Day on Torts
Where plaintiff alleging defamation was a public figure but had pleaded in the complaint that defendants were “negligent and/or reckless in ascertaining the truth” of the statements, the trial court incorrectly granted judgment on the pleadings on the defamation and false light invasion of privacy claims. Further, where defendants had counterclaimed for trespass to chattels, conversion, negligence, and trespass, and the “countercomplaint [had] factual allegations to support the required elements” of those claims, dismissal was reversed. In Kauffman v. Forsythe, No. E2019-02196-COA-R3-CV (Tenn. Ct. App. May 25, 2021), plaintiff shot and injured defendant’s dog when it was on plaintiff’s property. According to plaintiff, the dog had cornered his cat and he feared for its safety. After this incident, the dog’s owner, Ms. Bishop, and an individual unrelated to the dog, Mr. Williams, posted negative opinions about plaintiff on social media.
Sometime after this incident, plaintiff ran for county commissioner. During the campaign, Ms. Bishop and Mr. Williams continued posting negative opinions and information about plaintiff. Ms. Bishop’s children’s grandfather, Mr. Forsythe, also posted negative comments about plaintiff on social media. Plaintiff lost the election.
Plaintiff and his wife brought this suit for defamation, false light invasion of privacy, and negligent and intentional infliction of emotional distress based on the negative social media statements made by Ms. Bishop, Mr. Williams, and Mr. Forsythe (defendants). Defendants also filed a countercomplaint, with Ms. Bishop claiming conversion, trespass to chattels, and negligence based on the shooting of her dog, and Mr. Forsythe claiming trespass based on the allegation that plaintiff entered his property and put a campaign sign in his yard.
The trial court ruled that because plaintiff was a public figure, he would have to show actual malice to succeed on his defamation claim, and that the complaint “lacked any factual allegations to support a finding of actual malice.” The trial court thus dismissed plaintiffs’ claims. The trial court also dismissed the claims in the countercomplaint, and further entered a restraining order that “barred all parties from making public comments about or related to any other party for one year” and enjoined the parties “from making negative or disrespectful comments about one another to third parties[.]” This appeal followed, with the Court of Appeals reversing dismissal of the defamation, false light invasion of privacy, conversion, trespass to chattels, negligence and trespass claims. (Note that plaintiffs did not appeal dismissal of the emotional distress claims).
The Court first analyzed plaintiff’s defamation claim, quickly agreeing with the trial court that plaintiff here was a public figure due to his candidacy for county commission. When a public figure is asserting a defamation claim, he must show actual malice, or that a party published a statement “with knowledge that [it] was false or with reckless disregard of whether it was false or not.” (internal citation omitted). In this case, the trial court had ruled that plaintiff failed to plead sufficient facts to show actual malice, but the Court of Appeals disagreed. The complaint asserted that defendants were “negligent and/or reckless in ascertaining the truth” of the statements they made about plaintiff. While the allegation of negligence was not enough to avoid dismissal here, the Court ruled that plaintiff’s complaint sufficiently alleged “reckless disregard,” and therefore reversed dismissal of both the defamation and false light invasion of privacy claims.
Turning to the countercomplaint, the Court began by looking at Ms. Bishop’s trespass to chattels claim. “A plaintiff may recover for trespass to chattels upon showing that another party intentionally used or intermeddled with the plaintiff’s personal property without authorization.” (internal citation and quotation omitted). Noting that a dog is considered personal property, the Court pointed out that because Ms. Bishop’s claim did “not involve dispossession, [she] must also show that her dog’s condition, quality, or value was impaired.” (internal citations omitted). Because “directing an object or missile at a dog is intermeddling,” and the dog in this case was injured, the Court ruled that the countercomplaint alleged facts to support a claim for trespass to chattels. (internal citation omitted).
Moving to the conversion claim, the Court pointed out that “destroying or altering another party’s personal property can be actionable as conversion,” and that the Restatement (Second) of Torts includes in its explanation of conversion one who “so materially alters [a chattel’s] physical condition as to change its identity or character[.]” (internal citations omitted). Ms. Bishop, then, needed to allege that “the damage to the dog [was] so material as to change the identity of the dog or its essential character,” as “anything less may be a trespass to the chattel…,but it is not a conversion.” (internal citation omitted). After reviewing examples for the Restatement, the Court ruled that Ms. Bishop had stated a claim for conversion in the countercomplaint. The countercomplaint asserted that treatment for the dog’s injuries cost “several thousand dollars,” which would indicate that the injuries were possibly of a serious nature. The Court therefore reversed dismissal of the conversion claim.
The Court also quickly reversed dismissal of Ms. Bishop’s negligence claim, noting that the countercomplaint satisfied all the elements of negligence. The Court specifically pointed out that “[a] dog owner may recover damages for the intentional or reckless killing or injury of a dog,” and that “[t]he fact that the dog was trespassing is not a bar to recovery.” (internal citation omitted).
Next, the Court looked at Mr. Forsythe’s claim that plaintiff trespassed when he allegedly put a campaign sign on Mr. Forsythe’s property. The Court stated that “[a]ny unauthorized entry upon the property of another is a trespass,” even if the damages are nominal, so the allegation in the counterclaim that plaintiff “or his agent intentionally placed a campaign sign in Mr. Forsythe’s yard without permission” stated a claim for trespass.
The Court also analyzed defendants’ claim for punitive damages. Because the countercomplaint asserted that plaintiff “intentionally or recklessly fired multiple shots in the direction of a non-threatening dog,” the Court ruled that Ms. Bishop’s conversion and trespass to chattels claim could possibly support an award of punitive damages. Mr. Forsythe’s trespass claim, however, “simply [did] not rise to the level of egregious conduct required for a punitive damages award.”
Finally, the Court vacated the restraining order entered by the trial court. The Court found that this was a “prior restraint,” and that it was “overly broad and infringed on constitutionally protected speech.”
Though we don’t have much information regarding the trial court’s reasoning in this opinion, we do know that the trial court ultimately decided to toss out this entire case. Here, the Court of Appeals did a good job of parsing through the individual claims to see if they were properly supported by the allegations in the complaint and counter-complaint.