Kim Brown v. Mapco Express, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT MEMPHIS

April 17, 2012 Session

KIM BROWN

v.

MAPCO EXPRESS, INC.

Appeal from the Circuit Court of Shelby County

No. CT-005663-09 Karen R. Williams, Judge

No. W2011-01751-COA-R3-CV - Filed August 22, 2012

This appeal involves claims arising from a verbal exchange at a gas station. The plaintiff

customer gave cash to a clerk employed at the defendant gas station to pay for gas. After a

verbal exchange between the clerk and the customer, the customer left the gas station. The

customer promptly filed this lawsuit, alleging a variety of tort claims, including defamation,

false light in the public eye, and infliction of emotional distress. The complaint sought

damages in excess of a billion – with a “b”– dollars. The trial court granted summary

judgment in favor of the defendant gas station. The customer appeals. We affirm.

T ENN. R. A PP. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and

J. S TEVEN S TAFFORD, J., joined.

Plaintiff/Appellant Kim Brown, Memphis, Tennessee, self-represented

Kevin D. Bernstein, Memphis, Tennessee, for Defendant/Appellee Mapco Express, Inc.

OPINION

F ACTS AND P ROCEEDINGS B ELOW

On November 22, 2009, Plaintiff/Appellant Kim Brown (“Brown”) went to a gas station in

north Memphis owned by Defendant/Appellee Mapco Express, Inc. (“Mapco”). When Brown

entered the store, he told the clerk behind the counter, Mapco employee Mary Tyler

(“Tyler”), that he wanted $5 worth of gas and then handed Tyler a $20 bill. Allocating $5

for Brown’s gas, Tyler gave him $15 in change.

According to Brown, a life-altering verbal exchange with the Mapco employee then ensued.1

The record contains security-camera video, taken inside the Mapco store, of the incident at

issue involving Brown, Tyler, and another Mapco employee behind the counter, Lashunna

Aldridge (“Aldridge”). During the conversation, unidentified customers came in and out of

the Mapco store.

Dissatisfied with the type of bill denominations he received from Tyler, Brown asked her to

give him different denominations. Tyler declined. Brown then indicated that he no longer

wanted to purchase gas and asked for a refund or return of his $20 bill.

According to Brown, the response to his request by Tyler and Aldridge included the

following: (1) “Naw Naw Naw”; (2) “No I’m not fina give you nothing back”; (3) “what is

you tryna do?” (4) “He tryna do a money-switch”;2 (5) “we don’t play that in here, unh, unh,

Go! Go!” and (6) “Go pump your gas.” Brown alleges that, at one point, Tyler said she was

going to call the police. Brown was apparently eventually given back his $20, and as he left

the store, he told the Mapco employees that he intended to call a manager the next day. Tyler

allegedly then responded, “I don’t care nothing ‘bout you calling my manager, you don’t

come in here doing nothing like that.”

Within days, Brown filed this lawsuit against Mapco in the Circuit Court of Shelby County,

Tennessee. In the complaint, Brown stated that he is a licensed teacher who teaches in the

Memphis City School System. The complaint alleges that the Mapco employees slandered

and defamed Brown in the gas station incident, damaged his reputation, and caused him

“severe emotional distress for which he has received professional medical[] help,” and left

him “depressed with great mental anguish.” The complaint asserted claims based on (1)

slander and defamation; (2) false light in the public eye; (3) intentional infliction of

emotional distress; (4) negligent infliction of emotional distress; (5) negligent hire; (6)

negligent supervision; and (7) negligent retention. The complaint sought $575 million in

compensatory damages and $900 million in punitive damages, for a total of $1.5 billion in

damages.

Mapco filed an answer denying all claims. During the discovery that followed, Brown’s

deposition was taken.

1

As we are reviewing a grant of summary judgment, we recite the facts as alleged by Brown.

2

This statement was apparently made several times.

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In March and June 2010, Brown filed two motions to amend his complaint to assert claims

under Tennessee’s Consumer Protection Act (“TCPA”). The trial court denied these motions.

The trial court entered a scheduling order that included deadlines for discovery depositions

and for identifying expert witnesses. As of the deadline in the initial scheduling order,

Brown had not deposed any Mapco witnesses or identified any expert witnesses.

Subsequently, Brown filed a motion for partial summary judgment, seeking summary

judgment on his claims of false light, negligent infliction of emotional distress, and negligent

supervision. Mapco then filed a cross-motion for summary judgment, seeking summary

judgment on all of Brown’s claims.

