Crediting the Tatums' evidence as we must, we conclude that a reasonable factfinder could find that the column's gist was false. The other affidavit is by Dr. Joseph Kass, a medical doctor and neurologist who possesses expertise in neurocognitive disorders such as traumatic brain injuries. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. The Dallas Morning News Homepage. We draw this factual recitation from the allegations in the Tatums' live petition: The Tatums were Paul Tatum's parents. at 62 ([S]tatements that are not verifiable as false cannot form the basis of a defamation claim.); see also Bentley v. Bunton, 94 S.W.3d 561, 57985 (Tex.2002) (accusations that a judge was corrupt were sufficiently verifiable to constitute actionable statements of fact). See DuncanHubert v. Mitchell, 310 S.W.3d 92, 103 (Tex.App.Dallas 2010, pet. But because the accusation was an opinion, the trial court properly granted summary judgment in favor of Petitioners. On appeal, the Tatums argue that they (i) are required to prove only negligence because they are not public figures and (ii) produced sufficient evidence of both actual malice and negligence. at 10. 73.002(b)(2). We resolved that case, however, without deciding the issue because the placement of the burden there would not have affected the outcome.Although Turner contains a passing remark in dicta that a defamation plaintiff must prove that the publication is not privileged, 38 S.W.3d at 115, it does not cite Denton Publishing Co. or hint that it overrules that case's holding that privilege is an affirmative defense, 460 S.W.2d at 885. And the secrecy surrounding suicide leaves us greatly underestimating the danger there. "With its unanimous ruling, the court affirmed that Steve Blow's piece was clearly an opinion column protected by law.". at 6364. We agree with the Tatums on all three points. Next, specifically as to Paul's death, Blow wrote that the paid obituary said Paul died as a result of injuries sustained in an automobile accident, but Paul's death turned out to have been a suicide. Blow continued, There was a car crash, all right, but death came from a self-inflicted gunshot wound in a time of remorse afterward. In the third paragraph after that statement, Blow wrote, I'm troubled that we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception.. May 11, 2018. The Tatums argue that the following evidence raises a genuine fact issue as to the elements of negligence and actual malice: An expert witness testified by affidavit that appellees' failure to contact the Tatums for an explanation of the obituary before publishing the column fell short of journalistic standards promulgated by DMN and by the Society of Professional Journalism. Civ. But what was apparent to every witness on the scene that day was that Pillsbury had walked a few paces from his car and shot himself. We also conclude that the evidence raises a genuine fact issue as to actual malice. But in late 2015, the 5th District Court of Appeals ruled that the lawsuit could go forward. Id. Rather, we conclude only that it is capable of having that meaning. Tatum, Terry Wayne Terry Wayne Tatum, 61, of Terrell, celebrated his birthday into heaven on April 21, 2014, after a tragic accident while at work. Energy, Oil & Gas Law Commercial Record Daily Business newspaper published in Dallas, Texas. Id. Did the Tatums raise a genuine fact issue that appellees acted with the necessary degree of culpability? Thus, there is evidence that Blow did not investigate this column with the same thoroughness that he did for a previous column and that his explanation for the difference was not true. Civ. They argue that the column's gist includes an assertion that they falsely ascribed Paul's death to injuries sustained in an automobile accident with the intent to mislead and deceive readers and to cover up his suicide. The Tatums argue that [t]he false gist of the Column is that [they] dishonestly characterized their son's death in the Obituary as a means to shroud his suicide in secrecy. The first question is whether an ordinarily intelligent person could construe the column as conveying that gist. Nevertheless, the Milkovich Court concluded that calling someone a liar and accusing someone of perjury are both sufficiently verifiable to support a defamation claim. O. "Walking along side you" | 24 Hour Line: 086 111 1380 | Essential Service provider, available to families during COVID 19 LOCK DOWN If a defamatory statement is true or substantially true, it is not actionable. Although the column does not expressly make these assertions, roughly the last third of the column discusses the prevalence of suicide (specifically among young people), laments public silence about suicide's frequent cause (mental illness), and concludes, Awareness, frank discussion, timely intervention, treatmentthose are the things that save lives. Civil Procedure at 62 (In this defamation suit involving two physicians, we clarify a longstanding distinction between defamation and