Full opinion text
STEPHEN H. ANDERSON, Circuit Judge. Dun & Bradstreet, Inc. appeals from a judgment entered on a $3,847,000 general jury verdict against it in a business defamation action. It also appeals from the denial of post-trial motions for judgment n.o.v. and for a new trial. The affiliated plaintiff corporations, Sun-ward Corporation, Wedg-Cor, Inc., and Marvel Brute Steel Buildings, Inc. (collectively “Sunward”) sued Dun & Bradstreet over the issuance of at least 340 inaccurate reports sent, on request, to various subscribers over a period of approximately two years, beginning in the fall of 1979 and ending in October, 1981, when Dun & Bradstreet was advised of the error and notified subscribers. The reports stated nothing explicitly defamatory about Sunward on their face, but they grossly understated the size of Sunward’s business. Sunward charged that if recipients of the reports had prior information as to Sunward’s true size, they would have interpreted the credit reports to mean that Sunward’s business was in a steep decline, thus imputing to Sunward financial distress and incompetence in the conduct of its business. Sunward further charged that a report of small size in and of itself is defamatory in the competitive business in which it is engaged, No recipients of the reports were produced to testify that they interpreted the reports to have the defamatory meanings charged by Sunward. Federal jurisdiction is based on diversity of citizenship. Colorado law governs. On appeal Dun & Bradstreet contends: that there was no proof of defamation sufficient to allow the case to go to the jury; that the jury instruction defining “reckless disregard” (which Sunward had to prove to overcome Dun & Bradstreet’s qualified privilege) was erroneous, and evidence on the subject was insufficient; that the district court erred in permitting Sunward to recover presumed damages; and that the evidence on damage was improper. We agree with certain of those arguments, as discussed in this opinion. Therefore, we affirm in part, reverse in part, and remand for a new trial. Sunward has filed a cross-appeal from the district court’s denial of pre-judgment interest on the jury award. Our decision to reverse and remand this case for a new trial renders that appeal moot. BACKGROUND The business of Dun & Bradstreet is well known and has been discussed extensively in decided cases, including the published opinion of the district court in this case. Sunward Corp. v. Dun & Bradstreet, Inc., 568 F.Supp. 602 (D.Colo.1983). In general, Dun & Bradstreet is a credit reporting agency which “provides subscribers with financial and related information about businesses. All the information is confidential; under the terms of the subscription agreement the subscribers may not reveal it to anyone else.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 2941, 86 L.Ed.2d 593 (1985). Sunward is in the business of manufacturing and selling steel buildings. R. Vol. IV at 73-74. Although it sells nationwide, Sunward’s buildings are sold primarily to agricultural and commercial concerns in the north-central states as barns, warehouses and storage bins. R. Vol. IV at 37, 73, 78. In 1975 and 1976 Dun & Bradstreet issued basically accurate reports on segments of the Sunward corporate structure, stating, on December 22, 1975, that WedgCor Inc., (a subsidiary of Marvel Steel, Inc.) had annual “sales in the $7 million range.” Ex. 26, R. Vol. IV at 101. Because of Dun & Bradstreet’s records destruction policy it is not known what, if any, reports relating to Sunward were issued between 1976 and 1979. R. Vol. V at 196-97. Over a two-year period, beginning with two reports dated August 15, 1979 (the first recorded issuance of which was on November 12, 1979), and ending in mid-October, 1981, Dun & Bradstreet, in response to requests from subscribers, issued approximately 340 reports on corporations in the Sunward group. Those reports grossly understated the size of Sunward’s business. The 1979 report on Sunward Corporation estimated annual sales at $200,000 with three to five employees, and stated that Sunward had $25,000-$50,000 in fixtures and equipment. Sunward was described as a real estate investment company. Ex. 29, R. Vol. VI at 262-64. The 1979 report on “Marvel Brute Steel Buildings/Marvel Steel Wedg-Cor/Sunward Purchasing Div.” stated that the company had three to five employees, with estimated annual sales of $500,000~$750,000. In fact, in the 1979 fiscal year which ended February 28, 1980, the Sunward group of corporations had combined gross sales amounting to $29.5 million. Also in 1979, those corporations employed just over 300 salaried personnel, of whom 169 were employed by Marvel Brute Steel and 100 by Sunward. They also had approximately 250 commissioned sales personnel and 100 dealers. Approximately 80% of the total 1979 business was done by the commissioned sales personnel. R. Vol. IV at 80-81. In March, 1979, the beginning .of fiscal year inventory amounted to $4.6 million, and plant and equipment, after depreciation, was valued at $5.8 million. The backlog of orders stood at $6.7 million. Ex. 64, R. Vol. IV at 83-86. Although some differences appeared, the Dun & Bradstreet reports on the Sunward group of corporations continued in the same vein as the 1979 reports until October, 1981 when Danton Wirth, owner and a principal in these corporations, saw one of the reports. Exs. 23, 24, R. Vol. IV at 93-95. Each of the credit reports stated on its face that Sunward had declined to be interviewed and declined all information; therefore, sales figures were the reporter’s estimates. Mr. Wirth testified that from and after 1975 he consistently refused to provide financial information about his companies to Dun & Bradstreet, and instructed his employees not to cooperate. R. Vol. IV at 91-92; R. Vol. V at 176. Requests by the Dun & Bradstreet representative for information in 1979 were rebuffed. R. Vol. VI at 265. The parties are in disagreement as to whether or not Sun-ward was aware of the erroneous credit reports between 1979 and October of 1981, but Mr. Wirth denied any knowledge. R. Vol. V at 174-76. In the period generally corresponding with that in which the erroneous credit reports were being issued, Sunward’s gross sales declined 56.5% (PLEx. 66, par. 4); its sales force declined to just six active commissioned salespeople; and its backlog of orders decreased during the 1979 fiscal year from $6.7 million to $2.3 million. Ex. 64, R. Vol. IV at 83-84, 86-87. The causal relationship of these and associated business difficulties of Sunward to the Dun & Bradstreet reports is a highly disputed and central issue in this case. Not one of the recipients of the erroneous credit reports was called to testify, nor was any witness called who had heard any reference to the reports. Rather, through three witnesses, Sunward established only that there were rumors in the industry that the company was in financial difficulty. Steven L. Kalicki, a former employee, testified that while employed by Sunward in 1979 he heard rumors within the company, from company employees, that the business was not doing well. R. Vol. IV at 59-60, 63. And, in late 1980 and in 1981, after he had left the