Tunney v. American Broadcasting Co.

• Decision Date: 17 September 1982
• Docket Number: No. 81-892,81-892
• Citation: 65 Ill.Dec. 294,441 N.E.2d 86,109 Ill.App.3d 769
• Parties: , 65 Ill.Dec. 294 William J. TUNNEY, Plaintiff-Appellant, v. AMERICAN BROADCASTING COMPANY and WLS TV, Defendants-Appellees, and Jacqueline Hedges, John V. Tomzak and Helen G. Tomzak, Defendants.
• Court: United States Appellate Court of Illinois

Page 86

441 N.E.2d 86

109 Ill.App.3d 769, 65 Ill.Dec. 294

William J. TUNNEY, Plaintiff-Appellant, v. AMERICAN BROADCASTING COMPANY and WLS TV, Defendants-Appellees, and Jacqueline Hedges, John V. Tomzak and Helen G. Tomzak, Defendants.

No. 81-892.

Appellate Court of Illinois,

First District, Fifth Division.

Sept. 17, 1982.

Rehearing Denied Nov. 10, 1982.

[65 Ill.Dec. 295] Barrett & Sramek, Palos Heights, for plaintiff-appellant

Reuben & Proctor, Chicago (Lawrence Gunnels, Samuel Fifer and Mark Sableman, Chicago, of counsel), for defendants-appellees.

MEJDA, Justice:

Plaintiff brought suit for damages for alleged libel and slander based on a television news story broadcast by American Broadcasting Company and WLS TV. The court granted ABC's motion for summary judgment. Plaintiff appeals.

The issue on appeal is whether the granting of summary judgment was proper.

Plaintiff filed a two-count complaint for libel and slander. Count I was directed against American Broadcasting Company and WLS TV, its subsidiary (hereinafter referred to collectively as ABC). Count II was directed against four individual defendants who were subsequently dismissed as a result of plaintiff's voluntary nonsuit. Only Count I is involved in this appeal. Count I alleged in pertinent part that on June 5, 1975, ABC and its subsidiary WLS through their employee, Robert Petty, broadcast a report containing a false statement about plaintiff. The broadcast is set forth in its entirety below, with the words plaintiff claims as libelous italicized:

"Village inspectors are checking a long list of complaints being made by eleven homeowners in this relatively new subdivision. Cracked concrete and sidewalks is one of the most common complaints against the builder, William J. Tunney, who says such occurrences are not his "This house cost its owner more than $40,000, as all of these houses in this area cost. According to inspectors, the entire house, which is less than one year old, needs tuckpointing.

[65 Ill.Dec. 296] fault, but an Act of God. But sinking driveways, leaking roofs and similar complaints are obviously the result of poor construction.

"William J. Tunney would not consent to be interviewed on TV but we did talk for 10 to 15 minutes or so. But he told me that he has been in the homebuilding business for more than 25 years. He says that he has built more than 60 homes in this particular section of Dolton, and he says of all those homes so far, only 10 or 12 people are complaining and he says that all of those complaints will be satisfied, given time. Bob Petty, Channel 7."

The complaint further alleged that plaintiff was the owner of a construction company and that by this broadcast defendants inferred that plaintiff built shoddy homes. ABC denied in substance the allegations of Count I.

ABC filed a motion for summary judgment asserting in pertinent part that the language contained in the broadcast was nonactionable under the Illinois rule of innocent construction; that the challenged language was fair comment on matters of public interest; and that the language was protected under the privilege of neutral reporting pursuant to the First and Fourteenth Amendments to the United States Constitution and article I, section 4 of the Illinois Constitution.

In support of the motion ABC submitted the affidavits of Robert Petty, describing his investigation of the story; that of Robert O. Shackleton, a village of Dolton building inspector, attesting to the truth of a letter he sent to the Dolton Building Commissioner articulating his inspection of complaints received concerning homes built by Tunney Construction Co.; and that of LaVerne S. Cothroll, Village Clerk of the Village of Dolton, certifying the correctness of attached minutes of the Village of Dolton board meetings held on June 3 and June 10, 1975. The minutes noted that a letter and petition from eleven Dolton residents were presented to the Clerk of the Village of Dolton requesting a moratorium on construction in Dolton by William Tunney Construction Co.

Plaintiff filed a counteraffidavit and a "Response to Motion for Summary Judgment."

After considering the memoranda of counsel, oral argument, tendered exhibits and depositions, the court granted ABC's motion for summary judgment.

