgment as a matter
of law. See Shoen v. Shoen, 191 Ariz. 64, 65, 952 P.2d 302, 303 (App. 1997).
We view the evidence and all reasonable inferences from the evidence in
the light most favorable to the party against whom judgment was entered.
See id. Judgment as a matter of law should be granted only if the facts
have so little probative value that reasonable people could not find for
the nonmoving party. See id.; Ariz. R. Civ. P. 50(a)(1) (providing for judgment
as a matter of law when "a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue").
|||¶55 As we understand the trial court's ruling, the court concluded that
the jury's award of $900,000 on the claim for intentional infliction of
emotional distress resulted from the jury's passion and prejudice and "shocked
the conscience of the court." Under such circumstances, a new trial
must be ordered. See, e.g., Flieger v. Reeb, 120 Ariz. 31, 33, 583 P.2d
1351, 1353 (App. 1978). But the court did not order a new trial. Rather,
it found that the award duplicated the emotional distress damages included
in the defamation award. It further found that the claim for intentional
infliction of emotional distress was not supported by the evidence. The
court consequently vacated the jury's verdict. We conclude that the court
erred in overturning the jury's verdict in its entirety and granting judgment
as a matter of law. Instead, the trial court should have ordered a new trial
conditioned on a remittitur, because the verdict was not the result of passion
and prejudice, nor was it duplicative or unsupported by any evidence.
|||1. Passion and Prejudice
|||¶56 In finding that the jury acted as a result of passion and prejudice
and the $900,000 award shocked its conscience, the trial court focused primarily
on the size of the award. This was error. See Meyer v. Ricklick, 99 Ariz.
355, 357, 409 P.2d 280, 281 (1965).
|||¶57 When the evidence justifies a damages award, the amount to be awarded
is "a question peculiarly within the province of the jury, and the
award will not be overturned or tampered with unless we find that the verdict
was, indeed, the result of passion or prejudice." Sheppard v. Crow-Barker-Paul
No. 1 Ltd. Partnership, 192 Ariz. 539, 549, ¶ 53, 968 P.2d 612, 622 (App.
1998). A jury may be acting out of passion and prejudice when it awards
an "amount so unreasonable that it 'shocks the conscience' of the court."
Id.; see also Larriva v. Widmer, 101 Ariz. 1, 7, 415 P.2d 424, 430 (1966).
But, while a verdict tainted by passion and prejudice must shock the court's
conscience, not every shockingly high or low award is tainted in this way.
See Waqui v. Tanner Bros. Contracting Co., 121 Ariz. 323, 327, 589 P.2d
1355, 1359 (App. 1979). To find passion and prejudice, there must be a showing
that the jury "deliberately disregarded the facts or the instructions
of the court." Id. at 326, 589 P.2d at 1358 (quotations omitted).
|||¶58 We cannot say on this record that the jury deliberately disregarded
the facts or the court's instructions. Because the evidence supported an
award of some damages to the Astons for intentional infliction of emotional
distress, the jury did not disregard the facts. Similarly, the jury did
not entirely disregard the court's instructions to award these damages only
if they were separate from the defamation claim. Consequently, we disagree
with the trial court's conclusion that the jury acted from passion or prejudice.
An examination of the interplay between the torts of defamation and intentional
infliction of emotional distress and the record support our conclusion.
Thus, we turn to that interplay and whether the jury disregarded the court's
instruction and improperly duplicated its award of emotional distress damages.
|||2. Duplication-The Interplay Between Defamation and Intentional
|||Infliction of Emotional Distress
|||¶59 In their complaint, the Astons sought emotional distress damages for
both defamation and intentional infliction of emotional distress. Although
the Astons assert that their separate intentional infliction of emotional
distress claim rests partly on the Schmitzes' false statements, they contend
that it also rests on separate conduct such as attempting to break up the
Aston family through criminal prosecution and imprisonment, attempting to
institute prosecution by implanting Liza's memory, and allowing Liza's separate
cause of action against Mr. Aston to remain unresolved. *fn10
We conclude that when the evidence in this case is viewed in the light most
favorable to the Astons, a reasonable jury could find that the Astons suffered
severe emotional distress apart from that caused by the defamatory statements.
|||¶60 A plaintiff is not precluded from claiming damages under different
torts for different injuries merely because the injuries are of the same
type. See Godbehere, 162 Ariz. at 340, 783 P.2d at 786. But a plaintiff
may not recover twice for the same injury. See Vairo v. Clayden, 153 Ariz.
