Defamation Per Quod Category Archives — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

March 10, 2025

Not All Crimes Involve Moral Turpitude

As a plaintiff in a defamation action, you’ll usually want to frame your claim as one involving defamation per se, a classification that would obviate the need to prove the specifc amount of damages you suffered that were directly attributable to being defamed. The Virginia Supreme Court has held that false accusations may be considered defamatory per se if they “impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.” (See Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006)). Notice that the Virginia Supreme Court did not hold that all false accusations of criminal conduct are considered defamatory per se. Only crimes involving moral turpitude qualify for the heightened level of defamation. A crime involving moral turpitude is one that involves an element of baseness, vileness, or depravity in private or social duties. Crimes that lack an inherent element of dishonesty, deceit, or moral depravity include things like traffic offenses, technical tax offenses, HOA violations, and regulatory infractions. The Virginia Court of Appeals recently affirmed a trial judge’s decision to strike a $300,000 plaintiff’s verdict for defamation per se on the ground that the defamation at issue was not really of the “per se” variety.

Let’s take a look at the case of Stephanie Ann Wadnola v. City of Norfolk. Ms. Wadnola filed a defamation claim against the City of Norfolk after Assistant City Attorney Katherine Taylor told Wadnola’s business associates that Wadnola “had been operating her business illegally.” Wadnola had opened Jhane’s Sweet Lounge at 731 Granby Street in April 2017, operating it through her solely-owned corporation, Jhanesis, LLC. In December 2019, Wadnola sold the business to Suite 1200, LLC, and the premises were leased to Suite 1200 starting February 2020. Although Wadnola’s conditional use permit allowed temporary operation by a successor, Suite 1200 never obtained its own permit. The City revoked Wadnola’s conditional use permit for failing to update the manager’s list as required by city ordinance and Suite 1200 ceased operations shortly thereafter. At a court hearing relating to the violation, Taylor allegedly remarked to the new business owners, privately, that Wadnola “had been operating illegally.”

June 20, 2020

The Defamation Per Se Categories Are Irrelevant to Non-Defamatory Statements

by Lee E. Berlik

In cases of defamation per se in Virginia, successful plaintiffs can recover “presumed” damages even if they are unable to prove exactly how their reputations were harmed and to what extent. For example, defamatory statements that impute to the plaintiff an unfitness to perform the duties of her job would be considered defamatory per se because it is widely understood and accepted that a serious and false accusation about somebody’s ability to perform one’s job would inevitably cause compensable harm. What many don’t realize, however, is that the defamation-per-se categories presuppose that the underlying statement satisfies the elements of actionable defamation. If a statement doesn’t qualify as defamation, then it won’t qualify as defamation per se, even if it seems to fit into one of the per-se categories. (See Darrell Gaebel v. United States Polo Ass’n (E.D. Va. May 12, 2022) (holding that “because defendant did not make any false statements, there is no basis to consider whether they were defamatory per se”)). If Dave says about Paul, a chef at an upscale restaurant, “Paul is the worst chef in the United States and I wouldn’t feed his disgusting dishes to my worst enemy’s dog,” the fact that the statement suggests Paul is unfit to perform the duties of his job does not make the statement defamatory per se. This particular statement would not be actionable because it reflects only Dave’s personal opinion. Defamation per se is a specific type of actionable defamation, not a substitute for it.

Defamation per se is not a separate tort. The tort is called defamation, and defamation per se is just a particular type of defamation. Lawyers get this wrong all the time, assuming erroneously that any statement that, say, imputes to the plaintiff an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties, automatically qualifies for a multi-million-dollar defamation-per-se case. Did a co-worker tell your boss that you engaged in unprofessional or unethical conduct? Sure, a statement like that might be designed to convey that you are unfit to perform the functions of your job, but it takes more than that to bring a valid claim for defamation per se.

August 13, 2019

Statement Implying Lack of Honesty May Be Defamatory Per Se

by Lee E. Berlik

For a statement to be actionable as defamation per quod, it must have resulted in damages to the plaintiff. (See Landmark Communications, Inc. v. Macione, 230 Va. 137 (1985)). In actions for libel and slander in Virginia, a plaintiff must prove the quantum of his damages unless the words at issue are considered defamatory per se. To qualify as defamation per se, the words claimed to be defamatory must fall into one of these four categories:

Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished;
Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society;
Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; or
Those which prejudice such person in his or her profession or trade.

March 6, 2017

Don’t Overlook Defamation Per Quod

by Lee E. Berlik

When suing for libel or slander in Virginia, it helps if you can make out a claim for that form of defamation known as defamation per se. If the judge agrees that your claim qualifies, he or she will instruct the jury to presume general damages and authorize it to award punitive damages even in the absence of compensatory damages. However, too often, plaintiffs place unneeded emphasis on trying to characterize their claim as defamation per se and overlook regular garden-variety defamation, known as defamation per quod. Defamation per quod can give rise to fairly substantial liability, as Rolling Stone found out when a former University of Virginia won $3 million based on a false portrayal of her in an article about rape on campus.

