Preview:

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,139 MELANIE L. VALADEZ, As Administrator of the Estate of ROGER G. VALADEZ, Appellee/Cross-appellant, v. EMMIS COMMUNICATIONS, and TODD SPESSARD, Appellants/Cross-appellees.

SYLLABUS BY THE COURT 1. In order to prevail in a claim of intentionally causing emotional distress, a plaintiff must prove four elements: (1) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant's conduct and the plaintiff's mental distress; and (4) the plaintiff's mental distress was extreme and severe.

2. Conduct that would otherwise be extreme and outrageous may be privileged under certain circumstances. An actor who, for example, has done no more than to insist upon his or her legal rights in a permissible way, even though he or she is well aware that such insistence is certain to cause emotional distress, is not liable.

3. Elevated fright, continuing concern, embarrassment, worry, and nervousness do not by themselves constitute sufficient harm to a plaintiff to warrant the award of damages for outrage.

1

4. Whether a particular cause of action survives the death of a party is determined by K.S.A. 60-1801.

5. Under the Kansas statutory scheme, damages for injury to reputation do not qualify to survive the death of the plaintiff before judgment becomes final.

6. A case is not final until there is no possibility of further court action. The effective date of a journal entry is when it is signed by the trial judge and filed with the clerk of the district court. A journal entry containing findings of fact and conclusions of law takes precedence over and may differ from the trial court's oral pronouncement from the bench. A judgment that has been orally pronounced but that lacks a journal entry is therefore not a final judgment.

Appeal from Sedgwick District Court; PAUL W. CLARK, judge. Opinion filed April 30, 2010. Affirmed in part and reversed in part.

Bernard J. Rhodes, of Lathrop & Gage L.C., of Kansas City, Missouri, argued the cause, and Melissa Hoag Sherman, of the same firm, was with him on the briefs for appellants/cross-appellees.

Craig Shultz, of Shultz Law Office, P.A., of Wichita, argued the cause, and Michael Shultz, of the same firm, was with him on the briefs for appellee/cross-appellant.

The opinion of the court was delivered by

ROSEN, J.: Emmis Communications and Todd Spessard appeal from the jury verdict decided against them in a tort action relating to their news coverage of the arrest 2

of a suspect in the BTK case. Melanie Valadez, the administrator of the Estate of Roger G. Valadez (Estate), cross-appeals from the judgment of the district court limiting the amount and scope of damages.

From 1974 to 1986, a series of at least eight homicides in the Wichita, Kansas, area were linked to an individual who identified himself as BTK (Bind, Torture, Kill). BTK was not identified or captured, the murders apparently ceased, and no further clues surfaced in the case. In the spring of 2004, BTK began to leave messages for the police and write letters to the press, which generated an intensive reinvestigation of the murders. Among these messages from BTK was a package containing autobiographical information. On November 30, 2004, the police released the autobiographical details to the public. These details included a claim that he was born in 1939 and that his father died in World War II. His mother worked near a railroad and his family always lived near a railroad; and he wrote of a lifelong fascination with railroads and trains. He joined the military for active duty and was discharged in 1966, when he moved back in with his mother. The police also speculated, based on the language of BTK's communications, that Spanish might be one of BTK's primary languages.

On December 1, 2004, Wichita police received a confidential tip linking Roger Valadez with BTK. The police arrested Valadez on trespass and housing code violations and executed a warrant to search his residence.

At the time, Todd Spessard was the news director for television station KSN Channel 3 in Wichita. Emmis Communications owned KSN at the time of the events underlying the litigation of this case. KSN has a broadcasting territory that includes cable systems in Oklahoma and Nebraska.

In the early morning of December 2, 2004, Spessard received information that someone had been arrested in connection with the BTK case. Spessard elected to 3

broadcast the story, beginning at 5 that morning. Reporter Chanda Brown went to the address where the arrest was made. Two police cars were present at the scene, and the police informed Brown that they were there for traffic control. In response to further questions, they said they could not comment. The police did not tell her they were following leads in the BTK case. No member of the police force questioned Valadez as a suspect in the BTK killings, and the police took the position that Valadez was never arrested as a suspect in those killings.

KSN devoted a substantial portion of its programming on that day to commentary and interviews relating to the arrest. The news stated that Wichita police had a man in custody whom they were questioning "in connection with the BTK investigation." In the morning broadcast, Chanda Brown identified Roger Valadez and "another woman with the same last name" as the residents of the house where the arrest was made. The broadcast also identified the exact address where the arrest had been made. KSN was the only station in Wichita to identify Valadez by name.

