$500,000 Settlement in North Carolina Defamation Case Over Facebook Comment
The Citizen-Times reported today that an Asheville, North Carolina defamation lawsuit settled for $500,000.00. This is interesting because the alleged defamatory comment was only posted for one minute, it is a very high settlement for a defamation case and usually such large verdicts are confidential. The Citizen-Times reported as follows:
A false remark on a Facebook posting that implied a woman got drunk and caused the death of her child has resulted in a $500,000 defamation lawsuit settlement, which one law professor describes as a "stunning" amount.
Asheville resident Davyne Dial, the general manager of the low-wattage radio station WPVM, sued Jacquelyn Hammond over the Nov. 5, 2015, posting on the social media website, claiming defamation, intentional infliction of emotional distress and negligent infliction of emotional distress. The two knew each other through their efforts, at one point, to gain control over the radio station, Dial said.
On Wednesday, a Buncombe County Superior Court judge signed off on the consent judgment, which awarded Dial $250,000 in actual damages and $250,000 in punitive damages, for a total judgment of $500,000.
Michael D. Green, a professor at Wake Forest University School of Law who specializes in tort law, said he was "stunned" by the dollar amount in the settlement.
"That is extraordinarily rare to have a private defamation suit to result in a recovery of that magnitude," Green said. "I am astonished, because as I'm sure you're aware, if I whack somebody with my automobile, or somebody comes to my house and suffers a really serious injury, I'm insured for that. But libel is not covered by any insurance that an individual would normally have."
Green noted that the vast majority of settlements in such cases are confidential and the dollar amounts never released. Regardless of whether money changes hands, the plaintiff has a judgment for all to see that drives home a point about uncivil behavior and the harm done to her, he said.
Green was doubtful that the full amount, or much money at all, would change hands.
Dial, the plaintiff, declined to comment on that aspect of the case, other than to confirm the $500,000 amount was correct.
She did say her emotional injury was extremely painful because she did in fact lose her 11-year-old son in 1976, when he was accidentally shot and killed by another boy. Dial had no involvement with the shooting.
In a Facebook posting related to Dial, Hammond had posted the comment, "I didn't get drunk and kill my kid."
Dial described the loss of her child, Hammond's comment and the ensuing attention as "heartbreaking" because it made her relieve the loss of her son.
"First of all, I didn't know she knew that I had lost a child, so I had some shock that that happened," Dial said in a telephone interview with the Citizen-Times. "And then it started sinking in that she was making this allegation on social media and that it was going out to other people, so therefore she’s telling people I got drunk and killed my child. In fact, my child was killed in an accident with another little boy, playing with guns."
A friend took a screen shot of Hammond's comment and sent it to Dial, who contacted her attorney. He told her the comment was legally actionable.
"The problem that made it more difficult is when you have to go back and relive the whole thing — to gather the evidence to show that you did not kill your child, because you have to do that in the legal setting," Dial said. "You have to go back and get all the court records and go through all of what happened. Basically, you get taken right back to that time."
The Citizen-Times could not reach Hammond or her attorney, Sam Craig, for this article. The Citizen-Times also could not reach Dial's attorney, Michael Wimer.
At Hammond's modest, one-story bungalow in West Asheville Friday afternoon, a man answering the door said Hammond was not home.
In her legal responses to Dial's claims, Hammond claimed through her attorney that the comment was not "in any way related to (Dial)," stating it was "mistakenly placed in one Facebook thread while (Hammond) was simultaneously participating in another online forum discussion."
"(Hammond) soon recognized that she had placed the comment in the wrong thread and removed it and reposted it to the proper forum," Hammond's attorney wrote in a September 2016 motion to have the case dismissed. "At the time she removed the comment from Facebook, (Hammond) did not realize its misplacement was of any importance to anyone in that forum."
Hammond also maintained the comment remained on Facebook "for less than one minute before being removed, and the same words then restated in the proper forum."
That motion and another to dismiss were not approved, though, and Dial said she and her attorney were ready to go to court. Dial said they had evidence from another Facebook exchange that suggested Hammond had known the comments were about Dial.
"When she realized we were really gung-ho on going court, she decided to go head and sign that (settlement agreement)," Dial contends.
Dial also maintains that while the emotional pain was very real, so also was the damage to her reputation. Her attorney noted in court documents that the false comment about Dial "blatantly accused (Dial) of a reprehensible felony crime of manslaughter or murder."
Green said a jury would have had to find Hammond liable, or responsible for the comment, and it could carry an emotional wallop in court because Dial had lost a son. Attorneys in these cases have to conduct a cost-benefit analysis on the strength of their cases, he said, and all settlements "occur in the shadow of what would've happened if the case went to court.'
"In the vast majority of cases, the parties assess what's going to happen at trial and then back off of that and say: 'What’s the likelihood I’m going to succeed? And what’s it’s going to cost me to go ahead with the trial?' And that’s where you get to a settlement," Green said.
Before they became embroiled in dispute, Hammond and Dial actually had been working together to gain control over WPVM, which was having financial troubles. Hammond was on the board of the organization Dial represented.
But, Dial said, Hammond then aligned herself with a WPVM board member who opposed the sale, and that's when their relationship deteriorated.
"This woman had been carrying on a smear campaign against me for nearly a year on social media," Dial said. "And social media makes it very easy to do this. There are no filters to say whatever you think behind the safety of your screen. She had made other untrue statements through the years, but when this happened, it was very painful."
Dial said her attorney, Wimer, told her she had grounds for a lawsuit. Dial said she proceeded in part to "make a statement to the community that you can’t get on social media and run your mouth without consequences."
While Dial confirmed the amount of the settlement, she would not elaborate when asked what she thought about the amount or the possibility of collecting, as her attorney told her "it's a confidential matter."
Dial has been active on social media for years and was the founder of "Buncombe Politics," a forum for discussing local matters. At one point, she said, she "removed the most extreme folks when the presidential election got so weird, and renamed the group." She now hosts the Facebook page "Asheville Town Square/a virtual meeting place."
No shrinking violet, Dial can take care of herself on social media and has a thick skin, but she feels Hammond's comment crossed a line of civility than she could not tolerate. She hopes the large settlement amount conveys a strong message to the general public in an age when most interactions with other people are virtual.
"It tells you need to be careful on social media and not put stuff out to the world that is untrue — that you might do it to someone who will hold you accountable for what you’re doing," Dial said. "It’s too easy these days to do this sort of thing and let it go out to the public. As you well know, in the past when things got published, there was an editor or there was some sort of filter. You don’t have that anymore, because now everybody is free to be their own sounding board out to the community."
Staff writer Emily Patrick contributed to this report.
Alex Durst is a Cincinnati civil litigation attorney and appellate attorney with The Durst Law Firm. Licensed in Ohio, Alex has also practiced in Missouri, Florida, Indiana, California, Nevada, Massachusetts, and Kentucky. Alex can be reached at (513) 621-2500 or firstname.lastname@example.org.