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JB & Associates, Inc. v. Nebraska Cancer Coalition

Supreme Court of Nebraska

August 9, 2019

JB & Associates, Inc., a Nebraska corporation, et al., appellants,
v.
Nebraska Cancer Coalition et al., appellees.

         1. 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 of law.

         2. _:__. 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 evidence.

         3. 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 below.

         4. 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.

         5. 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."

         6. 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.

         [303 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.

         8. 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 audience.

         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 immaterial.

         10. 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.

         11. 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 impaired.

         12. 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 statute.

         13. __ .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.

         15. __ . 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.

          Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge. Affirmed.

          Gene Summerlin, Brent A. Meyer, and Quinn R. Eaton, of Husch Blackwell, L.L.P, for appellants.

         [303 Neb. 857] John C. Aisenbrey and Robin K. Carlson, of Stinson, LLP, and Patrick R. Turner, of Dvorak Law Group, L.L.C., for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FUNKE, J.

         Appellants, 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).[1] 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.

         BACKGROUND

         Appellants 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.

         Appellees 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 TANNING" page:

Statement 1: "Tanning Causes More Cancers than Cigarettes[.]"
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 teenagers."
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, and asbestos."
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 ...

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