This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2437

 

 

Steven Iverson,

Appellant,

 

vs.

 

Hubbard Broadcasting, Inc.,

d/b/a KSTP-TV,

Respondent.

 

 

Filed September 12, 2006

Affirmed
Forsberg, Judge*

 

Ramsey County District Court

File No. C2-04-011543

 

 

Steven Iverson, 111 East Kellogg Boulevard, Apartment 1606, St. Paul, MN 55101 (pro se appellant)

 

Paul R. Hannah, Kelly & Berens, P.A., 3720 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Minge, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            On appeal in this defamation action, appellant argues that because genuine issues of material fact exist, the district court erred by entering summary judgment.  Because appellant cannot prove that respondent published a false statement, and a false statement is an essential element of a defamation claim, we affirm.

FACTS

Appellant Steven Iverson initiated this defamation action against respondent Hubbard Broadcasting, Inc., based on a report that KSTP-TV broadcasted in November 2002.  The report discussed a separate defamation action appellant filed against Robert Shogren.

            In January 2001, Shogren called 911 after he observed a vehicle weaving in its lane and crossing or touching the fog line and the line dividing the lanes.  Shogren believed that the driver might be impaired.  State Patrol Trooper Troy McCormack responded to the call and located the vehicle, which appellant was driving.  McCormack observed appellant’s vehicle make contact with the lane-dividing line twice within a one-quarter mile stretch of road. McCormack pulled the vehicle over and administered several field sobriety tests.  Although McCormack observed some signs of impairment, he concluded that appellant was not dangerously impaired and was safe to drive; no citation was issued, and appellant was allowed to leave the scene.  Appellant subsequently sued McCormack, claiming a violation of his Fourth Amendment rights.  The federal district court entered summary judgment in favor of McCormack and the Eight Circuit affirmed.  Iverson v. McCormack, 49 F. App’x 83 (8th Cir. 2002).

            After Shogren filed an affidavit in appellant’s case against McCormack, appellant sued Shogren, alleging that he made false and defamatory statements in his 911 call.  See Iverson v. Shogren, No. A03-1299, 2004 WL 885769 (Minn. App. Apr. 27, 2004) (affirming district court’s entry of summary judgment in favor of Shogren).  Shogren called KSTP’s viewer tip line, and explained that he was being sued based on a 911 call reporting a potentially impaired driver.  He also told the news station that he hoped to persuade the legislature to protect 911 callers who make good-faith reports.  KSTP reporter Kristin Stinar contacted Shogren and wrote the story that eventually appeared on the newscast.  To prepare for her report, Stinar obtained the state’s brief filed in appellant’s litigation against McCormack, as well as the Eight Circuit’s opinion affirming the entry of summary judgment.  She also interviewed Shogren, appellant, and McCormack’s supervisor at the state patrol.

            In introducing a report broadcasted on KSTP on November 7, 2002, the news anchor referred to the high number of 911 calls police officers receive each day, and noted that many of the calls are “from good Samaritans who call to report bad drivers.”  The news anchor then stated that a “man who called to report what he thought was a drunk driver wound up getting sued for his good deed” and this man was “trying to get the law changed to protect other 911 callers from similar situations.”  The news program then transitioned to Stinar’s report.  Shogren appeared on camera and explained that he called 911 after he observed a vehicle driving at varying speeds and also driving over the fog line and the line dividing the lanes.  Stinar stated that “[t]he state patrol responded, thought [appellant’s] driving was erratic and pulled him over.  Based on field sobriety tests the trooper let him go.”  Stinar next explained that, one year later, appellant filed a complaint against Shogren, claiming that Shogren filed a false report and appellant “experienced anger and humiliation” when asked to perform field sobriety tests.  The rest of the report discussed Shogren’s concern that the lawsuit would discourage people from calling 911, and he wanted the state legislature to extend the state’s good-Samaritan law to protect 911 callers.  At the end of the report, one of the news anchors commented that appellant refused an on-camera interview but wanted viewers to know that his lawsuit would “inform people that if they are going to call [911], they better not be lying about it.”

