[Cite as Sullins v. Raycom Media, Inc., 2013-Ohio-4697.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99235




                                   LAVELLE SULLINS
                                                           PLAINTIFF-APPELLANT

                                                     vs.

                        RAYCOM MEDIA, INC., ET AL.
                                                           DEFENDANTS-APPELLEES




                                  JUDGMENT:
                             RECONSIDERATION DENIED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-771804

        BEFORE: Rocco, J., Boyle, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: October 24, 2013
ATTORNEYS FOR APPELLANT

Joshua R. Cohen
Peter G. Pattakos
Cohen, Rosenthal & Kramer
700 West St. Clair Avenue
The Hoyt Block Building - Suite 400
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES WUAB AND WOIO, L.L.C.

Michael K. Farrell
Melissa A. Degaetano
Baker & Hostetler L.L.P.
PNC Center
1900 East 9th Street
Suite 3200
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY CRIME STOPPERS

George S. Crisci
Jonathan D. Decker
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE PINPOINT MEDIA, INC.

Daniel Thiel
75 Public Square
Suite 650
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:
        {¶1} Defendants-appellees WOIO and WUAB (collectively, “WOIO”) have filed a

motion for reconsideration or, alternatively, to certify conflict arguing that this court’s

August 15, 2013 decision: (1) imposes liability without fault, (2) ignores the lack of

evidence showing negligence on the part of WOIO, and (3) is contrary to the Ohio

Supreme Court’s application of the fair report privilege in Oney v. Allen, 39 Ohio St.3d

103, 529 N.E.2d 471 (1988). For the reasons that follow, WOIO’s motion is denied.

        {¶2} WOIO first argues that this court should reconsider its August 15, 2013

decision because the court “based its ruling” on “the incorrect statement that ‘[u]nless a

privilege applies, damages and fault are generally presumed to exist if a statement is

defamatory per se’” and thereby “impose[s] liability” on appellees “without fault.”     We

disagree.

        {¶3} As set forth in our August 15, 2013 decision, we found that appellees’

inaccurate depiction of Sullins on the Warrant Unit program as a fugitive presently

wanted and evading arrest on an outstanding warrant for passing bad checks is

defamation per se and that the innuendo that Sullins is a bad check artist is defamation per

quod.    We further found that Sullins presented sufficient evidence to defeat summary

judgment as to whether appellees were negligent in publishing false statements about him

and that there was an issue of fact as to whether appellees’ defamatory statements were

privileged. This court has not presumed anything regarding appellees’ fault in this case.

 Rather, based on our review of the record, we determined that there are genuine issues

of material fact as to who, if anyone, bears responsibility for the defamatory depiction of
Sullins on the Warrant Unit program.     Accordingly, this argument lacks merit.

          {¶4} WOIO also contends that our decision in this case is at odds with the Ohio

Supreme Court’s decision in Oney v. Allen, 39 Ohio St.3d 103, 529 N.E.2d 471 (1988).

Once again, we disagree.      In Oney, the issue was whether publication by a newspaper

that “Mike Oney, 32, of Noble Road, Shiloh,” had been indicted for “trafficking” was a

“fair and impartial” report of an indictment of “Mike Oney (aka) Stoney” for

“trafficking” and, as such, was privileged pursuant to R.C. 2317.05.        Id. at 103-105.

Oney claimed that the privilege was inapplicable because the defendants added

information that was not in the indictment, i.e., the age and address of Mike Oney, and

failed to include information that was in the indictment (“aka Stoney”), in the report. Id.

at 106.

          {¶5} In Oney, the prosecutor had given a reporter “off the record” a list of

individuals (including addresses, dates of birth, and social security numbers) who were

going to be indicted on drug trafficking charges.       Id. at 103-104. The list included

“Oney, Mike (aka) Stoney.”      The prosecutor claimed that he told the reporter that a court

order protected the indictments from becoming public until the defendants were in

custody. Id.      The reporter claimed that he was given the list with the understanding

that he would not publish the names until after the sheriff’s department began to arrest the

individuals.      Id. The court did not need to consider whether any “understanding” to

delay publication impacted the reporting privilege because, prior to publication, the

indictment of Mike Oney for trafficking was publicly reported on the criminal court’s
docket. Id. at 103-104, 107.      The reporter compared the names on the list he had

received from the prosecutor with those listed on the court’s docket and published an

article reporting on the indictments the following day. Id. at 103-104.

