Wright v. Tegna Inc.
2024 COA 64. No. 23CA0436. Negligent Infliction of Emotional Distress—Vicarious Liability—Civil Conspiracy—Action Involving Exercise of Constitutional Rights—Anti-SLAPP Statute—Reasonable Likelihood Plaintiff Will Prevail.
June 13, 2024
Back the Blue, a pro-police organization, obtained a permit to host a “Patriot Muster” rally in Denver’s Civic Center Park on October 10, 2020. A Black Lives Matter counterdemonstration was scheduled concurrently. TEGNA Inc. and Multimedia Holdings Corp. (collectively, 9News) planned to cover the events, and anticipating a potential for violence, 9News hired a security guard through Pinkerton Consulting & Investigations, Inc. (Pinkerton) to protect its employees covering the events. The security guard, Dolloff, accompanied 9News producer Newman. Both dressed in plainclothes, and they did not carry identification as a security guard or press member, and Dolloff was armed. Wright and his friend Keltner attended the “Patriot Muster” rally and, as they were leaving, they argued with Elliott, who was wearing a Black Lives Matter shirt. The argument escalated when Keltner pulled a can of pepper spray from his pocket. Newman recorded the altercation on his phone. Keltner asked Newman to stop recording and reached for Newman’s phone. Dolloff then stepped in front of Newman. Keltner slapped Dolloff and sprayed him with pepper spray. Dolloff then shot and killed Keltner, who was standing near Wright when he was shot.
Wright brought nine claims for negligent infliction of emotional distress against various parties. As relevant here, Wright contended that 9News was directly negligent by creating an unreasonable risk of harm in its newsgathering because it negligently hired, retained, and/or supervised Dolloff; and 9News’ newsgathering involved a civil conspiracy with Elliott to instigate an altercation that Newman could film. Wright also asserted that 9News was vicariously liable for Dolloff’s actions because even though Dolloff was an independent contractor, the security services he provided were an inherently dangerous activity and thus made 9News liable under an exception to the general rule that an entity hiring an independent contractor is not liable for the independent contractor’s actions. 9News filed a special motion to dismiss under Colorado’s anti-SLAPP statute, CRS § 13-20-1101. Following a hearing, the district court determined that the anti-SLAPP statute applied and that Wright demonstrated a reasonable likelihood of success on the merits of his theory of direct negligence via hiring, retention, and/or supervision and his vicarious liability claim. The district court also determined that Wright had not established a reasonable likelihood of success on his theory of direct negligence via civil conspiracy. The court thus denied dismissal of Wright’s claims for direct negligent infliction of emotional distress and for vicarious liability, and it granted dismissal of Wright’s civil conspiracy claim.
On appeal, 9News argued that Wright’s claims must be dismissed because he failed to provide “admissible evidence” to establish a reasonable likelihood of prevailing on the claims. In ruling on a special motion to dismiss under Colorado’s anti-SLAPP statute, the court must first determine whether the defendant has shown that the conduct underlying the plaintiff’s claim arose from an act in furtherance of the defendant’s right of petition or free speech in connection with a public issue. If so, the court then must review the pleadings and affidavits to determine whether the plaintiff has established a reasonable likelihood of success on the claim. The court of appeals concluded that plaintiffs may submit affidavits or evidence to support their allegations, but they are not required to do so to establish a reasonable likelihood of prevailing on the claim. However, if a defendant refutes mere allegations in a complaint with affidavits or other evidence, such documents will generally prevail over a complaint’s allegations unless the plaintiff responds with other evidence. Here, Wright’s allegations do not establish a reasonable probability that Dolloff’s actions were within 9News’ control on the day of the events, so they cannot support a theory of negligent hiring or retention. Therefore, the district court erred in concluding that Wright established a reasonable likelihood of prevailing on his claim that 9News negligently hired, retained, and/or supervised Dolloff. However, 9News could be vicariously liable under the inherently dangerous exception if the independent contractors are deemed to have engaged in an inherently dangerous activity. Here, Wright’s allegations and proffered evidence show that Dolloff was working as requested by Pinkerton, its contractor, and 9News. Wright has shown enough to establish a reasonable likelihood of prevailing on his vicarious liability claim by making a prima facie factual showing that an inherently dangerous activity was at hand. Accordingly, the district court did not err by concluding that Wright established a reasonable likelihood of prevailing on his vicarious liability claim.
On cross-appeal, Wright argued that the district court erred in concluding that Wright did not establish a reasonable likelihood of prevailing on his claim that 9News created an unreasonable risk of harm in its newsgathering because Elliott, Newman, and Dolloff engaged in a civil conspiracy to instigate newsworthy events. However, Wright failed to show a meeting of the minds and thus did not establish a reasonable likelihood that Elliott, Newman, and Dolloff engaged in a conspiracy. Therefore, the district court did not err in dismissing Wright’s civil conspiracy claim.
The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.
The full opinion is available at https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2024/23CA0436-PD.pdf.