Arthur Yates, Beverly Yates, And Yates Kennel, Inc. Vs. Iowa ( 2006 )

IN THE SUPREME COURT OF IOWA
No. 57 / 04-0434
Filed September 15, 2006
ARTHUR YATES, BEVERLY YATES, and YATES KENNEL, INC.,
Appellees,
vs.
IOWA WEST RACING ASSOCIATION d/b/a BLUFFS RUN CASINO, and
HARVEY’S BLUFFS RUN MANAGEMENT COMPANY, INC.,
Appellants.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Pottawattamie County,
Jeffrey L. Larson and Timothy O’Grady, Judges.
Defendants appeal from adverse jury verdict on claims of defamation
and negligence; Plaintiffs cross appeal from district court’s refusal to submit
punitive damages on their negligence claim. COURT OF APPEALS
DECISION AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND
CASE REMANDED WITH DIRECTIONS.
Donald J. Pavelka, Jr., and Thomas M. Locher of Locher Pavelka
Dostal Braddy & Hammes, LLC, Omaha, Nebraska, for appellants.
Jerry Crawford and Jim Quilty of Crawford Law Firm, Des Moines, for
appellees.
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LAVORATO, Chief Justice.
This action arises out of the defendants’ alleged slanderous
statements about a greyhound kennel and the defendants’ alleged
negligence in maintaining its track that allegedly resulted in injuries to the
kennel’s racing dogs. The defendants appealed from an adverse jury verdict
on both claims. The kennel cross appealed, contending that the district
court erred in not submitting punitive damages on its negligence claim.
We transferred the case to the court of appeals, which reversed on the
appeal, concluding that the district court erred in overruling the defendants’
motion for directed verdict on both the slander and negligence claims.
Because of its decision on the negligence claim, the court of appeals did not
address the cross-appeal.
The kennel filed an application for further review, which we granted.
We affirm the court of appeals decision, reverse the district court judgment,
and remand the case with directions.
I. Background Facts.
Arthur and Beverly Yates are the owners of Yates Kennel, Inc., an
Iowa corporation. Yates Kennel is a greyhound racing dog kennel that
operated at Bluffs Run Casino (BRC) in Council Bluffs, Iowa. Iowa West
Racing Association (IWRA) is a non-profit corporation and an Iowa statutory
dog track licensee. IWRA is the owner of the license to operate Bluffs Run
Casino. Harveys BR Management Company, Inc. (Harveys), a Nevada
corporation, manages Bluffs Run pursuant to a management agreement
with IWRA.
In 1998, 1999, and 2000, Yates Kennel obtained booking contracts
with Harveys to have its greyhound dogs participate in greyhound racing
meets at Bluffs Run. In 1999 and 2000, there was an increase in the
number of injuries and deaths of greyhounds while racing at Bluffs Run. A
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number of those casualties were to Yates Kennel dogs. Kennel owners,
including the Yates, thought the injuries and deaths resulted from the track
being too hard in some spots and too soft in other spots.
In 2000 the Yates heard rumors that its kennel would not receive a
booking contract for 2001. On November 16, 2000, the Iowa Racing and
Gaming Commission (Commission), a state agency that regulates racing in
Iowa, held a meeting. Jerry Crawford, an attorney for the Iowa Greyhound
Association (IGA), an organization of kennel owners and operators, spoke at
that meeting. At the time, Beverly Yates was a director of IGA. In relevant
part regarding injuries to the racing greyhounds, the minutes of that
meeting reflect the following:
Chair Hansen called on the Iowa Greyhound Association (IGA).
Jerry Crawford, legal counsel for the IGA, advised they
requested the opportunity to appear before the Commission to
discuss the contractual ramifications of the track condition at
Bluffs Run Casino (BRC), and more specifically, the contracts
between BRC and the kennel owners/operators. He stated that
some individuals would consider this to be a private matter
between the track as a business and third parties, but feels
that thought process ignores the Commission’s responsibility
as BRC is a regulated business entity. He pointed out that the
Commission determines the amount of money BRC is required
to pay in purses to the third party kennel operators.
Additionally, the Commission is responsible for monitoring the
safety of the track conditions at the facility. Mr. Crawford
stated that the track condition has been better on some
occasions than others, but that it is not necessary to go back
any further than the Commission meeting in Clinton when
Verne Welch, BRC’s general manager, stated that two track
records had been set in a one-week period. He indicated the
Commission should be concerned as that means the track
surface is like asphalt, making it very dangerous for the
greyhounds. If the track surface is endangering the safety of
the greyhounds, it is creating enormous financial and practical
problems for the kennel owners and operators. Mr. Crawford
stated that greyhounds are very expensive, and it is difficult for
the owners/operators to maintain an active list when they are
injuring dogs at a record rate. They are also faced with the
economic hardship of replacing those dogs.
