Van Horne v. Muller, 1-96-0331

• Decision Date: 30 January 1998
• Docket Number: No. 1-96-0331,1-96-0331
• Citation: 294 Ill.App.3d 649,691 N.E.2d 74
• Parties: , 229 Ill.Dec. 138, 13 IER Cases 1235 Keith VAN HORNE, Plaintiff-Appellant, v. Matthew "Mancow" MULLER, an individual, Irma Blanco, an individual, Evergreen Media Corporation, a Delaware corporation, and WRCX Radio, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 74

691 N.E.2d 74

294 Ill.App.3d 649, 229 Ill.Dec. 138,

13 IER Cases 1235

Keith VAN HORNE, Plaintiff-Appellant, v. Matthew "Mancow" MULLER, an individual, Irma Blanco, an

individual, Evergreen Media Corporation, a

Delaware corporation, and WRCX Radio,

Defendants-Appellees.

No. 1-96-0331.

Appellate Court of Illinois,

First District, Sixth Division.

Jan. 30, 1998.

Deutsch, Levy & Engel, Chartered, Chicago (Paul Levy, Phillip J. Zisook, Brian D. Saucier, of counsel), and McConnell & Mendelson, Chicago (Michael Sweig Mendelson and Sheryl L. Jaffee, of counsel), for Plaintiff-Appellant.

D'Ancona & Pflaum, Chicago (James K. Meguerian and Steven L. Baron, of counsel), for Defendants-Appellees.

Justice QUINN delivered the opinion of the court:

This case involves an appeal from the circuit court of Cook County in which Keith Van Horne (Van Horne) alleges that Chicago disc jockey Matthew "Mancow" Muller (Muller) ler)and his on-air associate, Irma Blanco (Blanco), published defamatory remarks about him during their morning broadcast. We also address the scope of liability for an action alleging negligent and/or reckless hiring, supervision, or retention where the plaintiff has suffered no physical harm. Plaintiff appeals from the trial court's order dismissing five counts of the complaint under section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)). Jurisdiction is vested in this court pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)).

For the following reasons, we reverse.

The facts pertaining to this appeal are as follows. On November 11, 1994, at approximately 5 a.m. Muller encountered Van Horne at the radio station where Muller worked. At that time, Muller and Van Horne exchanged words, and Van Horne allegedly chased Muller down a hallway and threatened to kill him. Muller reported the incident numerous times during his morning talk show. Blanco discussed the incident with Muller on-air and included a summary of the incident in her news reports during the broadcast. Van Horne alleges that Muller and Blanco made various defamatory remarks about him during the course of the radio program.

On November 28, 1994, Van Horne filed a verified complaint against Muller, Blanco, and their employers, Evergreen Media Corporation (Evergreen) and WRCX Radio (WRCX), alleging that the statements made by Muller and Blanco during the broadcast were defamatory per se. Defendants responded by filing a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)). On March 30, 1995, the trial court dismissed the count against Blanco and let stand the counts against Muller, Evergreen, and WRCX. The dismissal of the count against Blanco was without prejudice.

On April 27, 1995, Van Horne filed an amended verified complaint that revised the defamation claim against Blanco (count II). The complaint also added four counts against WRCX and Evergreen for negligent and/or reckless hiring and for negligent and/or reckless retention and supervision (counts V through VIII). Defendants subsequently moved to dismiss both the defamation count against Blanco and the four new counts against WRCX and Evergreen.

On September 11, 1995, the trial court dismissed the negligent and/or reckless hiring counts and the negligent and/or reckless retention and supervision counts with prejudice on the grounds that Van Horne could not allege that he suffered physical injury as a result of the alleged defamatory statements. On December 27, 1995, the trial court dismissed the defamation count against Blanco with prejudice.

On appeal, plaintiff contends that: (1) the trial court erred in dismissing the defamation count against Blanco where Blanco participated in and contributed to the statements found to be defamatory per se; (2) the trial court erred in dismissing the defamation count against Blanco where Blanco republished the statements found to be defamatory per se; and (3) the trial court erred in dismissing the negligent and/or reckless hiring and the negligent and/or reckless supervision and retention counts against WRCX and Evergreen.

