Funk v. Lincoln-Lancaster Cty. Crime Stoppers , 294 Neb. 715 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/09/2016 08:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
Cite as 294 Neb. 715
Shayla Funk, appellee, v. Lincoln-Lancaster County
Crime Stoppers, Inc., appellee, and
City of Lincoln, appellant.
___ N.W.2d ___
Filed September 9, 2016. No. S-15-743.
1. Political Subdivisions Tort Claims Act: Judgments: Appeal and
Error. In actions brought pursuant to the Political Subdivisions Tort
Claims Act, the factual findings of the trial court will not be disturbed
on appeal unless clearly wrong; however, questions of law are reviewed
independently of the decision reached by the court below.
2. Libel and Slander: Appeal and Error. Whether a communication is
privileged by reason of its character or the occasion on which it was
made is a question of law, which an appellate court resolves indepen-
dently of the determination reached by the court below.
3. Damages: Appeal and Error. A fact finder’s decision as to the amount
of damages will not be disturbed on appeal if it is supported by the
evidence and bears a reasonable relationship to the elements of the dam-
ages proved.
4. Libel and Slander: Words and Phrases. Conditional or qualified privi-
lege comprehends communications made in good faith, without actual
malice, with reasonable or probable grounds for believing them to be
true, on a subject matter in which the author of the communication has
an interest, or in respect to which he or she has a duty, public, personal,
or private, either legal, judicial, political, moral, or social, made to a
person having a corresponding interest or duty.
5. Libel and Slander. When a party making a defamatory statement takes
no steps to investigate but relies entirely on information received from
another without verification, he or she has not acted as a reasonably
prudent person and lacks probable or reasonable grounds for making
the defamatory statement, in which event the statement may not be pro-
tected by a qualified privilege.
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
Cite as 294 Neb. 715
6. Pleadings. An affirmative defense raises new matter which, assuming
the allegations in the petition to be true, constitutes a defense to the
merits of a claim asserted in the petition.
7. Libel and Slander: Trial. The failure to request a retraction under Neb.
Rev. Stat. § 25-840.01 (Reissue 2008) constitutes an affirmative defense
which must be raised prior to trial.
8. Damages: Appeal and Error. The amount of damages to be awarded is
a determination solely for the fact finder, and its action in this respect
will not be disturbed on appeal if it is supported by evidence and bears
a reasonable relationship to the elements of the damages proved.
9. Damages: Judgments: Appeal and Error. With respect to damages, an
appellate court reviews the trial court’s factual findings under a clearly
erroneous standard of review.
10. Libel and Slander: Damages. In an action for defamation, the damages
which may be recovered are (1) general damages for harm to reputation;
(2) special damages; (3) damages for mental suffering, and (4) if none
of these are proved, nominal damages.
11. Rules of the Supreme Court: Pleadings: Notice. The Nebraska Rules
of Pleading in Civil Actions, like the federal rules, have a liberal plead-
ing requirement for both causes of action and affirmative defenses, but
the touchstone is whether fair notice was provided.
12. Actions: Pleadings. Prayers for equitable relief have no place or role in
a law action.
13. Actions: Pleadings: Equity. In Nebraska, the essential character of a
cause of action and the remedy or relief it seeks as shown by the allega-
tions of the complaint determine whether a particular action is one at
law or in equity.
14. Libel and Slander. In order to survive as a separate cause of action, a
false light claim must allege a nondefamatory statement. If the state-
ments alleged are defamatory, the claims would be for defamation only,
not false light privacy.
15. Trial: Evidence: Appeal and Error. To constitute reversible error in
a civil case, a trial court’s admission or exclusion of evidence must
unfairly prejudice a substantial right of the litigant complaining about
the ruling.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed in part, and in part vacated.
Jeffery R. Kirkpatrick, Lincoln City Attorney, and Elizabeth
D. Elliott for appellant.
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
Cite as 294 Neb. 715
Vincent M. Powers, of Powers Law, for appellee Shayla
Funk.
Wright, Miller-Lerman, Cassel, and K elch, JJ., and Moore,
Chief Judge.
K elch, J.
