5. The defendant's motion for a directed verdict in its favor, made at the close of the evidence, should be granted if the

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.

As held by the United States Supreme Court in New York Times v. Sullivan, to prevail against a defendant on defamation of a public figure, the plaintiff must establish actual malice by the defendant by demonstrating that the defendant (i) knew the statement was false; or (ii) had a reckless disregard as to its truth or falsity.

As held by the United States Supreme Court in Gertz v. Robert Welch, to prevail against a defendant on defamation of a private person involving a matter of public concern, the plaintiff must demonstrate that (i) the defamation was false; (ii) the defendant was negligent; and (iii) the defendant's negligence caused actual harm to the plaintiff.

B is correct. Although the general manager was a private individual and not a public official or public figure, the general manager was involved in a matter of public concern, as the restaurant was a popular local eatery, and the general manager was well known to the community for his role in its operations. The libel claim would be subject to the Gertz standard. In order to prevail, the general manager would need to show that the newspaper had negligently published the defamatory story. Consequently, if there were no evidence that the newspaper was negligent as to the truth or falsity of the charge of embezzlement, this would be a strong basis for granting a directed verdict for the newspaper.

A is incorrect. Arguing that the record contained no evidence that the general manager suffered special harm would not be a proper basis for the newspaper to seek a directed verdict. A plaintiff only needs to prove special damages, or pecuniary damages, when the defamation claim involves slander. Here, the general manager brought a defamation claim based on libel, or written defamation. Therefore, he would not be required to prove special damages to prevail.

Further, defamatory statements that implicate (i) criminal activity; (ii) professional misconduct; (iii) sexual misconduct; or (iv) loathsome disease are considered defamation per se. These statements inherently cause damage to reputation such that no proof of special damages is required. The accusation of embezzlement involves both criminal and professional misconduct, and therefore, would require no showing of special damages.

C is incorrect. When a public official or figure makes a claim of defamation, besides making a prima facie case, he is required to demonstrate that the defendant acted with actual malice. Actual malice requires either knowingly publishing a falsehood or publishing a falsehood with a reckless disregard for its truth or falsity. Here, however, the general manager was not a public official or public figure, but instead, a private individual involved in a matter of public concern. Consequently, the general manager would only need to prove negligence by the newspaper, not actual malice. Therefore, the newspaper would not be granted a directed verdict based on the absence of evidence of actual malice.

D is incorrect. Because the general manager was a private individual involved in a matter of public concern, the newspaper would be liable for defamation if the general manager showed that the newspaper had acted negligently. Consequently, evidence that the newspaper merely reported employee statements would not in and of itself cut short its liability. The newspaper also had an obligation to investigate the veracity of the statements. If the newspaper did not investigate the veracity or did so inadequately, it would be negligent and could be liable for defamation.