author: Justice KOURLIS

text:
    Gloria RYDER, PH.D., Petitioner, v. Denise MITCHELL, Respondent, and Concerning Juanita Benetin, Attorney-Respondent.
    No. 00SC889.
    Supreme Court of Colorado, EN BANC.
    Sept. 16, 2002.

      Law Offices of Peter R. Bornstein, Peter R. Bornstein, Denver, Colorado, Attorneys for Petitioner.
    Juanita Benetin, P.C., Juanita Benetin, Denver, Colorado, Law Office of Marcia E. Wade, Marcia E. Wade, Boulder, Colorado, Attorneys for Respondent and Attorney-Respondent.
   Justice KOURLIS

delivered the Opinion of the Court.

In this case, we must determine whether a child therapist owes a duty of care to her patients' mother in a cireumstance in which she allegedly misdiagnosed symptoms of parental alienation and reported her findings to the father and to the children's new therapist. The court of appeals found that such a duty exists. Mitchell v. Ryder, 20 P.3d 1229, 1233 (Colo.App.2000). We disagree and now conclude that the duty the therapist owes the children themselves is primary and may, under certain cireumstances, require disclosure to the parents or other involved parties. Creating a duty to the parents could conflict with or disserve the primary duty. Furthermore, the possibility of liability to the children in the event of breach or malpractice serves as an adequate safeguard against negligent treatment by the therapist. Accordingly, in balancing the factors necessary, we reverse the court of appeals and decline to impose a duty upon Gloria Ryder in favor of Denise Mitchell.

I. Facts

The plaintiff, Denise Mitchell, was divorced from her husband, David Mitchell, in 1995. In the divorcee proceeding, the trial court awarded custody of the couple's two minor children to the plaintiff, That court denied the plaintiffs request that Mitchell receive only supervised parenting time with the children. Based upon a counselor's testimony, the court found that Mitchell was a fit. parent who was entitled to substantial contact with the children. The court provided for a period without overnight parenting time followed by phased-in overnight visitation.

According to the plaintiff, in the summer of 1996, when the children, ages five and three, began overnight visits with their father, the plaintiff began noticing disturbing behavioral and psychological changes in both children. The plaintiff became convinced that Mitchell was abusing the children during his parenting time. In June 1996, she contacted attorney Naney Simmons, a specialist in high-conflict family law matters, to represent her in pursuit of modification of Mitchell's parenting time rights and child support obligations.

Simmons suggested the prompt involvement of a competent health care professional and recommended the names of at least two potential therapists to examine and treat the five-year-old boy. The plaintiff selected psychologist Dr. Gloria Ryder, the defendants.

At the initial session, the plaintiff signed an express authorization permitting the five-year-old "to receive psychotherapy with lo-ria J. Ryder, Ph.D." On the boy's information form, the plaintiff indicated that the reason for the therapy was "D.V. [Domestic Vio-lencel-Out of control behavior." Shortly thereafter the plaintiff signed a similar authorization for the three-year-old girl The plaintiff expressed her concerns to Ryder that Mitchell was abusing the children. Based on her therapy with the children, parental interviews, and investigation of available records, including consultations with third parties, the defendant formed the opinion that Mitchell did not pose a danger to his children. Rather, the defendant determined that the five-year-old's behavior problems stemmed from the boy's feelings that his father had abandoned him. Simmons and Ryder both testified in this case that, when Ryder indicated during the course of a conference call that there was nothing to support an accusation of sexual abuse, the plaintiff became enraged and indicated that she would sue Ryder for not making the necessary findings to "terminatle] Mr. Mitchell's parenting time with the children."

Subsequently, the plaintiff sought to transfer the children to a new therapist. In response to this decision, on February 26, 1997, the defendant wrote the plaintiff a letter expressing her opinion that it was not in the boy's best interest to transfer to a new therapist. She stated that the boy was in the midst of addressing critical issues regarding the divorce, including his feelings of loss and abandonment. She asserted that the interruption in the psychotherapeutic process was detrimental to the five-year-old's psychological, emotional, cognitive, and social functioning. She further expressed concern that the child might perceive that his therapist was also abandoning him.

The letter next addressed the plaintiff's concerns that Mr. Mitchell was "a threat to the children and that parental visitation should be terminated, or at best, supervised parenting time be put in place." Ryder reconfirmed her prior assurances that Mitchell did not present a danger to the children. She expressed her opinion that there was no reason to terminate or modify the court-ordered parenting time or Mitchell's relationship with the children.

In addition, Ryder discussed the issue of parental alienation, which she asserted she had previously raised with the plaintiff, She stated that the plaintiff had continually made assertions, lacking any factual support, that Mitchell was abusing the children. She wrote that the plaintiff had been adamant that Mitchell's parenting time be terminated and had continually pressured the defendant to file child abuse charges against Mitchell. The defendant opined in the letter that since she would not file the allegations, or recommend modified parenting time, the plaintiff withdrew the child from treatment. She stated:

Repeatedly, you have been told there are no indicators of child abuse that warrant the actions you want taken. Instead, you have been repeatedly told that there are clear indicators of parental alienation. You have not wanted to address the parental alienation issue, but stay focused on your objectives of terminating Mr. Mitchell's parenting time with his children. It is very important for you to look at your own parental alienation. This will only serve to hurt your children.

The defendant concluded her letter by expressing hope that the plaintiff would reconsider the decision to discontinue therapy.

The defendant sent a copy of the letter to Mitchell and to the children's new therapist. Shortly thereafter, Mitchell filed a motion for a change of custody, seeking to move the custody of the children from the plaintiff to himself. The plaintiff responded with a motion to limit Mitchell's parenting time. The court denied both motions and custody and parenting time remained unchanged.

The plaintiff then initiated this action, in which she sued Ryder and Simmons for breach of fiduciary duty and negligence, seeking damages for having to respond to Mitchell's motion for a change of custody. In its Order dated February 10, 1998 the trial court granted Ryder's motion to dismiss the breach of fiduciary duty claim in which the plaintiff was asserting a breach of a duty owed to the children. The trial court found that only the children were Ryder's patients, and that the record evidenced no support for the plaintiff's allegation that she, too, was a patient. The trial court specifically held that any causes of action arising from an alleged breach of duty owed to the children would have to be brought by the plaintiff on behalf of the children and not on her own behalf.

However, citing Montoya v. Bebensee, 761 P.2d 285, 289 (Colo.App.1988), the court held that the defendant did owe a duty of care to the plaintiff in making any public report or recommendation based on an opinion she formed while treating the children. Therefore, the court concluded that a genuine issue of fact remained as to whether the defendant negligently formulated and published the opinions expressed in the letter.

Revisiting the issue in an Order dated February 17, 1999, a different trial judge granted the defendant's Motion for Summary Judgment in its entirety, dismissing the case with prejudice. That court found that, under Colorado law, the defendant owed no duty to the plaintiff which would allow her to bring negligence claims. The court acknowledged the holding in Montoya, however, relying on Card v. Blakeslee, 937 P.2d 846, 850 (Colo.App.1996), the court held that the letter the defendant sent to the plaintiff, and on which she copied Mitchell, did not constitute the kind of "public report or recommendation" that would trigger the duty announced in Montoya. Finally, the court noted that the letter did not accuse the plaintiff of sexually abusing the children or committing any other criminal offense.

Subsequently, after an evidentiary hearing, the trial judge also granted the defendant's Motion for Attorney's Fees. The court concluded that the plaintiff's claims in this case were substantially groundless, frivolous, and vexatious, both legally and factually.

The plaintiff appealed the entry of summary judgment on her negligence claims and both plaintiff and her attorney appealed the trial court's award of costs. The court of appeals reversed the trial court's orders and remanded the case. Mitchell v. Ryder, 20 P.3d 1229, 1234 (Colo.App.2000). Noting that the question of whether a defendant owes a plaintiff a duty is a question of law that is reviewed de novo, it concluded that the defendant owed the plaintiff a duty to use due care in formulating and publishing her opinion that the plaintiff's actions resulted in parental alienation. Id. at 1281-82. In considering the factors involved in determining whether the law should impose a duty, the court of appeals reasoned: the risk of injury to a custodial parent who is falsely accused of parental alienation is significant and foreseeable; the risk of triggering or affecting custody litigation is immediately apparent; and the burden to exercise due care placed upon the therapist in this context is no greater than the duty that almost all mental health professionals are already required to meet, and thus is not significant. Id. at 1282. It further held that publishing a public report or adverse recommendation "includes publishing material to someone who is likely to and does in fact take adverse action against the person who is the subject of the publication." Id. at 1288. It also determined that the duty in Montoya was not limited to child abuse but encompassed the publication of any opinion likely to cause injury to the person described if the opinion is negligently formulated. Id. The court of appeals also reversed the trial court's award of attorney fees and costs. Id. at 1234.

The defendant sought and we granted cer-tiorari from the court of appeals' judgment. We now consider the issue of whether the defendant in this case owed a duty of care to the plaintiff,

II. Standard of Review

A.

