Not according to a decision from a federal court in Ohio. The case involves a landscaping project at a hillside home in Cincinnati. The property overlooks the Ohio River, but like many projects that become cases, it ended up in the ditch. Dissatisfied with the progress of the work, the owner told her neighbors that the contractor was a “crook” and a “con man” who had photoshopped pictures of the work he had done. The case inevitably wound up in litigation with both sides suing the other for breaking their respective promises. In addition to breach of contract damages for unpaid work, the contractor also sought unspecified damages for defamation. 

On summary judgment, the court reviewed the elements of a defamation claim under Ohio law and concluded that many of the owner’s insults did not constitute actionable defamation. For example, the court held that referring to the contractor as a crook and a con man was not defamatory but instead constituted the expression of an opinion. As to the statement that the contractor had photoshopped evidence, the court concluded that this was not a protected opinion but rather a statement of verifiable fact that could potentially constitute defamation. The court therefore allowed this portion of the contractor’s defamation claim to proceed to the jury.

The court’s analysis contains a helpful summary of defamation law, which construction lawyers don’t come across every day. Here is the meat of that summary:

Defamation is a false publication that injures a person’s reputation, exposes the person to public hatred, contempt, ridicule, shame, or disgrace, or affects the person adversely in his or her trade or business…. If allegedly defamatory words are susceptible to two meanings, one defamatory and one innocent, the defamatory meaning should be rejected, and the innocent meaning adopted.

The elements of defamation are (1) a false and defamatory statement, (2) unprivileged publication to a third party, (3) a requisite amount of fault on the part of the publisher, and (4) actionability or special harm caused by the statement. Truth is a complete defense to a claim for defamation.…

Whether an allegedly defamatory statement is protected opinion or actionable assertion of fact is a question of law for the district court. Consideration of the totality of circumstances to ascertain whether a statement is opinion or fact involves at least four factors. First is the specific language used, second is whether the statement is verifiable, third is the general context of the statement and fourth is the broader context in which the statement appeared….

Courts examining similar situations of name-calling are split as to whether such statements are defamatory or protected opinion. The majority position seems to be that such name-calling is not defamatory. 

A copy of the court’s 42-page opinion addressing these and other claims and counterclaims can be found here.

Listen to this post