The trial court did not grant Brown’s motion for partial summary judgment. It initially

granted Mapco’s motion for summary judgment as to some of Brown’s claims, specifically,

his claims based on libel, false light, intentional infliction of emotional distress, and negligent

infliction of emotional distress. In the same order, the trial court gave Brown an extended

deadline to identify witnesses or experts to support his claims of negligent hiring,

supervision, and retention. Brown was also given additional time to conduct discovery on

his slander claims.

Pursuant to the trial court’s order, Brown deposed several witnesses, including the two

Mapco employees involved in the incident. After that, Mapco renewed its motion for

summary judgment as to the remaining claims based on slander and negligent hiring,

supervision, and retention.

On August 26, 2011, the trial court granted summary judgment in favor of Mapco on all

remaining claims. Brown now appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Brown argues that the trial court erred in denying his motions to amend his

complaint to assert consumer protection claims under the TCPA. He also contends that the

trial court erred in granting summary judgment to Mapco on all of his claims. Finally, Brown

argues that the trial court erred in denying his motion for summary judgment on his claims

of slander, false light, and negligent infliction of emotional distress.

This Court has stated that “the grant or denial of a motion to amend is within the sound

discretion of the trial court, and the court’s action will be reversed only for an abuse of

discretion.” Bellanti v. City of Memphis, No. W2011-01917-COA-R3-CV, 2012 WL

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1974220, at *3; 2012 Tenn. App. LEXIS 364, at *7-8 (Tenn. Ct. App. June 4, 2012) (citing

Sallee v. Barrett, 171 S.W.3d 822, 825-26 (Tenn. 2005); Doyle v. Frost, 49 S.W.3d 853, 856

(Tenn. 2001)). We have explained the abuse of discretion standard as follows:

The abuse of discretion standard does not allow the appellate court to

substitute its judgment for that of the trial court, Williams v. Baptist Mem’l

Hosp., 193 S.W.3d 545, 551 (Tenn. 2006); Myint v. Allstate Ins. Co., 970

S.W.2d 920, 927 (Tenn. 1998), and we will find an abuse of discretion only if

the court “applied incorrect legal standards, reached an illogical conclusion,

based its decision on a clearly erroneous assessment of the evidence, or

employ[ed] reasoning that causes an injustice to the complaining party.”

Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011) (quoting Konvalinka v. Chattanooga-

Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)); see also Lee Med., Inc.

v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Therefore, we will uphold the trial court’s

denial of a motion to amend “so long as reasonable minds can disagree as to the propriety of

the decision made.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.

Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliand, 22 S.W.3d 266, 273 (Tenn.

2000)).

We review a trial court’s grant of summary judgment de novo, affording the trial court’s

decision no presumption of correctness. Green v. Green, 293 S.W.3d 493, 514 (Tenn. 2009);

Eskin v. Bartee, 262 S.W.3d 727, 732 (Tenn. 2008); BellSouth Adver. & Publ'g Co. v.

Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Staples v. CBL & Assocs., 15 S.W.3d 83, 88

(Tenn. 2000). Summary judgment is appropriate only “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Tenn. R. Civ. P. 56.04; see Hannan v. Alltel Publ’g Co., 270 S.W.3d

1, 5 (Tenn. 2008); Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).

Brown appeals the trial court’s grant of Mapco’s motion for summary judgment as well as

its denial of his motion for partial summary judgment. As to the grant of Mapco’s motion

for summary judgment, our Supreme Court has summarized the analysis on appeal as

follows:

The party seeking the summary judgment has the ultimate burden of

persuading the court “that there are no disputed, material facts creating a

genuine issue for trial . . . and that he is entitled to judgment as a matter of

law.” Byrd [v. Hall], 847 S.W.2d [208,] 215 [(Tenn. 1993)]. If that motion is

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properly supported, then the burden of production to establish a genuine issue

of material fact shifts to the non-moving party. Hannan, 270 S.W.3d at 5. In

order to shift the burden of production, the movant must either affirmatively

negate an essential element of the nonmovant’s claim or demonstrate that the

non-moving party cannot establish an essential element of his claim at trial.