Summary judgment is appropriate when the pleadings and supporting documents demonstrate that no genuine issue as to any material fact exists and that the moving party is entitled to summary judgment as a matter of law. Martini v. Smith, 42 P.3d 629, 632 (Colo.2002) (citing Vail/Arrowhead, Inc. v. Dist Ct., 954 P.2d 608, 611 (Colo.1998)). An appellate court's review of a trial court's order granting or denying a motion for summary judgment is de novo. Vail/Arrowhead, Inc., 954 P.2d at 611; see also Joe Dickerson & Assocs. v. Dittmar, 34 P.3d 995, 1003 (Colo.2001) (holding that an appellate court reviews a trial court's grant of a summary judgment motion de novo because it is a question of law); Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1250 (Colo.1996) ("All summary judgments are rulings of law in the sense that they may not rest on the resolution of disputed facts. We recognize this by our de novo standard of reviewing summary judgments.")(quoting Black v. J.I. Case Co., 22 F.3d 568, 571 n. 5 (5th Cir.1994)) (internal quotation marks omitted). In the case before the court, the question of the existence or non-existence of a duty from a therapist to a non-patient is a question of law. On summary judgment, the trial court concluded that the defendant owed no duty to the plaintiff; the court of appeals reviewed that conclusion de novo and reversed it. It now falls to us to resolve the legal issue.

B.

The plaintiff contends that, because no finder of fact has ever examined the evidence in this case, "there remain many more unresolved points of contention concerning who did what to whom." However, the only salient issue of fact is determining who Ryder's patients were. When addressing findings of fact, we are bound by the trial court's determinations if they are supported by substantial evidence in the record. E.g., Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797, 802 (Colo.2001); Mallon Oil Co. v. Bowen/Edwards Assocs., 965 P.2d 105, 110 (Colo.1998). After examining that evidence, we agree with the trial court that the plaintiff failed to sustain her burden of presenting sufficient evidence to establish that the defendant was the entire family's therapist and therefore owed a physician-patient duty to the plaintiff in addition to her duty to the children. We need look no further into the facts in order to address this case.

IIL

Hence, we arrive at the crux of the case: did the defendant owe the plaintiff a duty of care when she sent the letter including her opinion regarding the presence of parental alienation to three individuals: the plaintiff, Mitchell, and the children's new therapist. The defendant contends that by holding defendant to a duty of care to a non-patient third party, the court of appeals has inappropriately extended the general principles of negligence. We agree.

A.

To establish a prima facie case for negligence, a plaintiff must show that the defendant owed a legal duty of care to the plaintiff, the defendant breached that duty, the plaintiff suffered injury, and the defendant's breach caused the plaintiff's injury. Greenberg v. Perkins, 845 P.2d 530, 533 (Colo.1993). If a negligence action is based on facts that do not impose a duty of care upon a defendant for a plaintiff's benefit, the claim will fail. Id.; Perreira v. Colorado, 768 P.2d 1198, 1208 (Colo.1989).

Whether a specific defendant owes a specific plaintiff a legal duty and the scope of any such duty are questions of law properly determined by a court. Martinez v. Lewis, 969 P.2d 213, 218 (Colo.1998); Greenberg, 845 P.2d at 536. A court's determination regarding the existence of a legal duty is "'an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection'" Univ. of Denver v. Whitlock, 744 P.2d 54, 57 (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 58, at 858 (5th ed. 1984)) (alterations in Whitlock ). The court should base its determination on several factors including: the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against the harm, and the consequences of placing the burden of a duty on the defendant. Mar-tines, 969 P.2d at 218; Greenberg, 845 P.2d at 536. Colorado law recognizes that these factors are not exclusive and allows a court to consider any other relevant factors founded on the competing individual and social interests implicated by the particular facts of the case at issue. Greenberg, 845 P.2d at 536 (quoting Perreira, 768 P.2d at 1209). Because no one factor controls the analysis, the question of whether a duty exists in a certain situation is based on "fairness under contemporary standards-that is, would reasonable persons recognize and agree that a duty of care exists." Greenberg, 845 P.2d at 536.

B.

This court has addressed cases raising the issue of whether a health care provider owes a third party a legal duty of care, albeit in different factual situations. This court first dealt with the issues surrounding the duty of a state psychiatrist to the surviving wife of a policeman shot by a mentally ill individual recently released from an involuntary commitment to a state mental health center for short-term treatment. Perreira v. Colorado, 768 P.2d 1198, 1201 (Colo.1989). We held that when considering whether to release a patient, the state psychiatrist had a legal duty to exercise due professional care in determining whether the patient had a propensity for violence that would create an unreasonable risk of bodily harm to others. If the psychiatrist knew, or should have known, that such a danger existed, he had an obligation to take reasonable precautions to protect the public from the grave risks created by the patient's release. Id. at 1220.

Next, in Greenberg v. Perkins, 845 P.2d 530, 530-31 (Colo.1993), we addressed a physician's duty to an examinee for alleged injuries resulting from testing procedures performed by a third party but requested by a physician pursuant to an independent medical evaluation. In that case, the examinee claimed injuries resulting from a bus accident and subsequently brought a personal injury action. Id. at 531. The defendants in the underlying suit requested an independent medical examination of the plaintiff, The independent physician examined her and then referred her for a functional capacity test. The plaintiff claimed that during the testing, she incurred additional severe injuries, and she brought suit against the independent physician alleging malpractice. We determined that the physician did owe a limited duty of care to an examinee who is not his patient to refrain from injuring the patient during the examination, including abstaining from referring the examinee for testing that would foreseeably result in injury. Id. at 583.

In Martinez v. Lewis, 969 P.2d 213, 218 (Colo.1998), we returned to the question of the scope of the duty a physician owes to an examinee when conducting an independent medical examination at the request of a first party insurer. The examinee in that case sued the physician for professional malpractice based- on his report to the insurance company that the examinee was malingering and the insurance company's subsequent decision to deny coverage for future care. Id. at 215. After weighing the factors relevant to the existence of a duty, this court concluded that the physician did not owe a duty to the examinee when formulating an unfavorable independent medical examination report upon which the insurance company relied in denying coverage. Id. at 220.

The court of appeals too has addressed the question of when a defendant health care provider owes a non-patient third party a duty of care. In Montoya v. Bebensee, 761 P.2d 285, 286 (Colo.App.1988), the mother of a child retained a psychologist for purposes of rendering an opinion about whether the father of the child had sexually abused her. An unlicensed associate of the psychologist concluded without administering any psychological testing and based solely on the child's body language, that the father of the child had indeed sexually abused his daughter. Id. at 287. Based on this determination, the associate instructed the child's mother to limit the father's interaction with the children to one hour per week, in direct violation of court orders. Additionally, she reported her conclusion to a social worker who had previously investigated the case and concluded that there was no basis to suspect the father of abuse. The social worker informed the associate of her prior conclusion, but the associate nevertheless filed a report of suspected child abuse with the county. Id. Further, upon receiving a second opinion from another psychologist who had serious doubts regarding the alleged sexual abuse, the associate dismissed the opposing opinion as "irrelevant" and "not helpful," and subsequently testified for the mother that the father had indeed sexually abused the child. Id.

Based on these cireumstances, after considering both the "great social utility of having therapists make reports of suspected child abuse and the significant risk of substantial injury that may occur to one who is falsely accused of being a child abuser," the court of appeals concluded that the associate owed a duty to the father in this case. Id. at 288. It stated, "a mental health care provider owes a duty to any person, who is the subject of any public report or other adverse recommendation by that provider, to use due care in formulating any opinion upon which such a report or recommendation is based." Id. at 289.

The court of appeals revisited the issue most recently in Card v. Blakeslee, 937 P.2d 846, 847 (Colo.App.1996). In that case, the plaintiff alleged that, during therapy with the defendant, the plaintiffs adult daughter experienced false memories of physical and sexual abuse by the plaintiff. Id. at 848. The plaintiff complained that the defendant had published a letter authored by the daughter accusing the plaintiff and others of past abuse; and that the defendant had written and published a second letter recommending that the daughter have no further contact with her family at that time. Id. In addressing the plaintiff's negligent infliction of emotional distress claim, the court of appeals distinguished Montoya on the basis that the defendant did not render any opinion accusing the plaintiff of abuse. Id. at 850. It further determined that the defendant did not publish "a public report or recommendation aceusing plaintiff of abuse as those terms were used in Montoya." Id. Thus, the court held that the plaintiff had failed to prove the existence of a duty as described in Montoya. Id.

o

Thus, we find ourselves in the following factual and legal cireumstance. There is no evidence in the record to support a conclusion that the plaintiff was Ryder's patient. Rather, the children were Ryder's patients, and as such, Ryder owes them a duty of care, and they have rights to pursue causes of action against her for negligence or otherwise. The plaintiff was a third-party to the patient/therapist relationship, and we must now determine whether Ryder owed her a duty of care as well. As we noted in Martinez v. Lewis, 969 P.2d 213, 218 (Colo.1998), in analyzing the legal question of whether a duty exists, there are various factors that come into play. A court must examine the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against the harm, and the consequences of placing the burden of a duty on the defendant.

First addressing the risk involved, we agree that there is a risk of injury to a parent when a therapist expresses concern about poor parenting of one kind or another. The risks could include diminished parenting time, or in the extreme case, perhaps a change in custody. Those risks are real and potentially very damaging to the parent. By this opinion, we do not intend to minimize the effect on a parent of reduced access to or time with his or her child. However, in the case of misdiagnosis, the damage would also potentially be visited upon the child and in that situation, the law already provides protection. Specifically, the child/patient has the right to seek redress for misdiagnosis of parental alienation or poor parenting for any injuries caused to him or her and the therapist has a resultant incentive to diagnose and treat carefully and competently.