company, various contractors in Colorado commented to him that Sunward was doing poorly and about to go out of business. R. Vol. IV at 60-61. He failed to name any of the individuals who made such comments or any other parties to the conversation. Nor did he identify the time or place of the conversations. Jerry Bishop, who worked for a competitor, testified that he had heard similar rumors on two occasions: in November, 1980, during the cocktail hour at the 25th anniversary meeting of the Metal Building Manufacturers’ Association (he could not remember who made the remark); and in a telephone conversation with a district manager for a competitor, Chief Industries, sometime between December 15, 1982 and January, 1983 (more than a year after Dun & Bradstreet ceased distribution of the erroneous reports). R. Vol. VI at 291-94. Mr. Wirth testified to the existence of rumors and consequent difficulties with his sales force and dealers. He also admitted that he could not identify any customer or specific business loss directly traceable to the Dun & Bradstreet reports. R. Vol. IV at 103; R. Vol. V at 181. And, he acknowledged the onset of a bad economic climate in the early 1980s, resulting in a general decline in the steel building business. R. Vol. IV at 135, 140-41. A Sunward employee, Jerry Johnston, testified in general that warranties and engineering certifications are important to the sale of buildings. R. Vol. IV at 45-46. But Sunward made no serious attempt to establish the resulting inference that small companies are not patronized because they are unable to provide or stand behind their warranties or certifications. That very general and sketchy testimony, along with figures showing its decline in business, constituted Sunward's evidence that the credit reports were considered to be defamatory. The credit reports in question were prepared by Dun & Bradstreet employee Larry Thompson. Mr. Thompson admitted that after Sunward refused to supply any information he prepared the reports using estimates, assumptions and “guesstimates.” R. Vol. VI at 263-66. He used standard Dun & Bradstreet techniques to arrive at some estimates, which were apparently based on erroneous figures from some prior report. Id. However, Mr. Thompson failed to follow prescribed procedures in a number of important respects. He did not check public filings with state agencies. He did not check on Sunward offices and plants in other locations for which he had and reported the address— particularly the large plant in Jamestown, North Dakota. R. Vol. VI at 265-66. He did not even take into account in his report of three to five employees the obvious disproportion of that estimate to the size of the Sunward physical facilities which he visited in an attempt to obtain information in the first instance. R. Vol. VI at 265, 279. The building contained 10,000 square feet of office space according to Mr. Thompson’s own report. R. Vol. VI at 279. He was encouraged in his methods by Dun & Bradstreet’s compensation system, which gives bonus points for sales information and certain other data. R. Vol. VI at 267-69, 271. He was also under time pressure to produce a volume of reports acceptable to his superiors. R. Vol. VI at 274-78. Dun & Bradstreet defends its procedures, but did not seriously contend at trial that Mr. Thompson's preparation of the reports on Sunward was proper. In his closing argument, counsel for Dun & Bradstreet told the jury: I’m not, you know, not going to pin the rose on anybody. I wish he hadn’t done it. I’m proud of the fact that Dun & Bradstreet records document step by step by step everything we did. We honestly wrote down everything everybody said and I honestly stand before you and I say to you, I wish that he hadn’t taken a sensible procedure and taken it a step too far. As you heard, we've taken steps to make sure that never again will anybody make that kind of mistake because in these circumstances we’ve stopped it, so it’s not a situation where you’re going to say, Mr. Bartlit, fine and good, what’s going to happen in the future. That kind of estimate is dead and gone in Dun & Bradstreet, as I assume you would expect. R. Vol. XI at 691. In its complaint and early in its suit Sunward asserted that the erroneous credit reports impaired its credit. It dropped that assertion at trial. Damage evidence consisted mainly of the decline in sales and projections of estimated profits. The evidence was presented primarily through a report and testimony by Richard D. Clark, an accountant and former part-time employee of Sunward. His testimony, based on mathematical comparisons, assumptions and projections, suggested that Sunward’s damages were between $7,637,119 and $11,294,524. The jury returned a general damage verdict of $3,847,000. Post-trial motions, respectively, for a remittitur and for pre-judgment interest were denied, along with Dun & Bradstreet’s motions for judgment n.o.v. and for a new trial. The usual standards of review with respect to jury trials and awards apply in this case. See Dixson v. Newsweek, Inc., 562 F.2d 626, 631 (10th Cir.1977). With respect to constitutional issues raised by Dun & Bradstreet, we are not called upon to review fact findings by the jury, see Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), so much as we are required to review the legal (including constitutional) propriety of standards given by the court in its instructions to the jury. To the extent it has been necessary to review the facts in order to determine if constitutional protections apply because matters of public interest are involved, no determination by the jury is implicated. See Green-moss, 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). Prior to trial, the court granted partial summary judgment to Dun & Bradstreet on the ground that the Dun & Bradstreet reports in question were not libelous per se under Colorado law, and that Dun & Bradstreet, as a credit reporting agency, enjoyed a qualified privilege or conditional immunity for its reports. 568 F.Supp. at 605-608. The court also ruled that the nature of the publication entitled Sunward to a presumption of damages and that, therefore, Sunward was not required to plead and prove special damages. Id. at 606. At trial Sunward’s claim for punitive damages was dismissed. R. Yol. X, at 630-32. The other rulings were the foundation for the court’s instructions to the jury. Of those rulings, only those pertaining to presumed damages have been appealed, based upon the jury instruction on that subject. The other rulings continue undisturbed and are declared to be the law of this case. I. PROOF OF DEFAMATION Dun & Bradstreet contends that this case should not have gone to the jury because Sunward failed to prove that anyone considered the credit reports to be defamatory. Sunward counters by arguing that it is entitled to rely solely on inferences drawn from its circumstantial evidence of a decline in sales, and from rumors that it was in financial difficulty. We consider proof of defamation to be an important issue in this case since there is no case of recent vintage where a credit reporting agency has been charged with defamation because it reported a business to be smaller than it really was. We must assume