From Osowski vs. Harerdecided today by the Minnesota Court of Appeals, in an opinion by Justice Randall Slieter, joined by Presiding Justice Jennifer Frish and Justice John Smith:
This defamation case, brought by the respondent Karen K. Osowski, arose out of statements that the appellant Edie Harer made to law enforcement several months after the death of Harer’s father (deceased). Harer made statements suggesting that Osowski – Harer’s stepmother and the deceased’s second wife – killed the deceased.
Osowski married the deceased in July 2006. Harer did not attend the wedding. In 2013, the deceased discovered a cloud over the title of his property and requested signatures on a deed of rectification to remedy the problem. Harer and his siblings refused to execute the corrective deed, and as a result, the deceased obtained title to his home through a silent title action. This led to the deceased “cutting off all communication with his children” and signing a will disinheriting his children.
Despite their disinheritance, Osowski maintained contact with the children of the deceased. This included an email in early September 2018 informing Harer that the deceased’s health was “worsening day by day” and that she was scheduling him for cancer testing. In mid-October, Osowski informed Harer that the deceased “had been tested head to toe and all was well.”
On January 18, 2019, Osowski called 911 to report finding a deceased person in her home. A Cook County Sheriff’s Deputy responded to the call and investigated the death. Based on the deputy’s description, the medical examiner declined to perform an autopsy because the death appeared to be of natural cause, and the deputy agreed that nothing “looked suspicious”. Six days after his father’s death, Harer called the medical examiner, asked why an autopsy had not been performed, and requested that an autopsy be performed. He was told that an autopsy would be difficult and probably uninformative at this stage because the body had been embalmed.
In February 2019, Osowski’s daughter informed Harer that the deceased had updated his will in 2014. The updated will left the deceased’s estate to Osowski. About two weeks later, an attorney Osowski hired to represent her in early probate proceedings informed Harer that he was preparing a petition to probate the 2014 will. probate of the deceased’s 1994 will, which included Harer and his siblings as heirs. Osowski opposed the probate of the 1994 will and filed a counter-petition for the probate of the 2014 will.
On June 4, 2019, a week before a scheduled probate hearing and after probate court denied his request for an extension, Harer contacted the Cook County Sheriff’s Office asking them to reopen the investigation into the death. from his father. The same deputy who originally investigated the death was assigned to the case. Harer also asked the sheriff to request a delay in probate proceedings “due to an investigation into my father’s death.” The sheriff refused.
Harer obtained a transcript of the 911 call Osowski made after discovering the body of the deceased. During the call, the 911 operator asked if death was “planned” and Osowski replied that she was “considering it because of her health.”
On June 6, 2019, the deputy called Harer and conducted a taped interview. In that conversation, the deputy asked Harer to explain “why you think [Osowski] murdered your father.” Harer replied, “because…she said he had an expected death” when calling 911, but Harer believed the deceased was healthy. Harer further stated that Osowski “makes her own pills, so she has…ways she could have easily put something in something” and suggested that someone could “put antifreeze in something someone drinks…and someone…won’t even know you put it on”.
During the summer of 2019, Harer opposed Osowski’s counter-petition to probate the 2014 will and repeatedly asked for hearings to continue, citing the reopened investigation. In September 2019, Harer voluntarily denied his request to probate the 1994 will and his objection to probating the 2014 will. The district court then probated the 2014 will.
In October 2019, the MP released a supplement to his initial inquest into the deceased’s death. He concluded that there was no “foul play or [anything] suspect in the death of [decedent].”
Osowski sued Harer for defamation, based on, among other things, Harer’s statements to the police, and was awarded “compensatory damages of $20,000 for damage to reputation, $100,000 for mental distress, $20,000 $ for past embarrassment, $20,000 for past humiliation and $1,000 for stipulated health-care costs.” The appeals court upheld the verdict, notwithstanding the qualified privilege for libel in bona fide statements to law enforcement:
“A person who makes a defamatory statement will not be held liable if the statement is published in circumstances that make it a qualified secret and if the privilege is not abused.” To benefit from the privilege, a statement “must be made on a proper occasion, for a proper cause, and must be based on reasonable or probable cause”. One of the appropriate occasions covered by solicitor-client privilege is “a good faith report of suspected criminal activity to law enforcement officials”. “A qualified privilege is abused and therefore lost if the plaintiff demonstrates that the defendant acted with [common-law] true wickedness.” …
Actual malice at common law requires the plaintiff to prove “that the defendant made the statement out of ill will and unlawful motives, or without cause and wanton intent to injure the plaintiff”.
The jury was presented as evidence that Harer had been estranged from her father for several years, in part because of her refusal to perform the corrective act as he requested. Harer inquired about an autopsy a few days after her father’s death, but she proceeded with his burial and expressed no suspicion of his death until more than four months later when she contacted the sheriff’s office. When she spoke with the deputy, she was in the middle of a probate dispute with Osowski, who she says may have killed the deceased. Harer cited the reopened inquest in his objection to the probate of the deceased’s 2014 will and in multiple requests for continued hearings, suggesting that Osowski may be barred from benefiting from the deceased’s estate “pending the conclusion of the criminal investigation”.
These facts, viewed in the light most favorable to Osowski, present a legally sufficient evidentiary basis for the jury to conclude that Harer made his statements out of ill will or improper motive. Therefore, the District Court did not err in dismissing the judgment as a question of law on qualified immunity….
The court also concluded that the statements had been treated as relating to matters of purely private interest for First Amendment purposes, so the First Amendment rule that “a private plaintiff cannot recover alleged damages for defamatory statements involving a matter of public interest unless the plaintiff can establish actual malice [in the constitutional sense]” Not Applicable :
[The] statements were made in a private telephone interview, the file of which indicates that Harer intended to be deprived because she asked the sheriff if she should inform the probate court “that a criminal investigation had been opened” lest it “warn” Osowski. Furthermore, Osowski and Harer’s prior relationship and the disputed probate proceeding, which Harer attempted to block based on the investigation his own statements reopened, suggests that the statements were “intended to mask an attack …on a private matter”.
Based on the totality of the circumstances, Harer’s statements did not address a matter of public interest, but a private conflict between her and Osowski. Thus, Osowski is entitled to alleged damages to his reputation, and the jury did not err in awarding him damages to his reputation….
Congratulations to Tyson Smith and Richard T. Furlong, III (Smith Law, PLLC), who represent Osowski.