I. NATURE OF CASE
Shayla Funk sued Lincoln-Lancaster County Crime Stoppers,
Inc. (Crime Stoppers), and the City of Lincoln (City) after still
images from a video of Funk conducting a legitimate transac-
tion at an automated teller machine (ATM) were placed on
the Crime Stoppers Web site with the text “This young lady
doesn’t look like your typical crook, but she is! She used some-
one’s stolen credit card . . . . If you know who she is, leave us
a tip HERE!” The Lancaster County District Court found in
Funk’s favor and awarded her injunctive relief and damages in
the amount of $259,217.60. The City appeals.
II. BACKGROUND
On May 3, 2013, a West Gate Bank customer reported that
his debit card had been stolen and used to conduct an unau-
thorized transaction. Money had been withdrawn from the cus-
tomer’s account using one of the bank’s ATM’s.
1. Investigation
An officer from the Lincoln Police Department (LPD)
began an investigation. The officer met with the bank cus-
tomer, who provided the officer with a bank statement show-
ing details of the unauthorized transaction. The officer then
talked to a teller from the bank and showed him or her the
bank statement. From the bank statement, the teller was able
to determine which ATM had been used to withdraw the
funds. The teller advised the officer that the teller would talk
to someone about getting a video of the security camera foot-
age of that ATM.
Sometime later, the officer returned to the bank to retrieve
the video. The officer testified that the bank knew what footage
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
Cite as 294 Neb. 715
to provide based on the bank’s records of the customer’s trans-
actions. The video depicted a female walking up to an ATM
and using a debit card to withdraw cash.
At trial, the officer testified that he had no reason to believe
that the female depicted in the video was not the person who
had used the stolen debit card. He testified that he had asked
the employees of the bank to give him the surveillance footage
of the unauthorized transaction and that is what the employees
said they did. He also testified that the customer’s detailed
bank statement corroborated that the video depicted the unau-
thorized transaction; the statement showed that the withdrawal
was made from an ATM on Cornhusker Highway in Lincoln,
Nebraska, on April 29, 2013, and the video depicted the ATM
at the same address and on the same date. However, the video
did not have a time stamp, and there was no evidence that the
officer would have been able to obtain the time of the surveil-
lance from the video’s metadata.
The officer was unable to identify the person in the video,
so he sent an e-mail to Jared Minary, LPD’s audio and video
technician, requesting that Minary capture still images from
the video and have them posted to the Crime Stoppers Web
site. Crime Stoppers is a nonprofit organization that allows
people to anonymously provide information about criminal
activity. This is achieved either through a Web-based program
called TipSoft or through the Crime Stoppers hotline. A “Crime
Stoppers” Web site is owned by the City and operated by LPD.
The Web site hosts photographs of suspected criminals, links
tipsters to TipSoft, and provides the telephone number for
Crime Stoppers. Crime Stoppers then provides the information
to law enforcement in an effort to solve crimes.
Minary captured still images from the ATM video and for-
warded them to Shane Winterbauer, another LPD officer, so
that Winterbauer could post them on the Web site. At trial,
Minary was asked what he did to make sure he had captured
the correct still image to forward to Winterbauer. Minary
replied that he verified the characteristics of the person in the
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
Cite as 294 Neb. 715
video with the physical characteristics of the suspect as listed
in the investigating officer’s report. Minary also testified that
he e-mailed the images to the officer and that the officer did
not indicate anything was wrong with the images. Minary testi-
fied that the video did not have a date or time stamp on it, so
he could not verify it in that manner.
2. Posting on Crime Stoppers
Web Site
After receiving the images from Minary, Winterbauer
posted them on the Crime Stoppers Web site and added a
headline and text. The headline stated, “Takes All Kinds.” The
text stated, “This young lady doesn’t look like your typical
crook, but she is! She used someone’s stolen credit card and
made a fake deposit at the ATM, then withdrew some cash. If
you know who she is, leave us a tip HERE!” Winterbauer tes-
tified that the language in the text was used to draw attention
to the site. The images and text were uploaded onto the Web
site on May 17, 2013.
This posting formed the basis for Funk’s defamation action
against Crime Stoppers and the City. However, evidence of
other instances of alleged defamation were received at trial.
On May 22, 2013, the same images posted on the Crime
Stoppers Web site were used in a Crime Stoppers segment
airing on local television station KOLN/KGIN 10/11 News
(10/11). A video of the segment was not preserved for trial, but
Winterbauer testified that he had e-mailed 10/11 staff on May
21, advising them of the cases to be highlighted that week,
including the case involving Funk.