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As the minutes reflect, Crawford then got into the question of kennel
contracts for the year 2001:
At this point, all IGA knows is that some BRC kennel operators
have not received a contract for the coming year. Mr. Crawford
informed the Commission that the Arthur and Beverly Yates
Kennel is one of the operators that has not received a contract
offer for 2001. He noted that the Yates kennel has experienced
20 broken legs so far in 2000, and has had between 10-15
additional greyhounds removed from racing due to other race-
ending injuries. In terms of dollars won, they are second from
the bottom. This year money won in stakes’ races were not
included in kennel standings, which is a variation from
previous years. Mr. Crawford stated that the Yates Kennel did
very well in stake races, noting that they had two dogs in the
final Iowa Breeders Championship Race. He noted that one of
the owners is an officer of the IGA, and BRC has indicated they
are critical of them on the topic of the track condition.
Crawford then requested the Commission to
establish a timetable in order to review this matter to
determine fairness due to the various issues faced by the
kennel operators at BRC. He stressed to the Commissioners
that it is the members of IGA, the kennel owners/operators,
breeders and trainers, who have suffered the entire financial
consequence of what has happened at BRC this year. He
questioned whether the Commission should allow these small
Iowa-based businesses to suffer the additional financial
consequence of being put out of business at BRC.
Crawford asked the Commission to stop the execution of contracts so
that “a fair and equitable dismissal clause” that ensures competent
performance could be worked out. He also asked that the Commission “not
allow BRC to do whatever it chooses to do with regard to kennel contracts.”
The Commission then allowed individuals with an opposing view an
opportunity to speak. Lyle Ditmars, legal counsel for BRC, responded to the
various issues Crawford raised. On one of those issues, timing of the
kennel contracts, the minutes reflect that Ditmars stated the following:
Mr. Ditmars stated the timing is the same as last year. BRC
established a committee that reviewed several criteria in
determining who would be offered contracts: ranking of the
kennel by number of wins; win percentage; compliance with
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contract requirements regarding the active list; compliance
with contract requirements regarding the number of active
greyhounds classified as A and B; residency of the owner; and
contracts with the state of Iowa. He noted there have been
instances where the kennel operators resided in Iowa, but did
not have any Iowa-bred greyhounds in the kennel. Other
factors are the willingness of the operator to use Iowa-bred
greyhounds; quality of greyhounds maintained throughout the
year; participation by the kennel operator in activities and
programs designed to promote, enhance and improve
greyhound racing at BRC; whether the kennel operator
participated in activities that are potentially harmful to the
operation of racing at BRC or other kennel operators; and the
kennel operator’s compliance with other contract requirements.
Ditmars then made the following comments about the Yates Kennel:
Mr. Ditmars stated that BRC does not discuss who will or will
not get a kennel contract with other kennel operators. Mr.
Ditmars confirmed that the Yates Kennel was not offered a
contract for 2001, and will not be offered one. In 1999 the
kennel was in the bottom two or three kennels in terms of
performance. They were given a six-month contract. At the
end of that contract, even though they remained in the bottom
five, they were given an additional six-month contract to give
them an opportunity to correct the situation. At this time, the
Yates Kennel is second from last in terms of wins and third
from the bottom in terms of win percentage for the year. Mr.
Ditmars stated that the decision was not arbitrarily made. He
noted that Ms. Yates was on the board of directors of the IGA
when they were offered their first kennel contract; Jason Hines
was the president of IGA when he was offered a contract; and
Bob Rider, who has had two six-month contracts and
addressed the Commission regarding issues at BRC last year,
was offered a new contract for 2001.
Additionally, in response to a commissioner’s question, Ditmars
reportedly stated that he denied that any of the criteria established to
determine which kennels would be offered contracts for next year were
based on retribution for voicing criticism regarding BRC. According to the
minutes, Crawford made a number of comments in rebuttal to Mr. Ditmars
comments. One such comment included the following: “Mr. Crawford
questioned the reasons given for terminating the Yates Kennel when
kennels ranked lower than them received contracts for 2001, and over half
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of the kennels consistently have less than the required number of
greyhounds on the active list.”
In response to this last comment, the minutes show that Ditmars
stated the following: “Mr. Ditmars reiterated that the Yates Kennel is second
from last in the kennel standings. The kennel in last place did not receive a
six-month contract in the previous year, as did the Yates Kennel due to
poor performance in 1999.”
