Peter J. Nickitas, Suite 301, 1507 Tower Avenue, Superior, WI 54880 (for Appellant)

John P. Borger, Eric E. Jorstad, Faegre & Benson, L.L.P., 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 and

Randy M. Lebedoff, Cowles Media Company, 425 Portland Avenue South, Minneapolis, MN 55488 (for Respondents Cowles Media and Larry Oakes)

Violet Struss, Andrew H. Seitel, Halleland, Lewis, Nilan, Sipkins & Johnson, L.L.P., 100 Washington Square, Suite 755, Minneapolis, MN 55401 (for Respondent Steven Goede)

Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Foley, Judge.[*]

Appellant brought an action for defamation and negligent infliction of emotional distress against Cowles Media d/b/a Star Tribune, reporter Larry Oakes (hereinafter collectively "Star Tribune"), and Steven Goede resulting from an article in the Star Tribune entitled "Fires of Hate." Goede was appellant's neighbor and a source identified in the article. The district court granted respondents' motions for summary judgment. Appellant claims that the district court erred in dismissing by summary judgment his claims of defamation and negligent infliction of emotional distress. We affirm.

No arrests were made at the time of the fires, but the sheriff's department suspected that all three fires resulted from arson. Because of appellant's persistent interest in the parcel and the fact that he was twice seen trespassing on the property, law enforcement officials considered him, his father, and his brother to be suspects. In January 1994, at the time of the third fire, Goede, firefighters, and sheriff deputies all noticed tracks in the newly-fallen snow around the Goede house. The deputies followed the tracks from the Goede house down the driveway and to the road, where the tracks disappeared on the plowed pavement. Although the deputies could not discern the tread pattern on any of the tracks, similar-sized tracks were also observed on the road near appellant's driveway leading to his house. Deputies interviewed appellant, obtained a search warrant, and took various items from his house for testing that proved inconclusive.

On March 13, 1994, the Minneapolis Star Tribune newspaper published an article written by respondent Oakes that chronicled the Goedes' problems while constructing their lake home. The article described the "tracks:"

The tracks went toward the place Steve and Jane [Goede] guessed they would. The tracks went down the driveway and up the road a quarter-mile to the highway. They disappeared on the pavement but reappeared just up the road at the edge of a driveway. They turned and went up the driveway to the back door of [appellant's home].

The article went on to describe a benefit supper held in support of the Goedes, which was attended by 200 people who contributed a total of over $3,500. The article concluded by mentioning that appellant's father donated $20, but that "Steve Goede sent the money back with a note. It said, 'This won't cover the cost of the damage.'" Although law enforcement authorities brought no criminal charges in connection with the fires on the Goede property, the investigation was in progress at the time the Star Tribune published the article.

1. Defamation

To establish a defamation claim, a plaintiff must prove that the defendant published (1) a statement of fact, (2) that was false, (3) that concerns the plaintiff, and (4) tends to harm the plaintiff's reputation and to lower him or her in the esteem of the community. Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn. App. 1989), review denied (Minn. Feb. 9, 1990). A plaintiff must satisfy all four elements to succeed in a defamation action. Id. Further, expressions of opinion, rhetoric, and figurative language are generally not actionable if, "in context, the audience would understand the statement is not a representation of fact." Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986). Whether a statement is fact or opinion is a question of law. Foley, 449 N.W.2d at 501. Though not binding, courts also consider four factors to determine whether a statement is fact or opinion:

(1) the statement's precision and specificity;

(2) the statement's verifiability;

(3) the [statement's] social and literary context * * *; and

(4) the statement's public context.

Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992).

Appellant claims that the following statements were defamatory: (1) the "Fires of Hate" headline and the general implication that appellant was the arsonist; (2) the author's allusion that the tracks in the snow belonged to appellant; and (3) Goede's statements to others that he "guessed" the tracks would lead to appellant's home and that he always "wondered about" appellant's involvement in the fires. Respondents deny that any of these statements are defamatory because they are all factually based or opinions; respondents also claim that the article is privileged as a summary of what is available through public records, that no facts exist to support a claim for defamation by implication, and that Minnesota does not recognize a cause of action for defamation by implication arising from true or privileged statements.

Appellant relies on Toney v. WCCO Television, 85 F.3d 383 (8th Cir. 1996), an Eighth Circuit federal case interpreting Minnesota law, for the proposition that Minnesota law provides a cause of action for "defamation by implication." Respondents challenge the applicability of Toney, arguing that the Eighth Circuit's decision came before several key Minnesota Supreme Court defamation cases. Richie v. Paramount Pictures Corp., 544 N.W.2d 21 (Minn. 1996); Bolton v. Department of Human Servs., 540 N.W.2d 523 (Minn. 1995); Hunter v. Hartman, 545 N.W.2d 699 (Minn. App. 1996), review denied (Minn. June 19, 1996). Richie, Bolton, and Hunter, however, have no bearing on defamation by implication as a tenable cause of action. The cases cited by the Eighth Circuit as finding a cause of action for defamation by implication in Minnesota are still viable. According to the Minnesota Supreme Court, it is for courts to determine whether a claimed defamatory innuendo is reasonably conveyed by the language used. Utecht v. Shopko Dept. Store, 324 N.W.2d 652, 653 (Minn, 1982).

The Star Tribune article, while noting that appellant was a suspect and that Goede believed that he had set the fires, could not reasonably be considered defamatory when read within its entire social and literary context. See Driscoll, 479 N.W.2d at 79 (listing factors). The article's main thrust detailed the Goedes' frustration as they attempted to build their "dream home." The title, "Fires of Hate," merely echoed the belief of law enforcement authorities that the origin of the fires was arson, a hateful act. Indeed, the article provided a statement by appellant that he "understood" how he could be a suspect because of his prior interest in buying the property and the fact that he had been walking on it earlier. Overall, as the subtitle indicated, the article characterized the origin of the fires as an "ugly mystery."

The article's description of the tracks in the snow merely recited that they led from the Goedes' home to the road, then reappeared near appellant's driveway, and then led to appellant's home, where Goede "guessed they would." The statements describing where the tracks led were, as the district court noted "substantially accurate." The statements are not false--there were tracks in the snow that led from the Goede house to the road. Similarly, tracks of similar size and shape reappeared near appellant's driveway. Appellant does not deny that the tracks existed; and there is no evidence that those statements were false.

Finally, appellant claims that Goede's statements that the tracks in the snow "went toward the place [Goede] guessed they would," and that Goede "had wondered about [appellant] from the outset" are defamatory. As to these statements, the district court granted summary judgment for respondents because they "contain cautionary language" and "are clearly the Goedes' opinions." Moreover, there is no indication that the Goedes were asserting facts, rather than merely offering a theory on the origin of the fires.

[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.

Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993).

2. Negligent Infliction of Emotional Distress

Appellant admits that the negligent infliction of emotional distress claim is derivative of the defamation claim, and cannot stand alone under current Minnesota law, but claims that he should be entitled to pursue his negligent infliction of emotional distress claim along with the defamation claim on remand. See Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138, 144 (Minn. App. 1992) (holding that where a negligent infliction of emotional distress claim is based on the same facts as a failed defamation claim, the negligent infliction of emotional distress claim must fail as well). Because appellant's defamation claim fails, his negligent infliction of emotional distress claim must also fail.

Affirmed.

Dated: _____________________________________

James C. Harten

Judge, Court of Appeals

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.