On May 23, 2013, a link to the Crime Stoppers Web site
was posted to the Crime Stoppers Facebook page. The post
contained the same text as the Web site, but the photograph in
the post showed only Funk’s torso and not her face.
As a result of these publications, LPD received multiple
tips that the female in the video was Funk. On or about June
15, 2013, the investigating officer interviewed Funk. Funk
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
Cite as 294 Neb. 715
admitted that she was the person in the video, but denied using
a stolen credit card. After the interview, Funk was cited for
unauthorized use of a financial transaction device. Although
Funk had identified herself as the person in the video, the post
was not removed from the Crime Stoppers Web site or the
Facebook page.
Sometime between June 15 and July 18, 2013, 10/11 aired
a news broadcast about the Crime Stoppers program. A video
of the broadcast was published to the jury. The broadcast
explained how Crime Stoppers works and how anonymous
tips help officers solve numerous crimes in the area. As part of
the story, four examples were provided. One of the examples
was the case involving Funk. As still images of Funk and
the ATM appeared on screen, a female voice could be heard
saying, “ATM video led officers to Sheila [sic] Funk and a
stolen credit card.” Then, Winterbauer appeared, saying, “We
confronted her with the fact that the card was somebody else’s
and she couldn’t come up with an explanation for that.” The
female voice later states, “Each of these cases were [sic] solved
because of information from the public.”
On July 5, 2013, Crime Stoppers received a tip, which
provided, in relevant part, “‘“She doesn’t look like the typi-
cal crook because she isn’t a crook. You guys are ruining an
innocent person’s life by putting her picture on 10/11 . . . even
after you had her name and she had met with the police.”’”
Minary immediately removed the post from the Crime Stoppers
Web site. However, as of the time of trial, the post was still on
Facebook. Prior to trial, Funk never asked that either of the
posts be removed.
On July 10, 2013, a subpoena was faxed to Funk’s bank,
requesting her banking transactions on the days surrounding
the crime. The bank responded the same day with records
showing that Funk had engaged in a legitimate transaction with
her own account the same day. On July 18, the deputy county
attorney wrote Funk a letter notifying her that charges were not
filed and that she did not have to appear in court.
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
Cite as 294 Neb. 715
3. Facts R elevant
to Damages
At the time of the publication, Funk was working for Grand
Island Physical Therapy (GIPT), which required her to do
occupational therapy at different schools around Nebraska.
She was contracted to work 1,600 hours a year, August to
August, for $31 per hour. If Funk worked more than 1,600
hours, she was to earn $32.86 per hour. Funk also received
benefits through her employment, including a retirement plan
to which her employer matched 5 percent.
At trial, Funk testified that in early July 2013, after repre­
sentatives of the schools contacted GIPT about the Crime
Stoppers incident, Funk was placed on an unpaid leave. Funk
testified that after talking to her supervisors about it, she began
to look for another job, because she did not feel that they
believed her when she told them she was innocent.
On July 18, 2013, Funk e-mailed her supervisor to let him
know that she had another job offer in Lincoln and that she
was seriously considering that option. Funk testified that she
had signed a contract with GIPT for the 2013-14 school year
and wanted to see if she could get out of it. Funk’s supervisor
responded, encouraging Funk to take the job in Lincoln.
On July 22, 2013, Funk submitted her resignation to GIPT.
Her contract with GIPT that year was to end August 11. Funk
testified that because she had already worked 1,600 hours that
year, she would have earned $32.86 per hour for the remainder
of her 2012-13 contract. Funk testified that most of her work
took place during the school year and that during the months of
June and July, she was working only 16 to 24 hours per week.
But Funk testified that from August 1 to 11, 2013, she would
have been working 40 hours per week.
On the same day that Funk resigned from GIPT, she accepted
the job in Lincoln with Select Rehabilitation, which job began
on August 19, 2013. Funk testified that no one from Select
Rehabilitation questioned her about the Crime Stoppers inci-
dent. She testified that when she applied to work at Select
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
Cite as 294 Neb. 715
Rehabilitation, she represented that she wanted to quit GIPT
because she was “sick of traveling and wanted to change from
school-based.” The starting pay at Select Rehabilitation was
$30 per hour, which was $1 per hour less than her pay with
GIPT. At the time of trial, Funk had received a raise and was
earning $30.90 per hour. Select Rehabilitation does not match
Funk’s 401K contributions.