Id. at 8-9. The court must accept the facts presented by the nonmovant as true

and resolve any doubts regarding the existence of genuine issue of material

fact in the nonmovant’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76,

84 (Tenn. 2008). At the summary judgment phase, “it is not the role of a trial

or appellate court to weigh the evidence or substitute its judgment for that of

the trier of fact.” Id. at 87 (citing Byrd, 847 S.W.2d at 211).

Estate of French v. Stratford House, 333 S.W.3d 546, 553-54 (Tenn. 2011).

This Court has described the analysis if the moving party has the ultimate burden of proof

on the claim that is the subject of the summary judgment motion, here, Brown’s motion for

partial summary judgment on several of his claims. The standard where the movant bears

the ultimate burden of proof is as follows:

The burden-shifting analysis differs if the moving party bears the burden of

proof at trial. “For example, a plaintiff who files a motion for partial summary

judgment for an element of his or her claim shifts the burden by alleging

undisputed facts that show the existence of that element and entitle the

plaintiff to summary judgment as a matter of law.” “Similarly, a defendant

asserting an affirmative defense . . . shifts the burden of production by alleging

undisputed facts that show the existence of the affirmative defense.”

Fortune v. UNUM Life Ins. Co. of Am., 360 S.W.3d 390, 395 (Tenn. Ct. App. 2010)

(quoting Hannan, 270 S.W.3d at 9 n.6) (internal citations omitted).

A NALYSIS

We first consider Brown’s argument on his motions to amend the complaint, and then the

arguments on summary judgment.

Motion to Amend Complaint

Brown argues first that the trial court erred in denying his motions to amend his complaint

to include new claims under the TCPA. He points to Tyler’s initial refusal to give him a

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refund of his $20 bill and her allegedly slanderous statements as the basis for the claim. To

explain why the claim was not included in the original complaint, Brown notes the fact that

he did not have access to the Mapco surveillance video until after he filed his complaint.

Brown contends that he should have been permitted to amend to assert a TCPA claim.

As noted above, our standard of review for a trial court’s denial of a motion to amend is

abuse of discretion. Among the factors that a trial court may consider with regard to a

motion to amend are undue delay in filing the motion to amend and futility of the amendment

sought by the movant. Daniels v. Wray, No. M2008-01781-COA-R3-CV, 2009 WL

1438247, at *2 (Tenn. Ct App. May 21, 2009) (citing Merriman v. Smith, 599 S.W.2d 548,

559 (Tenn. Ct. App. 1979)).

In this case, Brown gives no reason for his delay in attempting to assert a claim under the

TCPA, except that he “had the benefit” of having viewed the Mapco store surveillance video

after he filed the original complaint. The video, however, gave Brown no new information

pertinent to a TCPA claim, as he was a participant in the actual incident that was captured

in the video.

Moreover, it is clear that permitting such an amendment would have been futile. Brown

points to no unfair or deceptive act within the meaning of the TCPA. None of the words or

actions by the Mapco clerks of which Brown complains can be seen as deceptive. Brown

points to Tyler’s initial refusal to refund his $20 bill, but he also admits that he ultimately

received the refund. He cites no authority showing that the facts he alleges make out any

plausible claim under the TCPA.

Under these circumstances, we find no abuse of discretion. The trial court’s denial of

Brown’s motion to amend his complaint is affirmed.

Grant of Mapco Summary Judgment Motion

Our review of the trial court’s decision on Mapco’s motion for summary judgment takes us

on a tour of a variety of tort theories of recovery. Our itinerary includes: negligent hiring,

supervision, and retention; intentional infliction of emotional distress; negligent infliction of

emotional distress; false light in the public eye; and finally defamation. We now embark.

Negligent Hiring, Supervision, Retention

Brown contends that the trial court erred in granting Mapco’s motion for summary judgment

as to his claim of negligent hiring, supervision, and retention of Mapco employee Tyler.

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Brown argues that it was foreseeable to Mapco that “Tyler would injur[e] a consumer,” that

Mapco should have known that “Tyler was using profanity towards consumers,” and that

Mapco “acted recklessly in their supervision of . . . Tyler.”

This Court has previously discussed the cause of action for negligent hiring, supervision, and

retention:

Tennessee courts recognize the negligence of an employer in the selection and

retention of employees and independent contractors. A plaintiff in Tennessee

may recover for negligent hiring, supervision or retention of an employee if he

establishes, in addition to the elements of a negligence claim, that the employer

had knowledge of the employee’s unfitness for the job.

Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d 712, 717 (Tenn. Ct. App.

