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DEFAMATION - LIBEL PER SE CASELAW SNIPPETS

Libel per se

Defamation is generally defined as the invasion of a person's interest in his or her reputation and good
name. Prosser & Keeton on Torts § 111, at 771 (5th ed. 1984 & Supp. 1988). Defamation claims are
divided into two categories depending on how the defamatory statement was communicated: libel for
written communications and slander for oral communications.[5]

Defamation claims are also divided into two categories, defamation per se and defamation per quod,
according to the level of proof required in order to make them actionable. Texas Disposal Sys. Landfill, Inc.
v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex.App.-Austin 2007, pet. denied); Moore v.
Waldrop, 166 S.W.3d 380, 384 (Tex.App.-Waco 2005, no pet.). Statements that are defamatory per quod
are actionable only upon allegation and proof of damages. Texas Disposal, 219 S.W.3d at 580; Alaniz v.
Hoyt, 105 S.W.3d 330, 345 (Tex.App.-Corpus Christi 2003, no pet.). That is, before a plaintiff can recover
for defamation per quod, he must carry his burden of proof as to both the defamatory nature of the
statement and the amount of damages caused by the publication of that statement. Texas Disposal, 219
S.W.3d at 580; See also Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984);
Peshak v. Greer, 13 S.W.3d 421, 426 (Tex.App.-Corpus Christi 2000, no pet.). By contrast, in cases
involving defamation per se, damages are presumed to flow from the nature of the defamation itself and, in
most situations, a plaintiff injured by a defamatory per se communication is entitled to recover general
damages without specific proof of the existence of harm. Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex.
2002) ("Our law presumes that statements that are defamatory per se injure the victim's reputation and
entitle him to recover general damages, including damages for loss of reputation and mental anguish.");
Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex.App-Houston [14th Dist.] 2008, pet. denied); but
see Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (holding
that, so long as they do not impose liability without fault, States are free to define for themselves the
appropriate standard of liability in defamation suits where a private plaintiff sues a media defendant for
speech involving a public issue). The United States Supreme Court later clarified that the constitutional
requirements of Gertz do not prohibit the application of strict liability to defamation suits involving
private-figure plaintiffs who sue nonmedia defendants for speech involving nonpublic issues. Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760-61, 105 S.Ct. 2939, 86 L.Ed.2d 593
(1985). In suits involving such situations, courts applying Texas law have applied strict liability in
defamation per se causes of action. See Thomas-Smith v. Mackin, 238 S.W.3d 503, 509
(Tex.App.-Houston [14th Dist.] 2007, no pet.); Peshak v. Greer, 13 S.W.3d 421, 425-26 (Tex.App.-Corpus
Christi 2000, no pet.); Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1334 (5th Cir. 1993). Because
the decision whether an alleged defamatory statement is defamatory per se or per quod affects the level of
proof required, that question is initially determined by the trial court as a matter of law. Turner v. KTRK TV,
Inc., 38 S.W.3d 103, 114 (Tex. 2000); Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654-55
(Tex. 1987).

A communication is considered libel per se when it is so obviously hurtful to the person aggrieved that no
proof of its injurious character is required to make it actionable. Clark v. Jenkins, 248 S.W.3d 418, 437
(Tex.App.-Amarillo 2009, pet. denied), cert. denied, U.S. __, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009);
Houseman v. Publicaciones Paso Del Norte, S.A. de C.V., 242 S.W.3d 518, 524 (Tex.App.-El Paso 2007,
no pet.). A false statement will typically be classified as defamatory per se if it injures a person in his office,
profession, or occupation; Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.-Houston [1st Dist.] 2006, no
pet.); charges a person with the commission of a crime; Leyendecker, 683 S.W.2d at 374; or imputes to
him a loathsome disease. Bolling v. Baker, 671 S.W.2d 559, 570 (Tex.App.-San Antonio 1984, no writ).

Whether a given statement is reasonably capable of a defamatory meaning is a question to be decided by
the trial court as matter of law. See Musser, 723 S.W.2d at 654-55. The trial court should construe the
alleged defamatory communication as a whole in light of the surrounding circumstances based upon how a
reasonable person of ordinary intelligence would perceive it, considering the surrounding circumstances
and the context of the statement. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 153 (Tex. 2003), cert.
denied, 545 U.S. 1105, 125 S.Ct. 2557, 162 L.Ed.2d 276 (2005); Turner, 38 S.W.3d at 114. This is an
objective test, not a subjective one. New Times, Inc., 146 S.W.3d at 157. Thus, the parties' opinion of the
statements, Musser v. Smith, 690 S.W.2d 56, 58 (Tex.App.-Houston [14th Dist.] 1985), aff'd, 723 S.W.2d
653 (Tex. 1987), or the defendant's intent in making the statements have no bearing on whether they are
defamatory. Peshak, 13 S.W.3d at 426 ("We assume the words were intended because they were used.")
"Common sense requires courts to understand the statement as ordinary men and women would"; Moore,
166 S.W.3d at 385, and the question whether a statement is defamatory per se is only submitted to the
jury if the contested language is ambiguous or of doubtful import. See Denton Pub. Co. v. Boyd, 460
S.W.2d 881, 884 (Tex. 1970). Otherwise, it is an issue of law for the trial court to decide. Musser, 723
S.W.2d at 655. Therefore, according to this body of law, a written communication, made by a nonmedia
defendant, concerning a private-figure individual and pertaining to a nonpublic issue, which is obviously
hurtful to the aggrieved party in his profession or occupation, is libel per se.






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