"A proximate cause is one that in natural and continuous sequence, unbroken by an independent cause, produces the injury complained of and without which the ultimate injury would not have occurred.”
How later courts described this case
- "A proximate cause is one that in natural and continuous sequence, unbroken by an independent cause, produces the injury complained of and without which the ultimate injury would not have occurred.”
- affirming grant of summary judgment in favor of defendant where 3 plaintiff failed to show resultant damage to its business expectancy
- affirming 19 dismissal of invasion of privacy claim where plaintiff provided no evidence of 20 damages caused by defendant
- “While Mr. 5 Sommer incorrectly described Life Designs as being located in western Washington, this statement was not based on undisclosed 6 facts. Rather, Life Designs' official website states it is located in Cusick, Washington, which is on the eastern side of the state”
Written by the judges who cited it.
The opinion
FILED
NOV. 12, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
LIFE DESIGNS RANCH, INC., a ) No. 32922-4-111
Washington Corporation, VINCENT )
BARRANCO, an individual, and BOBBIE )
BARRANCO, an indidivual, )
)
Appellants, )
) PUBLISHED OPINION
v. )
1 )
l
J MICHAEL SOMMER, )
I )
. Respondent. )
BROWN, A.C.J. - Life Designs Ranch (Life Designs) appeals the summary
1
t judgment dismissal of its defamation, tortious interference with a business expectancy,
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I1 and invasion of privacy (false light) claims against Michael Sommer. Life Designs
¥ contends the trial court erred when it concluded Life Designs had failed to establish its
j legal claims as a matter of law. We disagree with Life Designs and affirm.
1 FACTS
f
I Life Designs, owned by Vince and Bonnie Barranco, is a substance abuse
J aftercare program for young adults operating from Cusick, Washington with following
1 optional transition housing in Spokane. Clients attend Narcotics Anonymous/Alcoholics
!
Anonymous meetings at off-site locations three times a week as part of the program.
1!
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Life Designs Ranch v. Sommer
The six-month Cusick program costs clients $52,200 plus a $1,200 initial interview fee.
The Spokane transitional program costs an additional $12,000.
Clay Garrett, formerly Life Designs' admissions director, developed relationships
with educational consultants hired by the families of prospective clients to guide them in
program selection. The educational consultants typically narrow the prospective client's
focus to three recommended programs. Mr. Garrett updated Life Designs' website to
attract more clients. He often gave educational consultants and prospective clients Life
Designs' website information so they could learn more about the program.
In 2012, Mr. Sommer contracted to send his son to Life Designs. Mr. Sommer
later disputed Life DeSigns' billings. Mr. Sommer e-mailed Mr. Barranco:
Please review your contract again. It specifically states that any partial
months are billed at full and the last month is not refundable. I think you
are in a highly indefensible position. The 26K was put into brackets to
show that was the amount we were at THE MOST liable for, not the least.
I am willing to get legal with this. Are you? I would hope that the most
important thing to you is your reputation. We all know how easily
reputations can be destroyed, without the legal system even getting
involved. But I would go both routes if I have to. You are wrong on all
fronts. Please reconsider before we find it necessary to proceed.
Clerk's Papers (CP) at 257.
Mr. Sommer contacted one of Life Designs' referral sources, Chad Balagna, who
worked at a preliminary treatment program. According to Mr. Sommer, he told Mr.
Balagna he should "reconsider if he was going to recommend people there so his own
reputation would be protected." CP at 243. It is unclear if Mr. Balagna is considered an
educational consultant. Additionally, Mr. Sommer unsuccessfully complained to the
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Better Business Bureau. He registered www.lifedesignsranchinc.com. a domain name
similar to Life Designs' actual domain name, www.lifedesignsinc.com.Mr. Sommer
uploaded and published allegedly defamatory content onto his website, partly including:
• The problems with this organization are numerous. Life Designs
Ranch claims to help you pursue your life's passions. That is only true
if your life passion fits into what the other 11 prisoners and their
wardens consider their life passion.
• Therapeutic environment??? Only for the staff and the owner, Vince
Barranco, who finds that charging 12 young adults $8000 to $9000 a
months for food and housing permits him to pursue his life passions
since he really doesn't have to work and has free labor to increase the
value of his property.
• What you get . .. A visual experience of pine trees, dead pine trees,
falling down pine trees, disintegrated pine trees, and more pine trees.
River, can't be seen. Mountains, can't be seen. Civilization, can't be
seen. But there are pine trees!!!!!
• What you get . .. 2 or 3 twelve step meetings a week in a very small
western Washington community where the only young adults in
attendance are those from Life Designs ranch.
• You should go to Life Designs if: ... You believe that it takes no
education or experience with substance abuse, or compassion for the
young adult who is recovering from a substance addiction to help them
become the person they want to be.
CP at 248-51. The "About Us" section on Mr. Sommer's website partly specified:
"We are here to try to protect people from the financial and emotional distress
that comes with attending Life Designs Ranch." CP at 251. It concluded:
"Healing is not done and seems to be very limited in it's [sic] attempt. Keep your
money, go somewhere else ...." Id. (emphasis added). The website also
included a link to Human Earth Animal Liberation's (HEAL) preexisting website
alleging Life Designs is run like a cult, illegally exploits student labor, and
employs a staff member who worked at another camp when a young boy died.
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Life Designs sued Mr. Sommer for defamation, intrusion, false light, and
interference with business expectancy based on later business losses. After the
trial court dismissed its claims at summary judgment, Life Designs appealed.
STANDARD OF REVIEW
We review summary judgment orders de novo, engaging in the same
inquiry as the trial court. Mohrv. Grant, 153 Wn.2d 812,821,108 P.3d 768
(2005). Summary judgment is appropriate if the evidence, when viewed in a light
most favorable to the nonmoving party, shows no genuine issue of material fact
remains and the moving party is entitled to judgment as a matter of law. CR
56(c). "[C]onstruing the evidence in the light most favorable to the nonmoving
party, the court asks whether a reasonable jury could find in favor of that party."
Herron v. KING Broad. Co., 112 Wn.2d 762, 767-68, 776 P.2d 98 (1989). In
defamation cases, summary judgment plays an important role: "Serious problems
regarding the exercise of free speech and free press guaranteed by the First
Amendment are raised if unwarranted lawsuits are allowed to proceed to trial.
The chilling effect of the pendency of such litigation can itself be sufficient to
curtail the exercise of these freedoms." Mark v. Seattle Times, 96 Wn.2d 473,
485,635 P.2d 1081 (1981) (internal quotation marks omitted).
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ANALYSIS
A. Defamation Per Se
The issue is whether the trial court erred in failing to find, as a matter of law, Mr.
Sommer's website was defamatory per se. Life Designs contends reasonable minds
could solely conclude the false content on Mr. Sommer's website exposed it to hatred,
contempt, ridicule, and obloquy, deprived it of public confidence, and injured its
business.
"Whether a given communication constitutes defamation per se may be either a
question of law or a question of fact." Maison de France, Ltd. v. Mais Quil, Inc., 126
Wn. App. 34,43, 108 P.3d 787 (2005). A publication is defamatory per se (actionable
without proof of special damages) if it "(1) exposes a living person to hatred, contempt,
ridicule or obloquy, or to deprive him of the benefit of public confidence or social
intercourse, or (2) injures him in his business, trade, profession or office." Caruso v.
Local Union No. 690, 100 Wn.2d 343, 353, 670 P .2d 240 (1983). A jury normally
decides what is defamatory per se:
Where the definition of what is libelous per se goes far beyond the
specifics of a charge of crime, or of unchastity in a woman, into the more
nebulous area of what exposes a person to hatred, contempt, ridicule or
obloquy, or deprives him of public confidence or social intercourse, the
matter of what constitutes libel per se becomes, in many instances, a
question of fact for the jury.
Id. at 354 (quotation marks omitted).
Life Designs argues Mr. Sommer's website directly attacks its recovery program
business by denigrating its therapeutic environment and the staffs education,
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experience, and compassion. But the website statements do not rise to the level of
i "extreme" need to constitute defamation per se as a matter of law. The criticized
I1 statements are similar to those seen in Caruso, dealing with "the rather vague areas of
public con'fidence, injury to business, etc. n Id. at 353 .
.~
I
In Caruso, an article was printed in a weekly paper mailed to union members. Id.
at 346. The article urged readers to avoid patronizing a carpet business because the
business harassed laborers who, due to construction, parked at the business to make
deliveries nearby. Id. The article further explained despite the laborers' willingness to
move the equipment, the business still impounded the equipment. 'd. This article was
printed four times. 'd. at 346-47. After its publication, people called the business, telling
the owner they would not shop there. 'd. at 347. Other callers used various derogatory
and profane terms to refer to the owner. 'd. Sales dropped sharply. Id. The court held
the trial court improperly instructed the jury when it told the jury if the jury found the
article was false and defamatory it was libelous per se. 'd. at 353-54. Whether the
article was defamatory per se was for the jury to decide. 'd.
Similarly, Mr. Sommer's website warned potential clients away from Life Designs.
Life Designs' business declined shortly after publication. But unlike in Caruso, there
were no threatening phone calls nor were there calls where people said they would not
send their family member/client to Life Designs. Given Caruso, we conclude the less
severe publication here cannot be defamation per se as a matter of law.
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No. 32922-4-111
Life Designs Ranch v. Sommer
B. Defamation
The issue is whether the trial court erred in dismissing Life Designs' defamation
claim. Life Designs contends: (1) the contents of Mr. Sommer's website are actionable
statements of false fact resulting in damage to Life Designs and (2) Mr. Sommer
republished allegedly defamatory material by hyperlinking the HEAL website.