2008) (internal citations omitted).

Assuming arguendo that Brown can establish the elements of a claim for negligence, Brown

does not even allege acts to support his conclusory assertion that Mapco knew or should have

known that Tyler was, allegedly, unfit for her job. He points only to the alleged fact that

Tyler at times did not greet customers when they walked into the store and that she was

terminated from an earlier job for dozing off while on duty. These facts are irrelevant in the

context of this case. Brown’s hyperbole and conclusory statements do not take the place of

alleging actual facts to support his claim that Mapco “had knowledge of the employee’s

unfitness for the job.” Id.

We find no error in the trial court’s grant of summary judgment on these claims.

Intentional Infliction of Emotional Distress

Brown also argues that the trial court erred in granting summary judgment to Mapco on his

claim of intentional infliction of emotional distress. Acknowledging that a cause of action

for intentional infliction of emotional distress must be premised on behavior that is extreme

and outrageous, Brown contends that the conduct by Tyler of which he complains meets the

standard for the tort. Brown also contends that his mental injury from the incident was so

severe that he “sought medical help from two doctors.”

“The elements of an intentional infliction of emotional distress claim are that the defendant’s

conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated by civilized

society, and (3) resulted in serious mental injury to the plaintiff.” Rogers v. Louisville Land

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Co., 367 S.W.3d 196, 205 (Tenn. 2012) (citations omitted). In Weaver v. Pardue, this Court

observed: “A plaintiff’s burden to demonstrate outrageous conduct ‘is not an easy burden to

meet.’ ” Weaver v. Pardue, No. M2010-00124-COA-R3-CV, 2010 WL 4272687, at *5

(Tenn. Ct. App. Oct. 28, 2010) (quoting Oates v. Chattanooga Pub. Co., 205 S.W.3d 418,

428 (Tenn. Ct. App. 2006)). The Weaver Court explained:

Liability for IIED [intentional infliction of emotional distress] “ ‘does not

extend to mere insults, indignities, threats, annoyances, petty oppression or

other trivialities.’ ” Bain [v. Wells], 936 S.W.2d [618,] 622 [(Tenn. 1998)]

(quoting Medlin [v. Allied Inv. Co.], 398 S.W.2d [270,] 274 [(Tenn. 1966)]).

The Tennessee Supreme Court, while recognizing that “no perfect legal

standard exists for determining whether particular conduct is so intolerable as

to be tortious,” has endorsed the “high threshold” of the Restatement (Second)

of Torts:

“The cases thus far decided have found liability only where the

defendant’s conduct has been extreme and outrageous. It has

not been enough that the defendant has acted with an intent

which is tortious or even criminal, or that he has intended to

inflict emotional distress, or even that his conduct has been

characterized by ‘malice,’ or a degree of aggravation which

would entitle the plaintiff to punitive damages for another tort.

Liability has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go

beyond all bounds of decency, and to be regarded as atrocious

and utterly intolerable in a civilized community. Generally, the

case is one in which the recitation of the facts to an average

member of the community would arouse his resentment against

the actor, and lead him to exclaim, ‘Outrageous.’”

Bain, 936 S.W.2d at 622-23 (quoting Medlin, 398 S.W.2d at 274 (quoting

Restatement (Second) of Torts § 46 cmt. d (1965)). . . . “It is for the court to

determine, in the first instance, whether the defendant's conduct may

reasonably be regarded as so extreme and outrageous as to permit recovery, or

whether it is necessarily so.” Restatement (Second) of Torts § 46 cmt. h

(1965).

Weaver, 2010 WL 4272687, at *5 (citations within Restatement omitted). Cognizant of this

standard, Brown argues that “the average member of the community would yell ‘Outrageous’

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at Mary Tyler’s/Mapco’s conduct of accusing [Brown] of doing a ‘Money-Switch’ and

threatening to call the police on [Brown] simply because [he] respectfully asked for a

refund.”

We think not. The conduct on which Brown bases his lawsuit falls squarely within the realm

of “mere insults, indignities, threats, annoyances, petty oppression or other trivialities.” 3

Bain, 936 S.W.2d at 622. We find no error in the trial court’s grant of summary judgment

to Mapco on this claim.