Furthermore, the risks to the parent of a misdiagnosis of parental alienation do not rise to the level of criminal repercussions or even termination of parental rights, such as those associated with an accusation of sexual abuse. A false allegation against a parent of child sexual abuse can cause substantial injury. See, e.g., Montoya v. Bebensee, 761 P.2d 285, 288 (Colo.App.1988); Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1170 (2000) (noting that being "falsely accused of sexual abuse is undoubtedly a substantial harm, a harm which is readily foreseeable"); Heather J. Rhoades, Zamstein v. Marvasti: Is A Duty Owed To Alleged Child Sexual Abusers?, 30 Conn. L.Rev. 1411, 1412 (1998) (recognizing that "the climate surrounding child sexual abuse is such that 'allegations alone are quickly raised to the status of evidence signifying abuse'") (quoting Thomas M. Horner & Melvin J. Guyer, Prediction, Prevention, and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made: IL. Prevalence Rates of Child Sexual Abuse and the Precision of "Tests" Constructed to Diagnosis It, 25 Fam.L.Q. 381, 387 (1991)). But see Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 Harv. L.Rev. 549, 579 (1996) (noting that in refusing to impose a duty of care to a third party in child abuse cireumstances, courts have recognized "society's interest in eradicating the sexual abuse of children and in encouraging the mental health profession to examine and diagnose cases involving such abuse"). Accordingly, we distinguish cases in which a therapist makes allegations of sexual abuse by a parent from cases in which the therapist misdiagnosis improper parenting skills or even parental alienation.

The risks of injury associated with a misdiagnosis of parental alienation are foreseeable, but perhaps not likely to occur. One therapist's opinion is but one of many factors a court might examine in determining custody and parenting time arrangements. § 14-10-124(1.5), 5 C.R.S. (2002). As exemplified by the facts of this case, the custody and parenting time orders might be unaffected by that particular therapist's opinion. Again, in contrast to sexual abuse allegations, the likelihood of actual injury resulting is relatively minimal.

That harm must be weighed against the possible utility of encouraging therapists to treat children experiencing adjustment problems associated with a divorce and communicate their findings to the involved parents. We conclude that the balance weighs in favor of disclosure. Therapists need the ability to convey to the parents not only what the child's issues may be, but also what role the parents may be playing in exacerbating those issues. A threat of liability stemming from even minor diagnoses and suggested changes presents a barrier to treating and assisting a child who is having trouble reconciling a traumatic divorce situation.

The magnitude of the burden of guarding against the harm also weighs against finding a duty here. We have stressed throughout this opinion that therapists clearly owe a duty to their patients: the children. Therapists are required to provide full and effective treatment. That duty may demand disclosure to parents. Guarding against the harm of a misdiagnosis of parental alienation could indeed thwart the fulfillment of the duty to the child. Thus, if the therapist owed a duty to a non-patient parent, that duty could present a barrier to the competent and full treatment of the children.

Therefore, we now conclude that, under the facts presented here, Ryder did not owe the plaintiff a duty of care that would permit the plaintiff recourse arising out of Ryder's letter regarding the presence of parental alienation.

IV.

Citing section 1817-102, 5 C.R.S. (2002), the trial court granted the defendant's Motion for Attorney's Fees concluding that the plaintiff's claims in this case were substantially groundless, frivolous, and vexatious, both legally and factually. The plaintiff and her attorney appealed the trial court's award of costs and attorney fees to the court of appeals. After concluding that the defendant owed a duty of care to the plaintiff arising out of the defendant's letter concerning the presence of parental alienation, the court of appeals determined that the plaintiffs claim was not substantially frivolous, groundless, or vexatious within the meaning of section 18-27-102. Mitchell v. Ryder, 20 P.3d 1229, 1234 (Colo.App.2000). Because it determined that the trial court erred in awarding costs and attorney fees on that claim and because the trial court's order did not separate fees relating to that claim from fees originating from plaintiff's other claims, the court of appeals concluded that the court should revisit the entire attorney fees issue. Id. It instructed that, if the trial court determined that an attorney fees award was appropriate, the trial court should make express findings pertaining to the relevant factors identified in section 18-17-108. Id.

Neither party sought certiorari on the issue of the trial court's award of attorney fees. Accordingly, the court of appeals judgment reversing and remanding the attorney fees order stands. Therefore, on remand, the trial court will need to address any attorney fees in light of our opinion.

v.

In conclusion, we reverse the court of appeals' holding and affirm the trial court's order of summary judgment and dismissal on all claims. We return this case to the court of appeals for reinstatement of the trial court order dismissing those claims and for remand to the trial court for consideration of any remaining issues, including questions of attorney fees.

Justice MARTINEZ and Justice BENDER do not participate.

      . Although in this proceeding Denise Mitchell is the respondent, because she was the plaintiff in the trial court, for the sake of clarity, we will refer to her as the plaintiff throughout this opinion.

      . We will refer to David Mitchell as Mitchell throughout this opinion.

      . Although in this proceeding Ryder is the petitioner, because she was the defendant below, we will refer to her as the defendant or Ryder throughout this opinion.

      . Although the plaintiff asserts that the defendant engaged in "family therapy," the record only contains support for the contention that the defendant was the children's therapist and the trial court so found.

      . The plaintiff also obtained a physical examination of the three-year-old at The Children's Hospital, which did not indicate sexual abuse.

      . Specifically, we granted certiorari on the following issues:
      1. Whether, under the law of negligence and in the absence of malice, conduct by an actor which encourages another to seek relief from the courts is a legally compensable injury.
      2. Whether the court of appeals has extended the law of negligence to establish a duty of care to a non-patient by a psychotherapist under circumstances which depart from existing law.
      3. Whether the court of appeals' decision regarding the duty a psychotherapist owes to a non-patient under the law of negligence imper-missibly interferes with the law of defamation.

        4. Whether the expression of a professional opinion that one parent was alienating the children from the other parent is protected speech under the First Amendment to the United States Constitution.

      . We note that this case does not concern the provisions of section 14-10-127, 5 C.R.S. (2002), which specifically allows the court to order a mental health care professional to complete an evaluation and written report concerning disputed issues surrounding the allocation of parental responsibilities or parenting time arrangements. In this case, the court neither appointed nor approved the selection of the mental health care professional, and Ryder did not complete her evaluation pursuant to court order.

      . In terms of the questions on certiorari, we are answering questions one and two in the negative. Because of that resolution, we need not reach the remaining issues on which we granted certiorari.


source: Caselaw Access Project

author: Justice KOURLIS Chief Justice MULLARKEY,

license: Public Domain

text:
    The DENVER PUBLISHING COMPANY d/b/a Rocky Mountain News, Petitioner, v. Manuel Edward ("Eddie") BUENO, Respondent.
    No. 01SC386.
    Supreme Court of Colorado, En Banc.
    Sept. 16, 2002.
    Rehearing Denied Oct. 7, 2002.

      Baker & Hostetler, LLP, Mare D. Flink, Denver, Colorado, Baker & Hostetler, LLP, Bruce W. Sanford, Bruce D. Brown, Washington, D.C., Attorneys for Petitioner.
    Roger T. Castle, P.C., Roger T. Castle, Denver, Colorado, Attorneys for Respondent.
    Faegre & Benson, LLP, Thomas B. Kelley, Steven D. Zansberg, Christopher P. Beall, Denver, Colorado, Amici Curiae for the Colorado Press Association; Colorado Broadcasters Association; Society of Professional Journalists and Newspaper Association of America.

       Chief Justice MULLARKEY, Justice MARTINEZ and Justice RICE would grant the petition.

   Justice KOURLIS

delivered the Opinion of the Court.

With this case we address whether Colorado permits a plaintiff to sue for the tort of false light invasion of privacy: a cause of action arising out of publicity that unreasonably places another person in a false light before the public. In Bueno v. Denver Publishing Co., 32 P.3d 491 (Colo.App.2000), the court of appeals answered that question affirmatively, ruling that plaintiff Eddie Bueno's (Bueno) false light claim against the Denver Publishing Company was properly submitted to the jury. To the contrary, we now decline to recognize the tort, concluding that it is highly duplicative of defamation both in interests protected and conduct averted. Further, we find the subjective component of the false light tort raises the spectre of a chilling effect on First Amendment freedoms. We therefore reverse the court of appeals and join those jurisdictions that do not recognize false light as a viable invasion of privacy tort. We remand this case to the court of appeals for consideration of Eddie Bueno's cross-appeal of the trial court's dismissal of his defamation claim.

I. Facts

The Denver Publishing Company, {/h/a/ Rocky Mountain News (the News), published a four-page, thirteen-column article with the bold headline: "Denver's Biggest Crime Family." Ann Carnahan, Denver's Biggest Crime Fomily, Rocky Mountain News, Aug. 28, 1994, at 20A. Bueno sued the News and Ann Carnahan, contending the story defamed him and invaded his privacy. In essence, he argued that the article painted him in a false light as having criminal propensities, like many of his siblings.

The story's first page depicted a "family tree," the center of which contained a photo of Della and Pete Bueno on their wedding day in 1987. Mug-shot style photos of their eighteen children encircled the parents' photo; captions summarized each of the Bueno siblings' misdeeds, misfortunes, and, where applicable, criminal records. The caption under Bueno's photo read, "EDDIE, 55 Oldest of the Bueno children." In the first edition of the paper to be published, the caption under Bueno's youngest brother's photo read, "FREDDIE, 28 Only Bueno brother who stayed out of trouble. Living in the Midwest." Defendants changed this caption in a later edition to read, "Freddie, 28 Youngest Bueno child. Living in the Midwest." The revised version omitted the language, "Only brother to stay out of trouble." The article's first-page subtitle declared, "15 of Pete and Della Bueno's 18 children have arrest records, making the clan Denver's biggest crime family." Some twenty-five other statements interspersed throughout the article form the basis of Bueno's claims, among them:

Older siblings lure younger into life of crime [a headline on the article's third pagel.
The older Bueno brothers are in their 40s and 50s now. They're out of prison, but most of their younger brothers will be in for a long, long time.
Joey can't help but look at his older brothers who robbed. They're out of prison now.
The younger brothers recall waking up many nights at 2 or 8 am. when their older brothers stumbled home drunk.
Whenever the boys ended up in jail, Della Bueno bailed them out.
"It seems like all the Buenos are destined to be nothing but criminals," David said. [David is a Bueno sibling.]