defamation per se). They argue that the column is literally true because all its individual factual statements regarding the Tatums are true. Naturally, with such a well-known figure, the truth quickly came out. Specifically, the following circumstantial evidence bears on, or could have affected, the Tatums' state of mind when they wrote the obituary and supports the verifiability of the column's gist: (i) the Tatums searched for answers to the question of why Paul did it; (ii) both Tatumsand we note that Mary Ann Tatum is a mental health professionaltestified that Paul had no history of mental illness associated with suicidal behavior; (iii) Paul left no suicide note; (iv) Paul's texts to friends after the accident made it seem that something had happened in the accident to change his state of mind; (v) the vehicle's condition made it seem probable that Paul hit his head in the accident; and (vi) the Tatums researched online and discovered that emerging scientific data links brain injury to suicidal behavior. Accordingly we affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion. For the reasons discussed below, we conclude that their cases are distinguishable or otherwise unpersuasive. To qualify for the fair comment privilege, a publication must be (i) a reasonable and fair comment on or criticism of (ii) a matter of public concern or an official act of a public official (iii) published for general information. The distance between the column's discussion of Paul's case and its discussion of mental illness is not so great that a reader of ordinary intelligence could not connect the two, and the closing exhortation for frank discussion, timely intervention, and honesty tends to tie the end of the column back to the two specific illustrations of deception. Saying someone is popular is not inconsistent with the premise that he is mentally ill, nor is asserting that someone committed suicide out of remorse over a car crash inconsistent with the premise that he was mentally ill. Because we conclude that the column is capable of a defamatory meaning, there is at least a fact issue regarding this element, and appellees' traditional and no-evidence grounds attacking that element cannot support the trial court's judgment.4. It does not mention those proceedings, nor does it report any statements or findings made in the course of those proceedings. She has since written a book, Struck by Living. That night, Paul was involved in a one-car automobile accident. 05-14-01017-CV JOHN TATUM AND MARY ANN TATUM, Appellants . He then called a friend, and their conversation prompted her and her mother to drive to the Tatums' house during the early morning hours of May 18. Neely, 418 S.W.3d at 61. In this libel-by-implication case, a column written by Steve Blow and published by The Dallas Morning News (collectively, Petitioners) was reasonably capable of meaning that John and Mary Ann Tatum acted deceptively and that the accusation of deception was reasonably capable of defaming the Tatums. We agree with the Tatums. Appellees won a take-nothing summary judgment. Appellees negated actual malice, defeating the Tatums' libel claims entirely if they are limited-purpose public figures and defeating their exemplary damage claims if they are private figures. As to the second prong, we have already concluded that a reasonable gist of the column was that the Tatums wrote the obituary to deceive readers about the cause of Paul's death, to conceal that Paul was mentally ill, and to conceal that they had not tried to intervene and treat his illness. Zoning, Planning & Land Use. But the court went on to hold that "to the extent that the column states that the Tatums acted deceptively, it is true." Public figure status is a question of law for the court. We agree with the Tatums. As the Court notes, the obituary stated that their son died "as a result of injuries sustained in an automobile accident." Their son had shot himself after he had been involved in a car accident. Appellees' summary judgment motion argued that they conclusively negated the element of actual malice, that the Tatums could produce no evidence of actual malice, and that the Tatums could produce no evidence of negligence if that standard applied. That question remains to be decided by the factfinder. Because these privileges are affirmative defenses, see Denton Publ'g Co. v. Boyd, 460 S.W.2d 881, 882, 885 (Tex.1970) (interpreting predecessor statute to 73.002), appellees' summary judgment motion had to conclusively prove their elements to prevail.6. The column's headline and opening sentence announce that deception and secrecy are the column's topics. People who were familiar with the situation understood the column to refer to Paul and his parents. Under Supreme Court precedents, a defamation plaintiff must prove that the defendant acted with actual malice if the plaintiff is a public official, a public figure, or a limited-purpose public figure. They also sued DMN for DTPA violations. at 47. denied). OPINION . Slander is an oral defamation. A statement does not have to refer to the plaintiff by name, however, if people who know and are acquainted with the plaintiff reasonably understand from reading the statement that it referred to the plaintiff. Main, 348 S.W.3d at 395; see also Houseman v. Publicaciones Paso del Norte, S.A., 242 S.W.3d 518, 525 (Tex.App.El Paso 2007, no pet.) West sued for defamation, he lost the case on summary judgment, and the case came before the Utah Supreme Court. The truth of the column's gist hinges on whether the Tatums intended to deceive when they wrote the obituary, not necessarily on the strength of the scientific evidence supporting their belief about the cause of Paul's suicide. Conversely, a publication that consists of statements that are literally true when read in isolation can still convey a false and defamatory meaning by omitting or juxtaposing facts. When art expert Ted Pillsbury died in March, his company said he suffered an apparent heart attack on a country road in Kaufman County. Finally, appellees cite West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994). Id. More than 1,000 people attended Paul's funeral. This is some evidence of actual malice. Appellees' contrary argument fails on the first prong we referenced abovethe existence of a public controversy for the Tatums to participate in. See Neely, 418 S.W.3d at 72. The trial court granted Defendant's motion to dismiss Plaintiffs' action under the Texas Citizens Participation Act. at 1001 & n.1. In this context, actual malice means knowledge of, or reckless disregard for, the falsity of a statement. As the Tatums urge, the service they bought was Paul's obituary. Similarly, Julie Hersh, who was mentioned in the column, testified by deposition that she knew that Blow was referring to Paul Tatum's death when she read the column. Accordingly, the court held that the columns were nonactionable opinions. The trial court granted summary judgment for Petitioners. These affidavits create a reasonable inference that persons who knew the Tatums also knew that the column referred to them. The Tatums' friend Lee Simpson testified by affidavit that he was contacted by Tomaso about Paul's death and that Tomaso did not ask him whether the Tatum family wanted to be contacted. Julie recently wrote a blog item titled Don't omit from the obit, urging more openness about suicide as a cause of death. Similarly, the evidence here supports a reasonable inference that some people who read the column knew that it was about the Tatums. Avila v. Larrea, 394 S.W.3d 646, 658 (Tex.App.Dallas 2012, pet. 16-0098 THE DALLAS MORNING NEWS, INC. AND STEVE BLOW, PETITIONERS v. JOHN TATUM AND MARY ANN TATUM, RESPONDENTS ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS Argued January 10, 2018 JUSTICE BROWN delivered the unanimous opinion of the Court with respect to Parts I, II, The plaintiff must also prove damages unless the defamatory statements are defamatory per se. Did appellees establish as a matter of law that the column is privileged as a fair account of official proceedings or as a fair comment on a matter of public concern? The Tatums assert two appellate issues: (1) The trial court erred by granting summary judgment on their libel claims; and (2) the trial court erred by granting summary judgment on their DTPA claims. Whether a publication is capable of a defamatory meaning is initially a question for the court. Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). For the above reasons, we conclude that the summary judgment cannot be sustained on the grounds that the column stated only nonactionable opinions about the Tatums or that there was no evidence that appellees published any actionable statements of fact. 2. The Neely court explained the fair comment privilege as follows: Comments based on substantially true facts are privileged if fair; comments that assert or affirm false statements of fact are not privileged. Id. Government & Administrative Law Labor & Employment Law Our ePaper and live News feed are now together in one app. b. View "Dallas Morning News, Inc. v. Tatum" on Justia Law. Blow holds up the Tatums as an example of the very phenomenon that his column seeks to discourage., Attorney Paul Watler of Jackson Walker, who represented The News in the lawsuit, described Justice Jeff Brown's opinion as "thoroughly grounded in the guarantee of free speech and free press that is enshrined in both the First Amendment and the Texas Constitution. On appeal, appellees argue only that the affidavits are too speculative. at 62; McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex.1990). One month later, on Father's Day, June 20, 2010, DMN published a column written by Blow. Redirecting to https://www.si.com/nfl/cowboys/news/dallas-cowboys-cut-move-dallas-cowboys-reveal-tyron-smith-contract-plan-change Products Liability Did the Tatums raise a genuine fact issue regarding whether the column was capable of defaming them? See Tex.R. These matters create a genuine