Negligent Infliction of Emotional Distress

Brown also contends that the trial court erred in granting summary judgment to Mapco on

his claim of negligent infliction of emotional distress. He argues that the elements of the tort

are met and equates the severity of his mental and emotional injury in this case to the injuries

of the plaintiff in Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) (trucker involved in

vehicular accident suffered emotional distress after seeing mangled remains of teenage

victim in other vehicle) and the plaintiff in Estate of Amos v. Vanderbilt Univ., 62 S.W.3d

133 (Tenn. 2001) (hospital inadvertently infected patient with HIV virus, patient then

unwittingly infected daughter with HIV during childbirth).

In Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012), our Supreme Court outlined

the elements of the tort of negligent infliction of emotional distress and compared it to

intentional infliction of emotional distress:

The elements of a claim for negligent infliction of emotional distress include

the elements of a general negligence claim, which are duty, breach of duty,

injury or loss, causation in fact, and proximate causation. In addition, the

plaintiff must prove that the defendant’s conduct caused a serious or severe

emotional injury. Thus, both actions for intentional infliction of emotional

distress and negligent infliction of emotional distress . . . require an identical

element: a showing that the plaintiff suffered a serious mental injury resulting

from the defendant’s conduct.

3

We note that Brown makes no allegation that he was particularly vulnerable to injury through mental

distress at conduct such as this, or that the Mapco employees were aware of any special vulnerability that

he had. Indeed, Brown points out repeatedly that the Mapco employees did not know him at all. See W.

Page Keeton, Prosser and Keeton on Torts § 12, p. 62 (5th ed. 1984) (“[A]nother basis on which extreme

outrage can be found is the defendant’s knowledge that the plaintiff is especially sensitive, susceptible and

vulnerable to injury through mental distress at the particular conduct.”) ( using the example of a prank played

on an eccentric and mentally deficient elderly person).

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Rogers, 367 S.W.3d at 206 (internal citations and footnotes omitted). The Rogers Court

discussed the requirement of a serious mental injury, quoting at length from oft-cited Section

46 of the Restatement (Second) of Torts:

The reason for the rule imposing liability only when extreme and outrageous

conduct causes serious or severe emotional distress is apparent – to avoid the

judicial system being flooded with potentially fraudulent, manufactured or

overstated claims arising from the “transient and trivial” emotional distresses

of daily life, recognizing that “[i]f the plaintiff is to recover every time that

[his or] her feelings are hurt, we should all be in court twice a week.”

Rogers, 367 S.W.3d at 209 (quoting Russell Fraker, Note, Reformulating Outrage: A Critical

Analysis of the Problematic Tort of IIED, 61 Vand. L. Rev. 983, 988 (2008) (quoting

William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev.

874, 877 (1939))).

In the quest to limit claimants’ recovery to claims of emotional distress that are both real and

substantial, the Rogers Court repeatedly noted that the plaintiff’s injury is more likely to be

deemed sufficiently severe if the conduct that caused the injury is extreme and outrageous.

Id. at 208 (“[T]he flagrant and outrageous nature of the defendant’s conduct . . . adds weight

to a plaintiff’s claim and affords more assurance that the claim is serious.”) (quoting Miller

v. Willbanks, 8 S.W.3d 607, 613 (Tenn. 1999)); see also Rogers, 367 S.W.3d at 208 (“The

‘extreme and outrageous character of the defendant’s conduct is in itself important evidence

that the distress has existed.’ ”) (quoting Restatement (Second) of Torts § 45 cmt. j.).

In addition, the Rogers Court restated a standard for the plaintiff’s emotional injury that

includes a “reasonable person” component, concluding: “[A] serious or severe mental injury

occurs ‘where a reasonable person, normally constituted, would be unable to adequately cope

with the mental stress engendered by the circumstances of the case’ . . . . ” Id. at 210

(referring to listed factors on how to interpret the standard). The Rogers Court cited the

Restatement (Third) of Torts: Liability for Physical and Emotional Harm (Tentative Draft

No. 5, 2007), which explains how to apply the “reasonable person” component of the

standard for a recoverable emotional injury:

[T]his Section applies only when the person seeking recovery has suffered

serious emotional disturbance. In addition, the stimulus must be one that

would cause reasonable persons to suffer serious emotional disturbance. Thus,

there is a subjective and objective component to this requirement. An

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unusually susceptible person may not recover if an ordinary person would not

have suffered serious emotional disturbance.

