LOUISIANA TORT LAW UPDATE: DEFAMATION
By: Michael C. Palmintier
Defamation -The taking from one’s reputation. The offense of injuring a person’s character, fame or reputation by false and malicious statements. BLACK’S LAW DICTIONARY
“It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.” -Warren Buffett
“The worst thing that can happen to a man is to lose his money, the next worst his heath, the next worst his reputation.” -Samuel Butler
“A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was.” -Joseph Hall
“Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.” -Abraham Lincoln
“If you can’t say something nice about someone, don’t say anything at all.” -Mom
Defamation as a legal concept has to do with injury to one’s reputation. It is recognized to one degree or another in nearly all legal systems throughout the world. The tort of Defamation is one of the oldest recognized theories of tort law. It dates back to Greek and Roman times, in which the notion that injury to another could give rise to non-criminal, personal responsibility had its origins. The Romans considered the offense to be one of intentional “unjustified outrage to the feelings.” It required intent, but did not require “publication” to a third party.
The law pertaining to the tort of Defamation in Louisiana has its foundations in Civilian Legal concepts – Roman, Spanish and others. Of course, as with so much else in our state’s law, incursions have been made through the years by common law concepts. Further, U.S. constitutional principles create additional boundaries which must be respected.
The earliest significant reported recognition of the tort of Defamation in Louisiana jurisprudence came in 1828, in the case of Stackpole v. Hennen, 6 Mart. (n.s.) 481(1828). This case arose out of trial during which one of the attorneys made statements which were allegedly defamatory. In finding that some statements of counsel were protected, the court relied on Roman, Spanish, French and English law to reach its conclusion. Subsequent early cases looked to Louisiana Civil Code Art. 2294 (now 2315) as the foundation on which to set the boundaries of the cause of action.
The development of modern concepts of defamation in Louisiana is thoroughly outlined in the opinions of the Third Circuit Court of Appeal and the Supreme Court in Fitzgerald v, Tucker, 715 So2d 1281 (La.App.3d Cir.1998); 737 So2d 707 (La.1999). In this case, a substance abuse counselor who worked for the Louisiana State Board for the certification of substance abuse counselors “the board” sued a former supervisor for defamation and other torts. Fitzgerald alleged that Tucker had defamed her in numerous ways, including when he gave an interview to a Lafayette television station regarding the operation of his agency. The Third Circuit affirmed a jury verdict on defamation, but reversed their favorable ruling on tortious interference with contract. Instead, the court of appeal increased the damage in the defamation case by the amount awarded for tortious interference.
In reviewing the history of Louisiana jurisprudence on Defamation, the Court stated:
A cause of action for defamation arises out of a violation of Civil Code article 2315. Vicknair v. Daily States Pub. Co., 153 La. 677, 96 So. 529 (1923); Ferdinand F. Stone, 12 Louisiana Civil *418 Law Treatise Tort Doctrine § 176(c), at 227 (1977). Defamation involves the invasion of a person’s interest in his or her reputation and good name. Sassone v. Elder, 92-1856 (La.10/18/93), 626 So.2d 345, 350 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111 (5th ed.1984)). In order to prevail in a defamation action, a plaintiff must necessarily prove four elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552, 559 (citing Restatement (Second) of Torts § 558 (1977)); see Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196, 198 (La.1980) (considering falsity as a fifth and separate element). In other words, a plaintiff must prove ” ‘that the defendant, with actual malice or other fault, published a false statement with defamatory wordswhich caused plaintiff damages.’ ” Trentecosta, 703 So.2d [at] 559 (quoting Sassone, 626 So.2d at 350.) (Emphasis ours)
The Supreme Court reversed the plaintiff’s award for damages in defamation, providing a detailed analysis of the pleadings and the record in the context of the jurisprudential requirements it had recognized. In essence, the court found that the pleadings were a limiting factor in the plaintiffs ability to prove her case:
Plaintiff in a defamation suit must name the individual offenders and allege separate acts of defamation as to each, including specific defamatory statements;
The defendant must be informed of what he or she is alleged to have said in order to be able to prepare a defense;
The tradition in defamation actions is to require that the specific defamatory language be pleaded; this is a widely followed practice even when not strictly required under local pleading rules.