During the time that Funk worked for GIPT, she also worked
part time for Quantum Health Professionals to make up the
hours that she did not get with GIPT in the summer. The Crime
Stoppers incident did not have an effect on her employment
with Quantum Health Professionals, but she left that job in
2014 and began working for another company part time. Funk
testified that the Crime Stoppers incident did not have any
adverse employment impact since she began working for Select
Rehabilitation.
At trial, Funk called five witnesses to testify about the
effect of the Crime Stoppers incident on Funk and Funk’s
reputation within the community of Ewing, Nebraska, Funk’s
hometown. The first two witnesses were Funk’s cousins, the
third witness was a friend of Funk, the fourth witness was
Funk’s friend’s husband, and the fifth witness was Funk’s
fiance. All of the witnesses heard about the Crimes Stoppers
incident from either Funk, Funk’s fiance, or people in Ewing.
Although they testified that Funk did not lose any friends over
the incident, they believed that it had embarrassed and humili-
ated Funk. A few of the witnesses testified that some people
in Ewing directed comments to Funk that were “poking fun,”
making jokes like “‘everybody hide your debit cards’” when
Funk walked into the room.
4. Procedural Posture
and Trial
In March 2014, Funk filed a complaint against Crime
Stoppers, alleging that the postings on the Crime Stoppers
Web site constituted libel, slander, and defamation, and that it
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
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violated Funk’s privacy by placing her in a false light. Funk
also alleged that these torts were done in a joint venture with
the City. In December 2014, the City was added as a defendant
and an amended complaint was filed to reflect the addition. In
the City’s answer, it raised as affirmative defenses, first, that
it was protected by sovereign immunity and, second, that any
statements made by the City were made in good faith and with-
out malice and were therefore protected by qualified privilege.
The City did not allege that Funk had failed to request a retrac-
tion and was therefore limited to special damages pursuant to
Neb. Rev. Stat. § 25-840.01 (Reissue 2008). After it was deter-
mined that the City had waived immunity under the Political
Subdivisions Tort Claims Act by purchasing excess insurance,
the case was set for trial.
The claim against Crime Stoppers was submitted to a jury
trial, and the claim against the City was submitted to the dis-
trict court as required by the Political Subdivisions Tort Claims
Act. Ultimately, the trials were done at the same time. The
City’s opening statement was conducted outside the presence
of the jury, and the jury was brought in for the opening state-
ments of Funk and Crime Stoppers. At the close of Funk’s
case, the City moved for directed verdict and, at the close of its
own case, renewed the motion; both motions were overruled.
In lieu of a closing statement, the City submitted a brief. The
City’s counsel was excused just before the jury instruction con-
ference and was not present at the conference.
The jury found that Funk had met her burden of proof
and was entitled to $75,000 against Crime Stoppers. It was
not specified whether these damages were economic, noneco-
nomic, or both. Entry of judgment was deferred pending the
court’s decision in the case against the City.
After briefs were submitted, the district court found the City
liable for defamation. The court’s order stated in part:
[J]udgment is entered in favor of [Funk] and against the
[City] in the amount of $259,217.60. Judgment is entered
in favor of [Funk] and against [Crime Stoppers] in the
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FUNK v. LINCOLN-LANCASTER CTY. CRIME STOPPERS
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amount of $75,000. The judgment against Crime Stoppers
and $75,000 of the judgment against [the City] is a joint
and several judgment. The remainder of the judgment
against the [City] is its sole obligation. The defendants
are ordered to pay the court costs.
In addition to the monetary damages, the court ordered that
the City was to publish a retraction, which, among other things,
would affirmatively state that LPD had failed to conduct a
simple investigation that would have resulted in finding that
Funk was innocent.
III. ASSIGNMENTS OF ERROR
The City assigns, combined and restated, that the district
court erred (1) in finding that qualified privilege did not apply,
(2) in finding that Funk was entitled to general damages, (3) in
finding that the Facebook post was defamatory, (4) in awarding
damages not supported by the evidence, and (5) in overruling
its motion for directed verdict for the violation of privacy by
false light claim.