According to the minutes, the Commission took no action on
Crawford’s request. One commissioner “noted that the agenda stated it was
to be a discussion of the contractual and financial ramifications of track
conditions at BRC.” Another commissioner stated that “BRC is a private
commercial company contracting with other private commercial companies”
and she “could not foresee the Commission getting involved unless
something unsavory was taking place.” Newspaper reporters present during
the meeting wrote newspaper accounts containing some of Ditmars’
statements about Yates Kennel.
II. Proceedings.
Six months later, the Yates and Yates Kennel (hereinafter collectively
referred to as plaintiffs) sued IWRA and BRC (hereinafter collectively
referred to as defendants), alleging a number of theories for recovery, only
two of which are relevant to this appeal: slander per se and negligence. As
to both theories, the plaintiffs sought compensatory and punitive damages.
The plaintiffs alleged that Ditmars’ statements before the Commission were
slanderous per se. The plaintiffs also alleged that the defendants’
negligence in maintaining the dog track caused injuries to its dogs for which
it suffered damages.
The parties tried the case to a jury, and the district court submitted
for the jury’s consideration the slander and negligence claims as well as
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punitive damages on the slander claim. The court refused to submit
punitive damages on the negligence claim. On the slander claim, the jury
awarded no compensatory damages but did award punitive damages.
On the negligence claim, the jury found the plaintiffs thirty-three
percent at fault and the defendants sixty-seven percent at fault. The jury
awarded damages for loss of income, lost value of injured greyhounds, and
veterinary expenses.
The defendants appealed both the slander and negligence verdicts.
The plaintiffs cross-appealed, contending the district court erred in not
submitting punitive damages on their negligence claim. We transferred the
case to the court of appeals. The court of appeals reversed on the appeal.
Because the court of appeals reversed on the appeal, it did not address the
cross-appeal.
We granted the plaintiffs’ application for further review.
III. Issues.
Although a number of issues were raised on appeal, we determine
that only the following issues require discussion: whether the district court
erred in denying the defendants’ motion for directed verdict in which the
defendants asserted that (1) the alleged slanderous statements in question
were true as a matter of law and (2) there was insufficient evidence that the
track conditions proximately caused injuries to the plaintiffs’ dogs.
IV. Scope of Review.
We review the district court’s rulings on motions for directed verdict
for correction of errors at law. Estate of Pearson ex rel. Latta v. Interstate
Power & Light Co., 700 N.W.2d 333, 340 (Iowa 2005). In reviewing such
rulings, we view the evidence in the light most favorable to the nonmoving
party to determine whether the evidence generated a fact question.
Dettmann v. Kruckenberg, 613 N.W.2d 238, 250-51 (Iowa 2000). To
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overcome a motion for directed verdict, substantial evidence must exist to
support each element of the claim or defense. Id. at 251. Substantial
evidence exists if reasonable minds could accept the evidence to reach the
same findings. Id.
V. The Defamation Claim: Truth as a Defense.
The first issue we address is whether the district court erred in
overruling the defendants’ motion for directed verdict on the ground that
the alleged slanderous statements were true as a matter of law.
1. Applicable law. The law of defamation includes the twin torts of
libel and slander. Schlegel v. The Ottumwa Courier, 585 N.W.2d 217, 221
(Iowa 1998). “Libel is generally a written publication of defamatory matter,
and slander is generally an oral publication of such matter.” Id. (citation
omitted). As we noted in Schlegel,
“[t]he law of defamation embodies the public policy that
individuals should be free to enjoy their reputation unimpaired
by false and defamatory attacks. An action for defamation or
slander is based upon a violation of this right.
The gravamen or gist of an action for defamation is
damage to the plaintiff’s reputation. It is reputation which is
defamed, reputation which is injured, and reputation which is
protected by the law of defamation.
Defamation is an impairment of a relational interest; it
denigrates the opinion which others in the community have of
the plaintiff and invades the plaintiff’s interest in the
[plaintiff’s] reputation and good name.”
Id. (quoting 50 Am. Jur. 2d Libel and Slander § 2, at 338-39 (1995)).
In Hovey v. Iowa State Daily Publication Board, Inc., we adopted “the
view espoused in Restatement (Second) of Torts, section 581A comment f
that if an allegedly defamatory statement is substantially true, it provides
an absolute defense to an action for defamation.” 372 N.W.2d 253, 256
(Iowa 1985). Comment f provides that
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many charges are made in terms that are accepted by their
recipients in a popular rather than a technical sense. . . .
It is not necessary to establish the literal truth of the precise
statement made. Slight inaccuracies of expression are
immaterial provided the defamatory charge is true in
substance.
Restatement (Second) of Torts § 581A cmt. f (1977).