Eddie Bueno, now fifty-five, left his home when he was thirteen years old and has had virtually no contact with other family members since then. He married his present wife at age twenty-one, and they have three children, all married with families of their own. Eddie Bueno served six years in the United States Army, departing with an Honorable Discharge. His current employment began twenty-five years ago with the City and County of Denver's vehicle maintenance department. He has worked his way up to the position he now holds, center supervisor. He had no involvement whatsoever in his siblings' criminal activities, nor did he seek publicity in his life generally. Quite the contrary, Eddie Bueno purposefully kept secret from most of his friends and family the fact that he was related to the other, more notorious, Bueno children.

The reporter for the News worked on the story for six months. She interviewed numerous law enforcement officials and reviewed court and police department records. She attempted to contact all surviving children, ultimately interviewing seven of them. Three times she attempted to contact Eddie Bueno, but he did not return her calls.

Carnahan and the News insist that the article makes no false statements about Bue-no. First, they argue that he did not "stay out of trouble." For this, they point to an "arrest card" in their possession that appears to indicate Bueno had a run-in with police when he was a teenager. No charges, convictions, or other ramifications resulted from that incident and Bueno disputes the card's authenticity. At trial, the judge ruled the arrest card inadmissible for any purpose, and the court of appeals affirmed.

The News further points out a portion of the article it contends rectifies any possible misunderstanding vis-a-vis Eddie Bueno:

Freddie, the youngest, and Eddie, the oldest, are the only two Bueno boys who have stayed out of trouble.
Freddie attributes his clean record to his close relationship with his mother. Of all the boys, Eddie had the closest relationship to their father.

These sentences appear on the last page of the article, seven paragraphs from the end.

II. Procedural History

Bueno sued the News, asserting four causes of action, plus compensatory and punitive damages. He alleged: 1. invasion of privacy by placing him in a false light; 2. invasion of privacy by public disclosure of private facts (namely, disclosure of his photograph and identification of him as the oldest child of "Denver's biggest crime family"); 8. defamation by libel per se (false statements and characterization that Bueno had himself engaged in criminal activity); and 4. negligence (by identifying him as a member of a crime family and identifying him as someone who had engaged in crime). Before trial, the trial court granted summary judgment in favor of the News on the claims of negligence and invasion of privacy: giving publicity to private facts. On the latter claim, the court determined that the portions of the article referring to Bueno that were "true," such as Bueno's photo, its caption, and discussion of his dysfunctional, crime-ridden family, were not "embarrassing private facts"; rather, they were matters of "legitimate public concern." The propriety of those rulings is not before us.

At the close of evidence, the trial judge directed a verdict against Bueno on his defamation claims. As to the libel per quod claim, the court concluded that such a claim would require proof of special damages, or monetary losses resulting from the publication, not including injuries to reputation or feelings. The court found that Bueno had not submitted such proof, and thus dismissed the claim. As to the libel per se claim, the court concluded that such a claim would require proof that the publication was directed at Bueno. The court found that the publication was not "specifically directed at" the plaintiff and thus granted the motion for directed verdict on both claims. These rulings have not been reviewed on appeal. The court of appeals did not reach them, because it upheld the verdict on false light; and accordingly the propriety of the rulings is not before us.

Bueno's remaining claim was for invasion of privacy by placing him before the public in a false light. That claim proceeded to the jury. The jury found for Bueno and awarded him $47,973.90 for noneconomic losses, $5,280 for economic losses, and $58,253.90 in exemplary damages. Defendants appealed and Bueno conditionally cross-appealed.

We granted certiorari on the broad question of whether Colorado should recognize the tort of false light, and the narrower question of what the elements of such a tort should be if recognized.

III. Background

Samuel D. Warren and Louis D. Brandeis first recognized Invasion of Privacy as a tort in their seminal article, The Right to Privacy, 4 Harv. L.Rev. 198 (1890). While Warren and Brandeis first presented the right of privacy as a legal theory, it was Dean William L. Prosser who exerted primary influence over its current formulation. In a law review article published in 1960, Prosser explained,

[Invasion of privacy] is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, ... "to be let alone."

William L. Prosser, Privacy, 48 Cal. LRev. 383, 389 (1960) (citation omitted). By 1977, the drafters of the Restatement adopted Prosser's four categories:

1) unreasonable intrusion upon the seclusion of another ("intrusion");
2) publicity that unreasonably places another in a false light before the public ("false light");
3) unreasonable publicity given to another's private life ("disclosure"); and
4) appropriation of another's name or likeness ("appropriation").

Restatement (Second) of Torts § 652 A-E (1977); Prosser, supra, at 389. Whether to adopt these as viable tort claims is a question of state law. See Angelotta v. Am. Broad. Corp., 820 F.2d 806, 809 (6th Cir.1987).

A. Colorado law

While this court recognized the existence of invasion of privacy as a tort in 1970, Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970), we only recently embraced categories three and four. Joe Dickerson & Assocs. v. Dittmar, 34 P.3d 995, 1001 (Colo.2001) (appropriation); Ozer v. Borquez, 940 P.2d 371, 377 (Colo.1997) (disclosure). By denying certiorari in Doe v. High-Tech Institute, Inc., 972 P.2d 1060 (Colo.App.1998), we allowed the first category, intrusion, to stand. Thus, three of Prosser's four invasion of privacy categories are viable tort claims in Colorado. Id. at 1067. ("[Rlecognition of a claim under one aspect of the privacy tort does not entail recognition of all four.").

Neither this court, nor our state legislature, has expressly adopted the second category of the tort: false light. Indeed, previous to the case at bar, only one Colorado Court of Appeals case treated the elements of false light, McCammon & Associates v. McGraw-Hill Broadcasting Co., 716 P.2d 490, 492 (Colo.App.1986). The claim failed on its merits.

Five other cases in our jurisdiction, including the court of appeals case in Dittmar, note the tort's existence but do not expressly adopt or apply it. Borquez, 940 P.2d at 377; People v. Home Ins. Co., 197 Colo. 260, 591 P.2d 1036, 1038 n. 2 (1979); Dittmar v. Joe Dickerson & Assocs., 9 P.3d 1145, 1146 (Colo.App.1999); Doe v. High-Tech Inst., Inc., 972 P.2d at 1064-65, rev'd, 34 P.3d 995 (Colo.2001); Fire Ins. Exch. v. Bentley, 953 P.2d 1297, 1301 (Colo.App.1998).

At the same time, four District Court cases in the Tenth Cireuit employing Colorado law have applied the elements of false light, apparently assuming Colorado had adopted the tort. Brown v. O'Bannon, 84 F.Supp.2d 1176, 1180-81 (D.Colo.2000) (finding plaintiff failed to demonstrate sufficient "publicity" for false light claim) (citing Doe v. High-Tech Inst., Inc., 972 P.2d 1060 (Colo.App.1998)); Seidl v. Greentree Mortg. Co., 30 F.Supp.2d 1292, 1302 (D.Colo.1998) (applying Colorado law to determine that business entities lack standing to bring invasion of privacy false light claims); Smith v. Colo. Interstate Gas Co., 777 F.Supp. 854, 857 (D.Colo.1991) (noting Colorado has not defined the parameters of its "invasion of privacy" torts but ruling that under any theory, including false light, plaintiff's claim failed). All four false light claims failed on their merits.

B. Other States

As of this writing, thirty state courts acknowledge false light as a viable claim in their jurisdictions. See Bueno v. Denver Publ'g Co., 32 P.3d 491, 495 (Colo.App.2000) (collecting twenty-seven cases). Thirteen states have not expressly adopted the tort. Id. Several of those state courts, after examining a false light claim, decided either to reject the tort outright, e.g., Renwick v. News & Observer Publ'g Co., 310 N.C. 312, 312 S.E.2d 405, 410 (1984) ("We will not expand the tort of invasion of privacy ... to include 'false light." "), or simply noted that the facts presented did not justify recognition, e.g., Yeager v. Local Union 20, Teamsters, 6 Ohio St.3d 369, 453 N.E.2d 666, 670 (1983) ("Under the facts of the instant case, we find no rationale which compels us to adopt the 'false light' theory of recovery in Ohio at this time."). A few jurisdictions have yet to confront the issue, e.g., Riley v. Harr, 292 F.3d 282, 298 (1st Cir.2002) (noting the uncertainty as to "whether the New Hampshire Supreme Court would recognize the false light tort").

IV. Analysis

Tort law represents the way in which we draw lines around acceptable and unacceptable non-criminal behavior in our society. Torts are designed to encourage socially beneficial conduct and deter wrongful conduct. See, eg., Restatement (Second) of Torts, § 901(c) (1979). Correspondingly, liability arises out of culpable behavior wherein the defendant breaches a duty to the plaintiff: crosses the line into unacceptable behavior. Liability not only recompenses the wronged plaintiff, but also deters the socially wrongful conduct in the first place. Hence, clarity and certainty of tort law serves a very important function in regulating how we deal with one another.