13, 19, 734 P.2d 110, 116 (App. 1987).
|||¶61 The torts of defamation and intentional infliction of emotional distress
redress different types of wrongful conduct. Defamation protects against
conduct that injures reputation, and a plaintiff may claim emotional distress
damages in a cause of action for defamation if the defamatory statement
caused mental suffering. See Restatement § 623; e. g., Russell v. Thomson
Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992). On the other hand, intentional
infliction of emotional distress protects against outrageous conduct that
is not necessarily defamatory but causes severe emotional distress. See
Restatement § 623 cmt. d. *fn11 Thus,
the torts are not duplicative in and of themselves, and a plaintiff may
be able to sustain causes of action for both defamation and intentional
infliction of emotional distress if separate injuries result from the underlying
tortious conduct. Therefore, the question before us is whether the Astons
produced evidence from which a reasonable jury could conclude that they
had suffered a compensable injury from severe emotional distress that was
separate from the emotional distress they suffered because of the Schmitzes'
|||¶62 Arizona relies on Restatement section 46(1) to define intentional
infliction of emotional distress. See Ford v. Revlon, Inc., 153 Ariz. 38,
43, 734 P.2d 580, 585 (1987). In order to sustain a claim for this tort,
three elements must be shown:
|||[F]irst, the conduct by the defendant must be "extreme" and
"outrageous"; second, the defendant must either intend to cause
emotional distress or recklessly disregard the near certainty that such
distress will result from his conduct, and third, severe emotional distress
must indeed occur as a result of defendant's conduct. Id.
|||To satisfy the element that the defendant's conduct is extreme and outrageous,
the plaintiff must show that the defendant's acts were "so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community. Generally, the case is one . . . in which . . . an
average member of the community would . . . exclaim, 'Outrageous!'"
Restatement § 46 cmt. d.; see also Revlon, 153 Ariz. at 43, 734 P.2d at
|||¶63 The evidence clearly supports the first two elements of the Astons'
intentional infliction of emotional distress claim. The Schmitzes' conduct
under these circumstances was outrageous. They also recklessly disregarded
the near certainty that their conduct would cause the Astons severe emotional
distress. The third element requires a showing that the Astons in fact suffered
severe emotional distress different from that suffered as a result of the
defamation claim. Thus, we focus our analysis on this element.
|||¶64 From the evidence, we find an important area in which the damage evidence
for emotional distress in the Astons' claim for intentional infliction of
emotional distress did not overlap with the Astons' defamation claim. For
example, the distress caused by the fear of prosecution had nothing to do
with the defamatory statements Mrs. Schmitz made to the neighbors. Crisis
intervention specialist Riccio told Mrs. Schmitz that an investigation by
a detective would not occur until Liza named someone. Circumstantial evidence
shows that Mrs. Schmitz then began a campaign to encourage Liza to name
Dan Aston as the person who molested her.
|||¶65 A jury could certainly conclude that this evidence established a reckless
disregard on the part of Mrs. Schmitz that her conduct would cause extreme
distress. By encouraging Liza to accuse Dan Aston of abusing her, Mrs. Schmitz
created a very real threat of criminal prosecution. Consequently, Mrs. Schmitz's
actions resulted in the Astons having to be subjected to an interview by
Detective Cwengros. They then had to wait for the county attorney's office
to decide if charges would be filed. By any measure, such events are reasonably
apt to cause distress that goes beyond the normal stress of everyday life.