A trial court may grant a motion to dismiss a complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)) when the complaint does not contain allegations of fact sufficient to state a cause of action. Singer v. Brookman, 217 Ill.App.3d 870, 878, 160 Ill.Dec. 822, 578 N.E.2d 1 (1991). Upon ruling on a motion to dismiss, courts must take all well-pleaded facts as true and construe all reasonable inferences in the light most favorable to the plaintiff. Roderick Development Investment Co., Inc. v. Community Bank, 282 Ill.App.3d 1052, 1057, 218 Ill.Dec. 297, 668 N.E.2d 1129 (1996). Pleadings in the complaint must be viewed liberally with a view toward doing substantial justice between the parties. Disc Jockey Referral Network, Ltd. v. Ameritech Publishing, 230 Ill.App.3d 908, 912, 172 Ill.Dec. 725, 596 N.E.2d 4 (1992). The issue before the court when reviewing a motion to dismiss is one of law, and the standard of review therefore is de novo. Roderick , 282 Ill.App.3d at 1057, 218 Ill.Dec. 297, 668 N.E.2d 1129.

Van Horne first alleges that the trial court erred in dismissing the defamation count against Blanco where Blanco participated in and contributed to statements found to be defamatory per se. The statements in question here formed the basis of the count against Muller for defamation per se, and that count of the complaint survived a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 1994). Hence, we address Blanco's liability for participating in and contributing to statements found to be defamatory per se.

This issue involves the scope of liability for actions alleging defamation. Generally,

"[a]ll persons who cause or participate in the publication of libelous or slanderous matter are personally responsible for such publication, each being liable in full without apportionment as to his particular share. Hence, one who requests, procures, or aids or abets, another to publish defamatory matter is liable as well as the publisher." 53 C.J.S. Libel & Slander, Section 115, at 194 (1987).

Thus, a defendant may be held liable for participating in or contributing to the publication of a defamatory statement. Contrary to defendants' position, this principle of law holds true regardless of whether a plaintiff alleges defamation per se or defamation per quod. See Kumaran v. Brotman, 247 Ill.App.3d 216, 186 Ill.Dec. 952, 617 N.E.2d 191 (1993) (plaintiff allowed to amend complaint to allege defamation per se against a newspaper reporter, the newspaper, and two individuals quoted in alleged defamatory article).

Here, it is clear from the record that there are sufficient allegations of fact to support a cause of action against Blanco for her participation in the publication of the statements found to be defamatory per se. In count II, Van Horne alleges that Blanco was more than an innocent bystander when Muller published the remarks found to be defamatory per se. The count sets forth how Blanco joined Muller in his description of the encounter with Van Horne, how Blanco agreed with Muller's version of the events, and how Blanco confirmed that the encounter was not a prearranged stunt. Blanco was not a disinterested or detached witness to Muller's defamatory remarks, rather, she was an active participant.

Defendants argue that a cause of action against Blanco for defamation per se cannot stand because Blanco's statements, on their own, were not defamatory. Defendants overlook the fact that defamatory statements must be considered in the context in which they were made. See Flip Side, Inc. v. Chicago Tribune Co., 206 Ill.App.3d 641, 651, 151 Ill.Dec. 582, 564 N.E.2d 1244 (1990). As such, we find that there are allegations of fact sufficient to state a cause of action, and the trial court therefore erred in dismissing count II of the complaint alleging defamation based upon Blanco's participation in the broadcast.

Van Horne next alleges that the trial court erred in dismissing the defamation count against Blanco where Blanco republished the statements found to be defamatory per se.

Initially, we note that this issue is separate and distinct from the first issue on appeal. The first issue involves the sufficiency of a complaint alleging liability based on Blanco's participation in the broadcast. This issue involves the sufficiency of a complaint alleging liability based on Blanco's own words. Further, we note that Blanco did not republish verbatim the statements made by Muller that the trial court found to be defamatory per se. Rather, Blanco summarized the encounter between Van Horne and Muller. Yet, the form of the republication in the present case is largely irrelevant due to our finding that Blanco published statements that were defamatory per se.

A statement is considered defamatory if it tends to cause harm to the reputation of another by lowering that person in the eyes of the community or deterring third persons from associating with the person. Restatement (Second) of Torts § 559 (1977). A defamatory statement may be classified as either defamatory per se or defamatory per quod. In actions alleging defamation per quod, the plaintiff must allege extrinsic facts to prove the defamatory nature of the statement, whereas in actions alleging defamation per se, the defamatory character of the statement is apparent on its face. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 180 Ill.Dec. 307, 607 N.E.2d 201 (1992).

In Illinois, there are five classes of defamatory statements that give rise to a cause of action for defamation per se: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a communicable disease that, if true, would tend to exclude one from society; (3) those imputing inability to...