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Denver Publishing Co. v. Bueno9/16/2002
is offset by the chilling effect the new, undefined tort could have on speech.
Finally, we note that the Colorado General Assembly retains full authority to promulgate statutory causes of action of the type we here reject. Should they deem this decision overly cautious, they are, of course, free to legislate a remedy. Therefore, the court of appeals judgment is reversed and the case is remanded for consideration by that court of Eddie Bueno's cross appeal.
CHIEF JUSTICE MULLARKEY dissents, and JUSTICE MARTINEZ and JUSTICE RICE join in the dissent.
CHIEF JUSTICE MULLARKEY, dissenting:
I respectfully dissent because I believe the majority opinion fails to sufficiently justify its decision to eliminate the tort of false light invasion of privacy from this jurisdiction.
By refusing to formally recognize the tort of false light invasion of privacy, the court today narrows privacy protections in Colorado and closes an independent avenue of relief available to plaintiffs in thirty other states. See maj. op. at 12 n.7; Bueno v. Denver Publ'g. Co., 32 P.3d 491, 495 (Colo. App. 2000). In so holding, the court deprives plaintiffs of a tort that effectively has been recognized in this jurisdiction for many years. As for the immediate ramifications of this decision, the court precludes Plaintiff Eddie Bueno from recovering under his false light claim for harm caused to him by a Rocky Mountain News article, sending him back to the court of appeals with the burden of resurrecting his defamation arguments.
Today's majority opinion offers two primary rationales for its decision to reject the false light tort and to restrict the privacy protections available in this state. First, the court reasons that false light duplicates defamation in several respects and is therefore an unnecessary claim. See maj. op. at 3. Second, the court asserts that the tort might have a chilling effect on First Amendment freedoms. Id.
In my view, these arguments are not persuasive. First, the mere overlap of some false light and defamation elements does not warrant a complete foreclosure of an independent false light claim. A better solution to overlap is simply to preclude duplicative damages awards. Second, false light offers the same First Amendment protections that defamation provides, therefore false light will not chill First Amendment freedoms. Third, today's decision needlessly places Colorado at odds with a clear majority rule, and the application of the majority's analysis to Bueno's case leads to an unfairly burdensome result.
I. Facts
Eddie Bueno, now in his sixties, left home at age 13 to escape a troubled family. He found work, attended school, and eventually married and raised a family. During those years, Bueno did all he could to separate himself from his brothers and sisters, and had virtually no contact with his parents or siblings.
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