Page 18 - November 2019 BarJournal

FEATUREBUSINESS LITAGATION

of defamation claims that counsel will be first type is defamation per se, where that Martin’s complaint stated a claim for
asked to litigate on behalf of our business the defamatory nature is obvious by the defamation per quod, and the plaintiff
clients. Counsel is more likely to encounter meaning of the words spoken or written. The was therefore required to plead special
circumstances where the alleged defamatory other type is defamation per quod, where damages. Because the complaint failed to
statements are based on innuendo and the statement has an apparently innocent properly allege special damages, the trial
insinuation, or additional information is meaning, but may become defamatory court dismissed the complaint. On appeal,
necessary to fully understand the defamatory through interpretation or innuendo. the First Appellate District affirmed the
nature of the statement. This distinction impacts not only one of dismissal, noting that Martin’s allegations
Because of this, practitioners must first the prima facie elements of a defamation regarding damages could not sustain an
be aware that defamation claims in Ohio are claim (i.e., the falsity component), but it action for defamation per quod because he
subject to the “innocent construction rule.” also implicates pleading and evidentiary failed to allege special damages.
This rule states that if there is a reasonable considerations relating to damages. In In other words, if a client comes to you
innocent construction to the substance particular, damages and actual malice are seeking counsel on potential defamation
of the alleged defamatory statement, the presumed for defamation per se, whereas claims that are premised on statements
innocent construction must be adopted, a plaintiff must plead and prove special that are subject to an innocent, non-
and such statement cannot support a claim damages in order to establish a basis for defamatory meaning, counsel cannot lose
for defamation. In other words, contested relief for defamation per quod. In other sight of either the innocent construction
statements are required to be given their words, if the court determines that the rule or the special damages requirements
innocent meaning and non-actionable statement is defamatory per quod, the when drafting pleadings and litigating
interpretation as a matter of law. Based on statement is not actionable in the absence of defamation claims. Otherwise, your client’s
this same rationale, actions alone (without proof of special damages (i.e., those direct defamation claim may be subject to a Civ.
accompanying affirmative spoken or written financial losses resulting from the plaintiff’s R. 12(B)(6) motion as seen in the Martin v.
statements) are generally insufficient to impaired reputation, such as lost profits Wegman matter.
support a defamation claim. to his business). These requirements are While the well-established defenses of
This rule is important because Ohio consistent with the requirements set forth in truth, opinion, and privilege will inevitably
recognizes two types of defamation. The Civ. R. 9(G). remain the focal point in litigating
A recent decision by the First Appellate defamation claims, practitioners should at
District illustrates the significance of least be aware of the potential impact that
this rule. In Martin v. Wegman, 1st Dist. both rules could have on your client’s case.
Niki Z. Schwartz Hamilton No. C-180268, 2019-Ohio-2935, Hopefully, this article achieves that goal.
¶ 15, the trial court dismissed the plaintiff’s
Mediator/Arbitrator defamation claim for failure to state a claim
under Civ. R. 12(B)(6). Martin’s complaint Eric J. Weiss is a partner at the
alleged that defendant Wegman published Cleveland law firm of Cavitch,
false, misleading and defamatory statements Familo & Durkin Co., LPA, and
about plaintiff in written correspondence chairs the firm’s Litigation
and on defendant’s personal Facebook Department. He is an experienced
account. The complaint states that the litigator whose practice emphasizes complex
Facebook post implies that Martin’s business litigation. Mr. Weiss has been a
conduct was undertaken for an immoral CMBA member since 2009. He can be reached
purpose. Thus, the trial court determined at (216) 621-7860 or eweiss@cavitch.com.

“If he can settle
a prison riot,

he can settle

anything!”

216-696-7100
nzs.adr@gmail.com

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