Prior to Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695,
111 L. Ed. 2d 1 (1990), as a matter of constitutional law, a statement of
opinion was thought not to be defamatory. As the United States Supreme
Court stated in Gertz v. Robert Welch, Inc.,
[u]nder the First Amendment there is no such thing as a false
idea. However pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on
the competition of other ideas. But there is no constitutional
value in false statements of fact. Neither the intentional lie nor
the careless error materially advances society’s interest in
“uninhibited, robust, and wide-open debate” on the public
issues. They belong to that category of utterances which “are
no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social
interest in order and morality.”
418 U.S. 323, 339-40, 94 S. Ct. 2997, 3007, 41 L. Ed. 2d 789, 805 (1974)
(citations omitted); accord Jones v. Palmer Commc’ns, Inc., 440 N.W.2d 884,
891 (Iowa 1989) (“Opinion is absolutely protected under the first
amendment.”), overruled on other grounds by Schlegel, 585 N.W.2d at 224.
This statement in Gertz was dictum; however, a majority of the federal
courts of appeals interpreted this dictum to mean that statements of fact
can be actionable defamation but statements of opinion cannot. Guilford
Transp. Indus., Inc. v. Wilmer, 760 A.2d 580, 596 (D.C. 2000). As one court
observed,
[b]y this statement, Gertz elevated to constitutional principle
the distinction between fact and opinion, which at common law
had formed the basis of the doctrine of fair comment. Gertz’s
implicit command thus imposes upon state and federal courts
the duty as a matter of constitutional adjudication to
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distinguish facts from opinions in order to provide opinions
with the requisite, absolute First Amendment protection.
Ollman v. Evans, 750 F.2d 970, 975 (D.C. Cir. 1984) (footnotes omitted).
The framework of analysis was therefore to determine whether the alleged
defamatory statement was fact or opinion.
Because the degree to which alleged defamatory statements have real
factual content can vary greatly, the court in Ollman noted “that courts
should analyze the totality of the circumstances in which [such] statements
are made to decide whether they merit the absolute First Amendment
protection enjoyed by opinion.” Id. at 979. In evaluating the totality of the
circumstances, the court considered four factors in assessing whether the
average reader or listener, in contrast to the most skeptical or most
credulous reader or listener, would view the statement as fact or opinion.
Id. at 979 & n.16. These factors, the court was convinced, would lead to “a
proper accommodation between the competing interests in free expression
of opinion and in an individual’s reputation.” Id. at 978.
Following the lead of many other federal circuit courts of appeals, the
eighth circuit adopted this four-factor test in Janklow v. Newsweek, Inc.,
788 F.2d 1300, 1302 (8th Cir.), cert. denied, 479 U.S. 883, 107 S. Ct. 272,
93 L. Ed. 2d 249 (1986). Relying on Janklow, we adopted the four-factor
test in Palmer Communications, Inc., 440 N.W.2d at 891-92.
The first relevant factor is whether the alleged defamatory statement
“has a precise core of meaning for which a consensus of understanding
exists or, conversely, whether the statement is indefinite and ambiguous.”
Ollman, 750 F.2d at 979; see also Palmer Commc’ns, Inc., 440 N.W.2d at
891. We characterized this factor as “the precision and specificity of the
disputed statement.” Palmer Commc’ns, Inc., 440 N.W.2d at 892 (citation
omitted).
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The second relevant factor is “the degree to which the [alleged
defamatory] statements are . . . objectively capable of proof or disproof [].”
Ollman, 750 F.2d at 981. We related this factor to the first factor and noted
that “if a statement is precise and easy to verify, it is likely the statement is
fact.” Palmer Commc’ns, Inc., 440 N.W.2d at 891. In this connection, one
writer has defined a factual statement as one that relates to an event or
state of affairs that existed in the past or exists at present and is capable of
being known. See Ollman, 750 F.2d at 981 n.22 (citation omitted). This
verification factor “is, in actuality, merely one of many rules in tort that
prevent the jury from rendering a verdict based on speculation.” Id. at 981.
The third relevant factor is the context in which the alleged
defamatory statement occurs. Id. “[T]he context to be considered is both
narrowly linguistic and broadly social.” Id. We characterized this factor as
“the ‘literary context’ in which the disputed statement [is] made.” Palmer
Commc’ns, Inc., 440 N.W.2d at 891. The degree to which a statement is
laden with factual content or can be read to imply facts depends upon the
article or column, see id., or in this case the whole discussion.
The last relevant factor is “the broader social context into which [the
alleged defamatory] statement fits.” Ollman, 750 F.2d at 983. Important
here are the types of writing or speech in which the statement appears. Id.
We likewise characterized this factor as “the social context,” and noted that
this factor “focuses on the category of publication, its style of writing and
intended audience.” Palmer Commc’ns, Inc., 440 N.W.2d at 891-92 (citation
omitted). We also noted that we consider the “‘public context’ or political
arena in which the statements were made.” Id. at 892 (citations omitted).