[Robert D. Sack & Sandra S. Baron, Libel, Slander & Related Problems § 4.3.2 (2d ed. 1994 & Supp.1998); Rodney A. Smolla, Law of Defamation § 12.05 (1998)]
In light of these principles, the Court went on to find that, although on appeal plaintiff alleged 18 instances of improper conduct, she was limited to the specifics of her pleadings. It went on to review only two specific occasions on which the defendant was alleged to have defamed the plaintiff. In addressing these allegations, the court found that plaintiff had failed to meet her burden of proof in both.
Seven years later, the Court again addressed this area of the law in great detail in the case of Kennedy v. Sheriff of East Baton Rouge, 935 So2d 669 (La.2006). This case stands as the most recent, exhaustive analysis of the subject. Kennedy was a student who had driven up to a Jack in the Box fast food restaurant and paid with a hundred dollar bill. The store’s employee, who was not trained to evaluate bills, thought the bill was counterfeit and contacted the Sheriff’s office. Kennedy was arrested, handcuffed and detained – until it was determined that the bill was genuine. He sued Jack in the Box and the Sheriff. MSJ’s were granted, but the First Circuit reversed as to the restaurant and remanded for further proceedings.
The Supreme Court reviewed the case on Writs. Justice Weimer couched the issues presented and the Court’s conclusions as follows:
“We granted certiorari primarily to consider whether a private individual is entitled to a conditional or qualified privilege when the individual reports suspected criminal activity to the police, and if so, whether the privilege was abused in this case. Finding that the report to police of suspected criminal activity was conditionally privileged, and that the plaintiff failed to submit evidence sufficient to demonstrate that he will be able to meet his burden of proof at trial that the privilege was abused, we reverse the judgment of the court of appeal and reinstate the summary judgment in favor of the restaurant.” Kennedy, supra at page 672
In a case note of great depth and authority, Louis Edward Layrisson dissects the Court’s opinion in light of the 50 year history of case law in Louisiana since the seminal U.S. Supreme Court’s opinion in New York Times v. Sullivan, 376 US 254 (1964).1 The reader is commended to this excellent article for a more comprehensive analysis than is provided in this update. In summary, Mr. Layrisson sets forth the following analysis:
Defamation is a tort that involves the invasion of a person’s interest in his or her reputation or name in the community. Four elements are necessary for a successful claim:
(1) a false and defamatory statement concerning another;
(2) an unprivileged publication to a third party;
(3) fault (negligence or greater) on the part of the publisher; and
(4) resulting injury.2
In Louisiana, defamatory words are divided into two categories:
(1) those that are defamatory per se, because they either accuse another of criminal conduct or by their nature tend to harm the reputation of another- elements of falsity and malice (fault) are presumed, but the presumption can be rebutted by the defendant;
(2) those that are susceptible of defamatory meaning given the circumstances – plaintiff must prove all the elements of defamation in cases where the words are merely susceptible of defamatory meaning, or where constitutional protections are:
Truth is a defense;
Two types of privilege- promoting free communication – exist as defenses:
1) Absolute – eg. communications during judicial proceedings.
2) Qualified – eg. the “fair comment on public affairs” privilege – protects police officers giving interviews about arrests.In addition, private interests are protected by privileges in some circumstances, such as alleged defamatory remarks among an ecclesiastical board.
The qualified privilege focuses on the good faith of the communicator, whether the communicator has an interest or duty with regard to the communication, and whether it is disclosed to a person with a corresponding interest or duty. It is based on the weighing of (1) the protection of the interest of the offended person against the harm done to his or her reputation, and (2) the protection of the interest of the public in receiving the information if it were true.
U.S. Constitutional requirements are recognized in Louisiana. (See New York Times v. Sullivan, 376 US 254 (1964) as modified by Gertz v. Robert Welch, Inc. 94 Sct 2997 (1993).
