The Appellate Group

Keisel v. Westbrook

Keisel v. Westbrook, 2023 UT App 163 (Tenney, J.)


A Jazz Fan and his Girlfriend had a verbal altercation with Oklahoma player Westbrook at one of the games. In a post-game interview, Westbrook said he thought Fan’s comment was “racial” and that Girlfriend had made a similar comment. At the next home game, then-owner of the Jazz addressed the crowd and condemned racism. Fan and Girlfriend sued Westbrook and the Jazz, alleging defamation, false light, intentional infliction of emotional distress, and negligent infliction of emotional distress. The district court granted summary judgment in favor of Westbrook and the Jazz, and Fan and Girlfriend appealed. The Utah Court of Appeals affirmed, holding in part:

  • The district court properly granted summary judgment in favor of Westbrook and the Jazz. Westbrook’s post-game statement “I think it’s racial” was protectible opinion. And the then-owner of the Jazz and the Jazz both had a constitutionally protected right to express their opinion about Fan’s statements.
  • Practice tip: A profane outburst without more is not enough to sustain an intentional infliction of emotional distress claim.
  • Practice tip: In the defamation context, qualifying language in a statement like “for me,” “to me,” and “I think,” can be indicators that the statement expressed an opinion.
  • Judicial tip: In assessing any emotional distress claim, a court must of course consider the context in which the offending conduct occurs.

Read the full court opinion