*1 PEASE, Indiv., аl., v. INTERNATIONAL tiffs-Appellants, et Plain JACK al., Defendants-Ap et LOCAL 150 ENGINEERS UNION OF OPERATING Defendant). (C. Darling, pellees Robert District No. 2 — 90—0064 Second 11, 1991. Opinion February filed *3 REINHARD, J., concurring dissenting in part part. and Brydges, Morris, Miller, Gerling, Riseborough, Thomas K. of Franke & Jr., Waukegan (Louis Brydges, counsel), appellants. for W. Sigman, Ltd., Sigman, Chicago, Louis E. of Baum & and Holmstrom Kennedy, (Dale of Crystal McKenney, & Lake D. Pierson and Harold C. counsel), appellees.
JUSTICE delivered the of the opinion WOODWARD court: Plaintiffs, Pease, Construction, Jack Pease individually, and J. Inc. (Pease), appeal from an order of the court of County circuit Lake granting motion to dismiss and sum- partial and judgment as to various counts of Pease’s third com- mary amended defendants, plaint against Engineers International Union of Operating (International), Dugan (Dugan), Local 150 William E. S. Anthony Magdic (Magdic), Strong Keith (Strong). Pease
By way background, аnd International were involved in over failure to dispute sign bargaining agree- Pease’s collective with picketing ment International. International at a sand and began Pease several of gravel pit partially employ- owned and where The was to picketing ees worked. failure of Pease protest pay employees operating heavy equipment “area standard” wages and benefits. Pease’s allegations third amended from complaint arise 19, 1987, separate August Magdic Strong two incidents. On re- County to the Lake sheriff that Pease had them ported threatened day with revolver. Pease admitted that on that he had a conversa- Magdic Strong gravel pit tion the sand and site and that gun waist- *4 toy squirt gun cap at the time he had a tucked in the had a and in a case pants. handgun, gun band his He also unloaded Strong or A threatening Magdic. in his vehicle. Pease denied warrant issued for arrest him with two charging aggra- was Pease’s counts of assault and one count of unlawful use of ar- weapons. vated He was but of all a guilty charges following rested was found not trial. jury that 30, day, 1987. On September on incident occurred The second Dugan, president the interview with printed the Northwest Herald reporter, Herald the questions by to the In response of International. Pease: about statements making following the as Dugan quoted “ half a dealing of Pease. ‘He’s Dugan a lot’. said ‘He lies ” crazy.’ deck, that? I think he’s did know you In- and Dugan that alleged Pease complaint, In third amended him had defamed superior) a (under theory respondeat ternational IV, Pease III II). In counts and I and (counts above remarks by that International Magdic he been and alleged by that had defamed him, a that Pease revolver pointed had had Magdic police told VI, alleged Pease In V and that statement to be false. counts knowing VII and In counts International. by Magdic false and imprisonment VIII, Strong and International based alleged by Pease defamation IX III IV. In counts allegations contained counts and upon the same X, and Strong International. alleged imprisonment by and Pease false were against XI and XII directed another individual defendant Counts In appeal. trial а part court and are not dismissed XIV, Magdic prosecution by counts XIII and Pease malicious alleged XVI, malicious alleged and International. In counts Pease XV 24, 1989, (def- VIII Strong. August counts VII and prosecution by On untimely were as filed. by Strong) amation dismissed commenced. On On in this case September trial jury Thereafter, 22, 1989, the trial a mistrial. September court declared Also, Sep- on the case was continued for trial to November 22, 1989, a motion to Magdic, tember and International filed Strong, through XIII (counts the counts alleging prosecution dismiss malicious issued XVI), on the basis that the warrant for Pease’s arrest was The motion also upon finding probable court cause. of the com- allege that failed to as a result special injury those counts Strong, or In- that allege Magdic, actions and failed to plained-of also Pease’s arrest. legal ternational was the cause of and International 2, 1989, Strong, Dugan, Magdic, On November alleging counts partial summary judgment filed motion for The motion II). I and (counts and International by Dugan defamation entitled judgment International were argued Dugan no believed dispute those counts because there was true; damages; no Pease suffered statements about Pease to be statement. Dugan's and that Pease provoked International filed 21, 1989, Strong, and Magdic, On November alleging false to the counts judgment as partial summary motion for counts VI, X) on the defamation (counts V, IX and imprisonment *5 Magdic (counts аgainst and International III and ar- IV). The motion gued that Pease was arrested to pursuant a warrant issued upon that, finding probable law, cause and under Illinois an arrest upon probable warrant issued cause is an absolute to a claim for bar false imprisonment. motion then pointed out Pease was only charged misdemeanors, se, while in order defamatory, to be per the statement complained allege of must commission of offense indictable, which is involves moral and turpitude, punishable by term in the Department Corrections.
On 15, 1989, December the trial court entered an granting order the motion to through dismiss counts XIII XVI (malicious prosecu tion); granting partial summary judgment Magdic, Strong, to In and V, VI, IX, to (false ternatiоnal as counts Xand and imprisonment); partial granting summary judgment Dugan to and International toas (defamation counts I and II based upon newspaper article). The trial found pursuant court also to Rule Supreme 304(a) Court (134 Ill. 2d 304(a)) R. there was no to just delay reason enforcement appeal or of the order. The trial court then entered an order voluntar III ily dismissing counts and without fol appeal IV This prejudice. lowed.
