                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  July 11, 2013 Session

        JENNIFER E. PATTERSON v. NATALIE D. GRANT-HERMS

                  Appeal from the Circuit Court for Davidson County
                    No. 11C2977     Joseph P. Binkley, Jr., Judge


                No. M2013-00287-COA-R3-CV - Filed October 8, 2013


Operations agent employed by Southwest Airlines brought an action against a passenger for
posting allegedly false and defamatory statements on Twitter and Facebook regarding actions
taken by agent when passenger attempted to board a flight. The trial court granted the
passenger’s motion for summary judgment, holding that the statements did not rise to the
level of defamation, that the language could not be construed to hold the agent up to public
ridicule, and that the language was not highly offensive to a reasonable person. We affirm
the grant of summary judgment on the defamation claim and reverse the grant of summary
judgment on the claim for invasion of privacy; we remand the case for further proceedings.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                    Part and Reversed in Part; Case Remanded

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which A NDY D. B ENNETT, J.,
joined. P ATRICIA J. C OTTRELL, P. J., M. S., concurring in part, dissenting in part.

Jennifer E. Patterson, Goodlettsville, Tennessee, Pro Se.

Lori J. Keene, Memphis, Tennessee; and Alan Sowell, Nashville, Tennessee, for the
Appellee, Natalie D. Grant-Herms.

                                         OPINION

        Jennifer Patterson, an operations agent employed by Southwest Airlines, filed this
action against Natalie Grant-Herms, asserting causes of action for slander, defamation, libel,
and false light invasion of privacy. Ms. Patterson alleged that Ms. Grant-Herms made untrue
statements and posted false and defamatory comments about her on Facebook and Twitter
relative to a confrontation between the two when Ms. Grant-Herms and her three children
attempted to board a plane in violation of Southwest Airlines policy.
      In the complaint, Ms. Patterson alleged that Ms. Grant-Herms made the following
statements:

      a.     Defendant knowingly and intentionally, or in the alternative, with
             reckless disregard for the veracity of her statements, told the flight
             attendant on board that she was told by Ms. Patterson to “[g]et over it
             and stop flying Southwest.” This statement was not true.
      b.     Defendant knowingly and intentionally, or in the alternative, with
             reckless disregard for the veracity of her statements, shouted to those
             waiting to board the flight that Ms. Patterson, “won’t let her daughter
             board the flight with [her].” This statement was not true.
      c.     Defendant knowingly and intentionally, or in the alternative, with
             reckless disregard for the veracity of her statements, stated, “you are the
             only one who won’t let us [cut in line].” This statement was not true.
             Defendant made other threatening comments towards the plaintiff at
             this time, threatening to contact her employer.
      d.     After boarding the flight, Defendant knowingly and intentionally, or in
             the alternative, with reckless disregard for the veracity of her statements
             made several defamatory statements to the flight crew, including that
             Plaintiff told her to “stop flying Southwest,” and “[g]et over it.” These
             statements were not true.

She also alleged that Ms. Grant-Herms posted the following statements on Twitter, Facebook
and southwest.com:

      i.     “Gracie is 4. FOUR! she wanted her to board by herself or make us
             wait Till A34. Even though I was business select!”
      ii.    “I fly @southwestair at least 75x/year. just had WORST experience.
             Me; A1, Sadie: A3 Gracie A34. Woman refused 2 let Gracie board w/
             me.”
      iii.   Defendant tweeted: “Nashville. Gate A25. Flight to Denver. Her
             name is Jennifer. She said “get over it. Follow the rules. Or don’t
             fly.”
      iv.    She has done this to me before. She has the WORST customer service.
             My daughter is FOUR.
      v.     She re-tweeted: “that is ridiculous! [W]hat did she expect? Her walk
             on herself & find her seat like a grown adult?”
      vi.    “If your [sic] sympathize with me, when you respond be sure & include
             @southwestair in tweet. They need to know this WRONG.”
      vii.   Sadie had MAJOR blowout. I think it’s in response to our southwest
             air experience. She decided to leave them a gift on their plain. Teehee.