Both because it substantially overlaps with another tort, defamation, and because it is difficult to quantify, courts and legal scholars heartily debate whether false light invasion of privacy deserves a place among the recognized torts. "[Flalse light remains the least-recognized and most controversial aspect of invasion of privacy." Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex.1994) (citing Bruce W. Sanford, Libel and Privacy, § 11.4.1 at 567 (2d ed.1991)); see also Nathan E. Ray, Note, Let There be False Light Resisting the Growing Trend Against an Important Tort, 84 Minn. L.Rev. 718, 716 (2000) Note will attempt to supply the considerations missing from these decisions [rejecting false light] and demonstrate the need for a false light tort."); J. Thomas McCarthy, The Rights of Publicity and Privacy, § 5A12[C], at 5-185 (1996) ("[Clourts have yet to draw a clear and distinct line between this category of 'privacy' and that of defamation law."); Gary T. Schwartz, Explaining and Justifying a Limited Tort of False Light Invasion of Privacy, 41 Case W. Res. L.Rev. 885, 886 (1991) ("The current challenge to the false light doctrine is quite welcome."); Diane Leenheer Zimmerman, Failsé Light Invasion of Privacy The Light That Failed, 64 N.Y.U. L.Rev. 864, 452 (1989) ("[Thhe wiser course may be for states to eliminate false light altogether.").

The primary objection courts level at false light is that it substantially overlaps with defamation, both in conduct alleged and interests protected. Additionally, to the extent it does differ from defamation, its parameters remain largely undefined. As a result, legal scholars are concerned that such an amorphous tort risks chilling fundamental First Amendment freedoms. Indeed, Pros-ser himself, in the very same article where he described the four invasion of privacy categories, aptly described the defamation/false light tension:

The question may well be raised, and apparently still is unanswered, whether this branch of the tort [false light] is not capable of swallowing up and engulfing the whole law of public defamation; and whether there is any false libel printed, for example, in a newspaper, which cannot be redressed upon the alternative ground. If that turns out to be the case, it may well be asked, what of the numerous restrictions and limitations which have hedged defamation about for many years, in the interest of freedom of the press and the discouragement of trivial and extortionate claims? Are they of so little consequence that they may be cireumvented in so casual and cavalier a fashion?

William L. Prosser, Privacy, 48 Cal. L.Rev. 383, 401 (1960).

Defamation actions may lie for published or publicly spoken statements, in the forms of defamation by libel or defamation by slander, respectively. Black's Law Dictionary 417 (6th ed.1990). We consider defamation by libel because, as does invasion of privacy by false light, this tort specifically addresses defamation by the written word. Id. at 417, 601. Defamation by libel may be defamatory per se when the statements are recognized as inherently injurious to reputation. Id. at 417. Alternatively, statements are defamatory per quod when extrinsic facts are necessary to illustrate their libelous nature by way of innuendo. Id. Because our principal concern with the tort of false light lies in its overlap with defamation, we now compare defamation and false light in terms of conduct and interests protected to examine whether Colorado stands to benefit from including false light among its recognized torts.

A. Elements

A review of the elements required for defamation by libel per se, defamation by libel per quod, and false light invasion of privacy demonstrate the overlap among the torts:

Libel (Per Quod) Libel (Per Se) False Light CJI-Civ. Ath 22:2 CJI-Civ.4th 22:1 CJI-Civ.4th 28:10 1. Publication 1, Publication 1. Publicity 2. False 2. False 2. False 3. Reckless Disregard 3. Reckless Disregard 8. Reckless Disregard 4. Special Damages 4. Actual damages 4, Actual Damages 5. Defamatory 5. Defamatory as a 5. Highly offensive to a matter of law reasonable person 6. About plaintiff 6. About Plaintiff

Clearly, the elements of the torts are substantially similar. Beginning with publication, we review the elements to identify any differences between the torts. One minor difference emerges under the necessary "publicity." In a libel claim, "publication" requires only that some person other than the plaintiff understand the statement; for false light, "publicity" requires communication to the public at large. Brown v. O'Bannon, 84 F.Supp.2d 1176, 1180-81 (D.Colo.2000).

The element of "falsity" as set forth in the Jury Instructions varies only slightly between the torts. For libel,

A statement is false if its substance or gist is contrary to the true facts, and reasonable people learning of the statement would be likely to think significantly less favorably about the person referred to than they would if they knew the true facts. The fact that a statement may have contained some false information does not necessarily make the substance or gist of the statement itself false.

CJI-Civ. 4th 22:11. For false light:

A statement contains false information if, considered as a whole, the substance or gist of the statement is false. The fact that a statement may have contained some false information does not necessarily make the substance or gist of the statement false.

CJI-Civ. 4th 28:11.

With regard to the mental state, reckless disregard, the Jury Instructions use the same definition for either tort, located in section 22:8. An actor publishes a statement "with reckless disregard when, at the time of publication [he or shel believes that the statement is probably false or has serious doubts as to its truth." CJI-Civ. 4th 22:8; see also Cantrell v. Forest City Publ'g Co., 419 U.S. 245, 249-51, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974) (discussing Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), as requiring "actual malice" in public figure false light cases to avoid First Amendment pitfalls). In short, under Colorado law, the requisite mens rea for both defamation and false light would be precisely the same.

On the question of damages, there is no textual difference between the "actual damages" necessary for libel per se and false light; the CJI there refers to the same seetion, 22:13. However, if the plaintiff is a private person, and the claim is for libel per se, the plaintiff need not prove actual damages. Gertz v. Robert Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The "special damages" essential for a libel per quod action reside at CJI-Civ. 4th 22:12.

Finally, concerning whether the statement must be "about the plaintiff," we note that the jury instructions require such a finding for libel per quod and false light, but not for libel per se. In this case, the trial court dismissed Bueno's libel per se claim because the statements "were not specifically directed at" the plaintiff. The jury instruction does not itself include a requirement that a libel per se claim need be elementally "about the plaintiff"; however, for that holding, the trial judge relied on language in McCammon & Associates v. McGraw-Hill Broadcasting Co., 716 P.2d 490 (Colo.App.1986), "[tlo be libelous per se, the broadcast must contain a defamatory meaning specifically directed at the person claiming injury." Id. at 492 (citing Inter-State Detective Bureau v. Denver Post, Inc., 29 Colo.App. 313, 484 P.2d 131 (1971)). We take no position here as to whether the trial court, on this basis, properly directed a verdict for defendants on Bue-no's libel per se claim, or whether libel per se necessarily includes an explicit element that the publication be about the plaintiff.

The Jury Instructions define "about the plaintiff," but in two different places, one for libel per quod, and one for false light. For libel, "A defamatory communication is made about the plaintiff if the recipients correctly understand, or mistakenly but reasonably understand, that it was intended to refer to the plaintiff." CJI-Civ. 4th 22:8 (citing Restatement (Second) of Torts § 564 (1977); Keohane v. Stewart, 882 P.2d 1293, 1300, n. 10 (Colo.1994)). For false light, "A public statement is about the plaintiff if people who (see) (hear) (read) the statement would reasonably understand that it refers to the plaintiff." CJI-Civ. 4th 28:7 (citing R. Sack, Libel, Slander & Related Problems § 124.3 (8d ed.1999); J. McCarthy, The Rights of Publicity and Privacy §§ 8.83[BJZ] & 8.4[C] (1997)). Here again, although the definitions of these elements appear in different sections of the CJI, they are for all intents and purposes the same.

In summary, then, apart from "defamatory" versus "highly offensive," the elements of the two torts are nearly identical.

B. Conduct

Both defamation and false light invasion of privacy seek to avert false publicity damaging to a plaintiff. With the exception of the significantly broader "publicity" required for false light, see Brown v. O'Bannon, 84 F.Supp.2d 1176, 1180-81 (D.Colo.2000) (noting that, under the Restatement, false light "publicity" requires communication to the public at large, while "publication" under defamation requires only one other person understand the communication), and the definitional distinction between "defamatory" and "highly offensive," the elements are identical.

Thus, it comes as no surprise when commentators generally agree that in cases in which alleged conduct will support a false light claim, the same conduct will also support a defamation claim. Even the Restatement concedes:

In many cases to which the rule stated here {false light] applies, the publicity given to the plaintiff is defamatory, so that he would [also] have an action for libel or slander .... In such a case the action for invasion of privacy will afford an alternative or additional remedy, and the plaintiff can proceed upon either theory, or both, although he can have but one recovery for a single instance of publicity.

Restatement (Second) of Torts § 652E emt.b (1976). See also Sullivan v. Pulitzer Broad. Co., 709 S.W.2d 475, 480-81 (Mo.1986) (disallowing false light when facts amounted to nothing more than a restatement of a statutorily barred defamation claim).

In sum, the similarities far outweigh the differences between the two torts and the act of publicizing a falsity, when done with actual malice, will give rise to one or both torts. It is only with resort to the effect of the publication, ie., the "interests protected," as will be discussed next, that a difference of significance emerges. In terms of actionable conduct, however, the two torts target substantially similar behavior.

C. Interests Protected

Privacy torts protect one's right "to be let alone." Thomas M. Cooley, A Treatise on the Law of Torts, 29 (2d ed. 1888). In false light terms, Prosser describes such "right" as "a person's interest in being let alone" in instances where there "has been publicity of a kind that is highly offensive." Prosser and Keeton, Torts, § 117, at 864 (5th ed.1984). "Highly offensive" is the element of false light that distinguishes it from defamation. A defamation claim requires a showing that the publication damaged the plaintiff's reputation in the community. False light requires no such showing. Rather, false light requires a showing that the publication is highly offensive, but need not have damaged that plaintiff's reputation in the community. The theory is that a publication could be highly offensive to an individual without meeting the standard of lowering that person's reputation in the community, a standard required by defamation law. Bolduc v. Bailey, 586 F.Supp. 896, 900 (D.Colo.1984) ("The gravamen of an action for defamation is the damage to one's reputation in the community caused by the defamatory statement(g)."). If the statement did lower the person's reputation, it would clearly be actionable as defamation. If it did not, then, and only then, would there be a need for a false light tort that was not coextensive with defamation. In sum, defamation protects individuals from (public) offense, but only false light will serve where the offense does not lower that individual's reputation in the community.

