Keith L. Miller, Miller, Norman & Associates, Ltd., 403 Center Avenue, Suite 201, P.O. Box 1066, Moorhead, MN 56561-1066 (for Appellants)

David M. Petrocchi, Edward F. Klinger, Gunhus, Grinnell, Klinger, Swenson & Guy, Ltd., 215 North 30th Street, Post Office Box 1077, Moorhead, MN 56561-1077 (for Respondent C.C.)

Dean A. Hoistad, Gunhus, Grinnell, Klinger, Swenson & Guy, Ltd., 215 North 30th Street, P.O. Box 1077, Moorhead, MN 56561-1077 (for Respondent Oxman)

Richard P. Mahoney, Victor E. Lund, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55404 (for Respondent Lehman)

Laurie A. Willard, Cosgrove, Flynn & Gaskins, P.L.L.P., 2900 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent J.T.)

Bradley D. Lance, Taylor, Harrington, Rerat, Lance & Stofferahn, Suite 400, 6900 Wedgwood Road, Maple Grove, MN 55311 (for Respondent J.T.)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Foley, Judge.[*]

Everald and Sylvia Strom appeal summary judgments dismissing their claims for defamation against two nephews who allege that Everald Strom sexually abused them as children and their claims for defamation and negligence against the nephews' therapists. We conclude that Everald Strom is not a public figure, but affirm the court's ruling that the contents of letters submitted as part of a church investigation are conditionally privileged. In addition we decline to adopt a negligence cause of action recognizing a therapist's duty to third parties when repressed memories are recalled. Affirmed as modified.

Strom's nephew J.T. began in 1985 to recall memories of inappropriate sexual contact as a child. In 1990 J.T. began therapy with a clinical psychologist, Philip Oxman. During therapy J.T. recalled specific incidents of abuse by his uncle Everald Strom. Oxman attempted to further develop J.T.'s memories through one hypnosis session in 1990 and one in 1992.

J.T. told his cousin C.C. about his memories of sexual abuse. In 1992 C.C. recalled incidents in which he also had been sexually abused by Strom. C.C. declared his recollections publicly at Hillcrest Academy, a Lutheran Brethren school. After making these public statements, C.C. was hospitalized and began therapy with a psychiatrist, Terry Lehman.

In response to C.C.'s public accusations, the Church of Lutheran Brethren formed a committee to investigate and to reconcile the family members. The committee requested letters from J.T., C.C., Oxman, and Lehman.

J.T. and C.C. sued Strom, Strom's wife, and the Church of the Lutheran Brethren, Inc. in 1994, claiming damages for sexual abuse. The Stroms brought this separate action against J.T., C.C., Lehman, and Oxman alleging several causes of action including negligent therapeutic treatment by Lehman and Oxman, defamation in the letters J.T., Lehman, and Oxman submitted in the church investigation, and defamation in C.C.'s public statements at Hillcrest Academy.

The district court on summary judgment dismissed all of the Stroms' claims except the defamation claim against C.C. The Stroms appeal only the dismissal of the defamation and negligence claims.

On appeal the Stroms advance three arguments relating to their defamation and negligence claims: (1) that the district court erred in determining that Strom was a "public figure"; (2) that the district court erred in ruling that the publications by J.T., Oxman, and Lehman were conditionally privileged; and (3) that this court should adopt a cause of action recognizing a therapeutic duty to third parties when repressed memories are recalled.

If a communication is conditionally privileged or if the plaintiff is a public figure, actual malice must be proved. Id. at 256-57 (setting forth elements and effects of conditional privilege). Proof of actual malice requires a showing that the defendant "made the statement from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff." Id. at 257 (citation omitted). Whether an individual is a public figure for purposes of defamation is a question of law reviewed de novo. Hunter v. Hartman, 545 N.W.2d 699, 704 (Minn. App. 1996) (defining several types of public figures who may succeed in defamation cases only by showing they were defamed by statements made with "actual malice"). Whether a communication is conditionally privileged is also a question of law. Lewis v. Equitable Life Assur. Soc., 389 N.W.2d 876, 889 (Minn. 1986).

