Boese v. Paramount Pictures Corp.

• Decision Date: 29 October 1996
• Docket Number: No. 93 C 5976.,93 C 5976.
• Citation: 952 F.Supp. 550
• Parties: Robert A. BOESE, Plaintiff, v. PARAMOUNT PICTURES CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

952 F.Supp. 550

Robert A. BOESE, Plaintiff, v. PARAMOUNT PICTURES CORPORATION, et al., Defendants.

No. 93 C 5976.

United States District Court, N.D. Illinois, Eastern Division.

October 29, 1996.

Order Denying Reconsideration and Clarification of Appeal December 18, 1996.

COPYRIGHT MATERIAL OMITTED

Alan Barinholtz, Barinholtz, Holzman & Gault, Chicago, IL, Mark H. Barinholtz, Chicago, IL, for Plaintiffs.

Richard B. Kapnick, James B. Speta, Sidley & Austin, Chicago, IL, Peter A. Tomaras, Kevin B. Reid, Wildman, Harrold, Allen & Dixon, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

ANN CLAIRE WILLIAMS, District Judge.

Plaintiff Robert A. Boese ("Boese") brought this diversity action against Paramount Pictures Corporation ("Paramount"), Peter Brennan, Diane Dimond, and Virginia K. Weathers n/k/a Virginia K. Johnson for defamation per se, statutory defamation per se, and false light invasion of privacy. Before the court is defendants motion for summary judgment pursuant to Fed.R.Civ.P. 56 as to all counts. For the reasons set forth below, the court grants in part and denies in part.

Background

This case arises out of a Hard Copy segment that aired nationally on October 7, 1992. The segment featured a story about Virginia Weathers' experience after a fire destroyed her home in Topeka, Kansas on November 12, 1986. Plaintiff, Robert A. Boese, a forensic chemist, on behalf of American Family Insurance, conducted a chemical analysis of debris from Weathers' house. Boese concluded that one sample of the debris showed that an accelerant was present at the fire site, and forwarded a report stating that finding to the insurance company. As a result, the insurance company denied Weathers' claim.

On June 5, 1987, the State of Kansas filed two counts of aggravated arson against Weathers. At the preliminary hearing and the trial, Boese testified on the prosecution's behalf, relating his finding that an accelerant was present in the debris. In November 1987, the jury found Weathers not guilty of the arson charge.

On November 16, 1987, Weathers brought a civil action against American Family, B & W Consulting Forensic Chemists, Inc. ("B & W"), for which plaintiff was the president and sole shareholder, and others for alleged wrongs pertaining to the fire, the investigation, the denial of her claim, and the criminal prosecution. B & W was dismissed from the suit, but Ms. Weathers won an approximately $8 million judgment against American Family. (12(m) Stmt. ¶ 35; 12(n) Resp.Stmt. ¶ 35).

On October 7, 1992, a Hard Copy segment about Weathers' experience aired nationally, including locally, in the Chicago area. The segment starts out with the story of the fire and arson investigation. (12(n) Stmt. ¶ 9). The Hard Copy segment contains a voiceover description of Weathers' criminal trial wherein it is stated "everyone was against [Weathers] ... the press, the town, and especially the powerful insurance company." The voiceover continues: "they brought in their big gun lawyers, their expert witnesses" at which point a sequence of videotaped scenes are interposed, including visuals of Weathers being sworn in, lawyers sitting at counsel's table, followed by Boese on the witness stand. (12(n) Stmt. ¶ 11). Then the report recounts the verdict in the criminal trial, the insurance company's continued refusal to pay her claim, and Weathers' civil suit against the insurance company and its outcome. The voiceover states that Ms. Weathers won an $8 million judgment against the insurance company. Immediately thereafter, Ms. Weathers states "Everybody lied, all the way down the line, and that came back to haunt them." (12(m) Stmt. ¶ 47; 12(n) Resp.Stmt. ¶ 47). The voiceover concludes with statements about Weathers moving on with her life after this experience. In closing, the onscreen announcer states "that revenge is a dish which is most thoroughly enjoyed when it is served cold." (12(n) Stmt. Ex. 3, p. 9).

