16.01A DEFAMATION — ELEMENTS OF DEFAMATION PER SE
WHERE ACTUAL SPECIAL DAMAGES ARE CLAIMED AND
PRESUMED DAMAGES ARE NOT SOUGHT.
In this case, the plaintiff claims that the defendant harmed the plaintiff's
reputation by making a false statement about the plaintiff [as follows:
list all claimed per se defamatory statements]. For the plaintiff to recover
on this claim, you must decide that it is more likely true than not true:
(1) that the defendant communicated the statement, either orally or in
writing, to a person other than the plaintiff; and
(2) that the statement was reasonably understood by this person to be
about the plaintiff; and
(3) that the statement was false; and
(4) that the defendant knew or reasonably should have known that the
statement was false; and
(5) that the statement was a legal cause of plaintiff's harm. I will
explain "legal cause" to you in a moment; and
(6) that the plaintiff incurred actual harm.
If you find that the elements of this instruction are more likely true than
not true, [you must return a verdict for the plaintiff] [you must decide
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whether the law allows the defendant to make the statement even
though it may injure the plaintiff's reputation].
If you do not find that the elements of this instruction are more likely
true than not true, you must return a verdict for the defendant.
Use Note
The bracketed material in paragraph one should never be used unless
plaintiff is claiming multiple defamatory statements were made and at
least one of them is defamatory per quod.
This is a negligence standard defamation claim where the New York
Times standard does not apply because specials must be proven and
presumed damages are not sought.
Also, note "actual harm" is not limited to out-of pocket loss. It may
include, inter alia, impairment of reputation and standing in the
community, personal humiliation, and mental anguish and suffering.
There need be no evidence which assigns an actual dollar value to the
injury. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).
Revised 1989 16.01A - 22