IV. STANDARD OF REVIEW
[1] In actions brought pursuant to the Political Subdivisions
Tort Claims Act, the factual findings of the trial court will
not be disturbed on appeal unless clearly wrong1; however,
questions of law are reviewed independently of the decision
reached by the court below.2
[2] Whether a communication is privileged by reason of its
character or the occasion on which it was made is a question
of law, which an appellate court resolves independently of the
determination reached by the court below.3
[3] A fact finder’s decision as to the amount of damages will
not be disturbed on appeal if it is supported by the evidence
1
Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).
2
See, id.; Scholl v. County of Boone, 250 Neb. 283, 549 N.W.2d 144 (1996).
3
See Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).
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and bears a reasonable relationship to the elements of the dam-
ages proved.4
V. ANALYSIS
1. Qualified Privilege
The City first assigns that the district court erred by find-
ing that qualified privilege did not apply. The district court
determined that the privilege did not apply, because some
of the recipients of the communication were located outside
of Lincoln and did not have an interest in solving crime in
Lincoln. Although our reasoning differs from that of the dis-
trict court, we agree that qualified privilege did not apply and
affirm the district court’s finding of the same.
[4] As the district court noted, conditional or qualified
privilege comprehends communications made in good faith,
without actual malice, with reasonable or probable grounds
for believing them to be true, on a subject matter in which the
author of the communication has an interest, or in respect to
which he or she has a duty, public, personal, or private, either
legal, judicial, political, moral, or social, made to a person
having a corresponding interest or duty.5
“Good faith” has been defined in part as “[a] state of mind
consisting in (1) honesty in belief or purpose [and] (2) faith-
fulness to one’s duty or obligation.”6 The City argues that the
officer honestly believed, based upon information provided
by the bank, Funk was the person who committed a criminal
act and that therefore, the statement is subject to a qualified
privilege. Indeed, the officer did testify, “At that point I had no
reason to believe that there would be any other person (indis-
cernible), so I provided the [bank] statements, asked the bank
to give me the surveillance footage of that actual transaction
and that’s what they told me they did.”
4
See Bradley T. & Donna T. v. Central Catholic High Sch., 264 Neb. 951,
653 N.W.2d 813 (2002).
5
Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987).
6
Black’s Law Dictionary 808 (10th ed. 2014).
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On the other hand, Funk argues that the statement was not
made in good faith, because the officer failed to take any steps
to verify that the video he received from the bank depicted the
unauthorized transaction. We find that the officer’s failure to
investigate relates more to whether he had reasonable or prob-
able grounds for believing the statement to be true. In this case,
we determine that the officer did not have such grounds, and
therefore the qualified privilege does not apply.
[5] When a party making a defamatory statement takes no
steps to investigate but relies entirely on information received
from another without verification, he or she has not acted as
a reasonably prudent person and lacks probable or reasonable
grounds for making the defamatory statement, in which event
the statement may not be protected by a qualified privilege.7
The critical evidence before the officer was the video of
Funk at the ATM. The video had no transactional stamp or
time stamp to provide any verification that Funk was the per-
son who committed the unauthorized transaction. The officer
testified that when he initially contacted the bank, he was
informed that someone from the security department would
be able to provide surveillance footage of the unauthorized
transaction. The officer later testified that although the video
was given to him by a bank teller, he did not know who cre-
ated it.
The officer relied entirely upon the assertion of a bank
employee who, in turn, must have relied upon an assertion of
another unknown employee from the bank’s security depart-
ment. Without a transactional stamp or time stamp, the video
could be depicting any person who happened to unfortunately
use the same ATM on the same day as the unauthorized trans-
action, which is what happened in this case.
Additionally, the context of the situation needs to be con-
sidered. The video was the key evidence used to identify
Funk and cite her with a criminal law violation which was
intended to lead to a criminal prosecution. Considering the
7
See Scott Fetzer Co. v. Williamson, 101 F.3d 549 (8th Cir. 1996).
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serious ramifications of the statement, it would not be unrea-
sonable as part of the duties of an investigating officer to
have made further inquiry at the bank. The officer might have
asked, for example, whether the person in the video matched
the person who was conducting the unauthorized transaction
and, if so, how the bank determined that to be correct without
a time stamp or transactional stamp. This would not be an
onerous requirement. Because there was no evidence that the
officer made any inquiries about the video, and, instead, the
officer relied entirely on unverified representations made by
the bank, we find that the defamatory statement was made
without reasonable or probable grounds for believing it to
be true. Accordingly, the district court did not err in finding
that the publication did not have the protection of a quali-
fied privilege.
