Defamation per se

[Shebarb]

Your post with this information is missing. If you previewed your post prior to submitting it, and you are using a mobile device, that erases content.

Right now, you have me totally confused.

What publisher, what neighbor with gun, what privilege?

Did a newspaper print a story that you believe was false?

And who are you in all of this?

Once again, I am sorry. I cannot re-type the whole thing again (3rd time) and there's no way to concise it. Once I get to an actual computer I will certainly do that. Thank you for clearing up for me why my original post disappeared and what the problem is/was. I am on a mobile device. - I will at least tell you that it is slander and was published verbally. I was accused of commiting and/or attempting to commit a crime. I will gladly provide all of the details when I can get to my local library within a few days. Thanks so much again and sorry for the confusion. Thanks very much to all others as well for trying to help anyway. I appreciate it very much.

 

[quincy]

Once again, I am sorry. I cannot re-type the whole thing again (3rd time) and there's no way to concise it. Once I get to an actual computer I will certainly do that. Thank you for clearing up for me why my original post disappeared and what the problem is/was. I am on a mobile device. - I will at least tell you that it is slander and was published verbally. I was accused of commiting and/or attempting to commit a crime. I will gladly provide all of the details when I can get to my local library within a few days. Thanks so much again and sorry for the confusion. Thanks very much to all others as well for trying to help anyway. I appreciate it very much.

I understand the frustration of having typed a post only to have it disappear. The cell phone glitch has been a problem for many. That said, posts apparently only disappear with the preview feature when starting a thread (the first post). It doesn't seem to be an issue with subsequent posts.

At any rate, we will keep this thread warm for you until you can return.

 

[Shebarb]

Okay. Shooting blind here.

News media can publish defamatory statements if these defamatory statements are from legislative, judicial or other public and official proceedings. There is a qualified privilege that attaches to fair and accurate reports of these statements.

This privilege is qualified (as opposed to absolute) because it will not hold if the report is made with actual malice (knowingly false published with an intent to harm) or if it is not a fair and accurate accounting of what was stated or if additional comments have been added to change or skew the facts.

It is very difficult to successfully sue a traditional publisher for defamation. Not impossible, but difficult and very expensive.

And that is about all I can say about the story of a publisher, a man with a gun and qualified privilege.

Upon reading a death notice of a friend just after midnight, I drove 1-2 minutes to his apartment in hopes that he would answer. I was upset and in shock. It was a brief listing and not a full obituary. When I arrived, I knocked on the door and stepped back. I knocked a second time and stepped back again. I did not touch the door knob nor did I try to push the door open. The only thing to touch the door was my knuckles to knock.

A downstairs neighbor came outside with a gun shortly after I began to get upset. I tried my best to muffle my crying with the flap of my jacket and was kneeling down. He thought my crying was laughing and that I was a burglar. Even though he recognized me, he accused me at first of breaking into my friend's apartment. For whatever reason, he later changed it to I tried to break in. I showed him exactly what I did as far as knocking. I told him I had just read the death notice. He told me he would have believed why I was there except in his words "you could not have known he died. You could not have just seen the death notice because he just passed away today". I explained to him that at midnight the new notices are published. The day and date changes to the next day obviously. New obituary listings are posted at midnight.

I figured by the time I saw him, the neighbor who accused me, at the service he would have discovered the truth by then and maybe even offered an apology. When I went to the service a couple weeks later, I hugged and spoke to a few family members before I was escorted out. One of the sisters of the deceased told me I had to leave because she heard I tried breaking into her brother's apartment. She also pointed out who told her this which was the neighbor. I was shocked but I respectfully left as that day wasn't about me even though I wanted to stay. It was about the family that was grieving. I would not have and could not have walked into the service had I done such a thing. I basically grew up with the family. When the sister told me I had to leave and why, it was loud. Almost everyone at the service overheard this. I was escorted out. I am not blaming her because she was already upset about losing her brother and then had to hear from her brother's neighbor that I tried to break in. Again, I understand it was late but he only assumed. He said he would have belived me if there was an actual obit listing. I had left my phone at home so I could not show him what I just saw/the obit listing. He refused to go get his phone to check. Maybe he does not have the web on his phone. I understand that, but I told him he could call the funeral home to check what I had told him was the truth. He obviously never did.

