Dale Mansfield & a. v. Ronald Arsenault & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0100, Dale Mansfield & a. v. Ronald
Arsenault & a., the court on January 8, 2021, issued the
following order:

Having considered the briefs and oral arguments of the parties, we
conclude that a formal written opinion is unnecessary in this case. Two of the
defendants, Engel Entertainment, Inc. and Discovery Communications, LLC,
appeal an order of the Superior Court (Howard, J.) denying their motion to
dismiss the plaintiffs’ false-light invasion of privacy claim. We reverse and
remand.

The following relevant facts are found either in the plaintiffs’ allegations,
which we accept as true, or in the trial court’s orders, recited in the light most
favorable to the plaintiffs. See Alward v. Johnston, 171 N.H. 574, 576 (2018).
The defendants produce and air a reality television series called “North Woods
Law,” which features the enforcement work of the New Hampshire Fish &
Game Department conservation officers. In February 2018, the defendants
aired an episode of the series that included a segment about an investigation
into an illegal marijuana grow in New Durham. The plaintiffs, Dale and Anne
Mansfield, lived near the area where the officers located the marijuana. As part
of the investigation portrayed during the episode, a conservation officer, along
with a local police officer, approached the plaintiffs outside their residence and
questioned them about the grow. The plaintiffs cooperated and denied any
knowledge of the marijuana plants that had been seized by the officers. This
short exchange between the officers and the plaintiffs was recorded and aired
as part of the episode, which also mentioned the subsequent arrest of the
plaintiffs’ neighbor in connection with the grow. Although their faces were
blurred in the episode, the plaintiffs alleged that several family members and
acquaintances had easily recognized them after viewing the episode.

In January 2019, the plaintiffs sued the defendants, among others,
alleging that the defendants invaded their privacy by portraying them in a false
light and appropriating their images and likenesses for commercial benefit.
The plaintiffs also alleged a violation of New Hampshire’s consumer protection
laws. The defendants moved to dismiss the complaint in its entirety, arguing,
in relevant part, that the plaintiffs failed to state a claim for relief and that the
defendants’ conduct was constitutionally protected.

The trial court dismissed all of the claims in the complaint, except the
false-light invasion of privacy claim. After correctly noting that we have not
recognized false-light invasion of privacy as a cause of action, see Thomas v.
Telegraph Publ’g Co., 151 N.H. 435, 440 (2004), the trial court nonetheless
applied the definition of false light contained in the Restatement (Second) of
Torts § 652E, at 394 (1977), which states, in relevant part:

One who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to
liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly
offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as
to the falsity of the publicized matter and the false light in which
the other would be placed.

The trial court determined that, because the footage did not “clearly exculpate”
the plaintiffs, the episode falsely suggested that the plaintiffs were involved in
the marijuana grow. The trial court also declined to address the defendants’
constitutional arguments, stating in a footnote that “the elements of a false
light claim are designed to protect such rights.” The defendants’ interlocutory
appeal followed.

On appeal, the defendants argue that the trial court erred by:
(1) recognizing false light as a cause of action; (2) failing to dismiss the
plaintiffs’ false-light claim on grounds that it violated the defendants’
constitutionally-protected free speech and free press rights; and
(3) misapplying the elements of fault and falsity to the plaintiffs’ false-light
claim. We need not decide whether to recognize false light as a cause of action,
because if we apply the definition of false light in the Restatement (Second) of
Torts § 652E, we conclude that the plaintiffs have failed to adequately state a
claim for relief. Because this conclusion requires that we reverse and remand,
we need not address the remaining issues raised in the defendants’ appeal.

In reviewing a trial court’s rulings on a motion to dismiss, we must
determine whether the allegations in the complaint are reasonably susceptible
of a construction that would permit recovery. Automated Transactions v. Am.
Bankers Ass’n, 172 N.H. 528, 532 (2019). We assume the plaintiffs’ pleadings
to be true and construe all reasonable inferences in the light most favorable to
the plaintiffs. Id. We need not, however, assume the truth of statements that
are merely conclusions of law. Id. We then engage in a threshold inquiry that
tests the facts in the complaint against the applicable law, and if the
allegations provide a basis for legal relief, we will uphold the denial of a motion
to dismiss. See Tosta v. Bullis, 156 N.H. 763, 766 (2008). In conducting this
inquiry, we may also consider documents attached to the plaintiffs’ pleadings,
documents the authenticity of which are not disputed by the parties, or

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documents sufficiently referenced in the complaint. Automated Transactions,
172 N.H. at 532.

