What is Malice?

David A. Szwak

What is Malice?

Postby David A. Szwak » Fri Sep 30, 2005 10:02 pm

If defendant's conduct evidences gross negligence or reckless disregard or conscious indifference for Plaintiff's rights or property, then "malice" is presumed. Malice is also presumed if defendant exhibited flagrant disregard of Plaintiff's rights or property. Presumed malice is the equivalent to actual evil intent to injure Plaintiff. Sopkin v. Premier Pontiac, Inc., 539 P.2d 1393, 1397 (Okl. App.).

Malice will be shown, at a minimum, only by negligence amounting to reckless or wanton disregard for the truth, so as to reasonably imply a wilful disregard for or avoidance of accuracy. Roemer v. Retail Credit Co., 3 Cal.App.3d 368, 83 Cal.Rptr. 540 (1970).

Malice is proven if the defendant reports information with a conscious indifference as to the truthfulness of such information and in reckless disregard of the rights of the target of the report. Dun & Bradstreet v. Robinson, 345 S.W.2d 34 (Ark. 1961). Showing of malice need only be proven by a preponderance of the evidence not by a clear and convincing evidence standard. Roemer v. Retail Credit Co., 44 Cal.App.3d 926, 119 Cal.Rptr. 82.

Malice may be proven by showing action or inaction done by defendant without just cause or excuse, which was in reckless disregard as to its results upon the rights of others. Dun & Bradstreet, Inc. v. Nicklaus, 340 F.2d 882 (8th Cir. 1965) [Ark.], cert. denied, 382 U.S. 825, 15 L.Ed.2d 70, 86 S.Ct. 57; Dun & Bradstreet, Inc. v. Robinson, 345 S.W.2d 34 (Ark. 1961); Dun & Bradstreet, Inc. v. O'Neil, 456 S.W.2d 896 (Tex. 1970).

Mere inadvertence, forgetfulness or careless blundering is not evidence of malice. Roemer v. Retail Credit Co., 3 Cal.App.3d 368, 83 Cal.Rptr. 540 (1970).

To state an action for defamation, malice or wilful intent must be alleged. Thornton v. Equifax, 619 F.2d 700 (8th Cir. 1980) [Ark.]; Mitchell v. Surety Acceptance Corp., 838 F.Supp. 497 (U.S.D.C. Colo. 1993).

If a credit issuer failed to correct an admitted error in consumer's credit file, then the credit issuer's conduct was in reckless disregard of its legal duties owed to the Plaintiff to correct errors and punitive damages may be appropriate. Sayers v. GMAC, 522 F.Supp. 835 (U.S.D.C. Mo. 1981).

Administrator
Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Malice: More Case Law

Postby Administrator » Mon Oct 03, 2005 7:44 pm

Malice means a statement made with knowledge that it was false or with reckless disregard of whether it was false or not. Whelan v. Trans Union Credit Reporting Agency, 862 F. Supp. 824, 834 [E.D.N.Y. 1994] [citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 84 S. Ct. 710 [1964]]; Stafford v. Cross Country Bank, 2003 U.S. Dist. Lexis 8215 [U.S.D.C. W.D. Ky. 2003].

David A. Szwak

Postby David A. Szwak » Fri Oct 07, 2005 7:59 pm

Malice is also presumed because defendant exhibited flagrant disregard of Plaintiffs’ rights or property [credit report]. Presumed malice is the equivalent to actual evil intent to injure Plaintiffs. Sopkin v. Premier Pontiac, Inc., 539 P.2d 1393, 1397 (Okl. App. 1975).

Malice is proven if the jury finds that defendant reported information about Plaintiffs with a conscious indifference as to the truthfulness of such information and in reckless disregard of the rights of the target of the report. Dun & Bradstreet v. Robinson, 345 S.W.2d 34 (Ark. 1961).

Malice may be proven by showing action or inaction done by defendant without just cause or excuse, which was in reckless disregard as to its results upon the rights of others. Proof of defamation, along with falsity, precedes all else in defamation case, and proof of nature of defamation controls whether damages will be presumed. Sunward Corp. v. Dun & Bradstreet, 811 F.2d 511 (10th Cir. 1987) (Colo.).