2. § 25-840.01
The City next assigns that the district court erred in find-
ing that the publication was prompted by actual malice and
in awarding Funk general damages. The district court found
that Funk was entitled to general damages, despite the City’s
argument that Funk was limited to special damages pursuant to
§ 25-840.01. That statute provides, in relevant part:
(1) In an action for damages for [defamation], the
plaintiff shall recover no more than special damages
unless correction was requested as herein provided and
was not published. Within twenty days after knowledge
of the publication, plaintiff shall have given each defend­
ant a notice by certified or registered mail specifying
the statements claimed to be libelous or to have invaded
privacy as provided by section 20-204 and specifically
requesting correction. . . . The term special damages, as
used in this section, shall include only such damages as
plaintiff alleges and proves were suffered in respect to
his or her property, business, trade, profession, or occu-
pation as the direct and proximate result of the defend­
ant’s publication.
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(2) This section shall not apply if it is alleged and
proved that the publication was prompted by actual mal-
ice, and actual malice shall not be inferred or presumed
from the publication.
It is undisputed that Funk failed to request a retraction
within 20 days of her knowledge of the publication. However,
the district court found that § 25-840.01 did not apply,
because it concluded that the publication was prompted by
actual malice.
In Funk’s brief on appeal, Funk tells us that we need not
review the district court’s finding of malice, because the City
waived the limitation of damages when it failed to raise
§ 25-840.01 as an affirmative defense prior to trial. Indeed,
an affirmative defense must be pleaded to be considered in
the trial court and on appeal.8 The burden of both pleading
and proving affirmative defenses is upon the defendants, and
when they fail to do so, they cannot recover upon mere argu-
ment alone.9
[6] Thus, the question becomes whether a “failure to request
a retraction” under § 25-840.01 is an affirmative defense. We
have said that an affirmative defense raises new matter which,
assuming the allegations in the petition to be true, constitutes
a defense to the merits of a claim asserted in the petition.10
The rationale for requiring the defendant to plead a specific
defense is to set forth the defense so that the plaintiff may be
advised of the exact defense he or she will be required to meet
and the trial court may be informed as to the exact issues to
be determined.11
The City’s argument pursuant to § 25-840.01 was a new
matter that raised two new issues: (1) whether Funk failed
8
Nebraska Pub. Emp. v. City of Omaha, 244 Neb. 328, 506 N.W.2d 686
(1993), disapproved on other grounds, Salkin v. Jacobsen, 263 Neb. 521,
641 N.W.2d 356 (2002).
9
Id.
10
Id.
11
Id.
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to timely request a retraction and (2) whether the publication
was prompted by actual malice. If the City proved that Funk
failed to timely request a retraction, the City would not be
liable for general damages, unless Funk proved that the pub-
lication was prompted by actual malice. Because the City did
not plead “failure to request a retraction” as an affirmative
defense, Funk was not on notice that she would be required
to prove actual malice to rebut the statutory defense set forth
by § 25-840.01.
Further, although defamation is an intentional tort, an anal-
ogy can be drawn from affirmative defenses in negligence
actions. For example, a defendant seeking to mitigate damages
in a negligence action by reason of contributory negligence
must raise the issue of contributory negligence prior to trial
in order to successfully reduce damages.12 Here, the City was
also seeking to mitigate damages, albeit by reason of Funk’s
failure to request a retraction. Just like in a negligence action,
the City was required to raise the mitigation of damages issue
prior to trial.
[7] We therefore conclude that the failure to request a
retraction under § 25-840.01 constitutes an affirmative defense
which must be raised prior to trial. Because the City failed
to raise such defense, we find that it does not apply and that
Funk is entitled to general damages.
3. Facebook
The City next assigns that the district court erred in finding
that the Facebook post was defamatory, because the person
depicted in the photograph on the post is unidentifiable. The
district court found that the Facebook post was defamatory
and “embarked upon by the City alone,” and the court used
the Facebook post as a justification for awarding Funk addi-
tional damages beyond those awarded by the jury in the trial
against Crime Stoppers.
