C. Defamation Damages (Private or Public Defamation) (1/90; revised 3/02)
Introductory Note:
The constitutional developments in the defamation area have had a considerable impact on the scope and availability of damages in a defamation action. Damages issues will ordinarily arise in two basic contexts: (1) when the speech is of public concern and the plaintiff is a public official, public figure, or a private person as these terms are defined in the case law; and (2) when the speech is of exclusively private concern and the plaintiff is a private figure. The attached instructions on damages have been drafted to reflect the current status of the law as it affects both categories. In the accompanying explana tory footnotes, the Committee sets out the modifications which should be made, in view of the still evolving constitutional dimensions of defamation, when cases fall within either of the two categories.
1. Damages – General Instructions
For the injury to reputation caused by the defendant's alleged defamatory statement, the plaintiff seeks to recover both compensatory and punitive damages. Compensatory damages are being sought by the plaintiff for recovery of the money value of his/her loss(es). Punitive damages are being sought to punish the defendant for the wrongful act by the imposition of a further award to the plaintiff over and above the amount of the plaintiff's loss.(1) I shall first explain the law on compensa tory damages and then explain the law on punitive damages.
If plaintiff has established the essential elements of his/her claim as explained in these instructions, he/she is entitled to compensatory damages for all the detrimental effects of a (libelous) (slanderous) statement on the plaintiff's reputation which were reasonably to be foreseen and which are the direct and natural result of the (libelous) (slanderous) statement. Damages awarded for such injuries are broadly classed as compensatory.(2)
Cases:
King v. Patterson, 49 N.J.L. 417, 432 (E. & A. 1887); Bock v. Plainfield Courier-News, 45 N.J. Super. 302, 309 (App. Div. 1957); Devitt, Blackmar and Wolff, Federal Jury Practice and Instructions sec. 84.05 (4th ed. 1987).
2. Compensatory Damages (Actual Damages)(3)
The plaintiff in this case seeks compensatory damages for particular material, economic or financial losses suffered directly by the plaintiff as the proximate result of the injury to the plaintiff's reputation caused by the defamatory words. These compensatory damages are sometimes referred to as special damages. These damages are never presumed, but must be specified by the plaintiff and proved by the evidence. The plaintiff must show you what the special loss was and by what sequence of connected events it was produced by the defamatory words. The plaintiff can only recover these damages if you determine that the defendant's conduct was a substantial factor in causing the plaintiff's material, economic or financial losses. On the other hand, evidence of embarrassment, mental suffering or physical sickness will not, without more, be sufficient to entitle the plaintiff to these damages.
In this case the plaintiff claims that he/she suffered certain specific damage by the plaintiff as a result of the (publication) (making) or the (libelous) (slanderous) statement. I shall now outline the specific damages claimed by the plaintiff. [Here the trial judge should outline the claimed actual damage and discuss, if appropriate, the parties' respective contentions concerning the evidence.]
3. Compensatory Damages (General Damages for Slander Per Se)(4)
In addition to the direct material, economic or financial loss which the plaintiff claims was caused by the defendant's wrongful act,(5) the plaintiff also seeks recovery for those damages which the law presumes to follow naturally and necessarily from the (publication of a libel) (utterance of a slander) and which are recoverable by the plaintiff without proof of causation and without proof of actual injury. This is so because the law recognizes that the damage to reputation caused by defamation may not always lend itself to proof by objective evidence. An opportunity may be closed to the person without his/her knowledge. Damage to character or reputation could occur without the person knowing of the libel or slander. A person's business or professional career may be limited by the operation of forces which the person cannot identify but which, nevertheless, were set in motion by the defamatory statement. In fact, it has been said the damages which are presumed from the (publication) (statement) of (libelous) (slanderous) matter, while not capable of being accurately measured, are, in many ways, more substantial and real than those which can be proved and measured accurately by the dollar standard.
These considerations are taken into account by the law and you are therefore permitted to award general damages to compensate the plaintiff for injury to reputation which you reasonably believe he/she sustained.