And, such distress is separate from any emotional distress experienced from
the earlier defamatory statements the Schmitzes made to the neighbors. Thus,
on these facts, a rational jury could have found in favor of the Astons
on their claim for intentional infliction of emotional distress and awarded
damages that did not entirely duplicate the defamation claim. Accordingly,
the trial court erred in granting judgment as a matter of law on the basis
that the award for intentional infliction of emotional distress duplicated
the award for defamation.
|||3. Sufficiency of the Evidence
|||¶66 In granting judgment as a matter of law, the trial court concluded,
in part, that the verdict for intentional infliction of emotional distress
was not supported by the evidence because the Astons had not shown that
they suffered sufficiently extreme emotional distress. It pointed out that
the Astons did not lose their jobs, move from their residence, or seek counseling.
The trial court commented that intentional infliction of emotional distress
"contemplates distress at such a level that would cause severe mental
anguish . . . or even physical injury."
|||¶67 But the Astons were not required to prove that they suffered actual
physical harm. Rather, the Astons had to prove that the Schmitzes' conduct
was apt to cause such a result. See Pankratz v. Willis, 155 Ariz. 8, 16-17,
744 P.2d 1182, 1190-91 (App. 1987). A disabling response need not actually
be suffered. See id. at 17, 744 P.2d at 1191; Restatement § 46 cmt. j.
|||¶68 The record reveals that the Astons suffered severe distress. It is
difficult to imagine a worse slander than that perpetrated by Sharon Schmitz.
The public shame to which it subjected the Astons, the danger of prosecution
it carried, the frustration of being lied about and having to fight back
against whispers, the necessity of having to resort to a lawsuit, was a
|||¶69 The record shows the extent of the Astons' suffering. Mr. Aston testified
that on the very first occasion that his extremely distraught wife called
him to tell him that Sharon Schmitz was saying that her daughter and the
Astons' daughter had been molested, it was as if he had been hit by a bomb.
When he later learned through a neighbor that he was the accused molester
he described his feelings in this way:
|||I hope no one else will ever have to go through this but it's the worse--I
mean nothing is worse. It is hard to remember exactly. I think I was probably
more depressed, more embarrassed by the false accusations than anything
else. He went on to say that it made him feel worse than a murderer.
|||¶70 When the Astons went to see an attorney to discuss their options,
they learned that they both could be subject to criminal prosecution and
a penalty of fifteen to twenty years in prison. Mr. Aston said that this
hit him like a rock and he thought his life was going to be over. *fn12
The Astons were advised not to discuss the case with the police without
their attorney being present.
|||¶71 Mr. Aston also testified that his relationship with both his wife
and his daughter was adversely affected by the episode. His wife was in
such a state of anxiety that the accusations dominated their conversation.
The incident was still having an adverse effect on their relationship at
the time of the trial. He was so embarrassed by the incident that he did
not tell his superiors at work that he was attending the trial.
|||¶72 Mrs. Aston also saw changes in her husband because of the emotional
strain. Although he had once had a lot of fun doing things with their daughter,
he began to fear that people would misinterpret any desire on his part to
be around children and he became reluctant to go to gatherings like school
functions. He also abandoned his effort to quit smoking.
|||¶73 Mrs. Aston was even more profoundly affected by the accusations than
her husband. When she heard from a neighbor that Sharon Schmitz was saying
that her husband was a molester and was about to be arrested, Mrs. Aston
was in shock. While discussing the matter with this neighbor, she fell to
her knees in apparent despair. She was so distraught that she was forced
to ask a friend to care for her daughter. Yet, when she went to the police
station, she was told that her husband was not under suspicion. Nevertheless,
Mrs. Aston recounted that the attorney they consulted warned them about
possible prosecution and she considered this the most important aspect of
the situation. Regardless of how Mr. Aston felt about the possibility of
prosecution and imprisonment, a fair reading of the testimony reflects that
Mrs. Aston feared for her husband in that respect.
|||¶74 In fact, Mrs. Aston's emotional distress was so pronounced that she
suffered physical symptoms as well. Her pre-existing cardiac arrhythmia
was aggravated to the point that she had to begin a course of medication
to control it. By August 1996, she had become so distraught that she could
not care for her daughter or carry on with her work as a registered nurse.
