Defamation and the intra-corporate immunity doctrine in Nevada and Missouri

In Nevada, “the general elements of a defamation claim require a plaintiff to prove: ‘(1) a false and defamatory statement by [a] defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.’” Pegasus v. Reno Newspapers, 57 P.3d 82, 90 (2002) (citing Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 (1993)). The elements in Missouri are essentially the same.  Lovelace v. Van Tine, 545 S.W. 3d 381 (2018).

The determination of whether a statement is capable of a defamatory construction is a question of law.  Branda v. Sanford, 637 P2d 1223, 1225-26 (Nev. 1981).  “In reviewing an allegedly defamatory statement, the words must be viewed in their entirety and in context to determine whether they are susceptible of a defamatory meaning.”  Lubin v. Kunin, 17 P.3d 422, 425-26 (Nev. 2001) (internal quotations omitted).  In Nevada, in order to determine if a statement is one of a fact or opinion, “the court must ask whether a reasonable person would be likely to understand the remark as an expression of the source’s opinion or as a statement of existing fact.” Pegasus, 57 P.3d at 87; see also Wynn, 16 P3d at 431. 

“With regard to the question of whether plaintiffs have pleaded an actionable ‘publication’ by and to ‘co-workers,’ it is necessary to define what a publication is … Intra-corporate communications made among agents and employees of a corporation acting ‘within the limits of their employment’ are not ‘publications’ for the purposes of slander claims …  [A] slander claimant must allege an ‘unprivileged communication’ as part of a prima facie case for defamation.  Had plaintiffs wanted to plead a proper defamation case with regard to the publication element, they would had to have pleaded … an unprivileged communication, that is to say a communication that was not protected by the conditional privilege afforded to intra-corporate communications.” Simpson v. Mars, Inc. 929 P.2d 966, 969-70 (Nev.Sup.Ct. 1997) (dissenting opinion by Springer and Steffen); see also, Richardson v. RHH Gaming Senior Mezz, LLC 2016 WL 3545749 (D.Nev. 2016) (granting summary judgment to defendant because statements were privileged intra-corporate communications); Hoff v. Walco International, Inc., 2013 WL 275298 (D.Nev. 2013) (granting summary judgment to defendant because statements were privileged intra-corporate communications and the plaintiff failed to provide evidence that the speaker had “a high degree of awareness of the statements probable falsity”).

There is also an "intra-corporate immunity" rule in Missouri where "communications between officers or employees of a corporation in the regular course of business, or between different offices of the same corporation" are not publications for defamation purposes. Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341, 344 (Mo. 1963); see also Lovelace  (“Employees must be able to bring personnel matters to the attention of supervisors without risk of liability.”) and  Perez v. Boatmen's Nat'l Bank of St. Louis, 788 S.W.2d 296, 300 (Mo. Ct. App. 1990). Communication by a corporation's officers or supervisors to non-supervisory employees, however, constitute a publication for purposes of a defamation. Snodgrass v. Headco Indus. Inc., 640 S.W.2d 147 (Mo. Ct. App. 1982). However, the intra-corporate immunity rule does not appear to be applicable to communications outside of the corporate context, for example partnerships.