Defamatory words fall into the “per se” category if they: (1) impute to a person the commission of some criminal offense involving moral turpitude for which the party, if the charge is true, may be indicted and punished; (2) impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society; (3) impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; or (4) prejudice the plaintiff in his or her profession or trade. (See Carwile v. Richmond Newspapers, 196 Va. 1, 7 (1954)).

September 15, 2014

Fresenius Medical Care Sued for Allegedly Defamatory Statements of Employee

by Lee E. Berlik

As a business owner, you can’t control everything your employees will do or say. What if one of them defames the character of another employee while on the job? Can the business be held responsible? If the employee uttered the defamatory words while performing the employer’s business and acting within the scope of his or her employment, then yes, the employer can be held liable for defamation. How does one determine whether an employee’s statements were made with the “scope of employment”? In Virginia, an act will be considered within the scope of employment if it was (1) expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) performed with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, and did not arise wholly from some external, independent, and personal motive on the part of the employee to do the act upon his own account. (See Kensington Assocs. v. West, 234 Va. 430, 432 (1987)). If a plaintiff alleges the existence of an employment relationship, it becomes the employer’s burden to prove that the statement was not made within the scope of employment. Absent such proof, the employer is on the hook.

Last week, a defamation case against Bio-Medical Applications of Virginia, Inc. (doing business as Fresenius Medical Care Dominion) was allowed to go forward. The Amended Complaint filed in the case alleges that a Fresenius employee emailed to coworkers various false statements suggesting that the plaintiff (a registered nurse) had a complete disregard for patient welfare. For example, the alleged emails attributed to the plaintiff statements such as “[the patient] just needs a little bleach in his lines” and, in reference to another patient, “all she needs is a good shot of air. That’ll take care of her.” Another email accused the plaintiff of saying, “Well isn’t it about time?” after another patient had died. Fresenius Medical Care filed a motion to dismiss the case, arguing that the complaint failed to plead sufficient facts to hold the employer liable for the statements of its employees, and that the elements of defamation had not been satisfied. The court disagreed on both counts and denied the motion.
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February 10, 2013

Defamation of Character: Libel and Slander Law in Virginia

by Lee E. Berlik

Under Virginia law, the necessary elements of the tort of defamation (which includes both libel and slander) are usually expressed as (1) a publication about the plaintiff, (2) of an actionable statement, (3) with the requisite intent. This sounds simple enough, but proper application of these principles is far more complicated than one would expect. This is, in part, due to the fact that the test is circular, as it begs the question of what an “actionable statement” is. It is more useful to think of Virginia law of defamation as encompassing the following eight elements: (1) a factual assertion (as opposed to an expression of opinion); (2) that is false; (3) and defamatory in nature; (4) that is about the plaintiff; (5) and made to a third party; (6) in a setting or context that isn’t privileged; (7) with the requisite degree of fault; (8) that causes actual or presumed damages (generally consisting of financial loss, loss of standing in the community, and/or emotional distress).

Element (6) refers to a defense, not an element of the plaintiff’s proof, but I’ve included it in the list to clarify that an otherwise defamatory statement made in a privileged setting will not be actionable in a court of law. Furthermore, element (8)–damages–is presumed (and need not be proven) in those situations deemed to constitute “defamation per se.”

Libel and slander will be considered “per se” defamatory if it (1) imputes the commission of a crime involving moral turpitude; (2) imputes that the person is infected with a contagious disease which would exclude the party from society; (3) imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudices the party in his or her profession or trade. Statements that might qualify as defamation per se include an allegation that one has acted unprofessionally, an attack on a person’s honesty and veracity, a false report of a corporations’ profit and earnings, a statement regarding a company’s inability to pay bills, and a statement suggesting a person is an incompetent businessman.

March 14, 2012

Libel Per Se? Libel Per Quod? Neither, Says Virginia Court

by Lee E. Berlik

Professional Timothy B. Hanks is a professional tax preparer who took offense at a television segment aired by WAVY Channel 10 in the Hampton Roads area that promised to inform viewers “how to avoid unscrupulous tax preparers,” then proceeded to tell a story involving an admitted mistake made by his company, Reliable Tax & Financial Services. Hanks sued the station for libel, libel per se, and libel per quod, seeking five million dollars in damages. Judge Doumar (Norfolk) rejected all three theories and, last month, dismissed the entire case with prejudice.

Libel per se and libel per quod are variations of a defamation cause of action. Under Virginia law, a claim for libel per se may exist for certain categories of defamatory statements deemed serious enough to warrant presumed damages. This includes statements such as those accusing a plaintiff of committing a crime involving “moral turpitude,” of being infected with a contagious disease, or, more commonly, of being unfit to perform the duties of his profession. Libel per quod, on the other hand, refers to statements the defamatory nature of which is not readily apparent, but which are understood by the recipient to be of a defamatory nature in light of extrinsic facts known by that person.

Hanks claimed the “unscrupulous” remark constituted defamation per se in that it imputed to him “an unfitness to perform the duties of office or employment for profit, a lack of integrity in the discharge of duties of such office, and the commission of a criminal offense.” The court disagreed for several reasons, holding that the statements (1) are not “of or concerning” Hanks, (2) are not capable of defamatory construction, and (3) are constitutionally-protected opinion. The court also found that Hanks failed to sufficiently plead actual malice or special damages.