Tort Law

The cases below are a compilation of cases from the Virginia Supreme Court summarized by Brien Roche dealing with the topic of privilege in defamation and the related topic of intentional torts. For more information on defamation see the pages on Wikipedia.

Defamation Privilege-Cases

2013 Cashion v. Smith, 286 Va. 327, 749 S.E.2d 526.
Malice may defeat a qualified privilege. Malice can be found in knowledge of the fact that the statements were false, acting with reckless disregard for the truth, communicating statements to a third party who has no duty or interest in the matter, personal ill will, strong or violent language disproportionate to the occasion or the fact that the statements were not made in good faith.

2011 Isle of Wight County v. Nogiec, 281 Va. 140, 704 S.E.2d 83.
In this defamation action the statements alleged were not absolutely privileged because they were not made during a legislative proceeding. The qualified privilege for reports to a legislative body was applicable making them actionable only if the plaintiff was able to prove they were made with malice.

2004 Lindeman v. Lesnick, 268 Va. 532, 604 S.E.2d 55.
Defamation privilege. Action wherein defendant asserted absolute privilege on grounds that comments were made by worker’s compensation award recipient to his counsel long after the award of benefits was finalized. In this case, the privilege did not apply. Absolute privilege applies to communications made in proceedings pending in a court or before a quasi-judicial body. If made in that context, then the communication need only be relevant and pertinent.

2000 Larimore v. Blaylock, 259 Va. 568, 528 S.E.2d 119.<
Defamation privilege.Professor filed defamation action against members of tenure review committee at Radford University. Defendants alleged that they were immune under doctrine of intra-corporate immunity and protected by qualified privilege. Court concluded that there is no basis for applying absolute immunity to all transmissions of defamatory statements between members of the corporate entity. The doctrine of qualified privilege did apply and plaintiff’s tenure application process was privileged occasion and any defamatory statements communicated by defendants to board of visitors and members of university administration were entitled to qualified privilege, which shields them from liability unless there is a showing of malice by clear and convincing evidence.

1995 Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42.
Defamation privilege.Police officer informed employer of plaintiff of alleged drug activity by plaintiff. Communication was protected by privilege. Privilege is not applicable, however, if privilege is abused. Privilege is abused when plaintiff proves by clear and convincing evidence the existence of either New York Times malice or common-law malice. Jury found that privilege in this instance had been abused.

1993 Southeastern Tidewater Opportunity Project v. Bade, 246 Va. 273, 435 S.E.2d 131.
Defamation privilege.Plaintiff was employed as comptroller for defendant. Lucas was executive director of defendant. Lucas terminated plaintiff’s employment by delivering to him letter stating that defendant’s status had been jeopardized because of actions of plaintiff which plaintiff must have known were against law. This letter is protected under qualified privilege since it was written in context of employment relationship. Such privilege is lost if plaintiff proves by clear and convincing evidence that defamatory words were spoken with common-law malice. Common-law malice is behavior actuated by motive of personal spite, ill will, independent of occasion upon which communication was made or that communication was made with such gross indifference and recklessness as to amount to wanton and willful disregard of rights of plaintiff. Plaintiff failed to meet burden of proving common-law malice by clear and convincing evidence.

1991 Smalls v. Wright, 241 Va. 52, 399 S.E.2d 805.
Defamation privilege.Defendant wrote to police chief complaining about conduct of plaintiff police officer in conduct of his duties. Communication made in good faith on subject of which communicating party has interest or owes duty, and is qualifiedly privileged if communication is made to party who has corresponding interest or duty. Those requirements are met here. Qualified privilege, however, is lost if plaintiff proves by clear and convincing evidence that defamatory words were spoken with common-law malice. In this instance jury issue was presented on that question.

1987 Oberbroeckling v. Lyle, 234 Va. 373, 362 S.E.2d 682.
Defamation privilege.Burden of proving malice for purpose of defeating qualified privilege is by clear and convincing evidence. It is intermediate proof. More than preponderance of evidence but less than proof beyond reasonable doubt. It does not mean clear and unequivocal.

1985 Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 334 S.E.2d 846.
Defamation privilege. Communication made in good faith, on subject matter in which person communicating has interest or owes duty (legal, moral or social) is qualifiedly privileged if made to person having corresponding interest or duty. It is for court to decide whether privilege exists and whether it is qualified or absolute. Proof of New York Times malice or common-law malice will defeat qualified privilege.

1985 The Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713.
Qualified defamation privilege will not be defeated by showing of mere negligence. Plaintiff instead must prove common-law malice, i.e., behavior actuated by motives of personal spite or ill will independent of the occasion on which communication was made. Qualified privilege may arise from reporting of court proceedings. That privilege did not apply here since defendant went beyond simply reporting court proceedings.