Brown stated that Valadez' home was close to some of the homicide victims and, together with other information, it was adding up that there "could possibly be definitely coincidences with the BTK investigation." The news listed factors, particularly the facts that Valadez lived "very near a railroad track," was of Spanish descent, and was a military veteran, that suggested he was BTK.

KSN interviewed various townspeople for their reaction to the arrest. A married couple who had sold Valadez his home stated that they were surprised because they had no idea that Valadez "was some crazy character." One of the couple was filmed saying, "I felt it run in my mind that he could have grabbed me." The broadcasts stated that, although the police had not issued any statement confirming that Valadez was BTK, Wichita residents were relieved that Valadez was in custody.

4

KSN reported that the police chief himself participated in the arrest, suggesting that the arrest was of unusual importance. The police chief was not, in fact, at the scene of the arrest. KSN also reported that Valadez' bond of $25,000 was increasing as the morning progressed, but in fact his bond was reduced to a professional surety bond of $1,250 even before results of a DNA test came back.

By 9 a.m., Spessard had heard a radio report that the police chief had already told an Associated Press reporter that no arrest had been made in the BTK case. The Associated Press put out a report by 11:18 that morning stating that no arrest had been made in the BTK investigation. KSN continued, however, to broadcast reports that BTK might be in custody. These reports included interviews with neighbors and news commentary about "developments in the BTK case." The station also broadcast interviews with people who had driven to Valadez' house specifically to see BTK's home.

Valadez was released on bond later in the day on December 2. KSN continued to air reports suggesting that, even if Valadez was not BTK, he had probably been arrested relating to a homicide. KSN then reported that Valadez "now has to go back to his neighborhood, with his neighbors and all the people that know him, and live with the fact that he was a suspect in a terrible crime." The DNA testing results came back on the afternoon of December 3, clearing Valadez of any criminal activities related to BTK.

BTK continued to leave packages and messages for the press and the police. On February 25, 2005, the police announced that they had taken a person of interest into custody. On February 26, 2005, at a nationally televised press conference, the police announced that they had arrested Dennis L. Rader in connection with the BTK murders. On June 27, 2005, Rader pled guilty to 10 counts of first-degree murder. He was sentenced to 10 consecutive life terms.

5

On January 10, 2005, Valadez filed a petition naming Emmis Communications, The Associated Press, Journal Communications, Inc., and Journal Broadcast Group of Kansas, Inc. as defendants. The petition raised claims based on invasion of privacy intrusion on private concerns; invasion of privacy - publicity to private life; invasion of privacy - false light; outrageous conduct; and defamation. Valadez subsequently voluntarily dismissed his claim against The Associated Press.

On October 20, 2006, a jury found that the defendants' conduct was defamatory as well as extreme and outrageous. The jury awarded damages of $800,000 for mental suffering, shame, and humiliation and $300,000 for injury to reputation.

On January 10, 2007, before a journal entry was settled and signed, the defendants filed a suggestion of death suggesting that Valadez had died on November 27, 2006. The district court granted a motion by Melanie Valadez, acting as administrator of Valadez' estate, to substitute the estate as the plaintiff in the action. It held, however, that the defamation action abated when Valadez died. The court found that the extreme and outrageous conduct action survived Valadez' death. The court reversed the award of $300,000 for damage to reputation because of the abated defamation action and reduced the award of $800,000 to $250,000, citing the K.S.A. 60-19a02 limitation on awards for noneconomic losses.

The defendants filed a timely notice of appeal, and the Estate filed a timely notice of cross-appeal.

We initially address the question of whether the plaintiff proved damages sufficient to sustain an action for outrage.

6

In Kansas, the tort of outrage is the same as the tort of intentional infliction of emotional distress. Hallam v. Mercy Health Center of Manhattan, Inc., 278 Kan. 339, 340, 97 P.3d 492 (2004).

In order to prevail in a claim of intentionally causing emotional distress, a plaintiff must prove four elements: (1) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant's conduct and the plaintiff's mental distress; and (4) the plaintiff's mental distress was extreme and severe. Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024 (1991) (citing Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 [1981]).

Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it. Saylor, 230 Kan. at 292-93.

Conduct that rises to the level of tortious outrage must transcend a certain amount of criticism, rough language, and occasional acts and words that are inconsiderate and unkind. The law will not intervene where someone's feelings merely are hurt. In order to provide a sufficient basis for an action to recover for emotional distress, conduct must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society. Taiwo, 249 Kan. at 592-93.

Furthermore, conduct that would otherwise be extreme and outrageous may be privileged under the circumstances. "The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is 7

well aware that such insistence is certain to cause emotional distress." Restatement (Second) of Torts

Download Valadez v. Emmis Communications.pdf

Kansas Law