Torts - Deron R. Hicks and Travis C. Hargrove

• Jurisdiction: Georgia,United States
• Publication year: 2009
• Citation: Vol. 61 No. 1

Tortsby Deron R. Hicks^* and Travis C. Hargrove^**

This Article surveys recent developments in Georgia tort law between June 1, 2008 and May 31, 2009.¹

I. Defamation

In Gettner v. Fitzgerald,² the Georgia Court of Appeals addressed each of the elements of defamation, including the purported "opinion" exception,³ and addressed whether an individual was a public or private figure for purposes of the standard of liability for a publisher.⁴ In 1999 Mark Gettner went to work at Fitzgerald & Company (F&C), an advertising agency, as a group creative director leading one of the company's creative teams. In 2001 Jim Paddock, then-executive creative director of F&C, retired. Gettner was promoted to Paddock's previous position, effective April 2001.⁵ In July 2002 Gettner decided to leave the executive creative director position because he "did not 'want to deal with all the nuances that were not part of the creative process,' such as hiring and managing subordinates."⁶ Gettner claimed that he discussed this decision with David Fitzgerald, F&C's chief executive officer, and Fitzgerald agreed to allow Gettner to return to his former position.⁷

Fitzgerald claimed that he initiated a meeting with Gettner, telling Gettner he would be demoted because Gettner's subordinates were not producing work of a high enough quality under Gettner's leadership.⁸ Fitzgerald proposed that he would allow Gettner to "save face" by allowing the decision to be presented jointly as if it had been Gettner's choice.⁹ Gettner's salary was reduced, and a form was submitted to F&C's human resources department which stated that Gettner's salary was being changed because Gettner had "'stepped down' to the position of [g]roup [c]reative [d]irector."¹⁰

In an e-mail sent to all F&C employees in July 2002, Fitzgerald stated that Gettner was returning to his previous position "'to be closer to the [creative] work.'"¹¹ In August 2002 Fitzgerald e-mailed Alicia Gris-wold, a reporter for VNU Business Media, Inc.'s advertising trade publication, AdWeek, and asked if she "knew of any good executive creative directors because Gettner had 'stepped down.'"¹² Griswold, skeptical that Gettner's demotion was his own choice, asked Fitzgerald for the real story behind the demotion.¹³ Fitzgerald told Griswold that Gettner "lacked the qualities an executive director needed" and that Gettner was demoted for "poor performance."¹⁴

In March 2003, as part of a workforce reduction, F&C terminated Gettner.¹⁵ In April 2003 AdWeek released its "Agency Report Cards," an annual rating of the ten largest advertising agencies in the southeast region in numerous categories.¹⁶ AdWeek gave F&C an overall grade of "C," and the "Management" section of the rating included a comment that " 'CEO Dave Fitzgerald demoted [Executive Creative Director] Mark Gettner [in 2002] after poor performance; retired [Executive Creative Director] Jim Paddock started weekly visits "to help" creative.'"¹⁷ Griswold did not verify this information with Gettner before publishing the article that included this information, claiming that "she did not need to call Gettner to verify Fitzgerald's statement that Gettner had been demoted for poor performance because she 'had a fact' from the head of the agency."¹⁸ Griswold also claimed that "an advertising consultant told her that he had seen a pitch for an account that Gettner made on behalf of F&C that was 'weak,'" thus confirming to her that Gettner was performing his job duties in a substandard manner.¹⁹

After the report was published, Fitzgerald asked Griswold why she printed the information he asked her not to print.²⁰ Griswold told Fitzgerald "'don't ever tell a reporter anything you don't want to see in print.'"²¹ Gettner stated that "he confronted Griswold about the [article] and she admitted that she knew he had actually stepped down voluntarily."²²

Gettner sued VNU (Griswold's employer) for defamation and F&C and Fitzgerald for invasion ofprivacy based on Fitzgerald's conversation with Griswold and F&C's "alleged appropriation of Gettner's name and likeness."²³ All defendants moved for summary judgment, and the trial court granted the motions.²⁴ The court of appeals reversed the trial court's ruling with respect to the grant ofsummary judgment to VNU on the defamation claim.²⁵

Gettner contended that a jury issue existed with respect to each essential element of his defamation claim against VNU.²⁶ Gettner's complaint was premised upon section 51-5-2(a) of the Official Code of Georgia Annotated (O.C.G.A.),²⁷ and the court evaluated each of the four elements necessary to prove a cause ofaction under that statute.²⁸

