qualified privilege in Utah

2025In Zoumadakis v. Uintah Basin Medical Center, Inc., it held that a plaintiff’s “failure to set forth any allegation in her complaint that a qualified privilege applied and that the privilege had been abused because ‘defendant[s] acted with malice or that the publication of the defamatory material extended beyond those who had a legally justified reason for receiving it’” was not fatal in the context of a motion to dismiss. 2005 UT App 325, ¶ 7 , 122 P.3d 891 (quoting Brehany, 812 P.2d at 58 ).

2014Our supreme court has noted that "[this qualified privilege protects an employer's communication to employees and to other interested parties concerning the reasons for an employee's discharge." Id.

2011"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established . constitutional rights of which a reasonable person would have known."" Pearson v. Callahan, 555 U.S. 223, 231 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)).

2011"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established . constitutional rights of which a reasonable person would have known."" Pearson v. Callahan, 555 U.S. 223, 231 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)).

2005Evidence of “malice” in this context may include indications that the publisher “made [the statements] with ill will, [that the statements] were excessively published, or [that the publisher] did not reasonably believe his or her statements.” Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992); see also Combes v. Montgomery Ward & Co., 119 Utah 407 , 228 P.2d 272, 275 (1951) (relying on authority requiring the employer to have “ ‘an honest belief in the truth of the statement’ ” (quoting Harrison v. Garrett, 132 N.C. 172 , 43 S.E. 594, 596 (1903))); Hales v. Commercial Bank, 114

2005Evidence of “malice” in this context may include indications that the publisher “made [the statements] with ill will, [that the statements] were excessively published, or [that the publisher] did not reasonably believe his or her statements.” Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992); see also Combes v. Montgomery Ward & Co., 119 Utah 407 , 228 P.2d 272, 275 (1951) (relying on authority requiring the employer to have “ ‘an honest belief in the truth of the statement’ ” (quoting Harrison v. Garrett, 132 N.C. 172 , 43 S.E. 594, 596 (1903))); Hales v. Commercial Bank, 114

1997In Russell, 842 P.2d at 896 , a case involving claims of defamation, invasion of privacy, and intentional infliction of emotional distress against a newspaper, we stated: An additional concern is whether the qualified privilege of [the statute] applies only to a claim for defamation or whether it also applies to other claims based on the same operative facts such as emotional distress and invasion of privacy.

1994In Utah, fair comment came to provide a qualified privilege for a statement if “it involves a matter of public concern, is based on true or privileged facts, and represents the actual opinion of the speaker, but is not made for the sole purpose of causing harm.” Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 902 (Utah 1992).

2025“The existence of a privilege is a question of law for the court, which we review for correctness, giving no deference to the trial court’s determination.” Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997). 20230390-CA 15 2025 UT App 47 Lavender v. FCOI Preserve As to conditional privileges in particular, the question of “whether a publication is conditionally privileged is a question of law, unless a genuine factual issue exists regarding whether the scope of the qualified privilege has been transcended or the defendant acted with malice.” Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 5

2025“Whether a publication is conditionally privileged is a question of law, unless a genuine factual issue exists regarding whether the scope of the qualified privilege has been transcended or the defendant acted with malice.” Wayment, 2005 UT 25, ¶ 53 (cleaned up).

2011To recover for a violation of the United States Constitution under section 1983 of Title 42 of the United States Code, a plaintiff must "show that the defendant's actions violated a [federal] constitutional or statutory right ... [and] that this right was clearly established at the time of the conduct at issue." Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir.2008) (internal quotation marks omitted); see also Pearson v. Callahan, 555 U.S. 223 , 129 S.Ct. 808, 818 , 172 L.Ed.2d 565 (2009) (noting that courts are "permitted to exercise their sound discretion in deciding which of the two prongs o

2011To recover for a violation of the United States Constitution under section 1983 of Title 42 of the United States Code, a plaintiff must "show that the defendant's actions violated a [federal] constitutional or statutory right . . . [and] that this right was clearly established at the time of the conduct at issue." Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) (internal quotation marks omitted); see also Pearson v. Callahan, 129 S.Ct 808, 818 (2009) (noting that courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analys

1991Whether a publication is conditionally privileged is a question of law to be determined by the trial court, unless a genuine factual issue exists regarding whether the scope of the qualified privilege has been transcended or the defendant acted with malice. 3 See Lind v. Lynch, 665 P.2d 1276, 1278-79 (Utah 1983).