      {¶6} In concluding that the publication was privileged, the court noted that the

prosecutor’s office had identified Oney, by name, address, age, and social security

number, as the subject of the indictment, and that when Oney went to the sheriff’s

department after learning of the indictment, he confirmed that his address and social

security number were the same. Id. at 107.      “Under these facts,” the court “reject[ed]

the argument that [Oney] was never indicted for trafficking.” Id. Because under “the

facts and circumstances which provide the context to the docketed indictment,” the

“pivotal fact” — i.e., “Mike Oney was indicted” — was true, the court determined that

the privilege applied, even though Oney was mistakenly indicted. Id.       The court held

that “[a] publication is substantially accurate if it conveys the essence of the official

record to the ordinary reader, without misleading the reader by the inclusion of inaccurate

extra record information or the exclusion of relevant information in the record.” Id. at

106, citing 3 Restatement of the Law 2d, Torts, Section 611, Comment f       (1965); Mark

v. Seattle Times, 96 Wash.2d 473, 493, 635 P.2d 1081 (1982).

      {¶7} WOIO contends that “[t]his case is no different” because “[i]t is undisputed

that [Sullins] had already been convicted of passing bad checks when the Sheriff’s

department erroneously told Crime Stoppers that he was wanted for passing bad checks.”

 The fact is, however, that this case is different.   Indeed, the facts of this case that
distinguish it from Oney are so obvious, this court did not think it needed to explicitly

distinguish Oney in its opinion.

       {¶8} Whereas in Oney, the court determined that the “pivotal” aspect of the

published statement — i.e., that Mike Oney was indicted — was “true,” Oney at 107,

Sullins was not a fugitive, not presently wanted, and not evading arrest for “passing bad

checks” — as represented on the Warrant Unit program — at the time the program aired.

 WOIO’s application for reconsideration, as did its briefs, conveys the attitude that

because Sullins had been previously convicted of one count of passing bad checks more

than ten months before the Warrant Unit program aired and because he had been

previously charged with or convicted of other minor misdemeanor or traffic-related

offenses (including offenses for which warrants were outstanding at the time the program

aired), Sullins is somehow not entitled to recourse for appellees’ defamatory statements.

 This is incorrect. Simply because Sullins was convicted of, or charged with, other

offenses in the past does not mean that he is undeserving of protection from defamatory

statements.

       {¶9} Further, in this case, unlike in Oney, the government placed an explicit caveat

on the accuracy of the information it provided, i.e., that the warrant information received

from the sheriff’s department should be updated by checking the court’s docket to

confirm its continued accuracy prior to airing, which appellees arguably failed to do.

What WOIO describes as a “caveat” to the publication of the information in Oney related

only to the timing of the publication, not the accuracy of the information to be published.
 The court in Oney did not consider whether the prosecutor’s “caveat” to delay

publication of the information the reporter had received impacted the fair report privilege

because prior to the publication, the indictment of Mike Oney for trafficking was publicly

reported on the criminal court’s docket. Oney at 103-104, 107. Once it became part of

the public record, the court found that there was no restriction on the timing of the

publication of that information. Id. at 107.

       {¶10} Finally — and most significantly — in this case, unlike in Oney, there was

significant, potentially misleading, extra-record information included in the publication.

This is not a case in which the fact that a warrant had been issued for Sullins’s arrest for

passing bad checks was matter-of-factly reported in a police news blotter.     If that were

the case, appellees’ publication might well have been protected by the fair report

privilege.