Life Designs must raise a genuine issue of material fact as to the four elements
of a prima facie defamation claim by establishing: (1) Mr. Sommer's statements were
false, (2) the statements were unprivileged, (3) Mr. Sommer was at fault, and (4) the
statements proximately caused damages. Alpine Indus. Computers, Inc. v. Cowles
Pub/'g Co., 114 Wn. App. 371, 378, 57 P.3d 1178 (2002). Here, elements (1) and (4)
are contested. "The prima facie case must consist of specific, material facts, rather than
conclusory statements, that would allow a jury to find that each element of defamation
exists." Id. (internal quotation marks omitted).
The alleged defamatory statement must be a statement of fact, not a statement
of opinion. Davis v. Fred's Appliance, Inc., 171 Wn. App. 348, 365, 287 P.3d 51 (2012).
As the line between fact and opinion "is sometimes blurry," we consider the following
factors to determine whether a statement is actionable: '''(1) the medium and context in
which the statement was published, (2) the audience to whom it was published, and (3)
whether the statement implies undisclosed facts.'" Id. (quoting Dunlap v. Wayne, 105
Wn.2d 529,539,716 P.2d 842 (1986». Regarding the first factor, the Dunlap court
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No. 32922-4-111
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noted statements expressing opinion are found more often in certain contexts. Dunlap,
I 105 Wn.2d at 539. "The court should consider the entire communication and note
whether the speaker qualified the defamatory statement with cautionary terms of
1
j apparency." Id. (internal quotation marks omitted).
All allegedly defamatory statements were published on Mr. Sommer's website,
the medium. In this realm, a dearth of Washington defamation law exists. While other
I jurisdictions have found statements on similar "spoof' websites can survive a motion for
I
summary judgment or a motion to dismiss, no case has held the existence of such a
"spoof' website automatically means the statements on the website are actionable. See
Taylor Bldg. Corp. of Am. v. Benfield, 507 F. Supp. 2d 832, 838-40 (S.D. Ohio 2007)
(individually analyzing statements on a "spoof' website to determine whether they are
j
actionable); Winerv. Senior Living Guide, Inc., No. 12-934,2013 WL 1217582 (W.O.
1 Pa. 2013) (denying motion to dismiss where the "spoof' website contained untrue
1 factual statements and falsely indicated it was the plaintiff's official website).
Mr. Sommer did not attempt to pass his website off as Life Designs' official
website; the "About Us" section is clear, using "seems" as a word of apparency.
Dunlap, 105 Wn.2d at 539; CP at 251. Thus the website suggested opinions, not facts.
Furthermore, Mr. Sommers website did provide a hyperlink to Life Designs' official
website and expressly said that the link was to "the website for Life Designs Ranch."
i CP at 250. From a policy standpoint, allowing businesses to sue any unhappy
I consumer for what they posted online for defamation would stifle freedom of speech.
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No. 32922-4-111
Life Designs Ranch v. Sommer
The internet is a medium where statements expressing opinions in the context of
reviewing businesses and services are often found. The medium and context of Mr.
Sommer's website denotes it is opining about the quality of Life Designs' business,
especially when looked at in relation to the other two factors discussed next.
For the second factor, courts should consider "whether the audience expected
the speaker to use exaggeration, rhetoric, or hyperbole." Dunlap, 105 Wn.2d at 539.
Here, the audience was the people researching Life Designs. Online search engines
retrieved many results for Life Designs; the first result was Life Designs' official website,
the fourth result was Mr. Sommer's website, and the fifth result was the HEAL website.
The blurb describing Mr. Sommer's website read, "Thinking about going to or sending
someone you love to Life Designs Ranch?? Read this first." CP at 60. This language
signaled this was a review and not the official website of Life Designs.
The third factor is "perhaps [the] most crucial" as "[a]rguments for actionability
disappear when the audience members know the facts underlying an assertion and can
judge the truthfulness of the allegedly defamatory statements themselves." Dunlap, 105
Wn.2d at 539-40; see Davis, 171 Wn. App. at 366 (stating the third factor "addresses
whether a listener unknown to the plaintiff can judge the truthfulness of the statement").
"Whether a statement is one of fact or opinion is a question of law unless the statement
could only be characterized as either fact or opinion." Davis, 171 Wn. App. at 365. Life
Designs discusses three statements in its briefing.
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No. 32922-4-111
Life Designs Ranch v. Sommer
The first criticized statement is: "What you get. . .. 2 or 3 twelve step meetings
a week in a very small western Washington community where the only young adults in
attendance are those from Life Designs ranch." CP at 248. While Mr. Sommer
incorrectly described Life DeSigns as being located in western Washington, this
statement was not based on undisclosed facts. Rather, Life DeSigns' official website
states it is located in Cusick, Washington, which is on the eastern side of the state.
The second statement, "What you get .... A visual experience of pine trees,
dead pine trees, falling down pine trees, disintegrated pine trees, and more pine trees.
River, can't be seen. Mountains, can't be seen. Civilization, can't be seen. But there
are pine trees!!!!!" CP at 248. On its website, Life Designs disclosed it is located "on 30
acres overlooking the Pend O'reille River on the international Selkirk Scenic Loop" and
the "area boasts a reputation for one of the most undiscovered recreational areas in the
northwest." Life Designs Ranch, http://www.lifedesignsinc.com (last visited Sept. 9,
2015). The website shows pictures of clients in Life Designs' natural setting. Id.
The third statement is "Who Should Go? You should go to Life Designs if:
You believe that it takes no education or experience with substance abuse, or
compassion for the young adult who is recovering from a substance addiction to help
them become the person they want to be." CP at 249. Again, this statement is based
on disclosed facts. Life Designs' website discusses the experience and education of its
staff. While the compassion of the staff is not directly addressed on Life Designs'
website, compassion is a subjective determination and is thus opinion.
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No. 32922-4-111
Life Designs Ranch v. Sommer
Each Dunlap factor weighs in Mr. Sommer's favor. Given all, Mr. Sommer's
statements were nonactionable as defamation. Even if actionable, Life Designs fails to
make a sufficient showing Mr. Sommer's statements proximately caused its damages. 1
The sparse evidence shows (1) a decline in referrals following publication of Mr.
Sommer's website despite an increase in traffic to Life Designs' official website, (2)
some hearsay by Mr. Garrett about an interaction between Mr. Sommer and Mr.
8alagna regarding not making referrals to Life Designs, and (3) no other apparent
changes accounting for the referral decline. Mr. Garrett's declaration opining Mr.
Sommer's website caused the decline in referrals is conclusory. Mr. Garrett limited his
analysis to Life Designs' official website. No evidence shows anyone who visited Life
Designs' website visited or was influenced by Mr. Sommer's website. Life Designs has
1 Mr. Sommer contends Mr. Garrett's declaration is inadmissible as an expert
opinion because (1) Mr. Garrett was not qualified to offer the opinions contained therein,
thus (2) much of the declaration was inadmissible conclusory allegations of a lay
witness. We cannot consider inadmissible evidence when ruling on a motion for
summary judgment. Davis, 171 Wn. App. at 357. We review the admissibility of
evidence in summary judgment proceedings de novo. Id. ER 702 states: "If scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise." Under this rule, we engage in a two-part inquiry: "(1) does the witness
qualify as an expert; and (2) would the witness's testimony be helpful to the trier of fact."
State v. Guillot, 106 Wn. App. 355, 363, 22 P.3d 1266 (2001). The focus of our inquiry
is on Mr. Garrett's qualifications. "[I]n the appropriate context, practical experience is
sufficient to qualify a witness as an expert." State v. McPherson, 111 Wn. App. 747,
762,46 P.3d 284 (2002) (internal quotation marks omitted). Once a witness is qualified
as an expert, any deficiencies in that qualification go to the weight, not the admissibility
of the testimony. Keegan v. Grant County PUb. Util. Dist. No.2, 34 Wn. App. 274, 283,
661 P.2d 146 (1983). Mr. Garrett's experience in wilderness programs, computers
(including building a website), and business development render his testimony
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No. 32922-4-111
Life Designs Ranch v. Sommer
not referred to or produced anyone who did not choose Life Designs because of Mr.
Sommer's website. And while Life Designs can show Mr. Sommer talked to Mr.
8alagna about not referring anyone to Life Designs, no evidence shows Mr. 8alagna
took Mr. Sommer's advice and stopped referring clients.
Mr. Sommer argues coincidence is not proof of causation. See Anica v. Wal-
Marf Stores, Inc., 120 Wn. App. 481, 489, 84 P .3d 1231 (2004) (stating employee's
argument that timing of her termination gave rise to a reasonable inference of unlawful
discrimination relied on a logical fallacy-uafter this, therefore because of this"). Life
Designs cites to Borden v. City of Olympia. 113 Wn. App. 359, 53 P.3d 1029 (2002), to
show coincidence in timing can give rise to an inference the result was the proximate
cause of the action. There are two defects in Life Designs' analogy. First. Borden was
not a defamation case. In defamation cases. it has been held in a summary judgment
context, absent a privileged defendant, a private individual must prove negligence by a
preponderance of the evidence. Momah v. Bharfi, 144 Wn. App. 731,742, 182 P.3d
455 (2008); see Mohr, 153 Wn.2d at 822. Second, the evidence used regarding
coincidence in timing was quite different. In Borden, flooding started the first winter
after the drainage project was completed and recurred each winter for several years.
Borden, 113 Wn. App. at 372. The flooding subsided when another drainage facility
channelled water out of the area. Id. The evidence submitted by Life Designs does not
meet the preponderance of the evidence standard.
admissible under ER 702. Any deficiencies in his testimony thus would go to the
weight.