First, the court looked at whether VNU published a defamatory statement about Gettner.²⁹ While it was not disputed that "VNU published the report about Gettner and that such a report would tend to injure Gettner's reputation and expose him to public contempt or ridicule," VNU contended that "whether Gettner's performance was poor is a matter of opinion and, therefore, that its report about Gettner was not an actionable statement of fact."³⁰ The court disagreed, noting that although "a defamation action will lie only for a statement of fact[,]" and not one that "reflects an opinion or subjective assessment, as to which reasonable minds could differ [and which] cannot be proved false," there is no wholesale exception to defamation for opinions.³¹ In fact, "'[a]n opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts about the plaintiff that are capable of being proved false.'"³² Accordingly, to the extent VNU's statement could be proven false, it could constitute a defamatory statement.³³ Therefore, the court held that if Gettner could prove that Fitzgerald demoted him for something other than unsatisfactory performance, the statement was capable of being proven false, and VNU could not avoid liability by labeling the statement "opinion."³⁴ Therefore, because an issue of fact (whether Gettner was demoted due to poor performance) remained with respect to whether VNU published a defamatory statement about Gettner, summary judgment was improper.³⁵ The same disputed fact prevented summary judgment on the issue of whether the allegedly defamatory statement was false.³⁶

VNU next contended that "Gettner identified no evidence of fault, either under the malice standard that applies to public figures or under the negligence standard that applies to private figures."³⁷ Noting that the issue of whether Gettner was a public or private figure was a question of law for the court, the court held that Gettner was not a public figure or a limited-purpose public figure.³⁸ The court noted that there was no "public controversy" with regard to VNU's report regarding

Gettner's demotion because there was "no evidence in the record that the issue of the reasons for Gettner's change in employment status could have any substantial ramifications for anyone other than him and his immediate family."³⁹ Accordingly, Gettner needed only to demonstrate VNU acted with ordinary negligence.⁴⁰

The court next addressed the standard of care owed to Gettner, a private figure, by VNU.⁴¹ The standard of care in such a case

will be defined by reference to the procedures a reasonable publisher in [its] position would have employed prior to publishing [an item] such as [the] one [at issue. A publisher] will be held to the skill and experience normally exercised by members of [its] profession. Custom in the trade is relevant but not controlling.⁴²

Under that standard, the court held that a jury issue existed as to whether VNU was negligent in publishing the defamatory statement about Gettner.⁴³ The court noted that "Griswold had an ample opportunity . . . to conduct a more thorough investigation of the circumstances of Gettner's demotion[,]" especially because Fitzgerald's e-mail to the company about Gettner contradicted what he told Griswold about Gettner s demotion and because Fitzgerald had asked Griswold not to publish the information regarding Gettner s demotion.⁴⁴ Furthermore, the court held that a jury could have found Griswold breached the applicable standard of care by failing to attempt to verify, through any third-party, the circumstances of Gettner's demotion.⁴⁵ Because of all the existing jury issues, the court of appeals reversed the grant of summary judgment on Gettner's defamation claim.⁴⁶

II. Emotional Distress

In Blue View Corp. v. Bell,⁴⁷ the Georgia Court of Appeals addressed emotional distress claims in the context of an alleged wrongful foreclo-sure.⁴⁸ Yolanda and Wesley Bell sued Blue View Corporation, claiming intentional infliction of emotional distress after Blue View initiated foreclosure proceedings on the Bells' home. Blue View failed to answer the complaint, and a default judgment was entered against it. A hearing was held on damages, and a judgment was entered against Blue View for $2 million in compensatory damages and $5 million in punitive damages.⁴⁹ Blue View moved to set aside the default judgment, arguing that "it did not receive notice of the final judgment and did not receive timely notice of the hearing on damages."⁵⁰ The trial court found that "Blue View did not receive notice of the final judgment but did receive notice of the hearing"; thus, the motion to set aside was granted.⁵¹ However, the trial court then reentered the same judgment, including the damages award. Blue View appealed on multiple grounds, including that the trial court erred in entering the default judgment.⁵² one year after purchasing real property, in May 2000 the Bells obtained a home equity line of credit and loan in the amount of $67,000 from Bank One. The Bells fell into arrears on the loan and filed for bankruptcy.⁵³ At that point, it was alleged that "the Bells 'entered into good faith negotiations with Defendant Bank...