N.C.P.I.—Civil 806.70

NOTE WELL: This instruction applies when the trial

judge has determined as a matter of law2 that: (1) the

statement is not slanderous on its face, but is capable

of a defamatory meaning when extrinsic evidence is

considered;3 (2) the plaintiff is a private figure and (3)

the subject matter of the statement is not of public

concern.

NOTE WELL: A “Yes” answer to this issue entitles a

plaintiff to an instruction on actual damages. See

N.C.P.I.—Civil 806.84 (“Defamation—Actual Damages”).

Presumed damages are not available. See N.C.P.I.—

Civil 806.40 (“Defamation—Preface”), n. 32. If the

plaintiff seeks an award of punitive damages and the

evidence supports instruction on punitive damages, the

plaintiff may receive an instruction on punitive

damages under the general statutory standards

enunciated in N.C. Gen. Stat. § 1D-15. See N.C.P.I.—

Civil 806.40, n. 23. N.C.P.I.—Civil 810.96 (“Punitive

Damages—Liability of Defendant”) and 810.98

(“Punitive Damages—Issue of Whether to Make Award

and Amount”) should be utilized.

The (state number) issue reads:

"Did the defendant slander the plaintiff?"

A slanderous4 statement is one which (select the appropriate

alternative):

[charges that a person has committed a crime or offense involving

moral turpitude.5 I instruct you that (state crime or offense)

is a crime or offense involving moral turpitude.]6

[impeaches7 [or prejudices8] [or discredits9] [or reflects unfavorably

upon10] a person in that person’s trade or profession.]

[imputes11 to a person a loathsome disease.12]

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence,

seven things:

First, that the defendant made the following statement13 about the

plaintiff:

(Quote the alleged statement)

Second, that the defendant published14 the statement. "Published"

means that the defendant knowingly [communicated15 the statement]

[repeated16 the statement] [caused the statement to be repeated] so

that it reached one or more persons17 other than the plaintiff.

[Communicating the statement] [Repeating the statement] [Causing the

statement to be repeated] to the plaintiff alone is not sufficient.18

Third, that the statement was false.19

Fourth, that the defendant intended the statement to [charge the

plaintiff with having committed a crime or offense involving moral

turpitude] [impeach the plaintiff in that person’s trade or profession]

[impute to the plaintiff a loathsome disease].20

Fifth, that the person other than the plaintiff to whom the

statement was published reasonably understood the statement to

[charge the plaintiff with having committed a crime or offense involving

moral turpitude] [impeach the plaintiff in that person’s trade or

profession] [impute to the plaintiff a loathsome disease].21

Sixth, that at the time of the publication, the defendant either

knew the statement was false or failed to exercise ordinary care in order

to determine whether the statement was false.22 Ordinary care is that

degree of care that a reasonable and prudent person in the same or

similar circumstances would have used in order to determine whether the

statement was false.

Seventh, that the plaintiff, as a result of the publication, suffered a

monetary or economic loss.23

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find, by the greater weight of the evidence, that the

defendant made the following statement about the plaintiff: (Quote the

alleged statement), that the defendant published the statement, that the

statement was false, that the defendant intended the statement to

[charge the plaintiff with having committed a crime or offense involving

moral turpitude] [impeach the plaintiff in that person’s trade or

profession] [impute to the plaintiff a loathsome disease], that the person

to whom the statement was published reasonably understood the

statement to [charge the plaintiff with having committed a crime or

offense involving moral turpitude] [impeach the plaintiff in that person’s

trade or profession] [impute to the plaintiff a loathsome disease], that

the defendant, at the time of the publication, either knew the statement

was false or failed to exercise ordinary care in order to determine whether

the statement was false, and that the plaintiff, as a result of the

publication, suffered a monetary or economic loss, then it would be your

duty to answer this issue "Yes" in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.