Layne v. Builders Plumbing Supply Co., Inc.

• Decision Date: 27 March 1991
• Docket Number: No. 2-90-0787,2-90-0787
• Citation: 569 N.E.2d 1104,155 Ill.Dec. 493,210 Ill.App.3d 966
• Parties: , 155 Ill.Dec. 493, 6 IER Cases 669 Sylvia LAYNE, Plaintiff-Appellant, v. BUILDERS PLUMBING SUPPLY COMPANY, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1104

569 N.E.2d 1104

210 Ill.App.3d 966, 155 Ill.Dec. 493,

6 IER Cases 669

Sylvia LAYNE, Plaintiff-Appellant, v. BUILDERS PLUMBING SUPPLY COMPANY, INC., Defendant-Appellee.

No. 2-90-0787.

Appellate Court of Illinois,

Second District.

March 27, 1991.

Anthony G. Scariano, Daniel M. Boyle (argued), Scariano, Kula, Ellch & Himes, Chicago, for Sylvia Layne.

Francis A. Spina (argued), Tressler, Soderstrom, Maloney & Priess, Terry J. Smith, Schiff, Hardin & Waite, Chicago, for Builders Plumbing Supply Co.

Justice UNVERZAGT delivered the opinion of the court:

Plaintiff, Sylvia Layne, brought a five-count complaint in the circuit court of Du Page County seeking damages from defendant, Builders Plumbing Supply Company, Inc., her former employer. According to the complaint, plaintiff had worked for defendant since 1982. On June 13, 1989, defendant had related to the Addison police department that plaintiff had threatened, harassed, and assaulted a co-worker. Plaintiff was subsequently discharged from defendant's employment on June 14, 1989.

Count I of plaintiff's complaint pleaded a cause of action for common-law defamation. Count II purported to state a cause of action for false-light invasion of privacy. In count III, plaintiff alleged a cause of action for intentional infliction of emotional distress and in count IV, a claim for retaliatory discharge. Count V alleged a cause of action for self-compelled defamation, a previously unrecognized tort in Illinois.

Defendant filed motions to dismiss all counts. The court granted the motions to dismiss counts I and II, accepting defendant's argument that the statements made to Addison police were absolutely privileged and not actionable. The court also granted defendant's motion to dismiss count III, finding that defendant's conduct was not so outrageous as to state a cause of action for intentional infliction of emotional distress. As to count IV, the trial court declined to expand the tort of retaliatory discharge to include the discharge of an employee about whom an employer has made false statements to police prior to the employee's discharge. The court also dismissed count V of the complaint, refusing to recognize the tort of compelled self-defamation.

Plaintiff appeals, contending: (1) that the trial court erred in finding that an absolute privilege barred plaintiff's claims based upon defamation and false-light invasion of privacy; (2) that the trial court erred in dismissing plaintiff's claim for intentional infliction of emotional distress for failure to state a cause of action; (3) that the trial court erred in dismissing plaintiff's cause of action for wrongful discharge; and (4) that the trial court erred in failing to recognize a cause of action for compelled self-defamation.

In determining the propriety of an order granting a defendant's motion to dismiss a complaint, the standard of review is whether the allegations of the complaint, when viewed most favorably to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. (Smith v. County of White (1989), 191 Ill.App.3d 569, 574, 138 Ill.Dec. 789, 548 N.E.2d 19.) Facts alleged in a plaintiff's complaint will be taken as true for purposes of a motion to dismiss. (Mount Prospect State Bank v. Village of Kirkland (1984), 126 Ill.App.3d 799, 800, 82 Ill.Dec. 69, 467 N.E.2d 1142.) Although a motion to dismiss admits all facts well pleaded, the pleadings are to be construed strictly against the pleader. Firestone v. Fritz (1983), 119 Ill.App.3d 685, 688, 75 Ill.Dec. 83, 456 N.E.2d 904.

Plaintiff first contends that the trial court erred in dismissing her claims based upon defamation (count I) and false-light invasion of privacy (count II). Due to the similarities between these torts, the trial court applied the identical legal theory in dismissing counts I and II, finding that an absolute privilege barred the claims alleged in those counts. It is plaintiff's position that statements made to law enforcement officials are privileged, but the privilege is only conditional, or qualified, and not absolute.

