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NORTHERN KENTUCKY LAW REVIEW Volume 23 Spring 1996 Number 2

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NORTHERN KENTUCKY LAW REVIEW Volume 23 Spring 1996 Number 2 NORTHERN KENTUCKY LAW REVIEW Volume 23 Spring 1996 Number 2 ARTICLES Kentucky Defamation and Privacy Law - The Last Decade ......................................................... David A. Elder 231 Termination of the Tenured Teacher in Kentucky: Does K.R.S. 161.790 Provide Adequate Due Process? .................. ................ Garry L. Edmondson 263 Kenneth E. Rylee Kentucky's Approach to the Discoverability of Peer Review .................................................... Donna M. Bloemer 275 BOOK REVIEW Not a Trivial Pursuit: Salmon P. Chase and American Constitutional Law ...................... James A Thomson 285 STUDENT ARTICLE Crashworthiness in the Commonwealth: An Analysis of the Defectiveness of Tractors Without Rops ........................................................ Rebecca K Phillips 325 NOTES Restoration of the Collateral Source Rule in Kentucky: A Review of O'Bryan v. Hedgespeth ..... Craig L. Farrish 357 Tate v. Boeing Helicopters: Government Contractors Increasingly at Risk Despite the Government Contractor Defense ....................... June E. Wagner 377 Hoke v. Cullinan: Recklessness as the Standard for Recreational Sports Injuries ........ Brendon D. Miller 409 Nelson Steel Corp. v. McDaniel: Discrimination Against Employees Who Have Filed Workers' Compensation Claims Against Previous Employers ............................... Jeffrey K Neiheisel 435 Greathouse v. Shreve and Shifflet v. Shifflet: Maintaining the Status Quo in Custody Disputes Between Parents and Third Party Contestants ..................................... Kathryn B. Hendrickson 451 ARTICLES KENTUCKY DEFAMATION AND PRIVACY LAW - THE LAST DECADE by David A. Elder INTRODUCTION In the last decade' a number of important United States Supreme Court decisions have been issued dealing with the law of defamation2 and privacy.3 During this same period, Kentucky courts have dealt with a wide range of common law and constitutional issues of defamation and privacy law, issuing a number of important opinions dealing with these topics which are of considerable interest to the Kentucky practitioner. This article will critically analyze the Kentucky developments in the context of an analysis of the significant United States Supreme Court decisions and of defamation-privacy developments nationally during this same period. THE PUBLIC V. PRIVATE STATUS DISTINCTION As is well-known, the Supreme Court, in New York Times Co. v. Sullivan," adopted a rule requiring public officials5 to prove constitu- 1. Although not citable as precedent under Ky. R. Civ. P. 76.28(4)(c), unpublished opin- ions are briefly discussed herein where appropriate for illustrative reasons. For an analysis of Kentucky law and the Constitutional decisions through 1983 see DAVID A. ELDER, KENTUCKY TORT LAW: DEFAMATION AND THE RIGHT OF PRIVACY (1983). 2. See generally DAVID A. ELDER, DEFAMATION: A LAWYER'S GUIDE (1993 & Supp. 1995). 3. See generally DAVID A. ELDER, THE LAW OF PRIVACY (1991 & Supp. 1996). 4. 376 U.S. 254 (1964). 5. Id. at 279-80. On the criteria applicable in determining which public employees are public officials see Rosenblatt v. Baer, 383 U.S. 75 (1966), where the Court stated that the "public official" status applies "at the very least" to public employees who "have, or appear to the public to have, substantial responsibility for or control over the conduct of public affairs" or "[w]here a position in government has such apparent importance that the public has an inde- pendent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employ- ees . .. ." Id. at 85-86. In a qualifying footnote the Court emphasized, however, that plaintiffs position "must be one which would invite public scrutiny and discussion of the per- son holding it, entirely apart from the scrutiny and discussion occasioned by the particular 232 NORTHERN KENTUCKY LAW REVIEW [Vol. 23:2 tional actual malice, defined as knowing or reckless disregard of falsity, by evidence of "convincing clarity"6 as a precondition to collecting dam- ages as to matters impugning them in their public capacities or reflecting on their fitness for their public positions.7 Later, the Court extended the same standards to public figures' and candidates and candidate-incum- bents for public office.9 In 1971, the New York Times decision reached its zenith and the Court plurality extended the same demanding standard to all plaintiffs, regardless of status, who were involved in matters of public or general interest or concern in the ill-fated decision of charges in controversy." Id. at 86 n.13. In other words, all governmental employees are not public officials, Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979), and a combination of public employment and press-generated newsworthiness do not together suffice to make plaintiff a "public official." For