Judge tosses libel suit against Aspen Skiing Co’s Mike Kaplan
The Aspen Times
A libel lawsuit against Aspen Skiing Co. President and CEO Mike Kaplan for statements he made about a former ski instructor was dismissed in a summary judgment by a Pitkin County judge Monday.
Judge Daniel Petre ruled that Lee Mulcahy failed to show that two of three comments made by Kaplan in an opinion piece that ran in an Aspen newspaper were false. A third comment made by Kaplan could be challenged on factuality, the judge ruled, but there was no evidence Kaplan made the comment with “actual malice.”
Petre declined to rule on Mulcahy’s central assertion — that Skico used the complaints against him as an excuse to fire him for fighting for higher wages for Skico employees.
“Regardless of the truth of that assertion, it has no bearing on whether Kaplan made the statements in the editorial with actual malice as defined by relevant case law,” Petre wrote. “Actual malice within the context of a libel claim requires convincing proof that Kaplan either knew that the complaints against Mulcahy were false, or that he had a reckless disregard for the truth. Mulcahy has produced no evidence establishing that this actually occurred.”
Skico released a statement that simply said, “We believe the judge’s decision was the correct one.”
Mulcahy said “congratulations are in order” to Skico and Kaplan.
“I ain’t bitter,” Mulcahy said in an email to The Aspen Times. “I thank God for my blessings every day. Skico won this gunfight. Congrats. August 19th is the next shootout.”
Mulcahy has a second lawsuit against Skico because it has banned him from entering its property and public lands that it leases for its four ski areas. Mulcahy wants the ban lifted, and he wants to be awarded $1 in punitive damages. That case is set for a trial in August.
In the libel suit, Mulcahy lost a major decision when Petre determined that Mulcahy is a “limited public figure” because he was involved in a matter of public concern and that Mulcahy’s involvement in the issue “invites scrutiny.” That made Mulcahy more susceptible to public observations in the eyes of the law.
“Mulcahy maintains that he is not a public figure, because according to Mulcahy, he was dragged into a controversy created by Kaplan, and that it was Kaplan who released private information concerning Mulcahy’s personnel file,” the judge wrote. “The court rejects this argument, because the record clearly shows that Mulcahy injected himself into the public arena and made every effort to turn his conflict with ASC into a public spectacle.”
Mulcahy became one of Skico’s best ski instructors during his employment from 1997 until his relations with management soured in the late 2000s. He was invited into an elite group of instructors called the Diamond Pros in 2005.
Mulcahy criticized Skico in a May 2010 letter to the editor about the firing of musician Dan Sheridan as an entertainer in a Skico restaurant over the lyrics of a song.
In August 2010, Mulcahy circulated a letter among the other Diamond Pros urging them to form a union. He was removed from the elite group a short time later and filed a complaint with the National Labor Relations Board. Mulcahy regularly talked to reporters about his ongoing disputes with Skico.
Mulcahy was fired in January 2011. Kaplan submitted an opinion piece to The Aspen Times the following month outlining three breaches of conduct the company claimed were committed by Mulcahy that led to his firing. Kaplan wrote that Mulcahy harassed another Skico employee to the point in 2006 where the Snowmass Village Police Department was called and disciplinary action was taken against Mulcahy.
Kaplan said that in February 2010, Mulcahy took a class of girls from Aspen Valley Ski and Snowboard Club out of bounds at Snowmass and allegedly used abusive language with them.
And finally, Kaplan contended that Mulcahy charged a private lesson to a person’s credit card for a lesson without the cardholder’s permission in April 2010.
Mulcahy filed a lawsuit contending that Kaplan libeled him. He claimed in his litigation that the Skico employee admitted he encouraged the harassment and that no charges were filed against Mulcahy. Petre found “the gist of the statement” by Kaplan was substantially true: Mulcahy harassed another employee, and he was disciplined.
Regarding Kaplan’s statement that Mulcahy took the class of girls out of bounds and used abusive language, Mulcahy said he followed procedure and signed out with the Snowmass Ski Patrol. Skico mysteriously lost those records, he said.
Mulcahy contended that Skico made a big deal out of the incident because he and his mother had just written letters to the editors of the Aspen newspapers for firing Sheridan.
The judge ruled that it couldn’t be determined whether Mulcahy used abusive language with the girls. He found Kaplan’s statement was substantially true because Mulcahy was disciplined for “improperly” taking the girls out of bounds.
Petre found Kaplan’s statement was misleading regarding a credit-card transaction for a lesson. The judge determined that a student canceled a lesson at the last minute and was told by Mulcahy that she would still be charged. She did not object, and her authorization email was forwarded to the Skico private-lesson desk to complete the transaction. The student’s boyfriend later complained that the credit-card charge was unauthorized.
Petre said Kaplan’s portrayal of the incident in the opinion piece could lead a reasonable person to infer that Mulcahy knowingly charged the student’s credit card without authorization and that he acted with dishonesty and deceit. Petre wrote in his decision that there is a “genuine issue whether the third statement at issue was false.”
“Nevertheless, Mulcahy has, again, not produced sufficient evidence to show that Kaplan made the statement with actual malice,” the judge decided.
“Actual malice within the context of a libel claim requires convincing proof that Kaplan either knew that the complaints against Mulcahy were false, or that he had a reckless disregard for the truth,” Petre wrote. “Mulcahy has produced no evidence establishing that this actually occurred.”
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