From Osowski v. Harer, decided today by the Minnesota Court of Appeals, in an opinion by Judge Randall Slieter, joined by Presiding Judge Jennifer Frish and Judge John Smith:
This defamation case, commenced by respondent Karen K. Osowski, arises from statements appellant Edie Harer made to law enforcement several months after the death of Harer’s father (decedent). Harer made statements which suggested that Osowski—Harer’s stepmother and decedent’s second wife—had killed decedent.
Osowski married decedent in July 2006. Harer did not attend the wedding. In 2013, decedent discovered a cloud on the title to his property and sought signatures on a corrective deed to remedy the problem. Harer and her siblings refused to execute the corrective deed and, as a result, decedent cleared title to his home through a quiet-title action. This led decedent to “cut off all communications with his children” and sign a will that disinherited his children.
Despite their disinheritance, Osowski maintained contact with decedent’s children. This included an email in early September 2018 informing Harer that decedent’s health was “getting worse by the day” and she was scheduling him for cancer testing. In mid-October, Osowski informed Harer that decedent “had been tested head to toe and all is good.”
On January 18, 2019, Osowski called 911 to report finding decedent dead in their home. A Cook County Sheriff’s deputy responded to the call and investigated the death. Based on the deputy’s description, the medical examiner declined to complete an autopsy because the death appeared to be from natural causes, and the deputy agreed that nothing “looked suspicious.” Six days after her father’s death, Harer called the medical examiner, asked why an autopsy had not been performed, and asked for one to be completed. It was explained to her that an autopsy would be difficult and likely uninformative at that point because the body had been embalmed.
In February 2019, Osowski’s daughter informed Harer that decedent had updated his will in 2014. The updated will left decedent’s estate to Osowski. Approximately two weeks later, an attorney Osowski retained to represent her in an anticipated probate proceeding informed Harer that he was in the process of preparing a petition to probate the 2014 will. The next day, Harer petitioned to probate decedent’s 1994 will, which included Harer and her siblings as devisees. Osowski objected to probate of the 1994 will and counterpetitioned for probate of the 2014 will.
On June 4, 2019, one week before a scheduled probate hearing and after the probate court denied her request for a continuance, Harer contacted the Cook County Sheriff’s Office asking it to reopen the investigation into her father’s death. The same deputy who initially investigated the death was assigned to the case. Harer also asked the sheriff to seek a delay in the probate proceeding “due to an investigation into my father’s death.” The sheriff declined.
Harer obtained a transcript of the 911 call Osowski placed after discovering decedent’s body. In the call, the 911 operator asked if the death was “expected,” and Osowski replied that she “contemplated it because of his health.”
On June 6, 2019, the deputy called Harer and conducted a recorded interview. In this conversation, the deputy asked Harer to explain “why you think that [Osowski] murdered your dad.” Harer responded, “because … she said that he had an expected death” in the 911 call, but Harer believed decedent had been in good health. Harer further stated that Osowski “makes her own pills, so she has … ways that she could have easily put something in something” and suggested that someone could “put anti-freeze in something somebody drinks … and somebody … won’t even know you put it in.”
During the summer of 2019, Harer objected to Osowski’s counterpetition to probate the 2014 will and moved multiple times to continue hearings, citing the reopened investigation. In September 2019, Harer voluntarily dismissed her petition for probate of the 1994 will and objection to probate of the 2014 will. The district court subsequently probated the 2014 will.
In October 2019, the deputy issued a supplement to his initial investigation into decedent’s death. He concluded that there was no “foul play or [anything] suspicious in the death of [decedent].”
Osowski sued Harer for libel, based on, among other things, Harer’s statements to the police, and got “compensatory damages of $20,000 for reputational harm, $100,000 for mental distress, $20,000 for past embarrassment, $20,000 for past humiliation, and $1,000 for stipulated health-care expenses.” The appellate court upheld the verdict, notwithstanding the qualified privilege for defamation in good-faith statements to law enforcement:
“One who makes a defamatory statement will not be held liable if the statement is published under circumstances that make it qualifiedly privileged and if the privilege is not abused.” To qualify for the privilege, a statement “must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause.” One of the proper occasions covered by qualified privilege is “a good faith report of suspected criminal activity to law enforcement officials.” “A qualified privilege is abused and therefore lost if the plaintiff demonstrates that the defendant acted with [common-law] actual malice.” …
Common-law actual malice requires the plaintiff to prove “that the defendant made the statement from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff.”
The jury was presented evidence that Harer had been estranged from her father for several years, partly due to her refusal to execute the corrective deed as he requested. Harer inquired about an autopsy a few days after her father’s death, but she proceeded with his burial and did not express any suspicions about his death until over four months later, when she contacted the sheriff’s office. When she spoke with the deputy, she was in the midst of a probate dispute with Osowski, whom she suggested may have killed decedent. Harer cited the reopened investigation in her objection to probate of decedent’s 2014 will and in multiple requests to continue hearings, suggesting that Osowski might be barred from benefiting from decedent’s estate “pending the conclusion of the criminal investigation.”
These facts, viewed in the light most favorable to Osowski, present a legally sufficient evidentiary basis for the jury to conclude that Harer made her statements with ill will or an improper motive. Therefore, the district court did not err in denying judgment as a matter of law on qualified immunity….
The court also concluded that the statements were treated as being on matters of purely private concern for First Amendment purposes, so the First Amendment rule that “a private plaintiff may not recover presumed damages for defamatory statements involving a matter of public concern unless the plaintiff can establish actual malice [in the constitutional sense]” doesn’t apply:
[The] statements were made during a private telephone interview, which the record indicates Harer intended to be private because she asked the sheriff if she should inform the probate court “that there has been a criminal investigation started” for fear that it would “tip off” Osowski. Furthermore, Osowski and Harer’s prior relationship and the disputed probate proceeding, which Harer attempted to stall based on the investigation her own statements reopened, suggest that the statements were “intended to mask an attack … over a private matter.”
Based on the totality of the circumstances, Harer’s statements dealt not with a matter of public concern, but with a private conflict between her and Osowski. Thus, Osowski is entitled to presumed reputation damages, and it was not error for the jury to award her reputation damages….
Congratulations to Tyson Smith & Richard T. Furlong, III (Smith Law, PLLC), who represent Osowski.