She took a medical leave of absence that continued for six weeks before
she could resume normal activity. For two years she was unable to deal with
the stress of a normal Christmas celebration, and she wanted to do nothing
but return to her hometown for the holidays.
|||¶75 From these facts, we conclude that the court erred in finding that
the evidence was insufficient to support an award of damages in some amount
for intentional infliction of emotional distress. A rational jury could
find that the Astons suffered severe emotional distress from the fear of
prosecution that went beyond the emotional distress inflicted by the defamation.
|||¶76 Accordingly, we reverse the trial court's grant of judgment as a matter
of law in favor of the Schmitzes on the Astons' claim for intentional infliction
of emotional distress.
|||¶77 Although we do not believe that the Astons' claim for intentional
infliction of emotional distress duplicated the emotional distress damages
for defamation, was unsupported by the evidence, or caused the jury to award
damages out of passion and prejudice, we are reluctant simply to reinstate
the full award. The trial court was shocked by a $900,000 award on the facts
of this case, which obviously indicates that the court found the award excessive.
Because it is in a better position than we to determine if a jury award
is excessive, we give great weight to its view of the matter. See Spur Feeding
Co. v. Fernandez, 106 Ariz. 143, 149, 472 P.2d 12, 18 (1970); Young Candy
& Tobacco Co. v. Montoya, 91 Ariz. 363, 370, 372 P.2d 703, 707 (1962).
|||¶78 When the court finds that a jury's damage award is excessive, it may
order a new trial and it may condition the new trial on the acceptance of
a reduced award designated by the court--a conditional remittitur. See Ariz.
R. Civ. P. 59(a)(5),(i). We believe that a conditional remittitur is appropriate
in this case for several reasons. First, a rational jury could have awarded
the Astons some amount of damages on their claim for intentional infliction
of emotional distress. Second, as we have said, we cannot ignore the trial
court's obvious dismay over the size of the amount awarded. The trial court
was in the best position to determine if the jury award on this claim was
excessive in some way. Cf. Young Candy & Tobacco Co., 91 Ariz. at 370,
372 P.2d at 707. Finally, because emotional damages are not easily quantified,
particularly by an appellate court, the trial court is in the best position
to exercise discretion in fitting the jury's award to the evidence. See
Frontier Motors, Inc. v. Horrall, 17 Ariz. App. 198, 200, 496 P.2d 624,
626 (1972). Therefore, we remand this matter to the trial court for a determination
of a conditional remittitur under Rule 59.
|||C. False Light Invasion of Privacy Claim
|||¶79 The trial court granted a directed verdict on the Astons' false light
invasion of privacy claim, finding that there was insufficient publication
of the allegedly false statements and that this claim duplicated the defamation
claim. We review the trial court's decision under the same standard as a
ruling on a judgment notwithstanding the verdict. See Shoen, 191 Ariz. at
65, 952 P.2d at 303. We find it unnecessary to determine if the Astons'
false light invasion of privacy claim fails because of the lack of publicity.
Rather, we conclude that the trial court was correct in ruling that this
claim duplicated the defamation claim.
|||¶80 The tort of false light invasion of privacy is defined 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 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 § 652E; see also Godbehere, 162 Ariz. at 338-40,
783 P.2d at 784-86 (recognizing the false light invasion of privacy definition
in Restatement section 652E).
|||¶81 Defamation and false light invasion of privacy both involve publication;
however, there is a distinction with regard to the interests that are protected
and compensated by each action. See Godbehere, 162 Ariz. at 341, 783 P.2d
at 787; Selleck v. Globe Int'l, Inc., 212 Cal. Rptr. 838, 846 (App. 1985).
