Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
In July 2020, Back the Blue, a pro-police organization, obtained a permit to host a rally in Denver’s Civic Center Park on Oct. 10, 2020. A counter-demonstration was scheduled concurrently. 9News planned to cover the events, and in anticipation of a “potential for violence,” hired Pinkerton Consulting & Investigations, Inc. as an independent contractor to provide security services.
Pinkerton, in turn, hired Isborn Security Services, LLC. Isborn hired Matthew Dolloff, who had worked for Isborn 39 times, primarily as a “crowd control” or “roving security” independent contractor. Steven Wright alleged that when Isborn hired Dolloff, it didn’t ensure he was licensed. He also alleged that Dolloff wasn’t authorized to carry a firearm or provide security services.
On the day of the events, Dolloff accompanied 9News producer Zachary Newman. Both dressed in plain clothes, without identification as a security guard or member of the press, respectively. Dolloff was armed.
Wright attended the rally with his friend, Lee Keltner. As they were leaving the rally, Wright and Keltner argued with Jeremiah Elliot. The argument quickly escalated to an altercation when Keltner pulled a can of pepper spray from his pocket.
Newman recorded the altercation on his phone. Keltner asked Newman to stop recording and reached for Newman’s phone. Dolloff stepped in front of Newman. Keltner slapped Dolloff and sprayed him with pepper spray. Dolloff then shot and killed Keltner. Wright was standing next to Keltner when he was shot.
Following the shooting, Wright brought nine claims for negligent infliction of emotional distress against Elliot, Dolloff, Isborn, Pinkerton and 9News. Wright’s fifth and sixth claims were brought against 9News. Wright contended 9News was directly negligent by creating an unreasonable risk of harm in newsgathering and that 9News was vicariously liable for Dolloff’s actions.
The district court denied dismissal of Wright’s claim for direct negligent infliction of emotional distress under the theory of negligent hiring, retention and/or supervision of a security guard and Wright’s claim that 9News was vicariously liable for the security guard’s negligent infliction of his alleged emotional distress.
Tegna Inc. and Multimedia Holdings Corp., 9News collectively, appealed the court’s order denying a portion of their anti-SLAPP special motion to dismiss the claims of Wright.
Wright cross-appealed the court’s dismissal of his claim for direct negligent infliction of emotional distress under a second theory — that 9News engaged in a civil conspiracy.
Addressing a matter of first impression, the Colorado Court of Appeals concluded a plaintiff need not support every allegation of the complaint by affidavit or proffer “admissible evidence” (9News’ words) to “establish … a reasonable likelihood that the plaintiff will prevail on the claim,” as required by the second step in a court’s assessment of an anti-SLAPP motion to dismiss.
But the appeals court also concluded that if a defendant refutes mere allegations in a complaint with affidavits or other evidence, such documents will generally prevail over a complaint’s allegations.
The appeals court reversed the district court’s finding that Wright established a reasonable likelihood on his claim that 9News was directly negligent in the hiring, retention and/or supervision of the security guard. It affirmed in all other respects and remanded for further proceedings.