that underestimating the size of a business is not unusual in credit reports, and most of the arguments raised in this case could be raised in other instances. Sunward does not contend that the credit reports in question are defamatory on their face (libel per se). Rather, Sun-ward’s case proceeded on the theory that the reports became defamatory through inferences drawn from extrinsic circumstances (libel per quod). Quoting controlling Colorado precedent, the district court aptly characterized Sun-ward’s action as follows: For language to be libelous per se, the facts or reports must be deplorable, derogatory, or disgraceful, and the element of disgraceful imputation must be clearly expressed on the face of the writing. Bernstein v. Dun & Bradstreet, 149 Colo. 150, 368 P.2d 780, 784 (1962). In evaluating a statement or article alleged to be libelous per se, the court must interpret alone, without aid of inducements, colloquialisms, innuendos, and explanatory circumstances. To be libelous per se, the publication must contain defamatory words specifically directed at the person claiming injury, which words must, on their face, and without the aid of intrinsic proof be unmistakably recognized as injurious. (Citations omitted.) Inter-State Detective Bureau v. The Denver Post, 29 Colo.App. 313, 484 P.2d 131, 133 (1971). Words which require an innuendo are not libelous per se. In determining whether words are libelous, they are to be given their ordinary and popular meaning. Knapp v. Post Printing and Publishing Co., 111 Colo. 492, 144 P.2d 981 (1943). I agree with D & B that these inaccuracies and misstatements are not libelous per se. The language in the reports is neutral in content, neither scurrilous nor inflammatory. Only by going beyond the face of the report would the defamation become clear. As such, I find the issue is whether the report is libel per quod. 568 F.Supp. at 605-06. The essential extrinsic fact in this case is that in relative terms Sunward was large when Dun & Bradstreet reported it to be very small. The record contains no evidence showing the extent of awareness in the marketplace of the size of Sunward’s business, but with sales exceeding $29 million in the 1979 fiscal year its visibility and presence could not have been insignificant. Sunward did establish that in 1975 Dun & Bradstreet had prepared a report on one of the Sunward corporations, as the corporate structure existed at that time. The report correctly reported sales at the seven million dollar level, with forty-five employees. Ex. 26, R. Vol. IV at 99-101. However, because Dun & Bradstreet regularly purges its files it is impossible to know how many subscribers had requested a copy of the 1975 report. Only one recipient was identified. R. Vol. V at 196-97. The fact of relative size difference was augmented by extrinsic evidence concerning the nature, scope and competitiveness of the steel building industry. The additional external facts relied upon by Sunward are that its sales declined dramatically, and that disparaging rumors existed about its financial condition during the time that the inaccurate Dun & Bradstreet reports were being issued. Sun-ward’s sales force also declined, although the precise argument is that a planned phaseout of the sales force due to a conversion from commissioned sales personnel to sales through dealers was accelerated during the time the reports were extant. In its complaint Sunward did not identify those facts or, more importantly, the alleged defamatory inferences with any specificity. At trial Sunward distilled its position to a general argument that the Dun & Bradstreet reports, in light of the extrinsic facts, must have been interpreted to mean that Sunward was in financial distress and a state of business failure. In his opening statement, Sunward’s counsel stated that “rumors started that this company ... was going out of business, it was broke, it lacked substance, it was a paper company.” R. Yol. IV at 10. “The reports indicated that, for a steel building manufacturer, Sunward was in deep financial trouble and without the resources to stand behind its product. Rumors arose in the field during the time these reports were distributed that plaintiffs were in financial straits.” Brief of Appellees at 19-20. There was a second defamatory innuendo, not extensively developed, that a small operator in the metal building industry would not do well because of its size alone. “You don’t even have to have the two [1975 and 1979 reports] side by side to have concerns that an outfit that purports to be a whizbang manufacturer of steel buildings can’t amount to very much if that’s all that it has going for it.” R. Vol. XI at 653. “[T]he reports were defamatory. The reports grossly underestimated plaintiffs’ size and financial situation. The evidence revealed the importance in the competitive steel building industry of adequate financial capacity — ” Brief of Appellees at 16. As indicated Sunward further implied that it was perceived as unable to stand behind its warranties and engineer's certifications. “Sunward was in deep financial trouble and without the resources to stand behind its product.” Brief of Appellees at 19-20; R. Vol. XI at 653. Sunward relied entirely upon circumstantial evidence and inferences drawn from that evidence to prove the defamatory imputations just described. It offered no evidence directly linking the Dun & Bradstreet reports to the alleged defamatory meanings. No recipient or other person exposed to one of the reports testified. Mr. Wirth testified that he had no knowledge of any customer or sale which was affected by the reports. R. Vol. IV at 103; R. Vol. V at 181. Sunward explains its position as follows: In this ease, D & B distributed reports to, among others, Sunward’s competitors. The reports indicated that, for a steel building manufacturer, Sunward was in deep financial trouble and without the resources required to stand behind its product. Rumors arose in the field during the time these reports were distributed that plaintiffs were in financial straits. It is a reasonable inference, given the competitive nature of the industry, that competitors of Sunward, which had received the D & B reports, were responsible for these rumors. Circumstantial evidence supported Sun-ward’s theory. No more was required. Brief of Appellees at 19-20 (emphasis added). The plaintiffs’ burden of proof in a defamation case is set out in § 613 of the Restatement (Second) of Torts (1977) as follows: (1) In an action for defamation the plaintiff has the burden of proving, when the issue is properly raised, (a) the defamatory character of the communication, (b) its publication by the defendant, (c) its application to the plaintiff, (d) the recipient’s understanding of its defamatory meaning, (e) the recipient’s understanding of it as intended to be applied to the plaintiff, (f) special harm resulting to the plaintiff from its publication, (g) the defendant’s negligence, reckless disregard or knowledge regarding the truth or falsity and the defamatory character of the communication, and (h) the abuse of a conditional privilege. ****** (emphasis added). Comment c to § 613 further explains the requirement of proving the recipient’s