1979 Preston v. Land, 220 Va. 118, 255 S.E.2d 509.
Defamatory words uttered under qualified defamation privilege not actionable unless actual malice proved. Incident occurred at private club. Defendant called upon to make statement at in-house hearing about incident.

1978 Watt v. McKelvie, 219 Va. 645, 248 S.E.2d 826.
Defamation privilege.Third-party statements made during course of judicial proceedings, which are relevant to subject matter of litigation, are absolutely privileged and may not be used to impose civil liability upon originator of statements.

1976 Tweedy v. J.C. Penney & Co., 216 Va. 596, 221 S.E.2d 152.
Defamation privilege.Where qualified privilege exists, plaintiff must prove actual malice. Qualified privilege referred to in following relationships: store employee and customer; insurance adjustor and insured; employer and employee.

1972 National Ass’n of Letter Carriers v. Austin, 213 Va. 377, 192 S.E.2d 737.
Defamation privilege.Under insulting words statute, as construed, only those words not protected by First Amendment are actionable. Qualified privilege is overcome only through showing of actual malice.

1972 Sanders v. Harris, 213 Va. 369, 192 S.E.2d 754.
Defamation privilege.Newspaper printed erroneous statement regarding events leading up to meeting of college faculty. These were matters of public concern or general (and concededly qualifiedly privileged) concern and burden is on person harmed to show actual malice before damages may be recovered.

1970 Kroger Co. v. Young, 210 Va. 564, 172 S.E.2d 720.
Defamation privilege.Employer made statement to employee as to why another employee was being discharged. Protected by qualified privilege. Where qualified privilege applies, plaintiff must prove malice to prevail.

1967 Elder v. Holland, 208 Va. 15, 155 S.E.2d 369.
Defamation privilege.Defendant published defamatory statement about plaintiff at state police administrative hearing. This hearing did afford defendant qualified privilege.

1961 Story v. Norfolk-Portsmouth Newspapers, 202 Va. 588, 118 S.E.2d 668.
It is court’s duty to decide as matter of law whether occasion is privileged. Absolute privilege applies in following cases: proceedings of legislative bodies, judicial proceedings and communications by military and naval officers. Qualified privilege extends to all communications made in good faith upon any subject matter in which party communicating has interest or in reference to which he has duty to person having corresponding interest or duty. Application of this privilege rebuts prima facie inference of malice arising from statement and puts burden on plaintiff to establish malice.

1958 Haycox v. Dunn, 200 Va. 212, 104 S.E.2d 800.
It is court’s duty to determine as matter of law whether occasion is privileged while question of whether defendant is actuated by malice and has abused occasion and exceeded his privilege are questions for jury. Occasionally question as to whether particular occasion was privileged becomes mixed question of law and fact. Communication honestly made in performance of social duty is no less privileged than one made in self-defense or in protection of one’s own interest. If man is attacked in newspaper, and if his reply is not unnecessarily defamatory and is honestly made in self-defense, it will be privileged.

1957 Crawford & Co. v. Graves, 199 Va. 495, 100 S.E.2d 714.
Plaintiff was chiropodist who treated employee covered by workmen’s compensation insurance. Adjuster made statement to employee that he should go to orthopedist since plaintiff was only qualified to treat ingrown toenails, etc. This communication was covered by qualified privilege which would be lost only if situation was actuated by actual malice. Malice established.

1956 Alexandria Gazette Corp. v. West, 198 Va. 154, 93 S.E.2d 274.
It is court’s duty to determine as matter of law whether something is privileged where evidence is not in conflict as to occasion of privilege or abuse thereof. Both truth and privilege are complete defenses to action for defamation. There are two types of privilege absolute and qualified. Absolutely privileged communication is one for which action will not lie unless there has been abuse of privilege. Publication of public records to which everyone has right of access is privilege if publication is fair and substantially correct statement of record.<

1952 Luhring v. Carter, 193 Va. 529, 69 S.E.2d 416.
Qualified privilege is usually matter to be decided by court. But where evidence of asserted privilege is in substantial conflict, whether or not occasion is one of privilege, becomes mixed question of law and fact to be determined by jury under appropriate instructions from court.

1950 Darnell v. Davis, 190 Va. 701, 58 S.E.2d 68.
Statements made to magistrate in securing or dismissing criminal warrant are statements made in course of judicial proceeding and thus are privileged.

1947 Felvey v. Shaffer, 186 Va. 419, 42 S.E.2d 860.
Privilege relating to words stated in business context was not applicable in this instance since evidence showed that defendant was actuated by malice.

1944 M. Rosenberg & Sons v. Craft, 182 Va. 512, 29 S.E.2d 375.
Normally communications from third party to employer are not privileged unless employer has interest in subject matter.

1944 Massey v. Jones, 182 Va. 200, 28 S.E.2d 623.
Absolute privilege protects individual against liability for defamatory words spoken in course of judicial proceeding when such words are relevant or in response to question. Relevancy in this regard is liberally construed.