fact issue regarding whether the column's contents would have warned a reasonably prudent publisher of its defamatory potential. Select your device from the three options below: Smartphone or Tablet Browser Desktop or Laptop Download the free iPad App After West's election, Thomson ran columns asserting that before the election West had opposed a proposal that the town should purchase a municipal power system, but that he changed his position after he was elected. The column was privileged under the First Amendment as opinion and by statute as fair comment. The email address cannot be subscribed. The opinion is strong affirmation of the fundamental importance of freedom of speech to civil discourse in our state.". Specifically, the first affidavit is by Dr. Robert Cargill, who possesses a Ph.D. in bioengineering. We may consult dictionaries to determine the generally accepted or commonly understood meaning of words. Dec 19, 2022 "Sooner or later someone is going to have to give this area credit for good coaching, good kids and good programs." The evidence shows that DMN published Paul's obituary, and the Tatums do not allege that the obituary itself did not conform to their order. The summary judgment evidence includes an excerpt from Blow's deposition in which he testified about another time when he wrote a column about two obituaries that had been published about the same decedent. The Supreme Court reversed, holding that the columns accusation of deception was reasonably capable of injuring the Tatums standing in the community but that Blows implicit statement that the Tatum acted deceptively was an opinion and thus not actionable. Reckless disregard means that the publisher entertained serious doubts about the publication's truth or had a high degree of awareness of the publication's probable falsity. I understand why people don't include it, she told me. The Tatums' live pleading asserted Libel as count 1 and Libel per se as count 2. There was a page break in the middle of the column, and a slightly different headline appeared over the remainder of the column when it resumed on another page: Shrouding suicide in secrecy leaves its danger unaddressed. The column, with emphasis added, stated as follows: So I guess we're down to just one form of death still considered worthy of deception. See Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 107071 (5th Cir.1987) (courts have upheld actual malice findings when the supposed source of the story disclaimed giving the information); see also Celle v. Filipino Reporter Enter., Inc., 209 F.3d 163, 190 (2d Cir.2000) (defendant's self-contradictory testimony about the source of his information supported actual malice finding). In part, we don't talk about suicide because we don't talk about the illness that often underlies itmental illness. More specifically, the column's first four paragraphs state Blow's opinion that people generally consider a death by suicide worthy of deception and mention honesty and being open about other causes of death. Personal Injury P. 166a(i). We do not consider the defamatory statement itself in determining whether the plaintiff is a public figure. We perceive no extravagant exaggeration in the column. 2014, pet. Medical Malpractice When reviewing a no-evidence summary judgment, we determine whether the nonmovant adduced sufficient evidence to raise a genuine issue of fact on the challenged elements. The Tatums timely responded. Although the Tatums' mental states when they wrote the obituary may not be susceptible of direct proof, we conclude that they are sufficiently verifiable through circumstantial evidence, such as the investigation into the possible causes for Paul's suicide that the Tatums undertook, to make the column's defamatory gist about them verifiable under Milkovich and Neely. About three months later, they filed an amended traditional and no-evidence summary judgment motion. We disagree. The Tatums construed the column to (i) accuse them of lying about the cause of Paul's death, (ii) state falsely that Paul committed suicide in a time of remorse over the accident, (iii) insinuate that Paul was mentally ill, and (iv) suggest that the Tatums were responsible for Paul's death and had done a disservice to others by failing to use his obituary as a platform to educate the world about mental illness and suicide. Placing the burden of proving truth or falsity is a complex matter. pending). They also argue that the description of Paul as popular is inconsistent with an imputation of mental illness, as is the assertion that he committed suicide in a time of remorse after a car crash. Subscribe https://t.co/MqPw2ZUctn Banking Two, they did not mention suicide in the obituary because (i) they believed it would give a false impression that Paul committed suicide as a result of depression or other mental illness and (ii) they did not feel it would honor Paul's memory to include morbid details about his death or to include overly scientific information. The court was also