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No. 329224-111
Life Designs Ranch v. Sommer
Next, Life Designs contends publishing the hyperlink to an allegedly defamatory
website alone constitutes republication of that defamatory content to third persons
reading Mr. Sommer's website. No Washington case addresses this contention.
Washington has adopted the single publication rule which "states that anyone
edition of a book or newspaper, or anyone radio or television broadcast, is a single
publication." Momah, 144 Wn. App. at 752 (internal quotation marks omitted). Momah
is the sole Washington case exploring application of this rule to the internet. There, a
newspaper published comments attributed to the defendant. 'd. at 737. Another article
was later published, again quoting the defendant. Id. At some point, the defendant
posted the newspaper articles to his website. Id. In holding the defendant republished
the defamatory material, the court reiterated "the general rule that each communication
of the same defamatory matter by the same defamer, whether to a new person or to the
same person, is a separate and distinct publication, for which a separate cause of
action arises." 'd. at 753 (internal quotation marks omitted). The court held the
defendant made the statement two different times, once when he spoke to the
newspaper and once when he posted the articles on his website. 'd. The two
publications were aimed at different audiences. Id. The court found the situation did
not differ from a newscast reading the same copy at 5:30 p.m. and 11 :00 p.m. Id.
While no Washington law is directly on point, a federal court grappling with this
same issue used Washington law to hold "a mere reference or URL [Uniform Resource
Locator] is not a publication of the contents of the materials referred to." U. S. ex. reI.
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No. 32922-4-111
Life Designs Ranch v. Sommer
Klein v. Omeros Corp., 897 F. Supp. 2d 1058, 1074 (W.O. Wash. 2012). The Klein
court distinguished relevant Washington case law, including Momah, by stating "a
finding of republication hinged on the defendant's communication of the contents of the
original, allegedly defamatory statements." Id. Because the defendant in Klein merely
provided a URL to such statements, no republication of the contents existed. Id.
Other courts considering the issue are in accord with Klein. In Salyer v. S.
Poverty Law Center, Inc., 701 F. Supp. 2d 912, 916 (W.O. Ky. 2009), the court
observed:
It appears that the common thread of traditional republication is that it
presents the material, in its entirety, before a new audience. A mere
reference to a previously published article does not do that. While it may
call the existence of the article to the attention of a new audience, it does
not present the defamatory contents of the article to that audience.
Therefore, a reference, without more, is not properly a republication.
Because a hyperlink is more like a reference than a separate publication, "[m]aking
access to the referenced al1icle easier does not appear to warrant a different conclusion
from the analysis of a basic reference." Id. at 917; see also In re Philadelphia
Newspapers, 690 F.3d 161, 175 (3d Cir. 2012) (holding "though a link and reference
may bring readers' attention to the existence of an article, they do not republish the
article").
We are persuaded by Klein and Salyer. We reason a URL is not qualitatively
different from a mere reference. Therefore, we hold Mr. Sommer did not republish
allegedly defamatory material when he posted on his website: "For more info click or cut
and paste the link below http://www.heal-online.org/lifedesigns.htm ... CP at 249.
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C. Tortious Interference with a Business Expectancy
The issue is whether the trial court erred in dismissing Life Designs' claim for
tortious interference with a business expectancy. The five elements of a tortious
interference with a business expectancy are: "(1) the existence of a valid ... business
expectancy; (2) that defendants had knowledge of that [expectancy]; (3) an intentional
interference inducing or causing a breach or termination of the ... expectancy; (4) that
defendants interfered for an improper purpose or used improper means; and (5)
resultant damage." Leingang v. Pierce County Med. Bureau, 131 Wn.2d 133, 157,930
P.2d 288 (1997). The first, third, fourth, and fifth elements are at issue here.
"A valid business expectancy includes any prospective contractual or business
relationship that would be of pecuniary value." Newton Ins. Agency & Brokerage, Inc. v.
Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 158,52 P.3d 30 (2002). A plaintiff must
show future business opportunities "are a reasonable expectation and not merely
wishful thinking," but certainty of proof is not needed. Caruso v. Local Union No. 690,
33 Wn. App. 201, 208, 653 P.2d 638 (1982), rev'd on other grounds, 100 Wn.2d 343
(1983). Life Designs used its historical referral and enrollment records to demonstrate it
could reasonably (1) expect a certain number of referrals each quarter and (2)
successfully enroll a specific percentage of those referrals as clients. Thus, Life
Designs raised a prima facie business expectancy.
Next, interference with a business expectancy is intentional "if the actor desires
to bring it about or if he knows that the interference is certain or substantially certain to
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No. 32922-4-111
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occur as a result of his action." Newton Ins. Agency & Brokerage, Inc., 114 Wn. App. at
158 (internal quotation marks omitted). Looking at the evidence in the light most
favorable to Life Designs, Mr. Sommer intentionally interfered with a business
expectancy. Mr. Sommer acquired a domain name similar to that of Life Designs'
official website because he wanted people to see his website when searching for Life
Designs. Mr. Sommer wanted people to research and question Life Designs' program.
Mr. Sommer admitted telling Mr. Balagna he should not refer clients to Life Designs.
In evaluating the fourth element, a plaintiff must establish the intentional
interference was wrongful. Pleas v. City of Seattle, 112 Wn.2d 794, 804, 774 P.2d 1158
(1989). Interference is wrongful if it is done for an improper purpose or by improper
means. Id. In Pleas, the city of Seattle intentionally stalled development of a high-rise
apartment complex. The improper motive was a desire to curry favor with the active
and influential opponents of the project; the improper means was the city's arbitrary
refusal to grant necessary permits. Id. at 804-05. The means used by Mr. Sommer, the
internet website, was not improper. But looking at the evidence in the light most
favorable to Life Designs, a genuine issue of material fact exists as to whether Mr.
Sommer acted with an improper purpose as he threatened to destroy Life Designs'
reputation in an e-mail.
Decisive is the fifth element. Life Designs fails to show resultant damage to its
business expectancy. The trial court did not err in dismissing this claim because Life
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Designs' conclusory claim of injury to reputation lacks evidentiary support. No client, I
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potential client, or referral source submitted an affidavit establishing they can no longer
trust Life Designs or did not choose Life Designs because of Mr. Sommer's website.
D. False Light
The issue is whether the trial court erred in dismissing Life Designs' false light
claim. Life Designs contends Mr. Sommer's website placed the Barrancos in a false
light because the contents of the website created a false impression about the way in
which the Barrancos operated their business.
"The protectable interest in privacy is generally held to involve four distinct types
of invasion: intrusion, disclosure, false light and appropriation." Eastwood v. Cascade
Broad. Co., 106 Wn.2d 466,469,722 P.2d 1295 (1986) (internal quotation marks
omitted). Actions based on invasion of privacy are separate and distinct from those
based on defamation. Id. False light claims differ from defamation claims because
false light claims focus on compensation for mental suffering rather than reputation. Id.
at 471. Washington follows the Restatement (Second) of Torts. Hearst Corp. v. Hoppe,
90 Wn.2d 123, 135,580 P.2d 246 (1978) (establishing the RESTATEMENT (SECOND) OF
TORTS § 652D (1977) sets out the guiding principles for invasion of privacy actions).
Only a living individual whose privacy has been invaded can maintain an action
for invasion of privacy. RESTATEMENT (SECOND) OF TORTS § 6521. Comment (c) to the
Restatement states a corporation has no personal right of privacy and thus has no
cause of action for invasion of privacy. Thus, Life Designs' false light claim fails. But
the Barrancos individually sued for false light and do not face the corporate exclusion.
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No. 32922-4-111
Life Designs Ranch v. Sommer
A false light claim arises when someone publicizes a matter that places
another in a false light if (a) the false light would be highly offensive to a
reasonable person and (b) the actor knew of or recklessly disregarded the
falsity of the publication and the false light in which the other would be
placed.
Eastwood, 106 Wn.2d at 470-71 (internal quotation marks omitted). While the
Barrancos' false light claim may have merit, all evidence in relation to damages is in
reference to Life Designs. Ms. Barranco was not mentioned by name on Mr. Sommer's
website; her claim is derivative of Mr. Barranco's claim. Mr. Barranco did not state he
personally suffered damage to his reputation or any emotional suffering; rather, all his
statements refer to the damages suffered by his business, Life Designs. Thus, the trial
court did not err in dismissing the false light claims.
Affirmed.
Brown, A.C.J.
I CONCUR:
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No. 32922-4-111
FEARING, J. (concurring in part and dissenting in part) - I conclude that plaintiff
Life Designs Ranch, Inc. (Life Designs) presents sufficient facts to survive a summary
judgment motion on its claims of defamation and tortious interference with business
expectancy. Thus, I, in part, respectfully dissent from the majority. I concur with the
majority's ruling that Life Designs may not recover against Michael Sommer because of
a hyperlink on his website to another site critical of Life Designs. I also concur that Life
Designs and Vincent and Bobbie Barranco cannot recover in false light.
The majority commits three fundamental errors that lead to my partial dissent.
First, the majority mistakenly fabricates a new element of "extreme defamation" for
defamation per se. Second, the majority mistakenly levies a higher standard of proof, not
imposed in other actions, for causation in defamation and tortious interference with
business expectancy actions. Third, the majority also weighs facts on the issue of
damages.
The majority retells the basic facts of the dispute. The facts include quotes of the
alleged defamatory statements published by defendant Michael Sommer about Life
No. 32922-4-III
Life Designs v. Sommer
Designs. I will emphasize some of the basic facts when I discuss the respective claims
asserted by Life Designs.
