Furgason v. Clausen , 109 N.M. 331 ( 1989 )

OPINION

DONNELLY, Judge.

Appellant James M. Furgason appeals from an order granting summary judgment and dismissing his complaint for libel against defendants Christopher Clausen, Donrey, Inc., and the Alamogordo Daily News for publishing a false report of his arrest. We discuss: (1) whether the court erred in determining that the publication in question was protected by the fair-report privilege; (2) whether the district court erred in determining the status of appellant; and (3) propriety of summary judgment. We reverse.

Appellant is the owner and proprietor of “Furgi’s Pub” in Alamogordo. He also was appointed to serve on an advisory committee chosen by the mayor to deal with issues involving alcoholism and driving while intoxicated (Mayor’s Committee). On January 9, 1987, appellant’s home was burglarized, and among the items stolen were his wallet and a pistol. Several weeks later, on January 22, 1987, a man identifying himself as James M. Furgason was arrested by a city police officer on charges of paint sniffing and carrying a pistol as a concealed weapon. The individual arrested was carrying a driver’s license showing his picture but bearing the name, address, and other personal data of appellant. At the time of the arrest the man told police that he was 32 years of age, that he was unemployed, and that he had no vehicle.

The next morning defendant Clausen, a reporter employed by the Alamogordo Daily News, reviewed the arrest reports prepared by the city police. The newspaper customarily published reports of the names of persons arrested by the local police. On learning that the name James M. Furgason appearing on the arrest report was the same as that of appellant, Clausen discussed the arrest report with Detective Ray Bailey and Captain Truman Nix of the Alamogordo Police Department. Both officers confirmed that the person arrested had been identified as James M. Furgason.

Clausen also received a typed copy of a Crime Stoppers’ news release from the city police soliciting information from the public concerning the burglary of appellant’s home and describing the burglary as the crime of the week. The Crime Stoppers’ news release stated that among the items stolen were appellant’s wallet and a .357 magnum revolver.

Clausen prepared a news story for publication concerning the facts of the Furgason arrest, which was published in the January 23, 1987 noon edition of the Alamogordo Daily News. The headline and lead paragraphs of the article reported,

Bar owner accused of sniffing paint

A prominent local bar owner who serves on the Mayor’s Committee for Driving While Intoxicated and Alcoholism was arrested Thursday night for abuse of chemical substance and negligent use of a deadly weapon.

James M. Furgason, 41, 1407 Rock-wood, who owns the popular bar and package store, Furgi’s, 817 Scenic Dr., was arrested at 9:45 p.m. Thursday night after allegedly being observed sniffing paint.

The news story also reported, among other things, that “[according to the report by Department of Public Safety officer Greg Cavelli, Furgason was sniffing paint in the covered restroom entrance of the 10th Street Conoco Service Station,” that a search of Furgason revealed that he was carrying a .357 caliber revolver tucked into his waistband, and that following his arrest “Furgason was booked into the Otero County Jail under a $3,500 bond and is scheduled to be arrainged [sic] before [a magistrate judge], Friday afternoon.”

Several hours after the newspaper was published, the city police, while attending the magistrate court arraignment, discovered that the person arrested and identified as James M. Furgason was an imposter, that he had falsely informed Officer Cavelli that he was James M. Furgason, and that the driver’s license he had shown police was the driver’s license which had been stolen earlier from appellant’s home. The individual arrested was subsequently identified as Garland Erven and was charged with having burglarized appellant’s residence. Subsequent investigation revealed that Erven had altered appellant’s driver’s license and placed his own photograph over the picture of appellant on the license.

Thereafter, in its January 25, 1987 edition the newspaper printed a front page story reporting that Erven had impersonated appellant by using a driver’s license taken from appellant’s wallet, which had been stolen during the burglary of appellant’s home on January 9, 1987.

Appellant filed suit against defendants for defamation, alleging that the January 23 newspaper article was libelous and seeking actual and punitive damages.

On February 27, 1987, defendants filed a motion to dismiss the complaint for failure to state a claim or, alternatively, seeking summary judgment. After a hearing, the district court entered an order granting summary judgment. The order recited in part that the newspaper article which gave rise to this lawsuit was privileged under the fair and accurate report privilege, that the privilege was not abused, that appellant was a “limited public figure,” that defendants did not act with malice, that defendants did not know the content of the news article was false or did not negligently fail to recognize that the article was false, and that defendants were entitled to summary judgment as a matter of law.

