Karen K. Osowski, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1105

Karen K. Osowski,
Respondent,

vs.

Edie Harer,
Appellant.

Filed March 6, 2023
Affirmed
Slieter, Judge

Cook County District Court
File No. 16-CV-20-106

Tyson Smith, Richard T. Furlong, III, Smith Law, PLLC , Grand Marais, Minnesota (for
respondent)

Keith D. Johnson, Law Office of Keith D. Johnson, P.L.L.C., Roseville, Minnesota (for
appellant)

Considered and decided by Frisch, Presiding Judge; Slieter, Judge; and Smith, John,
Judge.
∗
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant seeks to overturn a jury verdict by challenging (1) the district court’s
denial of judgment as a matter of law based on qualified privilege and (2) the jury’s award

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
of reputation damages. Because the jury found that appellant’s defamatory statements were
made with actual malice and a defendant does not have to prove reputation damages in a
defamation per se claim, we affirm.
FACTS
This defamation case, commenced by respondent Karen K. Osowski, arises from
statements appellant Edie Harer made to law enforcement several months after the death
of Harer’s father (decedent). Harer made statements which suggested that Osowski—
Harer’s stepmother and decedent’s second wife—had killed decedent.
Osowski married decedent in July 2006. Harer did not attend the wedding. In 2013,
decedent discovered a cloud on the title to his property and sought signatures on a
corrective deed to remedy the problem. Harer and her siblings refused to execute the
corrective deed and , as a result, decedent cleared title to his home through a quiet-title
action. This led decedent to “cut off all communications with his children” and sign a will
that disinherited his children.
Despite their disinheritance, Osowski maintained contact with decedent’s children.
This included an email in early September 2018 informing Harer that decedent’s health
was “getting worse by the day” and she was scheduling him for cancer testing. In
mid-October, Osowski informed Harer that decedent “had been tested head to toe and all
is good.”
On January 18, 2019, Osowski called 911 to report finding decedent dead in their
home. A Cook County Sheriff’s deputy responded to the call and investigated the death.
Based on the deputy’s description, the medical examiner declined to complete an autopsy
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because the death appeared to be from natural causes, and the d eputy agreed that nothing
“looked suspicious.” Six days after her father’s death, Harer called the medical examiner,
asked why an autopsy had not been performed, and asked for one to be completed. It was
explained to her that an autopsy would be difficult and likely uninformative at that point
because the body had been embalmed.
In February 2019, Osowski’s daughter informed Harer that decedent had updated
his will in 2014. The updated will left decedent’s estate to Osowski. Approximately two
weeks later, an attorney Osowski retained to represent her in an anticipated probate
proceeding informed Harer that he was in the process of preparing a petition to probate the
2014 will. The next day, Harer petitioned to probate decedent’s 1994 will, which included
Harer and her siblings as devisees. Osowski objected to probate of the 1994 will and
counterpetitioned for probate of the 2014 will.
On June 4, 2019, one week before a scheduled probate hearing and after the probate
court denied her request for a continuance, Harer contacted the Cook County Sheriff’s
Office asking it to reopen the investigation into her father’s death. The same deputy who
initially investigated the death was assigned to the case. Harer also asked the sheriff to
seek a delay in the probate proceeding “due to an investigation into my father’s death.”
The sheriff declined.
Harer obtained a transcript of the 911 call Osowski placed after discovering
decedent’s body. In the call, the 911 operator asked if the death was “expected,” and
Osowski replied that she “contemplated it because of his health.”
4
On June 6, 2019, the deputy called Harer and conducted a recorded interview. In
this conversation, the deputy asked Harer to explain “why you think that [Osowski]
murdered your dad.” Harer responded, “because . . . she said that he had an expected
death” in the 911 call, but Harer believed decedent had been in good health. Harer further
stated that Osowski “makes her own pills, so she has . . . ways that she could have easily
put something in something” and suggested that someone could “put anti-freeze in
something somebody drinks . . . and somebody . . . won’t even know you put it in.”
During the summer of 2019, Harer objected to Osowski’s counterpetition to probate
the 2014 will and moved multiple times to continue hearings, citing the reopened
investigation. In September 2019, Harer voluntarily dismissed her petition for probate of
the 1994 will and objection to probate of the 2014 will. The district court subsequently
probated the 2014 will.
In October 2019, the deputy issued a supplement to his initial investigation into
decedent’s death. He concluded that there was no “foul play or [anything] suspicious in
the death of [decedent].”
In May 2020, Osowski sued Harer for defamation, alleging that Harer accused her
of murder in statements to law enforcement and in public court documents, and these
statements were defamatory per se.
The district court conducted a four- day jury trial, during which it denied Harer’s
motion for judgment as a matter of law on qualified privilege. The jury was instructed as
to the definition of qualified privilege and common-law malice.
5
The jury found that Harer made defamatory statements with malice and awarded
Osowski compensatory damages of $20,000 for reputational harm, $100,000 for mental
distress, $20,000 for past embarrassment, $20,000 for past humiliation, and $1,000 for
stipulated health-care expenses. Harer did not renew her motion for judgment as a matter
of law or move for a new trial. See Minn. R. Civ. P. 50.02. Harer appeals.
DECISION
To establish common-law defamation, the plaintiff “must prove that the defendant
made: (a) a false and defamatory statement about the plaintiff; (b) in an unprivileged
publication to a third party; (c) that harmed the plaintiff’s reputation in the community.”
Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 873 (Minn. 2019) (quotation omitted).
Harer argues that the district court erred by allowing the jury to decide whether her
communication was privileged and that Osowski did not prove reputation damages.
I. The district court did not err in denying judgment as a matter of law on
qualified privilege.