                                             -2-
                Asked me what they can do. I don’t want free flight. Just apology
                from Jennifer. It’s 4th time she’s done it to me. Time will tell.
        viii.   Well, we’ve caused quite a stir, tweeps. @southwestair just called me.
                I appreciate their concern & prompt attention 2 the problem.
        ix.     I’ve got wifi on my flight. I’m impressed with how quickly
                @southwestair responded to my complaint. I’ll keep u posted as to
                what they do.

        After answering the complaint, Ms. Grant-Herms filed a motion to dismiss on the
grounds that the statements she posted did not rise to the level of defamation or false light
claims; the motion was denied. She subsequently filed a motion for summary judgment,
supported by a statement of undisputed facts and Ms. Patterson’s deposition; Ms. Patterson
filed a responsive memorandum, relying on excerpts from her deposition as well as that of
Ms. Grant-Herms. The court granted the motion, holding that the statements were not
defamatory as a matter of law and that the language at issue “is not highly offensive to a
reasonable person.” Ms. Patterson appeals.

I. STANDARD OF REVIEW

         This appeal is from a grant of summary judgment, which is an appropriate vehicle for
resolving a case where there is no genuine issue of material fact and a judgment may be
rendered as a matter of law. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). In such
proceedings, the moving party is entitled to summary judgment only if the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits
. . . show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. Pro. Rule 56.04; see also Tenn. Code
Ann. § 20-16-101.1


        1
          Tenn. Code Ann. § 20-16-101, enacted by 2011 Tenn. Pub. Acts. Ch. 498, became effective July
1, 2011 and applicable to cases filed on or after that date; that statute provides:

        In motions for summary judgment in any civil action in Tennessee, the moving party who
        does not bear the burden of proof at trial shall prevail on its motion for summary judgment
        if it:

        (1) Submits affirmative evidence that negates an essential element of the nonmoving party's
        claim; or

        (2) Demonstrates to the court that the nonmoving party's evidence is insufficient to establish
        an essential element of the nonmoving party's claim.

The preamble to Chapter 498 states that “the purpose of this legislation is to overrule the summary judgment
                                                                                                 (continued...)

                                                     -3-
       A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005); BellSouth
Adver. & Publ. Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland
Healthcare Ctr., Inc., 49 S.W.3d 281, 284 (Tenn. 2001); Penley v. Honda Motor Co., 31
S.W.3d 181, 183 (Tenn. 2000). We review the summary judgment decision as a question of
law. Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 437 (Tenn.1998); Robinson
v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). Accordingly, we review the record de novo and
make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been
met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v. West Town
Mall, 130 S.W.3d 761, 763 (Tenn. 2004); Staples v. CBL & Assoc., 15 S.W.3d 83, 88 (Tenn.
2000). We consider the evidence presented at the summary judgment stage in the light most
favorable to the non-moving party, and afford that party all reasonable inferences. Draper,
181 S.W.3d at 288; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001);
Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001). "If there is a dispute
as to any material fact or any doubt as to the conclusions to be drawn from that fact, the
motion must be denied." Byrd, 847 S.W.2d at 211.

II. DEFAMATION

       In granting the motion for summary judgment, the court held that the statements were
not defamatory:

        [T]he court finds as a matter of law the statements made by Defendant do not
        rise to the level of defamation pursuant to Tennessee law, and that the Court
        finds that the language cannot be reasonably construed to hold Plaintiff up to
        public hatred, contempt, or ridicule.

Ms. Patterson contends that the statements were “both undisputed and patently false,” and
“were an attempt by [Ms. Grant-Nelms] to paint [Ms. Patterson] as someone that would
endanger the welfare of a four-year-old child.”




        1
            (...continued)
standard for parties who do not bear the burden of proof at trial set forth in set forth in Hannan v,. Alltel
Publishing Co. [270 S.W. 3d 1 (Tenn. 2008)], its progeny, and the cases relied on in Hannan.” Section 2
of Chapter 498 provides: “Except as set forth herein, Rule 56 of the Tennessee Rules of Civil Procedure
remains unchanged.” The statutory standard does not affect the analysis in this case.


