JB & Associates, Inc., a Nebraska corporation, et al., appellants,
Nebraska Cancer Coalition et al., appellees.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
_:__. In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, for which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
Libel and Slander: Negligence. A defamation
claim has four elements: (1) a false and defamatory statement
concerning the claimant, (2) an unprivileged publication to a
third party, (3) fault amounting to at least negligence on
the part of the publisher, and (4) either actionability of
the statement irrespective of special harm or the existence
of special harm caused by the publication.
Libel and Slander. Under a defamation claim,
the element which requires that the statement must be false
and defamatory concerning the claimant is more precisely
stated as "the statement must be false and defamatory of
and concerning the claimant."
Libel and Slander: Words and Phrases. A
communication is defamatory if it tends so to harm the
reputation of another as to lower him or her in the
estimation of the community or to deter third persons from
associating or dealing with him or her.
Neb. 856] 7. Libel and Slander:
Proof. In order to meet the "of and
concerning" requirement for a group libel claim, a
claimant must show either (1) the group or class is so small
that the matter can reasonably be understood to refer to the
claimant or (2) the circumstances of publication reasonably
give rise to the conclusion that there is particular
reference to the member.
Libel and Slander. To determine whether a
statement is defamatory and concerning a claimant, a court
must consider the circumstances under which the publication
of the communication was made, the character of the audience
and its relationship to the subject of the publication, and
the effect the publication may reasonably have had upon such
9. __ .
In a defamation claim, the recipient of the offending
statement must understand it as intended to refer to the
claimant, but whether the speaker intended such reference is
Statutes: Appeal and Error. Statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
Statutes: Intent. In determining the meaning
of statutory language, its ordinary and grammatical
construction is to be followed, unless an intent appears to
the contrary or unless, by following such construction, the
intended effect of the provisions would apparently be
Statutes. It is not within the province of a
court to read a meaning into a statute that is not warranted
by the language; neither is it within the province of a court
to read anything plain, direct, or unambiguous out of a
.A court must attempt to give effect to all parts of a
statute, and if it can be avoided, no word, clause, or
sentence will be rejected as superfluous or meaningless. 14.
Libel and Slander. A product disparagement
claim under Neb. Rev. Stat. § 87-302 (Cum. Supp. 2018)
requires that the offending statements be "of and
concerning" a claimant's goods or services.
. Determining whether a statement is "of and
concerning" a claimant's goods or services in a
product disparagement claim requires the consideration of the
circumstances surrounding the statement but also requires
more than general, industry-wide allegations.
from the District Court for Douglas County: W. Russell Bowie
III, Judge. Affirmed.
Summerlin, Brent A. Meyer, and Quinn R. Eaton, of Husch
Blackwell, L.L.P, for appellants.
Neb. 857] John C. Aisenbrey and Robin K. Carlson, of Stinson,
LLP, and Patrick R. Turner, of Dvorak Law Group, L.L.C., for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
JB & Associates, Inc., and several other tanning salons,
filed an appeal of the district court's order dismissing
their claims of defamation and product disparagement under
Nebraska's Uniform Deceptive Trade Practices Act
(UDTPA). Appellants challenge the court's
determination that the UDTPA requires reference to a specific
product of a claimant. Appellants further contend the court
failed to consider the facts in the light most favorable to
their claims and erred in finding there was no genuine
dispute of material fact in determining appellees'
statements were not disparaging to appellants'
businesses, products, or services and were not defamatorily
"of and concerning" appellants. For the reasons set
forth herein, we affirm.
are tanning salons that, from 2015 to 2017, allegedly
accounted for between 68 to 71 percent of the known tanning
salons in the Omaha and Lincoln, Nebraska, markets and
approximately 14 to 18 percent of all the entities in
Nebraska that provide indoor tanning services.
engage in activities related to cancer education and
prevention. In 2014, appellee Nebraska Cancer Coalition
(NCC), led by Drs. Alan G. Thorson and David J. Watts,
started a campaign named "The Bed is Dead" to
educate the public on the dangers of indoor tanning. NCC
maintains for this campaign the website
"www.thebedisdead.org." When [303 Neb. 858] the
website went live in March 2014, the following statements
were included on its "LEARN THE FACTS ABOUT
Statement 1: "Tanning Causes More Cancers than
Statement 2: "Young women are hit hardest. New
cases of malignant melanoma have soared 8-FOLD in young women
since 1970, TWICE AS FAST as in young men!"
Statement 3: "Tanning before age 35 raises your
risk of melanoma by nearly 60%."
Statement 4: "Tanning beds have been proven to
cause skin cancer."
Statement 5: "Your skin remembers EACH tanning
session. Just one indoor tanning session increases your risk
of melanoma by 20% and each additional use during the same
year boosts risk by another 2%."
Statement 6: "Malignant melanoma is now the
most common cancer in young adults aged 25-29 years, second
most common in young women aged 30-34 years and in
Statement 7: "Ultraviolet radiation and UV
tanning devices are rated by the Food and Drug Administration
(FDA) and the World Health Organization (WHO), among other
agencies, as carcinogenic to humans (type-1 carcinogens), in
the highest risk category alongside arsenic, radon, tobacco,
Statement 8: "One person dies of melanoma every
hour in the U.S."
Statement 9: "Malignant melanoma is increasing
more rapidly than any other cancer."
Statement 10: "Tanning is addictive. One study
produced withdrawal symptoms in frequent tanners with
narcotic antagonists such as are used in emergency rooms.
Studies find higher rates of alcohol, tobacco, and drug use
in females that tan."
[303 Neb. 859] Statement 11: "Of melanoma cases
among patients under 30 who had tanned indoors, 76 percent
were attributable to tanning bed use in a recent
well-designed and conducted study."
Statement 12: "Vitamin D is important, but
exposure to UV more than about 10 minutes actually starts to
break down the pre-vitamin D ...