The false light claim is designed to compensate for emotional distress,
while a defamation claim is designed to compensate for harm to reputation.
See Godbehere, 162 Ariz. at 341, 783 P.2d at 787. Although both causes of
action often overlap, "[a]n injured party may seek relief through both
causes of action, arising out of the same publication, but he is limited
to only one recovery." McCall v. Courier-Journal & Louisville Times
Co., 623 S.W.2d 882, 889 (Ky. 1981); see Wood v. Hustler Magazine, Inc.,
736 F.2d 1084, 1090 n.2 (5th Cir. 1984); Braun v. Flynt, 726 F.2d 245, 250-51
(5th Cir. 1984); Dodrill v. Arkansas Democrat Co., 590 S.W.2d 840, 845 (Ark.
1979); Goodrich v. Waterbury Republican-American, Inc., 448 A.2d 1317, 1329
n.19 (Conn. 1982). In cases in which both causes of action apply, "the
plaintiff can proceed upon either theory, or both, although he can have
but one recovery for a single instance of publicity." Restatement §
652E cmt. b.
|||¶82 Here, the claims were presented such that recovery for emotional distress
was part of the defamation claim. As a result, the false light claim was
duplicative. The Astons' defamation claim provided a complete remedy for
any damages suffered as a result of the Schmitzes' statements to neighbors.
Thus, the trial court was correct to direct a verdict in favor of the Schmitzes
on the Astons' false light invasion of privacy claim.
|||D. Punitive Damages
|||¶83 The jury awarded punitive damages against Mr. and Mrs. Schmitz on
both the defamation claim and the intentional infliction of emotional distress
claim. The court later vacated the award of punitive damages against Mr.
Schmitz. The Schmitzes contend that there was insufficient evidence to support
a punitive damages award against Mrs. Schmitz. They also assert that the
punitive damage award was excessive. The Astons argue that sufficient evidence
supports an award of punitive damages against Mrs. Schmitz. They also contend
that the court erred in vacating the award of punitive damages against Mr.
Schmitz. We conclude that sufficient evidence supports a punitive damage
award against Mrs. Schmitz, but we remand for the trial court to consider
a remittitur. We further conclude that the trial court did not err in vacating
the punitive damage award against Mr. Schmitz.
|||¶84 In deciding whether punitive damages should be awarded, we focus upon
the wrongdoer's mental state. See Linthicum v. Nationwide Life Ins. Co.,
150 Ariz. 326, 330, 723 P.2d 675, 679 (1986). Something more than the "mere
commission of a tort" is required to recover punitive damages. See
id.; Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986).
The "plaintiff must prove that defendant's evil hand was guided by
an evil mind." Rawlings, 151 Ariz. at 162, 726 at 578. Punitive damages
may only be awarded upon clear and convincing proof of a defendant's evil
mind. See Linthicum, 150 Ariz. at 332, 723 P.2d at 681.
|||¶85 Several factors are considered when deciding whether a defendant acted
with an evil mind. These factors include the following: "(1) the reprehensibility
of [the] defendant's conduct and the severity of the harm likely to result,
(2) any harm that has occurred, (3) the duration of the misconduct, (4)
the defendant's awareness of the harm or the risk of harm, and (5) any concealment
of [the wrongful conduct]." Hyatt Regency Phoenix Hotel Co. v. Winston
& Strawn, 184 Ariz. 120, 132, 907 P.2d 506, 518 (App. 1995). The plaintiff's
burden of showing an evil mind by clear and convincing evidence may be met
by either direct or circumstantial evidence. See id. We must affirm a jury's
decision to award punitive damages if any reasonable view of the evidence
satisfies the clear and convincing standard. See Thompson v. Better-Bilt
Aluminum Prods. Co., 171 Ariz. 550, 557-58, 832 P.2d 203, 210-11 (1992);
Rhue v. Dawson, 173 Ariz. 220, 232, 841 P.2d 215, 227 (App. 1992).
|||¶86 We conclude that the evidence supports an award of punitive damages
against Mrs. Schmitz for several reasons. First, the record shows that her
conduct was reprehensible and the harm likely to result from her conduct
was severe. She falsely accused Mr. Aston of a serious and abhorrent crime.
