Summary
noting Washington's adherence to § 652D formulation
Summary of this case from Washburn v. Gymboree Retail Stores, Inc.Opinion
No. 26216-2-III.
January 17, 2008.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 06-2-00323-4, Robert L. Zagelow, J., entered May 16, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Thompson, J. Pro Tem.
Sandra Vande Hey appeals the superior court's summary judgment granted in favor of Walla Walla Community Hospice and Regency Pacific, Inc., a nursing home, contending material issues of fact exist regarding her defamation and "false light" invasion of privacy claims. We affirm.
FACTS
Ms. Vande Hey worked as a Hospice nurse from 1999 into 2005 when she was fired. Her duties included visiting Hospice patients at various health care facilities, including Regency. In early 2006, a Hospice patient, D.S., informed Hospice that while Hey v. Walla Walla Cmty. Hospice she was hospitalized Ms. Vande Hey continued to visit her after her firing. Hospice had also received a report from a hospital nurse that a former Hospice employee, believed to be Ilona Pease, visited a patient posing as a Hospice worker.
On March 24, 2006, Hospice Patient Care Coordinator Linda Miller contacted Debbie York, Regency Director of Nursing Services, to inform her that D.S. was scheduled to be discharged from the hospital and was going to be admitted to Regency. Ms. Miller had a long history of working with Ms. York. Ms. Miller expressed her concern that Ms. Vande Hey and Ms. Pease had continued to visit D.S. when they were no longer Hospice employees because they should not be allowed to view her medical records under federal privacy laws. She did not want Regency to incorrectly assume Ms. Vande Hey was still a Hospice employee.
After the conversation, Ms. York posted a handwritten note in the nursing stations and employee break room informing employees not to allow unauthorized persons to view patient medical records. The memo partly stated: "Linda Miller head of hospice called me. She told me that they have been having problems with 2 ex hospice workers. These 2 people have been posing as hospice workers." Clerk's Papers (CP) at 120. She included the ex-hospice employees' names and descriptions, stating: "They can visit as friends but they cannot see the chart. This is one time I want you to quiz who is at the nursing station." CP at 120. Ms. York removed the memos three days later, after D.S. passed away.
Ms. Vande Hey learned of the memo from Regency nurse June Broman, a friend, and obtained a copy of it. She sued Hospice and Regency, claiming partly, defamation and invasion of privacy.
During pre-trial depositions, both Ms. Miller and Ms. York testified Ms. Miller did not state Ms. Vande Hey had been a "problem" or had been "posing" as a Hospice worker. CP at 124-25. Ms. York testified Ms. Miller told her one of the two former employees helped care for D.S. after leaving Hospice and some hospital workers thought she was a Hospice employee, and she wanted to make sure the same thing did not happen at Regency. Ms. York testified: "I can't remember the exact terminology she used, but I came away with that impression that they were posing as Hospice people, or not correcting someone if, you know, . . . they made the assumption that they were with Hospice." CP at 118. She declared: "My mention of Hospice having `problems' with Ms. Vande Hey or that Ms. Vande Hey was `posing' as a Hospice worker was my impression of what Ms. Miller told me." CP at 78. As to her memo, Ms. York declared: "Only authorized personnel have access to the break room and the inside of the nurses' stations. It is impossible for the general public, including vendors, family members, and visitors, to view the memorandum." CP at 78.
Hospice and Regency successfully moved for summary judgment. Ms. Vande Hey appeals.
ANALYSIS
The issue is whether the trial court erred in granting summary judgment in favor of Hospice and Regency on the issues of defamation and "false light" invasion of privacy. Ms. Vande Hey contends material issues of fact exist.
We review a trial court's summary judgment grant de novo. Korslund v. DynCorp Tri-Cities Servs. Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary judgment is appropriate where, viewing the facts in a light most favorable to the nonmoving party, no genuine issues of material fact exist and the issues can be resolved as a matter of law. Id. A nonmoving party must provide specific facts showing genuine issues of material fact exist; mere allegations are insufficient. Seybold v. Neb, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001).