understanding as follows: "Thus, when the defamatory character of the communication depends upon extrinsic circumstances, the plaintiff must prove both their existence and knowledge of them by the recipient of the communication ” (emphasis added). In § 563 of the Restatement the American Law Institute states that “[t]he question to be determined is whether the communication is reasonably understood in a defamatory sense by the recipient____ It is not enough that the language used is reasonably capable of a defamatory interpretation if the recipient did not in fact so understand it.” Restatement § 563 comment c (emphasis added). The district court in Colorado and the Colorado Supreme Court have recognized this requirement. Rocky Mountain News Printing Co. v. Fridborn, 46 Colo. 440, 104 P. 956, 959 (1909) (“Or they [the defamatory words] may not be defamatory on their face, in which case the action cannot be maintained, unless the plaintiff can and does show that they were, under the particular circumstances, fairly capable of a special meaning rendering them defamatory, and that they were so understood.”) (emphasis added); see also Walters v. Linhof, 559 F.Supp. 1231, 1236 (D.Colo.1983); Knapp v. Post Printing & Publishing Co., 111 Colo. 492, 144 P.2d 981, 984 (1943) (in order for the defendant’s words to be defamatory, their defamatory meaning must be understood under the circumstances). This court has also referred to this requirement: “No one seems to dispute the well established law, both generally and in Oklahoma, that in libel and slander actions [if a publication is libelous per quod] [t]he jury must then determine whether, under all of the existing circumstances, the recipients of the writing attributed to the language used the defamatory imputations set forth in the complaint____” M.F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167, 169 (10th Cir.1968). See generally Electric Furnace Corp. v. Deering Milliken Research Corp., 383 F.2d 352, 354 (6th Cir.1967) (“The fatal deficiency in plaintiff’s case resides in its failure to show that any recipient of the accused letter gave it the meaning which Electric asserts is fairly inferable from a reading of it”), cert. denied, 390 U.S. 949, 88 S.Ct. 1040, 19 L.Ed.2d 1141 (1968); Rudin v. Dow Jones & Co., 557 F.Supp. 535, 543-45 (S.D.N.Y. 1983); Reichman v. Bureau of Affirmative Action, 536 F.Supp. 1149, 1180 (M.D. Pa.1982); Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa. 1976); Altoona Clay Products, Inc. v. Dun & Bradstreet, Inc., 286 F.Supp. 899 (W.D.Pa.1968); As indicated, Sunward asserts that it carried its burden on this critical point by reasonable inferences from circumstantial evidence. We disagree. It relied, and the jury was left to rely, more on speculation than evidence and reasonable inference. Each inference argued by Sunward was not only speculative in itself, but it rested upon predicate speculation, thus compounding the error. The following excerpt from Sun-ward’s closing argument to the jury illustrates the point: In December of ’75, we’ve got sales of $7 million and employees of 45. Now, there is a big jump between 1975 and 1979 and, with the courtesy of the Dun & Bradstreet computer program, which obliterates everything in between, we don’t know what was happening in that period, but let’s suppose that you have been a subscriber to Dun & Bradstreet since 1975 and keep at file on companies, and you take a look at Exhibit 26, which shows sales of $7 million for this outfit called Wedg-Cor, a subsidiary of Marvel Steel, and you take a look at Exhibit 30 four years later, not quite four years later, and you see Marvel Brute Steel doing business as Marvel Steel WedgCor, and as the witness Hannaford, I believe it was, acknowledged on the stand, if you were to make the connection between the names — and offhand, I can’t think of how many companies named Wedg-Cor or Marvel Steel would fit into Jamestown, North Dakota — if you were to make that connection, the logical inference would be that something very bad had happened to this company in the meantime and that its sales had shrunk to a tenth of their former size, and that employees had gone down from 45 to 5. R. Vol. XI at 652-53. In that argument, in order even to reach the inference counsel sought, the jury had to speculate on: (a) receipt of a report in 1975; (b) retention of that report — or accurate memory of its contents — for four years; (c) its comparison by the recipient with the 1979 report; and (d) a mental adjustment to a change in company names. Sunward then speculates that the 1979 report recipient would infer that “something very bad had happened to this company.” That final speculation must still co-exist with others which are just as plausible. For example, the recipient may have disregarded the report because it stated that Sunward refused to give information, and that sales were the reporter’s estimates; or the recipient may have known that the report was inaccurate because of other information known to the recipient. Another series of speculations is required to conclude that recipients interpreted the small size reported to mean that Sunward was unfit to function in the steel building industry. Likewise, if the crucial group of recipients was limited to competitors in the small universe of steel building manufacturers, as Sunward now seems to argue, Brief of Appellees at 19-20, a jury would be left to speculate whether the competitors started derogatory rumors because of their understanding of the credit reports or for other reasons. Sunward established at trial that competitors kept close tabs on one another. R. Vol. VI at 299. There was testimony that Sunward’s own employees were circulating rumors about the company’s financial difficulties. R. Vol. IV at 59-60, 63. Did those rumors get picked up by the competitors? Did competitors observe Sunward’s reduction in sales force and use that to start a rumor? Did it obtain information from former salespeople? Did the competitors start rumors about Sunward simply out of competitive spite, based on no information at all? While all competing inferences do not have to be negated in order to make an asserted inference reasonable, reasonableness itself can be tested by the relevant facts and possibilities in each situation. As just illustrated, by electing not to call any of the scores of identified recipients of the reports to ask them what extrinsic facts they knew, and what they understood the reports to mean, Sunward offers little more than debater’s suppositions instead of reasonable inferences. This is especially true considering the brief and general testimony about the existence of rumors concerning Sunward’s business. This vacuum of proof is further emphasized by pure guesswork as to which of the claimed defamatory meanings was supposedly understood by recipients: financial distress, incompetence, or inability to produce and stand behind its product because of small size alone? It would have been impossible for a jury to make that determination on the evidence presented. Although a jury is entitled to draw reasonable inferences from circumstantial evidence, reasonable inferences themselves must be more than speculation and conjecture. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943). For example, in Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir. 1982), the court rejected as too speculative inferences that a nursing home was negligent and therefore liable for a resident’s wrongful death when he wandered off while under the nursing home’s care. Upholding the district court’s grant of judgment n.o.v., the court stated that, “a jury will not be allowed to engage in a degree of speculation and conjecture that renders its finding a guess or mere possibility. Such an inference is infirm because it is not based on the evidence.” Id. at 1326 (citation omitted). See also Hanson & Orth, Inc. v. M/V Jalatarang, 450 F.Supp. 528, 540-41 (S.D.Ga.1978) (evidence that a shipowner was negligent in relation to a fire aboard his ship was too speculative); Thomas v. Young, 282 F.Supp. 52, 55 (E.D. Wis.1968). The line between “reasonable inferences” and mere speculation is impossible to define with any precision. However, the Third Circuit has effectively described the process of distinguishing between reasonable inferences and impermissible speculation: The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncracies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated, “the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.” Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458 (1943). Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 895 (3rd Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981). In this case, we are not confronted with difficult line-drawing determinations. Inferences that the reports were understood as defamatory and that they caused or contributed to Sunward’s financial difficulties are here supported only by speculation and conjecture. The record is devoid of evidence that anyone ever understood the credit reports in the defamatory manner inferred by the plaintiff. The only evidence offered was a chronological rendition of events which, among other things, indicated that the first inaccurate Dun & Bradstreet report preceded Sunward’s financial downturn, rumors of difficulty, and associated problems. Sunward’s argument based on this evidence consists of “reasoning from sequence to consequence, that is, assuming a causal connection between two events merely because one follows the other.” Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 116 (3rd Cir. 1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981). The inferences required to establish proof of defamation in this case do not follow from the evidence and must be rejected. In this case it was especially important for the evidence fairly to disclose what the recipients understood by these credit reports. The language of the reports was both neutral and qualified. Liability turned on extrinsic facts and multiple alleged innuendos which are clearly more complicated than those found in the usual defamation case. Many complex economic factors are apparent in the case, from changes in the economy generally, to internal forces at work in this business. Furthermore, a determination that the reports were considered to be defamatory directly and seriously impacts the major issue of damages, see infra Section III. B., as well as going to the issue of liability. Under such circumstances courts should be particularly careful not to permit plaintiffs to establish so many conclusions with so much argument and so little evidence. In partial explanation of its failure to produce any direct evidence that the Dun & Bradstreet reports were understood by recipients as defamatory, Sunward states: Plaintiffs were faced with the prospect of tracing a pernicious rumor back to its source. Such a task would be difficult under the best of circumstances; given the D & B confidentiality requirements and the status of those receiving the reports, the task is impossible. Brief of Appellees at 20-21 (emphasis added). It is one thing to argue impossibility as a theoretical proposition, however, and quite another thing to demonstrate it. Sunward offers no evidence to support its claim of impossibility. More than one hundred recipients of these reports were identified. They included competitors, banks, suppliers, bonding companies, and others. R.Vol. IV at 49-52, 61-62; R. Vol. VI at 299. It is not credible that direct evidence of defamatory understanding by recipients was totally unavailable from a group that large and diverse. Reluctance of some to testify must be balanced against the fact that they can be examined under oath, and that letters, memoranda and other documents can be produced under subpoena duces tecum. Furthermore, by requiring such a process, and direct evidence, Dun & Bradstreet is accorded the right to cross-examine, test the evidence, and develop its own case — rights which are denied by allowing Sunward to rely entirely on multiple suppositions. As for alleged difficulties with rumors, they need not be traced to a source as Sunward complains. Sunward has already asserted that the source was report recipients and a sufficient number of those recipients has been identified to test the source theory. Sunward also contends, in essence, that the potential availability of presumed damages controlled proof of defamation. The proposition is stated as follows: Under the law of Colorado, as properly interpreted by the trial court, Sunward did not have to prove special damages. Damages were presumed because of the nature of the defamatory report. D & B’s approach would destroy the benefit of the presumption. The presumption exists to allow a defamed party to recover damages in circumstances when, because of the nature of the defamation, substantial damages are likely to have occurred, but proof of those damages may be difficult or impossible____ If, as D & B suggests, a plaintiff must nonetheless produce a witness to testify as to his defamatory interpretation of the statement, the benefits of the presumption would be lost. Brief of Appellees at 19 (emphasis added). That argument puts the case exactly backwards. It assumes proof of defamation, and proof of the nature of the alleged defamation, to justify the conclusion of entitlement to presumed damages. Then, going full circle, it contends that the benefit of the presumption is lost by requiring proof of the fact and nature of the defamation. It is elementary that proof of defamation (along with falsity) precedes all else in a defamation case. See Restatement § 558; see also Walters v. Linhof 559 F.Supp. 1231, 1234 (D.Colo.1983). That is also the point of this entire section. It is equally elementary that proof of the nature of the defamation controls whether or not damages will be presumed. That point is discussed in Section III. B., infra. Sunward implies, but makes no real attempt to develop an argument, that the court’s pre-trial ruling granted presumed damages as a matter of law. There was no such ruling. The court denied Dun & Bradstreet’s motion for summary judgment and ruled in the process that the reports were capable of the defamatory innuendo alleged — which it has the right to do. Restatement § 614. It then submitted the matter for jury determination which, in a case like this, it must do if the case has survived motions to dismiss. Id. Furthermore, Sunward’s