OPINION

Plaintiff contends that ABC's motion for summary judgment should not have been granted because Petty's affidavit was replete with hearsay statements inadmissible at trial and thus insufficient to support the motion. An affidavit in support of a motion for summary judgment is to be viewed as a substitute for testimony taken in open court. (Bougadis v. Langefeld (1979), 69 Ill.App.3d 1010, 26 Ill.Dec. 135, 387 N.E.2d 965.) Based upon this standard we find no significant deficiencies in Petty's affidavit. A review of Petty's affidavit shows that it is in narrative form and relates the manner by which he received his assignment and investigated the story eventually publicized. While Petty did relate in his affidavit a number of comments made by unidentified inspectors and homeowners, the context of the affidavit shows that the testimony was offered not for the truth of the matters asserted therein but rather to show the manner in which Petty investigated his story and the reasonableness of the conclusions he drew in his broadcast statements. As such the statements were not hearsay. (See People v. Carpenter (1963), 28 Ill.2d 116, 190 N.E.2d 738.) Nor did the narrative style of the affidavit render it insufficient. (Bougadis.) Therefore, we find plaintiff's challenge to the sufficiency of Petty's affidavit without merit.

Plaintiff next contends that summary judgment was improper because here a question of fact remained as to the cause of the sinking driveways and leaking roofs described in ABC's broadcast.

Summary judgment will be granted if the pleadings, depositions, admissions, exhibits and affidavits on file reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457.

The broadcast stated that "sinking driveways, leaking roofs and similar complaints are obviously the result of poor construction." The report of Inspector Robert Shackleton submitted to the Dolton Building Commissioner and presented in support of ABC's motion indicated that the driveway of one homeowner, John Tomzak, was broken by contractor's equipment and that the 3" driveway had been poured with 2 X 4 forms contrary to the provisions of the Dolton building code. The report also cited at least one complaint of a leaking roof and several other water leaks in various rooms of at least four homes built by Tunney. The report indicated that it had inspected these complaints "of work not finished or repairs to be made under warantee [sic]," found most of them valid, and recommended that the situations be rectified. Wesley Lane, a Village Trustee of Dolton, and its Building Commissioner testified in his deposition that the homeowners' complaints including roof damage and the concrete work of driveways were basically in his opinion the result of shoddy workmanship. Lane also testified, however, that he was primarily a tax accountant and had never engaged in construction work. Petty's affidavit stated that during his inspection of the Dolton subdivision on June 5, 1975, he observed several defects such as cracked driveways, sinking sidewalks and leaking roofs, and that he met with two Village of Dolton building inspectors and followed them around during their inspection and heard them call the work on the homes "shoddy."

In contrast to this testimony Tunney's counteraffidavit stated that he knew of two homes with cracked driveways. According to Tunney, John Tomzak, the owner of one home whose driveway had been described in Inspector Shackleton's report, had driven a heavy moving truck across the corner of the driveway causing it to crack. Tunney stated that the crack in the driveway of the home owned by Jacqueline and Ralph Hedges was caused by the repeated parking of a semi-tractor and trailer owned by Ralph Hedges on the driveway. Tunney also stated that he knew of no roof which leaked as a result of poor construction, but that he did know of one home which had suffered roof damage from a wind storm.

We conclude, therefore, that Tunney's affidavit raises an issue of fact as to whether the sinking driveways and leaky roofs were caused by poor construction or other factors.

ABC does not dispute the sufficiency of Tunney's affidavit. Rather it responds that the broadcast statements are nonactionable because "substantially true," relying on Kilbane v. Sabonjian (1976), 38 Ill.App.3d 172, 347 N.E.2d 757, and Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill.App.2d 154, 221 N.E.2d 516. Both cases emphasize that to establish truth as a defense to a defamation action, it is not necessary to establish the literal truth of inoffensive details; rather, a showing of the truth of the gist or sting of defamatory imputation is sufficient. (Kilbane, 38 Ill.App.3d at 175, 347 N.E.2d 757; Mitchell, 76 Ill.App.2d at 162, 221 N.E.2d 516.) In Kilbane, one of the plaintiffs had alleged that defendant's statements were untrue and intended to mean that plaintiff had used public office for private gain. Plaintiff argued that defendant's statements were untrue because the allegedly defamatory remark stated plaintiff had initiated a suit to recover a "finder's fee" when in fact the suit had been to recover plaintiff's share in a joint venture. The court held that this was an inoffensive detail which was immaterial to determining the truth of the defamatory statement. In Mitchell the alleged libelous publication stated that the plaintiffs were arrested in the "Men's Social Club" when in fact they had been arrested at the "Shelly Tap." The court held that this inaccuracy did not make the report...