DEF AMATION PER SE
I do not know if defamation per se is a cause of action distinct from defamation,
but I analyze the former separately from the latter. Life Designs does not allege
defamation per se as a separate cause of action but has consistently argued defamation
per se as a basis for recovery. Defamation per se loosens for the plaintiff the burden of
proving damages. If a plaintiff shows defamation per se, the law presumes damages.
Maison de France, Ltd. v. Mais Qui!, Inc., 126 Wn. App. 34, 53-54, 108 P.3d 787 (2005).
Stated differently, plaintiff need not prove loss of income or special damages to recover.
Since the trial court dismissed Life Designs' defamation claim because of a failure to
show damages, whether Life Designs creates an issue of fact as to defamation per se
looms important. To intelligently analyze defamation per se, I must first include a
discussion of the elements of defamation.
The common law distinguished between libel, written or printed defamatory
words, and slander, spoken defamatory words. Washington no longer distinguishes
between libel and slander, such that Washington law only recognizes a cause of action for
defamation.
The law of defamation embodies the public policy that individuals should be free
to enjoy their reputations unimpaired by false and defamatory attacks. Maressa v. New
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No. 32922-4-II1
Life Designs v. Sommer
Jersey Monthly, 89 N.J. 176,445 A.2d 376, 383 (1982); Campos v. Oldsmobile Div.,
Gen. Motors Corp., 71 Mich. App. 23, 246 N.W.2d 352, 354 (1976); 50 Am. Jur. 2d
Libel and Slander § 2 (2015). Decisions of the United States Supreme Court recognize
the important societal interest in the protection of individual reputations, despite First
Amendment protections for free speech. Herbert v. Lando, 441 U.S. 153, 169,99 S. Ct.
1635,60 L. Ed. 2d 115 (1979); N. Y. Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L.
Ed. 2d 686 (1964). Defamation is an impairment of a relational interest; it denigrates the
opinion which others in the community have of the plaintiff and invades the plaintiffs
interest in his or her reputation and good name. Lumbermen's Mut. Cas. Co. v. United
Services Auto Ass'n, 218 N.J. Super. 492,528 A.2d 64, 67 (App. Div. 1987); 50 Am. Jur.
2d Libel and Slander § 2 (2015). One's reputation can greatly impact one's business and
income. Washington courts generally deny that the state's civil law seeks to punish, but
one Supreme Court decision exclaimed that the purpose of defamation law is to punish
the publisher, since there is no constitutional protection for a false, damaging statement.
Due Tan v. Le, 177 Wn.2d 649,666,300 P.3d 356 (2013).
Washington decisions characterize defamation as consisting of four elements: (1) a
false statement, (2) publication, (3) fault, and (4) damages. Due Tan v. Le, 177 Wn.2d at
662 (2013); Herron v. KING Broad. Co., 112 Wn.2d 762, 768, 776 P.2d 98 (1989).
Some cases substitute the element of unprivileged communication for publication.
Grange Ins. Ass'n v. Roberts, 179 Wn. App. 739, 767, 320 P.3d 77 (2013), review
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No. 32922-4-III
Life Designs v. Sommer
denied, 180 Wn. 2d 1026,328 P.3d 903 (2014); Demopolis v. Peoples Nat 'I Bank of
Wash., 59 Wn. App. 105, 108, 796 P.2d 426 (1990). The traditional four elements can be
dissected into a lengthier list that includes:
1. a statement;
2. factual in character rather than an opinion;
3. defamatory in nature;
4. and false;
5. concerning the plaintiff;
6. communicated to a third party;
7. without an absolute or conditional privilege to so communicate;
8. with a varying degree of fault on the part of the defendant depending on the
nature of the plaintiff and the statement;
9. and which causes;
10. damages.
Former Court of Appeals Judge Dean Morgan wrote an opinion in Schmalenberg v.
Tacoma News, Inc., 87 Wn. App. 579,943 P.2d 350 (1997), in the nature ofa law review
article, that meticulously explains the history behind the defamation action and the
permutations in its elements.
I return to defamation per se. Michael Sommer contends that defamation per se
applies solely to statements accusing the plaintiff of unchaste or criminal conduct.
Sommer cites Davis v. Fred's Appliance, Inc., 171 Wn. App. 348, 367,287 P.3d 51, 61
(2012) for this proposition. Davis at page 367 does read that: "defamation per se
generally requires imputation of a crime or communicable disease." (Emphasis added).
I
The quotation does not read that defamation per se always necessitates attribution of
crime or communicable disease. Davis cites a Florida and an Ohio case for its
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No. 32922·4·III
Life Designs v. Sommer
proposition.
No Washington decision expressly limits defamation per se to crime and
infectious disease. Instead, oodles of decisions extend defamation per se well beyond
accusations of disease and criminal behavior. A statement is defamatory per se if it (1)
exposes a living person to hatred, contempt, ridicule or obloquy, or to deprive him ofthe
benefit of public confidence or social intercourse, or (2) injures him in his business, trade,
profession or office. Caruso v. Local Union No. 6900/Int 'I Bhd. o/Teamsters, 100
Wn.2d 343,353,670 P.2d 240 (1983); Amsbury v. Cowles Publ'g Co., 76 Wn.2d 733,
737,458 P.2d 882 (1969); Grayson v. Curtis Publ'g Co., 72 Wn.2d 999,436 P.2d 756
(1967); Purvis v. Bremer's, Inc., 54 Wn.2d 743,751,344 P.2d 705 (1959); Spangler v.
Glover, 50 Wn.2d 473,313 P.2d 354 (1957); Woodv. Battle Ground Sch. Dist., 107 Wn.
App. 550, 573-74,27 P.3d 1208 (2001); Maison de France, Ltd. v. Mais Quit, Inc., 126
Wn. App. 34 (2005); Haueter v. Cowles Publ'g Co., 61 Wn. App. 572, 578, 811 P.2d 231
(1991); Vern Sims Ford, Inc. v. Hagel, 42 Wn. App. 675, 679, 713 P.2d 736 (1986);
Corbin v. Madison, 12 Wn. App. 318, 529 P.2d 1145 (1974). Defamatory words spoken
of a person, which themselves prejudice him in his profession, trade, vocation, or office,
are slanderous and actionable per se. Ward v. Painters' Local Union No. 300,41 Wn.2d
859,863,252 P.2d 253 (1953); Maison de France, Ltd. v. Mais Quit, Inc., 126. Wn. App.
at 45 n.l (2005); Waechter v. Carnation Co., 5 Wn. App. 121, 126,485 P.2d 1000
(1971). A publication is also defamatory per se if it imputes to the plaintiff conduct
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No. 32922-4-III
Life Designs v. Sommer
involving moral turpitude. Maison de France, Ltd. v. Mais Quil, Inc., 126 Wn. App. 34
(2005); Wardv. Painters' Local Union No. 300,41 Wn.2d at 863.
The list of categories mentioned by Washington courts as comprising defamation
per se may cover all defamatory statements such that all defamatory statements could be
judged defamation per se, particularly since the object behind the tort is to protect one's
public confidence and the goal of the tort is to guard one's personality from contempt and
ridicule. I need not explore the limits, however, of defamation per se, since facts support
a conclusion that Michael Sommer's website deprived Life Designs of the benefit of
public confidence and injured the business and trade of the addiction recovery center.
The majority impliedly holds that a defamatory statement must be "extreme" in
order to qualify as defamatory per se. Majority Op. at 6. No Washington decision
supports this holding. The adjective "extreme" arises from our high court's decision in
Caruso v. Local Union No. 690 ofInt 'I Bhd. ofTeamsters. The Supreme Court wrote:
The imputation of a criminal offense involving moral turpitude has
been held to be clearly libelous per se. [Wardv. Painters' Local 300], 41
Wn.2d 859,252 P.2d 253 (1953). The instant case is quite different. It
deals with the rather vague areas of public confidence, injury to business,
etc. In such cases
Where the definition of what is libelous per se goes far
beyond the specifics of a charge of crime, or of unchastity in
a woman, into the more nebulous area of what exposes a
person to hatred, contempt, ridicule or obloquy, or deprives
him of public confidence or social intercourse, the matter of
what constitutes libel per se becomes, in many instances, a
question of fact for the jury.
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No. 32922-4-III
Life Designs v. Sommer
Purvis v. Bremer's, Inc., 54 Wn.2d 743, 752, 344 P.2d 705 (1959). In all
but extreme cases the jury should determine whether the article was
libelous per se. Miller v. Argus Publ'g Co., 79 Wn.2d 816,820 n.3, 821
n.4, 490 P.2d 101 (1971); Amsbury v. Cowles Publ'g Co., supra [76 Wn.2d
at 740].
Caruso v. Local Union, 100 Wn.2d at 353-54. (Emphasis added). Note that the
quotation demands that the jury determine whether a statement is defamatory per se
except in extreme cases. The excerpt does not command an extreme case before a judge
or jury may declare the statement defamatory per se. Later decisions read the. Caruso
quote as declaring that a determination of whether a statement is defamatory per se is for
the court, not the jury, unless the claim involves the vague areas of pub lie confidence or
injury to business. Wood v. Battle Ground Sch. Dist., 107 Wn. App. at 574 (2001). Life
Designs does not seek a ruling on appeal as a matter of law that Michael Sommer's
website constituted defamation per se. Life Designs settles for sending the claim of
defamation per se to a jury.
The majority's holding that only "extreme" cases qualifY for defamation per se
will create difficulties for practitioners and lower courts. The majority gives little, if any,
guidance, as to what circumstances qualifY as "extreme" cases. Lawyers and trial courts
may wonder if they look to principles adopted in intentional infliction of emotional
distress decisions to determine when conduct of a defendant constitutes outrage. In such
a setting, the plaintiff must establish "extreme" conduct. Trujillo v. Nw. Trustee Servs.,
Inc., 183 Wn.2d 820,840,355 P.3d 1100 (2015).