I. FAIR AND ACCURATE REPORT PRIVILEGE

The news article which is the subject of this suit was written by Clausen using information obtained from the police arrest report, conversations wifh city police officials, information independently obtained by Clausen after inquiries posited to the city clerk, and information contained in the local telephone directory.

The first two paragraphs of the news article identified the person arrested as “James M. Furgason, 41, 1407 Rockwood, who owns the popular bar and package store, Furgi’s, 817 Scenic Drive * * * after allegedly being observed sniffing paint.” The headline together with the lead paragraph also identified the person arrested as a prominent local bar owner who served on the Mayor’s Committee.

Appellant argues that the district court erred in determining his complaint was not actionable based on a finding that the news article was privileged under the fair and accurate report privilege. Stover v. Journal Publishing Co., 105 N.M. 291, 731 P.2d 1335 (Ct.App.1985), cert. denied, 484 U.S. 897, 108 S.Ct. 230, 98 L.Ed.2d 189 (1987), reaffirmed the fair report privilege as a defense in an action for defamation. As observed in Stover,

The essence of the fair report privilege is that no liability will attach for the republication of the defamatory statements so long as the republication is a fair and accurate report of an official or public proceeding. The Restatement (Second) of Torts § 611 (1977) articulates the privilege as follows:

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

Id. at 294, 731 P.2d at 1338.

Determination of whether a privilege applies to material alleged to be defamatory is a question of law to be decided by the court. Coronado Credit Union v. KOAT Television, Inc., 99 N.M. 233, 656 P.2d 896 (Ct.App.1982).

The fair report privilege protects against liability even though the publisher may not believe the material reported. Id. However, the privilege may be abused where the published account is discolored or garbled from that of the proceedings which are reported, or where the publisher draws conclusions or adds comments or-insinuations of his own which are defamatory of the character of appellant. See Henderson v. Dreyfus, 26 N.M. 541, 191 P. 442 (1919); Stover v. Journal Pub. Co.; see also Moritz v. Kansas City Star Co., 364 Mo. 32, 258 S.W.2d 583 (1953); Haynik v. Zimlich, 30 Ohio Misc.2d 16, 508 N.E.2d 195 (1986). In order to qualify for the fair report privilege a newspaper is not required to reprint an official report verbatim; it may instead summarize or abridge its contents. Lavin v. New York News, Inc., 757 F.2d 1416 (3d Cir.1985); Appleby v. Dailey Hampshire Gazette, 395 Mass. 32, 478 N.E.2d 721 (1985).

In Bufalino v. Associated Press, 692 F.2d 266, 272 (2d Cir.1982), the court considered the breadth of the rule contained in Restatement (Second) of Torts Section 611 (1977), holding: “[ojnly reports of official statements or records made or released by a public agency are protected by the § 611 privilege. Statements made by lower-level employees that do not reflect official agency action cannot support the privilege.” (Emphasis in original.)

As observed in Restatement (Second) of Torts, supra, Section 611, comment h:

An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this Section.

In a defamation action the plaintiff bears the burden of proving abuse of a conditional privilege. Haynik v. Zimlich; Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406 (E.D.Pa.1978).

In the instant case, with the exception of the name of the person arrested, the headline and first two paragraphs of the January 23, 1987 news article alleged by appellant to be defamatory consisted of matters which did not appear in the arrest report prepared by the city police. Instead, the headline and two lead paragraphs contained information concerning the appellant, his occupation and official position, and erroneously identifying appellant to be the same individual as the person arrested and charged by the police with the commission of two criminal offenses. Specifically the headline and first two paragraphs of the article stated factually that the arrestee was a “prominent local bar owner” who “serves on the Mayor’s Committee for Driving While Intoxicated and Alcoholism” and that he was arrested on two criminal charges. The headline and article also stated as a fact that appellant, age “41,” “who owns the popular bar and package store, Furgi’s, 817 Scenic Drive, was arrested * * * after allegedly being observed sniffing paint.” The material added by Clausen did not appear in the arrest report. The additionally added facts which were not contained in the arrest report conclusively identified the person arrested as being the appellant. Because most of the material contained in the first two paragraphs of the article was not drawn from the arrest report, the additional material and conclusions drawn by defendants affirmatively identifying appellant as the same person arrested and charged, are outside the perimeters of the fair and accurate report privilege. See Restatement (Second) of Torts, supra, § 611, comment h. The remainder of the article, however, was either protected by the fair and accurate report privilege or is not challenged by appellant as being factually inaccurate or defamatory.¹

