M Civ JI 118.05 Libel, Slander - Burden of Proof

Plaintiff has the burden of proving:

(a) that defendant made the statement *(of fact) complained of to a third person by [ printing / writing / signs / pictures / words / gestures ], and

(b) † that (the statement was of and concerning the plaintiff, and)

(c) that the statement was false in some material respect, and the statement had a tendency to harm the plaintiff’s reputation, and

(d) ‡ that (as a result of the statement, the plaintiff suffered some damage, and)

(e) [ Insert M Civ JI 118.06 and/or M Civ JI 118.07 and/or M Civ JI 118.08 as applicable. ]

Your verdict will be for the plaintiff if the plaintiff has proved all of those elements.

Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements.

Note on Use

*The words in parentheses should be used if the alleged defamatory statement is one of pure fact. They should not be used if the alleged defamatory statement involves opinion. Milkovich v Lorain Journal Co, 497 US 1; 110 S Ct 2695; 111 L Ed 2d 1 (1990); Restatement Torts, 2d, § 566, pp 170–171.

†If M Civ JI 118.06 is inserted in subsection (e), then delete subsection (b).

‡ With regard to the applicability of any of these instructions (M Civ JI 118.05-118.21) where libel or slander per se of a private individual is at issue, compare Gertz v Robert Welch, Inc, 418 US 323, 324; 94 S Ct 2997; 41 L Ed 2d 789 (1974) (“For the reasons set forth below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth”), with Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723; 613 NW2d 378 (2000) and its interpretation of MCL 600.2911.

Generally, as to any single statement, if M Civ JI 118.08 is used, neither M Civ JI 118.06 nor M Civ JI 118.07 would be appropriate. Also, if M Civ JI 118.08 is used, the words “some damage” in subsection d should be changed to “economic damage.” MCL 600.2911(7); Glazer v Lamkin, 201 Mich App 432; 506 NW2d 570 (1993).

Comment

On the issue of material falsity, see Rouch v Enquirer & News of Battle Creek, 440 Mich 238; 487 NW2d 205 (1992), cert den, 507 US 967; 113 S Ct 1401; 122 L Ed 2d 774 (1993); Locricchio v Evening News Ass’n, 438 Mich 84; 476 NW2d 112 (1991), cert den, 503 US 907; 112 S Ct 1267; 117 L Ed 2d 495 (1992).

History

M Civ JI 118.05 was added August 1983. Amended November 1990, January 2020.