Paul's Claims Against Dan, Dan's Possible Defenses, and Paul's Potential Damages for Each Claim
Defamation
Paul (P) may bring a defamation claim against Dan (D). To prevail on a defamation claim, the plaintiff must prove: (1) defamatory statement; (2) concerning the plaintiff; (3) published to a third party. Additionally, if the defamation claim involves a matter of public concern or a public figure, there are two additional elements that the plaintiff must prove in order to not run afoul of the First Amendment. The plaintiff must also prove: (4) the statement is false; and (5) the
intent of the defendant, which will vary depending on the type of plaintiff.
Here, D will argue that the two additional elements.falsity and intent.must be proven because
P is a public figure. D will point to P's memorable roles in the two recent Hollywood
blockbusters. On the other hand, P will argue that he is not a public figure. P will point to the
fact that his roles were small. P may also argue that he's going to law school, which shows that
his acting career is not taking off, and, thus, he is not a public figure. Other factors may also
impact the court's analysis.the media coverage of P generally, whether P is a household name,
and other things about the nature of P's status as a celebrity.
There are no facts to indicate that P's cheating was a matter of public concern. It is not that P
has cheated to win a Nobel peace prize or nationally recognized marathon, which might
constitute a matter of public concern. Whether P qualifies as a public figure is likely a close call,
but given that P was in two blockbuster movies, the court will likely find that P is a public figure,
which means that P will need to prove the two additional elements to prevail on his defamation
claim.
Defamatory Statement
A defamatory statement is a statement that is reasonably likely to harm another's reputation.
The statement generally must be one of fact. Statements of opinion may be actionable if they
imply facts about the plaintiff.
Here, D said "I hope no other student has copied his footnotes from another student's paper
like that two-bit actor Paul." P will argue that D's statement is a factual statement where D
indicates that P copied another student's footnotes. P will argue that this statement constitutes
a defamatory statement. P will argue that in the legal profession where honesty and integrity
are essential, an allegation of plagiarism and cheating are extremely damaging to one's
reputation. P may also try to argue that referring to P as a two-bit actor was also defamatory
because it is a disparaging comment about P's acting skills, which impacts P's reputation.
5
In response, D will argue that the two-bit actor comment is his opinion and, thus, cannot be a
defamatory statement. D has the stronger argument here and will likely prevail. D will also
argue that his statement, which implied that P cheated, was just that.an implication that is not
sufficient to give rise to a claim for defamation. However, D's statement implies the assertion of
facts that P cheated. P has the stronger argument here and a court is likely to find that the
party of D's statement that implies that P cheated constitutes a defamatory statement.
Concerning the plaintiff
A defamatory statement does not need to name the plaintiff specifically, as long as a
reasonable person would know that the statement is referring to plaintiff.
Here, D used P's name in the sentence. And, although D did not specifically say P cheated, he
said that he hoped no other student copied another student's paper like Paul. D also made this
statement during Jack’s and P's class, so the students in the class reasonably knew that D was
referring to P. Additionally, although D did not use P's last name, D did refer to P as a two-bit
actor, making it even more clear who D was referring to. This is sufficient to notify a reasonable
person that D was referring to P. Thus, P is likely to succeed on proving this element.
Published to a Third Party
The defamatory statement must also be published to a third party, which means that a third
party must hear or read or perceive the statement. There are two types of defamation: libel
and slander. Libel is when the defamatory statement is in a permanent format. Traditionally,
libel included defamatory statements that were printed, but modernly, statements that are
captured on television or the radio are also considered libel. Slander are spoken statements,
not captured in a permanent format.
Here, D said the defamatory statement to the class. If P heard the statement, it is reasonable to
conclude that other students in the class also heard the statement. Because the statement was
not in a permanent format, like in print or on television, it is considered Slander.
Falsity of Statement
When the plaintiff is a public figure or the statement concerns a matter of public concern, then
plaintiff also needs to prove falsity of the defamatory statement. As discussed above, P will
likely be considered a public figure.
Here, P will argue that the statement was false. P can prove this through a comparison of P and
Jack's paper. The facts indicate that D mistakenly showed Jack Jack's own paper, so there are no
facts that definitively prove P copied Jack's footnotes.
D may argue that he had a reasonable belief that the statement was true, so that is sufficient to
defeat this claim. However, while that may be relevant for the intent element, as discussed
below, it is irrelevant to the falsity of the statement. There could also be an argument that
although P did not copy Jack's footnotes word for word, he did use ideas from Jack's paper. D
could call Jack as a witness to discuss Jack's missing paper on the day in question and D could
6
testify about P's anxiety and doubts about finishing the paper.
