June 26, 2018
In a slander action before the United States District Court on diversity jurisdiction, the jury returned a verdict awarding Plaintiff compensatory and punitive damages. The Defendant’s motion for judgment as a matter of law following the verdict was denied. This appeal to the Fourth Circuit followed, affording the court the opportunity to briefly review the substantive law of South Carolina on defamation. Myers v. Dollar General Corporation, 2018 WL 3060118 (June 20, 2018).[i] The court briefly reviewed the substantive law of South Carolina on defamation.
In Myers, the Defendant’s manager reported to the Charleston County Sheriff’s Department that Myers and her nephew were shoplifters. Myers and her nephew were detained, but released with only warning citations. No criminal charges followed.
In order to prevail on a slander claim, a plaintiff must establish 1) a false and defamatory statement was made; 2) the unprivileged publication was made to a third party; 3) the publisher was at fault and 4) the statement is actionable. Where, as here, the statement attributes a crime of moral turpitude to a plaintiff, it is actionable per se and the defendant is presumed to have acted with common law malice. In such an instance, general damages to the plaintiff are assumed.
The publication of a defamatory statement is not actionable if the publication is made under circumstances that render it subject to a conditional or qualified privilege and the privilege is not abused. The elements of a privilege are good faith, an interest to be upheld, a limited statement to that purpose, a proper occasion and the proper manner of publication to only proper parties. A privilege establishes a prima facie presumption to rebut the inference of malice, thereby shifting the burden to plaintiff to show actual malice or that the scope of privilege was exceeded.
The abuse of a privilege occurs when either a statement made in good faith exceeds the scope of what is reasonable or a statement is made in reckless disregard of the plaintiff’s rights. Generally, whether a privilege exists is a question of law; whether the privilege has been abused is a question of fact.
The court also briefly addressed the jury’s award of punitive damages in Myers. The Defendant argued the district court erred in its failure to instruct the jury it had to find, by clear and convincing evidence, that it acted with actual malice. While the district court did not use the specific phrase “actual malice” in its jury instructions on punitive damages, its instruction was very similar to the instruction requested by Dollar General. Additionally, the court went on to instruct the jury that entitlement to punitive damages must be established by clear and convincing evidence.
Following its succinct review of South Carolina law on defamation, the Fourth Circuit found the Defendant’s motions for judgment as a matter of law were properly denied and the jury award was affirmed.
[i] This opinion is unpublished and is not binding precedent in the Fourth Circuit.
Cheryl D. Shoun is a trial attorney and certified mediator whose experience includes construction law, insurance defense, personal injury defense, employment litigation and medical malpractice. As a frequent writer, she serves as editor for Nexsen Pruet's TIPS: Torts, Insurance and Products Blog.