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 46 cmt. i

(Tentative Draft No. 5, 2007); Rogers, 367 S.W.3d at 209. The Restatement (Third) of Torts

cites the Tennessee case of Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) as among the

“[m]odern cases requiring that the stimulus be sufficient to cause serious emotional

disturbance to a reasonable person . . . .” Restatement (Third) of Torts § 46 (Reporters’ Note

to cmt. i).

Thus, in the elements that must be established for a claim of negligent infliction of emotional

distress, the requirement that the stimulus conduct be extreme and outrageous is interwoven

with the “reasonable person” component of the element of serious or severe emotional injury.

In effect, the plaintiff must prove that the conduct giving rise to his claim was so extreme and

outrageous that it would have caused a reasonable person to suffer serious or severe

emotional injury.

We apply this standard to the case at bar. Brown insists that he, in fact, experienced severe

emotional injury from the incident at Mapco, serious enough that he consulted medical

professionals and substantial enough to support his claim for damages in excess of a billion

dollars. For purposes of our analysis, we assume the truth of this assertion. We must

conclude, however, that the “reasonable person” component of the emotional injury element

of the tort has not been met in this case. We have already concluded that the conduct by the

Mapco employees of which Brown complains does not rise to the level of “outrageous” but

is more appropriately categorized as “mere insults, indignities, threats, annoyances, petty

oppression or other trivialities.” Bain, 936 S.W.2d at 627. Concomitantly, we also conclude,

as a matter of law, that the Mapco employees’ conduct would not cause a reasonable person

to suffer serious or severe mental injury; a reasonable person in Brown’s circumstance would

shrug off the incident as an “annoyance” or “petty oppression” and go about his business.

Accordingly, we find no error in the trial court’s grant of summary judgment to Mapco on

this claim.

False Light in the Public Eye

Brown contends that the trial court also erred in dismissing his claim based on false light

invasion of privacy, also called “false light in the public eye.” See W. Page Keeton, Prosser

and Keeton on Torts § 117, p. 863 (5th ed. 1984). He argues that even if Tyler’s statements

to the effect that Brown was “tryna do a money-switch” and her threats to call the police

were not defamatory, they were sufficient to support a false light claim. He also argues that

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the fact that the statements were made in the presence of “several customers coming and

going in the Mapco store” satisfies the “publicity” requirement for such a claim.

In West v. Media General Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001), the Tennessee

Supreme Court held that Tennessee recognizes false light in the public eye, i.e., false light

invasion of privacy, as an actionable tort. Id. at 645. The West Court adopted the definition

of false light set forth in Section 652E of the Restatement (Second) of Torts:

One who gives publicity to a matter concerning another that places the other

before the public in a false light is subject to liability to the other for invasion

of his privacy, if:

(a) the false light in which the other was placed would be highly offensive to

a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity

of the publicized matter and the false light in which the other would be placed.

West, 53 S.W.3d at 643-44 (quoting Restatement (Second) of Torts § 652E (1977)).

In a recent case, this Court elaborated on the meaning of the term “publicity” as used in the

context of a false light claim:

What is meant by the term “publicity” used in Section 652E? Comment a to

Section 652E of the RESTATEMENT (SECOND) OF TORTS refers back to

Comment a to Section 652D, which states:

“Publicity,” as it is used in this Section, differs from

“publication,” as that term is used in § 577 in connection with

liability for defamation. “Publication,” in that sense, is a word

of art, which includes any communication by the defendant to a

third person. “Publicity,” on the other hand, means that the

matter is made public, by communicating it to the public at

large, or to so many persons that the matter must be regarded as

substantially certain to become one of public knowledge. The

difference is not one of the means of communication, which

may be oral, written or by any other means. It is one of a

communication that reaches, or is sure to reach, the public.

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Thus it is not an invasion of privacy, within the rule stated in

this Section, to communicate a fact concerning the plaintiff’s

private life to a single person or even to a small group of

persons.

Secured Fin. Solutions, LLC v. Winer, No. M2009-00885-COA-R3-CV, 2010 WL 334644,

at *4 (Tenn. Ct. App. Jan. 28, 2010), perm. app. den. (Aug. 25, 2010). In Winer, the

plaintiffs’ false light claim against the defendant was based on an email to a business

associate and an oral statement to another business associate, both of which allegedly implied

that the plaintiffs’ business was being shut down by regulators. Id. at *1. The Court upheld

the trial court’s grant of summary judgment on the plaintiffs’ false light claim. Id. at *4.