Defendants also assert that the material contained in the headline and first two paragraphs of the article were within the scope of the privilege because the information was drawn from facts provided to Clausen by city police officers and from employees in the office of the mayor. We disagree. Not all information released by city or state officials to the media falls within the ambit of the fair and accurate report privilege. See Bender v. City of Seattle, 99 Wash.2d 582, 664 P.2d 492 (1983) (en banc). See generally Annotation, Reliance on Facts Not Stated or Referred to in Publication, as Support for Defense of Fair Comment in Defamation Case, 90 A.L.R.2d 1279 (1963). See also Annotation, Defamation: Privilege Attaching To News Report of Criminal Activities Based on Information Supplied by Public Safety Officers—Modem Status, 47 A.L.R.4th 718 (1986). As observed in Bender,

Some courts have afforded police officers an absolute privilege as to statements or communications made in the performance of official duties. See, e.g., Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970); Catron v. Jasper, 303 Ky. 598, 198 S.W.2d 322 (1946). Most courts, however, hold that only a qualified privilege attaches. See, e.g., Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1961); Krebs v. McNeal, 222 Miss. 560, 76 So.2d 693 (1955); Mullens v. Davidson, 133 W.Va. 557, 57 S.E.2d 1, 13 A.L.R.2d 887 (1949). Statements of police officers in releasing information to the public and press serve the important functions of informing and educating the public about law enforcement practices. The right to inform the public, however, does not include a license to make gratuitous statements concerning the facts of a case or disparaging the character of other parties to an action.

Id. at 600-601, 664 P.2d at 504.

Except where a report of an arrest is privileged, as observed in the Annotation, Actionability of False Newspaper Report That Plaintiff Has Been Arrested, 93 A.L. R.3d 625, 626 (1979), newspaper reports which falsely state that the plaintiff has been arrested have generally been held by the courts to state a cause of action for libel because they tend to injure the reputation of the person who is the subject of the report, and tend to expose that person to disgrace, ridicule, or contempt. See Dillard v. Shattuck, 36 N.M. 202, 11 P.2d 543 (1932); see also Roscoe v. Schoolitz, 105 Ariz. 310, 464 P.2d 333 (1970); Walker v. Associated Press, 160 Colo. 361, 417 P.2d 486 (1966); Rimmer v. Chadron Printing Co., 156 Neb. 533, 56 N.W.2d 806 (1953); Luper v. Black Dispatch Pub. Co., 675 P.2d 1028 (Okla.Ct.App.1983); Auto West, Inc. v. Baggs, 678 P.2d 286 (Utah 1984).

Although the text of the article, excepting the two initial paragraphs, was drawn largely from information contained in the arrest report, the headline and two lead paragraphs consisted of information and conclusions obtained or reached by defendants extraneous to matters contained in the arrest report and did not consist of information in the form of a press release or other data generally disseminated to the public. Such material affirmatively indicated that appellant was in fact the same person arrested and charged with criminal conduct. We hold that, with the exception of the name of the individual arrested, the conclusionary material contained in the headline and two lead paragraphs of the article indicating that appellant was in fact the same person as the individual arrested, was not within the scope of the fair and accurate report privilege.

II. STATUS OF APPELLANT

Our determination that the headline and portions of the article in question were outside the fair and accurate report privilege is not dispositive of whether the district court erred in granting defendants’ motion for summary judgment. Defendants argue that even if a portion of the article falls outside the scope of the privilege, appellant is a limited public figure necessitating proof that the content of the article not covered by the privilege was false and that defendants published the material in question with actual malice. Defendants assert that their publication of the material alleged by appellant to be defamatory was the result of a mistaken identification and a misrepresentation by Erven. Defendants further contend that appellant has failed to come forward with any evidence in opposition to their motion for summary judgment indicating that a material factual issue exists as to whether they published such article maliciously.