In determining the amount of damages, you may take into consideration the manner in which the defamation was disseminated and the extent of its circulation, the injury to the character and reputation of the plaintiff, the bodily harm to the plaintiff and the mental anguish, suffering and emotional distress experienced by the plaintiff. You may also take into consideration the nature of the plaintiff's occupation and the extent to which he/she may reasonably be expected to find that the defamation has interfered with his/her successful pursuit of that occupation. Of course, you may also take into consideration the probable effect of whatever effort you find was made by the defendant to reduce the impact of the defamation upon the plaintiff's reputation, including the effect of any public retraction you find was made.(6)
Cases:
Walsh v. Trenton Times, Inc., 124 N.J.L. 23, 24 (E.& A. 1939); Finnegan v. Coll, 157 A.2d 737, 739 (Law Div. 1960); Bock v. Plainfield Courier-News, 45 N.J. Super. 302, 311 (App. Div. 1957); Kelly v. Hoffman, 9 N.J. Super. 422, 426 (Law Div. 1950).
4. Compensatory Damages – Emotional Suffering (in conjunction with actual damages)
I remind you that the foundation of an action for defamation is the injury to reputation. Hence, any award you choose to make as part of the compensation to plaintiff may only be to redress consequences which followed from injury to the plaintiff's reputation. In connection with the plaintiff's claimed emotional distress I caution you, therefore, that the plaintiff may be compensated by you for such ill effects only if you find that he/she experienced them because of the actual damage done to his/her reputation. But if you find that his/her emotional suffering was caused only by his/her having (read the libel) (heard the slander), and not by the publication's impact upon his/her reputation, then you may not take such suffering into consideration in arriving at the amount of damages you choose to award the plaintiff.
Cases:
Cole v. Richards, 108 N.J.L. 356, 357 (E. & A. 1932); Arturi v. Tiebe, 73 N.J. Super. 217, 222-23 (App. Div. 1962).
5. Punitive Damages (for defamation actions filed on or before October 26, 1995)(7) (1/97)
If you find the defendant has [insert a description of the specific defamatory conduct giving rise to a claim for punitive damages], you must consider whether or not to award punitive damages to the plaintiff. Punitive damages are awarded as a punishment of the defendant and as a deterrent to others from following his/her example. The plaintiff is not automatically entitled to punitive damages simply because you have found that the defendant has [insert a description of the specific defamatory conduct giving rise to a claim for punitive damages] or because you have awarded actual damages to compensate the plaintiff for his/her injury.(8)
Initially, I want to advise you that the purposes of punitive damages are different from the purposes of compensatory damages. Compensatory damages are intended to compensate the plaintiff for the actual injury or loss the plaintiff suffered as a result of the defendant's misconduct. In contrast, punitive damages are intended to punish a wrongdoer and to deter that wrongdoer and others from similar wrongful conduct in the future.(9) Punitive damages are designed to require the wrongdoer to pay an amount of money that is sufficient to punish the defendant for particular conduct and to deter that defendant from misconduct in the future. Punitive damages are also designed to serve as an example to discourage anyone else from committing similar acts.
I will now explain the considerations that should govern your decision on whether punitive damages should be awarded to the plaintiff in this case.
[When the speech is of exclusively private concern and the plaintiff is a private figure, charge the following paragraph. In all other cases (e.g., where plaintiff is a public official or private figure, and the speech at issue is of public concern), the following paragraph should be omitted.]
To support an award of punitive damages, you must find that the defendant acted with ill-will or with a wrongful intent to injure the plaintiff.(10) In making this determination, you should consider whether the defendant was motivated by an actual desire to harm the plaintiff or a calculated disregard of the consequences rather than from a desire to publish a statement that defendant honestly believed to be true. The mere act of (making) (publishing) the defamatory statement is not sufficient to justify an award of punitive damages. The evidence must establish ill feeling, personal hostility or spite, or an actual desire to hurt the plaintiff without belief or without any reasonable grounds to believe in the truth of the (libelous) (slanderous) statement.
[When plaintiff is a public official or private figure, and the speech at issue is of a public concern, the jury instructions on punitive damages should be modified at this point in two significant respects.
