Wiley v. Ohio/Oklahoma Hearst Argyle Television, Inc. , 33 F. App'x 434 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 5 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARY WILEY,
Plaintiff - Appellant,
v. No. 01-6062
(D.C. No. 99-CV-1644-ML)
OHIO/OKLAHOMA HEARST- (W.D. Oklahoma)
ARGYLE TELEVISION, INC., doing
business as KOCO-TV, a Nevada
corporation,
Defendant - Appellee,
and
AMERICAN RED CROSS,
Defendant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and BRORBY , Senior
Circuit Judge.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
In this diversity case, plaintiff Mary Wiley appeals the district court’s grant
of summary judgment in favor of defendant Ohio/Oklahoma Hearst-Argyle
Television, Inc. on her defamation claim. Because plaintiff failed to raise a
genuine issue of fact as to whether defendant breached its duty of care, we affirm.
After tornadoes ripped through central Oklahoma on May 3, 1999, the
American Red Cross and other agencies immediately set up relief centers,
including two in Del City, Oklahoma. On May 4, plaintiff volunteered to work at
the Del City High School relief center. According to police reports, she was
asked to leave after witnesses saw her taking donated items without permission.
On May 5, plaintiff went to a second relief shelter where she told witnesses
that she had donations which she would deliver to the back of the shelter.
According to police reports, however, when plaintiff drove her car to the back of
the shelter, she informed volunteers that she had received permission from
someone up front to take relief supplies for her family. Red Cross volunteers
helped plaintiff gather food, clothing, boots, and bedding, which they loaded into
her car. When the assistant manager observed this, she had a security guard take
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down plaintiff’s license plate as she drove off, and police were notified. The
Oklahoma Attorney General’s fraud control unit subsequently notified guards to
be on the lookout for plaintiff, who was accused of taking items from the relief
center without permission. When plaintiff returned to the relief shelter the next
afternoon, she was approached by a security guard, who requested her
identification and then notified the police. The police gave plaintiff Miranda
warnings, questioned her, took her photograph, seized her Red Cross name tag,
and released her.
Over the next few days, police and/or the Attorney General’s fraud unit
took statements from Red Cross volunteers and employees, and Police Detective
Magni prepared a file for presentation to the district attorney’s office. The
detective also prepared a report for the district attorney’s office which listed
under the category of “charges” that plaintiff was accused of obtaining property
by false pretenses in violation of Okla. Stat. tit. 5, § 21-1542. See Aplee. App.
at 161.
On May 12, Randy McIlwain, a reporter from defendant’s Oklahoma City
television station, KOCO-TV, spoke with Detective Magni about plaintiff’s case
and reviewed the case file. He reported the information to KOCO-TV’s producer,
who drafted several news scripts. That evening, the station broadcast a trailer
which stated “Another possible scam after the storm. Tonight a metro woman is
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accused of being a relief thief. Pretending to be a Red Cross volunteer, while
taking off with donations for tornado victims. It’s a story you’ll see only on
Five.” Aplt. App., Ex. D. Later that night, the station displayed a picture of
plaintiff with the word “THIEF” across the top, and reported the following:
Charges are pending tonight against 69 year old Mary Wiley of
Oklahoma City. The theft happened at this temporary Red Cross
shelter in Del City. Police say Wiley took a load of items intended
for tornado victims. She was wearing a Red Cross name tag. The
District Attorney has accepted the police report and plans to file
charges.
Id. Substantially the same information was reported the next morning, although
that report also included an incorrect statement that police were looking for
plaintiff. See id. at Ex. E. Plaintiff was never formally charged by the District
Attorney.
Plaintiff filed suit in state court against the American Red Cross and
defendant. After removal to federal court, plaintiff dismissed her claims against
the American Red Cross, and filed an amended complaint against defendant,
alleging defamation. Defendant’s disclosed witnesses included a journalism
professor who intended to testify that the television station complied with the
standard of care ordinarily exercised by members of the news media. In contrast,
plaintiff’s disclosure failed to identify any witness who would testify regarding
the standard of care. Defendant filed for summary judgment asserting the
evidence was undisputed that it exercised due care, and that plaintiff could not
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show a breach of care. The district court granted summary judgment, and
plaintiff appeals.
We review a grant of summary judgment de novo, applying the same
standards as those applied by the district court. Robbins v. Jefferson County Sch.
Dist. R-1 , 186 F.3d 1253, 1258 (10th Cir. 1999) . Summary judgment is
appropriate when a record demonstrates that “there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
Plaintiff argues that the district court erred in granting summary judgment
because defendant’s negligence could be determined by a layperson and did not
require testimony from an expert. Her entire argument in this regard is that “[i]f
a news station broadcasts falsehoods or lies that are not based on the information
gathered, an ordinary layman can make that determination.” Aplt. Br. at 12.
No cases are cited to support her position.
Plaintiff’s argument has several flaws. First, she relies completely on
proffered supplemental material which we decline to consider for the first time on
appeal. 1 Second, despite the Oklahoma Supreme Court’s holding that media
1
Plaintiff has moved to supplement the record with excerpts of deposition
testimony by Del City Police Detective Magni and reporter McIlwain which were
not before the district court. We deny this motion. When reviewing a grant of
summary judgment, we consider only the record that was before the district court
(continued...)
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negligence is to be determined under a professional negligence standard which
should ordinarily be proven by an expert, see Malson v. Palmer Broadcasting
Group, 936 P.2d 940, 942 (Okla. 1997), plaintiff failed to present any evidence to
the district court regarding the standard of care. In the face of defendant’s
affidavit evidence that it complied with the standard of care, plaintiff could not
simply rest on her argument that the broadcast of incorrect information inherently
demonstrates negligence. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256
(1986) (when moving party submits properly supported summary judgment
motion, nonmoving party must produce affirmative evidence to demonstrate
genuine issue of fact, and may not rely simply on denials or allegations in
pleadings).
We AFFIRM the judgment of the district court.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
1
(...continued)
when the decision was made. John Hancock Mut. Life Ins. Co. v. Weisman, 27
F.3d 500, 506 (10th Cir. 1994). Although plaintiff argues we should consider the
new testimony because the depositions were taken after defendant’s summary
judgment motion was filed, she has not shown why the depositions were not taken
earlier, or why, after learning of the testimony, she did not immediately
supplement her pending summary judgment response with a motion and affidavit
pursuant to Fed. R. Civ. P. 56(f).
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