an extensive development of this thesis see David A. Elder, Defama- tion, Public Officialdom and the Rosenblatt v. Baer Criteria-A Proposal For Revivification: Two Decades After New York Times Co. v. Sullivan, 33 BUFF. L. REv. 579, 583 n.17 (1984). Clearly, an elected county judge executive is, by definition, a "public official." Cazalet v. Flanagan, 1995 WL 641977, at *1 n.3 (Ky. Ct. App. 1995). By contrast, a 1964 Kentucky decision issued just after the New York Times decision, held that the latter case's standards were inapplicable to aspersions reflecting upon the fitness of a police officer disparaged in "his fitness ... as a man" in a "purely personal attack" on him-as of "limited training, no culture and a professional moocher, who strikes you for 50C or a dollar every time he meets you on the streets." Tucker v. Kilgore, 388 S.W.2d 112, 114-16 (Ky. 1964). Although the case is clearly questionable as to its relevance to official fitness aspect, its over all conclusion of the nonapplicability of New York Times seems "eminently consistent" with the Rosenblatt criteria and Hutchinson's n. 8, despite the fact that the "overwhelming sentiment" of the case law is to the contrary. See ELDER, supra note 1, at 323-26. In a thoughtful, unpublished opinion, a court of appeals has more recently held that a private attorney performing contract work for a water district was not a public official under Rosenblatt. Osborne v. Ottaway Newspapers, Inc., 18 MED. L. REP. (BNA) 2395, 2396-97 (Ky. Ct. App. June 21, 1991), cert. denied, 505 U.S. 1206 (1992). This conclusion reflects the general perspective of the cases involving government contractors. See ELDER, supra note 2, § 5:1. Note that where a public official or other litigant sues for libel unsuccessfully, Kentucky law allows a successful libel defendant to sue subsequently for malicious prosecution as to an action filed without probable cause and permits the party to claim damages for emotional distress, humiliation, loss of reputation and any special damages resulting therefrom. Kirk v. Marcum, 713 S.W.2d 481, 484-86 (Ky. Ct. App. 1986). On the current standards applicable in a malicious prosecution action see Prewitt v. Sexton, 777 S.W.2d 891 (Ky. 1989). 6. Harte-Hanks Comm. Inc. v. Connaughton, 491 U.S. 657, 659, 668, 681, 686, 690 (1989)(defining "convincing clarity" as equivalent to the clear and convincing evidence stan- dard). 7. Garrison v. Louisiana, 379 U.S. 64, 65-66, 77 (1964); Monitor Patriot Co. v. Roy, 401 U.S. 265, 268, 273-77 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 301 (1971). 8. Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-65 (1967). (A well-known college football coach and a retired general who had thrust himself into the desegregation controversy at "Ole Miss" were held to be public figures). 9. Monitor Patriot Co., 401 U.S. at 271-72; Ocala Star-Banner Co., 401 U.S. at 299. 19961 KENTUCKY DEFAMATION AND PRIVACY LAW Rosenbloom v. Metromedia, Inc.10 A short three years later, the Court repudiated the Rosenbloom subject matter approach in the famous case of Gertz v. Robert Welch, Inc.," rejuvenating the status approach and the public versus private person distinction. The latter dichotomy was justified in part by the access that public persons have to the means and modes of response but, more im- portantly, by the "compelling normative consideration"" that such pub- lic persons have assumed the risk of enhanced media and public scruti- ny. 3 As to individuals not coming within the public official classifica- tion, the Court concluded that a person could nonetheless be considered a public figure under the Gertz criteria in one of two ways, as an all pur- pose or general public figure 4 or as a vortex or limited purpose public figure. '5 In applying the two subcategories, the Court has clearly expressed a decided preference for the vortex or limited purpose variety 6 and has narrowly construed this category to exclude from the public figure status the following persons: a locally prominent attorney who represented the family in a controversial civil rights-wrongful death action brought against a police officer; 7 a socialite with a nationally prominent name 10. 403 U.S. 29, 52 (1971). 11. 418 U.S. 323, 341-46 (1974). 12. Id. at 344. A recent case has reiterated the saying that "[i]n the parlance of the horse industry, part of the turf of being a public official or public person is to be subject to public scrutiny." Cazalet v. Flanagan, No. 94-CA-001332-MR, 1995 WL 641977 *3 n. 3 (Ky. Ct. App. Nov. 3, 1995). Consequently, "'[i]f you can't stand the heat, you'd better stay out of the kitchen.'" Id. at *4. 13. Gertz, 418 U.S. at 344. 14. Gertz, 418 U.S. at 351-52. For an analysis of "all purpose" or "general" public fig- ures see ELDER, supra note 2, § 5:6. Although the Court noted at one point the hypothetical situation of the "exceedingly rare" "truly involuntary" public figure, it discussed only the two categories as to attorney-Gertz.
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