2. If the man asserts a claim against the woman based on defamation, will the man prevail?

To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) that the defamatory language was of or concerning the plaintiff; (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. Where defamation refers to a public figure or involves a matter of public concern, the plaintiff also needs to prove (v) falsity and (vi) fault by the defendant.

Further, where defamation is spoken (slander), the plaintiff must prove special (i.e., pecuniary) damages, unless the verbal defamation falls within one of four exceptions, which are considered slander per se: (i) criminal activity; (ii) occupational misconduct; (iii) sexual misconduct; or (iv) loathsome disease.

In this case, a woman and man who were professional rivals both attended an awards dinner. At the dinner, while in conversation away from the rest of the party, the man suggested a business partnership. The woman rejected this offer and explained that she considered the man incompetent. Another attendee heard the exchange and the man suffered emotional distress but not a pecuniary loss.

C is correct. A threshold requirement of a claim for defamation is that the statement is published to a third party. Publication may occur both intentionally or through negligence. Here, although another attendee heard the exchange between the man and the woman, she did not foresee being overheard. Under the facts as presented, the two spoke away from the rest of the party. To this end, not only did the woman not intentionally publish her defamation, but she was also unlikely to have negligently published her statement. She had no reason to think she would be heard by anyone except for the man himself. Consequently, if the woman did not intend to publish defamation and was also not negligent, the man will not recover.

A is incorrect. Although the man will likely not prevail, because the woman's publication of defamation was neither intentional or negligent, he would not be barred from recovery based on the absence of pecuniary loss. To prevail on a claim for verbal defamation (slander), a plaintiff must prove a pecuniary loss, also known as special damages. Where the defamatory statement at issue is slander per se, it is considered so offensive that damage to reputation is presumed, and no proof of special damages is required. Here, the woman called the man incompetent, which would qualify as an accusation of professional misconduct, and therefore slander per se. Consequently, because the defamation at issue was slander per se, the man would not need to prove special damages/pecuniary loss to prevail.

B is incorrect. Although the man would likely not recover on his claim against the woman, his claim would not fail simply because the woman spoke to him and not the third party that overheard. The man's claim will likely fail, because not only was the woman's publication of the defamation unintentional, but it was also not negligent. The woman had no reason to expect that anyone besides the man would hear her. To this end, the woman would not avoid liability merely because she only intended to speak to the man. Instead, she would avoid liability, because she did not intend her communication to be published to a third party.

D is incorrect. Although the man would not recover damages, his claim would not fail based on the woman's lack of intent to cause emotional distress. As an aspersion on the man's occupational competence, the woman's defamatory statement was slander per se. Consequently, it would be assumed that the statement caused damage to the man's reputation. Therefore, the man would not need to prove that he suffered emotional distress, nor that the woman intended to cause him emotional distress.