Wednesday, June 29, 2011

Defamation damages: Putting a dollar value on impairment of good name and reputation as a result of libel or slander


General vs. specific damages 

Compensatory damages allowable for defamation are divided into two categories: general and special. Peshak v. Greer, 13 S.W.3d 421, 427 (Tex.App.-Corpus Christi 2000, no pet.).    

General damages include mental anguish, loss of reputation, and like damages that naturally flow from the defamation and are not easily susceptible to monetary valuation.  Id.  General damages are those conclusively presumed to have been foreseen by the defamer as a necessary and usual result of his or her wrongful act.  Fox v. Parker, 98 S.W.3d 713, 726 (Tex.App.--Waco 2003, pet. denied) (citing Arthur Anderson & Co. v. Parker Equip. Co., 945 S.W.2d 812, 816 (Tex. 1997)).

Defamation Per Se damages

"The law presumes a statement which is libelous per se defames a person, injures his reputation"; id., and causes mental anguish.  Ryder Truck Rentals, Inc. v. Latham, 593 S.W.2d 334, 337 (Tex.Civ.App.--El Paso 1979, writ ref'd n.r.e.) (general damages for injury to character, reputation, feelings, mental suffering or anguish, or other wrongs not susceptible to monetary valuation are presumed); Peshak, 13 S.W.3d at 427 ("In actions of libel per se, the law presumes the existence of some actual damages, requiring no independent proof of general damages.")  Because the damages are presumed, "there need be no inquiry in the [jury] charge about whether there was a defamation or about 'proximate cause' and injury (or the jury may be instructed to so find.”)  Fox, 98 S.W.3d at 726.      
Further, because the damages are purely personal and cannot be measured by any fixed rule or standard, the amount of general damages suffered in a defamation case is difficult to determine.  First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696, 702 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.) (citing Bayoud v. Sigler, 555 S.W.2d 913 (Tex.Civ.App.--Beaumont 1977, writ dis'md)).  Thus, because of their uncertain nature, their measurement is generally left to the discretion of the finder of fact, subject only to a determination that the award was clearly excessive or the result of "passion, prejudice, or other improper influences."  See Morrill, 226 S.W.3d at 550 (citing Bolling, 671 S.W.2d at 549).  See also Tranum v. Broadway, 283 S.W.3d 403, 422 (Tex.App.--Waco 2008, pet. denied). 

SOURCE: Amarillo Court of Appeals - 07-09-00277-CV - 6/16/11

EXCERPTS FROM CITED CASE: Peshak v. Greer, 13 S.W.3d 421 (Tex.App.-Corpus Christi 2000, no pet.)

In both libel and slander the issues are whether the utterance was made, if it was false, if it damaged the complainant and if the speaker had any privilege. RESTATEMENT (SECOND) OF TORTS § 558 (1977); c.f.Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.). Whether the defendant intended to say or print the defamatory words is not an element of the cause of action unless privilege is involved. See Express Pub. Co. v. Lancaster, 2 S.W.2d 833, 834 (Tex.Comm.App. 1928) (holding defamation defendant is liable irrespective of his innocent motives in publishing the defamatory statement); Hornby v. Hunter, 385 S.W.2d 473, 476 (Tex.Civ.App.-Corpus Christi 1964, no writ) (holding that even innocent, mistaken publication still subjects defamer to liability); 50 Tex. Jur. 3d Libel & Slander, § 12, at 33 (1986) (noting that intent is not an element of defamation). We assume the words were intended because they were used. When the jury found Peshak defamed Greer and what he said was false, it found by inference that he intended to write the letters found to be defamatory.

The issue is whether exemplary damages may be awarded if the defamatory statement is made intentionally or willfully. Punitive damages are available in defamation cases based upon the same rules governing punitive damage awards for all torts. Nabours v. Longview Sav. & Loan Ass'n., 700 S.W.2d 901, 903 n. 1 (Tex.1985). The supreme court has held that a plaintiff must prove the statements were made maliciously to justify exemplary damages in a defamation case. See Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984). Civil Practice and Remedies Code section 41.003 provides that exemplary damages may only be awarded if the claimant proves by clear and convincing evidence that the harm resulted from fraud or malice. See TEX. CIV. PRAC. & REM.CODE ANN. § 41.003(a) (Vernon 1997).[1]

We hold that exemplary damages in a defamation case between private litigants that does not involve privilege can only be supported if the utterance was made with malice. That the statements were made willfully or intentionally will not justify exemplary damages.

This case does not involve a media defendant. The rule of Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), requiring fault in a defamation action against a publisher or broadcaster for a defamatory statement about a private individual, is not applicable. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

Compensatory damages allowable for defamation are divided into two categories: general and special. General damages are mental anguish, injury to the reputation and the like that naturally flow from the libel and are not easily susceptible to monetary valuation. West Texas Utilities Co. v. Wills, 164 S.W.2d 405, 412 (Tex.Civ.App.-Austin 1942, no writ); Evans v. McKay, 212 S.W. 680, 685 (Tex.Civ. App.-Dallas 1919, writ dism'd); see also Leyendecker, 683 S.W.2d at 374.

In actions of libel per se, the law presumes the existence of some actual damages, requiring no independent proof of general damages. See Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.); Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477, 488 (Tex. App.-Corpus Christi 1989, writ denied); City of Brownsville v. Pena, 716 S.W.2d 677, 682 (Tex.App.-Corpus Christi 1986, no writ); First State Bank v. Ake, 606 S.W.2d 696, 702 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). The amount of general damages is very difficult to determine, and the jury is given wide discretion in its estimation of them. Evans, 212 S.W. at 685; Wills, 164 S.W.2d at 412.


Lost earning capacity is a form of special damages, Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555, 558 (1889); Houston Belt & Terminal Ry. Co. v. Wherry, 548 S.W.2d at 743, 753 (Tex. Civ.App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.), and must be specifically stated and proved. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 91 (Tex.App.-Corpus Christi 1992, writ dism'd w.o.j.); Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 441 (Tex.App.-Corpus Christi 1985, no writ). Although the amount of damages for lost earning capacity is largely within the discretion of the jury, Fowler v. Pedlar, 497 S.W.2d 399, 401 (Tex.Civ.App.-Houston [1st Dist.] 1973, no writ), the plaintiff is required to prove his lost earning capacity "with that degree of certainty to which the case is susceptible...." McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943).

RELATED LEGAL TERMS: defamation, libel, slander, reputational damage, damage to good name, reputation, business goodwill, standing in the community, mental, psychological, emotional distress, embarrassment

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