(1) The jury must be instructed that punitive damages can only be awarded if the plaintiff demonstrates that the defendant knew the statement to be false or acted in reckless disregard of its truth or falsity.(11)
(2) The jury must be instructed that plaintiff's burden of proof is "with convincing clarity" or by "clear and convincing evidence."(12)
These two modifications apply to non-media as well as to media defendants.](13)
[TO BE INSTRUCTED IN ALL DEFAMATION CASES]
If you decide that the defendant has engaged in the type of wrongdoing that justifies punitive damages, you must then decide the amount of punitive damages that should be awarded. In determining the amount of punitive damages, you must consider all of the circumstances in this case, including (1) the nature of the wrongdoing; (2) the extent of the injury or harm inflicted by the wrongdoing; (3) the intent of the party committing the wrongdoing; (4) the financial condition or wealth of the defendant and the defendant's ability to pay any award of punitive damages; and (5) the effect the judgment will have upon the defendant.(14) You may also consider any mitigating circumstances that you find may justify reduction of the amount of damages including any punishment the defendant has received or will receive, from other sources for the same misconduct.(15)
Finally, you should make sure that there is a reasonable relationship between the actual injury and the punitive damages.(16) Punitive damages may, however, be higher than, equal to, or lower than actual damages. Punitive damages may also be awarded for wrongful conduct even if you have decided not to award compensatory damages.(17)
After considering all these factors, you should exercise your judgment and determine (1) whether punitive damages should be awarded in this case and (2) if you decide to award punitive damages, what the proper amount should be.
6. Punitive Damages (for defamation actions filed on or after October 27, 1995)(18) (1/97)
NOTES
This charge incorporates the statutory changes in P. L. 1995, c. 142, N.J.S.A. 2A:15-5.9 et seq., the “Punitive Damages Act,” and should only be used for causes of action filed on or after October 27, 1995.(19) The Punitive Damages Act includes the following procedural require ments:
(a) Punitive Damages must be specifically prayed for in the com plaint.
(b) Actions involving punitive damages shall, if requested by any defendant be conducted in a bifurcated trial. However, in light of Herman v. Sunshine Chemical Specialties, 133 N.J. 329, 342 (1993), the trial court should conduct a bifurcated trial on punitive damages even if the defendant has not made such a request. The statute also requires a bifurcated trial with the liability and damages phase of a punitive damage’s action tried separately at the second stage of the bifurcated trial. Evidence relevant only to punitive damages shall not be admissible in the liability and compensatory damages phase. This differs from the manner in which punitive damages actions arising before the effective date of the Punitive Damages Act are tried. (See NOTES in Charge 6.20).
(c) Punitive damages may be awarded only if compensatory damages have been awarded. Nominal damages cannot support an award of punitive damages.
(d) When there are two or more defendants, an award of punitive damages must be specific as to each defendant and each defen dant is liable only for the award made against him or her.
(e) There is a cap on punitive damages – five times the amount of compensatory damages or $350,000, whichever is greater. The jury shall not be informed that there is a cap on punitive dam ages.
(f) Before entering judgment for punitive damages, the trial judge must ascertain whether the award is reasonable and justified in light of the purposes of punitive damages. The judge may reduce or eliminate the award if the judge considers that such action is necessary to satisfy the requirements of the statute. N.J.S.A. 2A:15-5.14(a).
If you find the defendant has [insert a description of the specific defamatory conduct giving rise to a claim for punitive damages], you must consider whether or not to award punitive damages to the plaintiff. Punitive damages are awarded as a punishment of the defendant and as a deterrent to others from following his or her example. The plaintiff is not automatically entitled to punitive damages simply because you have found that the defendant has [insert a description of the specific defamatory conduct giving rise to a claim for punitive damages] or because you have awarded damages to compensate the plaintiff for his/her injury. You may award punitive damages only if the plaintiff has proven certain matters that I am going to explain to you.
Initially, I want to advise you that the purposes of punitive damages are different from the purposes of compensatory damages. Compensatory damages are intended to compensate the plaintiff for the actual injury or loss the plaintiff suffered as a result of the defendant’s misconduct. In contrast, punitive damages are intended to punish a wrongdoer and to deter the wrongdoer and others from similar wrongful conduct in the future.(20) Punitive damages are designed to require the wrongdoer to pay an amount of money that is sufficient to punish the defendant for particular conduct and to deter that defendant from misconduct in the future. Punitive damages are also designed to serve as an example to discourage anyone else from committing similar acts.
I will now explain the considerations that should govern your decision on whether punitive damages should be awarded to the plaintiff in this case. To support an award of punitive damages you must find that the plaintiff has proved, by clear and convincing evidence, that the harm suffered by the plaintiff was the result of defendant’s actions or omissions(21) and that either (1) the defendant’s conduct was malicious or (2) the defendant acted in wanton and willful disregard of another’s rights. Malicious conduct is intentional wrongdoing in the sense of an evil-minded act. Willful or wanton conduct is a deliberate act or omission with knowledge or a high degree of probability of harm to another who foreseeably might be harmed by defendant’s acts or omissions and reckless indifference to the consequence of the acts or omissions.
