Washington Court of Appeals creates new standard for defamation per se

Life Designs Ranch, Inc. v. Sommer, No. 32922-4-III (Wash. Ct. App. Nov. 12, 2015).

There are two kinds of defamation, both with Latin tags: defamation per quod and defamation per se. Defamation per quod means that a plaintiff must prove that a statement injured him. By contrast, when a plaintiff brings a valid claim for defamation per se, the law presumes damages. The plaintiff need not prove damages to recover, and the burden shifts to the defendant to prove that the plaintiff didn’t suffer damages.

What statements count as defamation per se? There’s a traditional—very traditional—list that includes things like “imputations of unchastity against a woman.” But the Washington Supreme Court has also said that defamation per se includes any statement that exposes somebody “to hatred, contempt, ridicule or obloquy,” or injures him “in his business, trade, profession or office.” 

Here, the plaintiff’s defamation-per-se claim was dismissed on summary judgment, and Division III of the Washington Court of Appeals affirms because the defendant’s statements weren’t “extreme” (whatever that means). As Judge Fearing points out in a persuasive dissent, though, the standard for defamation per se isn’t whether statements are “extreme.” True, the Washington Supreme Court has said that “extreme” statements may be deemed defamation per se as a matter of law. But it has also said that a jury should decide as a matter of fact whether other kinds of statements qualify as defamation per se. If the defendant’s statements weren’t extreme, that doesn’t justify the trial court’s entry of summary judgment—it means there must be a trial. 

Division III seems to be overlooking this old standard for defamation per se in favor of a new, considerably more amorphous, standard. My guess is that this case will be going up to the Washington Supreme Court.