Tuesday, June 16, 2020

Typo Law

By Eugene Volokh - June 16, 2020 at 08:03AM

Just ran across this 1983 Georgia appellate case:

Coastal Transmission Service, Inc. (Coastal) and its president and owner, Richard Barrow, sued Southern Bell Telephone and Telegraph Company (Southern Bell) for libel. The alleged libel appeared in Coastal's display advertisement in the 1981 Southern Bell yellow pages telephone directory.

Instead of the Coastal slogan, "Get it in gear," Southern Bell printed the words, "Get it in rear." Barrow's name appeared in the body of the ad as the owner of Coastal. Both plaintiffs alleged that the ad exposed them to public hatred, contempt, and ridicule, causing injury to their reputations for honesty, integrity, and virtue.

The complaints charged that as a result of the ad, both plaintiffs received numerous telephone calls and other communications many of which were obscene. Barrow alleged embarrassment and harassment of himself and his family. The trial court denied Southern Bell's motions for summary judgment and the case went to trial. The jury returned verdicts in favor of Coastal and Barrow, awarding general and punitive damages to both plaintiffs and special damages to Coastal. Southern Bell appeals.

Held: [1.] The libel claim was viable (presumably the defamatory falsehood was the implicit assertion to the public that Coastal Transmission was the one that chose the "Get it in rear" slogan)

[2.] There needed to be a new trial at which the jury should be instructed with regard to the contractual waiver of liability (as to Coastal, which had signed the waiver, though not as to Barrow, who hadn't): "The trial court erred in failing to charge on the limitation of liability clause and on the requirement that Coastal show wilful or wanton conduct or gross negligence on the part of [Southern Bell]."

[3.] Punitive damages were permissible, even if the initial typo was an honest mistake:

The injury sued for in this case is not merely the error in printing the defamatory matter but the subsequent distribution of the publication—particularly the continuation of distribution after the error had been brought to the attention of local and regional Southern Bell officials. The initial distribution was made on February 5, 1981 and the local and regional officials were notified by Barrow on February 6. One official would not discuss the matter with Barrow as he was leaving for a two-week seminar and would speak to him when he returned.

Another Southern Bell official's comment was that Barrow would just have to live with the error for one year. When Barrow could not get Southern Bell officials to take any immediate action he told them he would hire a lawyer to get something done. He was advised not to waste his money—they had never lost a case. Thus, Southern Bell officials were fully informed of their error on February 6 and continued to distribute the directories through February 19 and took no action to restrict or diminish the effect of the possible libel created by their action….

[T]he jury was authorized to find that [Southern Bell], with full knowledge of its error, the falsity of the ad, and the propensity for damage to appellees, made a conscious decision to continue distribution of the false advertising with conscious indifference to the consequences that could befall appellees and without any attempt to minimize or diminish the possible adverse effect of its error….

In the words of a judge who dissented as to the liability waiver but agreed as to punitive damages: "They wilfully chose to increase the damage already caused rather than delay distribution of the remainder of the directories for a few days while one or two persons could have obliterated the offensive matter with a rubber stamp."


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