Mars, Incorporated v. Lino Gonzalez--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-99-166-CV

MARS, INCORPORATED,

Appellant

v.

LINO GONZALEZ,

Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 97-1445-4

DISSENTING OPINION

The majority deals with Gonzalez theory of publication by ignoring it. In his reply brief, Gonzalez asserts that Section 577 of the Second Restatement of Torts applies to the issue. Restatement (Second) of Torts 577 (1977). His theory is: the jury found that Mars acted intentionally and unreasonably (words of the Restatement) when it chose to change the passwords and delete the message from individual workstations rather than shutting down the email server. //

Section 577 recognizes liability for continued publication due to a failure to remove defamatory matter one knows to be exhibited on chattels (which would include a computer system) under his control. Id. 577(2). One in that position is required to exercise reasonable care to abate the defamation, and he need not take steps that are unreasonable if the burden of the measures outweighs the harm to the plaintiff. Id. 577 cmt. p. Gonzalez produced evidence of the choices available to Mars through the testimony of John Sager, a senior engineer for Mars. Sager, the person responsible for all the network and the systems servers at our site, testified that the email came to his attention early in the day, when he was told about it and asked if anything could be done to stop it. He said he outlined the three options and that he, Rusty Hansgen, and Bill Sharp made the decision to take the last option. He said it took two people all day, eight hours, to accomplish the task. Although he maintained that he had been told by a consultant two days before trial that shutting down the server would result in a longer delay, he acknowledged that at his earlier deposition he had also said shutting down the server was a viable option. He said they chose option three because it was a major disruption to our business to shut down the server, which would result in a lack of email at the Mars plant until the server was running again. // This testimony is some evidence from which the jury could find that Mars should have chosen the second option and stopped the offending email from spreading further.

Nothing in the charge required that the jury not consider this theory. It asked: Did Mars libel Lino Gonzalez? The charge is broad-form. Tex. R. Civ. P. 277. It encompasses any viable theory of libel supported by the evidence. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663-64 (Tex. 1999) ( Indeed, submission of a single question relating to multiple theories may be necessary to avoid the risk that the jury will become confused and answer questions inconsistently. ); but see Crown Life Insurance Company v. Casteel, 22 S.W.3d 378 (Tex. 2000) (when a trial court submits a single broad-form liability question incorporating multiple theories of liability, some of which were defective, the error is harmful and a new trial is required).

At least one third person received the email because Mars did not shut down the server. The majority acknowledges that Scott Smith was on vacation when the email arrived. When he returned, he was told to delete the email. // However, he printed it before he deleted it, then showed it to his wife, who was not a Mars employee. Evidence of that one publication after Mars elected not to shut down the email server defeats Mars no-evidence issue.

I would reject Mars no-evidence contention about publication. Because the majority decides otherwise, I dissent.

BILL VANCE

Justice

Opinion delivered and filed January 30, 2002

Publish