12
See, Neb. Rev. Stat. § 25-21,185.09 (Reissue 2008); Hill v. City of
Lincoln, 249 Neb. 88, 541 N.W.2d 655 (1996).
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Although the Facebook photograph depicts only Funk’s
torso, the page links viewers to the post on the Crime Stoppers
Web site, where the full image can be seen. The City admits
that the post on the Crime Stoppers Web site is defamatory.
It is self-evident that regardless of whether the Facebook post
is defamatory, the posting of the link on Facebook increased
the readership of the post on the Crime Stoppers Web site and
likewise the harm to Funk’s reputation. Therefore, we conclude
that the district court properly considered the Facebook post
in awarding damages, and we need not determine whether the
post by itself was defamatory.
4. Damages
As noted, the district court awarded Funk damages in the
amount of $259,217.60, with $75,000 of that amount being
owed jointly and severally with Crime Stoppers. It also ordered
the City to publish several retractions. On appeal, the City
argues that the damages awarded by the district court were
improper, because they were based on speculation and con-
jecture. The City also argues that the award of injunctive
relief was improper, since such relief was not requested. After
considering each issue in turn, we affirm the district court’s
award of monetary damages, but reverse the award of injunc-
tive relief.
(a) Monetary Damages
The City argues that the damages awarded by the district
court were speculative and conjectural. To support its argu-
ment, the City points to statements in the damages section of
the August 5, 2015, order, such as: “At any time [the Crime
Stoppers incident] could impact [Funk’s] credit rating, her
ability to obtain a loan or mortgage, . . . even her potential for
custody in a custody of children dispute.” The City argues that
the district court’s award of general damages was improper,
because there was no evidence on the effect of Funk’s credit
rating, her ability to obtain a loan or mortgage, or her potential
for custody. The City made similar arguments with respect to
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other comments made by the district court. However, the City
glossed over the district court’s discussion on harm caused to
Funk’s reputation and mental well-being.
[8,9] The amount of damages to be awarded is a determina-
tion solely for the fact finder, and its action in this respect will
not be disturbed on appeal if it is supported by evidence and
bears a reasonable relationship to the elements of the damages
proved.13 With respect to damages, an appellate court reviews
the trial court’s factual findings under a clearly erroneous stan-
dard of review.14
[10] Under this standard of review, we must affirm the dis-
trict court’s award of damages, because the award is supported
by the evidence and bears a reasonable relationship to the
elements of the damages proved. In an action for defamation,
the damages which may be recovered are (1) general damages
for harm to reputation; (2) special damages; (3) damages for
mental suffering, and (4) if none of these are proved, nomi-
nal damages.15
Sufficient evidence supports that Funk’s reputation was
harmed as a result of the City’s defamatory statements. Not
only does the evidence show that the statements affected
Funk’s personal reputation in her hometown of Ewing, but it
is also clear that Funk’s reputation was harmed in the context
of her employment with GIPT. Further, sufficient evidence
also supports that Funk endured some emotional suffering.
Numerous witnesses testified that the statements embarrassed
and humiliated Funk. Additionally, Funk’s fiance confirmed
that Funk was embarrassed and humiliated, and he revealed
that Funk lost sleep over the incident.
13
BSB Constr. v. Pinnacle Bank, 278 Neb. 1027, 776 N.W.2d 188 (2009);
Lacey v. State, 278 Neb. 87, 768 N.W.2d 132 (2009); State ex rel. Stenberg
v. Consumer’s Choice Foods, 276 Neb. 481, 755 N.W.2d 583 (2008);
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1
(2008); Roth v. Wiese, 271 Neb. 750, 716 N.W.2d 419 (2006).
14
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
15
McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).
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With regard to the amount of damages sustained, Funk
was simply required to offer sufficient proof of damages so
that the fact finder could reach its award without awarding
an uncertain, speculative recovery.16 As we have said before,
“The amount of damages for pain, suffering, and emotional
distress inherently eludes exact valuation.”17 Accordingly, we
find that there was sufficient evidence to support the district
court’s award of monetary damages, and therefore find that
the City’s assignment of error with respect to damages is
without merit.