As a result of the national broadcast of this Hard Copy segment, Boese and B & W filed suit on September 30, 1993 against Paramount, Brennan, Dimond, and Weathers, n/k/a Johnson, for defamation per se, statutory defamation per se, and false light invasion of privacy of Boese. On October 22, 1993, B & W voluntarily dismissed itself as party plaintiff to the action. On January 14, 1994, defendant Johnson brought a motion to dismiss for lack of personal jurisdiction, which this court denied. Boese filed a verified amended complaint on February 11, 1994. Now before the court is defendants motion for summary judgment as to all counts.

Motion for Summary Judgment

The court will render summary judgment only if the factual record shows "that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court will not render summary judgment if a "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty, Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, the court views the facts in the light most favorable to the nonmoving party. Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 171 (7th Cir.1996).

On a motion for summary judgment, the moving party "bears the initial burden of showing that no genuine issue of material fact exists." Hudson Ins. Co. v. City of Chicago Heights, 48 F.3d 234, 237 (7th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). Then the burden shifts to the nonmoving party, which "must set forth specific facts demonstrating that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.1995) (citations omitted), cert. denied, ___ U.S. ___, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995).

Discussion

The court must determine whether statements attributed to defendants are defamatory per se and cast plaintiff in a false light. The parties agree that plaintiff's defamation claims and false light invasion of privacy claim are governed by Illinois law. Boese v. Paramount Pictures Corp., 93 C 5976, 1994 WL 484622 (N.D.Ill. Sept. 2, 1994).

In general, "[a] statement is 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." Gosling v. Conagra, Inc., 95 C 6745, 1996 WL 199738, at *3 (N.D.Ill. April 23, 1996) (citing, Quinn v. Jewel Food Stores, Inc., 276 Ill.App.3d 861, 865, 213 Ill.Dec. 204, 208, 658 N.E.2d 1225, 1229 (1st Dist.1995)); Kolegas v. Heftel Broadcasting Corporation, et al., 154 Ill.2d 1, 10, 180 Ill.Dec. 307, 312, 607 N.E.2d 201, 206 (1992). To establish liability for defamation there must be: (1) a false and defamatory statement of and concerning the plaintiff; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Restatement (Second) of Torts § 558 (1977); See W. Page Keeton et al., Prosser and Keeton on Torts § 113 at 802 (5th ed. 1984). There are two types of defamation: per se and per quod.

I. Defamation per se

A statement is defamatory per se if the defamatory character is apparent on the face of the communication; that is, when the words used are so obviously and materially harmful to the plaintiff that injury to her reputation may be presumed. Kolegas, 154 Ill.2d at 10, 180 Ill.Dec. at 312, 607 N.E.2d at 206. A statement is defamatory per quod, if the defamatory character of the statement is not apparent on its face, instead extrinsic facts are required to explain its defamatory meaning. Id.

In Illinois, courts have recognized four categories of statements that are defamatory per se: (1) words which impute the commission of a criminal offense; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business. Id.; Swick v. Liautaud, 169 Ill.2d 504, 215 Ill.Dec. 98, 105, 662 N.E.2d 1238, 1245 (1996); Mittelman v. Witous, 135 Ill.2d 220, 238-39, 142 Ill.Dec. 232, 241, 552 N.E.2d 973, 982 (1989). Additionally, the Illinois legislature has also recognized another category of statements that are defamatory per se. Words that charge a person with "swearing falsely" or words that amount to such a charge are considered defamatory per se. 740 Ill.Comp.Stat. 145/2 (West 1996).¹

The alleged defamatory statement at issue, "[e]verybody lied all the way down the line, and that came back to haunt them", loosely falls into categories three, four, and Illinois' legislative category. Courts have found that calling someone a liar or implying as much might permit defamation recovery. Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); Pease v. International Union of Operating Engineers Local, 208 Ill.App.3d 863, 871, 153 Ill.Dec. 656, 661, 567 N.E.2d 614, 619 (2d Dist.1991); Mittelman, 135 Ill.2d at 247, 142 Ill.Dec. at 245, 552 N.E.2d at 986 (1989).

A. Innocent Construction Rule

However, even if a statement falls into one of these categories, it will not be defamatory per se, if it is reasonably capable of an innocent construction. Kolegas, 154 Ill.2d at 11, 180 Ill.Dec. at 312, 607 N.E.2d at 206. The innocent construction rule² requires a court to consider

a written or oral statement ... in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than ...