I would like to know if I have a case for defamation of character? 
I have been told that this falls under "Defamation Per se".
I walked into my bank a few weeks back and my former Land-lady (from 4
yyears back) was at one of the teller windows. The two tellers and the
bank manager all said hello to me and as I said hello back to them my
former Land-lady said my name (my full first name, not the abbreviated
name that everyone else would use), I just assumed that she was being
sociable, so I turned and said "Hey ----", using her abbreviated name.
 At which time she proceeded with... "So, you've been using my Credit
Card have you?" It caught me by surprise and after a second I asked...
"What?" and Her response was... "Don't play stupid, you know what I'm
talking about and I've turned it over to the Prosecutor! You are such
a deadbeat!" At that point the bank manager said... "Come on, let's
you and I go into my office and get you taken care of."  After my
former Land-lady left the bank the manager and I came back out into
the lobby. I asked that the three of them remember what was said and
write it down for me if they would and I went on my way.  I have
gotten breif statments from the manager and both the tellers since
then and their statments are word-for-word what was said.  Now I have
done business at this bank for many years and know that this incident
has not effected my relationship with any of those three, but there
was that moments glance when the accusation was first made and what if
someone who didn't know me had been in the bank that day, or even
worse someone I do business with.  I have a business that deals
directly with the public.  There has been word back to us in the past
that she has bad mouth us, but it has always been hear say, up 'til
now.
Do I have a case and what sort of a price can be put on an accusation
of this type???

Dear fraunz-ga;

First, let me remind you about our policy prohibit us from providing
legal advice. What we can do, however, is provide research based on
published information on matters similar to yours, offer information
based on our own experiences and of course offer opinion (i.e. Do we
think you have a case? etc). As for me, I?ve been in law enforcement
for more than 20 years and I have considerable experience in
researching law and reading legalese, so the terms you presented here
today are not at all new to me.

For clarification sake let?s start with some general definitions, shall we?

DEFAMATION
?In English and American law, and systems based on them, libel and
slander are two forms of defamation (or defamation of character),
which is the tort or delict of making a false statement that
negatively affects someone's reputation.?
WIKIPEDIA
http://en.wikipedia.org/wiki/Defamation

?That which tends to injure a persons reputation. Libel is published
defamation, whereas slander is spoken.?
MUNLEY, MUNLEY & CARTWRIGHT: GLOSSARY OF TERMS
http://www.munley.com/legal_glossary_d.html

?Libelous or slanderous statements that cause injury to another person.?
RAINWATER PRESS
http://www.rainwater.com/glossary/d.html


DEFAMATION PER SE

?Generally, per se indicates that a statement is defamatory on its
face (from Latin, "for itself" or "of itself"). For example, a former
employer wrongly tells someone that you extorted money from the
company.

Defamation per quod depends on context and the interpretation of the
listener. It means that a person would have to have what's called
extrinsic knowledge to understand the statement as defamatory. For
example, a former employer wrongly says he saw you drinking whiskey in
a bar, a statement that could be problematic if the person the
employer is talking to knows you were court-ordered last year to stay
sober.?

LIBEL AND SLANDER PER SE
http://www.dancingwithlawyers.com/freeinfo/libel-slander-per-se.shtml

LIBEL AND SLANDER 
?Base and defamatory spoken works tending to harm another's
reputation, business or means of livelihood. Both "libel" and
"slander" are methods of defamation, libel being expressed by print,
broadcast, writings, pictures, signs or other forms of side
publication, while slander is expressed orally.?
NEBRASKA SUPREME COURT LEGAL GLOSSARY
http://court.nol.org/publications/glossary.htm


Ok now, with that behind us it is important to note that defamation
per se is recognized as a separate form of defamation in all but six
states. In those states there is no distinction in the law. Why is
that important? It isn?t, but you should know it because you wouldn?t
want to rush off to court to challenge someone based on a law that
your state doesn?t recognize if, in fact, you lived in one of the six
states that doesn?t recognize it. Those states where ?defamation? does
exist but ?defamation per se? is a non-issue are:

Arizona
Arkansas
Mississippi
Missouri
Oregon
Tennessee 

You should also know that in a landmark case (Gertz v. Robert Welch
Inc.) the court ruled that damages "may not be presumed". Why is this
important to your case (assuming you have one)? Because, by
definition, defamation must have caused an injury (i.e. damage to your
reputation etc) before it can be defined as defamation. Who defines
it? At trail the court determines if damages exist (to your reputation
or whatever). If damages do exist then the court may assign a punitive
award. If the court finds that damages do not exist then there simply
is no defamation and that, as they say, is that.