The question then is what is the nature of the interest that the tort protects? Scholars writing on false light variously describe the protected interest as "peace of mind," "injury to the inner person," "freedom from scorn and ridicule, freedom from embarrassment, humiliation and harassment, freedom from personal outrage, freedom from injury to feelings, freedom from mental anguish, freedom from contempt and disgrace, and the right to be let alone." Ray, supra, at 726 (citation omitted) (adding the protection of one's right to "self-determination" to the list). Lying at the core of all these "interests" are the personal feelings of the false light plaintiff. The issue is not whether others are given cause to change their perception of the plaintiff, but how the plaintiff himself responds to the publication.

Courts that recognize false light view one's reputation in the community and one's personal sense of offense as separate interests. See Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70, 83 (1984) (" 'See-ondly, in defamation cases the interest sought to be protected is the objective one of reputation,. ... In privacy cases the interest affected is the subjective one of injury to [the] inner person'") (quoting Thomas I. Emerson, The Right of Privacy and Freedom of the Press, 14 Harv. C.R.-C.L. L.Rev. 329, 833 (1979)). But even those states that accept as important the difference between these two interests, reputation and personal feelings, recognize an "affinity" between them:

There are differing interests protected by the law of defamation and the law of privacy, which account for the substantive gradations between these torts. The interest protected by the duty not to place another in a false light is that of the individual's peace of mind, te., his or her interest "in not being made to appear before the public in an objectionable false light or false position, or in other words, otherwise than as he is." "The action for defamation," on the other hand, "is to protect a person's interest in a good reputation ...." Nevertheless, despite analytical distinctions, there is a conceptual affinity between the causes of action based on these two theories.

Romaine v. Kallinger, 109 N.J. 282, 537 A.2d 284, 290 (1988) (citations omitted).

We believe that recognition of the different interests protected rests primarily on parsing a too subtle distinction between an individual's personal sensibilities and his or her reputation in the community. In fact, the United States Supreme Court trampled any such subtleties in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 58 L.Ed.2d 965 (1977). " 'The interest protected' in permitting recovery for placing the plaintiff in a false light 'is clearly that of reputation, with the same overtones of mental distress as in defamation." Id. at 573, 97 S.Ct. 2849 (quoting Prosser, supra, at 400.).

We agree. False statements that a plaintiff finds "highly offensive" will generally either portray that plaintiff negatively or attack his conduct or character. At the same time, publicized statements that are disparaging and false satisfy the elements of defamation. See Schwartz, supra, at 887. Thus, the same publications that defame are likely to offend, and publications that offend are likely to defame. For example, if the article here did indeed portray Eddie Bueno as a criminal, then that statement is defamatory and not merely offensive. Those cases in which offense is taken, although no damage is done to plaintiff's reputation, are few and far between. Because the likelihood of a chilling effect is much greater than the likelihood that an offended plaintiff will be left with no cause of action, we feel that defamation law will adequately and most appropriately protect the public.

Delving into case law where a plaintiff brought false light and defamation claims further exposes the similarity between the two torts. Remarkably few instances exist where the false light claim proceeded, but defamation failed. Those that did were on atypical facts or dubious legal grounds. See, e.g., Howard v. Antilla, 160 F.Supp.2d 169, 171, 174-75 (D.N.H.2001) (permitting as "not inconsistent" a jury verdict for defendant on defamation claim but for plaintiff on false light claim where defendant's article identified plaintiff as the chairman of two publicly traded companies and entertained a rumor that plaintiff was actually a convicted felon who had violated securities laws); Moore v. Sun Publ'g Corp., 118 N.M. 375, 881 P.2d 735 (Ct.App.1994) (ruling defamation claim failed as opinion, but false light could proceed to jury on remand where defendant's mailings portrayed plaintiff as culpable for a poor business decision).

These anomalies aside, however, there do exist scenarios where false light arguably fits, but defamation fails. See Schwartz, supra, at 893-96. Schwartz's categories are essentially two. The first involves cases where the defendant reveals intimate and personal, but false, details of plaintiff's private life, for example, portraying plaintiff as the victim of sexual harassment, Crump, 320 S.E.2d at 80, or as being poverty-stricken, Cantrell v. Forest City Publ'g Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974), or as having a terminal illness or suffering from depression. These depictions are not necessarily defamatory, but are potentially highly offensive. The second category encompasses portrayals of the plaintiff in a more positive light than he deserves. See, e.g., Spahn v. Julian Messner, Inc., 43 Misc.2d 219, 250 N.Y.S.2d 529, 538-40, 543 (N.Y.Sup.Ct.1964), aff'd, 260 N.Y.S.2d 451, 23 A.D.2d 216 (1965), aff'd, 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543 (1966), vacated, 387 U.S. 239, 87 S.Ct. 1706, 18 L.Ed.2d 744 (1967) (trial court finding invasion of privacy where plaintiff was depicted in book as a war hero who earned Bronze Star and "raced out into the teeth of the enemy barrage"-two of a multitude of characterizations that were utterly false and embarrassing to plaintiff).

We acknowledge the potential for precluding such claims, but we are convinced that those scenarios represent a decidedly narrow band of cases. If the published statement insults and disparages the plaintiff, he will quite naturally suffer shame and humiliation because those that read the falsity will view him differently, and defamation will properly lie. Colorado's defamation law compensates plaintiffs for "personal humiliation, mental anguish and suffering." CJI-Civ. 4th 22:18. If, however, the published intimate details are true, then "disclosure" is the proper cause of action. Should the publication take plaintiff's Hikeness and use it for pecuniary gain, the tort of appropriation provides relief. And there remains the tort of intentional infliction of emotional distress/outrageous conduct for offensive publications in which the defendant engaged in "extreme and outrageous conduct, recklessly or with the intent of causing the plaintiff severe emotional distress," provided the plaintiff actually incurs severe emotional distress as a result of the defendant's conduct. McKelvy v. Liberty Mut. Ins. Co., 983 P.2d 42, 44 (Colo.App.1998). The great majority of the scenarios proffered above would support a cause of action under one of these alternative theories. We therefore believe that the highly offended plaintiff is adequately protected by existing remedies.

V. Constitutional Implications

Our decision today to reject false light in Colorado reflects not only caution with respect to adopting new torts, but also our recognition that the tort implicates First Amendment principles. Freedom of the press is a critical part of our constitutional framework. We must weigh torts in this area carefully against the infringement they represent upon freedom of the press.

Although we, as readers or viewers of the news, sometimes regret excesses or empathize with individuals whose unfortunate plights are exploited, we nonetheless rely heavily upon open and full disclosure.

Because tort law is intended both to ree-ompense wrongful conduct and to prevent it, it is important that it be clear in its identification of that wrongful conduct. The tort of false light fails that test. The sole area in which it differs from defamation is an area fraught with ambiguity and subjectivity. Recognizing "highly offensive" information, even framed within the context of what a reasonable person would find highly offensive, necessarily involves a subjective component. The publication of highly offensive material is more difficult to avoid than the publication of defamatory information that damages a person's reputation in the community. In order to prevent liability under a false light tort, the media would need to anticipate whether statements are "highly offensive" to a reasonable person of ordinary sensibilities even though their publication does no harm to the individual's reputation. To the contrary, defamatory statements are more easily recognizable by an author or publisher because such statements are those that would damage someone's reputation in the community. In other words, defamation is measured by its results; whereas false light invasion of privacy is measured by perception. It is even possible that what would be highly offensive in one location would not be in another; or what would have been highly offensive in 1962 would not be highly offensive in 2002. In other words, the standard is difficult to quantify, and shifts based upon the subjective perceptions of a community.

We would all hope that the press considers the impact of publicity upon the individuals involved; we would also hope that the press scrupulously avoids the publication of any false material. However, defamation law adequately proseribes inappropriate conduct in this area and punishes breach with relative clarity and certainty. We are comfortable that existing law adequately protects us from false publications, from cavalier reporting, or from malice.

Conversely, in the limited area in which false light invasion of privacy and defamation are not coextensive, there is ambiguity and subjectivity that would invariably chill open and robust reporting. We purposefully avoid upsetting "the delicate balance that has developed in the law of defamation between the protection of an individual's interest in redressing injury from published falsehoods, and the protection of society's interest in vigorous debate and free dissemination of the news." Fellows v. Nat'l Enquirer, Inc., 42 Cal.3d 234, 228 Cal.Rptr. 215, 721 P.2d 97, 106 (1986).

VI. Conclusion

Our holding today is a deliberate exercise of caution. We believe false light is too amorphous a tort for Colorado, and it risks inflicting an unacceptable chill on those in the media seeking to avoid liability. The Supreme Court of Texas, in rejecting false light invasion of privacy, observed:

"[wlhatever is added to the field of libel is taken from the field of free debate." While less compelling, these same considerations are also at play in private, nonpolitical expression. Thus, the defamation action has been narrowly tailored to limit free speech as little as possible.