(b) Equitable Relief
[11] The City also argues that the district court erred in
awarding injunctive relief, because such relief was not requested
in Funk’s complaint. The Nebraska Rules of Pleading in Civil
Actions, like the federal rules, have a liberal pleading require-
ment for both causes of action and affirmative defenses, but
the touchstone is whether fair notice was provided.18 This is the
same standard adopted by the federal courts.19
We agree with the City that the averments in Funk’s com-
plaint do not raise the issue of retraction or any other equitable
relief. Nowhere in Funk’s second amended complaint does
she request a retraction. Funk claimed only to have “suffered
damages including the loss of her employment, loss of wages,
humiliation, inconvenience, mental anguish, loss of earning
capacity and damage to her reputation.”
[12] In countering, Funk claims that she did request equi-
table relief and points to the prayer in her complaint which
states, “WHEREFORE [Funk] seeks damages in an amount,
which will fairly and justly compensate her together with the
16
See Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993).
17
Id. at 823, 503 N.W.2d at 183.
18
Weeder v. Central Comm. College, 269 Neb. 114, 691 N.W.2d 508 (2005).
19
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007).
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costs of this action and such other and further relief as the
Court deems just.” (Emphasis supplied.) However, in actions
at law, we have stated that such general prayers for equitable
relief are mere surplusages and “gratuitous phrase[s],” reason-
ing that prayers for equitable relief have no place or role in
a law action.20 Although these statements were made while
Nebraska was a code-pleading state, we find no reason why
this principle does not apply to notice pleading as well.
[13] The action initiated by Funk was clearly an action at
law. In Nebraska, the essential character of a cause of action
and the remedy or relief it seeks as shown by the allega-
tions of the complaint determine whether a particular action
is one at law or in equity.21 Despite the gratuitous phrase in
Funk’s prayer, the essential character of Funk’s cause of action
for defamation was in law for damages and not for equity.
Accordingly, with this being an action at law for damages,
Funk was not entitled to equitable relief.
Because Funk filed her complaint as an action at law for
damages and not for equitable relief, we need not and do not
consider whether equitable relief in the form of a retraction is
an available remedy in a libel action. Although the attractive-
ness of the district court’s equitable relief is not lost upon this
court, we find the district court had the authority to award only
damages, and the portion of the district court’s order granting
equitable relief is hereby vacated.
5. False Light
[14] Finally, the City claims that the district court erred in
overruling its motion for a directed verdict for the violation of
privacy by false light claim. The City argues that a statement
20
See Tobin v. Flynn & Larsen Implement Co., 220 Neb. 259, 262, 369
N.W.2d 96, 99 (1985). See, also, Waite v. Samson Dev. Co., 217 Neb. 403,
348 N.W.2d 883 (1984); Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751
(1984).
21
Genetti v. Caterpillar, Inc, 261 Neb. 98, 621 N.W.2d 529 (2001); Dillon
Tire, Inc. v. Fife, 256 Neb. 147, 589 N.W.2d 137 (1999).
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alleged to be both defamatory and a false light invasion of
privacy is subsumed within the defamation claim and is not
separately actionable. Indeed, we have stated that “‘[i]n order
to survive as a separate cause of action, a false light claim must
allege a nondefamatory statement. If the statements alleged are
defamatory, the claims would be for defamation only, not false
light privacy.’”22
[15] However, to constitute reversible error in a civil case, a
trial court’s admission or exclusion of evidence must unfairly
prejudice a substantial right of the litigant complaining about
the ruling.23 The City fails to alert the court as to how this
ruling unfairly prejudiced the City, and it appears that the
district court attempted to award damages only for one cause
of action—defamation. We therefore conclude that this assign-
ment of error is without merit.
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s
finding that the communication was not made pursuant to a
qualified privilege and its finding that Funk was entitled to
both general and special damages. We also affirm the dis-
trict court’s monetary award. However, we vacate the district
court’s award of equitable relief.
A ffirmed in part, and in part vacated.
Heavican, C.J., and Connolly and Stacy, JJ., not participating.
22
Moats v. Republican Party of Neb., 281 Neb. 411, 428, 796 N.W.2d 584,
598 (2011) (quoting Dworkin v. Hustler Magazine Inc., 867 F.2d 1188 (9th
Cir. 1989), and citing Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L.
Ed. 2d 456 (1967)).
23
Tolliver v. Visiting Nurse Assn., 278 Neb. 532, 771 N.W.2d 908 (2009).