Hurst v. Capital Cities Media, Inc.

• Decision Date: 07 August 2001
• Docket Number: No. 5-99-0194.,5-99-0194.
• Citation: 323 Ill. App.3d 812,754 N.E.2d 429,257 Ill.Dec. 771
• Parties: Robert HURST, Plaintiff-Appellee and Cross-Appellant, v. CAPITAL CITIES MEDIA, INC., d/b/a Belleville News-Democrat, Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

754 N.E.2d 429

323 Ill. App.3d 812

257 Ill.Dec. 771

Robert HURST, Plaintiff-Appellee and Cross-Appellant, v. CAPITAL CITIES MEDIA, INC., d/b/a Belleville News-Democrat, Defendant-Appellant and Cross-Appellee.

No. 5-99-0194.

Appellate Court of Illinois, Fifth District.

August 7, 2001.

Joseph E. Martineau, David B. Helms, Lewis, Rice & Fingersh, L.C., St. Louis, MO, for Appellant.

Bruce N. Cook, Harriet H. Hamilton, Cook, Shevlin, Ysursa, Brauer & Bartholomew, Ltd., Belleville, for Appellee.

Justice MAAG delivered the opinion of the court:

This case comes to us pursuant to the application for leave to appeal, pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308), filed by the defendant, Capital Cities Media, Inc. (Capital Cities), doing business as the Belleville News-Democrat. The circuit court of Madison County, Illinois, identified two questions of law on which it found a substantial ground for a difference of opinion, and the court determined that an immediate appeal might materially advance the ultimate termination of the litigation.

The issues identified by the trial court are as follows:

"Can the identification of plaintiff as a suspect in a criminal case in the newspaper articles at issue be innocently construed as substantially true so as to bar plaintiff's false[-]light privacy action where it also states, inter alia, that the victim knew her attacker?"

"Does [section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1994))] bar plaintiff's instant complaint on the basis that plaintiff had twice previously filed a substantially similar complaint, where one of the previous actions was nolle prossed [sic][] and the other was voluntarily dismissed on plaintiff's motion?"

The facts pertinent to these questions are set forth as follows. On February 9, 1996, Robert Hurst (plaintiff) filed suit against Capital Cities and others on a false-light invasion of privacy theory. The cause of action was based upon an article published November 30, 1995, in the Belleville News-Democrat. The article stated that a St. Louis television station had reported that plaintiff had been questioned for two hours by police in a recent rape case. The article went on to state that the Illinois State Police in charge of the case refused to confirm or deny the television report and that the commander of the state police said that it would be inappropriate to comment. The article also stated that plaintiff could not be reached for comment.

The article then recounted information that had been released to the public the preceding day by the Madison County State's Attorney regarding the status of the investigation. In a public statement, the Madison County State's Attorney said, "I think it has been established that she knew her attacker." The State's Attorney stated that the victim initially "gave police a phony description of her attacker because she feared the real attacker would seek revenge if his identity were revealed." The State's Attorney also said, "The public should know there is not a serial rapist out there." The article went on to recount the State's Attorney's opinion that a rape had occurred and his explanation that the investigation, which was more than a month old, was continuing and was made more difficult because the police had experienced some difficulty working with the victim. The alleged incident had received media attention prior to the November 30, 1995, article, as flyers reprinting a composite sketch created with the victim's assistance had been published in several local papers and broadcast locally.

At the time of this report, plaintiff was working at the St. Clair County sheriff's department as a part-time bailiff. He had been the chief of police of the City of Belleville, Illinois, from 1985 through 1993.

Plaintiff initially filed a complaint in St. Clair County court on February 9, 1996, naming Viacom Broadcasting of Missouri, a corporation, doing business as KMOV-TV Channel 4, Capital Cities, George Pawlaczyk, Lori Nolen, and Greg Edwards as defendants. The complaint against Capital Cities alleged theories of libel and invasion of privacy based on the November 30, 1995, article. On February 13, 1996, plaintiff filed a motion to nol-pros the case on the ground that it was inadvertently filed in St. Clair County, Illinois. The court granted the motion, and the case was dismissed that same day.