       {¶11} Appellees, however, did not simply publish inaccurate information, received

from the sheriff’s department, regarding the warrant that had been previously issued for

Sullins’s arrest. Sullins was identified on the Warrant Unit program as a fugitive from

justice, one of “Cleveland’s 25 Most Wanted” — someone wanted more than all other

wanted persons, someone so dangerous that the narrator of the program cautioned

viewers: “Do not attempt to apprehend these people.              You leave that to the

professionals.”

       {¶12} Whereas Oney was a case in which, based on the undisputed facts, the court

determined that the privilege applied as a matter of law, this case is one in which, based
on disputed facts — including the effect of the “caveat” from the sheriff’s department to

update the warrant information received prior to airing, whether the “caveat” was

complied with, and the impact of identifying Sullins as a fugitive wanted on an

outstanding warrant for passing bad checks and as one of “Cleveland’s 25 Most Wanted”

— the determination of whether the representations made regarding Sullins on the

Warrant Unit program constituted a “substantially accurate,” “fair and impartial

reporting” of the warrant information received from the sheriff’s department is more

appropriately resolved by a jury. See, e.g., Young v. Morning Journal, 76 Ohio St.3d

627, 628, 669 N.E.2d 1136 (1996).

       {¶13} Finally, WOIO contends that because it did nothing but broadcast a program

that it “understood * * * to be based on official, public records provided by the sheriff’s

department,” and did not participate in creating, editing, or producing the Warrant Unit

program, it cannot be liable for any defamatory statements relating to Sullins.

       {¶14} Citing Amann v. Clear Channel Communications, Inc., 165 Ohio App.3d

291, 2006-Ohio-714, 846 N.E.2d 95 (1st Dist.2006), and several authorities from

jurisdictions outside Ohio, WOIO argues that there is no factual basis for imposing

liability on WOIO in this case because “relying on wire services, news aggregators, and

similar organizations as to the content they deliver is entirely reasonable and not

negligent.”   However, as discussed above, this is not a case in which WOIO simply

republished material taken from a reputable news service.       Further, Amann was not a

defamation case.   It involved whether a broadcaster owed a duty of care to its audience
to investigate the accuracy of claims made in the advertisements it broadcast. Id. at ¶ 6.

       {¶15} The other cases cited by WOIO in support of this argument are likewise

distinguishable.   For example, Young v. Russ, 11th Dist. Lake No. 2003-L-206,

2005-Ohio-3397, involved a defamation claim arising out of a news story that reported

that the plaintiff had harmed children at the school where he worked after a child had

recanted the claims.     The Eleventh District held that the anchorman who merely

introduced the story but had no involvement in the origination or investigation of the

story, no role in drafting scripts for, editing, modifying, or contributing to the story, and

no involvement in the decision to pursue or air the story, had no liability. Id. at ¶ 55.

As to the news reporter who investigated the story and the broadcast station who decided

to air the story with knowledge that the child had recanted, the court held that an issue of

fact existed as to their alleged negligence.       Id. at ¶ 52-53.    McPeek v. Leetonia

Italian-American Club, 174 Ohio App.3d 380, 2007-Ohio-7218, 882 N.E.2d 450 (7th

Dist.), involved a defamation action arising from disciplinary proceedings in a social club.

       {¶16} Despite its attempt to minimize its role, WOIO did something in this case.

It selected the Warrant Unit program for airing on its station, with knowledge of its

content and format, including the segment entitled “Cleveland’s 25 Most Wanted.” It

selected the program for airing in the hopes of entertaining and attracting viewers to its

station by its arguably sensationalist, inflammatory content. WOIO’s argument that it

had nothing to do with the content of the program it had selected to air, had no role in

ensuring that the information provided in the program was accurate, and had no
information as to how the local fugitives identified as “Cleveland’s 25 Most Wanted”

were chosen, does not, as WOIO contends, absolve it of liability, but rather, creates an

issue of fact for the jury to decide.    None of the authorities cited by WOIO supports a

contrary conclusion.

       {¶17} Accordingly, for the reasons set forth above, WOIO’s application for

reconsideration or, alternatively, to certify conflict is denied.



_______________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