            In November 2004, appellant filed a complaint against respondent, alleging that the news report’s statement that the state trooper observed erratic behavior was defamatory, as was the report’s implication that appellant was driving while impaired.  The district court granted respondent’s motion for summary judgment, and this appeal followed.

D E C I S I O N

            The plaintiff in a defamation action bears the burden of proving three elements: (1) a false statement; (2) publication of the statement to a third party; and (3) harm to the plaintiff’s reputation.  Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003).  A private individual may recover actual damages from a media defendant upon proof that the defendant knew or should have known in the exercise of reasonable care that the published statement was false.  Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491 (Minn. 1985).  The district court entered summary judgment in favor of respondent based on its determination that appellant could not show that the news report included a false statement.  On appeal from summary judgment, this court first determines whether any genuine issues of material fact exist, and, if not, whether the district court erred in applying the law to the facts.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995).  Summary judgment is appropriate when a plaintiff has not proven an essential element of a claim.  Id.  The record supports the district court’s conclusion that appellant has not presented a genuine issue of material fact and that he has not met his burden of proving that KSTP broadcasted a false statement.

            A published true statement, however disparaging, is not actionable as defamation.  Keuchle v. Life’s Companion P.C.A., Inc., 653 N.W.2d 214, 219(Minn. App. 2002).  A statement need not be literally true in every part, but must be true in its overall effect.  Id. (“Minor inaccuracies and details are not significant if the statement is true in substance.”).  “Inaccuracies of expression or detail are immaterial,” and a statement is substantially true if “its gist or sting is true [and] it produces the same effect on the mind of the recipient which the precise truth would have produced.”  Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986) (quotation omitted).  Whether a statement is substantially accurate is a question of law for the court to determine.  Id.

            Appellant contests the veracity of Stinar’s statement that “[t]he state patrol responded, thought [his] driving was erratic and pulled him over,” and the implication that he was driving impaired.  But the record demonstrates that this statement is substantially true.  McCormack stated that he stopped appellant’s vehicle based on the information Shogren provided and McCormack’s direct observations of the vehicle.  In a deposition, McCormack acknowledged that he might deem the specific driving behavior he witnessed “errant” rather than “erratic,” but paired with Shogren’s call, he could not say appellant was not driving erratically on the night in question.  The report stated only that the state patrol believed appellant’s driving was erratic; Stinar did not limit her statement to McCormack’s direct observations.  The report conveyed the message that, overall, McCormack believed appellant’s driving was erratic.  A statement that presents a supportable interpretation of the underlying situation is not false for purposes of defamation.  Hunter v. Hartman, 545 N.W.2d 699, 707 (Minn. App. 1996).  Viewed in context, the gist of the statement is that appellant’s driving raised concerns significant enough that another driver reported him and the state patrol stopped his vehicle.  Had the report used “errant” rather than “erratic,” the viewer would still be left with the impression that the trooper determined that appellant’s driving warranted an inquiry of the driver.  KSTP truthfully reported the circumstances that led to appellant’s lawsuit, and its statements were substantially true.

Appellant’s contention that the news report falsely implied that he was driving while impaired similarly finds no factual support in the record.  First, McCormack determined that appellant was impaired to some degree, although not to an illegal level.  Second, the language used in KSTP’s report carefully implies only that Shogren initially believed appellant was driving while impaired.  The news anchor introduced the story stating that Shogren called to report “what he thought was a drunk driver.”  The report later noted that Shogren “thought he saw a drunk driver” but followed the statement with, “[b]ased on the field sobriety tests the trooper let him go.”  The report clearly indicates that, despite initial concerns by Shogren and McCormack, appellant was not illegally driving while impaired.

Context is important when determining whether statements are false and defamatory.  Schlieman v. Gannett Minn. Broadcasting, Inc., 637 N.W.2d 297, 304 (Minn. App. 2001).  The context in which the contested statements arose demonstrates that KSTP broadcasted a report in which the main story was that a man was sued for calling 911.  The report provided the main details that led to that lawsuit:  Shogren called 911 to report a potentially drunk driver.  Appellant cannot prove the essential element that the report included false statements, and therefore the district court did not err by entering summary judgment for respondent.

Affirmed.