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No. 32922-4-III
Life Designs v. Sommer
In Caruso v. Local Union, the defendant union published a "do not patronize"
article in its weekly paper. The article read:
Don't [P]atronize Carpet City in Spokane
This is to notify all members of Teamsters Union, Local 690 and all
other Teamsters and Laboring people in the State of Washington that when
traveling to and from the Expo City-"please do not patronize Carpet City
Carpet & Linoleum Shop at West 518 Main A venue"-Spokane,
Washington," [sic] (Expo City). The reasons for this request are: This
Company is continuously harassing the Teamsters and other laboring
people who may at some time use the parking facility at this place of
business to make a delivery because of the congested traffic problems in
Expo City since construction is going on mainly in that area. Someone
from this Company removes the keys of such vehicles, have [sic] the
equipment impounded and create [sic] many problems for these employees
and their employers including the cost of impoundment to those effected
[sic].
This company will not cooperate with these drivers when told that
they will move their equipment and apologize for parking in this area
their equipment is still impounded!
We request that all Laboring people-Teamsters or otherwise--do
not {pJatronize Carpet City Carpet & Linoleum Shop.
Thanks kindly for your Support.
Teamsters Union, Local 690.
Caruso, 100 Wn.2d at 346. Facts belied the allegations regarding the carpet business'
lack of cooperation and impoundment of vehicles after an apology. Contrary to this
court's majority's analysis, the Caruso court did not declare ajury instruction erroneous
because it directed the jury to find the paper's article to be defamatory per se if it found
the article to be false. The court found the instruction mistaken because it allowed the
jury to presume damages without a finding of malice, a ruling that is no longer accepted
law.
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No. 32922-4-III
!I Life Designs v. Sommer
The majority in this appeal emphasizes threatening phone calls placed to Robert
Caruso after the union's publication and distinguishes the case on appeal with Caruso v.
Local Union on the basis that Life Designs received no phone calls or threatening
iI
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messages. Nevertheless, the threatening phone calls were relevant to the damages
sustained by Caruso, not to the liability of the union. The reader's response to a
defamatory statement has no bearing on whether the statement is defamation per se.
Caruso does not read to the contrary.
At least three Washington decisions illustrate that Michael Sommer's website
entries qualifY for defamation per se. In Woodv. Battle Ground School District, 107 Wn.
App. 550 (2001), this court reversed a summary judgment dismissal ofa defamation
claim brought by a former employee of the school district against the district board chair.
The chairman told a local newspaper that Jennifer Wood's performance as a
communications coordinator was "lacking." The court characterized the quotation as
defamatory per se.
In Vern Sims Ford, Inc. v. Hagel, 42 Wn. App. 675 (1986), Fred Hagel claimed
the Ford dealership overcharged him for the purchase of a van. Hagel sent a flyer to
approximately one hundred persons in the dealership's community. The flyer read that
the dealership and its salesperson were thieves. The trial court awarded damages despite
no proof of actual damages since the flyer injured the dealership's business reputation.
This court agreed the flyer constituted defamation per se and affirmed the award.
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No. 32922-4-III
Life Designs v. Sommer
In Waechter v. Carnation Co., 5 Wn. App. 121 (1971), a competitor in milk
delivery told customers in the community that the plaintiff's milk was not properly
refrigerated and therefore contained bacteria injurious to the drinker's health. This court
sustained a substantial award despite missing proof of actual damages because the nature
of the defamatory statement was defamatory per se.
FALSITY, FACT, AND OPINION
I must now determine whether Life Designs presents some evidence of all of the
elements of defamation, regardless of whether Michael Sommer's comments were
defamatory per se. Irrespective of whether the defendant's statements affect the
plaintiff's business, the plaintiff must still fulfill the elements of defamation. The
majority holds that all remarks on Sommer's website were opinion, not factual, in
personality. The majority also holds that Life Designs failed to provide evidence of
damages. I address now whether some evidence supports a conclusion that remarks on
Sommers' website were factually false. I will later address damages.
Consistent with the majority's ruling, Michael Sommer argues that the contents of
his website entirely entail mockery, exaggeration, vituperation, and complaints over
pricing and the quality of services received. Sommer asks that this court rule as a matter
of law that written grievances from a dissatisfied customer complaining of overcharges
and poor service is protected and not defamatory. When Sommer contends that his
comments were not defamatory he does not contend that his statements were not negative
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No. 32922-4-III
Life Designs v. Sommer
or hurtful to Life Designs. In other words, he does not argue that the meaning of the
words was not defamatory, but he argues instead that his comments were in the nature of
opinions and thus not qualifying as defamation. Sommer mentions in passing that an
element of defamation is a defamatory statement, but Sommer does not expressly adopt
the position that any particular statement could not injure Life Designs' reputation.
Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration. West v. Thurston County, 168 Wn. App. 162, 187,275 P.3d 1200 (2012);
Holland v. City o/Tacoma, 90 Wn. App. 533, 538,954 P.2d 290 (1998).
At the outset, the defamation plaintiff must prove the offensive statement is
"provably false." Alpine Indus. Computers, Inc. v. Cowles Publ'g Co., 114 Wn. App.
371,379, 57 P.3d 1178 (2002), 64 P.3d 49 (2003); Schmalenberg v. Tacoma News, Inc.,
87 Wn. App. at 590 (1997). A statement can be provably false ifit falsely describes the
act, condition or event that comprises its subject matter. Schmalenberg, 87 Wn. App. at
590. Implications, like plain statements, may give rise to a defamation claim. Mohr v.
Grant, 153 Wn.2d 812, 823, 108 P.3d 768 (2005). In a defamation by implication case,
the plaintiff must show that the statement at issue is provably false, either because it is a
false statement or because it leaves a false impression. Sisley v. Seattle Pub. Sch., 180
Wn. App. 83, 87-88, 321 P.3d 276 (2014).
Defamation law distinguishes between fact and opinion. While communication of
a false fact may not be privileged, expressions of opinion are protected under the First
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No. 32922·4-III
Life Designs v. Sommer
Amendment and thus are not actionable. Camer v. Seattle Post·lntelligencer, 45 Wn.
App. 29, 39, 723 P.2d 1195 (1986).
Certain means of expression qualify as opinion. "Rhetorical hyperbole" is not
actionable as defamation and is constitutionally protected. Haueter v. Cowles Publ 'g
Co., 61 Wn. App. 572, 586 (1991). Some statements cannot reasonably be understood to
be meant literally and seriously and are obviously mere vituperation and abuse. Robel v.
Roundup Corp., 148 Wn.2d 35,55,59 P.3d 611 (2002), (quoting RESTATEMENT
(SECOND) OF TORTS § 566 cmt. e (1977)).
The law treats some ostensible opinions as facts and actionable in defamation. A
defamatory communication may consist of a statement in the form of an opinion, and a
statement of this nature is actionable if it implies the allegation of undisclosed
defamatory facts as the basis for the opinion. Camer, 45 Wn. App. at 39 (quoting
RESTATEMENT (SECOND) OF TORTS § 566 at 170 (1977)). A statement meets the
provably false test to the extent it expresses or implies provable facts, regardless of
whether the statement is, in form, a statement of fact or a statement of opinion. Valdez-
Zontak v. Eastmont Sch. Dist., 154 Wn. App. 147,225 P.3d 339 (2010). If a direct
statement of facts would be defamatory, then a statement of an opinion implying the
existence of those false facts supports a defamation action. Henderson v. Pennwalt
Corp., 41 Wn. App. 547,557,704 P.2d 1256 (1985).
The determination of whether a communication is one of fact or opinion is a
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No. 32922-4-III
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question oflaw for the court. Benjamin v. Cowles Publ'g Co., 37 Wn. App. 916, 922,
684 P.2d 739 (1984). Washington courts have promulgated two complimentary tests to
aid a court in making this determination. Under the first test, the court should consider:
(1) the entire article and not merely a particular phrase or sentence, (2) the degree to
which the truth or falsity of a statement can be objectively determined without resort to
speculation, and (3) whether ordinary persons hearing or reading the matter perceive the
statement as an expression of opinion rather than a statement of fact. Benjamin, 37 Wn.
App. at 923; Carner, 45 Wn. App. at 39. Even apparent statements of fact may assume
the character of opinions, and thus be privileged, when made in public debate, heated
labor dispute, or other circumstances in which an audience may anticipate efforts by the
parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole.
Carner v. Seattle Post-Intelligencer, 45 Wn. App. at 41 (1986). In other words, both the
immediate as well as broader social context in which the statements occur should be
considered. Carner, 45 Wn. App. at 41.
Under the second test, to determine whether the words are nonactionable opinions,
the court considers the totality of the circumstances surrounding the statements. Robel v.
Roundup Corp., 148 Wn.2d at 55 (2002). The court studies (1) the medium and context
in which the statement was published, (2) the audience to whom it was published, and (3)
whether the statement implies [defamatory] undisclosed facts. Durzlap v. Wayne, 105
Wn.2d 529, 539, 716 P.2d 842 (1986); Robel v. Roundup Corp., 148 Wn.2d at 55.
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No. 32922-4-111
Life Designs v. Sommer
Michael Sommer argues that Robel v. Roundup Corporation is dispositive in his
favor. Linda Robel, an employee of defendant, filed a worker compensation claim.
