Regional Prime Television, et al. v. Jennifer South, etc., [Ms. SC-2023-0132, Mar. 8, 2024] ___ So. 3d ___ (Ala. 2024). The Court (Wise, J.; Parker, C.J., and Stewart, J., concur; Sellers, J., concurs in the result; and Cook, J., concurs in the result, with opinion) reverses a judgment on a jury verdict in favor of Jennifer South, individually and as administratrix of the Estate of her deceased husband Jules Pierre Gillette (“Gillette”) against Regional Prime Television (“Regional Prime”) and Tommy Dwayne Hubbard.
South and her late husband Gillette owned and resided in an old school building after the school had closed. Several years after they sold the property, the defendants aired a documentary concerning paranormal activity in the building. In the broadcast, individuals identified as psychics made various statements, including that during the three years they lived in the building, Pierre beat South and sometimes kept her locked in a closet. Ms. **14-15.
The Court reverses the judgment for Gillette’s estate on its claim under the Alabama Right of Publicity Act and renders judgment for the defendants. Section 6-5-772 of the Act provides: “(a) Except as otherwise provided in this article, any person or entity who uses or causes the use of the indicia of identity of a person, on or in products, goods, merchandise, or services entered into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fund-raising or solicitation of donations, or for false endorsement, without consent shall be liable under this article to that person, or to a holder of that person’s rights.” The estate’s claim under the Act failed as a matter of law because “the evidence was undisputed that Gillette’s name and photograph were not used in any of the advertisements that aired during the episode.” Ms. *38.
The Court concludes that South presented substantial evidence to support the verdict in her favor on both of her invasion of privacy (wrongful intrusion and false light) claims. This evidence included allegations on the broadcast that “South’s husband had had a drinking problem, had been paranoid, had sexually abused little boys in the school building in which their family had lived, had been physically abusive to South, and had locked South in a closet in their bedroom.” Ms. *47. This same evidence also supported the verdict on South’s outrage claim. Ibid.
However, the trial court erred when it denied JML as to South’s defamation claim. The Court explains that “none of the statements included in the episode imputed to South the commission of an indictable offense involving infamy or moral turpitude. … Thus, the statements did not constitute defamation per se. Additionally, South did not present any evidence that she had suffered special damages as a result of the defamatory statements. Thus, South failed to prove damages to support a claim of defamation per quod.” Ms. *73.
The Court further holds that the general verdict for South must be reversed under the good count/bad count rule “[b]ecause we cannot assume that the verdict was based only on South’s claims [invasion of privacy and outrage] that were properly submitted to the jury….” Ms. *75.