This was intolerable and outrageous conduct from which a jury could infer
the existence of an evil mind. Cf. Rawlings, 151 Ariz. at 162-63, 726 P.2d
at 578-79. This false accusation subjected Mr. Aston not only to the possibility
of criminal prosecution but also to damaging gossip among the neighbors.
That Mrs. Schmitz initially couched her accusations as suspicions does not
lead to a conclusion that the jury erred in finding the requisite evil mind.
The record clearly shows evidence from which a jury could conclude that
Mrs. Schmitz jumped to conclusions with no factual support, and then repeatedly
lied about the findings of the pediatrician and the psychologist to the
neighbors and the police. Such evidence supports a determination that her
conduct was reprehensible and that severe harm could have resulted from
|||¶87 Second, a jury certainly could have concluded that substantial harm
occurred here. Mrs. Schmitz's false accusations spread throughout the neighborhood.
Also, the school that Jillian Aston attended was notified that Mr. Aston
was a possible child molester. Further, the police were called twice. The
second call resulted in a sex crimes detective being assigned to the case.
This latter call led to the Astons' being subjected to an interview and
a referral of the matter to the county attorney's office for the possible
filing of criminal charges. A jury could reasonably find that these facts
caused the Astons to suffer significant emotional distress. Such evidence
supports the jury's conclusion that the Astons suffered substantial harm.
|||¶88 Third, a jury could have found that the duration of the conduct warranted
an award of punitive damages. Mrs. Schmitz began accusing Mr. Aston of molesting
her daughter in February 1993. These accusations were made in the face of
inconclusive findings by the pediatrician and Liza's consistent denials
that anything had happened. Mrs. Schmitz recounted these unsupported allegations
to the neighbors in late March and early April.
|||Moreover, despite the psychologist's orders not to discuss this matter
with Liza, circumstantial evidence shows that over a period of about two
to three months Mrs. Schmitz coached Liza to accuse Mr. Aston. Liza finally
"disclosed" that Mr. Aston inappropriately touched her after four
months of therapy. Thus, a jury could have found that Mrs. Schmitz's misconduct
occurred over at least a four month period and could reasonably have concluded
that great harm occurred even in this relatively short time.
|||¶89 Fourth, the jury certainly could have found that Mrs. Schmitz was
aware of the risk of harm. A neighbor, Lincoln Hayes, warned her that her
accusations would become public. Also, she was warned by Crisis Intervention
Specialist Riccio that she might have to answer someday for her actions.
The evidence therefore supports a finding by the jury that Mrs. Schmitz
was aware of the risk of harm from her misconduct.
|||¶90 Finally, there is evidence from which a jury could infer that Mrs.
Schmitz tried to conceal the extent of her wrongdoing. At trial, there were
several instances in which the jury could have concluded Mrs. Schmitz lied.
For example, Mrs. Schmitz denied that she encouraged a neighbor to tell
teachers at Jillian Aston's school that Mr. Aston was a possible child molester.
However, this neighbor testified to the contrary. Mrs. Schmitz also denied
ever telling anyone from the police department that she thought Mr. Aston
was a child molester. She also denied telling the police that her child
had drawn a picture which the psychologist thought indicated child molestation.
Both of these denials were contradicted by the police reports. We believe
that a jury could find that this evidence showed that Mrs. Schmitz was willing
to lie to conceal her misconduct and thus possessed the requisite evil mind
to support punitive damages.
|||¶91 Although the evidence supports an award of punitive damages against
Mrs. Schmitz, our analysis does not end there. The Schmitzes argue that
the punitive damage award is excessive and that due process requires that
we review whether the jury's award was excessive relative to their net worth.
