Van Horne v. Muller

• Decision Date: 03 December 1998
• Docket Number: No. 85063,85063
• Citation: 705 N.E.2d 898,235 Ill. Dec. 715,185 Ill.2d 299
• Parties: , 235 Ill.Dec. 715, 14 IER Cases 1088 Keith VAN HORNE, Appellee, v. Matthew "Mancow" MULLER (Irma Blanco et al., Appellants).
• Court: Illinois Supreme Court

Page 898

705 N.E.2d 898

185 Ill.2d 299, 235 Ill.Dec. 715, 14

IER Cases 1088

Keith VAN HORNE, Appellee, v. Matthew "Mancow" MULLER (Irma Blanco et al., Appellants).

No. 85063

Supreme Court of Illinois.

Dec. 3, 1998.

Rehearing Denied Feb. 1, 1999.

[235 Ill.Dec. 717] Steven L. Baron, D'Ancona & Pflaum, Chicago, for Matthew " Mancow" Muller.

Paul M. Levy, Phillip J. Zisook, Brian D. Saucier, Deutsch, Levy & Engel, Ltd., Chicago, for Keith Van Horne.

David P. Sanders, Jenner & Block, Chicago, for Amicus Curiae CBS Corporation.

Jay Ward Brown, Levine, Pierson, Sullivan & Koch, L.L.P., Washington, D.C., for Capstar Broadcasting Corporation and Jacor Communications, Inc. Justice BILANDIC delivered the opinion of the court:

Plaintiff, Keith Van Horne, brought this action in the circuit court of Cook County to recover damages for injury to his reputation resulting from allegedly defamatory statements made by radio deejay Matthew "Mancow" Muller (Muller) and his cobroadcaster Irma Blanco (Blanco). Plaintiff asserted claims for defamation per se against Muller and Blanco as well as WRCX Radio (WRCX), the radio station employing Muller and Blanco, and Evergreen Media Corporation (Evergreen), the owner of the radio station. The complaint also asserted claims against WRCX and Evergreen for negligent and reckless hiring, supervision and retention of Muller. The circuit court dismissed the defamation claim against Blanco and the negligent and reckless hiring, supervision and retention claims against WRCX and Evergreen. The appellate court reversed the circuit court's dismissal of those counts. 294 Ill.App.3d 649, 229 Ill.Dec. 138, 691 N.E.2d 74. We granted a petition for leave to appeal filed by Blanco, WRCX and Evergreen. 166 Ill.2d R. 315. We now affirm in part and reverse in part the appellate court's judgment.

BACKGROUND

The statements giving rise to this action were made during the November 11, 1994, broadcast of "Mancow Muller's Morning Madhouse," a radio program aired weekday mornings on WRCX. Defendant Muller was the host of the program and defendant Blanco was Muller's "sidekick" and newscaster. According to Van Horne's complaint, during the broadcast, Muller repeatedly made statements to the effect that Van Horne had threatened and assaulted Muller earlier that morning. The complaint sets forth lengthy and detailed excerpts from the transcript of the broadcast. We will not recount all of the detailed comments contained in the complaint. In sum, on numerous occasions and in colorful detail, Muller stated that Van Horne had been waiting for him at the elevator bank outside the WRCX studio; that Van Horne chased him and threatened his life; and that Van Horne was, among other things, "out of control," "extremely violent," "psychotic," "a danger to society" and "trained in killing people," and "needs to be locked up."

According to the complaint, defendant Blanco engaged in "banter" with Muller about his encounter with Van Horne throughout the broadcast in which she contributed to and supported Muller's accounts of the alleged altercation. Blanco also reported Muller's account of the incident as a news item in her news broadcasts that morning.

The complaint alleged that Muller's statements imputed that Van Horne had engaged in criminal conduct and that the statements were therefore defamatory per se. The complaint further alleged that the statements were false, and that Muller acted with actual malice in making the statements because Muller knew the statements to be false when he made them.

As ultimately amended, the complaint contained eight counts. Count I asserted a claim for defamation per se against Muller. Count II asserted a claim for defamation per se against Blanco. Count III charged WRCX with defamation per se on the ground that WRCX published Muller's and Blanco's false statements by broadcasting them over the public airwaves. Count IV charged Evergreen with defamation per se under a theory of vicarious liability for the acts of its agents, WRCX, Muller and Blanco. Counts V and VI asserted claims against WRCX and Evergreen for negligent and reckless hiring of Muller. Counts VII and VIII asserted claims that WRCX and Evergreen negligently and recklessly supervised and retained Muller.