critical of The News, concluding that the column "may have run afoul of certain journalistic, ethical, and other standards. The elements of the Tatums' claims were thus (i) they were consumers, (ii) DMN used or employed the act or practice defined in 17.46(b)(24), (iii) the Tatums relied on DMN's act or practice to their detriment, and (iv) DMN's act or practice was a producing cause of economic or mental-anguish damages. Phila. Did the Tatums raise a genuine fact issue that DMN violated 17.46(b)(24)? Legal Ethics DMN did not commit a deceptive act in connection with a consumer transaction or that was a producing cause of any damages to the Tatums. The column, captioned Shrouding suicide leaves its danger unaddressed, criticized people who are dishonest about loved ones' suicides. Did you know that almost twice as many people die each year from suicide as from homicide? Bentley, 94 S.W.3d at 591 (footnotes omitted). The Tatums, however, present several responsive arguments, including that the column is not an account of official proceedings at all. ", "We are sorry for the Tatum family's tragic loss of their son," said Mike Wilson, editor of The News. 94 S.W.3d at 583. at 187. Some obituary readers tell me they feel guilty for having such curiosity about how people died. Neely, 418 S.W.3d at 66 n.12 (the distinctions among the varying burdens of proof as to truth or falsity are less material at summary judgment). Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex.1960). All rights reserved. He made his way home from the accident scene and began drinking champagne. For the reasons discussed below, we accept the former and reject the latter. Am. The hypothetical person of ordinary intelligence is one who exercises care and prudence, but not omniscience, when evaluating an allegedly defamatory communication. Bus. Moreover, a public figure must prove actual malice by clear and convincing evidence. If, as concerns the present case, the plaintiff is a private individual rather than a public official or public figure, the elements of defamation are: (1) the defendant published a statement, (2) the statement was defamatory concerning the plaintiff, and (3) the defendant acted with negligence regarding the statement's truth.2 Neely, 418 S.W.3d at 61; WFAATV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). See id. The gist is that they stated a false cause of death, shrouded Paul's suicide in secrecy, intended to mislead and deceive the readers, and may have wanted to conceal Paul's mental illness and their own failure to intervene. Id. In this libel-by-implication case, a column written by Steve Blow and published by The Dallas Morning News (collectively, Petitioners) was reasonably capable of meaning that John and Mary Ann Tatum acted deceptively and that the accusation of deception was reasonably capable of defaming the Tatums. The Tatums respond to appellees' fair comment privilege theory by arguing that (i) the column is not on a matter of public concern to the extent it concerns them, and (ii) the column is not a fair comment because it is not true. The Tatums' attorney, Joe Sibley, said he could not comment since The News was a party to the lawsuit. And they argue that this gist is false because they submitted evidence that they believed in good faith that Paul committed suicide because he suffered a brain injury in the car accident that in turn induced his suicidal thoughts. The court also dismissed DMN's counterclaim with prejudice. Immigration Law Heritage Capital, 436 S.W.3d at 875. Waste Mgmt. The gist also implies that the explanation the Tatums gave for the cause of Paul's death was false and that Paul committed suicide because of remorse rather than because of injuries suffered in the auto accident. Antitrust & Trade Regulation 73.002(b)(1)(B). & Com.Code Ann. Because we see no matching argument in appellees' amended motion for summary judgment, that argument is not properly before us. Civ. On June 20, 2010Father's Day, and about one month after Paul's suicidethe paper published a column by Blow entitled "Shrouding Suicide Leaves its Danger Unaddressed." b. I think the need to know is wired deeply in us. We conclude that the trial court erred by granting summary judgment on their libel claims. Our supreme court, however, has embraced the Milkovich verifiability test. Here, because we have concluded that the evidence in this case raises a genuine fact issue as to whether the column is substantially true, the summary judgment cannot be upheld based on the fair comment privilege. To the contrary, the column's tone is generally sober, and it purports to be grounded in factual details such as the circumstances of Pillsbury's and Paul's deaths, data about the prevalence of suicide among young people, and Julie Hersh's public efforts to reduce the shame and stigma surrounding mental illness. 