Whether a defamatory statement is protected by an absolute or a qualified, or conditional, privilege is a question of law for the court. (Thomas v. Petrulis (1984), 125 Ill.App.3d 415, 417, 80 Ill.Dec. 713, 465 N.E.2d 1059.) Generally, the class of occasions where a defamatory statement is absolutely privileged is narrow. (Allen v. Ali (1982), 105 Ill.App.3d 887, 890, 61 Ill.Dec. 678, 435 N.E.2d 167.) The privilege embraces actions required or permitted by law in the course of judicial or quasi-judicial proceedings as well as actions "necessarily preliminary" to judicial or quasi-judicial proceedings. (Parrillo, Weiss & Moss v. Cashion (1989), 181 Ill.App.3d 920, 928, 130 Ill.Dec. 522, 537 N.E.2d 851; see also Starnes v. International Harvester Co. (1989), 184 Ill.App.3d 199, 203-05, 132 Ill.Dec. 566, 539 N.E.2d 1372.) An absolute privilege provides complete immunity from civil action, even though the statements are made with malice, as plaintiff contends here, because public policy favors the free and unhindered flow of such information. (Starnes, 184 Ill.App.3d at 203, 132 Ill.Dec. 566, 539 N.E.2d 1372.) In light of these principles and under the facts of the instant case, we find defendant was immune from plaintiff's defamation and false-light invasion of privacy claims. In so finding, we rely on two cases cited by the defendant, Starnes v. International Harvester Co. (1989), 184 Ill.App.3d 199, 132 Ill.Dec. 566, 539 N.E.2d 1372, and Dean v. Kirkland (1939), 301 Ill.App. 495, 23 N.E.2d 180.

In Starnes, plaintiff was a State court judge who had presided over a lengthy and controversial product liability trial brought against International Harvester. International Harvester's counsel considered plaintiff remiss in his role as presiding judge and presented allegations of impropriety to Federal law enforcement officials as well as to the State Judicial Inquiry Board. Plaintiff considered the allegations defamatory and filed suit for libel and slander. The only persons plaintiff could identify as the recipients of the allegedly defamatory statements were Federal law enforcement officials, and the trial court determined communications to these officials were absolutely privileged.

On appeal, plaintiff contended that statements to law enforcement officials should not be accorded complete immunity because immunity condoned and encouraged malicious harassment through police investigations. Plaintiff maintained that a qualified privilege provided adequate protection for reporting incidents of alleged wrongdoing to law enforcement authorities. The appellate court rejected plaintiff's argument and affirmed the lower court. In so doing, the court first stated that whatever is said or written in a legal proceeding, which is pertinent or material to the matter in controversy, is absolutely privileged and no action for libel or slander can be maintained thereon. The court went on to state that Illinois has applied this rule to statements made prior to the commencement of trial, including communications made to prosecuting authorities concerning alleged criminal activities. Included in these communications were statements made to police alleging criminal activities. Relying on Dean v. Kirkland (1939), 301 Ill.App. 495, 23 N.E.2d 180, and other authorities, the court determined that statements made to Federal law enforcement officials should be absolutely privileged.

In Dean, plaintiff filed an action against, among others, an investigator, Jacob Manassa, retained by the Kirkland law firm. Plaintiff sought to recover damages for alleged slanderous remarks. As to Manassa, plaintiff alleged that he had slandered her when he had a conversation with a member of the Chicago police department and invited the officer to come to Kirkland's law offices where Manassa would prove to the officer that plaintiff was a woman of bad repute and not worthy of credit or belief and that she was a blackmailer and a crook. The court dismissed plaintiff's complaint, finding as to Manassa that the alleged false statement he made to the police officer was privileged. The court stated:

"It was a communication to the public authorities charged with the enforcement of criminal justice, of information concerning an alleged crime, and was privileged." Dean, 301 Ill.App. at 510-11, 23 N.E.2d 180.

Plaintiff here maintains that Dean is factually distinguishable because, unlike the instant case, the parties there were involved in a judicial proceeding when the alleged defamatory statement was made to the police and, therefore, the statement was protected by the absolute privilege. At the time Manassa made his statement to the police, however, Dean was a prosecuting witness in a criminal perjury trial against defendant, Florabella Pack; she was not the subject of the pending criminal trial. Moreover, Manassa was not a party to that action. Thus, plaintiff's contention that Manassa's statement was absolutely privileged because it was made during a judicial proceeding is misleading since Dean and Manassa were not parties in that particular judicial proceeding. Further, as defendant points out, there is no indication in Dean that the Chicago police department played a role or had any prosecutorial interest in the State's case against Florabella Pack. Consequently, we conclude that the fact that Dean was involved as a witness in a criminal proceeding at the time Manassa made his alleged slanderous remarks had no bearing on the court's finding that Manassa's statement was absolutely privileged. Rather, the absolute privilege appears to have arisen strictly from the fact that Manassa's communication alleged the commission of a crime and was made to the public authority charged with investigating such crimes.

Plaintiff relies on Fascian v. Bratz (1981), 96 Ill.App.3d 367, 51 Ill.Dec. 901, 421 N.E.2d 409, to...