Opinion
2459/03.
Decided June 24, 2004.
This small claims action was commenced to recover one-hundred dollars. The issue presented in this case is whether a newspaper may be liable for the act of its employee which resulted in the publication of a false and misleading advertisement. For the reasons that follow, the Court concludes that the answer is no.
Facts
On November 7, 2002, the following advertisement was published in The Journal News: "Michael Flatley's `Lord of the Dance': 8 p.m. Nov. 8, 4 and 8 p.m. Nov. 9, 2 and 7 p.m. Nov. 10. $25-$55. Palace Theatre at Stamford Center for the Arts, 61 Atlantic St., Stamford. 203-325-4466." Adjacent to this information was a color photograph depicting a jovial Michael Flatley flanked by two females wearing dance attire. Directly below this photograph appeared the following: "Michael Flatley performs Nov. 8-10 in Stamford, Conn."
Plaintiff's testimony and documentary exhibits demonstrate that Michael Flatley is an internationally acclaimed Irish dancer, choreographer and producer, once listed by the Guinness Book of World Records for having "the world's fastest feet" — thirty-five taps per second. It was also shown that the "Lord of the Dance" production is a blend of traditional and modern Celtic music and dance, experienced by more than fifty million people worldwide.
Aware that her mother was an avid fan of Michael Flatley, and having read the above advertisement, the plaintiff purchased two orchestra seat tickets for the performance to be held on November 9, 2002 at 8:00 p.m. Each ticket cost $50.00. During the intermission of the performance, the plaintiff and her mother inquired of the theater personnel and learned for the first time that Michael Flatley was not in this production of "Lord of the Dance" and that they were viewing an event performed by one of the stage troupes traveling around the country.
Moreover, an individual in the theater's box office confirmed that Michael Flatley was never scheduled to appear and that the advertisement in The Journal News was incorrect.
The evidence at trial further showed that neither the Stamford Center for the Arts nor anyone affiliated with the "Lord of the Dance" production suggested or approved of the insertion of the color photograph and/or words appearing thereunder. Rather, it was an employee of The Journal News who unilaterally assumed this task and included the material.
The Pleading
The small claims summons in this case reads as follows: "Incorrect info in newspaper cost me $100.00." In view of the relaxed pleading standards applicable in a small claims action ( see Albert v. Margaretten, 2002 WL 1414098 [App. Term 9th 10th Jud. Dists. 2002]), and to the extent the evidence presented at trial supports a cognizable theory of recovery, the Court will sua sponte conform the plaintiff's pleading to the proof ( see Wai-Sun Chen v. Unique Food Vending Services, Inc., 2002 WL 31055592 [App. Term 2d 11th Jud. Dists. 2002]; Board of Managers of the Mews at North Hills Condominium v. Farajzadeh, 189 Misc.2d 38 [App. Term 2d Dept. 2001]; Walker v. Mergler, 2001 WL 1744161 [App. Term 1st Dept. 2001]).
Negligent Misrepresentation
In order to recover upon a theory of negligent misrepresentation, the plaintiff must show that, "because of some special relationship with the defendant which generally implies a closer degree of trust than the ordinary buyer-seller relationship, the law imposes on that defendant a duty to use reasonable care to impart correct information, that the information is false or incorrect, and that the plaintiff reasonably relied upon the information given" ( Pappas v. Harrow Stores, Inc., 140 A.D.2d 501 [2d Dept. 1988]; see also Hudson River Club v. Consolidated Edison Company of New York, Inc., 275 A.D.2d 218 [1st Dept. 2000]; R. Freedman Son, Inc. v. A.I. Credit Corporation, 226 A.D.2d 1002 [3d Dept. 1996]).
It is undisputed that the words under the color photograph were false and misleading. In addition, construing the printed words and photograph together ( cf. Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423 [1st Dept. 1968]), the Court finds that the plaintiff reasonably relied upon the same and had every reason to believe that Michael Flatley would perform on the scheduled evening. However, reliance alone is insufficient to sustain a cause of action based upon negligent misrepresentation. It must be established that a special relationship existed between the parties ( see Ravenna v. Christie's Inc., 289 A.D.2d 15 [1st Dept. 2001]).
The general rule is that a news service is not liable to its readers for negligent false statements ( see Jaillet v. Cashman, 115 Misc. 383 [Sup. Ct. N.Y. Co. 1921], aff'd 202 A.D. 805 [1st Dept. 1922], aff'd 235 N.Y. 511). The rationale behind this principle is that there exists no contractual, fiduciary or other special relationship between the subscriber of a news service and the news service itself ( see Jaillet, supra; Pressler v. Dow Jones Company, Inc., 88 A.D.2d 928 [2d Dept. 1982]; Glaub Jewelers, Inc. v. New York Daily News, 141 Misc.2d 890 [Civ. Ct. Kings Co. 1988]; Daniel v. Dow Jones Company, Inc., 137 Misc.2d 94 [Civ. Ct. N.Y. Co. 1987]; Suarez v. Underwood, 103 Misc.2d 445 [Sup. Ct. Queens Co. 1980]; but see Blinick v. Long Island Daily Press Publishing Co., Inc., 67 Misc.2d 254 [Civ. Ct. N.Y. Co. 1971]). Further, that a news service's dissemination of advertisements of mass communication does not establish privity with unidentified members of the public, a necessary element to support a claim of negligent misrepresentation ( see Portnot v. The American Tobacco Company, 1997 WL 638880 [Sup. Ct. Suffolk Co. 1997]). However, "if a newspaper publishes false and misleading advertisements maliciously or with the intention to harm another or so recklessly and without regard to its consequences that a reasonably prudent person would anticipate the damage, that newspaper should be held accountable for its conduct in the same manner as is any other person who commits such a tortious act" ( Goldstein v. Garlick, 65 Misc.2d 538 [Sup. Ct. Queens Co. 1971]).