In 1990 the Court in Milkovich rejected this per se approach providing
blanket First Amendment protection of all statements of opinion:
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[W]e do not think this passage from Gertz [quoted above] was
intended to create a wholesale defamation exemption for
anything that might be labeled “opinion” . . . . Not only would
such an interpretation be contrary to the tenor and context of
the passage, but it would also ignore the fact that expressions
of “opinion” may often imply an assertion of fact.
497 U.S. at 18, 110 S. Ct. at 2705, 111 L. Ed. 2d at 17.
Noting that the Gertz dictum “ignored the fact that expressions of
‘opinion’ may often imply an assertion of fact,” the Court gave the following
example to support this statement:
If a speaker says, “In my opinion John Jones is a liar,” he
implies a knowledge of facts which lead to the conclusion that
Jones told an untruth. Even if the speaker states the facts
upon which he bases his opinion, if those facts are either
incorrect or incomplete, or if his assessment of them is
erroneous, the statement may still imply a false assertion of
fact. Simply couching such statements in terms of opinion
does not dispel these implications; and the statement, “In my
opinion Jones is a liar,” can cause as much damage to
reputation as the statement, “Jones is a liar.”
Id. at 18-19, 110 S. Ct. at 2705-06, 111 L. Ed. 2d at 17-18.
Citing existing law, the Court clarified that only statements regarding
matters of public concern that are not sufficiently factual to be capable of
being proven true or false and statements that cannot reasonably be
interpreted as stating actual facts are absolutely protected under the
Constitution. In making this clarification, the Court rejected “the creation
of an artificial dichotomy between ‘opinion’ and fact.” Id. at 19-20, 110 S.
Ct. at 2705-06, 111 L. Ed. 2d at 18. In rejecting this dichotomy, the Court
did not, however, abolish the constitutional protection for opinions. It
merely narrowed that protection. Hunt v. Univ. of Minn., 465 N.W.2d 88, 94
(Minn. Ct. App. 1991). Thus, the framework of analysis is no longer
whether the alleged defamatory statement is fact or opinion. Rather the
framework of analysis now is whether the alleged defamatory statement can
reasonably be interpreted as stating actual facts and whether those facts
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are capable of being proven true or false. Under this analysis, “statements
of opinion can be actionable if they imply a provable false fact, or rely upon
stated facts that are provably false.” Moldea v. New York Times Co., 22 F.3d
310, 313 (D.C. Cir. 1994). The statement that the plaintiff must prove false
is not the literal wording of the statement but what a reasonable reader or
listener would have understood the author to have said. Milkovich, 497 U.S.
at 16-17, 110 S. Ct. at 2704-05, 111 L. Ed. 2d at 16.
Although the Court in Milkovich rejected the dichotomy between fact
and opinion as the framework of analysis, we agree with the following:
The test used in Milkovich to identify protected opinions is very
similar to the four-factor inquiry used by the circuit courts to
distinguish fact from opinion. Specificity and variability are
closely related to whether the statement is capable of being
proven false. Whether a remark can be reasonably interpreted
as stating actual facts must be inferred from the political,
literary, and social context in which the statement was made.
Given the similarity between the Supreme Court’s definition of
protected opinion and the circuit courts’ fact/opinion analysis,
decisions applying the Janklow test are still helpful under
Milkovich.
Hunt, 465 N.W.2d at 94; see also Milkovich, 497 U.S. at 24-25, 110 S. Ct. at
2709, 111 L. Ed. 2d at 21-22 (Brennan, J., dissenting) (agreeing with the
majority’s statement of the law but disagreeing with the majority’s
application of the law to the facts; also noting that among the
circumstances a court is to consider in determining whether a statement
purports to state or imply actual facts about an individual are the same four
factors used to distinguish between statements of fact and statements of
opinion first stated in Ollman and adopted in Janklow). We will therefore
employ the four-factor test we adopted in Palmer Communications, Inc. to
identify protected opinion under the Milkovich framework of analysis.
A trial court’s initial task in a defamation action is to decide whether
the challenged statement is “capable of bearing a particular meaning, and
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whether that meaning is defamatory.” Restatement (Second) of Torts §
614(1) (1977); see also Levy v. Am. Mut. Ins. Co., 196 A.2d 475, 476 (D.C.
1964) (“It is only when the court can say that the publication is not
reasonably capable of any defamatory meaning and cannot be reasonably
understood in any defamatory sense that it can rule, as a matter of law,
that it was not libelous.”). In carrying out this task, a court should not,
however,
indulge far-fetched interpretations of the challenged
publication. The statements at issue “should . . . be construed
as the average or common mind would naturally understand
[them].” If the court determines that a statement is indeed
capable of bearing a defamatory meaning, then whether that
statement is in fact “defamatory and false [is a question] of fact
to be resolved by the jury.”