1990Lind, 665 P.2d at 1279 ; Direct Import Buyers Ass’n v. KSL, Inc., 538 P.2d 1040, 1042 (Utah 1975).

2025“The existence of a privilege is a question of law for the court, which we review for correctness, giving no deference to the trial court’s determination.” Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997). 20230390-CA 15 2025 UT App 47 Lavender v. FCOI Preserve As to conditional privileges in particular, the question of “whether a publication is conditionally privileged is a question of law, unless a genuine factual issue exists regarding whether the scope of the qualified privilege has been transcended or the defendant acted with malice.” Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 5

2025“The existence of a privilege is a question of law for the court, which we review for correctness, giving no deference to the trial court’s determination.” Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997). 20230390-CA 15 2025 UT App 47 Lavender v. FCOI Preserve As to conditional privileges in particular, the question of “whether a publication is conditionally privileged is a question of law, unless a genuine factual issue exists regarding whether the scope of the qualified privilege has been transcended or the defendant acted with malice.” Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 5

2025In Zoumadakis v. Uintah Basin Medical Center, Inc., it held that a plaintiff’s “failure to set forth any allegation in her complaint that a qualified privilege applied and that the privilege had been abused because ‘defendant[s] acted with malice or that the publication of the defamatory material extended beyond those who had a legally justified reason for receiving it’” was not fatal in the context of a motion to dismiss. 2005 UT App 325, ¶ 7 , 122 P.3d 891 (quoting Brehany, 812 P.2d at 58 ).

2025In Zoumadakis v. Uintah Basin Medical Center, Inc., it held that a plaintiff’s “failure to set forth any allegation in her complaint that a qualified privilege applied and that the privilege had been abused because ‘defendant[s] acted with malice or that the publication of the defamatory material extended beyond those who had a legally justified reason for receiving it’” was not fatal in the context of a motion to dismiss. 2005 UT App 325, ¶ 7 , 122 P.3d 891 (quoting Brehany, 812 P.2d at 58 ).

2025“The existence of a privilege is a question of law for the court, which we review for correctness, giving no deference to the trial court’s determination.” Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997). 20230390-CA 15 2025 UT App 47 Lavender v. FCOI Preserve As to conditional privileges in particular, the question of “whether a publication is conditionally privileged is a question of law, unless a genuine factual issue exists regarding whether the scope of the qualified privilege has been transcended or the defendant acted with malice.” Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 5

2012"Courts may conduct this inquiry sequentially, or resolve a particular case on the second prong alone." Barton v. Clancy, 632 F.3d 9, 22 (1st Cir.2011).

2012"Qualified immunity shields [government] officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, -- U.S. ---, 131 S.Ct. 2074 , 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 78 L.Ed.2d 396 (1982)).

2012"Qualified immunity shields [government] officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, -- U.S. ---, 131 S.Ct. 2074 , 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 78 L.Ed.2d 396 (1982)).

2012See also Peak Alarm, 2010 UT 22, ¶ 55 , 243 P.3d 1221 ) ("The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable *860 [government official] that his conduct was unlawful under the cireumstances presented.").

2012See also Peak Alarm, 2010 UT 22, ¶ 55 , 243 P.3d 1221 ) ("The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable *860 [government official] that his conduct was unlawful under the cireumstances presented.").

2012We note, however, that "the mere existence of genuine issues of fact ... does not preclude the entry of summary judgment if those issues are *859 immaterial to the resolution of the case." Burns v. Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah Ct.App.1994) (omission in original) (citation and internal quotation marks omitted). ¶ 20 Here, even if we agreed that Doyle's affidavits were incorrectly stricken, the potential issues of fact they would raise are immaterial to the resolution of this case under the doctrine of qualified immunity, in the context of the Due Process Clause, and as to Doy

2005See also United States v. Lewis, Nos. 03-2734 & 03-3427, 411 F.3d 838, 842 (7th Cir.2005) (stating that “complaints do not have to anticipate affirmative defenses to survive a motion to dismiss” unless “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations”); Lowther v. Hopper Truck Lines, 92 Ariz. 344 , 377 P.2d 192, 193 (1962) (stating that “it is not incumbent upon the party filing a complaint to anticipate an affirmative defense

