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)).
Do you need to allege and prove defamation per se to win a libel action? No! There is an infinite number of other ways you can be defamed, even if the defamatory statement does not fall into one of these four categories. The statement still must carry defamatory meaning to be actionable, but it doesn’t need to tarnish your reputation in one of these limited ways as a prerequisite to recovery. Defamation that does not satisfy the “per se” test is known in Virginia as defamation per quod.
Here’s what happened not long ago to a plaintiff who put all her eggs in the defamation-per-se basket and paid no attention to defamation per quod. The case is Jackie Green v. Nicole Bell-Van Patten. According to the allegations of the complaint, Ms. Green was a substitute nurse at Robert E. Lee Elementary School in Petersburg, Virginia. Two students came to her office and complained of feeling ill. The two students were cousins. Ms. Green determined that both should be sent home, and the two students were released to the mother of one student (who was the aunt of the second). When the mother of the second child learned that her child had been released to someone other than her, she contacted her local news station to tell them what had happened.
Ms. Bell-Van Patten, the public information officer for Petersburg Public Schools, provided the news station with a written statement. It read, “Safety is a top priority for Petersburg City Public Schools. Today, one of our substutute nurses did not follow protocol. The incident is being addressed vigorously to ensure that such an error does not occur again.” Ms. Green sued, but did not style her claim as one for mere defamation. She sued only for defamation per se.
Predictably, Ms. Bell-Van Patten filed a demurrer (essentially a motion to dismiss for failure to allege a valid claim). All the court had to do was decide whether, even assuming everything Ms. Green alleged was true, sufficient facts had been alleged to establish one of the four defamation-per-se categories. Ms. Green argued that she had essentially been accused of the crimes of contributing to the delinquency of a minor, as well as child endangerment, and that she therefore satisfied the first category of defamation per se. The court disagreed, noting that all the plaintiff had alleged was that the defendant accused her of making a single mistake. So the court dismissed the case.
The court did allow Ms. Green to revise her complaint to allege a count for defamation per quod, but what a waste of time. What I recommend to defamation plaintiffs is that they sue either for “defamation” (an all encompassing term that includes libel, slander, and both the “per se” and “per quod” varieties of each), or have one count for “defamation per se” and a second count, pled in the alternative, for “defamation per quod.” One good reason to include separate claims for defamation per se and defamation per quod is that you’ll likely get an early ruling from the court about whether the judge considers your claim to be of the “per se” variety. This can be enormously helpful in the formulation of settlement and trial strategy. If a plaintiff sues only for “defamation” without specifying the type, the parties may not know until trial whether the court considers the claim to be defamatory per se. That’s pretty late in the game to be learning about whether it will be necessary to present evidence of damages.
Finally, I should point out that in this particular case, the court was not convinced that Ms. Green had a valid claim for defamation per quod, either. After Ms. Green filed an amended complaint for defamation per quod, the issue became whether the alleged statements carried defamatory meaning, and the court concluded they did not. Words with defamatory meaning “tend so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” The court found that “[n]o fair or reasonable reading of these words placed in context and viewed in the light most favorable to the plaintiff could result in the conclusion that the words tend to harm the plaintiff’s reputation by lowering the plaintiff in the communities’ estimation or deter third persons from associating or dealing with plaintiff. To reach the conclusion suggested by the plaintiff, this Court must assume a community demanding perfection in all duties and intolerant of employee protocol ‘error.’”
The Virginia Supreme Court has denied Ms. Green’s petition for appeal.