Cain v. Hearst Corp., 878 SW.2d 577, 582 (Tex.1994) (quoting New York Times v. Sullivan, 376 U.S. 254, 272, 84 S.Ct. 710, 11 686 (1964) (quoting Sweeney v. Patterson, 128 F.2d 457, 458 (1942))). Such tailoring has yet to develop in the nascent false light tort, and we are not inclined to become the workshop. When we "take from the field of free debate," we should at the very least know what and how much we are taking. Absent that, we find no benefit to our jurisprudence by adopting the tort of false light invasion of privacy. The tort applies only to a narrow band of cases such that any potential gain in individual protection is offset by the chilling effect the new, undefined tort could have on speech.

Finally, we note that the Colorado General Assembly retains full authority to promulgate statutory causes of action of the type we here reject. Should they deem this decision overly cautious, they are, of course, free to legislate a remedy. Therefore, the court of appeals judgment is reversed and the case is remanded for consideration by that court of Eddie Bueno's cross appeal.

Chief Justice MULLARKEY dissents, and Justice MARTINEZ and Justice RICE join in the dissent.

Chief Justice MULLARKEY,

dissenting:

I respectfully dissent because I believe the majority opinion fails to sufficiently justify its decision to eliminate the tort of false light invasion of privacy from this jurisdiction.

By refusing to formally recognize the tort of false light invasion of privacy, the court today narrows privacy protections in Colorado and closes an independent avenue of relief available to plaintiffs in thirty other states. See maj. op. at 897 n. 7; Bueno v. Denver Publ'g. Co., 82 P.3d 491, 495 (Colo.App.2000). In so holding, the court deprives plaintiffs of a tort that effectively has been recognized in this jurisdiction for many years. As for the immediate ramifications of this decision, the court precludes Plaintiff Eddie Bueno from recovering under his false light claim for harm caused to him by a Rocky Mountain News article, sending him back to the court of appeals with the burden of resurrecting his defamation arguments.

Today's majority opinion offers two primary rationales for its decision to reject the false light tort and to restrict the privacy protections available in this state. First, the court reasons that false light duplicates defamation in several respects and is therefore an unnecessary claim. See maj. op. at 894. Second, the court asserts that the tort might have a chilling effect on First Amendment freedoms. Id.

In my view, these arguments are not persuasive. First, the mere overlap of some false light and defamation elements does not warrant a complete foreclosure of an independent false light claim. A better solution to overlap is simply to preclude duplicative damages awards. Second, false light offers the same First Amendment protections that defamation provides, therefore false light will not chill First Amendment freedoms. Third, today's decision needlessly places Colorado at odds with a clear majority rule, and the application of the majority's analysis to Bue-no's case leads to an unfairly burdensome result.

I. Facts

Eddie Bueno, now in his sixties, left home at age 18 to escape a troubled family. He found work, attended school, and eventually married and raised a family. During those years, Bueno did all he could to separate himself from his brothers and sisters, and had virtually no contact with his parents or siblings. He lived a law abiding life, and was never involved in his siblings' criminal activities.

One can only imagine Eddie Bueno's reaction when he picked up the Rocky Mountain News on Sunday, August 28, 1994, to see the front page, one-inch, bold-print banner headline: "Denver's Biggest Crime Family." The smaller sub-headline read: "15 of 18 Bueno Siblings Have Arrest Records, Including 2 Known as Society Bandits." See Ann Carna-han, Denver's Biggest Crime Family, Rocky Mountain News, Aug. 28, 1994, at 1A. Inside the tabloid newspaper, the Bueno story took four full pages. See id. at 20A-24A. The first page of the article depicted a full-page Bueno family tree, featuring photographs of each of the siblings surrounding the parents' wedding picture. See id. at 20A. Front and center at the top of the tree, directly under the one-inch heading "Denver's Biggest Crime Family," was a photograph of Eddie himself, labeled simply as "EDDIE, 55, the oldest of the Bueno children." Id. The following thirteen-column article provided extensive detail of various criminal activity within the Bueno family, including over twenty-five statements and headings forming the basis of Bueno's lawsuit, among them: "Older Siblings Lure Younger Into Life of Crime." See id. at 22A.

Eddie Bueno sued the newspaper for defamation and for invading his privacy by portraying him in a false light as having the same criminal propensities as his siblings. At trial, the court granted the newspaper's directed verdict on Bueno's defamation claim but allowed the false light claim to go to the jury. The jury returned a verdict in favor of Bueno on the false light claim, awarding him $53,253.90 in economic and non-economic losses, as well as $53,253.00 in exemplary damages. The court of appeals affirmed. Today, the majority opinion invalidates this award by refusing to recognize the viability of false light invasion of privacy in Colorado.

IL Overlap Does Not Justify the Elimination of False Light

First, the court reasons that false light overlaps with defamation in both the interests protected and the conduct averted, and is therefore an unnecessary claim. See maj. op. at 894. Here, I do not agree that the best solution to overlapping torts is the wholesale elimination of one of the claims. The majority opinion begins its analysis by providing a lengthy comparison of the similarities and differences between false light and defamation, rightly finding that the two torts are not exact duplicates. See id. at 898-911. The majority concedes that scenarios exist "where false light arguably fits, but defamation fails," id. at 902, because while false light focuses on publications "highly offensive" to a reasonable person, defamation targets only publications that lower the plaintiff's reputation in the community. See id. at 901. Despite this imperfect fit between false light and defamation, the court nevertheless decides that the two torts are sufficiently similar to justify the elimination of a false light remedy for the leftover "narrow band of cases." See id. at 902.

My main concern with the majority's approach is not with its comparison of false light and defamation, but with its decision to "solve" the overlap by foreclosing the false light tort entirely. In my opinion, a better solution would be to restrict the damages available to plaintiffs raising both false light and defamation claims, thus preventing du-plicative damages awards. The Restatement (Second) of Torts encourages this approach, stating that where more than one privacy claim is based on a single publication, the injured party may "have only one recovery of his damages upon one or all of the different grounds." Restatement (Second) of Torts § 652A emt. d (1977).

Such a solution is not novel-courts are well versed at preventing duplicate awards while simultaneously providing plaintiffs with multiple avenues of relief. For example, a plaintiff with a products liability complaint may choose among several causes of action, including a claim for negligence, strict liability, a breach of express or implied warranty, or a combination of the above. See, e.g., Palmer v. A.H. Robins Co., 684 P.2d 187, 198 (Colo.1984) (involving all of the above actions simultaneously). Therefore, the mere similarity between false light and defamation does not justify the complete rejection of the false light tort. See also Cain v. Hearst Corp., 878 S.W.2d 577, 588 (Tex.1994) (Hightower, J., dissenting) (arguing in a 5-4 dissent that plaintiffs often have a choice between similar claims for relief, and that "ov-eriap, by itself, is no reason to reject a cause of action for false light invasion of privacy").

III. False Light Adequately Protects First Amendment Freedoms

In order to justify the preclusion of claims that fall under only the false light tort, the majority opinion explains that First Amendment concerns outweigh the need to provide an independent false light remedy. See maj. op. at 902-908. At the outset, I disagree with the majority's conclusion that false light is particularly threatening to First Amendment freedoms due to its "subjective component." See id. at 908. The majority attempts to distinguish false light from defamation by noting that "defamation is measured by its results; whereas false light invasion of privacy is measured by perception." Id. at 908. I do not see a meaningful difference between the level of objectivity of these two tests,. In my view, neither standard is easily quantifiable and neither standard can be measured without some consideration of the geographic or temporal context of the statement in question. Therefore, the objective false light standard is no more threatening to First Amendment rights than the objective defamation standard.

Furthermore, the identical "actual malice" standard protects First Amendment freedoms in both defamation and false light cases, and this court can easily apply the full range of other constitutional protections afforded to defamation cases to false light invasion of privacy cases. See, e.g., Lerman v. Flynt Distrib. Co., 745 F.2d 123, 135 (2d Cir.1984) (applying the same constitutional protections to both libel and false light cases). Under these constitutional protections, false light does not pose any unusual threat to First Amendment freedoms.

IV. The Majority's Analysis in Rejecting False Light Has Negative Ramifications Both Generally and As Applied to Bueno

A. General Ramifications

I must first emphasize the national context in which today's decision takes place. The majority opinion leaves Colorado at odds with the United States Supreme Court and a clear majority of states that recognize the false light tort, joining only three states that explicitly reject the tort in its entirety. See Cain, 878 S.W.2d at 579; Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235-36 (Minn.1998); Renwick v. News & Observer Publ'g. Co., 310 N.C. 312, 312 S.E.2d 405, 413 (1984). We depart from the majority rule despite our recent acknowledgement that we traditionally rely upon majority jurisdictions with respect to invasion of privacy torts. See Dickerson & Assoc. v. Dittmar, 34 P.3d 995, 1001 (Colo.2001). Furthermore, no modern trend explains today's decision-Tennessee, the most recent state before Colorado to consider this debate in light of current cases and commentary, explicitly embraced the majority rule just last year, recognizing false light as a viable and independent tort. West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 648 (Tenn.2001).

I also note that although the majority opinion claims that its decision reflects "caution with respect to adopting new torts," maj. op. at 903, the decision is more accurately described as one that deprives plaintiffs of a tort that is already, in effect, recognized in this state. While it is true that this court never explicitly adopted false light in the past, we have made consistent references to its existence. See People v. Home Ins. Co., 197 Colo. 260, 263 n. 2, 591 P.2d 1036, 1038 n. 2 (Colo.1979) (referring to the "four distinct kinds of invasion [of privacy]" set forth in the Restatement (2d) of Torts); see also Ozer v. Borquez, 940 P.2d 371, 377 (Colo.1997); Dittemar, 34 P.3d at 1000. Furthermore, in McCammon & Associates, Inc. v. McGraw-Hill Broadcasting Co., 716 P.2d 490, 492 (Colo.App.1986), the court of appeals expressly recognized false light and defined its elements.

