The Ohio Supreme Court recently revisited the issue of the legal standard associated with defamation. This particular case is included in the Newsletter inasmuch as a thorough understanding of defamation is critical not only to a determination as to legal liability, but also in the context of the duty to defend/duty to indemnify. 

 

            The concept of “actual malice” was derivative of the historic case of New York Times v. Sullivan, (1964) 376 U.S. 254. The U.S. Supreme Court ruled that the First Amendment does afford protection for the publication of statements about public officials, even false ones, unless the statement is made with actual malice which was defined as knowledge that the statement was false or in reckless disregard of their truth. Over the decades, generic phraseology for this holding was that, as it relates to public officials, the only actionable claims were those that included “Times malice.” 

 

            In Jackson, supra, the Ohio Supreme Court reversed the granting of summary judgment in favor of the City of Columbus and its former Public Safety Director, Thomas W. Rice. James Jackson, Chief of the Columbus Police, had filed a claim alleging that Mr. Rice had included “defamatory allegations” about him in an official report completed by Mr. Rice at the direction of the Mayor of Columbus. 

 

            The court reviewed the Ohio cases interpretive of the defamation standard in paragraphs 9 - 11 of its opinion and stated the following:

 

            “In Ohio, defamation occurs when a publication contains a false statement ‘made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.’ (Citations omitted.) If a claimant establishes a prima facie case of defamation, a defendant may then invoke a conditional or qualified privilege. (Citation omitted.) In Hahn, we stated, ‘The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.’ (Citations omitted.) A qualified privilege may be defeated only if a claimant proves with convincing clarity that a publisher acted with actual malice. (Citations omitted.) Thus, actual malice in the context of a defamation action constitutes an ‘abuse of privilege.’

 

            ‘In a qualified privilege case ‘actual malice’ is defined as acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity.’ (Citation omitted.) The phrase ‘reckless disregard’ applies when a publisher of defamatory statements acts with a ‘high degree of awareness of their probable falsity,’ (Citation omitted.) or when the publisher ‘in fact entertained serious doubts as to the truth of his publication.’

 

            ‘In ruling upon defendant’s motion for summary judgment in a libel action brought by a public official, the court shall consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff to determine whether a reasonable jury could find actual malice with convincing clarity.’ (Citation omitted.) Thus, even though we are applying a heightened ‘convincing clarity’ standard, we must construe all evidence in this case most strongly in favor of Jackson, the nonmoving party.”

 

            The Ohio Supreme Court went on to reverse the granting of summary judgment and the case was remanded to the trial court.

 

            In the context of a public official, the prerequisite of “actual malice” in order to establish a viable defamation claim significantly impacts the duty to defend and duty to indemnify analysis and serves as the cornerstone of legal liability for a defamation claim associated with a public official.

 

 

           

 

            The first step in the analysis of a defamation case turns on the issue as to the status of the person allegedly defamed. Classification of that individual’s status determines the appropriate standard of liability based upon interpretive case law. 

 

            The foregoing assertion is buttressed by the analysis articulated by the Seventh District Court of Appeals in McPeek, supra wherein the court stated the following in paragraph 11 of its opinion. 

 

            “A plaintiff in a defamation suit may be classified as a private person, a public official, a public figure, or a limited purposed public figure. (Citation omitted.) A plaintiff’s classification, which determines his burden of proof, is a question of law. (Citation omitted.) Appellant has not alleged that he is a public figure or public official, and therefore, he falls under the standard applicable for private persons. ‘In private-figure defamation actions, where a prima facie showing of defamation is made by a plaintiff, the plaintiff must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication.’”

 

            McPeek involved the situation wherein the plaintiff had filed a defamation action against the Leetonia Italian-American Club wherein the plaintiff was a member. The plaintiff apparently had been suspended from the club for 60 days as a result of accusations of malfeasance or violation of club rules and regulations. After appearing at a disciplinary hearing, the foregoing suspension was imposed by the club hierarchy and the predicate of the plaintiff’s lawsuit was that the disciplinary proceedings had been communicated to third parties.

