Sticks and Stones Can Break My Name: Nondefamatory Negligent Injury to Reputation

Abstract

If a reputation is injured, does it matter whether defamation is the cause? Injury to reputation differs from other items of damage a plaintiff enumerates. Tradition links it to particular tortious conduct-defamation-on the part of a defendant.' This Comment examines ordinary negligent conduct as an alternative ground for recovery for injury to reputation. Recently, a number of plaintiffs have tried to recover for injury to their reputations from tortious conduct that is not defamatory. Typically, an accident injures a plaintiffs reputation when the plaintiff did not cause the accident but it looks like the plaintiff's fault. If a court finds that a defendant behaved negligently, the court must then decide whether to allow recovery for the resulting injury to a reputation given that the defendant's conduct was not defamatory. Taken as a whole, the claim of these plaintiffs is that injury to reputation is conceptually distinct from defamatory conduct and the highly-developed tort of defamation. This Comment describes the approaches courts have taken to negligence claims for injury to reputation. It then proposes a test for courts faced with an attempt to recover reputational damage claims brought on a negligence theory.2 Some courts have held that all claims for harm to reputation necessarily sound in defamation. Other courts have rejected the idea that defamation preempts all other grounds for recovery. These courts differ in their estimation of when reputation damages are recoverable outside of the tort of defamation. Section I provides an overview of the relevant defamation doctrine. Section II