PJC Business 2024

PJC 110.15

D EFAMATION , B USINESS D ISPARAGEMENT & I NVASION OF P RIVACY

of America , 29 S.W.3d at 82–83 (reviewing summary judgment evidence and finding some evidence that defendant disparaged plaintiff’s business by accusing it of fraud, knowing the accusation was baseless). See also Hurlbut , 749 S.W.2d at 766 (“In the present case there is evidence to support findings that the statements of Gulf Atlantic were false and malicious in the sense that Gulf Atlantic knew them to be false.”). Ill will. Malice still appears to qualify as a basis for liability in cases where the common law controls. In Hurlbut and later in Forbes, Inc. , the supreme court still recited ill will as part of the “malice” standard. Hurlbut , 749 S.W.2d at 766; Forbes, Inc. , 124 S.W.3d at 170. See also Graham Land & Cattle Co. v. The Independent Bankers Bank , 205 S.W.3d 21, 27 (Tex. App.—Corpus Christi–Edinburg 2006, no pet.). Unless the supreme court chooses to change this standard, it will likely be applied to common-law cases. Special damages. A business disparagement plaintiff must offer proof of special damages. Waste Management of Texas , 434 S.W.3d 142; Forbes, Inc. , 124 S.W.3d 167. In Hurlbut , the court explained that this element obligated the plaintiff to prove a real ized or liquidated pecuniary loss, and “the communication must play a substantial part in inducing others not to deal with the plaintiff.” Hurlbut , 749 S.W.2d at 767. Given the court’s comments, the Committee has included the special damages element in the liability question. While the fact of special damages is submitted in this question, the amount of damages incurred would still be determined in the separate damages ques tion addressing this element. See PJC 115.34.

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