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Per Se Defamation Damages Upheld

A former Newport News Circuit judge fails to overturn or reduce a jury award against her for defamation for telling newspaper reporters that a former court employee who accused the judge of sexual harassment had been “institutionalized,” in this decision from the Supreme Court of Virginia.

During the course of litigation, the defamation plaintiff settled with a city of Hampton employee, The Daily Press and the city of Hampton, and received $120,000 in proceeds from those defendants. At conclusion of plaintiff’s defamation trial against the former judge, the trial court entered awarded plaintiff $350,000 with interest, after refusing defendant’s motion to reduce the judgment by the amounts already paid by other parties as settlements.

The instruction for per se defamation was given to the jury, without objection from defendant, and she does not challenge the instruction on appeal. Plaintiff presented evidence that defendant knew her statement was false, or at a minimum that defendant lacked reasonable grounds for this belief or otherwise negligently failed to ascertain facts in support of the defamatory statement. Neither this evidence nor the court’s finding that the statement was defamatory per se is challenged by defendant on appeal. Thus, as a matter of law, the jury needed no proof of damages suffered by plaintiff on which to predicate its compensatory award based upon the per se defamation negligently published by defendant. The reputational damage was properly presumed, and the jury’s award of compensatory damages to plaintiff was appropriate under established common law principles for per se defamation.

Nor did the trial court err in refusing to apply Va. Code § 8.01-36.1 to offset the judgment by settlement amounts paid by other defendants prior to trial.

Judgment affirmed.

Askew v. Collins (McClanahan) No. 110323, March 2, 2012; Cir.Ct. City of Williamsburg & County of James City (Ford) L. Steven Emmert for appellant; Harris D. Butler III, Rebecca H. Royals, Paul M. Falabella for appellee. VLW 012-6-028, 8 pp.

VLW 012-6-028

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