                                                    -4-
       As noted in Secured Fin. Solutions, LLC v. Winer:

       While the question of whether a statement was understood by the hearers in a
       defamatory sense is a fact question for the jury, “[t]he preliminary question of
       whether the statement is at all ‘capable’ of being understood in this defamatory
       sense is a question of law which should be determined by the court.” Shipley,
       1991 WL 77540, at *5 (citing Stones River Motors, Inc. v. Mid-South Publ'g
       Co., Inc., 651 S.W.2d 713, 719 (Tenn. Ct. App.1983)). In making this
       determination, a court must consider whether “[t]he import of this language
       taken as a whole could reasonably be capable of a defamatory meaning.” Id.
       The words must be given their natural and ordinary meaning “as would be
       reasonably understood by the people who hear them.” Id. Statements alleged
       to be defamatory “should be judged within the context in which they are made”
       and “read as a person of ordinary intelligence would understand them in light
       of the surrounding circumstances.” Revis v. McClean, 31 S.W.3d 250, 253
       (Tenn.Ct.App.2000).

Secured Fin. Solutions, LLC v. Winer, No. M2009-00885-COA-R3-CV, 2010 WL 334644
at *3 (Tenn. Ct. App. Jan. 28, 2010). The court further explained that a statement is
defamatory where “it tends so to harm the reputation of another as to lower him [or her] in
the estimation of the community or to deter third persons from associating or dealing with
him [or her].” Id. at *2 (citing Biltcliffe v. Hailey's Harbor, Inc., No. M2003-02408-COA-
R3-CV, 2005 WL 2860164, at * 4 (Tenn. Ct. App. Oct.27, 2005) (alteration in original)
(quoting Restatement (Second) of Torts § 559 (1977)).

       The function of the court in a defamation action is to determine “whether a
communication is capable of bearing a particular meaning, and whether that meaning is
defamatory.” Restatement (Second) of Torts § 614 (1977). It is for the jury to determine
“whether a communication, capable of a defamatory meaning, was so understood by its
recipient.” Id. Comment d to § 614 advises the court and jury, in performing their respective
functions, to “take into account all the circumstances surrounding the communication of the
matter complained of as defamatory. Thus the context of written or spoken words is an
important factor in determining the meaning that they reasonably might convey to the person
who heard or read them.”

        Considered in light of the entire circumstances, the statements attributed to Ms. Grant-
Herms were expressions of her frustration and complaints that she was not able to board the
flight in a manner she wanted (and which would have been be contrary to Southwest policy)
and of the circumstances surrounding her efforts. While Ms. Grant-Herms chose not to
include the entire circumstances in her communications and postings, particularly the fact
that she did not have the appropriate passes to board the flight as she sought, the words

                                              -5-
attributed to her could not reasonably be construed to portray Ms. Patterson as one who
would endanger a 4-year old’s welfare. Construing the words “in their ‘plain and natural’
import”, Stones River Motors, Inc., 651 S.W.2d at 719 (citing Memphis Publishing Co. V.
Nichols, 569 S.W.2d 412 at 419, ftn. 7 (Tenn. 1978), the trial court properly determined as
a matter of law that Ms. Grant-Herms’ statements did not rise to the level to constitute
actionable defamation.

III. FALSE LIGHT INVASION OF PRIVACY

        The court also granted summary judgment to Ms. Grant-Herm on Ms. Patterson’s
claim of false light invasion of privacy, holding that the language “was not highly offensive
to a reasonable person.” The court did not explain the basis of this holding.

       In West v. Media Gen. Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001), the Tennessee
Supreme Court recognized the tort of false light invasion of privacy as set forth in the
Restatement 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.

Restatement (Second) of Torts § 652E (1977).2 As noted in West v. Media Gen.
Convergence, Inc., the interest to be protected in a false light claim is “the subjective one of


       2
           Comment b to § 652E notes:

       The interest protected by this Section is the interest of the individual in not being made to
       appear before the public in an objectionable false light or false position, or in other words,
       otherwise than as [s]he is. . . .

       It is not, however, necessary to the action for invasion of privacy that the plaintiff be
       defamed. It is enough that [s]he is given unreasonable and highly objectionable publicity
       that attributes to [her] characteristics, conduct or beliefs that are false, and so is placed
       before the public in a false position. When this is the case and the matter attributed to the
       plaintiff is not defamatory, the rule here stated affords a different remedy, not available in
       an action for defamation.