Plaintiff then filed a complaint in the circuit court of Madison County on February 13, 1996. Therein, he named Viacom Broadcasting, Mary Phelan, Capital Cities, George Pawlaczyk, Lori Nolen, and Greg Edwards as defendants. The counts against Capital Cities again contained allegations of libel and invasion of privacy arising from the November 30, 1995, article. On April 3, 1996, plaintiff filed a motion to voluntarily dismiss Capital Cities and the other "newspaper defendants" from the lawsuit pursuant to section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009 (West 1994)). The court granted the motion that same day. Nolen and the television defendants remained in the case.

On November 27, 1996, plaintiff filed a motion to amend count I of the complaint to correct typographical errors and to add Capital Cities and other newspaper personnel as defendants. The court granted the motion, and plaintiff filed his fourth amended complaint. In the fourth amended complaint, plaintiff added a count (count IX) against Capital Cities and the other newspaper defendants. This count alleged an invasion of privacy arising from the November 30, 1995, article. Subsequently, plaintiff served Capital Cities with a summons and complaint.

On January 16, 1997, Capital Cities moved to dismiss the action filed against it, on the grounds that plaintiff had twice voluntarily dismissed claims against it and was prohibited from filing another action by the single-refiling rule. The circuit court heard hours of argument and considered a number of briefs on this issue and on the issue of whether the article is actionable under a false-light claim. Subsequently, the court certified those two questions for our consideration.

The first question we are asked to address is whether the identification of plaintiff as a suspect in a criminal case in the newspaper article at issue can be innocently construed as substantially true so as to bar plaintiff's false-light invasion of privacy action where the article also states, inter alia, that the victim knew her attacker. Stated simply, we are asked to decide whether the newspaper article is actionable on the basis of a false-light invasion of privacy claim.

In a false-light claim, the plaintiff must prove that he was placed in a false light before the public as a result of the defendant's action, that the false light in which he was placed would be highly offensive to a reasonable person, and that the defendant acted with knowledge that the information he published was false or with reckless disregard for whether the information was true or false. Lovgren v. Citizens First National Bank of Princeton, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987 (1989). Absent some allegation as to what specific statement was false, a claim based on false-light invasion of privacy fails to satisfy a basic element of the cause of action. Kirchner v. Greene, 294 Ill.App.3d 672, 683, 229 Ill.Dec. 171, 691 N.E.2d 107, 116-17 (1998).

We first note that plaintiff has never set out the specific statement or section of the November 30, 1995, article that he found offensive, despite having filed an initial complaint and nine amended complaints against the newspaper. On that basis alone, the circuit court could have dismissed the case against Capital Cities for plaintiff's failure to plead a basic element of the tort. See Kirchner, 294 Ill.App.3d at 683, 229 Ill.Dec. 171, 691 N.E.2d at 116-17. Based upon our review of the current amended complaint, it appears as though plaintiff is complaining that the newspaper published an article which stated that the victim had identified plaintiff as her attacker and accused him of abduction and rape when it had knowledge that this statement was false or had serious reasons to doubt the truthfulness of the statement.

The newspaper article at issue states that a local television station reported that plaintiff was questioned for two hours by the police in the case of a woman who claimed that she was abducted and raped. The article also reported that a state police commander refused to confirm or deny the television report, stating that it would be inappropriate to comment. Plaintiff is not referenced again in connection with any aspect of the case. The article then proceeded to recap public statements made the preceding day by the Madison County State's Attorney in regard to the status of the investigation. The article noted that the State's Attorney released information that the victim's account, in which she claimed she was attacked by a stranger, had been recanted. The State's Attorney said, "I think it has been established that she knew her attacker." In his public remarks, the State's Attorney indicated that he made this information public because he thought the citizens should know that the assault was not a random attack and that "there was not a serial rapist out there".

We have reviewed the contents of the article and find nothing therein that charges plaintiff with the commission of a crime. See Trembois v. Standard Ry. Equipment Manufacturing Co., 337 Ill. App. 35, 43-44, 84 N.E.2d 862, 866 (1949); Adams v. Sussman & Hertzberg, Ltd., 292 Ill.App.3d 30, 47, 225 Ill.Dec. 944, 684 N.E.2d 935, 947 (1997). In the November 30 article, the newspaper did not identify plaintiff as a suspect. It did not accuse plaintiff of committing a crime or impute to him the commission of a crime. From our review of the article, the only portion that could arguably suggest criminal conduct is the report that the police interviewed plaintiff, and that would...