“We review de novo a district court’s decision to deny a motion for judgment as a
matter of law, applying the same standard used by the district court and viewing the
evidence in the light most favorable to [the nonmoving party].” Christie v. Est. of Christie,
911 N.W.2d 833, 838 n.5 (Minn. 2018) (quotation omitted); see also Kedrowski v.
Lycoming Engines, 933 N.W.2d 45, 54-55 (Minn. 2019). The district court may grant a
motion for judgment as a matter of law if “a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue.” Minn. R. Civ. P. 50.01(a). Reviewing courts make “an independent
6
determination of whether there [was] sufficient evidence to present an issue of fact for the
jury.” Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811,
816 (Minn. 2006).
“[S]tatements made in particular contexts or on certain occasions should be
encouraged despite the risk that the statements might be defamatory.” Minke v. City of
Minneapolis, 845 N.W.2d 179, 182 (Minn. 2014) (quotation omitted). “One who makes a
defamatory statement will not be held liable if the statement is published under
circumstances that make it qualifiedly privileged and if the privilege is not abused.” Bol
v. Cole, 561 N.W.2d 143, 149 (Minn. 1997). To qualify for the privilege, a statement “must
be made upon a proper occasion, from a proper motive, and must be based upon reasonable
or probable cause.” Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256-57 (Minn.
1980) (quoting Hebner v. Great N. Ry. Co., 80 N.W. 1128, 1129 (Minn. 1899)). One of
the proper occasions covered by qualified privilege is “a good faith report of suspected
criminal activity to law enforcement officials.” Smits v. Wal-Mart Stores, Inc., 525 N.W.2d
554, 557 (Minn. App. 1994), rev. denied (Minn. Feb. 14, 1995). “A qualified privilege is
abused and therefore lost if the plaintiff demonstrates that the defendant acted with actual
malice.”1 Lewis v. Equitable Life Assurance Soc’y of the U.S., 389 N.W.2d 876, 890
(Minn. 1986).

1 The Minnesota Supreme Court has noted that the United States Supreme Court “has
generated some confusion in the law of defamation” by using the term “actual malice” to
describe the standard it articulated in New York Times v. Sullivan, 376 U.S. 254, 279-80
(1964), for media defendants. Moreno v. Crookston Times Printing Co., 610 N.W.2d 321,
329 (Minn. 2000). The Sullivan standard “is proper only when a media defendant is
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“While the initial determination of whether a communication is privileged is a
question of law for the court to decide, the question of whether the privilege was abused is
a jury question.” Id. If the jury finds that the privilege was abused because the statements
were made with actual malice, any error in submitting the question of privilege to the jury
is harmless. Id. But if “the evidence permits of more than one conclusion,” the existence
of reasonable or probable grounds for making the defamatory statement becomes a
question of fact for the jury. Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 125
(Minn. App. 1992) (quotation omitted), rev. denied (Minn. Apr. 29, 1992).
The district court denied Harer judgment as a matter of law for two reasons. First,
it determined there were factual questions regarding the existence of reasonable or probable
cause for the statements. Second, the district court determined that whether any privilege
had been abused because Harer made the statements with actual malice was a question for
the jury. Harer argues that the district court erred because “the facts are undisputed that
Harer had a reasonable basis for making her statements to law enforcement [and] . . . there
was no evidence of actual malice.”
Because the jury’s finding of actual malice results in a loss of any privilege Harer
may have had, we need not consider whether there was a factual question regarding the
existence of reasonable or probable cause for her statements, and we address only her
argument that “there was no evidence of actual malice.” See Lewis, 389 N.W.2d at 890.

