Defamation – Invasion of Privacy – Tortious Interference

Flickinger v. King and King Simmons Ford & Spree, P.C., [Ms. SC-2022-0721, Apr. 21, 2023] __ So. 3d __ (Ala. 2023). The Court (Cook, J.; Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur) affirms in part and reverses in part the Jefferson Circuit Court 12(b)(6) dismissal of claims asserted by Birmingham attorney Daniel Flickinger. Flickinger posted a message on his personal Facebook page appearing to reference the death of George Floyd. The post “along with an allegedly ‘counterfeit’ social-media ‘profile,’ was later shared with Flickinger’s supervising attorney at his law firm by Lawrence Tracy King, an attorney with the law firm of King Simmons Ford & Spree, P.C. (“the King law firm”). Shortly thereafter, Flickinger was forced to resign.” Ms. *2. Flickinger then sued Tracy King and the King law firm alleging claims of defamation, invasion of privacy, and tortious interference with a business relationship.

“[T]he elements of a cause of action for defamation are ‘1) [a] false and defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting to at least negligence on the part of the defendant; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement.’ Dolgencorp, LLC v. Spence, 224 So. 3d 173, 186 (Ala. 2016).” Ms. *13, some internal quotation marks omitted. Because it was undisputed that Flickinger made the post in question, the Court explains,

Flickinger must allege that the false association – i.e., that in making that post he was doing so as a representative of his law firm – is what brought him “into public hatred, contempt or ridicule” or “imput[ed] dishonesty or corruption” to him. Nowhere in his second amended complaint, however, does Flickinger allege that the “counterfeit” social-media profile associated with the post generated such outrage and hatred. Instead, it was the content of his post that he alleges generated such outrage and hatred. Thus, under these circumstances, Flickinger has failed to demonstrate that the “counterfeit” social-media profile associated with the post at issue amounted to defamation.

Ms. **17-18.

The Court also affirms the dismissal of the invasion of privacy claim. The Court holds “‘[i]t is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded.’” Ms. *31, quoting Restatement (Second) of Torts § 652C cmt. d. “Flickinger does not otherwise allege any “unique quality or value in [his social-media presence] that would result in commercial profit to” the King defendants. Id. at 181. Thus, under these circumstances, Flickinger has failed to allege that his privacy was invaded in this way.” Ms. *32.

The Court reverses the dismissal of the tortious interference claim and holds

The King defendants’ reliance on Saint James School in support of its contention here is misplaced. In White Sands Group, supra, this Court specifically overruled older opinions, including Saint James School, that required a party asserting a tortious-interference claim to make “a showing of fraud, force, or coercion.” 32 So. 3d at 14. Additionally, contrary to the King defendants’ contentions, Flickinger has asserted allegations in his complaint that would support an inference of intent to interfere with his employer-employee relationship with WPM, at least at the pleading stage. We also cannot ignore the fact that the termination of Flickinger’s employment occurred almost immediately after WPM was contacted by King.”

Ms. **26-27.

In reversing, the court acknowledged that in Daniels, “the supreme court expressly overruled precedents relying on Restatement (Second) of Torts § 343A as a correct statement of the general rule governing the duty of a landlord as to an open and obvious danger. 314 So. 3d at 1224-25. However, in addition to discussing the traditional, general rule governing a landlord’s duty, the supreme court continued to acknowledge the existence of Alabama precedent regarding exceptions to the general rule.” Ms. *23.

The court then concluded that Daniels did not require affirmance of the summary judgment for the Housing Authority because

The present case, unlike Daniels, factually resembles Coggin [v. Starke Bros. Realty Co., 391 So. 2d 111 (Ala. 1980] regarding the type of danger at issue – a missing stair handrail leading to the leased premises – and involves the issue whether longstanding, supreme-court approved exceptions to the general rule as to a landlord’s duty apply after the decision in Daniels, specifically the exceptions described in Restatement (Second) of Torts §§ 360-61. ... [W]e cannot conclude that Daniels changed Alabama law as to those exceptions, and we must therefore apply Coggin as reflecting a proper statement of Alabama law.

Ms. *28.

The court cited with approval the following from comment b to Restatement (Second) of Torts § 360:

“The rule stated in this Section may also apply even though the person injured, whether he be the lessee himself or a third person, has knowledge of the existence of the dangerous condition. ... [U]nless the danger is so apparent and so great that it is unreasonable for him to encounter it in view of the purpose of his use, or unless knowing the danger he fails to exercise that caution which a reasonable man would exercise under the same circumstances, the lessor remains liable to him notwithstanding his knowledge of the existence of the condition.”

Ms. ** 13-14.

Judge Hanson’s dissent, joined by Judge Fridy, concludes Daniels requires affirmance of the summary judgment because in Daniels “our supreme court stated that it had explicitly recognized in Sessions v. Nonnenmann, 842 So. 2d 649 (Ala. 2002), that the law holding that a landlord has a duty to eliminate open and obvious dangers or to warn an invitee of such dangers if the invitor ‘should anticipate the harm’ is not the law in Alabama. Daniels, 314 So. 3d at 1224-25.” Ms. *34.

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