David A. Szwak

Postby David A. Szwak » Fri Oct 07, 2005 8:01 pm

Malice may be proven by showing action or inaction done by defendant without just cause or excuse, which was in reckless disregard as to its results upon the rights of others. Dun & Bradstreet, Inc. v. Nicklaus, 340 F.2d 882 (8th Cir. 1965) [Ark.], cert. denied, 382 U.S. 825, 15 L.Ed.2d 70, 86 S.Ct. 57; Dun & Bradstreet, Inc. v. Robinson, 345 S.W.2d 34 (Ark. 1961); Dun & Bradstreet, Inc. v. O'Neil, 456 S.W.2d 896 (Tex. 1970).

David A. Szwak

Postby David A. Szwak » Fri Oct 07, 2005 9:23 pm

Proof of defamation, along with falsity, precedes all else in defamation case, and proof of nature of defamation controls whether damages will be presumed. Sunward Corp. v. Dun & Bradstreet, 811 F.2d 511 (10th Cir. 1987) (Colo.).

David A. Szwak

Postby David A. Szwak » Mon Dec 12, 2005 10:19 pm

Sunward Corp. v. Dun & Bradstreet, Inc.
811 F.2d 511
C.A.10 (Colo.),1987.

The district court generally articulated the standard for abuse of privilege to be knowledge that the reports were false, or reckless disregard for whether the reports were true or not. The parties are in apparent agreement that such is the standard which should prevail in this case, and no issue on the point is raised on appeal. Therefore, we do not review the basic standard itself. It is the jury instruction defining reckless disregard which is in dispute.
The problem arises from the various ways reckless disregard is defined, depending on context. As a constitutional standard (federal or Colorado) a strict, subjective "serious doubts as to the truth of the publication" definition is employed. In the *525 general tort law of Colorado, however, reckless disregard is largely placed in the standard-of-care category, somewhere at or even beyond gross negligence. Common law abuse of privilege cases in Colorado concentrate on a publisher's motive in defamation cases and add that nuance to reckless disregard when used in that context. [FN12]


FN12. There is an established body of common law authority in Colorado which generally defines abuse of privilege in the usual common law terms of ill will, spite, intent to injure, bad faith, hostility, express malice and similar terms based on improper motive or state of mind--all categorized by courts and legal scholars as common law malice, or simple malice. See Abrahamsen v. Mountain States Telephone & Tel. Co., 117 Colo. 422, 494 P.2d 1287, 1289 (1972); Coopersmith v. Williams, 171 Colo. 511, 468 P.2d 739, 741 (1970); Ling v. Whittemore, 140 Colo. 247, 343 P.2d 1048, 1052 (1959); Bereman v. Power Pub. Co., 93 Colo. 581, 27 P.2d 749, 751 (1933); Hoover v. Jordan, 27 Colo.App. 515, 150 P. 333, 336 (1915); Denver Pub. Warehouse Co. v. Holloway, 34 Colo. 432, 83 P. 131, 133 (1905); Melcher v. Beeler, 48 Colo. 233, 110 P. 181, 184-85 (1910). See also Prosser on Torts, § 2 at 9-14 (4th ed. 1971); Veeder, The History and Theory of the Law of Defamation (pt. 2), 4 Colum.L.Rev.
33, 35-38 (1904); Hallen, Character of Belief Necessary for the Conditional Privilege in Defamation, 25 Ill.L.Rev. 865 (1931); Developments in the Law--Defamation, 69 Harv.L.Rev. 875, 930 (1956); and authorities cited supra note 11. The district court in this case has previously alluded to the malice requirement. See Williams v. Burns, 463 F.Supp. 1278, 1283 (D.Colo.1979).


