Presumed Damages Defamation New Jersey
In 1994, the Court considered the tenability of presumed damages in the context of a slander case.
The Court's main holding in Ward v. Zelikovsky, 136 N.J. 516, 540, 643 A.2d 972 (1994) was that a neighbor's verbal insults and expressions of bigotry against the plaintiffs at a condominium-association meeting were not defamatory. Id. at 537-39, 643 A.2d 972.
The Court added that, even if the bigoted statements had been defamatory, the plaintiffs failed to prove damages, which they were required to do because the slander did not qualify as slander per se. Id. at 539-42, 643 A.2d 972.
The Ward Court briefly reviewed recent commentary questioning the wisdom of maintaining the slander per se concept and recommending eliminating the per se categories in light of modern tort law's "focus on the injury not the wrong." Id. at 541, 643 A.2d 972.
The Court termed slander per se "a relic from tort law's previous age." Ibid.
The goal of defamation law should be to compensate persons for harm to their reputations; that goal is undercut by waiving the need for such proof of harm, as when the action falls within one of the slander per se categories. Ibid.
Nevertheless, the Court decided to "leave for another time whether it should eliminate slander per se," and declined to expand the four traditional slander per se categories to cover the bigoted statements in that case. Ibid.
As the statements were ordinary slander, the plaintiffs were bound to, but did not, offer adequate proof of their reputational injury, Id. at 541-42, 643 A.2d 972, such as "proof that an existing relationship has been seriously disrupted or testimony of third parties detailing a diminished reputation." Id. at 540, 643 A.2d 972.