As the author points out, “U.S. Supreme Court decisions after Gertz raise the possibility of limited defamation cases in which there would be no constitutional bar to a return to strict liability. In Kennedy, the Louisiana Supreme Court addresses the possible distinction between media and non-media defendants and, to a certain extent, the possibility of strict liability defamation.” These decisions called upon the states to decide the standard of fault applicable to private plaintiffs. They contrast the constitutionally mandated “actual malice” standard for public plaintiffs announced in New York Times. In Kennedy the Louisiana Supreme Court made its stand regarding private plaintiff fault standards and found that plaintiff would be required to meet the eldheightened standard for showing an abuse of a qualified privilege. From a practical point of view, this is a great challenge to plaintiffs in defamation cases in which privileges are concerned.
Given this jurisprudential foundation, by way of update we now consider several more recent opinions which provide some understanding of the current status of the tort of defamation in Louisiana.
Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La. 3/17/06), 929 So. 2d 1211
In this case, which came out shortly before Kennedy, the court found that a candidate for public office and his wife, aggrieved by alleged violations of §1463 of the Louisiana Elections Code (prohibiting certain types of communications during elections) and who alleged defamation should be allowed to amend his petition to state a cause of action for defamation. The Court, which received the case because of the defendant’s allegations of unconstitutionality, found the petition to be deficient and the constitutionality issue was premature and/or inappropriate. Nonetheless, the court gave recognition that a case for defamation could be appropriately pled under the circumstances and sent the case back down to give the plaintiff a shot at doing so.
Jalou II, Inc., v. L. Liner, 2010-0048 (La. App. 1 Cir. 6/16/10), 43 So.3d 1023
Casino operator asked authorities to investigate truck stop casino’s losses. They advised the police that a supervisor and another employee would have access to the missing funds. The operator and its insurer also sued both employees for theft. Charges against the employee, Ms. Grow, were dropped for lack of evidence. Grow reconvened for in the civil suit, including allegations of defamation. MSJ’s were granted against her. On appeal, the 1st Cir. affirmed. The case is interesting in its consideration of the qualified privilege upon which the casino based its defense.
Privileged communications may be either (1) absolute (such as statements by judges in judicial proceedings or legislators in legislative proceedings) or (2) conditional, or qualified. Kennedy, 05–1418 at p. 16, 935 So.2d at 681. The basic elements of a conditional privilege are (1) good faith; (2) an interest to be upheld; (3) a statement limited in scope to that interest; (4) a proper occasion for the communication of the statement; and **14 5) publication in a proper manner and to proper parties only. Id., citing Madison v. Bolton, 234 La. 997, 102 So.2d 433, 439 n. 7 (La.1958).
The analysis of whether a conditional privilege exists is a two-step process. Kennedy, 05–1418 at pp. 17–18, 935 So.2d at 682. First, it must be determined as a matter of law whether the circumstances in which a communication was made satisfy the legal requirements for invoking the conditional privilege. Smith v. Our Lady of the Lake Hosp., 93–2512, p. 18 (La.7/5/94), 639 So.2d 730, 745. The second step requires a determination of whether the privilege was abused, which requires a factual determination that malice or lack of good faith existed. Id.
The court found that these prerequisites were met under the facts presented in the Motion. Question: should this have been dismissed on Summary Judgment considering the facts at issue?
Glass v. Galley, 2012-0767 (La.App. 1 Cir. 2/6/13), Not Reported in So.3d, 2013 WL 458182
A man and his lawyer were sued for defamation as a result of letters which they sent to certain officials. The case arose as a result of activities surrounding the junior livestock show at the 2005 Louisiana State Fair (“Fair”) in Shreveport, Louisiana. Plaintiff’s family had been closely associated with the show for years. When the defendant lost an important award from the show for violation of a rule, he allegedly responded by accusing plaintiff of significant violations. The accusations were sent by the defendant and his lawyer. Glass sued for defamation, etc. The case went to bench trial, with the district court ruling in plaintiff’s favor, assigning extensive reasons for the award. On appeal, in a non published opinion, the 1st Circuit affirmed and adopted those reasons, confirming that the defendants had defamed plaintiff per se, since they falsely accused him of criminal conduct. The $70,000 damages award was also affirmed
http://web2.westlaw.com/find/default.wl?cite=114+So.3d+1206&rs=WLW13.10&vr=2.0&rp=%2ffind%2fdefault.wl&utid=1&fn=_top&mt=Louisihttp://web2.westlaw.com/find/default.wl?cite=114+So.3d+1206&rs=WLW13.10&vr=2.0&rp=%2ffind%2fdefault.wl&utid=1&fn=_top&mt=LouisiHaygood v. Dies, 48,485 (La.App. 2 Cir. 11/20/13), — So.3d —-, 2013 WL 6087742
A young dentist, Dr. Haygood, started his practice in Shreveport with an aggressive program of PR and advertising. He alleges that, after a few years his practice was thriving – until his competition and the Louisiana State Board of Dentistry (“the Board”) conspired against him when they opened a bogus investigation into his treatment of patients and dental plans. Plaintiff sued for, among many other things, defamation. In this most recent permutation in the appellate court, the Second Circuit reversed the granting of summary judgment by the lower court. For our purposes the case is interesting in that the plaintiff has been able to stay in court on the defamation and other issues.