The circuit court denied the defendants' motion to dismiss the defamation per se counts against Muller, WRCX and Evergreen. The court granted, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 2/615 (West 1994)), the defendants' motion to dismiss the defamation per se count against Blanco. The circuit court also dismissed the negligent and reckless hiring, supervision and retention counts against WRCX and Evergreen, apparently Plaintiff appealed and the appellate court reversed. The appellate court held that plaintiff had adequately pled that Blanco participated in the publication of Muller's defamatory statements. The appellate court further found that dismissal of this count was erroneous because Blanco published statements that were defamatory per se. The appellate court next held that the circuit court erred in dismissing the negligent and reckless hiring, supervision and retention counts. The appellate court concluded that these causes of action do not require an allegation that the plaintiff has sustained a physical injury. 294 Ill.App.3d 649, 229 Ill.Dec. 138, 691 N.E.2d 74.

[235 Ill.Dec. 719] on the ground that these causes of action require a physical injury.

We accepted a petition for leave to appeal filed by Blanco, WRCX and Evergreen (hereinafter defendants). 166 Ill.2d R. 315. We subsequently allowed a group of broadcasters, publishers, editors and reporters to file an amicus curiae brief in support of defendants' position.

Plaintiff filed a motion in this court to strike a portion of defendants' reply brief. That motion was taken with the case. We have reviewed the challenged portion of defendants' reply brief and we find no reason to strike it. Plaintiff's motion is therefore denied.

ANALYSIS

The circuit court granted defendants' motion to dismiss counts II and V through VIII pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)). A motion to dismiss under section 2-615 attacks the legal sufficiency of the complaint. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 86, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996). In ruling on such a motion, the court must accept as true all well-pleaded facts and reasonable inferences therefrom. Bryson, 174 Ill.2d at 86, 220 Ill.Dec. 195, 672 N.E.2d 1207. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover. McGrath v. Fahey, 126 Ill.2d 78, 90, 127 Ill.Dec. 724, 533 N.E.2d 806 (1988).

Defamation Claim Against Blanco

Defendants argue that the appellate court erred in reversing the dismissal of count II of plaintiff's complaint. Count II is directed solely at Blanco and purports to state a cause of action for defamation per se. Count II realleges all of the allegations made against Muller in count I. Count II then sets forth in great detail a number of examples of Blanco's "banter" with Muller in which she allegedly "contributed to and supported Muller's accounts of his alleged altercation with Van Horne." For example, the complaint alleges that, after Muller stated that Van Horne would have hurt him had no one else been present during the altercation, Blanco responded, "If it was just the two of you, I really believe that." Blanco also stated, in response to Muller's reiteration of the story, "It happened this morning just as you were getting out of the elevator. It's almost as if he was waiting for you. * * * Threatening."

In addition, count II alleges that, during each of her morning news broadcasts, Blanco reported Muller's false account of his encounter with Van Horne as news. The news report by Blanco, as recounted in count II, stated the following:

"For Mancow's Morning Madhouse, I'm Irma Blanco and here's the latest brought to you by Circuit City. Keith Van Horne's violent side was shining through this morning shortly after 5:00 a.m. in the John Hancock building. Former Bears lineman Van Horne, who is already in a little bit of trouble for allegedly hitting a woman at a gas station, literally ran into Mancow at the elevators in the building, with a near brawl with Van Horne threatening Mancow's life, calling him names, and even talking about a lawsuit. The whole thing fizzled out when Mancow graciously offered Van Horne time on the show this morning to air out the differences. Van Horne refused and left the building."

The complaint alleges that Blanco's " 'factual' accounts, news reports, and participation in Muller's defamatory statements" falsely accused Van Horne of criminal conduct We agree with the appellate court that the allegations of count II are sufficient to state a cause of action for defamation per se against Blanco. A statement is considered 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. Bryson, 174 Ill.2d at 87, 220 Ill.Dec. 195, 672 N.E.2d 1207; Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 10, 180 Ill.Dec. 307, 607 N.E.2d 201 (1992). Certain limited categories of defamatory statements are deemed actionable per se because they are so obviously and materially harmful to the plaintiff that injury to the plaintiff's reputation may be presumed. A plaintiff need not plead or prove actual damage to his or her reputation to recover for a statement that is actionable per se. Bryson, 174 Ill.2d at 87, 220 Ill.Dec. 195, 672 N.E.2d 1207. Illinois law recognizes five categories of statements which are considered actionable per se: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a...