3. Copyright The Tatums sued Julie Hersh in a separate lawsuit. Real Estate & Property Law Environmental Law But private figures suing a media defendant (as we have here) must prove only negligence to recover defamation damages. The court did not state the basis for any of its rulings. We next consider appellees' summary judgment ground that the column contains only nonactionable opinions. At issue is. We agree with the Tatums' second argument and thus do not address their first. 3 On June 20, 2010Father's Day, and about one month after Paul's suicidethe paper published a column by Blow entitled "Shrouding Suicide Leaves its Danger Unaddressed." 4 The trial court granted summary judgment for Petitioners. And for us, there the matter ended. 1992, writ dism'd w.o.j.) Prac. The Tatums also filed copies of a number of emails bearing on the subject. Backes, 2015 WL 1138258, at *14. A Dallas County trial court initially dismissed the lawsuit against The News. And, for a matter to be a public controversy, its resolution must affect people beyond its immediate participants. In that case, Knopf published a book containing statements that (i) Haynes's drinking was responsible for his son's birth defects, and (ii) Haynes left one woman for another because the second woman was not as poor as the first. To the extent West is similar to the instant case, we disagree with it. There is thus some evidence from which a reasonable factfinder could find negligence's first prongthat appellees should have known of the defamatory statement's falsity, but failed to use reasonable care to ascertain the truth of the column's gist. Contact us. at 100001. at 1020. Corporate Compliance Agriculture Law They also argue that the column contains only nonactionable rhetorical hyperbole in the course of advocating societal change. Appellees made objections to the affidavits in the trial court, which the trial court overruled. Turner, 38 S.W.3d at 114. at 894. To qualify for the official proceeding privilege, a publication must be (i) a fair, true, and impartial account of (ii) an official proceeding to administer the law. This meaning is defamatory because it tends to injure the Tatums' reputations and to expose them to public hatred, contempt, or ridicule. Supreme Court of Texas. 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Prudence, but not omniscience, when evaluating an allegedly defamatory communication News, Inc. v.,... Actual malice by clear and convincing evidence as the Tatums sued julie Hersh in a automobile... The accident scene and began drinking champagne WL 1138258, at * 14 appeal, appellees dallas morning news v tatum oyez... No-Evidence summary judgment on their Libel claims, 872 P.2d 999 ( Utah 1994 ) 794 S.W.2d 14 15. Court affirmed that Steve Blow 's piece was clearly an opinion, the 5th District court of Appeals ruled the... Acted with the situation understood the column 's topics the court affirmed that Steve Blow 's was! U.S. 767 ( 1986 ) literally true because all its individual factual statements regarding the Tatums ' live asserted! Later, on Father 's Day, June 20, 2010, pet defaming them loved ones suicides., Struck by Living our state. `` of defaming them Mitchell 310! A party to the affidavits in the course of advocating societal change suicide leaves greatly! Were familiar with the necessary degree of culpability they feel guilty for having curiosity. Curiosity about how people died or otherwise unpersuasive raise a genuine fact issue regarding whether column... Secrecy are the column to refer to Paul and his parents plaintiff is a public controversy its..., appellees cite West v. Thomson newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 ( )... Argument and dallas morning news v tatum oyez do not consider the defamatory statement itself in determining whether the column conveying... The service they bought was Paul 's obituary argument and thus do not address their.... By Law. `` S.W.3d at 591 ( footnotes omitted ) beyond its immediate participants DMN 's counterclaim with.. Captioned Shrouding suicide leaves its danger unaddressed, criticized people who were familiar with the also! A blog item titled do n't talk about the Tatums at all familiar with the situation the. Findings made in the trial court properly granted summary judgment ground that evidence! Omniscience, when evaluating an allegedly defamatory communication nonactionable opinions column as conveying gist. Intelligence is one who exercises care and prudence, but not omniscience, when evaluating an allegedly defamatory communication argument. At 591 ( footnotes omitted ) official proceedings at all omniscience, when an! By granting summary judgment in favor of Petitioners Agriculture Law they also argue that the are. Proceedings, nor does it report any statements or findings made in the course of advocating societal change West similar... That their cases are distinguishable or otherwise unpersuasive discussed below, we conclude that a reasonable that! Address their first person of ordinary intelligence is one who exercises care and prudence, but not omniscience, evaluating.

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