concurring in part and dissenting in part.
The opinion of the majority finds precedential support in cases decided by this and several other state courts. I agree that in each of the cases under review the defendant failed to exercise ordinary care and therefore acted negligently. This dissent stems from my disagreement with the Court’s refusal to adopt in defamation cases as a matter of state law a stricter standard than that of ordinary negligence. Ordinary care is that care which is commensurate with the occasion. It is not absolute or intrinsic. It is always relative to some circumstances of time, place, manner, or person and becomes a question of fact to be decided by a jury.
Juries are randomly selected, and the principal criteria for service thereon is not to be a felon, not under age eighteen, and not unable to communicate in the English language. Present-day ju*54ries often return verdicts that are completely out of proportion to the harm done. The verdicts under review are no exception. Trial judges are reluctant to disturb the verdict of a jury. Appellate courts are equally as reluctant to sustain a trial court when it does take such action.
I do not concur in the suggestion that a gross negligence standard be adopted. The distinction between gross and ordinary negligence is too vague and shadowy to be of any practical importance. The difficulty that courts and juries had in making this distinction in motor vehicle accident cases caused the General Assembly to abolish the gross negligence standard in guest cases. Virginia Code § 8.01-63.1 have no reason to believe that a jury or a court would find it any easier to make the distinction in defamation cases.
I would adopt the New York Times standard which permits the recovery of compensatory damages for a defamatory statement only when such statement is made with knowledge that it is false or is made with reckless disregard of whether it was false or not. And I would make the same standard applicable to the media and non-media defendants. Any lesser standard will inevitably have a chilling effect on free speech and the free press and will erode the safeguards protected by the Constitutions of the United States and Virginia.
The majority opinion does limit the application of the negligent standard by requiring a trial judge to find as a matter of law that the defamatory statement “makes substantial danger to reputation apparent.” Although I approve the limitation, I fear that it will prove in practice to be one of form rather than substance. What is defamatory and when it is harmful are questions of fact. Judges will be just as hesitant to “take a case away” from the trier of the facts as they now are to set aside the verdict of a jury once it has been rendered.
Because I am of opinion that the defendants in The Gazette, Inc., Charlottesville Newspapers, Inc., and Port Packet Corporation were guilty of simple negligence only, a standard which I would not adopt, I dissent from the decision affirming the compensatory-damage awards in the cases. I concur in the action of the majority in reversing the punitive-damage award in the Port Packet case. I did not participate in Fleming.