argument confuses proof of special damage with proof of defamation. While proof of special damage and proof of defamation often overlap, they are not equivalent. Take, for example, a false report which by virtue of known extrinsic facts is interpreted by a recipient bank to impute insolvency. Special damage does not necessarily result. The bank may have already decided on other grounds not to extend credit, or may extend credit despite the report because further investigation or a correction shows the report to be false, or the bank may not even have been asked to extend credit and does not advise anyone else of the report. The incident causes no out-of-pocket or other economic loss to the subject of the report. Thus, there is no special damage. Testimony by bank officials as to how they interpreted the report in light of extrinsic facts known to them goes directly to proof of defamation. An imputation of insolvency proved by that testimony may then be used in evaluating entitlement to presumed damages. Obviously, the plaintiff is not robbed of the benefits of the presumption by requiring “a witness to testify as to his defamatory interpretation of the statement,” as Sunward contends. In sum, Sunward’s position confuses the order of proof. Presumption of damages neither precedes nor excludes a determination of defamation; rather, it follows and is dependent on that determination. The intertwined nature of liability and damage issues in defamation cases, together with interchangable or similar terms, has created difficulties in this regard, but the point is clear. We reemphasize that the first element of a defamation case is as stated in § 558 of the Restatement: “To create liability for defamation there must be: (a) a false and defamatory statement concerning another.” (emphasis added). Jury instructions in this case perpetuated the problem. The district court instructed the jury that it must find the reports were false, defamatory, caused damage, and were published with reckless disregard. R.Vol. XI at 718. However, the instructions did not define defamation except as part of a later instruction on presumed damages. R.Vol. XI at 719. And they completely omitted the requirement that the jury must determine whether recipients of the reports understood them in the defamatory sense (and which defamatory sense) alleged by Sunward. The jury’s function in that regard is settled law in Colorado and elsewhere. See M.F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167, 169 (10th Cir.1968); Walters, 559 F.Supp. at 1236; Rocky Mountain News Printing Co. v. Fridborn, 46 Colo. 440, 104 P. 956, 959 (1909); see also Restatement § 614(2). We hold that the evidence of defamation in this case was insufficient to go to the jury. Although the issue is not directly raised on appeal, it is a fair extension of our holding also to hold that the instructions to the jury on the issue of defamation were insufficient and erroneous for the reasons stated herein. As indicated at the conclusion of this opinion we have decided not to reverse this case outright, but to remand for a new trial. For purposes of retrial, it is impossible to state in advance what evidence will be sufficient to go to the jury with respect to Sunward’s burden of proving that recipients of these reports understood them to carry any particular defamatory meaning alleged. However, it is doubtful that the issue could go to a jury without testimony from recipients. It is also doubtful that just one or two recipients could establish the case. General guidance is offered by the Restatement § 559 comment e, which refers to a “substantial and respectable minority.” See Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1357 (Colo.1983). Since proof of defamation not only goes to establishing liability but also directly affects whether or not presumed damages may be awarded, see infra Section III. B., the seriousness of the issue of defamation cannot be overemphasized. II. ABUSE OF PRIVILEGE — DEFINITION OF RECKLESS DISREGARD The district court ruled, and Sunward does not dispute, that credit reports are conditionally privileged in Colorado. The issue here concerns abuse of privilege. The district court generally articulated the standard for abuse of privilege to be knowledge that the reports were false, or reckless disregard for whether the reports were true or not. The parties are in apparent agreement that such is the standard which should prevail in this case, and no issue on the point is raised on appeal. Therefore, we do not review the basic standard itself. It is the jury instruction defining reckless disregard which is in dispute. The problem arises from the various ways reckless disregard is defined, depending on context. As a constitutional standard (federal or Colorado) a strict, subjective “serious doubts as to the truth of the publication” definition is employed. In the general tort law of Colorado, however, reckless disregard is largely placed in the standard-of-care category, somewhere at or even beyond gross negligence. Common law abuse of privilege cases in Colorado concentrate on a publisher’s motive in defamation cases and add that nuance to reckless disregard when used in that context. As the following analysis indicates, we reject Dun & Bradstreet's position that this case implicates constitutional First Amendment protections — state or federal — which entitle it to the “serious doubts” definition of reckless disregard. We do, however, find that the jury instruction defining reckless disregard was erroneous. As defined, it permitted the jury to include within the definition of reckless disregard conduct close to ordinary negligence. The tort law of Colorado places reckless disregard much further along the continuum of care — so much so as to constitute a difference in kind. Thus, by way of illustration only, the instruction impermissibly defines something akin to gross negligence in terms close to ordinary negligence. As the foregoing overview indicates, our analysis focuses first on Dun & Bradstreet’s constitutional definition argument, then discusses Colorado common law definitions of reckless disregard. The court rejected differing definitions of reckless disregard offered by the parties and opted for a definition offering the least protection to Dun & Bradstreet. The instruction permitted the jury to conclude that any lack of care beyond ordinary negligence constitutes abuse of the privilege. The entire instruction, with the disputed portion emphasized, is as follows: The defendant abused the privilege if you find that when it published the reports in question it knew the reports to be false, or acted with reckless disregard for whether the reports were true or not. R.Vol. XI at 720. * * * * * * Reckless disregard implies a higher degree of improper conduct than negligence. A failure to exercise ordinary or reasonable care in ascertaining the truth of published material does not, standing alone, constitute reckless disregard. Such failure, however, may be considered as an element of reckless disregard. R.Vol. XI at 719 (emphasis added). Dun & Bradstreet challenges that definition of reckless disregard, and claims entitlement to the following test adopted by the Colorado Supreme