Thereafter imaginative coworkers called Robel pleasantries such as "bitch," "cunt,"
"fucking bitch," "fucking cunt," "snitch," "squealer," "liar," and "idiot." 128 Wn.2d at
55 (2002). The Supreme Court concluded that, under the circumstances in which the
coemployees uttered the names, the words were plainly abusive words not intended to be
taken literally as statements of fact. The court applied the Dunlap three-factor test. At
issue were oral statements made in circumstances and places that invited exaggeration
and personal opinion. Those engaging in the name-calling were Robel's coworkers and
superiors who were potentially interested in discrediting her complaints to management
about questionable food handling practices in the deli or who were personally interested
in ostracizing Robel in the workplace. The audience of the statements was Fred Meyer's
customers, workers and managers. All would have been aware of the animosity between
Robel and other coworkers. Words such as "snitch," "squealer," and "liar" would have
registered, if at all, as expressions of personal opinion, not as statements of fact
According to the court, customers hearing the comments would reasonably perceive that
the speaker was an antagonistic or resentful coworker.
To determine whether genuine issues of material fact relating to defamatory words
and falsity exist, 1 must necessarily examine the challenged statements against the
available evidence. 1 later explore the context in which Sommer published his
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i Life Designs v. Sommer
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I statements. Michael Sommer's website no longer exists, so the court may not review the
website as a whole, including its design and layout. We must rely on snapshots taken of
some of the contents.
I divide the alleged defamatory statements of Michael Sommer into four
descriptions: the pine trees, the terrain, the western Washington, and the counselor
remarks. The pine trees comment declared:
What you get . .. A visual experience of pine trees, dead pine trees,
falling down pine trees, disintegrated pine trees, and more pine trees.
CP at 248. Pine trees grow in the physical world and thus their existence and condition
can be perceived objectively. The ordinary person would consider the statement one of
fact.
Michael Sommer's comment refers to pine trees five times. On two of the
references, he does not write that the pine trees are fallen, injured or ill. A sixth and later
reference mentions pine trees without describing them as ill or dead. Thus, the reader
could conclude that some beautiful trees lay on Life Designs' land. Sommer does not
quantifY the number of respiring trees or contrast the quick trees with the dead trees. Life
Designs presents evidence that its trees live but does not dispute that its land includes
some dismembered, decaying, or dead trees. Therefore, Life Designs presents no issue of
fact as to the falsity of the pine trees statement.
Life Designs next complains about Michael Sommer's terrain remark. The
website declared:
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No. 32922-4-III
Life Designs v. Sommer
River, can't be seen. Mountains, can't be seen. Civilization, can't
be seen. But there are pine trees!!!!!
CP at 248. Whether one can view a river and mountains from a section of land can be
determined objectively. The ordinary person would consider the statement one of fact.
Life Designs presents evidence countering Michael Sommer's statement denying the
scenic view on Life Designs' land.
Michael Sommer likens his terrain remark to one expressing that she was not
impressed with a view or landmark by declaring "I don't see what's so great" about the
scene or landmark. If so, Sommer inadequately expressed this concept. A reasonable
reader could conclude that Sommer accuses Life Designs as misrepresenting its pastoral
location by untruthfully claiming a river and mountains can be seen.
Life Designs next complains about a western Washington reference. Sommers
wrote:
What you get ... 2 or 3 twelve step meetings a week in a very small
western Washington community where the only young adults in attendance
are those from Life Designs ranch.
CP at 248.
Life Designs only complains about Sommer's comment that Life Designs ranch
lies in western Washington. Washingtonians generally divide the state into eastern and
western halves by the Cascade Range. One viewing a map of the Evergreen State may
question, however, whether some locations in central Washington should be considered
in western or eastern Washington. Nevertheless, no one would conclude that property
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No. 32922-4-III
Life Designs v. Sommer
lying near Cusick, Pend Oreille County, is in western Washington. Pend Oreille County
borders Idaho. Michael Sommer's statement is objectively false.
Michael Sommer claims his designating Life Designs ranch as being in or near a
western Washington community references the State of Washington as being a western
state, not the ranch lying in a western portion of the state. He asserts that his statement
meant that Cusick is a "small western community in the State of Washington."
Respondent's Br. at 21. The average reader would conclude otherwise. On his website,
the word "western" preceded Washington, not community. I am to invest Sommer's
words with their natural and obvious meaning.
I question whether Michael Sommer's erroneous location of a dependency
recovery ranch in western, rather than eastern, Washington would injure the reputation of
the ranch. Perhaps some eastern Washington residents would consider a western
Washington location to be intolerable because of the crazy liberals on the west side of the
mountains. Nevertheless, the lack of damage to reputation was not argued by Sommer.
Finally, Life Designs complains about Michael Sommer's website statement
concerning the experience of counselors at Life Designs Ranch. Sommers declared:
You should go to Life Designs if: ... You believe that it takes no
education or experience with substance abuse, or compassion for the young
adult who is recovering from a substance addiction to help them become
the person they want to be.
CP at 249.
Michael Sommer did not expressly declare that counselors lacked experience or
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No. 32922-4-III
Life Designs v. Sommer
education with substance abuse or compassion for young people. Nevertheless, reading
the website as a whole leads the reader to conclude such. The strong implication is that
Life Designs' stafflacks the training, sympathy, and empathy desirous in a substance
recovery counselor. Life Designs presents facts refuting the truthfulness of the statement.
Criticizing the qualifications of a business' staff injures the business' reputation.
Michael Sommer wrote all of his allegedly false statements on a website critical of
Life Designs. Sommer used a web address similar in nature to Life Designs' address. In
his deposition, Sommer conceded he used the address to communicate with potential
clients of Life Designs. As noted in his June 26, 2012 e-mail message to Life Designs, he
intended to destroy the reputation of the addiction recovery center. Sommer did not post
his comments on a blog that allowed competing viewpoints. Reading all comments in
light of the entire website does little to change the meaning or impression given or soften
the sting of the remarks.
The majority discounts Michael Sommer's defamatory statements on the ground
that the reader should consider the statements exaggerations of an angry customer. The
majority emphasizes the site's language: "Healing is not done and seems to be very
limited in it's [sic] attempt." CP at 251. The majority concludes that the word "seems"
should lead a reader to consider all statements on the site to be of opinion. I disagree.
The site contained some obvious exaggerations of an irate customer, but the Sommer
website contained more. The website included provable statements of false fact injurious
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No. 32922-4-III
Life Designs v. Sommer
to Life Designs.
The majority reasons that a reader of Michael Sommer's website could also enter
and read Life Designs' authentic website to obtain a countervailing view or the corrected
facts. No principle of law excuses defamatory statements on the ground that the reader
may find the true facts elsewhere.
In this postmodern information era of history, many consumers glean information
about products and services on the Internet. F or some young consumers, the web is the
only source of information. One is often cautioned about believing everything read on
the Internet. But no decision grants immunity for falsehoods posted on the web. Because
of ready access to the Internet, such falsehoods may ruin a business' reputation quicker
than older forms of communication. One's reputation can be sullied as much by the
Internet as the local community grapevine in a bygone era. Because the creator of a
website often remains anonymous, the reader is unable to contact the speaker of
defamatory words to question the truth of the statements.
The only Washington decision addressing a claim of defamation based on a
website is Janaszak v. State, 173 Wn. App. 703,297 P.3d 723 (2013). This court 1
affirmed a summary judgment dismissal of Eric lanaszak's claim based on the
Washington Department of Health's posting of, on its website, a notice that the
department restricted lanaszak's license for practicing dentistry after he engaged in sex
with patients. This court dismissed the suit on the basis of a privilege. Although the
19
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No. 32922-4-III
Life Designs v. Sommer
State did not argue the point, this court did not suggest that the law of defamation
changes when the defendant uttered the defamatory communique on a website.
The Federal Communication Decency Act of 1996 grants immunity from
defamation claims to the administrator of a website or an internet service provider. 47
U.S.C. § 230(a). The act does not shield the author of the defamatory statement, even if
the author is the administrator of the site. Ricci v. Teamsters Union Local 456, 781 F.3d
25 (2d Cir. 2015); Cisneros v. Sanchez, 403 F. Supp. 2d 588, 591-92 (S.D. Tex. 2005).
Other courts have held defamatory factual statements posted on the Internet, even in chat
rooms, can gamer liability. Taylor Bldg. Corp. v. Benfield, 507 F. Supp. 2d 832 (S.D.
Ohio 2007); Marczeski v. Law, 122 F. Supp. 2d 315 (D. Conn. 2000); SPX Corp. v. Doe,
253 F. Stipp. 2d 974 (N.D. Ohio 2003); Bently Reserve L.P. v. Papaliolios, 218 Cal. App.
4th 418, 160 Cal. Rptr. 3d 423 (2013); Too Much Media, LLC v. Hale, 206 N.J. 209, 20
I
A.3d 364 (2011).
In Bently Reserve L.P. v. Papaliolios, a tenant anonymously posted a review of his
former landlord and apartment on the popular Yelp website. The posting read:
I
Sadly, the Building is (newly) owned and occupied by a sociopathic
narcissist-who celebrates making the lives oftenants hell. Of the 16
mostly-long-term tenants who lived in the Building when the new owners
moved in, the new owners' noise, intrusions, and other abhorrent behaviors
(likely) contributed to the death of three tenants (Pat, Mary, & John), and
the departure of eight more (units 1001, 902, 802, 801, 702, 701, 602, 502)
in very short order. Notice how they cleared-out all the upper-floor units,
so they could charge higher rents?
They have sought evictions of 6 of those long-term tenants, even
though rent was paid-in-full, and those tenants bothered nobody. And what
20
No. 32922-4-III
Life Designs v. Sommer
they did to evict the occupants of unit # 902, who put many of tens of
thousands of dollars into their unit, was horrific and shameful.
