PBCBA BAR BULLETINS pbcba_bulletin_April 2019 | Page 25
EXPRESS MALICE: Express malice is
defined as follows: “Where a person
speaks upon a privileged occasion,
but the speaker is motivated more by
a desire to harm the person defamed
than by a purpose to protect the
personal or social interest giving rise
to the privilege, then it can be said
that there was express malice and
the privilege is destroyed. Strong,
angry, or intemperate words do not
alone show express malice; rather
there must be a showing that the
speaker used his privileged position
“to gratify his malevolence.” If the
occasion of the communication
is privileged because of a proper
interest to be protected, and the
defamer is motivated by a desire
to protect that interest, he does not
forfeit the privilege merely because
he also in fact feels hostility or
ill will toward the plaintiff.” See
Demby v. English, 667 So. 2d 350
(Fla. 1st DCA 1995) citing Nodar v.
Galbreath, 462 So. 2d 803 (Fla. 1984).
See also Florida Jury Instruction MI
4.3, Defamation: Private Claimant,
Nonmedia Defendant With or
Without Qualified Privilege , which
reads in relevant part: “The issues
for your determination on the claim
of (claimant) against (defendant)
are:….Issue
whether
defendant
abused qualified privilege: The
issue for your determination is
therefore whether, as (claimant)
contends, (defendant) made the
statement with improper motives
abusing that privilege. One makes a
false statement about another with
improper motives if one’s primary
motive and purpose in making the
statement is to gratify one’s ill will,
hostility and intent to harm the
other, rather than [to advance or
protect (defendant’s) interest, right
or duty to speak to (name) on that
subject] [or] [to advance or protect
the interests of the person to whom
the statement was made].”
W. Jay Hunston, Jr.
Mediator/Arbitrator
Since 2001, limiting his
practice to all forms of effective
dispute resolution, including
mediation, arbitration, special
master, and private judging
services.
•
•
•
•
CONCLUSION: The term “good faith”
as used in §415.1036, F.S. is not
defined. However, if the report to
the central abuse hotline is not false
[as defined in §415.102(10)], or made
with express malice [as defined in
Nodar], then it is arguably made in
good faith and would be a complete
defense to an action for slander.
•
•
•
•
J.D., Stetson Univ. College of Law
Fla. Bar Bd. Cert. Civil Trial Lawyer, 1983-2003
Fla. Cert. Circuit Civil, Appellate & Family Mediator
Member, AAA Roster of Neutrals for Commercial and
Construction Arbitration and Mediation
Qualified Fla. Arbitrator
FINRA Approved Mediator
Statewide Per Diem Rate Available Upon Request
Hourly Rates Available (No Charge for Travel Time Within 15th,
19th, and 17th Circuits)
P.O. Box 508, Stuart, FL 34995
(772) 223-5503; (800) 771-7780 - Office
(772) 223-4092 - Fax
Email: [email protected]
Website/Online Calendar: www.hunstonadr.com
RE-ELECT GRASFORD SMITH
Palm Beach County Bar Association
Board of Directors
Leadership Experience Highlights
Palm Beach County Bar Association
Board Member, 2016-Present
Transaction Law Committee Chair, 2013-2014
The Florida Bar
Grievance Committee 15E, Vice Chair, 2019-Present
Civil Procedures Rules Committee, 2014-2017
Leadership Academy Inaugural Graduate, 2013-2014
Virgil Hawkins Florida Chapter National Bar Association
President Elect, 2018-2019
Vice President, 2017-2018
Cunningham Bar Association
President, 2010-2011
Legal Aid Society of Palm Beach County
Board Member, 2011-Present
Grasford W. Smith
Best Lawyers in America, 2019
Martindale-Hubbell, AV® Rated, 2013-2019
For a full list of experience, please visit
jonesfoster.com/electgrasfordsmith
505 South Flagler Drive
Suite 1100
West Palm Beach
Florida 33401
gsmith@
jonesfoster.com
561 659 3000
PALMBEACHBAR.ORG
25
VOTE APRIL 9-18
Partners in Progress