I am suing this person for a small amount for defamation per se in small claims court. The hardest part is having the sister of the deceased subpoenaed. I purposely waited almost a year because of this. I still may not have her subpoenaed because of the heartache she would endure. I may go through with the case without her.

I believe it was somewhat reckless on my part to go to my friend's apartment after midnight. But I think it was a little overboard for this neighbor to come out with a shotgun. He ran out to the street at one point with the gun because he thought I was "with people" trying to break into my friend's apt. I was actually happy to see him at first to talk and find out if what I just read was true and to find out what happened until he pointed out the shotgun. He did not point it at me, but I was scared senseless.

Even though he told the sister of the deceased (her brother ) which is a qualified or conditional privilege, do you think he should lose that privilege due to negligence? I believe he was negligent because he failed to check what I had told him regarding the date and time the obit was listed.

I am going through with this case. Even though I did not do what I have been accused of, I am nervous to go to court.

 

[Shebarb]

I understand the frustration of having typed a post only to have it disappear. The cell phone glitch has been a problem for many. That said, posts apparently only disappear with the preview feature when starting a thread (the first post). It doesn't seem to be an issue with subsequent posts.

At any rate, we will keep this thread warm for you until you can return.

I understand there was reasonable suspicion on his part, but I would have rather he called the police. I understand it would have been in good faith. But it's hard to understand that he just accuse me of committing a crime or trying to. And then just tell people that especially without checking what I told him about just seeing the obit notice online.

 

[quincy]

Upon reading a death notice of a friend just after midnight, I drove 1-2 minutes to his apartment in hopes that he would answer. I was upset and in shock. It was a brief listing and not a full obituary. When I arrived, I knocked on the door and stepped back. I knocked a second time and stepped back again. I did not touch the door knob nor did I try to push the door open. The only thing to touch the door was my knuckles to knock.

A downstairs neighbor came outside with a gun shortly after I began to get upset. I tried my best to muffle my crying with the flap of my jacket and was kneeling down. He thought my crying was laughing and that I was a burglar. Even though he recognized me, he accused me at first of breaking into my friend's apartment. For whatever reason, he later changed it to I tried to break in. I showed him exactly what I did as far as knocking. I told him I had just read the death notice. He told me he would have believed why I was there except in his words "you could not have known he died. You could not have just seen the death notice because he just passed away today". I explained to him that at midnight the new notices are published. The day and date changes to the next day obviously. New obituary listings are posted at midnight.

I figured by the time I saw him, the neighbor who accused me, at the service he would have discovered the truth by then and maybe even offered an apology. When I went to the service a couple weeks later, I hugged and spoke to a few family members before I was escorted out. One of the sisters of the deceased told me I had to leave because she heard I tried breaking into her brother's apartment. She also pointed out who told her this which was the neighbor. I was shocked but I respectfully left as that day wasn't about me even though I wanted to stay. It was about the family that was grieving. I would not have and could not have walked into the service had I done such a thing. I basically grew up with the family. When the sister told me I had to leave and why, it was loud. Almost everyone at the service overheard this. I was escorted out. I am not blaming her because she was already upset about losing her brother and then had to hear from her brother's neighbor that I tried to break in. Again, I understand it was late but he only assumed. He said he would have belived me if there was an actual obit listing. I had left my phone at home so I could not show him what I just saw/the obit listing. He refused to go get his phone to check. Maybe he does not have the web on his phone. I understand that, but I told him he could call the funeral home to check what I had told him was the truth. He obviously never did.

I am suing this person for a small amount for defamation per se in small claims court. The hardest part is having the sister of the deceased subpoenaed. I purposely waited almost a year because of this. I still may not have her subpoenaed because of the heartache she would endure. I may go through with the case without her.

I believe it was somewhat reckless on my part to go to my friend's apartment after midnight. But I think it was a little overboard for this neighbor to come out with a shotgun. He ran out to the street at one point with the gun because he thought I was "with people" trying to break into my friend's apt. I was actually happy to see him at first to talk and find out if what I just read was true and to find out what happened until he pointed out the shotgun. He did not point it at me, but I was scared senseless.

Even though he told the sister of the deceased (her brother ) which is a qualified or conditional privilege, do you think he should lose that privilege due to negligence? I believe he was negligent because he failed to check what I had told him regarding the date and time the obit was listed.

I am going through with this case. Even though I did not do what I have been accused of, I am nervous to go to court.