The Astons argue that the Schmitzes waived their due process argument. We
disagree. The Schmitzes did not waive their argument that the punitive damage
award was excessive. They presented evidence of their net worth during post-verdict
proceedings. See Hyatt Regency Phoenix Hotel Co., 184 Ariz. at 133, 907
P.2d at 519 (citing Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994) for
the proposition that "[d]ue process requires reasonable restraints
on a jury's discretion to impose punitive damages, including post-verdict
judicial review to ensure that the award is not excessive.").
|||¶92 Part of the post-verdict review includes an examination by this court
using criteria similar to those set forth in Pacific Mutual Life Insurance
Co. v. Haslip, 499 U.S. 1, 21-22 (1991). See Hyatt Regency Phoenix Hotel
Co., 184 Ariz. at 134- 35, 907 P.2d at 520-21. These criteria include the
following: (1) the proportionality of the award to the wrongdoer's financial
position to ensure that the goals of punishment and deterrence are served
without financially devastating the defendant; (2) the reprehensibility
of the defendant's conduct, including the duration of the misconduct, the
defendant's awareness of the risk of harm, and any concealment; and (3)
the profitability to the defendant of the wrongful conduct. Id. (citing
Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 497- 502, 733 P.2d 1073, 1080-85
|||For several reasons we conclude that the award as it now stands is excessive
and the trial court therefore should consider a remittitur.
|||¶93 First, the award is disproportionate to the Schmitzes' financial position
and would financially devastate them. It is uncontroverted that $250,000
is nearly double the Schmitzes' net worth. A lesser amount will ensure that
the goals of punishment and deterrence are served. Second, Mrs. Schmitz
did not profit from her misconduct. To the contrary, nearly all the witnesses
testified that her sole motivation appeared to be to protect the neighborhood
children. No other explanation was offered for her wrongful conduct. Third,
when the trial court ruled on the appropriateness of punitive damages against
Mrs. Schmitz, it had previously struck the jury's award of damages to reputation
under the defamation claim, and had vacated the intentional infliction of
emotional distress claim in its entirety. But now the equation is considerably
changed. We have reinstated the jury's award for reputational damages on
the defamation claim and reinstated the jury's finding for the Astons on
their intentional infliction of emotional distress claim, but remanded that
claim for a remittitur. Given this change in the equation, and the uncontroverted
evidence that a $250,000 punitive damage award would financially devastate
the Schmitzes, we hold that the punitive damage award is excessive. Accordingly,
the award for punitive damages against Mrs. Schmitz is remanded for consideration
of a remittitur by the trial court.
|||¶94 As for the award of punitive damages against Mr. Schmitz, later vacated
by the trial court, there is absolutely no evidence to support such an award.
He spoke to only one neighbor, who had to pry the information from Mr. Schmitz.
No other neighbor or witness testified that Mr. Schmitz told them anything
about this situation. The Astons do not present any reasonable argument
to justify reversing the trial court's order vacating this award. Their
argument seems to rest on the assumption that Mr. Schmitz adopted his wife's
statements and that he should have somehow controlled and prevented her
from talking to the neighbors. This evidence does not support an award of
punitive damages. Thus, we conclude that the trial court was correct in
vacating the jury verdict imposing punitive damages against Mr. Schmitz.
|||¶95 This matter is remanded for further proceedings consistent with this
|||RUDOLPH J. GERBER, Judge
|||THOMAS C. KLEINSCHMIDT, Judge
|||NOTE: The Honorable Thomas C. Kleinschmidt, Retired, is authorized to
participate in this appeal by the Chief Justice of the Arizona Supreme Court
pursuant to Ariz. Const. art. VI, § 20 and Administrative Order No. 2000-15.
|||*fn1 We address the remaining issues
raised by the parties on appeal by separate unpublished decision filed this
date because they are not relevant to our analysis in this opinion. See
Fenn v. Fenn, 174 Ariz. 84, 85, 847 P.2d 129, 130 (App. 1993).
|||*fn2 We are required to view the evidence
in the light most favorable to the Astons. See McFarlin v. Hall, 127 Ariz.