Because statements or disclosure to one person or a small group of persons is not sufficient,

the Court held that the defendant’s “communication fails, as a matter of law, to satisfy the

‘publicity’ requirement of the tort of false light invasion of privacy.” Id. See also 1 Rights

of Publicity and Privacy § 5:114 (2d ed.) (updated March 2012) (“Thus, in a false light case,

plaintiff must plead and prove that the matter was ‘widely publicized . . . . [and] ‘[d]isclosure

to just a few persons is not sufficient.’ ” 4

Likewise, in this case, it is undisputed that the statements at issue by the Mapco employees

were made, at most, in the presence of “several” unidentified customers who came in and out

of the store during the incident. As a matter of law, this is not sufficient to meet the

“publicity” requirement for a claim of false light in the public eye. The trial court’s grant of

summary judgment on this claim is affirmed.

Defamation

Finally, Brown argues that the trial court erred in granting summary judgment to Mapco on

his claim of slander. In arguing that the remarks of the Mapco employees were defamatory,

Brown focuses on Aldridge’s exclamation, “What is you trying to do?!” He also emphasizes

Tyler’s statements “we don’t play that” and “he tryna do a money-switch” and her threat to

call the police, arguing that Tyler was accusing him of engaging in unspecified criminal

activity. Brown contends that these words injured his reputation as a “law-abiding citizen”

and his “image in relation to his ‘profession’ which is teaching and trying to be a good role-

model within the inner-city.”

4

But see 62A Am. Jur.2d Privacy § 141 (stating that the publicity requirement for a false light claim “may

be satisfied by establishing that the false and highly offensive information was disclosed to a person or

persons with whom a plaintiff has a special relationship”). As the customers in the Mapco store were never

identified, Brown had no relationship with them, so we need not address this exception.

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Brown contends that the requirement that the defendant “published” the defamatory

statement has been met in his case because the remarks of the Mapco employees were made

in a store that was open to the public. He points out that several unidentified customers

walked in and out of the Mapco store during his conversation with the two Mapco

employees. Brown’s complaint emphasizes one customer in particular: “There was one

beautiful young lady in line behind Mr. Brown when [the incident] first started and heard

everything. Mr. Brown was planning on trying to start a conversation with the young lady

because she looked somewhat familiar. [Mapco employee Tyler] changed everything.”

Brown emphasizes the same unidentified customer in his appellate brief, asserting that he

“wanted to be friends with her.” 5

Defamation is comprised of the “twin torts” of libel and slander: “A libel action involves

written defamation and a slander action involves spoken defamation.” W. Page Keeton,

Prosser and Keeton on Torts § 111, p. 771 (5th ed. 1984); Quality Auto Parts Co., Inc. v.

Bluff City Buick Co., Inc., 876 S.W.2d 818, 820 (Tenn. 1994). To establish a claim for

defamation, “the plaintiff must establish that: (1) a party published a statement; (2) with

knowledge that the statement is false and defaming to the other; or (3) with reckless

disregard for the truth of the statement or with negligence in failing to ascertain the truth of

the statement.” Sullivan v. Baptist Mem. Hosp., 995 S.W.2d 569, 571 (Tenn. 1999). See

also Kersey v. Wilson, No. M2005-02106-COA-R3-CV, 2006 WL 3952899, at *3 (Tenn. Ct.

App. Dec. 29, 2006), perm. app. den. (Tenn. Apr. 16, 2007 and Apr. 23, 2007), cert. den.,

128 S.Ct. 285, 169 L.Ed.2d 150 (2007).

For the defendant to be liable for defamation, “there must be publication of matter that is

both defamatory and false.” W. Page Keeton, Prosser and Keeton on Torts § 116, p. 839.

Thus, it is not enough for the statement in question to be false; the plaintiff must show that

the defendant made a false statement that defamed him. See Farmer v. Hersh, No. W2006-

01937-COA-R3-CV, 2007 WL 2264435, at *5 (Tenn. Ct. App. Aug. 9, 2007). “[T]he basis

for an action for defamation, whether it be slander or libel, is that the defamation has resulted

in an injury to the person’s character and reputation.” Davis v. The Tennessean, 83 S.W.3d

125, 128 (Tenn. Ct. App. 2001). This Court has adopted Prosser’s description of a statement

that is defamatory:

For a communication to be libelous, it must constitute a serious threat to the

plaintiff’s reputation. A libel does not occur simply because the subject of a

publication finds the publication annoying, offensive or embarrassing. The

words must reasonably be construable as holding the plaintiff up to public

5

Tennessee does not recognize a claim for loss of “friendship” opportunity.

