Chapter 13 - § 13.7 • DAMAGES IN DEFAMATION CASES

• Jurisdiction: Colorado

§ 13.7 • DAMAGES IN DEFAMATION CASES

§ 13.7.1—Damages Presumed On Per Se Claims

As is discussed in § 13.3 of this chapter, a plaintiff proceeding under a theory of defamation per se need neither plead nor prove special damages because statements that are defamatory per se are presumed to have caused reputational damage and are actionable without such proof. Conversely, statements that are defamatory per quod require proof of special damages. Special damages are defined as "specific monetary losses, if any, which plaintiff had as a result of defendant's statement(s). Special damages do not include injuries to plaintiff's reputation or feelings which do not result in specific monetary loss." CJI-Civ. 22:14 (CLE ed. 2016).

The presumption that damages to a plaintiff's reputation exist in per se defamation claims, however, is not irrebuttable. The effect of this presumption was summarized by the Colorado Supreme Court in Williams, where the court held that while damages are presumed and need not be proven in cases involving defamation per se, the jury still must consider any actual impairment to the plaintiff's reputation in determining the amount of damages. Williams, 866 P.2d at 911; CJI-Civ. 22:15 (CLE ed. 2016).

§ 13.7.2—Mitigation Of Damages

The Colorado Supreme Court has noted that a defendant in a defamation action may present any evidence that tends to mitigate damages. Gomba v. McLaughlin, 504 P.2d 337, 339 (Colo. 1972). Such evidence can include any publications by third persons dealing with the same subject, made before or at about the same time as the date of the publishing by the defendant. The Colorado legislature has codified the right to present mitigating evidence in defamation cases as follows:

In an action for libel or slander, the defendant, in his answer, may allege both the truth of the matter charged as defamatory and any mitigating circumstances to reduce the amount of damages; and, whether he proves the justification or not, he may give in evidence the mitigating circumstances.

C.R.S. § 13-25-125. Further, Colorado has a specific pattern jury instruction that deals with mitigation of damages in a defamation case. In pertinent part, this instruction states:

[I]n determining those damages you must take into account any of the following factors that have been proved by a preponderance of the evidence. You should consider these factors only to the extent that they justify a reduction in the amount of damages to be awarded:
1. Whether

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