Under Oregon law, to establish a defamation claim, a plaintiff must show that the defendant made a false statement that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Beecher v. Montgomery Ward Co., 267 Or. 496, 499-500, 517 P.2d 667 (1973); see, King v. Menolascino, 276 Or. 501, 503-504, 555 P.2d 442 (1976) (applying the Restatement test of what is defamatory). As a threshold matter, whether a statement is capable of being defamatory is a question of law.
Under Oregon law, libel can be established by demonstrating that a communication is capable of a defamatory meaning. Beecher v. Montgomery Ward Co., Inc., 517 P.2d 667, 669 (Or. 1973). In determining whether a communication is defamatory, the Oregon Supreme Court applies the test set forth in the Restatement of Torts. Id.; King v. Menolascino, 555 P.2d 442, 443 (Or. 1976); see Bellairs v. Beaverton School Dist., No. Civ. 04-770, 2004 WL 1900417, at *2 (D. Or. Aug. 23, 2004); Restatement (Second) Torts § 559 (1976).
Clearly it would not have been error to exclude the evidence. See LaFrentz v. Gallagher, 105 Ariz. 255, 462 P.2d 804 (1969); Beecher v. Montgomery Ward Co., Inc., 267 Or. 496, 517 P.2d 667 (1973). Even if relevant on the issue of malice, the testimony at best was cumulative.
If the court determines that the communication is capable of a defamatory meaning, " ‘the matter is submitted to the jury for a determination of whether a defamatory meaning was understood by the recipients.’ " Brown , 341 Or. at 459, 145 P.3d 130 (quoting Beecher v. Montgomery Ward & Co. , 267 Or. 496, 500, 517 P.2d 667 (1973). B. Opal's Statements About Plaintiff's Termination
Reesman, 327 Or. at 603 (internal quotations and citations omitted). A defamatory statement is one that "tends so to harm the reputation of another as to lower [her] in the estimation of the community," Beecher v. Montgomery Ward Co., 267 Or. 496, 499-500 (1973). The statement can be facially defamatory or "defamatory by implication," that is, a statement from which a reasonable person could draw a defamatory inference.Reesman v. Highfill, 327 Or. 597, 604 (1998).
In support of her contention, Olson cites Oregon case law holding that if the court determines the communication " is capable of a defamatory meaning . . . the matter is then submitted to the jury for a determination of whether [the] defamatory meaning was understood by the recipients." Beecher v. Montgomery Ward Co., 267 Or. 496, 500, 517 P.2d 667 (1973) (emphasis in original); see also Bendl v. Parks, 164 Or. App. 699, 703-04, 994 P.2d 802 (2000). The case law on which Olson relies relates only to the issue of whether a statement can be considered defamatory, not whether the statement is true. For example, the defendant in Beecher argued that its false statement that plaintiff was delinquent on a debt he owed to defendant was not capable of carrying a defamatory meaning.
The court determines whether a statement is capable of a defamatory meaning; the finder of fact determines whether the statement was actually defamatory. Beecher v. Montgomery Ward Co., Inc., 517 P.2d 667, 669 (Or. 1973) (citations omitted). A statement is published for the purpose of a defamation claim when a defamatory communication is uttered from one employee to another employee concerning the job performance of a third employee.
Whether a statement is capable of having a defamatory meaning is a question of law for the court. Beecher v. Montgomery Ward Co., 267 Or. 496, 500, 517 P.2d 667, 669 (1973). A statement is capable of a defamatory meaning if it would subject a person to hatred, contempt or ridicule, or tend to diminish the esteem, respect, goodwill, or confidence in which one is held, or to excite adverse, derogatory or unpleasant feelings or opinions against one. Farnsworth v. Hyde, 266 Or. 236, 238, 512 P.2d 1003, 1004 (1973).
1. Defamatory: Whether a statement is capable of having a defamatory meaning is a question of law for the court. Beecher v. Montgomery Ward Co., 267 Or. 496, 500, 517 P.2d 667 (1973). A statement is capable of a defamatory meaning if it would subject a person to hatred, contempt or ridicule, or tend to diminish the esteem, respect, goodwill, or confidence in which one is held, or to excite adverse, derogatory or unpleasant feelings or opinions against one. Farnsworth v. Hyde, 266 Or. 236, 238, 512 P.2d 1003 (1973).
With respect to Bunch, Oregon law is clear — falsity is a necessary element of a trade libel claim. Beecher v. Montgomery Ward Co., 267 Or. 496, 501, 517 P.2d 667, 670 (1973). Thus, Bunch's complaint fails to state a cause of action for trade libel.