To prevail on a false-light claim as set forth in Restatement (Second) of
Torts, the plaintiff must show that the defendant published material containing
some falsity about the plaintiff. See Restatement (Second) of Torts § 652E cmt.
a at 395 (“[I]t is essential . . . that the matter published concerning the plaintiff
is not true.”); see also Hamberger v. Eastman, 106 N.H. 107, 110-11 (1964)
(observing that false light “requires falsity or fiction”). Falsity can arise when
the defendant publishes false information about the plaintiff, see Talley v.
Time, Inc., 923 F.3d 878, 894 (10th Cir. 2019), or when the publication of true
information creates a false impression about the plaintiff, see Douglass v.
Hustler Magazine, Inc., 769 F.2d 1128, 1137-38 (7th Cir. 1985). In reviewing
the trial court’s decision, we may determine, as a matter of law, whether the
published material portrayed the plaintiffs in a false light. See Fudge v.
Penthouse Intern., Ltd., 840 F.2d 1012, 1018-19 (1st Cir. 1988); see also
Sanguedolce v. Wolfe, 164 N.H. 644, 647 (2013) (concluding as a matter of law
that false statements concerning the plaintiff “cannot be reasonably construed
as defamatory”).

The plaintiffs do not allege that the defendants made any false
statements of fact about them in the episode. Nor do the plaintiffs allege that
the defendants altered the footage to make them appear complicit or otherwise
responsible for the marijuana grow. Instead, the plaintiffs claim that the
episode, when viewed as a whole, created the false impression that they were
involved in illegal drug activity. This implication, the plaintiffs argue, was
“highly offensive” to them.

Based upon the allegations in the complaint, as well as the version of the
episode contained in the record, we conclude that the episode did not falsely
imply that the plaintiffs were involved in illegal drug activity. During the
episode, the officers described setting up video surveillance of the marijuana
grow from which they obtained photographic images of the suspect they
believed was responsible for the illegal operation. Prior to meeting the
plaintiffs, the conservation officer stated, on camera, that, based upon the
photographic images, he would “be able to identify [the suspect] right away.”
Thereafter, during the segment of the episode that portrayed the officers’ initial
exchange with the plaintiffs, the conservation officer addressed the camera
immediately after meeting the plaintiffs and stated that his “first impression”
was that “this isn’t our guy.” The episode then showed the plaintiffs denying
any knowledge of the marijuana and answering questions about their neighbor,
who the officers believed was responsible for the grow. The officers later stated
that the surveillance photographs clearly matched photographs of the neighbor
located on social media, providing sufficient evidence for the officers to seek an
arrest warrant. Before concluding, the episode revealed that the neighbor was
arrested in connection with the grow. Even if, as the trial court concluded, the

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footage did not “clearly exculpate” the plaintiffs, the episode placed
responsibility for the illegal activity squarely on the neighbor, rather than on
the plaintiffs. Therefore, because the episode did not provide the false
implication that the plaintiffs claim, the plaintiffs have not adequately pled the
element of falsity.

Furthermore, we conclude that no reasonable person would have
perceived the episode as highly offensive. See Restatement (Second) of Torts
§ 652E cmt. c at 396 (explaining that false light applies “only when publicity
given to the plaintiff has placed him in a false light before the public of a kind
that would be highly offensive to a reasonable person”). Because the officers
pointed to the neighbor, rather than the plaintiffs, as the suspect in the
surveillance photographs, the episode did not ascribe any wrongdoing to the
plaintiffs. See Franchise Tax Bd. of State of CA v. Hyatt, 407 P.3d 717, 736
(Nev. 2017) (concluding that an out-of-state tax board’s demands for
information from third parties concerning the plaintiff’s tax audit did not
portray him as a “tax cheat,” and, in any event, were not highly offensive to a
reasonable person (quotation omitted)), rev’d on other grounds, 139 S. Ct. 1485
(2019). Moreover, no reasonable person would perceive the plaintiffs’
willingness to assist officers in an ongoing criminal investigation as highly
offensive. See Sanguedolce, 164 N.H. at 646-47 (rejecting the plaintiff’s
argument that “a false statement that a person cooperated with authorities in
bringing another person to justice may constitute defamation”). “[T]here are
some shocks, inconveniences and annoyances which members of society in the
nature of things must absorb without the right of redress.” Thomason v.
Times-Journal, Inc., 379 S.E.2d 551, 554 (Ga. App. 1989) (quotation omitted).

For the foregoing reasons, we conclude that, even if we were to recognize
a false-light invasion of privacy cause of action, as set forth in § 652E of the
Restatement (Second) of Torts, the plaintiffs have failed to adequately allege two
elements of false light as defined therein. Therefore, the trial court erred by
denying the defendants’ motion to dismiss for failure to state a claim.

Reversed and remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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