Guilford Transp. Indus., 760 A.2d at 594 (citations omitted).
2. The merits. As mentioned, minutes of the Commission meeting
on November 16, 2000 reflect that attorney Crawford questioned the
reasons given for terminating the Yates Kennel when kennels ranked lower
than it received contracts for 2001, and over half of the kennels consistently
had less than the required number of greyhounds on the active list. The
minutes further reflect that in responding to this comment, attorney
Ditmars stated the following: “Yates Kennel is second from last in the
kennel standings. The kennel in last place did not receive a six-month
contract in the previous year, as did the Yates Kennel due to poor
performance in 1999.”
Beverly Yates testified Ditmars’ statement that “Yates Kennel is
second from last in kennel standings” was true. She further testified over
hearsay objections that she read newspaper accounts of the Commission
meeting stating that Yates Kennel had a poor, noncompetive kennel.
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David Ungs testified that he was president of the IGA at the times
material to this action. Ungs further testified that in his capacity as
president he met with Vern Welch, a representative of Bluffs Run
management, some time before the commission meeting on November 16,
1999. In his conversation with Welch, Ungs stated he and Welch discussed
the possibility of kennels losing their booking contracts. According to Ungs,
Welch stated that Bluffs Run was one of the leading tracks in the country
as far as payouts were concerned and that the kennels would need to be
more competitive or they would be eliminated. Later at the Commission
hearing on November 16, which Ungs attended, Ungs learned that the Yates
Kennel’s booking contract would not be renewed. He recalled that at the
November 16 meeting Ditmars said that Yates Kennel did not receive a
booking contract because they were a “substandard or lower kennel.”
The plaintiffs contend that the references to Yates Kennel as
“substandard and poor performers” as testified to by Beverly Yates and
David Ungs were defamatory. For reasons that follow, we disagree.
The issue boils down to whether the Ditmars statement “substandard
and poor performers,” which is an opinion, implies a provably false fact, or
relies upon stated facts that are provably false. Viewing this statement in
context, we first note that Ditmars’ statement was in response to Crawford’s
questioning of the reasons given for terminating the kennel’s booking
contract. Ditmars set out facts (the kennel’s ranking compared to other
kennels), which signaled to a reasonable listener that his statement “poor
and substandard performers” represented a characterization of those facts.
Moreover, “substandard and poor performers” do not have a precise
and verifiable meaning and are therefore less likely to give rise to clear
factual implications. But even if the words “substandard” and “poor
performers” are verifiable, that assessment is supported by stated facts that
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are true. Cf. Moldea, 22 F.3d at 317 (Assuming statement, contained in
review of book reporting on alleged gang connections with professional
football, that author had engaged in “too much sloppy journalism,” was
capable of verification, statement was not defamatory because book review
author had supported statement with illustrations from book itself).
Ditmars’ disclosure of the facts underlying his statement of “substandard
and poor performers,” facts that Beverly Yates conceded were true, makes
this case different from Milkovich. A reasonable reader could conclude that
Ditmars was giving his personal conclusion or opinion about those
undisputed facts. The reader could further conclude that Ditmars’
statement did not imply any provable false fact. See Phantom Touring, Inc.
v. Affliliated Publ’ns, 953 F.2d 724, 731 & n.13 (1st Cir. 1992) (Newspaper
articles that allegedly falsely accused touring company of deliberate effort to
pass off its musical-comedy version as widely acclaimed Broadway show of
same name did not constitute actionable defamation because assertion of
deceit reasonably could have been understood not as a statement of fact but
only as reporter’s personal conclusion about information that was presented
which was not challenged as false.).
A good example of a statement with a well-defined meaning is an
accusation of a crime. See, e.g., Cianci v. New York Times Publ’g Co., 639
F.2d 54, 63 (2d Cir. 1980) (holding that an article that implied a mayor had
committed rape and that charged him with paying the alleged victim not to
bring charges was not protected opinion). Clearly, an accusation of a crime
is laden with factual content and the facts are easily verifiable. Such was
the case in Milkovich. In that case a high school wrestling coach argued
that an Ohio newspaper libeled him by printing a column that alleged he
had perjured himself in his testimony to a state court concerning his role in
an altercation between his team and an opposing team at a wrestling
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match. The column stated that “Anyone who attended the meet . . . knows
in his heart that Milkovich . . . lied at the hearing . . . .” Milkovich, 497 U.S.
