710 N.E.2d 1185 | Ohio Ct. App. | 1998
In her sole assignment of error Davis alleges that:
The trial court erred in giving the jury an instruction that imposes a clear and convincing standard of proof to all elements of plaintiff's cause of action, except damages.
The trial court instructed the jury that in order for Davis to succeed in her action she had the burden of proving by clear and convincing evidence that the appellees defamed her.1 Davis contends that, pursuant to the authority of *582 Lansdowne v. Beacon Journal Pub. Co. (1987),
32 Ohio St. 3d 176 , the clear and convincing standard of burden of proof is only proper in suits where the defendant is a "media" defendant. Davis argues that the preponderance standard is the proper burden of proof for a defamation action of this nature, not the clear and convincing standard. The parties do not dispute the fact that Davis was a private-figure and the fact that appellees are "non-media" parties.
When the plaintiff is a private-figure "[a] cause of action for defamation consists of five elements: (1) a false and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the part of the defendant; and (5) that was either defamatoryper se or caused special harm to the plaintiff." Gosdenv. Louis(Dec. 4, 1996), Summit App. No. 17609, unreported. "Fault is established by determining whether `the defendant acted reasonably in attempting to discover the truth or falsity or defamatory character of the publication.'" Franks v. The Lima News (1996),
The Ohio Supreme Court modified the law of defamation inLansdowne v. Beacon Journal Pub. Co. (1987),
The Lansdowne decision does not explicitly state whether its application was intended to encompass all private-figure plaintiff defamation suits, or rather, only to private-figure defamation actions where the defendant was a "media" defendant.2 Additionally, as stated above, proof of defamation requires proof of five prima facie elements. The Lansdowne decision only addresses the heightened standard of proof for one element, the element of fault. The Court in Lansdowne, supra, did not state whether every element is subject to this heightened burden of proof. *583
In the present case, the parties were a private-figure plaintiff and a non-media defendant, invoking the issue of whether the clear and convincing standard should be applied at all. Not only did the trial court instruct the jury that the clear and convincing standard applied to the present case, the court instructed the jury that all elements of the defamation action, excluding damages, required proof by clear and convincing evidence.
The issue of whether the clear and convincing standard applies to the present case was resolved by the Ohio Supreme Court in Dale v. Ohio Civ. Serv. Emp. Assn. (1991),
Equally, these courts appear to apply the clear and convincing burden of proof exclusively to the element of fault in defamation actions involving private-figure plaintiffs. SeeDillon v. Waller (Dec. 26, 1995), Franklin App. No. 95APE05-622, unreported ("* * * the burden to prove unreasonable failure to attempt to discover the truth or falsity or defamatory character of the publication is the clear and convincing standard."); Gosdenv. Louis (Dec. 4, 1996), Summit App. No. 17609, unreported ("In order to recover on a defamation claim, a plaintiff must prove by clear and convincing evidence that the defendant was at least negligent in publishing defamatory material.").
The specific issue presented in this appeal of whether the clear and convincing standard should be applied to every element of a defamation cause of action, excluding damages, has never been addressed by Ohio courts. The reason for this apparent oversight is simple. The Lansdowne decision clearly provided Ohio courts with a mandate. The burden of proof for the element of fault shall be by clear and convincing evidence. Lansdowne v. BeaconJournal Pub. Co.,
The Ohio Supreme Court has provided this state with the necessary case law to establish the burden of proof in private-figure defamation actions. For all prima facie elements, excluding the element of fault, the proper burden of proof is the preponderance standard. Embers Supper Club, Inc. v.Scripps-Howard Broadcasting Co., *584
Therefore, in the present case, the trial court correctly applied the clear and convincing standard to the element of fault. The court erred, however, by requiring Davis to prove every other element, excluding damages, by clear and convincing evidence. The proper burden of proof for every other element was the preponderance standard. Because the appellate record does not contain evidence of any interrogatories to the jury, we are unable to determine whether the outcome of this action would be different with the application of the proper burdens of proof.
We, therefore, reverse the judgment of the Logan County Common Pleas Court, and remand this cause to the trial court for action consistent with this opinion.
Judgment reversed and cause remanded.
SHAW, P.J., and BRYANT, J., concur.