United States District Court, W.D. Missouri, Southern Division
ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR
PHILLIPS, CHIEF JUDGE
alleges that Defendants published false and defamatory
statements on two websites and in an interview with a
newspaper reporter. It asserts claims for libel, negligence,
and tortious interference with business expectancy. Pending
is Defendants' Motion for Summary Judgment, (Doc. 149),
which is GRANTED.
Court will set forth material facts that are uncontroverted
or, where controverted, in the light most favorable to
Plaintiff. The Court will not set forth immaterial facts.
Citations to the Record will not be provided for facts agreed
to by the parties. Citations also will not be supplied where
(1) only an inconsequential component of a fact has been
controverted, (2) when an obvious typographical error is the
sole basis for the disagreement, or (3) an objection is based
on a party repeating a fact that was established elsewhere in
another statement without re-establishing that fact.
suit has its genesis in a mediocre customer review. Plaintiff
is an entertainment venue in Branson, Missouri. Patrons pay
fees to play miniature golf, play arcade games, and
participate in other interactive experiences. Darrell Henley
and Emma Hamilton are two of Plaintiff's three managing
Fall of 2017, Plaintiff started offering a “tour”
that has been referred to as a “scenic farm tour,
” but Henley testified that it did not have a specific
name. (Doc. 150-3, p. 55 (Henley Dep., p. 54).) This tour lasted
eighty to ninety minutes. The trucks used to carry guests on
the tour were referred to as “safari trucks.”
Plaintiff was working on eventually unveiling a
“Bigfoot Discovery Expedition Tour” bearing that
name. The Bigfoot Discovery Expedition Tour was not available
until June 2018 (after the time relevant to this suit), but
promotional material about it existed at the time relevant to
this suit, including on Plaintiff's website. The
promotional material did not indicate that the “Bigfoot
Discovery Expedition Tour” was different from the
unnamed tour that was offered starting in the Fall of 2017.
(Doc. 150-3, pp. 55-58 (Henley Dep., 54-57); Doc. 150-8, p.
103 (Hamilton Dep., p. 102).) Once it opened, the Bigfoot
Discovery Expedition Tour traveled the same route as the
unnamed tour and cost the same price.
is a member of the Heartland Highland Cattle Association,
(“HHCA”), an educational association that
promotes and educates the public about Highland cattle.
HHCA's members are, generally, farmers that farm and
raise Highland cattle. HHCA was scheduled to have a meeting
or convention in Branson in March 2018. In advance, in
December 2017, Gloria Asmussen of the HHCA contacted Henley
about hosting members of the HHCA for the
“safari” that Plaintiff was offering at the time
and to find out what price would be charged. Henley responded
by stating that if everyone went as a group he could agree to
charge $10 a person if everyone agreed to tip the driver an
additional couple of dollars, and if this was acceptable he
would put Asmussen in touch with Hamilton. Asmussen responded
to confirm the $10/person charge and to determine an
appropriate tip because HHCA intended to cover it. Henley
responded via email, with a copy to Hamilton, saying that
$10/person and a tip of $2/person would be agreeable.
January 2018, Asmussen emailed Hamilton to discuss how to
promote the tour to HHCA's members. Asmussen indicated
that she was “going to promote it as ‘Bigfoot
Safari Discovery Tour.['] You will be driven through
Bigfoo[t] farms, a working Scottish Highland Cattle Farm.
Experience authentic unspoiled Ozarks wilderness.”
(Doc. 150-4, p. 3.) Hamilton approved this description.
Later, when asked who the checks should be made out to,
Hamilton said that they should be written to “Bigfoot
on the Strip.”
Randy Winchester paid HHCA forty dollars for four tickets
for himself, his wife, his daughter Emily, and Emily's
fiancé. The tip for the drivers was paid by HHCA, and
there is no evidence that Defendants knew the amount of the
tip. Altogether, seventy-three HHCA members went on the tour.
Before departing, Hamilton met with the HHCA members
“to tell them what they were going to be doing that
day, and how it was different from what the Bigfoot Discovery
Expedition was.” (Doc. 150-8, p. 133 (Hamilton Dep., p.
132).) Those differences consisted of: (1) a different time
of day for the tour than normal, (2) three trucks (instead of
the typical one truck) would take tour members, and (3) the
tour would spend more time at the cattle area than the normal
ten minutes. (Doc. 150-8, pp. 126-29, 131 (Hamilton Dep., pp.
125-28, 130).) However, Hamilton did not go on the tour with
HHCA and has no personal knowledge as to what happened on the
tour. She testified that one of the drivers told her
“they spent longer than normal with the cattle”
but even that driver does not remember how long was spent
with the cows. (Doc. 150-8, pp. 128-30 (Hamilton Dep., pp.
127-29).) Regardless, these were the only differences that
Hamilton related (and that apparently existed), (Doc. 150-8,
p. 133 (Hamilton Dep., p. 132)); the tour traveled the same
route as the regularly-offered tour and the drivers related
Bigfoot legends to the HHCA members.