at 5, 110 S. Ct. at 2698, 111 L. Ed. 2d at 9. The Court rejected the
argument that an accusation of perjury was nonactionable merely because
it was offered as the writer’s opinion. Id. at 21, 110 S. Ct. at 2707, 111
L. Ed. 2d at 19. The Court noted that “the connotation that the petitioner
committed perjury is sufficiently factual to be susceptible of being proved
true or false . . . . ‘Unlike a subjective assertion the averred defamatory
language is an articulation of an objectively verifiable event.’ ” Id. at 21-22,
110 S. Ct. at 2707, 111 L. Ed. 2d at 19 (citation omitted).
For all of these reasons, we conclude as a matter of law that the
statement “substandard and poor performers” constituted nothing more
than Ditmars’ conclusion or opinion, which contained nothing that implied
any provable false fact. Moreover the statement was based on facts that
were true. As such the statement was not defamatory.
VI. The Negligence Claim: Sufficiency of the Evidence Regarding
Causation.
The second issue we address is whether the district court erred in
overruling the defendants’ motion for directed verdict because there was
insufficient evidence that the track conditions proximately caused injuries
to the plaintiffs’ dogs. In their motion for directed verdict, the defendants
contended the plaintiffs did not prove that the injuries to the dogs would
not have occurred but for the defendants’ maintenance of the track. In
support of their contention, the defendants argued the plaintiffs did not
produce testimony that a qualified veterinarian examined or treated any of
the plaintiffs’ dogs at the time they were allegedly injured and diagnosed
them with injuries attributable to track conditions. At the close of all the
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evidence, the defendants renewed their motion. The defendants raised the
same contention and arguments on appeal.
1. Applicable law. To sustain its negligence claim against the
defendants, the plaintiffs had to prove that the defendants owed it a duty of
care, they breached that duty, their breach was the actual and proximate
cause of the injuries to its dogs, and the damages it suffered. Virden v. Betts
& Beer Constr. Co., 656 N.W.2d 805, 807 (Iowa 2003).
As we explained in Berte v. Bode,
Causation has two components: “(1) the defendant’s conduct must
have in fact caused the plaintiff’s damages (generally a factual
inquiry) and (2) the policy of the law must require the defendant to be
legally responsible for the injury (generally a legal question). We
apply a “but for” test to determine whether the defendant’s conduct
was a cause in fact of the plaintiff’s harm. Under that test, “the
defendant’s conduct is a cause in fact of the plaintiff’s harm, if, but-
for the defendant’s conduct, that harm would not have occurred. The
but-for test also implies a negative. If the plaintiff would have
suffered the same harm had the defendant not acted negligently, the
defendant’s conduct is not a cause in fact of the harm.”
692 N.W.2d 368, 372 (Iowa 2005) (citations omitted). Proximate cause or
legal cause, the second element of causation, determines the appropriate
scope of a negligent defendant’s liability. In applying proximate cause rules,
courts attempt “to discern whether, in the particular case before the court,
the harm that resulted from the defendant’s negligence is so clearly outside
the risks he created that it would be unjust or at least impractical to impose
liability.” Id. (citation omitted). Here, we are dealing with cause in fact.
This court has long been “committed to a liberal rule [that] allows
opinion testimony if it is of a nature which will aid the jury and is based on
special training, experience, or knowledge [as] to the issue in question.”
Iowa Power & Light Co. v. Stortenbecker, 334 N.W.2d 326, 330 (Iowa 1983).
However, medical testimony regarding whether an accident caused an
injury is not within the knowledge and experience of ordinary laypersons.
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Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 382-83, 101 N.W.2d 167,
171 (1960) (holding that in patient’s action for personal injury allegedly
resulting from a fall in defendant hospital, medical testimony that it was
possible that plaintiff’s subsequent physical condition was caused by the
fall was insufficient, standing alone, to take the issue of causation to the
jury). Such testimony is essentially within the domain of testimony from a
medical expert. Id. at 383, 101 N.W.2d at 171. Before such testimony can
be considered competent, there must be sufficient data upon which the
expert judgment can be made. The facts must be sufficient to allow the
expert to reach a conclusion that is “more than mere conjecture or
speculation.” Stortenbecker, 334 N.W.2d at 330-31. Without the medical
testimony, a jury is left to resort to conjecture in determining causation.
Chenoweth v. Flynn, 251 Iowa 11, 16, 99 N.W.2d 310, 313 (1959). The rule
is the same with respect to injuries to animals. See Winter v. Honeggers’ &
Co., 215 N.W.2d 316, 323 (Iowa 1974) (holding veterinarian testimony that
the negligent design of a hog confinement facility possibly caused an illness
to hogs coupled with testimony that the hogs were not affected with the
illness before the use of the facility was sufficient on the question of
causation); Miller v. Economy Hog & Cattle Powder Co., 228 Iowa 626, 636-
37, 293 N.W. 4, 9 (1940) (holding that, in suit for damages for death of
sheep allegedly caused by feeding a product purchased from defendant,
testimony from several veterinarians who examined the sheep on various
occasions and who also made a number of post mortem examinations was
sufficient on causation).