Walet v. Southern Theatres Family Holding, LLC, 12-751 (La.App. 3 Cir.,3/20/13), 116 So.3d 681
Roland Walet, a mentally and physically disabled child worked at the defendant’s theater. Other employees allegedly began to harass Roland and eventually posted a derogatory video on YouTube. Parents sued individually and on behalf of their son alleging defamation and asserting that the company was vicariously liable. They later attempted to amend to add new claims, new parties and a jury demand. The trail court granted exceptions on all issues. In reversing, the court of appeal found that the addition of an insurer related back to the originally filed defamation pleading. Likewise, the request for jury trial was not properly struck since the addition of the insurer was proper. The court did affirm the granting of a prescription exception to the attempt (after a year) to add a claim for “disability discrimination”
Zeigler v.the Housing Authority of New Orleans (Hano), 12–1168 (La. App. 4 Cir. 4/24/13), 118 So.3d 442
This is an almost Kafkaesk tale of intrigue involving an inspector and HANO, (Housing Authority of New Orleans) with who the former had a contract. Too complex for this analysis, we focus on one allegation in which plaintiff accuses the defendant, through agents and representatives, of defaming him/it. What is interesting for our purposes is that the appellate court reverses the district court’s granting of a dismissal of this claim. In doing so, the court rejects a prescription argument as well the granting of a no cause exception. The later had been based on a finding (arguably inappropriate in the context of this motion) that the publication requirement had not been met. Judge Belsome stated:
“However, publication refers to any non-privileged communication of defamatory words, written or oral, and it renders a defendant liable for all republication that is the natural and probable consequence of the author’s act.” Landrum v. Board of Commissioners of the Orleans Levee District, 95–1591, p. 11 (La.App. 4 Cir. 11/27/96), 685 So.2d 382, 390 (citing Martin v. Lincoln General Hospital, 588 So.2d 1329, 1333 (La.App. 2 Cir.1991)). The publication in the operational assessment was a republication of the defendants’ original alleged defamatory statements. Thus, the trial court erred in finding that Inspeq failed to state a cause of action in defamation
Boyd v. Times Picayune, 12-375 (La.App. 5 Cir. 11/27/12), 105 So.3d 956
In this case, a prison inmate brought a suit for defamation in proper person, alleging that three newspapers had published false statements which had defamed him by reporting that stolen property confiscated from defendant was believed to have been stolen from vacant houses during a hurricane. No doubt the defendant could have argued that there were no damages demonstrated, since the plaintiff was arrested for the following offenses: (1) possession of a schedule II controlled dangerous substance, to wit: crack cocaine over 28 grams; (2) possession with intent to distribute a schedule II controlled dangerous substance, to wit: crack cocaine; (3) possession of a firearm while in possession of a controlled dangerous substance; (4) possession of a firearm by a convicted felon; (5) possession of a legend drug, to wit: carisoprodol; and (6) cruelty to animals. His criminal case subsequently was transferred to federal court, where he was indicted on federal drug and firearms charges. He ultimately was convicted by a jury of several federal charges and was sentenced to twenty-five years. Instead, summary judgment was granted because the article in question didn’t mention a hurricane.