220, 224, 619 P.2d 729, 733 (1980).
|||*fn3 Scottsdale Police Department's
Crisis Intervention Specialists are not police officers. They are similar
to social workers and have similar training in addition to some elementary
police training. Their job is to conduct an initial inquiry in certain cases
to determine if further investigation by a detective is needed.
|||*fn4 At trial, Dr. Harrison could not
recall saying this and indicated that it is not her practice to give these
types of percentages. She did, however, based on the reports of her parents,
diagnose Liza as suffering from post-traumatic distress disorder, possibly
as a result of child abuse.
|||*fn5 During the following nine months,
Liza accused Mr. Aston of more involved sexual contact, including contact
with his private parts. These revelations were all new to Dr. Harrison.
But there is no evidence that these revelations were disclosed to the police
or anyone else. They came to light during discovery in this lawsuit.
|||*fn6 The trial court instructed the
jury that statements made to law enforcement and health care providers were
absolutely privileged. This instruction was erroneous because such statements
are only conditionally privileged. See Ariz. Rev. Stat. Ann. ("A.R.S.")
§ 13-3620(G)(1989). But the Astons failed to object to the instruction and
they did not cross-appeal on the trial court's grant of this privilege.
Thus, any argument by the Astons concerning the court's erroneous application
of a conditional privilege to statements the Schmitzes made to doctors or
the police is waived. See Bradshaw v. State Farm Mut. Auto. Ins. Co., 157
Ariz. 411, 419-20, 758 P.2d 1313, 1321- 22 (1988).
|||*fn7 In fact, our research found only
one case that addressed a similar situation. That case is Kraemer v. Harding,
976 P.2d 1160 (Or. App. 1999). There, a jury found that the parents of children
who rode on the school bus driven by the plaintiff falsely alleged that
he molested children. Without much discussion or analysis, the court concluded
that a conditional privilege applied. See id. at 1172. The court believed
the conditional privilege was an appropriate balance "between protecting
parents' rights to act to protect their children from what they consider
dangerous or detrimental situations and, at the same time, protecting employees
from false, defamatory statements . . . ." Id.
|||*fn8 The court's conclusion in Kraemer
that a conditional privilege existed for parents of children who rode together
on the same bus was not fully explained. 976 P.2d at 1172. But, from the
facts, it appears that one rationale was that this group was easily defined,
namely parents of children who rode on plaintiff's bus each day. Also, the
children supposedly at risk were easily ascertained and allegedly faced
the same risk. Here, this community is not so easily defined. Further, none
of the parents warned by the Schmitzes had children who played with Jillian
Aston, nor did they regularly associate with the Astons.
|||*fn9 The court found that no evidence
pointed to any negative impact on their reputations at work, and neither
lost any memberships in clubs or other organizations. The court also found
that although the Astons testified that they believed that the neighbors
were avoiding them, those neighbors testified that they did not associate
with the Astons before the allegations and the allegations did not cause
them to not associate with the Astons now. Also, the trial court pointed
out that any harm to the Astons' reputations was more the result of "their
own antics . . . of parading through the neighborhood and the hanging of
shirts in trees . . . ."
|||*fn10 The Astons cite no authority,
and we have found none, to support the proposition that refraining from
filing a lawsuit can support a claim for intentional infliction of emotional
|||*fn11 We acknowledge that "some
courts have concluded simply that '[t]his tort, . . . does not lie when
the offending conduct consists only of a defamation.'" 2 Sack on Defamation,
§ 13.6 (quoting Provencher v. CVS Pharmacy, 145 F.3d 5, 12 (1st Cir. 1998)).
The Schmitzes make this argument also. But in this case, the offending conduct
does not consist solely of defamation.
|||*fn12 Mr. Aston's testimony on this
topic was inconsistent. While he said that the police investigation caused
distress, in his deposition and at trial, he also testified unequivocally
that he had no fear of arrest, prosecution, or imprisonment because he knew
he was innocent.
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