March 4, 2018 - after the tour - Randy, Emily, or both
drafted and posted the following review on Plaintiff's
page on the internet review site TripAdvisor.com:
We did the Bigfoot Safari tour as part of a large group. The
$10 price tag is about right for what we got. Basically a
tour through some pretty rugged country on some pretty narrow
roads. They promote the fact they have the largest herd of
Highland cows in the Midwest. You spend about 5-10 minutes
feeding them range cubes at the beginning of the tour, and
see maybe 10 of the cows. Then its off into the hills you go
with a guide telling some pretty fanciful tales along the
way. All in all a decent experience but had we paid more than
the $10 I would have been disappointed.
(Doc. 65-1.) On a scale of one to five, the review rated the
experience a three. The review indicates that it was made by
investigated to determine who left the review, primarily by
reviewing HHCA's membership list for a person with the
name of Randy and a last name that began with the letter
“W;” in this way, Henley found the HHCA listing
for “Randy or Emily Winchester” of “Dancing
Cow Farms” in Wellsville, Kansas. A phone number and a
website were included in the listing. Henley went to the
Dancing Cow Farms website and found a phone number (which was
the same as the number in the HHCA listing). The number is
for a phone used by Emily for personal matters as well as for
matters relating to Dancing Cow Farms.
called the number and reached Emily. During the conversation,
Emily referred to Randy as her father but refused to give
Henley a number he could use to contact Randy directly.
Henley asked Emily to have Randy call him. Approximately half
an hour later, Henley found Randy's email address on the
website LinkedIn and sent him the following email:
Randy, I'd like to talk to you soon. You visited one of
my farms while attending the Heartland Highland Cattle annual
meeting in Branson. I'd like the opportunity to clear up
any confusion and ask that you revise your very harmful Trip
Advisor review where you reference $10 price.
email concluded with Henley's cellphone number.
days later, Henley called the same number he called
previously, but Emily did not answer the phone. Later that
day, Henley looked for a phone number for Randy on the
internet; he found a number (which happened to be Randy's
home phone number) and called at 8:23 in the evening. Whether
Randy answered the phone is not addressed by the parties.
Three days after that, Henley called Emily at the same number
he had used to reach her previously; once again, she did not
answer the phone.
two hours after his last call to Emily, Henley sent an email
to Emily addressed to her and Randy, with a copy to Asmussen.
The email complains that the TripAdvisor review is libelous
because Plaintiff “do[es] not have $10 tickets. That
was something special that you received via the [HHCA]. You
did not buy a $10 ticket directly from us, nor do we sell $10
tickets.” (Doc. 150-20, p. 1.) The email also reacts to
what appear to be prior statements from Emily or Randy during
a phone conversation opining that Plaintiff does not operate
a “real” cattle farm, explaining that Plaintiff
“offer[s] a themed experience centered around a
fictional character.” (Doc. 150-20, p. 1.) The email
also states that Plaintiff will be filing suit and, because
Emily said something to Henley indicating that she wrote the
review, Plaintiff “may have to name” her as a
defendant. (Doc. 150-20, p. 1.)
point after receiving the email (but before the lawsuit
commenced), Randy amended the TripAdvisor review. Apparently,
amending a TripAdvisor review does not remove the original
review; it either incorporates the original review or adds to
it. The new information added by Randy states as follows:
Since posting the above review, a person identifying himself
as an owner of Bigfoot on the Strip has called my daughter on
her cellphone repeatedly, has contacted my daughter by email,
has tried to call my home phone at 8:30 p.m. on a Saturday,
has attempted to contact me by email, and has contacted the
person who coordinated our tour, to complain about my
original review. The “owner” has also advised my
daughter by email that he and his partners would likely be
suing both of us.
I have significant reservations regarding any business run by
someone who seems to think it is an acceptable business
practice to contact family members and associates of a
reviewer because they seem to be unhappy with a review.
Consequently, I am changing my three-star review to one star.
filed this lawsuit in state court on April 13, 2018.
Approximately one month later, Randy initiated a personal
campaign to raise funds to defend the lawsuit on the website
FundedJustice.com. As part of the campaign, Randy posted a
description of the tour and the events that occurred
subsequently; most of his comments are similar to what has
been recounted above. As relevant to the issues before the
Court, this post contains the following additional
In violation of Trip Advisor policy, on March 8, 2018 my
daughter Emily received a call from someone saying they were
the owner of Bigfoot on the Strip and that they need[ed] to
talk with me regarding the review.
On March 13th my daughter spoke with the owner and informed
him that she had nothing to do with the review and that he
was violating Trip Advisor policy trying to contact me.
On May 3 our attorney sent a notice that we would offer to
settle the matter to avoid costly litigation. There was no
This suit is based upon unfounded accusations and meant
merely to punish me for stating an opinion and some facts on