Omitting exculpatory detail could make report false

A West Virginia daycare owner’s claims against a local television station that reported “serious allegations of abuse and neglect” at the facility, but omitted the fact that the single incident involved child-on-child contact, should have been decided by a jury, a federal appeals court recently held.

The U.S. Court of Appeals in Richmond (4th Cir.) reinstated Kim Tomblin’s defamation and emotional distress lawsuit against television station WCHS in Charleston. By leaving out details about the nature of the charge, the broadcast’s statement that the daycare was alleged to have abused a child may have been false, the court ruled in Tomblin v. WCHS-TV8.

The suit stems from a July 2008 broadcast featuring the mother of a four-year-old boy. The mother submitted a complaint to the West Virginia Department of Health and Human Services claiming that, while her son attended Kim’s Kids Daycare, another four-year-old boy stuck his finger in the son’s rectum and grabbed his genitalia.

Health and Human Services officials investigated the charge but were unable to corroborate it; the department’s report of the incident stated that “child neglect had not occurred.” However, the report also indicated the daycare was cited in 2006 and 2008 for inadequate supervision of the children and “the possibility that an incident of child neglect could occur is likely.” Officials provided a copy of the report to the boy’s mother, who contacted the television station.

The trial court dismissed Tomblin’s suit because it determined that all of the statements were true and, thus, precluded the defamation claim. It also found that the broadcast was not extreme and outrageous such that it could give rise to an emotional distress claim.

In reversing the trial court, the appellate court rejected the station’s argument that the broadcast statement “this daycare . . . abused [the mother’s] trust and her child” was true because the daycare was legally responsible for the abuse, even though, as station officials acknowledged, the daycare's employees did not abuse the child.

“This rationalization . . . does not, however, transform a misleading statement into a true statement,” the court said. “A reasonable jury could find that this statement was defamatory, inasmuch as there is material difference between a daycare worker actually abusing a child in his or her care, and a daycare worker negligently supervising a child such that he or she is ultimately responsible for one child’s assault of another child.”

Moreover, even though she had a copy of the Health and Human Services report, which indicated that a boy was accused of inappropriately touching another boy, the WCHS reporter omitted this “most important exculpatory detail” from the broadcast, the court noted. The reporter’s decision to “air a news report suggesting that an adult abused a child, despite her knowledge that there was no allegation of adult on child abuse” could lead a jury to conclude that the story was aired with knowledge of or reckless disregard for its falsity, a key element in a defamation case involving a matter of public concern.

Regarding the emotional distress claim, the court said the publication of a defamatory statement can be outrageous. Further, “leveling false accusations of sexual abuse at a daycare is, perhaps, the most outrageous accusation that one could make against that type of institution, which is charged with children’s well-being," the court noted.