Vintage Ad #1,417: Slander! by jbcurio
If you are the victim of defamation, a cease and desist letter may be an option for you.
Defamation Per Se
The elements of a common law defamation action are well settled. In order for a statement to be considered defamatory it must be
- communicated to someone other than the plaintiff,
- it must be false, and
- it must tend to harm the plaintiff’s reputation and to lower him in the estimation of the community. Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919 (Minn. 2009).
Defamation affecting the plaintiff in his business, trade, profession, office or calling are defamatory per se and thus actionable without any proof of actual damages. Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977). ”[D]efamatory per se defines a rule of damages, not of defamatory meaning.” Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 307 (Minn. App. 2001).
General Defamation Damages
In a case of defamation per se, general damages are presumed, and thus a plaintiff may recover without any proof that the defamatory publication caused him or her actual harm. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987). The presumption of general damages in cases of defamation per se affords little control by the court over the jury’s assessment of the appropriate amount of damages. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 259 (Minn. 1980); Restatement (Second) of Torts § 621 cmt. a (1977). But in the absence of proof, general damages are limited to harm that “would normally be assumed to flow from a defamatory publication of the nature involved.” Restatement (Second) of Torts § 621 cmt. a (1977).
A wide range of damage awards is inevitable in varying fact situations considered by different juries. In Advanced Training Systems, Inc. v. Caswell Equipment Co., 352 N.W.2d 1, 11 (Minn. 1984) the trial court found the jury award of $75,000 in actual damages and $250,000 in punitive damages not excessive for libel. The Minnesota Supreme Court affirmed, stating that the discretion to grant a new trial on the ground of excessive damages rests with the trial court, whose determination will only be overturned for abuse of that discretion. Stenzel v. Bach, 261, 203 N.W.2d 819, 822 (1973). In Longbehn v. Schoenrock, a police officer had referred to Longbehn (another police officer) as “Pat the pedophile.” Longbehn was terminated from employment three weeks later in part because he had “lost credibility in the community.” The jury awarded Longbehn $230,000 for past and future harm to reputation, mental distress, humiliation, and embarrassment, as well as $ 3,000 for future health-care expenses. The district court concluded that the evidence was legally insufficient to establish a causal connection between respondent’s statement and these general damages. The court of appeals found that the district court erred in this regard; the statements were defamatory per se and therefore, general damages were presumed and Longbehn could recover without any proof of actual harm. However, the court of appeals also determined that the district court “has broad discretion in determining whether to set aside a verdict as being excessive and should not hesitate to do so where it feels the evidence does not justify the amount.” Mrozka v. Archdiocese of St. Paul & Minneapolis, 482 N.W.2d 806, 813 (Minn. App. 1992), review denied (Minn. May 24, 1992). Accordingly the court of appeals concluded that while there were presumed general damages, the trial court did not err in finding that the jury’s $230,000 award was excessive.
When words are defamatory per se, punitive damages are recoverable without proof of actual damages. Loftsgaarden v. Reiling, 267 Minn. 181, 126 N.W.2d 154 (1964). This does not necessarily mean that every defamation per se claim also warrants punitive damages. Longbehn v. Schoenrock, 727 N.W.2d 153, 162 (Minn. App. 2007). The propriety of punitive damages must be determined on a case-by-case basis. Id. To support an award of punitive damages, there must be clear and convincing evidence establishing that respondent acted in conscious or intentional disregard for the high probability that his statement would cause appellant harm. Id. Minnesota statutes list several factors that measure punitive damage awards.
First, the seriousness of the hazard to the plaintiff arising from the defendant’s publication of the defamatory statement.
Second, the profitability of the publication of the defamatory statement to the defendant.
Third, the duration of time involved in the publication of the defamatory statement.
Fourth, the degree of the defendant’s awareness of the hazard in publishing the defamatory statement and its awareness of the excessiveness of such statement.
Fifth, the attitude of the defendant in regard to the publication of the defamatory statement.
Sixth, the number and level of employees involved in causing the publication of the defamatory statement.
And, finally, seventh, the financial condition of the defendant.
In Longbehn v. Schoenrock, 727 N.W.2d 153, 162 (Minn. App. 2007) the court of appeals declined to reverse the district court’s setting aside of the jury award of punitive damages.
The record shows that respondent made the defamatory publication while identifying a particular law-enforcement officer he would call for assistance in securing his stepdaughter’s safe return home. It appears that respondent used the term because he believed that appellant was commonly known by that name among the area’s youth. Based on the record, this belief was reasonable. Analyzing the statement in its proper context, the evidence does not support a finding that respondent was trying to malign appellant. The jury’s findings that respondent did not accuse appellant of being a pedophile and that he acted under circumstances that made his publication negligent comport with this assessment of the record. Based on the above reasoning, we conclude that the district court did not err in setting aside the award of punitive damages.
Jury instruction for Defamation per se
The Minnesota Jury Instruction guide used for defamation actions where damages are presumed (including defamation per se) states as follows:
- The only question for you to decide [in answering Question ] is the amount of money (plaintiff) is entitled to receive for:
- Harm to (his) (her) reputation and standing in the community
- Mental distress
4 Minn. Prac., Jury Instr. Guides–Civil CIVJIG 50.50 (5th ed.) In Longbehn v. Schoenrock, 2010 WL 3000283, (Minn. Ct. App. Aug. 3, 2010). The erroneous jury instruction read in part:
A person is liable for the general harm which results from the defamatory statement …. Your duty as a jury is to determine the amount of damages, if any, that the plaintiff sustained by the defendant’s use of that nickname …. A party asking for damages must prove the nature, extent, duration and consequences of his harm.
Id. ) (emphasis the court’s). In holding that the instructions were in error the court of appeals reaffirmed the basic rule that damages are presumed in cases involving defamation per se.
In defamation cases, the standard jury instruction on punitive damages, CIVJIG 94.10, should be given if punitive damages are appropriate in the case. 4 Minn. Prac., Jury Instr. Guides–Civil CIVJIG 50.65 (5th ed.).