First, no privilege covers what was said by the neighbor to the relative (although a qualified privilege attaches to reports made to the police) - so "privilege" is not a defense available to the neighbor. His best defense to a claim of defamation could be truth (or substantial truth) depending on what EXACTLY he said to the relative.

If you are considering a defamation claim against the neighbor, you will need the relative (or others) to testify to what the neighbor said about the incident at the apartment of your deceased friend. If the neighbor did in fact say you WERE breaking into the apartment (as opposed to saying it appeared to him you were breaking into the apartment) then that could be determined by the judge to be per se defamation. The neighbor was essentially accusing you of a crime.

Although defamatory per se statements that are communicated to others allows you to file a claim without proof of injury, WITHOUT proof of injury, damages awarded can be nominal (as low as $1 in some states).

Proving the neighbor was negligent could be a challenge for you. It might be seen as reasonable for him to pass along what he saw. The relative who knows you might have been the better one to determine the truth behind what the neighbor said.

Given what you have said, it could be worthwhile for you to speak with a defamation lawyer in your area for an opinion. Without demonstrable economic harm this would not be a small claims action, and any action you take is unlikely to result in a large award of damages (if you were to be successful in a suit and there is no guarantee of success).

A personal review can help you determine better if this is something worth the time and expense of pursuing.

 

[Shebarb]

First, no privilege covers what was said by the neighbor to the relative (although a qualified privilege attaches to reports made to the police) - so "privilege" is not a defense available to the neighbor. His best defense to a claim of defamation could be truth (or substantial truth) depending on what EXACTLY he said to the relative.

If you are considering a defamation claim against the neighbor, you will need the relative (or others) to testify to what the neighbor said about the incident at the apartment of your deceased friend. If the neighbor did in fact say you WERE breaking into the apartment (as opposed to saying it appeared to him you were breaking into the apartment) then that could be determined by the judge to be per se defamation. The neighbor was essentially accusing you of a crime.

Although defamatory per se statements that are communicated to others allows you to file a claim without proof of injury, WITHOUT proof of injury, damages awarded can be nominal (as low as $1 in some states).

Proving the neighbor was negligent could be a challenge for you. It might be seen as reasonable for him to pass along what he saw. The relative who knows you might have been the better one to determine the truth behind what the neighbor said.

Given what you have said, it could be worthwhile for you to speak with a defamation lawyer in your area for an opinion. Without demonstrable economic harm this would not be a small claims action, and any action you take is unlikely to result in a large award of damages (if you were to be successful in a suit and there is no guaran6tee of success).

A personal review can help you determine better if this is something worth the time and expense of pursuing.

Thank you Quincy for replying and reading such a long post. The neighbor told the sister of the deceased. I thought that was considered a privileged party since there was a common interest, but I guess I'm wrong. Also, he didn't see me do anything. He was only assuming since it was late past midnight. He had believed me, but then said there was no way I could have seen the death notice already. The new listings post right at midnight and I can prove that. Problem is he never checked. I feel that's considered negligence as what is required in New York state. As far as being reckless with the shotgun. I have no idea what a judge may feel about that. Maybe not relevant to the case. Who knows. I was originally suing for $1500, but asked the court to change it to $5 because it's not so much about the money as is the truth. They said I could not change it for some reason. Either way. I m not going to have a lawyer since it is just small claims anyway. I just hate to have to subpoena the sister of the deceased for obvious reasons. I guess I'll just have to see what happens. How I wish this person/neighbor had just called the police. Thanks again.

 

[quincy]

... He was only assuming since it was late past midnight. He had believed me, but then said there was no way I could have seen the death notice already. The new listings post right at midnight and I can prove that. Problem is he never checked. I feel that's considered negligence as what is required in New York state.

The question is whether a "reasonable person" would have made the same assumptions given the same set of circumstances.

As far as being reckless with the shotgun. I have no idea what a judge may feel about that. Maybe not relevant to the case.

Based on the early morning hours, it was probably not an overreaction by the neighbor. If you feared the neighbor and his gun, a call to the police would have been appropriate.

... it's not so much about the money as is the truth. They said I could not change it for some reason. Either way. I m not going to have a lawyer since it is just small claims anyway. I just hate to have to subpoena the sister of the deceased for obvious reasons ...

Small claims are limited to actions seeking monetary compensation for losses supported by evidence. It is not the proper court for seeking compensation for reputational injuries that are not economic injuries. You cannot seek pain and suffering or presumed damages in a small claims court.

