Kolegas v. Heftel Broadcasting Corp.

• Citation: 607 N.E.2d 201,154 Ill.2d 1,180 Ill.Dec. 307
• Decision Date: 04 December 1992
• Docket Number: Nos. 72793,72803,s. 72793
• Parties: , 180 Ill.Dec. 307, 20 Media L. Rep. 2105 Anthony N. KOLEGAS et al., Appellants and Cross-Appellees, v. HEFTEL BROADCASTING CORPORATION et al. (Heftel Broadcasting Corporation, Appellee and Cross-Appellant).
• Court: Illinois Supreme Court

Page 201

607 N.E.2d 201

154 Ill.2d 1, 180 Ill.Dec. 307, 20

Media L. Rep. 2105

Anthony N. KOLEGAS et al., Appellants and Cross-Appellees, v. HEFTEL BROADCASTING CORPORATION et al. (Heftel Broadcasting

Corporation, Appellee and Cross-Appellant).

Nos. 72793, 72803.

Supreme Court of Illinois.

Dec. 4, 1992.

John R. Wimmer, Downers Grove, for appellants.

Baker & McKenzie, Chicago (Francis D. Morrissey, Thomas F. Tobin, Michael A. Pollard and John M. McGarry, of counsel), for appellee and cross-appellant.

Justice BILANDIC delivered the opinion of the Court:

The plaintiffs, Anthony, Donna and Christopher Kolegas, brought an action in the circuit court of DuPage County against the defendants, Tim and Beth Disa, two WLUP-AM radio disc-jockeys, Heftel Broadcasting Corporation, and Evergreen Media Corporation of Chicago AM. The four-count complaint sought damages for defamation, publication of an injurious falsehood, invasion of privacy, and reckless infliction of emotional distress. The defendants filed a motion to dismiss the complaint, pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-615). Following a hearing, the trial court granted the defendants' motion and dismissed all counts of the complaint. The plaintiffs appealed. The appellate court reversed that portion of the trial court's order which dismissed the defamation count, but affirmed the dismissal of all other counts. (217 Ill.App.3d 803, 161 Ill.Dec. 172, 578 N.E.2d 299.) Both the plaintiffs and defendant Heftel Broadcasting Corporation filed petitions for leave to appeal in this court. We allowed both petitions (134 Ill.2d R. 315).

This action was brought as a result of a radio broadcast which took place on April 26, 1988. According to the complaint, Anthony Kolegas was engaged in the business of promoting and producing classic cartoon festivals. In April 1988, Kolegas was preparing for a cartoon festival to be held on April 30 and May 1, 1988, at the Odeum Stadium in Villa Park. The cartoon festival was to be a benefit to promote public awareness of neurofibromatosis, a serious neurological disorder, which, according to the complaint, is commonly known as Elephant Man disease. Kolegas intended to donate a portion of the proceeds of the festival to the National Neurofibromatosis (NF) Foundation. The complaint also alleges that Kolegas' wife, Donna, and his five-year-old son, Christopher, are afflicted with the disease.

Kolegas hired Evergreen Media Corporation of Chicago AM to advertise the festival on WLUP-AM from April 25, 1988, through May 1, 1988. On April 26, the advertisement aired during the broadcast of a radio program featuring Tim and Beth Disa. Shortly after the advertisement aired, Kolegas telephoned WLUP-AM. A conversation ensued between Kolegas and the Disas on the air. Kolegas was allowed to introduce himself by name as the producer of the cartoon festival described in the preceding advertisement. Kolegas described the festival and gave the dates, times and location of the festival.

During the conversation, Kolegas stated that a portion of the proceeds from the festival would go to benefit the NF Foundation. In response to questions posed by Beth Disa, Kolegas explained that NF was neurofibromatosis, or Elephant Man's disease. Beth Disa asked Kolegas how he was involved and Kolegas replied that his wife and son had Elephant Man's disease. Tim Disa then stated on the air, "You're gone," and hung up on Kolegas.

The complaint alleges that shortly after disconnecting Kolegas, Tim Disa stated on the air that Kolegas was "not for real." Beth Disa responded that Kolegas was just "scamming" them. The complaint also charges that both Tim and Beth Disa stated that there was "no such show as the classic cartoon festival" described by Kolegas.

The complaint further alleges that Tim Disa stated, "Why would someone marry a woman if she had Elephant Man disease? It's not like he couldn't tell--unless it was a shotgun wedding." Beth Disa allegedly replied that it must have been a shotgun wedding. Shortly after the comments concerning the shotgun wedding, Tim Disa stated, "If he is producing it, he's only producing it part-time. The rest of the time he's too busy picking out their wardrobe. You know, he has to make sure they have large hats to cover their big heads and make sure that all of their collars are big enough to fit." Beth Disa allegedly indicated her agreement with that statement.