For purposes of defamation law, there are three types of public figures: (1) "involuntary" public figures; (2) "public figures for all purposes"; and (3) limited-purpose public figures. Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476, 483-84 (Minn. 1985) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S. Ct. 2997, 3009 (1974)).

The district court concluded that Strom was a public figure for the limited purpose of this litigation. The Stroms argue that the elements necessary to establish that Strom was a limited-purpose public figure were not established. An individual is a limited-purpose public figure when the evidence shows "(a) the existence of a public controversy, (b) the individual's purposeful or prominent role in that controversy, and (c) a relation between the allegedly defamatory statements and the public controversy." Hunter, 545 N.W.2d at 704.

The nephews and their therapists contend that the controversy surrounding the child abuse allegations against Strom created a public controversy, Strom thrust himself into this controversy by defending himself against the accusations, Strom aggravated the scandal by invoking the "false memory" defense, and the allegedly defamatory statements are related to the controversy because they initiated the controversy. But individuals do not attain public figure status by thrusting themselves into a public controversy to defend their reputation when the controversy did not exist prior to the libelous publication. See Jadwin, 367 N.W.2d at 485 ("[T]hose charged with defamation cannot by their own conduct create their defense by giving the claimant public figure status."). Strom did not become a limited-purpose public figure by defending himself against his nephews' accusations, and the district court erred in determining that Strom was a limited-purpose public figure in this action.

C.C. and the therapists alternatively contend that Strom is a public figure for all purposes and point to the following facts to support their contention: Strom is a visible church member who has traveled throughout the world; he has been active in his ministry as well as with other denominations; he networks and promotes his church in the community; and as a figurehead of the Church of the Lutheran Brethren and a past president for eighteen years, he holds a position of persuasive power and influence.

Taking the asserted facts as true, we nonetheless conclude that Strom does not qualify as an all-purpose public figure. See, e.g., Jadwin, 367 N.W.2d at 478-79, 484 (there was "no question" that plaintiff was not all-purpose public figure where he was promoter, president and principal shareholder of two corporations and mailed 13,000 copies of prospectus and supplemental sales literature to investors); Hunter, 545 N.W.2d at 702-03 (well-known orthopedic surgeon and former consultant to University of Minnesota football program whose statements had appeared in popular book and who had been interviewed on Nightline was not all-purpose public figure); McDevitt v. Tilson, 453 N.W.2d 53, 58 (Minn. App. 1990) (zoo curator with policy responsibilities and supervisor of whale programs not all-purpose public figure despite substantial public and media attention on zoo's beluga whale program), review denied (Minn. May 23, 1990). Strom is not a celebrity, a prominent social figure, or a person of pervasive fame or notoriety. See Jadwin, 367 N.W.2d at 484 (including celebrities and prominent social figures in category of all-purpose public figures); see also Tracy A. Bateman, Who is a "Public Figure" for Purposes of Defamation Action, 19 A.L.R. 5th 1, 52 (1994) (explaining that fame or notoriety qualifying plaintiff as public figure for all purposes is infrequent).

II

A defamatory statement is conditionally privileged if made "upon a proper occasion, from a proper motive, and * * * based upon reasonable or probable cause." Stuempges, 297 N.W.2d at 256-57. The Stroms do not dispute the element of proper motive and the record contains no evidence of improper motive. The Stroms also do not dispute the element of proper occasion. C.C. has not argued that his statements at Hillcrest were conditionally privileged, and the remaining statements at issue were all made at the request of the church committee, suggesting a proper occasion. See Restatement (Second) of Torts § 595, cmt. j.

The element of conditional privilege disputed by the Stroms is the reasonable or probable cause necessary to support the statements in the letters. We conclude that the district court correctly determined that J.T., Lehman, and Oxman had reasonable and probable cause for their statements about Strom.