I fear your small claims action will go nowhere. I recommend you consult with an attorney in your area.

Good luck.

 

[Shebarb]

The question is whether a "reasonable person" would have made the same assumptions given the same set of circumstances.



Based on the early morning hours, it was probably not an overreaction by the neighbor. If you feared the neighbor and his gun, a call to the police would have been appropriate.



Small claims are limited to actions seeking monetary compensation for losses supported by evidence. It is not the proper court for seeking compensation for reputational injuries that are not economic injuries. You cannot seek pain and suffering or presumed damages in a small claims court.

I fear your small claims action will go nowhere. I recommend you consult with an attorney in your area.

Good luck.

You're too kind. Kind for refraining from telling me what a knucklehead I am for going there after midnight even though I was so shocked. By the time I left that night, I was definitely shook up from the gun but as I said, he did not point it at me. In new york, you're supposed to retreat and/or call the cops rather than come out of your home and brandish a gun. I did do some research when I got back home that night. I think shock can blind you sometimes. I usually freeze and don't think. Either way, the court date is very close and I just have to see what happens. Some small claims courts do hear defamation cases as here in NY does. Once again, I appreciate your time and your expertise. Don't know where you're located but hope you're ok with what Mother Nature is doing. Be well and I'll keep you posted if you like once the case is over. Also, I can let you know if the judge does indeed dismiss it. It is possible and like you said, may go nowhere.

 

[quincy]

... Some small claims courts do hear defamation cases as here in NY does ...

Defamation claims can be filed in New York Small Claims courts but there must be monetary damages (of under $5000).

I am not saying you were not defamed, by the way. It is possible you were. Certainly being falsely accused of committing a crime is defamatory - and breaking and entering a residence, or attempting to do so, is a crime.

Making this type of false statement is not a right protected by the Constitution. There are only potential defenses to making false statements of fact. There IS a right to be wrong. This right is balanced by a responsibility of the one who is wrong to correct any factual errors that were communicated to others.

Whether the neighbor had a responsibility to search for the truth before communicating what he saw to others can rest on the "reasonable person" standard and what EXACTLY was communicated by the neighbor. Reporting his personal observations is not necessarily communicating defamatory fact.

I still recommend you review the support you have for your suit with an attorney in your area. I suspect that there will be a motion to dismiss. But I could be wrong.

It would be nice if you could provide an update once your case is heard in court or settled.

Good luck.

 

[Shebarb]

Defamation claims can be filed in New York Small Claims courts but there must be monetary damages (of under $5000).

I am not saying you were not defamed, by the way. It is possible you were. Certainly being falsely accused of committing a crime is defamatory - and breaking and entering a residence, or attempting to do so, is a crime.

Making this type of false statement is not a right protected by the Constitution. There are only potential defenses to making false statements of fact. There IS a right to be wrong. This right is balanced by a responsibility of the one who is wrong to correct any factual errors that were communicated to others.

Whether the neighbor had a responsibility to search for the truth before communicating what he saw to others can rest on the "reasonable person" standard and what EXACTLY was communicated by the neighbor. Reporting his personal observations is not necessarily communicating defamatory fact.

I agree with you that reporting his observations is not communicating a defamatory act. He communicated that although he didn't actually witness me doing anything other than him "hearing" that someone/me was there, he "thought" I broke in which later changed to he "thinks" I "tried" to break in." I guess that may be where the reasonable person example comes in. I will certainly let you know what happens. It won't be until the very end of October. Was really hoping the defendant would contact me realizing that I would not go this far had I actually done such a thing. He is not the only one who made a mistake. I did. Live and learn. Thanks again and will let you know what happens.

I still recommend you review the support you have for your suit with an attorney in your area. I suspect that there will be a motion to dismiss. But I could be wrong.

It would be nice if you could provide an update once your case is heard in court or settled.

Good luck.

I think he should have checked to see if the death notice was indeed published when I told him it was because he said he then would have believed me. The person passed on a Thursday. I went to the apartment after midnight which was then Friday. He couldn't comprehend that for whatever reason.

 

[Shebarb]

Defamation claims can be filed in New York Small Claims courts but there must be monetary damages (of under $5000).

I am not saying you were not defamed, by the way. It is possible you were. Certainly being falsely accused of committing a crime is defamatory - and breaking and entering a residence, or attempting to do so, is a crime.