involved,” Stuempges, 297 N.W.2d at 258, and Harer does not claim to be a media
defendant. Therefore, we apply the common-law standard.
8
Common-law actual malice requires the plaintiff to prove “that the defendant made
the statement from ill will and improper motives, or causelessly and wantonly for the
purpose of injuring the plaintiff.” Stuempges, 297 N.W.2d at 257 (quotation omitted).
The jury was presented evidence that Harer had been estranged from her father for
several years, partly due to her refusal to execute the corrective deed as he requested. Harer
inquired about an autopsy a few days after her father’s death, but she proceeded with his
burial and did not express any suspicions about his death until over four months later, when
she contacted the sheriff’s office. When she spoke with the deputy, she was in the midst
of a probate dispute with Osowski, whom she suggested may have killed decedent. Harer
cited the reopened investigation in her objection to probate of decedent’s 2014 will and in
multiple requests to continue hearings, suggesting that Osowski might be barred from
benefiting from decedent’s estate “pending the conclusion of the criminal investigation.”
These facts, viewed in the light most favorable to Osowski, present a legally
sufficient evidentiary basis for the jury to conclude that Harer made her statements with ill
will or an improper motive. See Christie, 911 N.W.2d at 838 n.5; see also Jerry’s Enters.,
711 N.W.2d at 816. Therefore, the district court did not err in denying judgment as a matter
of law on qualified immunity.
II. Osowski was not required to present evidence of reputation damages.
Harer argues that Osowski was not entitled to recover reputation damages because
“[t]here simply was no evidence of reputational damages asserted or proven by Osowski.”
Generally, to recover reputation damages, a plaintiff must prove reputational harm
because defamation is based on injury to one’s reputation. Maethner, 929 N.W.2d at 874.
9
But “defamation per se is actionable without any proof of actual damages” because such
statements “are virtually certain to cause serious injury to reputation, and . . . this kind of
injury is extremely difficult to prove.” Id. at 874, 875 (quotations omitted). A statement
accusing another of committing a crime is defamatory per se. See Advanced Training Sys.,
Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 9 n.1 (Minn. 1984); see also Anderson v.
Kammeier, 262 N.W.2d 366, 371-72 (Minn. 1977).
But, to avoid offending the First Amendment, “a private plaintiff may not recover
presumed damages for defamatory statements involving a matter of public concern unless
the plaintiff can establish actual malice.” Maethner, 929 N.W.2d at 878-79. Thus, when
determining the availability of presumed damages, “the dispositive inquiry is whether the
matter at issue is one of public concern.” Id. at 877. We review de novo whether a
statement involves a matter of public concern. Johnson v. Freborg, 978 N.W.2d 911, 919
(Minn. App. 2022), rev. granted (Minn. Oct. 18, 2022).
“Speech deals with matters of public concern when it can be fairly considered as
relating to any matter of political, social, or other concern to the community, or when it is
a subject of legitimate news interest; that is, a subject of general interest and of value and
concern to the public.” Id. (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). To
determine whether statements re gard a matter of public concern, courts consider the
“content, form, and context of that speech.” Id. (quoting Snyder, 562 U.S. at 453); see also
Maethner, 929 N.W.2d at 880 (same). “No single factor is dispositive; rather, courts should
evaluate all the circumstances of the speech, including what was said, where it was said,
and how it was said.” Maethner, 929 N.W.2d at 881 (quotations omitted). “[T]he
10
determination of whether speech involves a matter of public or private concern is based on
a totality of the circumstances.” Id.
Harer’s statements led the deputy to believe she was accusing Osowski of murder.
Harer stated that she suspected Osowski because Osowski told the 911 operator that she
expected the death, but Harer believed decedent to have been in good health. Harer also
suggested that antifreeze could have been used to kill decede nt. During trial, Harer
admitted that the 911 operator asked if the death was expected, and Osowski simply
responded in the affirmative.
These statements were made during a private telephone interview, which the record
indicates Harer intended to be private because she asked the sheriff if she should inform
the probate court “that there has been a criminal investigation started” for fear that it would
“tip off” Osowski. Furthermore, Osowski and Harer’s prior relationship and the disputed
probate proceeding, which Harer attempted to stall based on the investigation her own
statements reopened, suggest that the statements were “intended to mask an attack . . . over
a private matter.” Snyder, 562 U.S. at 455.
Based on the totality of the circumstances, Harer’s statements dealt not with a matter
of public concern, but with a private conflict between her and Osowski. See Maethner,
929 N.W.2d at 881. Thus, Osowski is entitled to presumed reputation damages, and it was
not error for the jury to award her reputation damages.
Affirmed.