It is undisputed that J.T.'s statements in his letter to the church committee are based entirely on his own memories of personal encounters and experiences. Absent evidence of knowing untruthfulness, J.T.'s statements are based on reasonable cause as a matter of law. See McGrath v. TCF Bank Sav., 502 N.W.2d 801, 809 (Minn. App. 1993) (determining that trial court properly decided issue of reasonable and probable cause as matter of law when record showed that defendants based their statements on their own encounters and personal experiences), modified on other grounds by McGrath v. TCF Bank Sav., 509 N.W.2d 365 (Minn. 1993).

We recognize that J.T. will not be allowed to testify as to memories that came about as a result of therapeutic hypnotic recall, robust memory recall, or recalled memory from traumatic amnesia, and we further recognize that some of J.T.'s memories may not provide an accurate source of information as to Strom's past conduct. The inquiry is not, however, whether there is probable cause to believe that Strom actually sexually abused his nephew. The issue is whether J.T. had a sufficient basis for believing that his own statements regarding Strom's conduct were true. See Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 380 (Minn. 1990) (reasonable grounds can exist if person has valid reasons for believing a statement, even though statement later proves to be false).

We cannot conclude that a person making a statement based on memories of personal encounters and experiences did not have a valid reason for believing that they were speaking the truth. Furthermore, J.T.'s letter primarily recounts personal feelings and relates memories that developed prior to any therapy. His conclusion that he was sexually abused could reasonably have been based on those memories alone. See Elstrom v. Independent School Dist. No. 270, 533 N.W.2d 51, 55 (Minn. App. 1995) (reasonable grounds existed where investigator reached her own conclusions even though more than one conclusion could have been drawn based on results of investigation), review denied (Minn. July 27, 1995).

Likewise, the record demonstrates that Oxman and Lehman had reasonable and probable cause for statements made in their respective letters. Oxman and Lehman took investigative steps, personally questioned their patients, based their letters on their patients' direct statements, and made efforts to ascertain the accuracy of J.T.'s and C.C.'s statements. Thus, their statements were based on reasonable or probable cause. See McGrath, 502 N.W.2d at 809 (probable cause exists when evidence shows that investigative steps have been taken, including personal questioning, in effort to ascertain accuracy of statements).

III

The Stroms ask this court to impose "a duty on therapists treating those who 'remember' sexual abuse occurring decades ago to the easily foreseeable victims of their professional negligence in diagnosing and treating their patients." We decline to recognize such a duty. In Minnesota a duty to a third party has rarely been recognized in a malpractice action. See Admiral Merchants Motor Freight, Inc. v. O'Connor & Hannan, 494 N.W.2d 261 (Minn. 1992) (recognizing legal malpractice liability to third parties in limited circumstances when sole purpose of attorney-client relationship is to benefit third party directly); Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984) (recognizing physician's duty to control patient when patient presents danger to third party); Cairl v. State, 323 N.W.2d 20, 25-26 (Minn. 1982) (recognizing physician's duty to warn when patient makes specific threat against identifiable third party); Skillings v. Allen, 143 Minn. 323, 325-26, 173 N.W. 663, 664 (1919) (recognizing physician's contractual duty to child's parents when child suffered from infectious disease that spread to parents).

This court has declined to extend the law to recognize a duty to third-party non-patients when there is no contractual relationship, duty to warn, or duty to control. See McElwain v. Van Beek, 447 N.W.2d 442, 445-46 (Minn. App. 1989) (declining to recognize physician's duty to third party), review denied (Minn. Dec. 20, 1989). In addition, not recognizing a duty to third-party non-patients is consistent with established public policy because imposing a duty on therapists to protect the interests of falsely accused individuals would adversely affect the interests of sexual abuse survivors in effective and uninterrupted therapy. See Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 Harv. L. Rev. 549, 586-90 (discussing how imposition of third-party liability against therapists would compromise interests of sexual abuse survivors).

Affirmed as modified.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.