Due to the uncritical manner in which both this court and the court of appeals have treated the false light tort over the past twenty years, even the United States District Court for the district of Colorado has been led to conclude that false light is viable under Colorado law. See Brown v. O'Bannon, 84 F.Supp.2d 1176, 1180 (D.Colo.2000); Seidl v. Greentree Mortg. Co., 30 F.Supp.2d 1292, 1802 (D.Colo.1998); Smith v. Colorado Interstate Gas Co., 777 F.Supp. 854, 857 (D.Colo.1991). Clearly, Eddie Bueno and other plaintiffs who have raised false light claims in Colorado have been reasonable in relying on the impression that the false light tort is actionable in this state. Today's decision punishes that reasonable reliance.

B. Ramifications As Applied to Bueno

The majority's analysis reaches an unfairly burdensome result. The trial court directed a verdict against Bueno on his defamation claim but allowed his false light claim to go to the jury. The jury found for Bueno and awarded him $593,253.90 in economic and non-economic losses, as well as $53,258.00 in exemplary damages. In its opinion today, the majority sets aside the verdict and remands the case to the court of appeals to consider Bueno's contention that the trial court erred when it threw out his defamation claim.

The heart of the majority's decision is actually found in a short but extraordinarily significant footnote. See maj. op. at 896 n. 8. In footnote 3, the majority holds, without discussion, that the defamation claim of libel per se "does not include a requirement that the publication be specifically directed at the plaintiff." Id. Conveniently enough, Bueno's original libel per se claim was dismissed by the trial court precisely because the trial judge determined the Rocky Mountain News article was not "specifically directed at" the plaintiff. This single footnote essentially decides Bueno's defamation case today, and yet the majority refuses to explicitly acknowledge this result. Instead, the majority now requires Bueno to go back to the court of appeals and either persuade the court of appeals that footnote 8 is not mere dicta or litigate the issue.

If, as the majority concludes, the tort of false light essentially is the tort of defamation in both the conduct alleged and the interests protected, see id. at 900-906, it should simply order the damages awarded for Bueno's recovery on false light to be paid to him as damages for defamation. The false light jury instructions given in this case were adequate in substance for a defamation claim, and damages certainly would not be duplicated by upholding Bueno's current award.

The only reason that would justify the majority's remand remedy would be that Bueno's claim is one of those rare instances the majority identifies that would be actionable under false light but not under defamation. If this is true, we should say so. If Bueno's case is in that "narrow band of cases" the majority opinion precludes today, see id. at 902, it is not reasonable to send Eddie Bueno back to the court of appeals or the trial court in search of an illusory goal.

To me, this case is exactly the type of situation that calls out for the protection afforded by the tort of false light invasion of privacy. Bueno was portrayed as something he was not-a criminal-and his efforts to protect his privacy were destroyed. When Samuel D. Warren and Louis D. Brandeis first proposed the right of privacy, they tapped into a concept that has become increasingly more important in succeeding years. Although Warren and Brandeis could not have predicted the seope of today's information explosion and the abuses arising from it, they would immediately recognize what happened to Eddie Bueno. Bueno lost his privacy because a newspaper published a sensational story wrongly including him in the caste of criminals. The court's refusal today to recognize false light not only narrows privacy protections in Colorado and contradicts a national majority rule, but also deprives Eddie Bueno of the rather modest compensation he won and sends him back into more litigation with a vastly better funded foe.

V. Conclusion

Because the majority rejects the tort of false light invasion of privacy without sufficient justification, I cannot agree with the court's decision to eliminate the false light tort. Therefore, I would hold that the court of appeals properly upheld the plaintiff's false light claim.

For the above reasons, I respectfully dissent.

I am authorized to state that Justice MARTINEZ and Justice RICE join in this dissent.

      . Bueno also alleged negligence and his wife sued for loss of consortium, but those claims were dismissed pre-trial and are not the subject of this appeal.

      . Defendants sought certiorari review of that ruling, which we declined. Accordingly, the arrest card is not in evidence because our refusal to hear the evidentiary appeal rendered final the court of appeals' affirmation of the trial court's in limine ruling. See C.A.R. 54.

      . However, as we note below, Bueno did ultimately offer proof of actual damages in the false light case, and libel per se does not include a requirement that the publication be specifically directed at the plaintiff.

      . We acknowledge Bueno's contention that the News failed to argue before the trial judge that false light is unrecognized in Colorado. We have chosen to exercise our discretion and accept the issue as presented on appeal under the authority granted us by C.A.R. 1(d) and 49(a).

      . We granted certiorari on the following specific issues:
      (1) Whether Colorado should recognize the tort of {false light with this case, (2) Whether a publication is actionable as false light when any allegedly offensive implications it creates are refuted by statements in the report plainly to the contrary, and (3) Whether a plaintiff must prove special damages as an element of false light in Colorado, if Colorado makes false light a valid theory of recovery.

      . When we recognized appropriation, we noted that false light was one of the privacy invasion torts that Prosser includes. See Joe Dickerson & Assocs. v. Dittmar, 34 P.3d 995, 1000 (Colo.2001).

      . The most recent addition, Tennessee, decided West v. Media General Convergence, Inc., 53 S.W.3d 640 (Tenn.2001), after the court of appeals delivered its decision here. Idaho, South Dakota, and Maine arguably also belong in these ranks. See Hoskins v. Howard, 132 Idaho 311, 971 P.2d 1135 (1998) (discussing false light claim as if the state recognized the tort); Montgomery Ward v. Shope, 286 N.W.2d 806 (S.D.1979) (listing with approval the four invasion of privacy torts); Nelson v. Maine Times, 373 A.2d 1221, 1223 (Me.1977) (recognizing the four invasions of privacy torts.).

      . The Colorado Jury Instruction (CJI) based the elements of false light on those set forth in the appellate opinion in this case. CJI-Civ. 4th 28:12.

      . Statements recognized as defamatory as a matter of law inherently require the plaintiff to be the subject of the remark because such remarks must fall into one of four categories, each of which pertain to the plaintiff, These categories include: "(a) a criminal offense ... (b) a loathsome disease ... (c) [a] matter incompatible with his business, trade, profession, or office ... (d) serious sexual misconduct." Restatement (Second) of Torts § 570 (1977). Therefore, as we discuss later, the requirement is not a distinct and separate element in CJI but is incorporated within the fifth element, defamatory as a matter of law.

      . Courts frequently refer to this mens rea as "actual malice." See, e.g., Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103, 1105 (Colo.1982) (discussing New York Times v. Sullivan, 376 U.S. 254, 272, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) as defining "actual malice" to mean, "with knowledge that the statement was false or with reckless disregard of whether it was false or not.").

      . We recognize that Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), permits state courts to adopt a simple negligence standard for private person defamation claims, and some states have chosen to do so. However, because we did not choose to lower our standard to negligence in defamation cases, see, Diversified Mgmt. Inc., 653 P.2d at 1106, we certainly would not have lowered the bar for false light, had we chosen to adopt it. Additionally, constitutional restraints notwithstanding, the common law development of invasion of privacy torts may by itself require the higher mental state. See Lovgren v. Citizens First Nat'l Bank of Princeton, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987, 991 (1989).

      . For its part, Inter-State relies on Lininger v. Knight, 123 Colo. 213, 226 P.2d 809 (1951), for the "specifically directed at" language. InterState, 484 P.2d at 133. Lininger involved a night club owner who sued an individual that had complained about the club to the board of county commissioners. Id. at 214-18, 226 P.2d at 809-11. A local newspaper published the letter due to a series of misunderstandings. Id. The court denied libel per se because the statements referred to the club, but did not specifically defame the owner, who would only be identifiable by innuendo. Id. at 221, 226 P.2d at 813.

      . In this case, the jury instruction informed the jury, "To be highly offensive, the statement about the plaintiff must be such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position. A statement about a plaintiff is highly offensive to a reasonable man only when that reasonable man would be justified in the eyes of the community in feeling seriously offended and aggrieved by the statement."

      . These instances reveal the kinship between false light and the tort of "giving publicity to private facts": the only difference being the "private facts" in false light claims are false. See Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Calif. L.Rev. 935 (1968). Nimmer suggests false light claims should lie in those instances where the same facts, if true, would be actionable under "disclosure," ie., giving publicity to private facts. See id.

      . Plaintiff's conditional cross-appeal, left unaddressed when the court of appeals affirmed the trial court, is now suitable for review.

      . The majority concedes that "under Colorado law, the requisite mens rea for both defamation and false light would be precisely the same." Maj. op. at 899.

      . The U.S. Supreme Court acknowledged the tort of false light invasion of privacy in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), and Cantrell v. Forest City Publ'g Co., 419 U.S. 245, 249, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974).

      . The defamation ruling has not yet been reviewed on appeal.

      . The elements of defamation (libel per se and libel per quod) are listed in CJI-Civ.4th 22:1-2, and see CJI-Civ.4th 28:10 for the elements of false light, which were based on the elements detailed in the appellate opinion in this case. See also maj. op. at 899 (providing a comparative chart of the elements for defamation and false light, based on the Colorado Jury Instructions).

      . Louis D. Brandeis & Samuel D. Warren, The Right to Privacy, 4 Harv. L.Rev. 193 (1890).