NOTES
When the plaintiff is a public official or private figure, and the speech at issue is of a public concern, the jury instructions on punitive damages must contain the following:
(1) The jury must be instructed that punitive damages can only be awarded if the plaintiff demonstrates that the defendant knew the statement to be false or acted in reckless disregard of its truth or falsity.(22)
(2) The jury must be instructed that plaintiff's burden of proof is "with convincing clarity" or by "clear and convincing evidence."(23)
These two modifications apply to non-media as well as to media defendants.(24)
Because the Punitive Damages Act now requires the "clear and convincing" standard of proof, the only significant modification for this category of cases is (1) above.
Remember that I instructed you that the plaintiff must prove certain factors by clear and convincing evidence to be awarded punitive damages. Clear and convincing evidence means that standard of evidence which leaves no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. This standard does not mean that the plaintiff must persuade you beyond a reasonable doubt, but it does require more than a preponderance of evidence to support an award of punitive damages.
In determining whether punitive damages are to be awarded, you should consider all relevant evidence, including but not limited to the following: (1) you should consider the likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct; (2) consider the defendant’s awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant’s conduct; (3) consider the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) consider the duration of the conduct or any concealment of that conduct by the defendant.(25)
If you decide that the defendant has engaged in the type of wrongdoing that justifies punitive damages, you must then decide the amount of punitive damages that should be awarded.
In determining that amount of punitive damages you must consider all relevant evidence, including but not limited to, evidence of the four factors that I previously mentioned to you in connection with your determination as to whether punitive damages should be awarded at all. As you may recall, these factors are (1) the likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct; (2) the defendant’s awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant’s conduct; (3) the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) the duration of the conduct of any concealment of it by the defendant. In addition to these factors, you should also consider the profitability of the misconduct to the defendant; consider when the misconduct was terminated; and consider the financial condition of the defendant or the defendant’s ability to pay the punitive damages award.(26)
Finally you should make sure that there is a reasonable relationship between the actual injury and the punitive damages.(27)
After considering all these factors, you should exercise your judgment and determine (1) whether punitive damages should be awarded in this case; and (2) if you decide to award punitive damages, what the proper amount should be.
(1)Where punitive damages are not being sought, the first paragraph should be appropriately modified to delete any references to punitive damages.
(2)Compensatory damages are further classified in defamation law as general damages and actual damages. The subcommittee feels that these should, wherever possible, be generally referred to as compensatory damages for ease of understanding by the jury. However it is critical for the judge to recognize that the Supreme Court in Rocci v. Ecole Secondaire 165 N.J. 149 states that in defamation actions by a public or private citizen regarding a matter of public interest or concern the plaintiff must prove actual damages (general damages for slander of libel per se will not be presumed). Furthermore the court stated in regard to private defamation cases that do not involve matters of public interest “We reserve for a future case the question whether the doctrine of presumed damages should apply to claims made by a private figure plaintiff where no public interest is implicated.” Id. At 160.
(3)These instructions should only be given when the plaintiff has properly asserted special damages.
(4)Slander per se is defined as words that are slanderous in themselves without proof of actual damages. For example, if an utterance charges (a) the commission of a crime, (b) imputes some offensive or loathsome disease that would tend to deprive a person of society, (c) matters incompatible with business, trade, profession, or office, or (d) charges serious sexual misconduct. Restatement of the Law of Torts, 2d §570 (1976). The continuing availability of general or presumed damages in any defamation case for injury to reputation has been called into question by Rocci v. Ecole Secondaire, supra.
The language in Rocci appears to refer only to cases involving matters of public concern or public interest, which was the situation in Sisler, rather than to private person/ private concern defamation cases. See Sisler, 104 N.J. at 280 n. 5, where the New Jersey Supreme Court appears to adopt the plurality opinion in Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-62, 105 S.Ct. 2939, 2944-46, 86 L.Ed. 593, 604 (1985) (in private person/private concern defamation actions, presumed and punitive damages may be awarded without necessity to show "actual malice," i.e., knowledge of falsity or reckless disregard of truth). However, clarification of this issue must await further decisional law as stated in Rocci v. Ecole Secondaire, supra. “In situations where the actual malice standard applies, a defamation plaintiff cannot rely on the doctrine of presumed damages absent a finding that the defendant published a statement with knowledge that it was false and with reckless disregard of whether it was false or not.” quoting N.Y. Times v. Sullivan 376 U.S. 254 (1964).