Making this type of false statement is not a right protected by the Constitution. There are only potential defenses to making false statements of fact. There IS a right to be wrong. This right is balanced by a responsibility of the one who is wrong to correct any factual errors that were communicated to others.

Whether the neighbor had a responsibility to search for the truth before communicating what he saw to others can rest on the "reasonable person" standard and what EXACTLY was communicated by the neighbor. Reporting his personal observations is not necessarily communicating defamatory fact.

I still recommend you review the support you have for your suit with an attorney in your area. I suspect that there will be a motion to dismiss. But I could be wrong.

It would be nice if you could provide an update once your case is heard in court or settled.

Good luck.

Lord have mercy. Half of my reply post is intertwined with yours. I give up for now. I will update you once I find out what happens in about a month. This is a little tough at times from a mobile device. Take care

 

[quincy]

I think he should have checked to see if the death notice was indeed published when I told him it was because he said he then would have believed me. The person passed on a Thursday. I went to the apartment after midnight which was then Friday. He couldn't comprehend that for whatever reason.

That is your argument.

Whether it is reasonable to expect someone to check on when an obituary notice was published is a question mark. And the time of the publication of the obituary notice does not explain your presence at the apartment of someone who was reported as recently deceased.

In other words, I can understand your shock but I can also understand the neighbor's reaction to your early morning visit.

The gun ... well, I personally would have called the police.

Good luck in court.

 

[Shebarb]

That is your argument.

Whether it is reasonable to expect someone to check on when an obituary notice was published is a question mark. And the time of the publication of the obituary notice does not explain your presence at the apartment of someone who was reported as recently deceased.

In other words, I can understand your shock but I can also understand the neighbor's reaction to your early morning visit.

The gun ... well, I personally would have called the police.

Good luck in court.

Thank you. And I am sorry the post prior got intertwined with one of yours (above). I'm trying to correct it, but don't know if I can. It begins, I agree with you that...." So sorry I cannot remove it for some reason. Someone else reading the thread might be confused if not already. - The limit here in small claims is $3000. Thanks very much-

 

[quincy]

Thank you. And I am sorry the post prior got intertwined with one of yours (above). I'm trying to correct it, but don't know if I can. It begins, I agree with you that...." So sorry I cannot remove it for some reason. Someone else reading the thread might be confused if not already. - The limit here in small claims is $3000. Thanks very much-

I think people can figure it out.

Town and village courts have a $3000 limit, otherwise small claims limits are $5000.

Good luck.

 

[Shebarb]

The basic definition of defamation in New York is the following:

The elements of a cause of action for defamation are a “ ‘false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se’ ” (Salvatore v. Kumar, 45 A.D.3d 560, 563, 845 N.Y.S.2d 384, quoting Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1).​

Geraci v. Probst, 61 A.D.3d 717, 718, 877 N.Y.S.2d 386, 388 (2009), aff'd as modified and remanded, 15 N.Y.3d 336, 938 N.E.2d 917 (2010)(bolding added). As you can see from the part I bolded, the importance of defamation per se is that it allows the plaintiff to succeed in a defamation lawsuit without the need to prove “special harm” (assuming the other elements are met, of course). New York generally follows the majority of states in that defamatory statements that fall into one of four categories are considered to be defamation per se. Those categories are defamatory statements that:

(i) charge the plaintiff with a serious crime;
(ii) tend to injure another in his or her trade, business or profession;
(iii) plaintiff has a loathsome disease; or
(iv) impute unchastity to a woman.

See Liberman v. Gelstein, 80 N.Y.2d 429, 435, 605 N.E.2d 344, 347–48 (1992). In short, if the defamatory statement falls into one of the above four categories the plaintiff will not have to prove any special harm in order to make a good defamation claim.

The publisher loses privilege if negligence can be proved. Also if recklessness is proved in ascertaining the truth. The publisher believed I was innocent until at one point he said, "Wait a minute, you could not have known he died because it just happened." He was negligent because he did not check what I had told him, that the obit was just published after midnight. He should not have told people I broke into or tried to break into the apartment. Ridiculous. If he did not believe that I did not even know my friend died, then he is saying that I just picked a random day to just show up at the apartment and either, in his words, "break in or try to break in." Ridiculous. - In New York you only have to prove negligence. I can prove a lot more. As I've said, I understood AT FIRST why he was suspicious, but afterwards? No.