In this case, there is no evidence to suggest that the defendant had a direct financial interest in the success of the performance. As such, there is no basis to infer that the advertisement was augmented with misleading information in order to reap financial gain. Nor does the evidence show that the photograph and words appearing thereunder were placed maliciously or with the intention to harm another or in reckless disregard of the consequences. To the contrary, the trial evidence shows that this false information was placed by a page designer to enhance the news item. While a modicum of diligent inquiry by the defendant would have likely proven helpful in avoiding the advertisement's false and misleading effect, the evidence before this Court fails to establish that such a lack of inquiry equates with the standard of recklessness needed to depart from the general rule announced above.
General Business Law § 350: False Advertising
General Business Law § 350-a (1) states in relevant part as follows: "The term `false advertising' means advertising . . . [which is] misleading in a material respect." In order to establish false advertising under GBL § 350, a plaintiff must demonstrate that (1) the advertisement was materially misleading; (2) the advertisement had a broad consumer impact; and (3) the plaintiff was misled or deceived by the advertisement (B.S.L. One Owners Corp. v. Key International Manufacturing, Inc., 225 A.D.2d 643 [2d Dept. 1996]; DeSantis v. Sears, Roebuck and Company, 148 A.D.2d 36 [3d Dept. 1989]; Gabbay v. Mandel, N.Y.L.J., March 10, 2004, at 19, col. 3 [Sup. Ct. N.Y. Co.]). There is no requirement that a plaintiff show either intentional or reckless conduct (see Simply Lite Food Corp. v. Aetna Casualty and Surety Company of America, 245 A.D.2d 500 [2d Dept. 1997]). Nor must a plaintiff prove "justifiable reliance" (see Oswego Laborers' Local Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 26; but compare McGill v. General Motors Corp., 231 A.D.2d 449 [1st Dept. 1996] [GBL § 350 cause of action dismissed where the plaintiff failed to show that he relied upon a false advertisement]).
The Courts have taken an expansive view of what constitutes "false advertising" (see e.g. Karlin v. IVF America, Inc., 93 N.Y.2d 282; Beslity v. Manhattan Honda, 120 Misc.2d 848 [App. Term 1st Dept. 1983]). In determining whether an advertisement is misleading, the test is whether the false advertisement is "likely to mislead a reasonable consumer acting reasonably under the circumstances" (Oswego Laborers' Local Pension Fund, supra at 26; see also Scott v. Bell Atlantic Corporation, 282 A.D.2d 180, 184 [1st Dept. 2001]; but compare DeSantis, supra at 38 [the standard to be applied is whether the advertisement is misleading to the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions]; see also Beslity, supra at 852 [GBL § 350 was enacted to protect the ignorant, the unthinking and the credulous]).
Clearly, the advertisement was materially misleading. The color photograph showed Michael Flatley, an internationally recognized Irish dancer, accompanied by other performers. More importantly, the words directly below the photograph expressly stated that Michael Flatley would be performing on November 9. It is also apparent that Michael Flatley's accomplishments and world wide recognition make him a showcase dancer and that his anticipated performance on the scheduled date was a material reason for plaintiff's desire to attend the show with her mother.
The subject advertisement was published in a newspaper of general circulation in Westchester County. As such, the false and misleading information was disseminated to a vast number of individuals and thus had a broad consumer impact. Further, the plaintiff acted reasonably when she relied upon the advertisement and purchased two tickets to see "Lord of the Dance" and Michael Flatley. While justifiable reliance need not be shown, it is clear that the plaintiff justifiably relied upon the advertisement's representation that Michael Flatley would perform on November 9.
Notwithstanding the foregoing, recovery under GBL § 350 is barred by a categorical exemption which insulates the defendant from liability in this case. General Business Law § 350-f states that "[n]othing in this article shall apply to any television or sound radio broadcasting station or to any publisher or printer of a newspaper, magazine, or other form of printed advertising, who broadcasts, publishes, or prints such advertisement."
A review of legislative history related to this statute indicates that this exemption was considered necessary to preserve the unfettered spread of newsworthy information by the sources delineated in GBL § 350-f. In a memorandum addressed to the Governor and signed by Louis J. Lefkowitz, Attorney General, it was stated that GBL § 350-f "expressly exempts the press, radio and television from coverage to allay the fears of some who might think that a bill such as this infringes upon constitutional guaranties of freedom of expression" (Memorandum from State of New York, Department of Law, Bill Jacket, L. 1989, c. 65, § 1; Senate and Assembly Introducer Mem in Support, Bill Jacket, L. 1989, c. 65, § 1).
Conclusion
It is well settled that a newspaper has no duty to investigate the truthfulness of statements in an advertisement ( see Pressler v. Dow Jones Company, Inc., 88 A.D.2d 928 [2d Dept. 1982]; Coakley v. W Publishing Corp., 254 A.D.2d 135 [1st Dept. 1998]). Cases following this line of reasoning typically deal with a false and misleading advertisement drafted by the one who submits the information to the newspaper for publication. In contrast, the facts in this case prove that it was the page designer employed by the newspaper that turned an otherwise accurate advertisement into a false and misleading one. This is a distinction without significance. In the absence of a special relationship between the parties, malicious conduct intended to harm another or evidence demonstrating a reckless disregard of foreseeable consequences, no liability will be imposed upon a news service which publishes an advertisement that is false and misleading ( see Jaillet, supra; Goldstein, supra).
Judgment in favor of the defendant.
THIS DECISION CONSTITUTES THE ORDER OF THE COURT