The fact that a writer or publisher mistakenly or incorrectly identifies a party in published material is generally not a defense to an action for defamation. See Mathis v. Philadelphia Newspapers, Inc.; Washington Post Co. v. Kennedy, 3 F.2d 207 (D.C.Cir.1925); Hatfield v. Gazette Printing Co., 103 Kan. 593, 175 P. 382 (1918). See generally Annotation, Libel and Slander: Sufficiency of Identification of Plaintiff by Matter Complained of as Defamatory, 100 A.L.R.2d 218 (1965). The focus instead turns in part on whether the published material was privileged, whether the material was false, whether its publication injured appellant, and the status of appellant. See Kutz v. Independent Pub. Co., 97 N.M. 243, 638 P.2d 1088 (Ct. App.1981). See also Restatement (Second) of Torts § 580(A) & (B) (1977); Annotation, Actionability of False Newspaper Report That Plaintiff Has Been Arrested, supra.

In Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462 (1982), our supreme court articulated the standard of proof required to establish a defamation action wherein the plaintiff is a public official or public figure. Determination of whether or not a person is a public figure is relevant in determining the required standard of proof, and the status of an individual as either a public figure, public official, or private person constitutes a question of law to be determined by the court. Marchiondo v. Brown. See also Goodrich v. Gannett Co., 500 F.Supp. 125 (D.Del.1980); Coronado Credit Union v. KOAT Television, Inc.

Following Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the court in Marchiondo held that where a plaintiff in a defamation action is either a public official or a public figure, or where an allegedly defamatory statement involved a matter of public concern, it is “incumbent upon the plaintiff to prove that the defendant acted with actual malice (with knowledge of falsity or in reckless disregard of the truth).” Id. 98 N.M. at 402, 649 P.2d at 470. Reckless disregard of the truth is not measured by whether a reasonably prudent person would have published or would have investigated before publishing; there must be sufficient evidence to permit the conclusion that defendant in fact entertained serious doubts as to the truth of the communication. SCRA 1986, Civ. UJI 13-1009. In a defamation action where malice is required to be proven, malice must be established by clear and convincing evidence. Sands v. American G.I. Forum of New Mexico, Inc., 97 N.M. 625, 642 P.2d 611 (Ct.App.1982); UJI Civ. 13-1009. See also Annotation Libel and Slander: What Constitutes Actual Malice Within Federal Constitutional Rule Requiring Public Officials and Public Figures to Show Actual Malice, 20 A.L.R.3d 998 (1968).

Where plaintiff in a defamation action is neither a public figure nor a public official, he need only prove that the material published by defendants was a defamatory statement of fact and false, the information was not privileged, and that defendants negligently failed to recognize that the statement was false and proximately injured the plaintiff. See SCRA 1986, Civ.UJI 13-1002.

As shown by appellant’s affidavit filed in support of his motion for summary judgment, he was named by the mayor on April 8, 1986, to serve on the Mayor’s Committee. Appellant contends that his appointment to the committee did not result in his attaining the status of a public official or public figure and that, at the time the article in question was published, no meetings of the committee had ever been held, he was never given an oath, he never communicated with the mayor or other committee members concerning the committee, and that to his knowledge the committee was “otherwise non-existent until approximately one month ago [April 19, 1988].”

The terms “public figures” and “public officials” have not been precisely defined. In Gertz the Court stated that the standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), which bars media liability for defamation of a public official absent malice, applies to both public officials and public figures. The Court then characterized New York Times as having defined public figures accorded constitutional protections as those “who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures.” Id. 418 U.S. at 342, 94 S.Ct. at 3008. Gertz observes that “public figures” for the most part consist of two types: those who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes, and [limited public figures, consisting of] those who have thrust themselves to the forefront of particular public controversy in order to influence the resolution of the issues involved. See also Restatement (Second) of Torts, supra, § 580(A), comment c; Antwerp Diamond Exch. of Am., Inc. v. Better Business Bureau of Maricopa County, Inc., 130 Ariz. 523, 637 P.2d 733 (1981).

Was appellant a limited public figure or public official by virtue of his ownership of a local business or his appointment to the Mayor’s Committee? We conclude that he was not.

In Gertz the Court stated the basis for determining who constitutes a “public figure” or “limited public figure” as follows:

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

* * * Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.