Court in Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo.1982): Recklessness implies a higher degree of culpability than negligence. A failure to exercise ordinary or reasonable care in ascertaining the truth of published material does not, standing alone, constitute recklessness. The gist of the meaning of recklessness is that these Defendants had a high degree of awareness that the statements published were probably false.” Id. at 1109 (emphasis in original). Diversified was decided on constitutional grounds, both federal and Colorado. It involved an action brought by a private individual and his corporation against the Denver Post and one of its reporters over two articles published in the paper. The articles dealt with certain “widespread and ongoing land-development schemes of questionable propriety” which the Colorado court declared to be a “matter of public or general concern.” Id. at 1108. Because the subject matter was one of public concern the court considered the case to involve core First Amendment values protected by state and federal constitutions from the reach of common law defamation standards. Consequently it applied the constitutional “actual malice” standard developed by the United States Supreme Court in the well-known line of cases beginning with New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1973); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). See also Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Diversified is more protective of core First Amendment values than Gertz requires because it places matters of public concern in the same protected category as public officials and public figures, and it does so regardless of the fact that a private plaintiff is involved. The Colorado Supreme Court explains its position in this regard as follows: In order to honor the commitment to robust debate embodied in the first amendment and to ensure sufficient scope for first amendment values, we chose to extend constitutional protection to any discussion involving matters of public concern, irrespective of the notoriety or anonymity of those involved. The considerations which led to our adoption of Rosenbloom now cause us to conclude that first amendment values would be better honored by adopting the same definition of “reckless disregard” in cases involving public offidais, public figures, and matters of public or general concern. To the extent that Walker held otherwise, we now overrule it. 653 P.2d at 1106 (emphasis added). As the foregoing analysis demonstrates, Dun & Bradstreet is entitled to the protective state constitutional standard approved in Diversified only if the credit reports on Sunward were matters of “public or general concern.” In Section III of this opinion we address that question in connection with the Supreme Court’s opinion in Greenmoss and conclude that the credit reports are not matters of public or general concern. Despite the fact that the Colorado court in Diversified states it is not defining “the outer boundaries of the term ‘public or general concern,’ ” and will “look to the circumstances of the case,” id. at 1108, we do not believe that the Colorado Supreme Court would part company with the plurality opinion of the United States Supreme Court in Greenmoss on the classification of credit reports. Nothing in the decided Colorado cases suggests that Colorado would extend to credit reports its fullest constitutional protection. In Rowe v. Metz, 195 Colo. 424, 579 P.2d 83 (1978), the Colorado Supreme Court held that constitutional protections do not apply to cases involving private plaintiffs and statements made in a purely private context. The court permitted an award of presumed damages in such cases, at least where the challenged statements were defamatory per se, stating: In reviewing the United States Supreme Court cases in this area, apart from Gertz, attention is focused on the need for constitutional protection of freedom of the press and free speech whenever public officials, public figures, or issues of public concern are involved. Compare, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), with Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1181, 29 L.Ed.2d 296 (1971). A cogent restatement of this proposition appears in New York Times Co. v. Sullivan, supra, where it was said: “Purely private defamation has little to do with the political ends of a self-governing society. The imposition of liability for private defamation does not abridge the freedom oí public speech or any other freedom protected by the First Amendment, [footnote omitted.]” New York Times Co. v. Sullivan, 376 U.S. at 301-302, 84 S.Ct. at 737, 11 L.Ed.2d at 721 (Goldberg, J. concurring); quoted in Calero v. Del Chemical Corp., 68 Wis.2d 487, 228 N.W.2d 737 (1975). In this light we think the balance should be struck in favor of the private plaintiff where his reputation has been injured by a nonmedia defendant in a purely private context. Id. 579 P.2d at 84-85 (emphasis added). See Kuhn v. Tribune-Republican Publishing Co., 637 P.2d 315, 319 (Colo.1981) (“This actual malice standard was meant to remove the inhibitory effect of defamation laws, in essence creating a constitutional privilege for good faith critics of public officials.”) (emphasis added); Walters v. Linhoff, 559 F.Supp. 1231, 1236 (D.Colo. 1983) (“[P]ublic hearings and free and open communication by citizens with public agencies and public officials give the First Amendment its raison d’etre.”), Russell v. McMillen, 685 P.2d 255, 258 (Colo.App. 1984) (“[T]he reporting of a matter involving a public official is protected.”). See also Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983). We conclude, therefore, that Dun & Bradstreet is not entitled to the subjective “awareness of probable falsity” or ‘^serious doubts” test, approved in Diversified for determining reckless disregard. That conclusion is not altered by the only two Colorado cases, in addition to Diversified, cited to us by Dun & Bradstreet, Dominguez v. Babcock, 696 P.2d 338 (Colo.App.1984), and Willis v. Perry, 677 P.2d 961 (Colo.App. 1983). Both cases involved public officials or public figures and matters of public interest. Likewise, we are not persuaded by Dun & Bradstreet’s reliance on § 600 of the Restatement, which refashions the abuse of privilege standard as a result of the Supreme Court opinion in Gertz. In comment b to § 600 the American Law Institute states that: “reckless disregard as to truth or falsity exists when there is a high degree of awareness of probable falsity or serious doubt as to the truth of the statement.” The same comment then proceeds to refer to public officials and public figures. Section 600 of the Restatement, as defined in comment b, is not “black letter law” as asserted by Dun & Bradstreet. Brief of Appellant at 25. The American Law Institute makes clear that its position with respect to conditional privilege in the wake of Gertz is still tentative and awaits further development of the law. See Restatement, “Special Note on Conditional Privileges and the Constitutional Requirement of Fault,” pp. 259-60; id. § 580B comments c, d, f, and 1; id. § 595 comment h (credit agencies); id. § 599 comment d. In any event, we do not regard comment b to § 600 as the definition of reckless disregard in credit reporting cases in Colorado. Our conclusion that Dun & Bradstreet’s requested instruction is wrong does not mean that the jury instruction given by the district court is correct. A definition of reckless disregard meaning simply that it "implies a higher degree of improper conduct than negligence,” without further elucidation, is not supported by any Colorado case, or any other authority. Sunward concedes that “the instruction given by the trial court was not entirely satisfactory to either Sunward or D & B.” Brief of Appellees at 23 n. 10. [Sunward] sought a definition of reckless disregard such as that set forth in Williams v. Burns, 463 F.Supp. 1278, 1283 (D.Colo.1979) (“Colorado has defined reckless disregard as ‘an act destitute of heed or concern for consequences, especially foolishly heedless of danger; headlong, rash; without thought or care of consequences.’ ”) (quoting Dixson v. Newsweek, Inc., 562 F.2d 626 (10th Cir.1977)). Id. at 23 n. 10. Nothing in the authorities we have reviewed justifies a definition of reckless disregard in Colorado as simply any conduct more culpable than ordinary negligence. To the contrary, reckless disregard is generally placed at the far end of the continuum of care, short of intentional acts. The point is made in § 500 of the Restatement, defining reckless disregard of safety. Negligence is contrasted with reckless disregard, in part, as follows: the difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind. Restatement § 500 comment g (emphasis added). The section also points out that reckless disregard “is often referred to as ‘wanton or willful misconduct.’ ” Id. § 500. See also Restatement § 282 comment e. In fashioning its own tort definition of reckless disregard, the Colorado Supreme Court has expressly cited and relied on § 500 of the Restatement. See Coffman v. Godsoe, 142 Colo. 575, 351 P.2d 808, 814-15 (1960); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001, 1002-03 (1950). In Fanstiel the Court referred to a number of different descriptions of reckless disregard: To be so classified conduct must negative both attention and concern; it must demonstrate indifference as well as inattention to consequences which may result. Millington v. Hiedloff 96 Colo. 581, 45 P.2d 937 [1935]. “Reckless,” as the word is used in the statute, is equivalent to “wanton.” The requirements of the statute, we think, are well stated in Restatement of the Law — Torts, page 1293, chapter 19, section 500: “The actor’s conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.” This definition has been approved in numerous jurisdictions____ [citations omitted] “Reckless disregard” has elsewhere been defined as meaning an act destitute of heed or concern for consequences, especially foolishly heedless of danger; headlong, rash; without thought or care for consequences. R.J. Reynolds Tobacco Co. v. Newby, 9 Cir., 145 F.2d 768 [1944]. Id. See also Foster v. Redding, 97 Colo. 4, 45 P.2d 940 (1935); Millington v. Hiedloff, 96 Colo. 581, 45 P.2d 937 (1935); Clark v. Small, 80 Colo. 227, 250 P. 385 (1926). In Dixson v. Newsweek, Inc., 562 F.2d 626 (10th Cir.1977), we referred to part of the foregoing language in Fanstiel and approved a jury instruction stating: “Reckless disregard implies a higher degree of culpability than negligence. Recklessly means wantonly, with indifference to the consequences." Id. at 629 (emphasis added). In Williams v. Burns, 463 F.Supp. 1278 (D.Colo.1979), the district court in Colorado, referring to Dixson, adopted the definition of reckless disregard in Colorado as “an act destitute of heed or concern for consequences, especially foolishly heedless of danger; headlong, rash; without thought or care of the consequences.” Id. at 1283. And, as previously stated, it was that definition which was offered by Sun-ward as the proper instruction to the jury in this case. Justice Erickson of the Colorado Supreme Court, in his opinion dissenting in part in Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450, 460 (1975), stated that: “Reckless disregard as a standard, when stripped of the interpretation afforded by St. Amant v. Thompson, supra, probably means gross negligence, but certainly does not provide a settled test. See Coffman v. Godsoe, 142 Colo. 575, 351 P.2d 808 (1960); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950).” Id. 538 P.2d at 465. It is clear from Colorado authorities that the definition of reckless disregard is established in the common law of Colorado to be significantly greater than ordinary negligence. It is so much greater that it was error to fail to instruct the jury as to the seriousness of the conduct circumscribed by that term. We are fully aware that our decision essentially adopts the reckless disregard tort definition applied in the core First Amendment values case of Walker. See supra note 18. By applying this definition to a credit report case we may appear to be creating an inconsistency with our ruling that credit reports are not matters of public concern and not at the core of First Amendment values. Admittedly, Walker dealt with matters of public concern, and there is no reason to believe that the Colorado Supreme court would have equated the constitutional privilege developed in Walker with the common law qualified privilege accorded to credit reports. However, when Diversified overruled Walker and adopted the subjective St. Amant “serious doubts” standard, the protection given core First Amendment values was greatly extended. That extension, along with the distinction between Walker’s and Diversified ’s “clear and convincing” standard and the “preponderance” standard employed here, permits the use of the Walker definition of reckless disregard in a common law context and does not preempt the application of a standard akin to gross negligence when non-core First Amendment values are involved. Furthermore, as we stated previously, supra pp. 29-30 and note 11, the issue of the reckless disregard standard itself is not before us, only the definition of reckless disregard. Sunward argues that any error was harmless since it probably did not affect the jury’s verdict and in any event the evidence was sufficient to satisfy any standard of recklessness. Brief of Appellees at 24. See McIlroy v. Dittmer, 732 F.2d 98, 105 (8th Cir.1984); Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983). We disagree. If properly instructed, the jury may very well have found that Dun & Bradstreet did not abuse its qualified privilege in this case. On retrial, the parties and the court are not restricted to that portion of the language used in Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950), to which we referred in Dixson and to which the district court referred in Williams v. Burns, 463 F.Supp. 1278 (D.Colo.1979). At the least, however, the jury must be instructed in greater detail, and the standard of care fixed at a different point than minimally above ordinary negligence. Both parties argue at length that the facts of this case conclusively establish their respective positions regardless of what standard is used. Because we are remanding this case for retrial under significantly different ground