The complaint also alleges that Anthony and Donna Kolegas were not married in a "shotgun" wedding, and that Donna and Christopher Kolegas do not have abnormally large heads. The complaint states that Tim and Beth Disa made and broadcast such statements wantonly and maliciously, and with knowledge of their falsity, or with reckless disregard for their truth or falsity.

Count I of the complaint seeks damages for defamation; count II seeks damages for the tort of publication of injurious falsehood; count III seeks damages for invasion of privacy (publicity placing the plaintiffs in a false light); and count IV seeks damages for reckless infliction of emotional distress. As stated, the trial court granted the defendants' motion to dismiss all counts of the complaint for failure to state a cause of action. (Ill.Rev.Stat.1991, ch. 110, par. 2-615.) The appellate court affirmed the dismissal of counts II, III and IV of the complaint, but reversed the dismissal of count I and remanded the cause for further proceedings on that claim. 217 Ill.App.3d 803, 161 Ill.Dec. 172, 578 N.E.2d 299.

In this court, the defendants appeal from that portion of the appellate court decision which reinstated count I (defamation) of the complaint. The plaintiffs cross-appeal from that portion of the appellate court judgment which affirmed the dismissal of count III (false light) and count IV (reckless infliction of emotional distress) of the complaint. Neither party has appealed from that portion of the appellate court decision which affirmed the dismissal of count II (publication of an injurious falsehood) of the complaint. We therefore do not address the dismissal of count II.

In resolving this appeal, we bear in mind the general principles that govern a motion to dismiss brought pursuant to section 2-615 (Ill.Rev.Stat.1991, ch. 110, par. 2-615). A section 2-615 motion attacks the legal sufficiency of a complaint. Such a motion does not raise affirmative factual defenses but alleges only defects on the face of the complaint. (Urbaitis v. Commonwealth Edison (1991), 143 Ill.2d 458, 475, 159 Ill.Dec. 50, 575 N.E.2d 548.) In ruling on a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom. (McGrath v. Fahey (1988), 126 Ill.2d 78, 90, 127 Ill.Dec. 724, 533 N.E.2d 806; Schaffer v. Zekman (1990), 196 Ill.App.3d 727, 731, 143 Ill.Dec. 916, 554 N.E.2d 988.) The question presented by a motion to dismiss a complaint for failure to state a cause of action is whether sufficient facts are contained in the pleadings which, if established, could entitle the plaintiff to relief. (Urbaitis v. Commonwealth Edison (1991), 143 Ill.2d 458, 475, 159 Ill.Dec. 50, 575 N.E.2d 548.) In making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. McGrath v. Fahey (1988), 126 Ill.2d 78, 90, 127 Ill.Dec. 724, 533 N.E.2d 806.

I. Defamation

Bearing these general principles in mind, we first consider whether the allegations in count I of the complaint are sufficient to support a cause of action for defamation. Count I was brought in the name of Anthony Kolegas alone and was based upon three statements allegedly made by Tim and Beth Disa. In particular, count I refers to the Disas' statements that Kolegas "was not for real," that Kolegas was "scamming" them, and that there was "no such show as the classic cartoon festival." Count I alleges that these statements were false and defamatory, and prejudiced Kolegas in his business of producing and promoting classic cartoon festivals. Count I also alleges that, as a proximate result of these statements, Kolegas was greatly injured in his reputation and business, and that the attendance receipts earned from the festival were greatly diminished. None of the remarks relating to neurofibromatosis ("Elephant Man disease") is the subject of count I.

The defendants proffer two arguments in support of the trial court's dismissal of count I. They claim first that the Disas' statements may not be considered defamatory because the statements are reasonably susceptible to an innocent construction. Second, they argue that, even if the statements are defamatory, they are nevertheless protected under the first amendment. The plaintiffs respond that count I adequately states a cause of action for defamation and was properly reinstated by the appellate court.

A. Innocent Construction

We first consider whether the Disas' statements may be considered defamatory. A statement is considered defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him. (Restatement (Second) of Torts § 559 (1977).) Statements may be considered defamatory per se or per quod. Statements are considered defamatory per se when the defamatory character of the statement is apparent on its face; that is, when the words used are so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed. (Owen v. Carr (1986), 113 Ill.2d 273, 100 Ill.Dec. 783, 497 N.E.2d 1145.) Statements are considered defamatory per quod if the defamatory character of the statement is not apparent on its face, and extrinsic facts are required to explain its defamatory meaning. (Schaffer v. Zekman (1990), 196 Ill.App.3d 727, 143 Ill.Dec. 916, 554 N.E.2d 988.) Here, the...