Id. 418 U.S. at 351-352, 94 S.Ct. at 3012-13. See also Bell v. Associated Press, 584 F.Supp. 128 (D.D.C.1984). A person is not considered a “public figure” solely because he has been charged as a criminal defendant, Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979), has sought relief in the courts, Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), or is involved in a controversy reported by the media. Courts which have considered this issue have also recognized that an individual’s prominence as a businessman, without more, does not relegate such person to the status of a public figure. See Wilson v. Scripps-Howard Broadcasting Co., 642 F.2d 371 (6th Cir.1981); Rancho La Costa, Inc. v. Superior Court, 106 Cal.App.3d 646, 165 Cal.Rptr. 347 (1980).

Gertz sets out the test for determining whether an individual is a “public figure.” The test includes determination of whether a public controversy exists and, if so, the nature and extent of the individual’s participation in that controversy. Whether the nature and extent of a person’s participation in a controversy subjects him to the status of a public figure is gauged by ascertaining the extent to which participation in the controversy is voluntary, the extent to which the individual has access to the channels of effective communication, and the prominence of his role in the controversy. See also Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

In determining whether appellant is a limited public figure for defamation purposes, examination focuses on whether the defamatory material concerns a public controversy or topic of legitimate public concern, together with the nature and extent of appellant’s participation in the controversy. Vassallo v. Bell, 221 N.J.Super. 347, 534 A.2d 724 (App.Div.1987).

Tested by the criteria above, we conclude that the trial court erred in determining that appellant was a “public figure” or “limited public figure.” Here, neither the fact that appellant’s home was burglarized, the fact that appellant had been appointed to the Mayor’s Committee, the fact that he was the owner of a liquor establishment, nor the fact that an individual was arrested who claimed to be him, elevated him to the status of a “public figure” or “limited public figure.” Similarly, we determine that appellant was not a “public official” as defined by Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).

In Rosenblatt the United States Supreme Court discussed the parameters of who constitutes a public.official, observing,

It is clear * * * that the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

* * * Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply. [Footnotes omitted.]

Id. at 85-86, 86 S.Ct. at 675-76.

As discussed in Rosenblatt, public officials generally encompass those government employees who have, or appear to the public to possess substantial responsibility for or control over the conduct of governmental affairs. Here, there was no showing that members of the Mayor’s Committee had any official status. Under the above criteria, appellant cannot be deemed a “public official.”

In order to relegate an individual to the status of a “public official” within the context of Rosenblatt, New York Times, and Gertz, the individual’s position must be one which elevates him beyond that of a mere private individual. The Court in Gertz discussed this requirement, noting,

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater. [Footnote omitted.]

Id. at 344, 94 S.Ct. at 3009.

Defendants’ answer brief points out that this is a case of mistaken identity and that there is no New Mexico precedent involving this kind of factual situation. Defendants urge that Bell v. Associated Press, 584 F.Supp. 128 (D.D.C.1984), be applied herein. In Bell, plaintiff, a professional football player and member of the 1979 National Football League Champion Pittsburg Steelers, was reported in a news story as “being sought on a bench warrant for alleged lewdness.” In fact the person subsequently arrested was not the plaintiff Theo Bell, but another individual. The court dismissed plaintiff’s complaint, finding, among other things, that plaintiff was a “public figure” and could not establish that defendant acted with malice in publishing this report. The instant case differs from Bell in that appellant is a private person and not a public figure.

Under UJI Civ. 13-1009, in order to support a claim of defamation, appellant must prove that defendants negligently published the communication and:

The defendants] * * * negligently failed to check on the truth or falsity of the communication prior to publication.

The term “negligent” may relate either to an act or a failure to act.

An act, to be “negligent,” must be one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to the reputation of another and which such a person, in the exercise of ordinary care, would not do.

A motion for summary judgment in a defamation action necessarily involves determination of the substantive evidentiary standard of proof that would apply at a trial on the merits. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Applying the above authorities to the record herein, we determine that appellant at the time of the publication in issue was not a limited public figure nor a public official. Thus, for purposes of determining the standard of proof required to establish appellant’s claim of defamation and the ruling on defendants’ motion for summary judgment the factual inquiry turns upon the issue of whether defendants negligently published the article in question. See UJI Civ. 13-1003.

