PJC Business

D AMAGES

PJC 115.33

v. Galveston Tribune , 150 S.W. 874 (Tex. 1912)). General damages include damages for noneconomic loss of reputation or mental anguish. Anderson , 550 S.W.3d at 618; Hancock v. Variyam , 400 S.W.3d 59, 65 (Tex. 2013). The First Amendment requires competent evidence to support an award of actual or compensatory damages when the speech is public or the level of fault is less than actual malice. Hancock , 400 S.W.3d at 65; see also Burbage v. Burbage , 447 S.W.3d 249, 259 (Tex. 2014). Defamatory per se. Defamation per se refers to false statements so obviously harmful that general damages may be presumed. Anderson , 550 S.W.3d at 618. The following instruction may be used in common-law cases not involving constitutional requirements in which the court (or in some cases, the jury) has found the matter to be defamatory per se. Texas law presumes that per se defamatory statements injure the victim’s reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish. Bentley v. Bunton , 94 S.W.3d 561, 604 (Tex. 2002); see also Leyendecker & Associates , 683 S.W.2d at 374 (party defamed by a writing libelous per se allowed recovery at common law without proof of injury); Sali nas v. Salinas , 365 S.W.3d 318, 320–21 (Tex. 2012). Texas law does not presume any damages beyond nominal damages. Salinas , 365 S.W.3d at 320–21. In Waste Management of Texas, Inc. v. Texas Disposal Systems Landfill, Inc. , 434 S.W.3d 142, 160 (Tex. 2014) (citing and quoting Bentley , 94 S.W.3d at 606), the court held that “the evidence must be legally sufficient as to both the existence and the amount of such damages, that ‘[j]uries cannot simply pick a number and put it in the blank,’ and that instead the amount must fairly and reasonably compensate the plaintiff for his injury.” Where the statement is defamatory per se, the following instruction should be given with the question: You must award at least nominal damages for injury to reputation in the past. Nominal damages are a trifling sum, such as $1. This instruction comes from Hancock , 400 S.W.3d at 65. Except under very limited circumstances, this instruction should not be used in cases involving public officials, public figures, or matters of public concern, even if the matter at issue is defamatory per se. In Gertz v. Robert Welch, Inc. , 418 U.S. 323, 349 (1974), the U.S. Supreme Court held that states are not free to presume damages in libel cases with constitutional implications unless there is a finding of actual malice (knowing falsity or reckless disregard for the truth). See the Comment to PJC 110.5 for a discussion of the circumstances in which actual malice is required. In a case where these prerequisites—defamation per se and actual malice—have been met, one court has held that the jury should be instructed concerning this presumption. Texas Dis posal Systems Landfill, Inc. v. Waste Management Holdings, Inc. , 219 S.W.3d 563, 582–83 (Tex. App.—Austin 2007, pet. denied). Multiple statements. Chapter 110 of this volume assumes a single allegedly defamatory statement. If multiple statements are at issue, separate submissions may be

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