I
~
This is my own first-hand experience with this building, and its
owners. I know this situation well, as I had the misfortune of being in a
relationship with one of the Building's residents at the time, have spent
many days and nights over many years in the Building, and have personally
II witnessed the abhorrent behavior of the owners of the Building.
There is NO RENT that is low enough to make residency here
worthwhile.
218 Cal. App. 4th at 423.
The Bently Reserve appellate court affirmed the trial court's denial of the tenant's
I
!
motion to dismiss the landlord's defamation suit. The tenant claimed that Internet fora
are notorious as places where readers expect to see strongly worded opinions rather than
objective facts and that anonymous opinions should be discounted accordingly. The
court noted that commentators have likened cyberspace to a frontier society free from the
conventions and constraints that limit discourse in the real world. The court disagreed
and ruled that the mere fact speech is broadcast across the Internet by an anonymous
speaker does not make it nonactionable opinion and immune from defamation law.
HYPERLINK
The organization Human Earth Animal Liberation (HEAL) operated a website
critical of Life Designs and other addiction recovery businesses. The website accused
Life Designs of functioning like a cult and illegally exploiting student labor. Michael
Sommer did not repeat, on his website, the critical remarks made by HEAL on its site.
Sommer, however, provided the reader of his site a hyperlink to the HEAL site. I agree
21
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No. 32922-4-III
Life Designs v. Sommer
Ii
II with the majority that Sommer, as a matter of law, does not incur liability in defamation
i
for the hyperlink. I need not add to the majority's analysis.
PRESUMED DAMAGES
The majority also affirms summary judgment dismissal of Life Designs'
defamation action on the basis that Life Designs failed to submit facts showing Michael
Sommer's website caused damages. I disagree for two reasons. First, because Life
Designs presented facts supporting defamation per se, Life Designs need not show actual
damages. Sommer does not argue that, assuming Life Designs prevails in defamation per
se, he need not prove damages. Second, Life Designs provided facts showing damages.
This section of the opinion discusses presumed damages for defamation per se.
Since the majority dismisses Life Designs' defamation per se allegation, the
majority ignores the rule freeing Life Designs from proving economic loss. Defamation
per se is actionable without proof of special damages. Amsbury v. Cowles Publ 'g Co., 76
Wn.2d at 737 (1969). Conversely, a defamation plaintiff may recover presumptive
damages ifhe shows he has been referred to by words libelous per se. Maison de France,
Ltd. v. Mais Ouil, Inc., 126 Wn. App. at 53-54 (2005); Haueter v. Cowles Publ'g. Co., 61
Wn. App. at 578 (1991). The defamed person is entitled to substantial damages without
proving actual damages. Waechter v. Carnation Co., 5 Wn. App. at 128 (1971).
Statements falling within the per se categories are thought to be so obviously and
22
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No. 32922-4-III
Life Designs v. Sommer
materially harmful to a plaintiff that damage can be presumed. Arnold v. Nat' I Union of
Marine Cooks & Stewards, 44 Wn.2d 183, 187,265 P.2d 1051 (1954).
Michael Sommer contends that Life Designs cannot prove damages because the
business cannot identifY anyone who read the contents of Sommer's website. One
wonders how Life Designs could locate readers of another's website. Defamation per se
is designed to assist businesses like Life Designs that may encounter difficulties in proof.
Proof of actual damage will be impossible in a great many cases when, from the character
of the defamatory words and circumstances of publication, it is all but certain that serious
harm has resulted in fact. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.
749,760 (1985) (quoting WILLIAM PROSSER, Law ofTorts § 112 at 765 (4thed. 1971)).
In Demopolis v. Peoples National Bank of Washington, 59 Wn. App. 105, 796
P .2d 426 (1990), the trial court directed a verdict in favor of the defendant in a
defamation case, in part because plaintiff had proved no damages. This court reversed on
the ground that defendant accused plaintiff of a crime. Since plaintiff established an
action for defamation per se, plaintiff did not need to prove any actual damages.
In Maison de France, Ltd. v. Mais Guil, Inc., 126 Wn. App. 34 (2005), the
defendant falsely claimed that law enforcement agencies investigated the plaintiff for
fraud. The trial court found no economic or other damages and thus denied recovery.
This court reversed and directed the trial court to award presumed damages.
23
No. 32922-4-111
Life Designs v. Sommer
Some cases refer to "actual damages" and other cases refer to "special damages"
as the form of damages not needing proof in defamation per se. Some decisions use both
terms. Presumably the two mean the same. See Haueter v. Cowles Publ'g. Co., 61 Wn.
App. at 578 (1991). Special damages, according to the Restatement, include any
pecuniary or economic loss. RESTATEMENT (SECOND) OF TORTS § 575, cmt. b
(1977).
GARRETT DECLARATION
I now address whether, assuming Life Designs did not show facts sufficient to
sustain a claim for defamation per se, Life Designs otherwise defeats a summary
judgment motion against an argument that it showed no damages to support a defamation
suit. Before discussing the law of damages, I must first address an evidentiary question
important to this issue.
In opposition to Michael Sommer's summary judgment motion, Life Designs filed
an affidavit of its former admissions director, Clay Garrett. Garrett not surprisingly
testified that a recovery center's reputation is a primary factor in obtaining clients.
Garrett averred that, upon Michael Sommer opening his website, the Life Designs
website visits remained constant, but referrals from consultants and clients decreased.
Life Designs suffered an approximate fifty six percent decline in referrals during the
period when Sommer published the defamatory content to the public. This equates to
nine to twelve clients that Life Designs lost because of Sommer's website. Garrett insists
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I No. 32922-4-111
Life Designs v. Sommer
that Sommer's Internet site caused a decline in clients and income. When someone
searched the web for Life Designs addiction recovery center, the searcher also was given
the web address for Sommer's site.
On appeal, Michael Sommer claims that the trial court struck the declaration of
Clay Garrett, because the declaration contained opinions, for which Garrett is not
qualified to utter. The record does not support this claim. Regardless, Sommer argues on
appeal that this court should ignore the testimony of Garrett. This argument would be
dispositive only if Life Designs failed to establish defamation per se. Resolution of the
argument looms important in determining whether Life Designs presents an issue of fact
as to actual damages.
ER 702 governs testimony by expert witnesses. The rule reads:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
Michael Sommer belittles Clay Garrett's qualifications, in part, because Garrett
holds a herpetology degree. Sommer fails to recognize that a witness qualifies as an
expert in more ways than education. Witnesses may qualify as experts by practical
experience. State v. Ortiz, 119 Wn.2d 294, 310, 831 P.2d 1060 (1992); Acord v. Pettit,
174 Wn. App. 95, Ill, 302 P .3d 1265 (2013). An expert may be qualified to testify by
experience alone. In re Marriage ofKatare, 175 Wn.2d 23,38,283 P.3d 546 (2012);
f
Taylor v. Bell, 185 Wn. App. 270,285,340 P.3d 951 (2014). Once the basic requisite
25
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No. 32922-4-II1
Life Designs v. Sommer
qualifications are established, any deficiencies in an expert's qualifications go to the
weight, rather than the admissibility, of his testimony. In re Welfare a/Young, 24 Wn.
App. 392, 397, 600 P.2d 1312 (1979); Larson v. Georgia Pac. Corp., 11 Wn. App. 557,
524 P.2d 251 (1974).
Clay Garrett qualifies as an expert on the business of addiction recovery, the
importance of a business' reputation, factors causing damage to a business' reputation,
and the business affairs of Life Designs. Garrett was Life Designs' employee. He began
working for Life Designs on December 15,2010. He became director of admissions in
early 2012. As director of admissions, Garrett gained intimate knowledge of the reasons
by which clients chose Life Designs and obstacles that impacted that choice.
Clay Garrett worked for ten years at the Dallas Zoological Society and was the
director of a scouting program. He later worked as a mentor and field director at a
wilderness treatment program for young adults in Santa Clara, Utah. At Life Designs,
Garrett worked in many capacities including that of a mentor, life coach, and program
and admissions director. As a program and admissions director, Garrett developed new
business, helped redesign the business' website, and interfaced with educational
consultants who referred clients to recovery centers.
The majority holds that Clay Garrett was qualified as an expert to testify. I readily
agree. Whereas, a court may sometimes limit a qualified expert to the scope of his
testimony, the majority imposes no limitations on Garrett. The majority instead, in its
26
No. 32922-4-111
Life Designs v. Sommer
hurried analysis, fails to recognize the implications of its holding. I address those
repercussions later.
CAUSATION AND DAMAGES
In a defamation action, the plaintiff may recover compensation for damage to
reputation, emotional distress, bodily harm, and economic or special damages.
Schmalenberg v. Tacoma News, Inc., 87 Wn. App. at 589 n.56 (1977); RESTATEMENT
(SECOND) OF TORTS at 197,319, 321,322,325. The defamation must be the proximate
cause of the damages. Schmalenberg v. Tacoma News, Inc., 87 Wn. App. at 599 n.56.
Even if Life Designs failed to establish defamation per se, it presents sufficient facts to
defeat a motion to dismiss its defamation claim on the elements of causation and
damages.
Michael Sommer emphasizes the rule of logic caged in the Latin locution: "post
hoc, ergo propter hoc" or "after this, therefore because of this." The axiom should be
stated in the converse: an event or condition is not necessarily caused by an occurrence or
circumstance that preceded it. According to Sommer and the majority, Life Designs does
not create an issue of fact by showing that its business declined after Sommer began his
website.
In Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481 (2004), this court relied on
this logical fallacy when affirming a summary judgment dismissal of Lorena Anica's
claim of wrongful termination from employment. Wal-Mart terminated Anica's
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No. 32922-4-111
Life Designs v. Sommer
employment after her return to work from time off to recover from her second job injury.
