Defamation – Publication – Qualified Privilege

Luxottica of America, Inc., et al. v. Bruce, [Ms. SC-2022-0867, June 30, 2023] __ So. 3d __ (Ala. 2023). The Court (Sellers, J.; Cook, J.; Parker, C.J., and Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur; Shaw, J., concurs specially; Sellers, J., dissents) vacates the Montgomery Circuit Court’s judgment entered after a nonjury trial in favor of Jackie Lee Bruce (“Bruce”) against Luxottica of America, Inc., Jeremiah Andrews, Jr., and Anthony Pfleger. Bruce alleged that Andrews and Pfleger, who are employees of Luxottica, defamed him and publicly placed him in a false light by accusing him of shoplifting.

Andrews, who is the manager of the “Sunglasses Hut, Owned by Luxottica, observed an incident which led Andrews to believe that Bruce was aiding an individual who was shoplifting. Andrews “reported the incident to Montgomery police and to defendant Pfleger, who is a former police officer and is a current asset[1]protection manager for Luxottica responsible for investigating shoplifting.” Ms. *4.

The Court notes that “[t]he allegedly defamatory statements made by Andrews, upon which Bruce bases his claims, were made to another employee of Luxottica, namely, Pfleger, within the line and scope of those individuals’ duties as employees.” Ms. *10. Accordingly, the Court holds “under the McDaniel/Burney rule, Andrews did not publish any statements, true or untrue, to a third party or to the public and therefore cannot be held liable for defamation or false-light invasion of privacy. Thus, the judgment against Andrews is due to be reversed and the claims against him dismissed.” Ms. **10-11, citing McDaniel v. Crescent Motors, Inc., 249 Ala. 330, 31 So. 2d 343 (1947); and Burney v. Southern Ry. Co., 276 Ala. 637, 165 So. 2d 726 (1964).

With respect to Pfegler, the Court explains

“Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged.... The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is ... moral in its nature... . Ex parte Blue Cross & Blue Shield of Alabama, 773 So. 2d 475, 478-79 (Ala. 2000).”

Ms. **11-12, some internal quotation marks omitted. The Court holds “[i]t is clear to this Court that Pfleger’s duties to Luxottica, as well as a corresponding interest he shared with Crimestoppers, were sufficient to trigger the prima facie applicability of qualified privilege with respect to Pfleger’s representations.” Ms. *14.

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