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Denver Publishing Co. v. Bueno9/16/2002
Greentree Mortg. Co., 30 F. Supp. 2d 1292, 1302 (D. Colo. 1998); Smith v. Colorado Interstate Gas Co., 777 F. Supp. 854, 857 (D. Colo. 1991). Clearly, Eddie Bueno and other plaintiffs who have raised false light claims in Colorado have been reasonable in relying on the impression that the false light tort is actionable in this state. Today's decision punishes that reasonable reliance.
B. Ramifications As Applied to Bueno
The majority's analysis reaches an unfairly burdensome result. The trial court directed a verdict against Bueno on his defamation claim but allowed his false light claim to go to the jury. The jury found for Bueno and awarded him $53,253.90 in economic and non-economic losses, as well as $53,253.00 in exemplary damages. In its opinion today, the majority sets aside the verdict and remands the case to the court of appeals to consider Bueno's contention that the trial court erred when it threw out his defamation claim.
The heart of the majority's decision is actually found in a short but extraordinarily significant footnote. See maj. op. at 8 n.3. In footnote 3, the majority holds, without discussion, that the defamation claim of libel per se "does not include a requirement that the publication be specifically directed at the plaintiff." Id. Conveniently enough, Bueno's original libel per se claim was dismissed by the trial court precisely because the trial judge determined the Rocky Mountain News article was not "specifically directed at" the plaintiff. This single footnote essentially decides Bueno's defamation case today, and yet the majority refuses to explicitly acknowledge this result. Instead, the majority now requires Bueno to go back to the court of appeals and either persuade the court of appeals that footnote 3 is not mere dicta or litigate the issue.
If, as the majority concludes, the tort of false light essentially is the tort of defamation in both the conduct alleged and the interests protected, see id. at 21-27, it should simply order the damages awarded for Bueno's recovery on false light to be paid to him as damages for defamation. The false light jury instructions given in this case were adequate in substance for a defamation claim, and damages certainly would not be duplicated by upholding Bueno's current award.
The only reason that would justify the majority's remand remedy would be that Bueno's claim is one of those rare instances the majority identifies that would be actionable under false light but not under defamation. If this is true, we should say so. If Bueno's case is in that "narrow band of cases" the majority opinion precludes today, see id. at 28, it is not reasonable to send Eddie Bueno back to the court of appeals or the trial court in search of an illusory goal.
To me, this case is exactly the type of situation that calls out for the protection afforded by the tort of false light invasion of privacy. Bueno w
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