Anica argued that the timing of her termination provided sufficient evidence of causation
to survive a summary judgment motion. Evidence, however, verified that the Social
Security Administration had recently contacted Wal-Mart and notified the store that
Anica's social security number was false. After Anica failed to fix the number anomaly,
corporate offices told the local store to fire Anica.
Anica v. Wal-Mart Stores must be contrasted with Borden v. City ofOlympia, 113
Wn. App. 359, 53 P.3d 1020 (2002). The Bordens sued Olympia after their property
flooded. In November 1995, the city completed a new stormwater drainage system near
the Borden land. In February 1996, ponds formed in the Borden's yard and the basement
flooded. The flooding continued thereafter. When the city redesigned the system and
redirected the wastewater flow, the flooding ceased. The Bordens complained that
Olympia negligently designed the 1995 system. The trial court granted the city summary
judgment. On appeal, this court determined that facts supported a breach of duty and
causation of damages. This court reversed the summary judgment on the negligence
claim.
The Borden Court asked whether a trier of fact could rationally find that
Olympia's project proximately caused damage to the Bordens. Taken in the light most
favorable to the Bordens, the record showed that flooding to their property started the
first winter after the 1995 project was completed. The flooding recurred each winter for
28
No. 32922-4-111
Life Designs v. Sommer
the next several years. The flooding subsided when another drainage facility channeled
water away from the Bordens' land and into the headwaters ofa nearby creek. According
to the court, this coincidence in timing gave rise to an inference that the flooding was a
proximate result of the 1995 drainage project.
Based on Anica v. Wal-Mart Stores, timing may not be sufficient on its own to
raise a question of fact of causation. Nevertheless, according to Borden v. City of
Olympia, timing is a significant factor to consider.
The majority distinguishes Borden v. City ofOlympia on two grounds. First, the
Bordens sued the city for negligence, not defamation. The majority intimates that the
rules of causation change in a defamation action. The majority cites no law for this
I
implication. There is no law. If the majority's implied ruling is correct, the majority
should avoid principles discussed in Anica v. Wal-Mart, since Anica is not a defamation
f
suit.
The majority also distinguishes Borden v. City ofOlympia with the important
distinction that the flooding of the Bordens' property ended when Olympia redesigned its
storm drainage system. Life Designs presented no testimony that its business recovered
after Michael Sommer removed his website. Of course, Life Designs can argue that the
damage had been done and the cessation of the website did not restore its reputation.
Redesigning the city stormwater system physically changed the flow of the water,
whereas defamatory statements may linger in the minds of hearers long after the
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No. 32922-4-III
Life Designs v. Sommer
defendant ceases publication of the statements. Defamation's stormwaters may persist
even after a redirection.
Borden v. City ojO/ympia and the majority's ruling may be based on the principle
that when damage ends after defendant's wrongful conduct ends, the plaintiff proves
causation. This ruling is also logically false under the same principle. Just because the
Bordens' flooding ended after the city redesigned its system does not mean that the
redesign ended the flooding. Of course, Borden has two critical events that assist in
resolving causation, the beginning of operations of the system project and cessation of the
system. Logicians have yet to announce the fallacy of "after this but not after this endeth,
therefore this."
Some commonsense based on experience should enter the discussion of causation.
When a man bangs his head against the wall, after which his head hurts, we conclude that
the banging caused the hurt. When a woman is in a rear end collision, after which her
neck hurts, the law allows a physician to testifY that the car accident caused a whiplash,
regardless of whether imaging studies confirm the lack of soft tissue injury before the
accident or presence of tissue injury after the accident. An injured party's testimony
alone of pain after an accident is sufficient to permit the jury to award damages for that
pain and future pain. BUzan v. Parisi, 88 Wn.2d 116, 122, 558 P.2d 775 (1977). For
purposes of a summary judgment motion, the law accepts the truthfulness of the accident
30
No. 32922-4-111
Life Designs v. Sommer
victim when she states that after an accident she garnered pain and therefore the pain is
related to the accident. The jury can later judge the credibility of the victim.
The law might permit Clay Garrett to testify as a lay witness that the defamation
published by Michael Sommer caused Life Designs damages. The majority has gone one
step further and qualified Garrett as an expert witness. He is in a similar position to a
treating physician in a personal injury suit.
Clay Garrett avers that, during the time Michael Sommer operated his website,
Life Designs' referral rate plummeted by fifty six percent and the business lost five to
nine clients. Based on his experience, Sommer opined that the website caused the lack of
business. No case requires Life Designs to identify a lost costumer as a condition to
recovering lost income. Thus, Life Designs presents a jury question of damages. A trier
of fact can later decide the credibility of Garrett's testimony. Michael Sommer raises a
good argument that the HEAL website could have caused all of Life Designs' damages.
This good argument should be presented to the jury.
The majority criticizes the reasoning and the relevance of the data on which Clay
Garrett justified his opinion. Once this court qualified Garrett as an expert, however,
Garrett did not even need to disclose the facts or data on which he supported his
conclusion. ER 705.
Michael Sommer should not be surprised that his website caused a loss of business
to Life Designs. He threatened to harm Life Designs' reputation. Damage to Life
31
No. 32922-4-III
Lift Designs v. Sommer
Designs was Sommer's stated goal. In his June 26 message to Vince Barranco, Sommer
wrote, in part:
I am willing to get legal with this. Are you? I would hope that the
most important thing to you is your reputation. We all know how easily
reputations can be destroyed, without the legal system even getting
involved. But I would go both routes if I have to.
CP at 257.
The elements of damages and causation run together in this case. Proximate cause
has two elements, cause in fact cause and legal causation. Schooley v. Pinch's Deli Mkt.,
Inc., 134 Wn.2d 468,478,951 P.2d 749 (1998). Cause in fact asks whether damages
would have occurred but for the wrongful conduct of the defendant. Hartley v. State, 103
Wn.2d 768, 778, 698 P.2d 77 (1985). Legal causati9n addresses policy considerations as
to how far the consequences of defendant's acts should extend. Hartley v. State, 103
Wn.2d at 779. A proximate cause is one that in natural and continuous sequence,
unbroken by an independent cause, produces the injury complained of and without which
the ultimate injury would not have occurred. Schooley, 134 Wn.2d at 478; Bernethy v.
Walt Failor's, Inc., 97 Wn.2d 929,935,653 P.2d 280 (1982). The plaintiff need not
establish causation by direct and positive evidence, but only by a chain of circumstances
from which the ultimate fact required is reasonably and naturally inferable. Teig v. St.
John's Hosp., 63 Wn.2d 369,381,387 P.2d 527 (1963); Conrad ex reI. Conradv.
Alderwood Manor, 119 Wn. App. 275,281,78 P.3d 177 (2003).
Generally, the issue of proximate causation is a question for the jury. Bernethy v.
32
No. 32922-4-II1
Life Designs v. Sommer
Walt Failor's, Inc., 97 Wn.2d at 935 (1982); Attwoodv. Albertson's Food Ctr., Inc., 92
Wn. App. 326, 330,966 P.2d 351 (1998). Only when the facts are undisputed and the
inferences therefrom are plain and incapable of reasonable doubt or difference of opinion
may the court remove the question from the jury. Bernethy, 97 Wn.2d at 935. In its
abbreviated analysis, the majority weighs the facts relevant to causation. By ruling as a
matter of law on the issue of damages, the majority usurps the role of the jury.
A foreign decision of limited relevance is State Farm Fire & Casualty Company v.
Radcliff, 987 N.E. 2d 121 (Ct. App. Ind. 2013). State Farm sued Joseph Radcliff and
Radcliff's company for fraud and racketeering arising out of Radcliff's assistance to State
Farm policyholders in recovering damages for a large hailstorm in central Indiana.
I
Radcliff counterclaimed for defamation because of State Farm's broadcasting of Radcliff
engaging in fraudulent and criminal practices. The Indiana Court of Appeals affirmed a
$14.5 million verdict in favor of Radcliff. In affirming the verdict, the appellate court
rejected State Farm's argument that the trial court impermissibly allowed Radcliff's
economic expert to testify that articles on the Internet, prompted by State Farm's
allegations, created a negative situation for Radcliff that impacted his business prospects
in the future. The expert exclaimed "the challenge with the internet is that once
something is on the internet, it's virtually impossible to get rid of it." State Farm Fire &
Cas. Co. 987 N.E.2d at 154 (Ct. App. Ind. 2013).
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No. 32922-4-II1
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FALSE LIGHT
I concur with the majority that a corporation may not recover for the tort of false
light. I also concur that Vincent and Bobbie Barranco did not show damages to sustain
an action in false light.
TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY
The majority writes that Life Designs created issues of fact as to each substantive
element of the tort of interference with a business expectancy. I agree. Thus, I will not
list the elements of the tort or analyze the evidence in relationship to all elements.
The majority affirms summary judgment dismissal of the tortious interference
cause of action on the basis that Life Designs has not presented evidence of damages.
Resultant damage is an element of the tort. Leingang v. Pierce County Med. Bureau,
Inc., 131 Wn.2d 133,157,930 P.2d 288 (1997). In reviewing the evidence on appeal, the
majority conducts the same analysis performed when holding that Life Designs showed
no damages to support its defamation claim. The majority writes that no potential client
or referral source submitted an affidavit establishing that he or she did not choose Life
Designs because of Michael Sommer's website. The majority cites no authority for the
proposition that the plaintiff must present evidence from a customer or potential customer
in order to sustain a claim for tortious interference. Washington law imposes no such
requirement.
:j,' Y
Fearing~ )
34