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AMI 409 Issues—Claim for Damages Based Upon Defamation—Private Figure—Qualified Privilege

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 409
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 4. Intentional Torts and Defamation
AMI 409 Issues—Claim for Damages Based Upon Defamation—Private Figure—Qualified Privilege
(Plaintiff) claims damages from (defendant) for defamation and has the burden of proving each of the following five essential propositions defining defamation:
First, that [he][she] sustained damages;
Second, that (defendant) published a false statement of fact concerning (plaintiff);
Third, that the statement of fact was defamatory;
Fourth, that (defendant) acted [with negligence in failing to determine the truth of the statement prior to its publication][or][with knowledge the statement was false]; and
Fifth, that the publication of the statement was a proximate cause of (plaintiff)'s damages.
In addition to these essential propositions, there is an additional proposition (plaintiff) must prove.
The statement (plaintiff) claims (defendant) published was in connection with a [proceeding][transaction][relationship] in which (defendant) had [an interest][a duty to communicate with the person(s) to whom the statement was published] and, therefore, was published within a privilege for which (defendant) is not liable, unless the publication exceeds the scope of the privilege. Plaintiff contends that the publication exceeded the scope of the privilege and has the burden of proving [any one of] the following proposition[s]:
(a) [That the statement was not reasonably related to the subject matter of the (proceeding) (transaction) (relationship)];[or]
(b) [That the statement was not made for the purpose of furthering (defendant)'s interest in the (proceeding)(transaction)(relationship)]; [or]
(c) [That the (content of the statement)(and)(extent to which the statement was published) was more than necessary to (further (defendant)'s interest in) (discharge (defendant)'s duty with respect to) the (proceeding)(transaction)(relationship)]; [or]
(d) [That (defendant), in publishing the statement, acted out of hatred, ill will, or a spirit of revenge]; [or]
(e) [That (defendant) published the statement with a lack of belief in its truthfulness].
[If you find from the evidence in this case that each of the five essential propositions defining defamation has been proved and that (any one of) the proposition(s) necessary to overcome the privilege has been proved, then your verdict should be for (plaintiff); but if, on the other hand, you find from the evidence that any of the five essential elements defining defamation or that (one of these propositions)(this proposition) has not been proved, then your verdict should be for (defendant).]
This instruction should be used where the court finds the defense of qualified privilege is applicable.
In an action based upon negligence, use AMI 302 in addition to this instruction.
Use AMI 411 and 412 when this instruction is given.
Do not use the final bracketed paragraph when the case is submitted on interrogatories.
The elements of qualified privilege are set forth in Dillard Dept. Stores, Inc. v. Felton, 276 Ark. 304, 307, 634 S.W.2d 135, 136-37 (1982), quoting Restatement (Second) of Torts § 595 (1981). See also Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958) (discussing qualified privilege).
The determination of the existence of a qualified privilege is a question of law. Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997), overruled on other grounds, United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998) (abolishing presumed damages doctrine). Once the court determines that a statement is subject to a qualified privilege, the burden of establishing facts that would defeat the privilege becomes a part of plaintiff's burden of proof, together with the other elements of defamation. Ikani v. Bennett, 284 Ark. 409, 413, 682 S.W.2d 747, 749 (1985), citing W. Page Keeton, Prosser and Keeton on Torts,§ 115 at p. 835 (5th Ed. 1984). The question of whether a particular statement falls outside the scope of the qualified privilege is a question of fact for the jury. Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 735, 74 S.W.3d 634, 654 (2002).
For cases considering application of the qualified privilege to various circumstances, see Minor, supra (no evidence that public officials exceeded their official duties in discussing investigation of insurance claim); Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549 (concluding that plaintiff had raised a genuine issue of material fact regarding whether Walmart breached its qualified-privilege duty to accurately report the basis for an employee's termination in its statement to police officer, whose report of that statement, quoted in the local newspaper, contained the allegedly defamatory communication); Addington v. Wal-Mart Stores, Inc., 81 Ark. App. 441, 105 S.W.3d 369 (2003) (qualified privilege applied to protect statements made in good faith by a loss-prevention officer to law enforcement officers and to appropriate personnel within his company; the privilege was not lost through excessive publication); Wal-Mart Stores, Inc., v. Lee, supra (statements made by the same loss-prevention officer in Addington were not protected by a qualified privilege because the officer did not have any grounds to believe that statements made to him in a case synopsis were true); Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003) (factual dispute existed concerning whether a bank acted in good faith in stating that a contractor was not on an alleged “approved contractor's list”); Suggs v. Stanley, 324 F.3d 672 (8th Cir. 2003) (sufficient evidence for jury to determine that defendants acted with malice—motivated by spite and personal gain—such that their statements to police and coroner were not protected by qualified privilege); Freeman v. Bechtel Constr. Co., 87 F.3d 1029, 1031 (8th Cir. 1996) (statements made in connection with investigation of sexual harassment allegations were within scope of privilege).
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