However, the issue will likely come down to a comparison between the two papers. Since there
are no facts to indicate that P actually copied Jack's footnotes, it is likely that P will prevail on
proving that the defamatory statement was false.
D's Intent
If the person is a public figure or the matter is of public concern, the plaintiff will need to prove
that the defendant acted with malice, which means that the defendant intentionally made the
false defamatory statement or made it with reckless disregard for the truth. If the plaintiff is a
private figure and the matter is of public concern, the plaintiff will need to prove that the
defendant acted negligently when making the false defamatory statement. Here, as discussed
above, since P is a public figure, P will also have to prove that D acted with malice.intentional
or reckless disregard for the truth.
P may argue that D's defamatory was intentionally false, but the stronger argument is that P
acted with reckless disregard for the truth. P will argue that D was reckless because he did not
take the care to show Jack the proper paper. P will also argue that D was reckless for not
conducting any further due diligence to determine whether P actually did copy Jack’s footnotes.
D simply took Jack's word for it, after briefly showing Jack the paper in D's office. Based on this
inadequate amount of information, D then accused P in front of the whole class of cheating. P
will also try to highlight how reckless D was by highlighting how it would have been very simple
for D to confirm that P cheated: D could have simply compared P's paper to Jack's paper. And,
because D did not take this simple step, D acted with reckless disregard of the truth when he
made the false defamatory statement.
On the other hand, D will argue that he was not reckless, but rather had a good faith belief that
P cheated. D will say that Jack's statement was sufficient to cause him to believe that P cheated.
D will also point to the fact that he knew P was anxious about the assignment and did not think
he would be able to complete, which gives P motivation to cheat. D will also point to the fact
that Jack explained his suspicions of why he believed P cheated off of Jack's paper to D, which
supported Jack's claim that P copied his footnotes. In sum, D will argue that based on the
totality of the circumstances, he reasonably believed that P copied Jack's footnotes, and, thus,
the statement was not in reckless disregard of the truth.
P has the stronger argument here given that it would have been so simple for D to determine
whether P actually copied Jack's footnotes but D did not do that. Such a failure is a gross
deviation from what a reasonable professor would do, and, thus, it is likely the trier of fact
would find that D acted with reckless disregard of the truth when making the defamatory
statement.
Damages
There are different rules regarding pleading of damages for libel and slander. General damages
are presumed for libel. For slander, special damages are presumed where the defamatory
7
statement falls into a slander per se category: (i) about the person's profession or trade; (ii)
infers that plaintiff suffers from a loathsome disease; (iii) accuses a woman of being unchaste.
Otherwise, if the statement does not fall into the slander per se category, the plaintiff must
specifically plead and prove damages.
Here, P will argue that D's statement falls into a slander per se category of being about the
person's profession or trade. P will argue that the statement refers to his profession of actor,
but since that statement is not considered a defamatory statement, that argument will likely be
unsuccessful. P will also argue that the statement about cheating, although not directly about
P's ability to be an attorney, is essentially about P's soon-to-be profession.
D, in contrast, will argue that the statement does not fall into the slander per se categories
because P is not yet a lawyer so the statement was not about P's profession. And even if P's
attending of law school makes lawyering his profession, the statement was not about P's ability
to be a lawyer necessarily, but about P's cheating on a paper. This is a close call, but because
the statement involves cheating on a law school paper, it seems that would be sufficiently close
to pertaining to P's profession to fall into slander per se, and, thus damages will be presumed.
Intentional Infliction of Emotional Distress (IIED)
To prevail on an IIED claim, the plaintiff must prove: (1) defendant's outrageous and extreme
conduct; (2) caused the plaintiff to experience severe emotional distress.
D's Conduct
Conduct qualifies as extreme and outrageous if a reasonable person would find that it is
offensive and it would cause severe emotional distress in the reasonable person. Additionally, if
the defendant has reason to know about the plaintiff's particular sensitivities, then the
defendant's conduct even if not offensive to a reasonable person may still qualify as extreme
and outrageous behavior.
Here, P will argue that D's behavior was extreme and outrageous because falsely accusing
someone of cheating would be offensive to the reasonable person and would cause emotional
distress for the reasonable person. Additionally, P will argue that even if the reasonable person
standard is not met, D's behavior was extreme and outrageous considering P's particular
sensitivities which D knew about. P will point to the fact that he told D about his anxiety and
doubts about completing the paper and he was having increasing anxiety about failing. The fact
that D noticed P appeared unusually anxious and suggested that P go see the school counselor
will support P's argument that D knew of his particular sensitivities, thus making D's behavior
outrageous even if not outrageous to the reasonable person. P may also try to compare D's
behavior to the behavior of a typical professor and argue that D was acting unprofessionally by
announcing P's alleged cheating to the class rather than following the formal channels of
reporting a student's cheating.