As this court in Hildebrand & Son v. Black Hawk Oil Co. noted,
the plaintiff is bound, as a necessary element of its case, to
show that the injuries which its hogs suffered were the direct
result of the feeding of this preparation to them. There is no
expert testimony introduced in this case, there seems to have
20
been no post mortem of the dead hogs, and there is no
testimony directed to the point that the injury to this herd of
hogs was the result of the feeding of the preparation to them.
It is also to be remembered in cases of this character that in
the course of events all animals die; in other words death is
inherent in all animal creation. Equally so all animal creation
is subject to many ailments, ills, and diseases, resulting in
death or injury to the animal. Therefore, in a case of this kind,
proof that the animal died or was permanently injured does not
establish a case for the plaintiff. In short, plaintiff alleges that
these hogs died and injury to the balance of the herd was
caused by the feeding of this preparation to them. Plaintiff is
bound to prove this else it has not made out a case. The
evidence is wholly wanting to connect the death of these hogs
with the feeding of this preparation, and equally so as to their
stunted growth.
205 Iowa 946, 947-48, 219 N.W. 40, 40-41(1928) (citation omitted).
2. Analysis. The plaintiffs produced three witnesses concerning the
dogs’ injuries. Lori Fortune, an assistant dog trainer, testified that her
training included identifying injuries and the cause of injuries to the dogs.
She further testified that her training indicated to her what may have
caused the injuries. She explained that in her experience a track that has
inconsistent surfaces, such as Bluffs Run had, varying between hard and
soft spots, can injure dogs. Hard spots she said could cause broken bones
and loose spots could cause muscle and ligament damage. Over
defendants’ objection that the witness was not qualified to testify
concerning causation of the dogs’ alleged injuries, the witness was allowed
to give her opinion that the majority of the injuries to the plaintiffs’ dogs
came from poor track conditions.
Randy Schaben testified that he raised greyhounds. Like Fortune,
Schaben described the Bluffs Run track in 2000 as having an inconsistent
surface—there were hard and soft spots on the surface of the track. He
described the inconsistency this way: “The easiest way to probably explain
it would be like running from a grassy lawn onto a sidewalk and then back
21
into grass . . . . It’s just inconsistent footing, so to speak.” He further
testified that in 2000 his dogs suffered a lot of injuries at the track.
James Lovely, a dog trainer who also raced greyhounds, testified that
for a period of sixty and ninety days there were more dog injuries at Bluffs
Run than there should have been. Although he was not sure what was
causing so many injuries, his personal opinion was that there was a hard
pan directly under the surface of the track.
The plaintiffs also produced evidence from engineers who tested the
soil on the track and who confirmed that the track conditions went from
hard to soft, conditions that could be “aggressive on a dog’s paws.”
Beverly Yates, one of the owners of Yates Kennel, testified that the
kennel was claiming damages for injuries to twenty-four dogs for the year
2000. A list of the dogs and their injuries is included in an exhibit in
evidence. However, there was no medical testimony that attributed the
cause of those injuries to race track conditions. This failure of proof was
fatal to Yates Kennel’s negligence claim. Fortune’s testimony attributing the
cause of a majority of the injuries to the track conditions was conjecture
and therefore not sufficient to overcome this flaw.
We agree with the defendants that evidence of increased injuries to
dogs for a period of time was anecdotal, at best. Moreover, Fortune
admitted that many other factors can account for injuries to greyhounds.
These factors, she admitted, include genetics, conditioning, accidents at the
kennel or while the dogs are being transported, dogs bumping into each
other during the races, dogs racing while already injured, and the natural
effects of racing on the body of a dog. Fortune conceded that the exhibit
listing the injuries had no reference to track conditions but did have
references to dogs falling and making contact with other dogs. A
veterinarian called by the defendants confirmed that there are numerous
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causal factors related to greyhound injuries including genetics, where and
how the dog was reared, nutrition, physical conditioning, type of
competition, and a dog racing without adequate rest or with injury.
VII. Disposition.
In sum, we conclude as a matter of law that the plaintiffs failed to
produce sufficient evidence of their slander and negligence claims for
submission of those claims to the jury. Accordingly, the district court erred
in overruling the defendants’ motion for directed verdict. We therefore
affirm the court of appeals decision and reverse the judgment of the district
court. We remand for entry of a judgment in favor of the defendants.
COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.
All justices concur except Larson, J., who takes no part.