 

            The court set forth the standard for libel and slander and stated in paragraph 8 of its opinion, the following:

 

            “A defamatory statement expressed in a writing, a picture, a sign, or an electronic broadcast is considered libel. (Citation omitted.) Slander, on the other hand, generally refers to spoken defamatory words. (Citation omitted.)   To prevail on a defamation claim, whether libel or slander, a plaintiff must prove the following elements: (1) a false statement, (2) about the plaintiff, (3) was published without privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) the statement was either defamatory per se or caused special harm to the plaintiff. (Citation omitted.)”

 

            It should be noted that the court reaffirmed the proposition that truth is an absolute defense to a claim of defamation. However, the foregoing case is illuminating in light of the fact that, in the arena of defamation for private individuals, the standard resonates more on negligence, as opposed to intentional or reckless conduct (actual malice). Therefore, a determination of the status of the aggrieved plaintiff disposes of the issue of the requisite standard of liability which also would have a significant impact on the duty to defend analysis.

 

 

 

 

            In McElhaney, the Seventh District Court of Appeals heard a case involving the granting of a motion for a directed verdict for the defendant at the conclusion of the plaintiff’s opening statement. Factually, the injured plaintiff had entered a store named “Marc’s” and was injured when he sat in a lawn chair which immediately collapsed. The plaintiff’s weight was approximately 250 pounds and the bottom of the chair indicated a weight limit for the chair of 200 pounds. The store did not display a sign stating the weight limit for the chair was 200 pounds. However, the trial court found in its ruling that the chair’s weight limit was open and obvious and, therefore, the store was not legally liable under the theory of premises liability. 

 

            The court reviewed the applicable standard in that factual context and stated in paragraphs 31 – 33 of its opinion, the following:

 

            “We find no error with the trial court’s determination that this is a premises-liability case. ‘In premises liability situations, the duty that an owner of land owes to individuals coming onto the property is determined by the relationship between the parties. (Citation omitted.) The standard of care changes depending upon whether the entrant is characterized as an invitee, licensee or trespasser.’ (Citation omitted.)

 

            Typically, a customer who enters a store is a business invitee. An invitee is one who enters the premises of another by invitation for some purpose that is beneficial to the owner or occupier. (Citation omitted.) The owner has the duty to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition. (Citation omitted.)

 

            Here we do not have a typical premises-liability situation in which a customer is injured on the store’s premises by falling in a pothole, tripping over a product, or having merchandise fall on them. Instead, we have a display of lawn chairs, and when the customer sat in one of the chairs, it collapsed and injured the customer. The failure of the product is what caused the injury. However, the fact does not negate the ability to pursue a premises-liability cause of action. When a display is used to entice a customer to use the product in the store, the premises owner has a duty to warn of any dangers that it is aware of that are not obvious to the customer.”

 

            The court concluded that a question of fact existed as to whether or not the store had a duty to warn of the weight limit or whether or not the weight limit was open and obvious. The court further concluded that terminating the case via the granting of a directed verdict motion at the close of the plaintiff’s opening statement was inappropriate and, therefore, the case was reversed and remanded. The court concluded its opinion by stating in paragraph 39, the following:

 

            “We find that this is a question of fact for the jury. A lot of different factors would play into whether or not this was an open and obvious hazard. For instance, what the chair looked like would be a factor. If it looked flimsy or cheap, then it might reasonably be expected that a reasonable person would seek the weight limit prior to sitting in the chair. Another consideration might also be whether a reasonable person would look for a weight limit on a chair prior to sitting on it.”

 

            The case is interesting inasmuch as it appropriately reviews the importance of first determining the classification of the plaintiff to then apply the appropriate standard of law which was thematic in the two preceding cases included in the Newsletter and also was an interesting combined analysis of the concepts of “duty to warn” and “open and obvious.”