D, in contrast, will argue that his behavior was not outrageous and extreme because it would
not cause a severe panic attack in the reasonable person. D will argue that he made the
8
statement to a small class of people, not to a wide audience, so it was not reasonably likely to
lead to severe emotional distress. P will argue that telling his classmates is even worse than
telling a large group of people who don't know P well because his classmates’ opinions are even
more important than strangers.
D may also argue that he did not know of P's particularities that would make D's conduct
particularly outrageous. D may argue that although P appeared unusually anxious, D assumed
that P had heeded his advice and gone to see the school counselor. Based on D's belief that P
sought treatment, D will argue he reasonably assumed that P no longer suffered from his
anxiety.
This is a close call because it does seem that P's reaction may not be the reaction of a
reasonable person. But given that D knew of P's increasing anxiety about failing, it is likely a
trier of fact would conclude that D's conduct qualified as extreme and outrageous.
P Suffered Severe Emotional Distress
For an IIED claim, the defendant's conduct must not only cause emotional distress in a
reasonable person, but plaintiff must have also experienced emotional distress.
Here, the facts indicate that P suffered a severe panic attack. This will likely be sufficient to
qualify as severe emotional distress. Although P did not seek medical treatment, so he does not
have medical records to back up his claim, P's testimony, if believed, about his panic attack will
be sufficient to satisfy this element. However, since there are no medical records, that leaves P
open to D's claims that the severe panic attack did not occur.
D's Conduct Caused P's Severe Emotional Distress
For causation to exist, there must be both actual and proximate causation. Actual cause means
that the defendant's conduct was either the but for cause or substantial factor. But for cause
means that but for defendant's conduct the injury to plaintiff would not have occurred.
Substantial factor occurs when there are multiple contributing factors, so it is impossible to
determine the but for cause and the plaintiff's injury and defendant's conduct was a substantial
factor in causing the injury. Proximate cause exists when the plaintiff's injury was a reasonably
foreseeable result of defendant's conduct.
Here, P will argue that D's defamatory statement was the actual cause and proximate cause of
his severe panic attack. P will argue that but for D's false statement about cheating, he would
not have been deeply humiliated which triggered his severe panic attack. P will also argue that
P's panic attack was a foreseeable result of D's statement. P will make similar arguments about
why the panic attack was a foreseeable result of making such an outrageous defamatory
statement.
In response, D may try to argue that P was prone to anxiety so D's statement could not have
been either the but for cause or the proximate cause of P's severe panic attack. D will point to
P's increasing anxiety which P stated and D observed. But, that will not be enough to defeat P's
claim. Under the eggshell doctrine, a defendant takes his plaintiff as they come. That P may
9
have been prone to panic attacks will not defeat P's causation element. Thus, it is likely a trier
of fact will find that D's statement caused.both actual and proximate.P's severe panic attack
given that it occurred close in time to D's statement and D's statement was outrageous. and
would either produce a similar result in a reasonable person or D knew or should have known it
would produce such a result in P given P's particular sensitivities.
Damages
If P is successful in proving his IIED claim, which is a close call but likely, then P will be able to
recover damages from D. In a tort action, the plaintiff may recover compensatory damages,
consequential damages and incidental damages. These types of damages must be reasonably
certain, caused (both actual and proximate) by defendant's conduct, and unavoidable. A
plaintiff has a duty to mitigate damages.
Here, P did not seek medical treatment for his panic attack. Seeking medical treatment
is considered a necessary means of mitigating damages that a plaintiff must take if reasonable
under the circumstances and would not result in undue burden or humiliation. If D can show
that P's damages would have been reduced had P sought medical treatment, then D may
successfully be able to reduce P's damages by the amount they would have been reduced had P
sought medical treatment.
Negligent Infliction of Emotional Distress (NIED)
To prevail on an NIED claim, the plaintiff must prove that (1) defendant's conduct was extreme
and outrageous; (2) plaintiff was in the zone of danger; and (3) although plaintiff did not suffer
physical harm from defendant's conduct, plaintiff suffered physical harm as a result of
emotional distress. (There is also another circumstance in which a plaintiff may bring an NIED
claim that involves harm to the plaintiff's family member, but that is not applicable under these
facts.)
Here, there is no evidence that P's severe panic attack caused him physical harm so it is unlikely
he will be able to bring an NIED claim.
Conclusion
P will bring a defamation and IIED claim against D. D will argue against the specific elements of
those claims as discussed in above in defense of P's claims. If P prevails in his claim, P will be
able to seek damages subject to the arguments that D can make to decrease the amount of
those damages.