The problem here though is two-fold:

In order for defamation to exist there must be damages, BUT the
existence of damages does not mean (and certainly does not guarantee)
that there will be a substantial award. Courts can, and sometimes do,
award a plaintiff $1 as a token award, which technically represents a
moral victory and little else. Civil cases are funny like that and
while you may or may not succeed in bringing a civil action against
the woman for mouthing off in public, you might actually get better
results by filing criminal harassment charges against her or seeking
some time of injunction or peace bond against her to get her to ? for
lack of a better way of putting it ? shut up.

A criminal case would most likely inconvenience her as much or more
than a slander case might. Should could, in fact, even be convicted
and risk spending a few days (or even up to a year, in some states) in
jail for accosting you in public and launching a verbal tirade against
you (depending on the stalking, harassment or disorderly conduct laws
in your state, of course). A civil case, on the other hand would
inconvenience both of you and the chance that the case would not
result in a substantial punitive decision against her is, in my
opinion, in her favor. Does this mean she was right in doing what she
did? No, what it means is, because you suffered no real damages or
injury, that you could very well go to a lot of effort to drag her
into court and get absolutely nothing out of it. You said yourself
that the people in the bank were unaffected by this woman?s
accusations and the bottom line here is that it really embarrassed you
and made you angry (and rightfully so). That in itself does not
constitute the legal definition of defamation. In today?s world
anybody can sue anybody ? whether they have a case or not. I can sue
my neighbor for not believing in Santa Claus but when it?s over, I?ll
probably lose and walk home looking like a boob for ever bringing it
up in court in the first place. Now I?m not suggesting for a minute
that you are a dunce for feeling the way you do about how you?ve been
unfairly treated; what I?m saying is that it just might not be the
most productive thing to do to take the matter to a public court of
law based on the premise that you or your reputation or business were
somehow injured by this woman?s actions when in fact, you admittedly
weren?t harmed by it in any way.

Keep in mind that in a criminal court you don?t have to prove damages
on a preponderance of evidence. Damages aren?t even considered in
criminal court ? only what the woman did or did not do will be at
issue. Clearly, by your description, she harassed you. You have
witnesses to this fact who can testify that she did indeed accuse you
and may have even filed a false police report against you that you are
yet to be aware of. In my opinion these are things for a lawyer to
take into consideration for potential criminal prosecution and has no
place in civil court. But, like I said in the beginning when I pointed
out that you asked for one?that?s just my opinion.

See a lawyer or call legal aid in your state. My guess is that a
lawyer will tell you that YES, you can certainly fork out the bucks to
sue this woman if you want to, but NO, you probably won?t get a dime
out of it because, by your own admission, you didn?t suffer one iota
from the brief rant of a loud-mouth nut standing in line at the local
bank.

Don?t kill the messenger, ok? I know it?s probably not the news that
you?d hoped to hear but I ?am? sure of one thing...you came here
expecting honestly and that?s exactly what you got (even if it?s a
bitter pill).

I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise, I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad ? Google Answers Researcher


OTHER INFORMATION SOURCES

Gertz v. Robert Welch Inc.
418 U.S. 323 (1974) 
Docket Number: 72-617
http://www.oyez.org/oyez/resource/case/136/


SEARCH STRATEGY


SEARCH ENGINES USED:

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SEARCH TERMS USED:

Defamation

Defamation per se

Libel

Slander

Harassment

---

Request for Answer Clarification by fraunz-ga on 17 Nov 2005 10:04 PST

Thank you for your "answer."  I read the answer posted for "question
ID # 553174" and figured that my answer response would be somewhat
similar, but for the fact that there were direct witnesses to this
"attack."
Now, through research of my own, I came up with... "allegations of
serious criminal misbehavior = Defamation Per se" and it goes on to
say that "When a plaintiff is able to prove defamation per se, damages
are presumed, but the presumption is rebuttable."  Now, I have the
statements from both tellers and the bank manager, all of which also
said that they would voluntarily appear in court for me.  As for
damages, as I said in my initial question, these people have known me
for a while, but there was that "moment" when the accusation was made.
 This is my financial institution and I was accused of theft inside
this place. (Personal question) If you were in this court room and
heard the evidence, as I put it to you, along with the testimony of
the three bank officials and knowing that this was a place where
security is priority. would you not find damages?
I like the Criminal Harassment idea, but I'm afraid that it would
amount to nothing more then a slap on the wrist.  This woman has bad
mouthed us for the past 4years, all hear say, up 'til now and she need
a lesson that will hurt. It is just so hard to grasp the fact that a
court of law would find something like this to be "without damage
merit."  This is not a frivolous case, like hot coffee in my lap.
Respectfully!