III. PROPRIETY OF SUMMARY JUDGMENT

Based upon our determination as a matter of law that, because appellant was not a public figure, a limited public figure, or a public official, the constitutional standard of proof of actual malice is not applicable to the publication in issue. See Antwerp Diamond Exch. of Am., Inc. v. Better Business Bureau of Maricopa County, Inc. Instead, the standard of proof required of appellant is that of negligence. UJI Civ. 13-1009. See generally Annotation, State Constitutional Protection of Allegedly Defamatory Statements Regarding Private Individual, 33 A.L.R.4th 212 (1984).

Defendants do not dispute that the article reporting the fact of appellant’s arrest was erroneous. Defendants do deny that they acted negligently.

Questions of negligence are generally issues of fact for the fact finder. Roscoe v. U.S. Life Title Ins. Co., 105 N.M. 589, 734 P.2d 1272 (1987); Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728 (1984). In Mahona-Jojanto, Inc., N.S.L. v. Bank of New Mexico, 79 N.M. 293, 442 P.2d 783 (1968), the supreme court succinctly stated the rules applicable to motions for summary judgment in defamation actions, observing that:

all doubts as to the existence of a genuine issue of fact must be resolved against the movant, and * * * affidavits and depositions on file must be appraised in the aspect most favorable to the respondent. Also, all permissible inferences favorable to the respondent from the facts established must be considered in determining whether an issue of fact requiring trial exists.

Moreover, where reasonable minds may differ on the issue of whether defendants were negligent summary judgment is not proper and the matter must be resolved by the finder of fact. See Trujillo v. Treat, 107 N.M. 58, 752 P.2d 250 (Ct.App.1988); see also Mathis v. Philadelphia Newspapers, Inc.

Summary judgment being an extreme remedy, is to be employed with caution and cannot be substituted for trial on the merits where issues of material fact are found to exist. Jelso v. World Balloon Corp., 97 N.M. 164, 637 P.2d 846 (Ct.App.1981); Mahona-Jojanto, Inc., N.S.L. v. Bank of New Mexico. Similarly, where affidavits or depositions are used to resist summary judgment and statements in the deposition give rise to conflicting inferences concerning factual issues, summary judgment should not be granted. Mahona-Jojanto, Inc., N.S.L. v. Bank of New Mexico. See also National Excess Ins. Co. v. Bingham, 106 N.M. 325, 742 P.2d 537 (Ct.App.1987).

Here, appellant in response to the motion for summary judgment, relied in part upon the depositions of the defendant Clausen. Clausen testified, among other things, that at the time he wrote the article in question he had a copy of the Crime Stoppers’ report detailing facts concerning the prior burglary of appellant’s home. The Crime Stoppers report also indicated that among the items taken from appellant’s home were a pistol and his wallet. The police arrest report indicated that the person arrested had in his possession a pistol similar to that taken from appellant’s home in the prior burglary. Clausen additionally stated in his deposition that when he read the arrest report he “noticed that [the age of the individual arrested], if you use date of birth, would be 41, but the officer had written 32 in the space that says what his age actually was.” Clausen indicated he concluded this discrepancy was “probably” merely a math error. Clausen also testified that at the time he wrote the initial article he did “not have knowledge that [the person who was arrested] ever represented himself as being the owner of Furgi’s.”

A review of the record before us indicates that appellant’s response to the motion for summary judgment reveals the existence of conflicting material issues of fact concerning whether defendants negligently reported that appellant was in fact the same person arrested for substance abuse and negligent use of a deadly weapon, so as to preclude summary judgment. In considering a motion for summary judgment, the court must view all matters presented and considered by it in a light most favorable to the party opposing summary judgment so as to support the right to a trial on the issues. Gonzalez v. Gonzalez, 103 N.M. 157, 703 P.2d 934 (Ct.App.1985). Summary judgment is not appropriate to determine an issue of fact, but to determine if one exists. Pharmaseal Laboratories, Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589 (1977). The fact that contradictory inferences may be drawn from the testimony of Clausen concerning whether defendants negligently identified appellant as the same person who was arrested and criminally charged by the police renders summary judgment improper. See Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 738 P.2d 129 (Ct.App.1987). The issue of defendants alleged negligence cannot properly be resolved as a matter of law but is a matter to be determined by the trier of fact.

The order of summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

IT IS SO ORDERED.

APODACA, J., concurs. HARTZ, J., dissents.

1 . The amended complaint of appellant only set out verbatim the headline and content of the first two paragraphs of the article.