(5)Do not charge this portion of first sentence if special damages have not been claimed.
(6)This instruction should only be given when the speech is of exclusively private concern and the plaintiff is a private figure. Otherwise, the plaintiff may only be awarded compensatory damages for actual injury (e.g., impairment to reputation and standing in community, personal humiliation, and mental anguish and suffering), where the plaintiff establishes the defendant knew the statement to be false or acted in reckless disregard of its truth or falsity. Sisler v. Gannett Co., Inc. 104 N.J. 256, 280 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50, 94 S.Ct. 2997, 3012 (1974). Actual injury is, as indicated above, not limited to out-of-pocket loss.
In these cases, the jury should also be instructed that plaintiff must satisfy a burden of "convincing clarity" or "clear and convincing evidence," Rocci v. Ecole Secondaire, supra; Pitts v. Newark Bd. of Educ., supra; Lawrence v. Bauer Pub. & Print Ltd., 89 N.J. 451, 466, 468 (1982) and must offer concrete proof that his/her reputation has been injured. Sisler v. Gannett Co., Inc., 104 N.J. 256, 281 (1986). Awards based on a plaintiff's testimony alone or on inferred damages are unacceptable. Id.
(7)The Punitive Damages Act, N.J.S.A. 2A:15-5.1 et seq. applies to all causes of action filed on or after October 27, 1995. See 3.11C, Section 6. for punitive damages claims in defamation actions filed on or after October 27, 1995. On the effective date of the Punitive Damages Act, see NOTES to Model Civil Jury Charge 6.20 Damages--Punitive.
The Committee notes that the Supreme Court of the United States has held that the common law method for assessing punitive damages is not per se unconstitutional. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed. 2d 1 (1991). See also, TXO Production Corp. v. Alliance Resources Corp., 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (upholding the constitutionality of a punitive damage award 526 times as large as the actual damages). On bifurcation of the jury's consideration of compensatory and punitive damages in a defamation action, see NOTES to Model Civil Jury Charges 6.20 Damages -- Punitive.
(8)The common law term "malice" applies to punitive damage proofs but it is confusing and potentially misleading in light of constitutional developments in the defamation area, Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 150-51 (1986). Actual malice in defamation suits to prove actual compensatory damages is defined, In Pitts v. Newark Bd. of Educ., supra, as “actual knowledge that the statement he is making is false or when he entertains serious doubts as to its truth.”
(9)Nappe v. Anschelewitz, Barr, Ansell & Bonella, 97 N.J. 37, 48-49 (1984); DeGiovanni v. Pessel, 55 N.J. 188, 190-91 (1970).
(10)Weir v. McEwan, 94 N.J.L. 92, 109 A. 355 (1920); Bock v. Plainfield Courier News, 45 N.J. Super. 302, (App. Div. 1957)
(11)Burke v. Delner, 97 N.J. 465, 477 n.2 (1984); Vassallo v. Bell, 221 N.J. Super. 347, 374 (App. Div. 1987); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50, 94 S.Ct. 2997, 3012 (1984).
(12)Lawrence v. Bauer Pub. & Print., Ltd., 89 N.J. 451, 466, 468 (1982); Burke v. Delner, 97 N.J. 465, 481 (1984). See also Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 155 (1986).
(13)Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 153 (1986). See also, Turf Lawnmowers Repair v. Bergen Record Corp., 139 N.J. 392, 402-403 (1995).
(14)Leimgruber v. Claridge Associates, Ltd., 73 N.J. 444, 456 (1977). See also, Herman v. Sunshine Chemical Specialities, Inc., 133 N.J. at 345.
(15)Id. at 456.
(16)Fisher v. John-Manville Corp., 103 N.J. 643, 673 (1986).
(17)Nappe v. Anschelewitz, Barr, Ansell & Bonella, 97 N.J. at 50.
(18)The Committee believes that the trial judge has discretion to decide whether or not to explain at the outset of a trial that there is a request for punitive damages. In any event, the trial judge should take into account the possible length of the bifurcated procedures in a punitive damage’s action when discussing the trial days it will take to complete the case.
(19)On the effective date of the Punitive Damages Act, see NOTES to Model Civil Jury Charge 6.20 Damages--Punitive.
(20)Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984); DeGiova
