Sex Abuse Story May Have Defamed Daycare

(CN) - A West Virginia daycare owner can sue a local TV station for defamation over a news report that she says falsely implied that she sexually abused a four-year-old boy, the 4th Circuit found.

Kim's Kids Daycare owner Kim Tomblin sued the Charleston, W.Va. TV station WCHS-TV8 in the Circuit Court of Cabell County for defamation and emotional distress, claiming the TV station implied that she had abused the boy, rather than making clear that the alleged abuse consisted of one four-year-old boy touching another four-year-old boy.

The boy's mother filed a complaint with The West Virginia Department of Health and Human Resources, claiming another little boy had stuck his finger in her son's rectum and touched his genitals.

The department investigated the mother's complaint and could not corroborate a charge of child neglect, although the renewal of Tomblin's license was denied due to past citations for inadequate supervision of the children and smoking by staff members, the ruling states.

Tomblin appealed, and was allowed to continue operations pending appeal proceedings. Between two dozen and three dozen children between the ages of three and five regularly attended the daycare.

The mother called the TV station three weeks after the department issued its decision, telling reporters that her son "was sexually abused while at Kim's Kids Daycare." She also gave the station a full copy of the Department of Health's investigative report concluding that "child neglect has not occurred."

In her two-minute report, WCHS reporter Elizabeth Noreika said the daycare "abused [the mother's] trust and her child."

A station anchor introduced the report by saying that "some serious allegations of abuse and neglect have the state keeping a closer eye on a Barboursville daycare."

The story was later re-broadcast on an affiliated Fox News station.

After that, Tomblin claimed she became depressed, withdrew from her church congregation, lost weight, couldn't sleep and contemplated suicide.

Tomblin also said parents pulled eight children out of her daycare because of news clip.

Tomblin sued, claiming the clip insinuated that she or one of her employees had abused the boy and placed her in a false light by showing her image during the broadcast.

The county court dismissed her claims, finding that the broadcast did not contain false implications, included her image as an attempt to provide balanced coverage and was not intended to cause Tomblin emotional distress endanger her physical safety.

A three-judge panel for the 4th Circuit disagreed, finding that the broadcast contained many statements that could have multiple interpretations and could lead viewers to believe an adult day care employee had abused the child.

Writing for the panel, Judge Paul Niemeyer found potentially defamatory Noreika's statement that "this daycare ... abused [the mother's] trust and her child," since "the station acknowledges that the daycare did not abuse a child."

In her deposition, Noreika defended the statement, saying that although "the daycare did not abuse the child ... what happens in the daycare, no matter who does anything, is the responsibility of the daycare."

But Niemeyer found that Noreika's rationalization does not "transform a misleading statement into a true statement."

"A reasonable jury could find that this statement was defamatory, inasmuch as there is material difference between a daycare worker actually abusing a child in his or her care, and a daycare worker negligently supervising a child such that he or she is ultimately responsible for one child's assault of another child," Niemeyer wrote.

The judge also questioned the reporter's repeated characterization of the incident as "sexual abuse," a term that did not appear in the Department of Health's report.

"The term 'sexual abuse' is especially alarming and could reasonably lead a rational jury to conclude that the term used in that context indicated that an adult at the daycare sexually abused a child," the judge wrote.

Finally, Niemeyer pointed out that the report repeatedly claimed the daycare was accused of both abuse and neglect, "creating a genuine issue of material fact as to whether the broadcast was suggesting that the daycare did more than negligently supervise children; it also abused children."

Taken as a whole, a jury could find that the news clip "produced false 'implication, innuendo or insinuation' about the daycare," Niemeyer wrote.

And a jury could find evidence of malice on the part of the station, depending on whether the station intentionally omitted facts in order to sensationalize the story, the judge wrote. Niemeyer noted that the station left out "the most important exculpatory detail, that the incident involved one four-year-old boy inappropriately touching another four-year-old boy."

"Tomblin argues effectively that because the reporter knew the allegations of abuse concerned a child on child contact and yet aired a report that implied that an adult abused a child, a reasonable jury could find malice," Niemeyer wrote.

The judge vacated the lower court's ruling and remanded for further proceedings.

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