It is generally agreed that "malice" (whether "actual malice" used in constitutional issue cases or "simple" or "common law" malice), has become too confusing and has lost its legal and practical usefulness. See Prosser and Keeton on Torts, § 115 at 834 (5th ed. 1984). Colorado now advises against its use in jury instructions. Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450, 459 (1975). Some writers urge abandonment of the common law malice standard due to its emphasis on improper motive. See Watkins & Schwartz, Gertz and the Common Law of Defamation: Of Fault, Nonmedia Defendants, and Conditional Privileges, 15 Tex.Tech L.Rev. 823, 870-75 (1984); Comments, Liability and Damages in Libel and Slander Law, 47 Tenn.L.Rev. 814, 840-42 (1980). See also Kalur, Exploration of the "Outer Limits": The Misdirected Evolution of Reckless Disregard, 61 Den.L.J., 43, 60-65 (1983). However, the great variety of defamation fact situations demands a reasonable flexibility and choice of defamation standards. That includes credit reporting situations. See,
e.g., National Apparel Adjustment Council, Inc. v. Dun & Bradstreet, Inc., 42 A.D.2d 58; 345 N.Y.S.2d 40 (1973) (feud with plaintiff resulted in a deliberate attempt to injure business with false credit reports).


Elements of the subjective common law malice standard have been present and approved by this court in recent times in diversity cases involving credit reporting agencies, and other matters. See Lawrence v. Moss, 639 F.2d 634, 638 (10th Cir.), cert. denied, 451 U.S. 1031, 101 S.Ct. 3021, 69 L.Ed.2d 400 (1981); Anderson v. Dun & Bradstreet, Inc., 543 F.2d 732, 739 (10th Cir.1976); Hall v. Hercules, Inc., 494 F.2d 420, 423 (10th Cir.1974); Kansas Elec. Supply Co. v. Dun & Bradstreet, Inc., 448 F.2d 647, 649 (10th Cir.1971), cert. denied, 405 U.S. 1026, 92 S.Ct. 1289, 31 L.Ed.2d 486 (1972).


Reckless disregard has been used as part of the common law malice standard in various cases, and has been separated from the personal and moral aspects of the more usual simple malice definitions. See e.g., ABC Needlecraft Co. v. Dun & Bradstreet, Inc., 245 F.2d 775, 777 (2d Cir.1957); Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961). See also authorities cited supra note 11. It is also adopted as the current standard by the American Law Institute in § 600 of the Restatement, but we do not regard that section, as defined in comment b, as the prevailing view of the law in Colorado regarding privilege extended to
credit reports. Prior to Gertz, the American Law Institute equated abuse of privilege with ordinary negligence. See Restatement "Special Note on Conditional Privileges and the Constitutional Requirement of Fault," pp. 259-61; id. § 580B comments c, d, f, and l; id. § 593 comment c; id. § 595 comment h (credit agencies); id. § 599 comment d.


Although this abbreviated review suggests that Colorado's abuse of privilege cases do not require (as the district court implicitly and correctly found) application of a subjective motive or state of mind standard in credit reporting situations, these cases cannot be ignored. The standards which they describe are susceptible of adaptation, and the reckless disregard standard is consistent with their broad interpretation which appears to extend immunity considerably beyond ordinary negligence, or conduct close to that standard. Finally, the considerable comment in the Restatement and elsewhere (see the articles cited above and supra note 11) about the Gertz constitutional requirement of fault eliminating the rationale for conditional privileges probably does not apply here. As mentioned, the Colorado abuse of privilege cases appear to go beyond mere negligence in overcoming strict liability; and, in any event, Greenmoss may have removed the application of the Gertz fault requirement to private plaintiff/private matter cases. See infra note 14 for a discussion of Gertz and other Supreme Court cases.


As the following analysis indicates, we reject Dun & Bradstreet's position that this *526 case implicates constitutional First Amendment protections-- state or federal--which entitle it to the "serious doubts" definition of reckless disregard. We do, however, find that the jury instruction defining reckless disregard was erroneous. As defined, it permitted the jury to include within the definition of reckless disregard conduct close to ordinary negligence. The tort law of Colorado places reckless disregard much further along the continuum of care--so much so as to constitute a difference in kind. Thus, by way of illustration only, the instruction impermissibly defines something akin to gross negligence in terms close to ordinary negligence.


Return to “Defamation: State Law”

Who is online

Users browsing this forum: No registered users and 1 guest