Burns v. Denver Post, Inc.

RULAND, Judge,

dissenting.

I respectfully dissent.

Initially, I disagree with the majority’s characterization of the word “deserted” as the expression of an opinion. I have no quarrel with the statement in Bucher that “[o]nce a court needs to speculate concerning the meaning” (emphasis added) of a purportedly defamatory statement, then the statement is an opinion rather than a factual assertion. However, here, to invest the term “deserted” with connotations of approbation is not a speculative venture. Whether considered in its every-day sense or as a legal concept, the term invariably implies an unjustified forsaking of a solemn obligation. And this obvious implication of the term was made even more apparent by its juxtaposition to the report of Sergeant Burns’ tragic injuries.

An essential inquiry in any libel suit is whether a particular statement could reasonably have been understood to be defamatory. See Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979); Restatement (Second) of Torts § 559, Comment e (1977). Here, the statement is reasonably interpreted as attributing to Ms. Burns an act of “the basest ingratitude . . . deserving the contempt of all right minded people.” Smith v. Smith, 73 Mich. 445, 41 N.W. 499 (1889). Hence, I would characterize defendant’s news report as a factual statement of a past event and thus actionable as being defamatory.

Furthermore, I cannot accept the majority’s stringent test for distinguishing fact from opinion. Few, if any, words carry such a precise meaning as to be understandable in only one way. Thus, in practical effect, the majority’s test will place virtually any statement within the protected bounds of being opinion, rather than fact.

Nor do I view Burns v. Denver Post, Inc., Colo.App., 606 P.2d 1310 (1979) as disposi-tive here. First, the publication at issue in that case did not state that Sergeant Burns’ wife and children had “deserted” him. Rather, the article only said that Ms. Burns had divorced him because she “couldn’t live with a blind man.” Secondly, while a petition for writ of certiorari was denied in that case, such denial does not necessarily constitute approval of the Court of Appeals opinion. See C.A.R. 35(f) (1979 Cum.Supp.). Thus, in my view, this court should address the appellant’s other contentions for reversal.