2005See also United States v. Lewis, Nos. 03-2734 & 03-3427, 411 F.3d 838, 842 (7th Cir.2005) (stating that “complaints do not have to anticipate affirmative defenses to survive a motion to dismiss” unless “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations”); Lowther v. Hopper Truck Lines, 92 Ariz. 344 , 377 P.2d 192, 193 (1962) (stating that “it is not incumbent upon the party filing a complaint to anticipate an affirmative defense

2005There are Utah cases reciting that "[t]o state a claim for defamation, [plaintiffs] must show that defendants published the statements concerning [them], that the statements were false, defamatory, and not subject to any privilege, that the statements were published with the requisite degree of fault, and that their publication resulted in damage.” West v. Thomson Newspapers, 872 P.2d 999, 1007-08 (Utah 1994) (emphasis added) (footnotes omitted).

2005Evidence of “malice” in this context may include indications that the publisher “made [the statements] with ill will, [that the statements] were excessively published, or [that the publisher] did not reasonably believe his or her statements.” Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992); see also Combes v. Montgomery Ward & Co., 119 Utah 407 , 228 P.2d 272, 275 (1951) (relying on authority requiring the employer to have “ ‘an honest belief in the truth of the statement’ ” (quoting Harrison v. Garrett, 132 N.C. 172 , 43 S.E. 594, 596 (1903))); Hales v. Commercial Bank, 114

2005Evidence of “malice” in this context may include indications that the publisher “made [the statements] with ill will, [that the statements] were excessively published, or [that the publisher] did not reasonably believe his or her statements.” Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992); see also Combes v. Montgomery Ward & Co., 119 Utah 407 , 228 P.2d 272, 275 (1951) (relying on authority requiring the employer to have “ ‘an honest belief in the truth of the statement’ ” (quoting Harrison v. Garrett, 132 N.C. 172 , 43 S.E. 594, 596 (1903))); Hales v. Commercial Bank, 114

2005See also United States v. Lewis, Nos. 03-2734 & 03-3427, 411 F.3d 838, 842 (7th Cir.2005) (stating that “complaints do not have to anticipate affirmative defenses to survive a motion to dismiss” unless “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations”); Lowther v. Hopper Truck Lines, 92 Ariz. 344 , 377 P.2d 192, 193 (1962) (stating that “it is not incumbent upon the party filing a complaint to anticipate an affirmative defense

2005See also United States v. Lewis, Nos. 03-2734 & 03-3427, 411 F.3d 838, 842 (7th Cir.2005) (stating that “complaints do not have to anticipate affirmative defenses to survive a motion to dismiss” unless “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations”); Lowther v. Hopper Truck Lines, 92 Ariz. 344 , 377 P.2d 192, 193 (1962) (stating that “it is not incumbent upon the party filing a complaint to anticipate an affirmative defense

2005Evidence of “malice” in this context may include indications that the publisher “made [the statements] with ill will, [that the statements] were excessively published, or [that the publisher] did not reasonably believe his or her statements.” Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992); see also Combes v. Montgomery Ward & Co., 119 Utah 407 , 228 P.2d 272, 275 (1951) (relying on authority requiring the employer to have “ ‘an honest belief in the truth of the statement’ ” (quoting Harrison v. Garrett, 132 N.C. 172 , 43 S.E. 594, 596 (1903))); Hales v. Commercial Bank, 114

2005Evidence of “malice” in this context may include indications that the publisher “made [the statements] with ill will, [that the statements] were excessively published, or [that the publisher] did not reasonably believe his or her statements.” Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992); see also Combes v. Montgomery Ward & Co., 119 Utah 407 , 228 P.2d 272, 275 (1951) (relying on authority requiring the employer to have “ ‘an honest belief in the truth of the statement’ ” (quoting Harrison v. Garrett, 132 N.C. 172 , 43 S.E. 594, 596 (1903))); Hales v. Commercial Bank, 114

2005See id. ¶ 5 Nevertheless, the trial court also concluded that even if the .allegations were sufficient, Zoumadakis’s claim of defamation fails because the alleged defamatory statements are subject to a qualified privilege.