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hatred, contempt or ridicule. They must carry with them an element “of

disgrace.”

Kersey, 2006 WL 3952899, at *3 (quoting Stones River Motors, Inc. v. Mid-South Pub. Co.,

651 S.W.2d 713, 719 (Tenn. Ct. App. 1983)) (quoting W. Prosser, Law of Torts § 111, p. 739

(4th ed. 1971)).

The issue of whether a communication is capable of conveying a defamatory meaning is a

question of law for the court to decide in the first instance; it is then for the jury to decide

whether the communication was in fact so understood by those who received it. Zius v.

Shelton, No. E1999-01157-COA-R9-CV, 2000 WL 739466, at *2 (Tenn. Ct. App. June 6,

2000); Prosser and Keeton on Torts § 111, p. 781 (5th ed. 1984). To make this

determination, courts “must look to the words themselves and are not bound by the plaintiff’s

interpretation of them.” Stones River, 651 S.W.2d at 719.

With these parameters in mind, we look at the statements to which Brown objects. Many of

the statements by Mapco employees Aldridge and Tyler are clearly neither false nor

defamatory. Statements such as “naw naw naw,” and “we don’t play that” and “go pump

your gas” and “what is you tryna do” may have been rude or annoying, but they are neither

false nor defamatory. Mapco employee Tyler’s threat to call the police does not describe

Brown, falsely or otherwise; it is a threat to take action that, while disagreeable, is not

defamation.

Brown focuses especially on Tyler’s statement: “he tryna do a money switch.” He

characterizes it as an accusation of unspecified “criminal activity” that damaged his

reputation. In evaluating the alleged defamatory statement, it is appropriate for the Court to

“parse[] the language of the defendants’ statement very closely” and consider the factual

circumstances. Kersey, 2006 WL 3952899, at *5. In this case, according to Brown, when

he gave Tyler a $20 bill to pay for $5 in gas, Tyler gave him $15 back in denominations of

one-dollar bills and a five-dollar bill. Brown says he then told Tyler, “I wanted a ten. I will

give you a five. I got five dollars, I needed a ten.” After Tyler refused, Brown asked for his

money back. The Mapco employees responded with the statements in question, including

“he tryna do a money-switch.”

Under the circumstances, Tyler’s statement is literally true. Brown received his change in

denominations that he did not prefer, and he asked Tyler to “switch” the money he’d been

given for different denominations. After she declined, he asked to “switch” back to his

original $20 bill. Thus, Tyler’s statement was true. Moreover, at most, Tyler’s words are

“annoying, offensive or embarrassing.” They do not hold Brown “up to public hatred,

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contempt or ridicule.” Stones River, 651 S.W.2d at 719. Accordingly, as a matter of law,

we hold that the statements on which Brown bases his claim were neither false nor

defamatory.

We note that, in light of the fact that all of the customers who wandered in and out of the

store are unidentified, the elements of publication and damage to reputation are likely not met

as well. See, e.g., Prosser and Keeton on Torts § 112, p. 798 (“It is not enough that the

words are uttered in the presence of others unless they are in fact overheard”); Bell v.

Slepakoff, 224 A.D.2d 567, 568-69; 639 N.Y.S.2d 406, 407 (N.Y. App. Div. 1996) (“It is

well established that the identity of third persons to whom the allegedly defamatory

statements were made or read must be pleaded with specificity.”). However, in light of our

holding that the statements at issue do not rise to the level of defamation, we need not

address these issues. The trial court’s grant of summary judgment to Mapco on Brown’s

slander claim is affirmed.

C ONCLUSION

We affirm the trial court’s denial of Brown’s motions to amend the complaint to allege a

TCPA claim, finding no abuse of discretion. We affirm the trial court’s grant of Mapco’s

motion for summary judgment on all of Brown’s claims. This holding obviates the need for

us to address the trial court’s denial of Brown’s motion for partial summary judgment on

several of his claims. All other issues raised on appeal are pretermitted.

The decision of the trial court is affirmed. Costs of this appeal are assessed against Appellant

Kim Brown and his surety, for which execution may issue if necessary.

______________________________________

HOLLY M. KIRBY, JUDGE

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