                                                    -6-
injury to [the] inner person.” 53 S.W.3d at 645-646 (quoting Crump v. Beckley Newspapers,
Inc., 173 W.Va. 699, 320 S.E.2d 70, 83 (1984)). For the reasons set forth below, we have
determined that the court erred in granting summary judgment on this claim.

        In her brief on appeal, Ms. Grant-Herms argues that the words are not offensive
because “[t]he appellant works for an airline. As this court is surely aware, airlines are
notorious for bad customer service. The statements that were made by the appellee in this
case are not only not highly offensive, they are sentiments that have likely been uttered by
airline passengers for decades.” This argument, however, does not address the threshold
question of whether the statements themselves put Ms. Patterson in a false light; that is, was
there such a “major misrepresentation of [her] activities that serious offense may reasonably
be expected to be taken.” Restatement (Second) of Torts § 652E, comment c.3

       In Eisenstein v. WTVF-TV, News Channel 5, LLC, this court considered the
differences and similarities between a defamation claim and one based on false light invasion
of privacy claim; we noted with respect to the false light claim:

                [t]he angle from which the facts are presented, or the omission
                of certain material facts, results in placing the plaintiff in a false
                light. “ ‘Literal accuracy of separate statements will not render
                a communication “true” where the implication of the
                communication as a whole was false.’ ... The question is
                whether [the defendant] made ‘discrete presentations of
                information in a fashion which rendered the publication
                susceptible to inferences casting [the plaintiff] in a false light.’
                ” Santillo v. Reedel, 430 Pa.Super. 290, 634 A.2d 264, 267
                (1993)(citing *318 Larsen v. Philadelphia Newspapers, Inc.,
                375 Pa. Super. 66, 543 A.2d 1181 (1988) (emphasis added)).




        3
          With specific reference to the “highly offensive to a reasonable person” language, comment c to
§ 652E states in pertinent part:

        The rule stated in this Section applies only when the publicity given to the plaintiff has
        placed him in a false light before the public, of a kind that would be highly offensive to a
        reasonable person. In other words, it applies only when the defendant knows that the
        plaintiff, as a reasonable man, would be justified in the eyes of the community in feeling
        seriously offended and aggrieved by the publicity. . . . It is only when there is such a major
        misrepresentation of his character, history, activities or beliefs that serious offense may
        reasonably be expected to be taken by a reasonable man in his position, that there is a cause
        of action for invasion of privacy.

                                                     -7-
        Thus, the falsehood involved in a false light action “may consist in
        dissemination of matters which, while technically true, give an objectionably
        false impression where the communicator fails to modify the basic statement
        with amplifying facts which modify the statement to create a less objectionable
        impression corresponding to full reality.” Russell G. Donaldson, Annotation,
        False Light Invasion of Privacy—Cognizability and Elements, 57 A.L.R.4th
        22, § 13 (Cum.Supp.2012).

Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313, 317-18 (Tenn. Ct.
App. 2012), appeal denied (Dec. 11, 2012) (citing West v. Media Gen. Convergence, Inc.,
53 S.W.3d 640, 645, n. 5)).

        The materials filed by Ms. Grant-Herms did not specifically address the elements of
the false light invasion of privacy claim. To the extent she relied upon the words themselves
to negate the “highly offensive to a reasonable person element” of the claim, construing the
words in a light most favorable to Ms. Patterson and affording her all reasonable inferences,
we believe that a reasonable person could find, under the entire circumstances of the incident,
that Ms. Grant-Herms’ posting of selective facts placed Ms. Patterson in a false light by
implying that Ms. Patterson was rude and a bad service agent, one who was more concerned
with adherence to the airline rules and procedures than the welfare of the child, and that these
implications caused injury to her.4 Considering the record, Ms. Grant-Herms has not shown
she is entitled to summary judgment on the false light invasion of privacy claim.

III. CONCLUSION

       For the foregoing reasons we affirm the grant of summary judgment to Ms. Grant-
Herms on the defamation claim, reverse the grant of summary judgment on the false light
invasion of privacy claim, and remand the case for further proceedings in accordance with
this opinion.




                                                         _________________________________
                                                         RICHARD H. DINKINS, JUDGE




        4
          In opposing the motion for summary judgment, Ms. Patterson relied on portions of the depositions
of both parties to give a more complete context to Ms. Grant-Herms’ posted statements.

                                                   -8-