---

Clarification of Answer by tutuzdad-ga on 17 Nov 2005 10:54 PST

In any civil case damages are first alleged, then established, proven,
valuated, and compensated (awarded) in that order. If, along the way,
any of these steps fail to pass muster it can dramatically impact the
outcome of the trial. Presumed or not damages must pass these tests
for a successful outcome and even then the award may amount to little
more than a moral victory (the award of $1 in damages I mentioned) on
principle alone.

As for your question about whether or not I (personally) would award
you damages based on what little I know about the case thus far, my
answer is absolutely not. As I said we are not lawyers here but then
again neither is a potential jury of your peers. Based on this
discussion alone, if I were on this jury I would recommend an award of
$1 in damages to established that, YES you were a victim and YES she
was completely out of line. There were however no actual damages to
your character, reputation or business and there was no loss of
anything of monetary value on your part. On the other hand it I were
to sit through a jury trial and heard testimony from the people at the
bank that upon hearing the woman?s rant they thought differently of
you (not for a moment, but that her rant somehow changed their opinion
of you) I might consider an substantially higher award, though you
certainly wouldn?t get rich based on my recommendation alone. As for
the issue about security in the bank, if I were the judge I wouldn?t
hear that testimony at all. Your issue isn?t with the bank so bringing
that up in a lawsuit against this woman for defamation is moot.

As for the Criminal Harassment idea, there is much more here than
meets the eye. Assuming you do have the woman charged criminally and
nothing more than a slap on the hand results, one of the benefits may
be a restraining order to stop the woman from ever contacting you,
harassing you, tallking publicly about you, or coming within a certain
distance of you again. If she is the knucklehead she seems to be and
continues to persist in her harassment of you (as she has for four
years) she will most likely find herself in violation of a court
order, and in contempt of court, and she?ll be visiting the bank for
other reasons (to withdraw cash to pay VERY hefty fines) if not find
herself in physically sitting in jail. The court does not take kindly
to such defiance and it doesn?t care if you are a little old
grandmother or not. A court order is a court order and if you really
want this to stop I recommend (personal opinion)this as your most
productive option.

Again, you need to consult an attorney and nothing you learn in an
anonymous online forum could take the place of a free 30-minutes
consultation with an attorney, during which I?m sure you will learn
everything you ever wanted to know.

Thanks you for bring your question to us. I look forward to your final rating.

Tutuzdad-ga

Thank you for your time and assistance.  Was not exactly the answer I
was looking/hoping for, but how often is the truth, especially where
the law is concerned. It is so sad that it seems that victims are
victims, before, during and after!!! Thanks again!!!

That is pretty sound advice.

Consider a few other aspects
- the former landlady has shown herself to be a 'flake' 
- she has probably been given a verbal warning by the bank manager.

If she is really out of control, then she will dig a hole for herself
- you just need to watch your back while she is doing it

Often people judge other people by their ability to deal with a frontal assault
- if a plonker can hurt them, then it is a cue for others to join the queue

I can think of a few nasty ways of exacting revenge
- but they are not for polite company

Thank you so much for the VERY generous tip!

tutuzdad-ga

In cases of defamation per se, damages can ordinarily be presumed. (As
suggested above, the law of defamation varies by state, and not all
states recognize "defamation per se". Additionally, states may vary in
what proof they require in a defamation per se case before damages may
be presumed.)

As the Supreme Court observed in Carey v. Piphus, 435 US 247 (1978),
"As we have observed in another context, the doctrine of presumed
damages in the common law of defamation per se 'is an oddity of tort
law, for it allows recovery of purportedly compensatory damages
without evidence of actual loss.' Gertz v. Robert Welch, Inc., 418
U.S. 323, 349 (1974). The doctrine has been defended on the grounds
that those forms of defamation that are actionable per se are
virtually certain to cause serious injury to reputation, and that this
kind of injury is extremely difficult to prove. ... Moreover,
statements that are defamatory per se by their very nature are likely
to cause mental and emotional distress, as well as injury to
reputation, so there arguably is little reason to require proof of
this kind of injury either."

The Gertz case involved a publisher as the defendant, which raises
First Amendment concerns not present in cases involving individuals.
Where a publisher or broadcaster is the defendant, states may not
permit recovery of presumed or punitive damages when liability is not
based on knowledge of falsity or reckless disregard for the truth, and
a private plaintiff may recover compensation only for actual injury.

That said, the same type of cost-benefit analysis as outlined above
still applies. Damages awards in defamation cases tend to be low, and
the cost of litigation tends to be high.