A prima facie defamation claim requires a showing of: (1) a false statement, (2) an unprivileged communication, (3) fault, and (4) damages. Eubanks v. N. Cascades Broad., 115 Wn. App. 113, 119, 61 P.3d 368 (2003). Genuine issues of material fact must exist for each element to defeat summary judgment. Id.
A false statement is actionable if it is "apparent that the false statement or communication presents a substantial danger to the plaintiff's personal or business reputation." Ernst Home Ctr., Inc. v. United Food Commercial Workers Int'l Union, AFL-CIO, Local 1001, 77 Wn. App. 33, 44, 888 P.2d 1196 (1995). A false statement is actionable per se if it "imputes . . . some criminal offense involving moral turpitude." Ward v. Painters' Local Union No. 300, 41 Wn.2d 859, 863, 252 P.2d 253 (1953). Where a private individual is involved, fault is established under negligence principles by showing "the defendant knew or, in the exercise of reasonable care, should have known that the statement was false, or would create a false impression in some material respect." Taskett v. KING Broad. Co., 86 Wn.2d 439, 445, 546 P.2d 81 (1976); Moe v. Wise, 97 Wn. App. 950, 957, 989 P.2d 1148 (1999).
Defamatory statement liability arises when it is communicated or "published" to someone other than the defamed. Pate v. Tyee Motor Inn, Inc., 77 Wn.2d 819, 821, 467 P.2d 301 (1970). Internal business communications among employees, when acting in the ordinary course of business, are not considered "published" in the defamatory context. Id. at 820. Further, an otherwise defamatory statement may be privileged under the "common interest" qualified privilege if "the declarant and the recipient have a common interest in the subject matter of the communication." Moe, 97 Wn. App. at 957-58. The privilege applies unless the declarant abuses the privilege by "know[ing] the matter to be false or act[ing] in reckless disregard as to its truth or falsity [through actual malice] . . . [or] knowingly publish[ing] the matter to a person to whom its publication is not otherwise privileged." Id. at 963.
Here, no evidence shows either Ms. Miller or Ms. York "published" the statements within the meaning of a defamation action; the statements were privileged. Ms. Miller and Ms. York shared a common interest; they shared a patient in common and were required to ensure the confidentiality of the patient's medical records. Ms. Miller communicated with Ms. York by telephone and Ms. York communicated with her employees, through an internal memo. Ms. Vande Hey fails to show either Ms. Miller or Ms. York abused the privilege by "knowingly" making false statements, acting with malice, or publishing the statements to persons not covered by the privilege. Ms. Vande Hey does not show Ms. York's internal memo was viewed by the public. Further, no evidence shows Ms. Miller made any false statements, or that either Ms. Miller or Ms. York were negligent.
A "false light" invasion of privacy claim requires a defendant "publicize" a matter placing another in a false light where: "(a) the false light would be highly offensive to a reasonable person and (b) the [defendant] knew of or recklessly disregarded the falsity of the publication and the false light in which the other would be placed." Eastwood v. Cascade Broad. Co., 106 Wn.2d 466, 470-71, 722 P.2d 1295 (1986). "Publicity" means "communication to the public at large so that the matter is substantially certain to become public knowledge, and that communication to a single person or a small group does not qualify." Fisher v. Dep't of Health, 125 Wn. App. 869, 879, 106 P.3d 836 (2005); La Mon v. City of Westport, 44 Wn. App. 664, 669, 723 P.2d 470 (1986) (citing Restatement (Second) of Torts § 652D (1977); Restatement, supra, § 652D cmt. a, at 384)).
Here, Ms. Vande Hey fails to show the statements were "publicized" within the meaning of an invasion of privacy claim. Ms. Miller communicated solely with Ms. York by telephone, and Ms. York communicated solely with her employees through an internal memo. Ms. Vande Hey fails to show the matter was communicated to the public.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J., THOMPSON, J. Pro Tem., concur.