Saginaw Circuit Court. LC No. 13-021022-CZ.
For MARK ANTHONY EDDINGTON, Plaintiff-Appellant: VICTOR J. MASTROMARCO, JR., SAGINAW, MI.
For RAYMOND TORREZ, ADMIRAL PETROLEUM COMPANY, Defendants-Appellees: JOHN C. CANDELA, TROY, MI.
Before: RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ.
[311 Mich.App. 199] Per Curiam.
In this defamation per se case, plaintiff appeals by right the trial court's grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(8). Plaintiff alleged that defendant Raymond Torrez was an agent of defendant Admiral Petroleum Company and falsely reported to the police that plaintiff had stolen gasoline from a gasoline station on four occasions. Plaintiff alleges that the reports were made with knowledge that they were untrue or with reckless disregard for the truth. No factual development took place; the trial court concluded that the statements were subject to an absolute privilege and could not be the basis of a defamation claim. We affirm.
A trial court's decision on a motion for summary disposition is reviewed
de novo. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). A motion brought under MCR 2.116(C)(8) should be granted only when the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the nonmoving party. Id. at 119. The applicability of a privilege is a question of law that is also reviewed de novo. [311 Mich.App. 200] Oesterle v Wallace, 272 Mich.App. 260, 263; 725 N.W.2d 470 (2006).
A claim of defamation requires proof of the following elements:
(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication. [ Mitan v Campbell, 474 Mich. 21, 24; 706 N.W.2d 420 (2005).]
At issue in the present case is the second element, specifically whether statements made to the police regarding criminal activity are absolutely privileged and therefore immune from suit for defamation.
The privilege asserted here had its genesis in Shinglemeyer v Wright, 124 Mich. 230; 82 N.W. 887 (1900). In that case, the defendant's bicycle was stolen, and he reported to the police that he believed the plaintiff had stolen it and the plaintiff was of unsavory character; on that basis, the plaintiff was arrested but subsequently released when it was established that she had not in fact stolen the bicycle. Id. at 231-238. The plaintiff commenced suit against the defendant for, in relevant part, slander, premised on the defendant's statement to the police ...