On appeal, Pease the following (1) raises issues: whether claims for malicious and prosecution imprisonment false are barred aby judi- finding cial of probable cause and issuance of an arrest warrant based upon alleged statements; perjured (2) and whether the defam- allеged atory statements in se, this case constitute defamation per which actual damages need be shown. FALSE IMPRISONMENT contends, first,
Pease that the trial court erred by granting sum- to mary judgment Magdic, and on the im- Strong, International false prisonment imprisonment counts. Pease’s claim for false part as pertinent follows:
“4. on or That about August wilfully MAGDIC maliciously directed and the arrest of PEASE procured County wrongfully Lake Sheriff’s Police by falsely accusing him of a criminal offense. arrest, aAs result of said unlawful was illegally [Pease]
detained, restrained, against and otherwise held his will by Lake County period Sheriff’s Police an extended of time.” Identical were allegations directed at International and Strong, well. motion for judgment granted
“A should be where summary court is de fact. The material any there no issue as genuine material any issue as genuine or of a termine the existence absence admissions, plead affidavits, exhibits depositions, fact from the court by The facts to be considered in the case. ings [Citations.] answer complaint and though a are facts. Even evidentiary [Citation.] are not fur fact, if issues raise of material such may purport to issues such, sum through ther facts affidavits supported by evidentiary moving for the party If is then mary judgment appropriate. [Citation.] contradicted, which, if facts supplies such law, the op as matter of to a party judgment would entitle such a to raise or answer alone complaint cannot posing рarty rely upon Christopher B.C. & fact.” genuine issues of material Carruthers *6 376, (1974), Ill. 2d 380. Co. 57 to a war pursuant
It is arrested that Pease was undisputed An arrest a of the circuit court. judge County rant issued Lake to a complete to a answer made a issued warrant pursuant validly Ill. 107- (Feld (1909), claim v. 240 imprisonment. of false Loftis “directed allege Magdic, Pease and International Strong, did to information the Lake by giving and arrest false procured” authorities, used to obtain a war which information was then County However, in Pease complaint, rant for his arrest. his third amended In his re failed to in itself. allege invalidity process the warrant a memoran sponse to the motion for Pease filed summary judgment, it dum to that the warrant any but failed set forth facts to establish self was invalid. Roo-Mac, (1981), Inc. (Dutton cases relied on Pеase v. 116; 52 (1977),
100 Ill.
3d
Ice Cream Co.
App.
Mangus Cock Robin
Inns,
110;
Ill.
43
3d
(1976),
App.
3d
Karow v.
Inc.
Ill.
App.
Student
therefore,
are,
878) all
arrests made
and
involved
without warrants
Pease has not
distinguishable from the case at
conclude that
bar. We
genuine
a
to
he was arrested
raised
issue material fact as whether
Thus,
to
entered
correctly
a valid warrant.
the trial court
pursuant
false imprison
in favor of the defendants
summary judgment
Nevertheless,
V,
IX,
X).
ment
note that the
(counts VI,
counts
and
we
if
their
prosecution
defendants here
still
malicious
may
be liable
maliciously
and
procuring
conduct
Pease’s arrest was undertaken
105, 107-08;
(1909),
probable
without
cause. See Feld v.
240
Loftis
Bassett v. Bratton
Next, contends that the trial court when Pease the defamation action Dugan’s motion for as to contained in counts I and II of the third complaint. amended Pease argues he was not to required prove damages. actual actions,
In libel proof injury necessary is not “where the alleged statement per is libelous se—where the are words ‘obviously ” Publications, harmful.’ naturally (Haberstroh v. Crain Inc. 189 Ill. App. 3d quoting Fried v. Jacobson 24, 27.) Ill. 2d Illinois courts have categories found four of words that can constitute libel se: which per (1) impute words the commission of offense; criminal (2) words which one impute that has a communica ble disease tends to person which exclude a from society; (3) words impute inability which to perform or want integrity in dis of duties of charge office or employment; (4) words which preju a particular dice party profession or trade. Haberstroh, 189 Ill. 3d at App.
Words are mere name or calling found be hyper rhetorical or loose, bole employed only figurative sense have been deemed (Haberstroh, nonactionable. 271.) Dugan’s state *** ments, deck, “He’s with half a I dealing think he’s crazy,” clearly fit categories not, into those are therefore, per libelous se. remark, however,
Dugan’s lot,” third “He lies is more trou blesome. written or oral context, statement considered in be “[A] with the words and the therefrom implications given their natural and statement, if, meaning; construed, obvious as so may reasonably be innocently interpreted reasonably interpreted as referring to someone other than the plaintiff it cannot per be actionable se. This preliminary determination is properly law be resolved *7 in instance; the court the first publication whether the inwas fact understood to be or to refer to the is a defamatory plaintiff of fact for the jury should the initial determination in be resolved fa vor the plaintiff.” 344, of v. 92 2d (Chapski Copley (1982), Press Ill. We that Dugan referring note there is no that to dispute was Pease in the above statements. Communications,
In Costello v. Capital Cities Inc. 125 (1988), Ill. 402, 2d defendants an editorial in published which stated pertinent part as follows: it; lied to us. no way put There’s nicer to he sim- “[Plaintiff] *** us,
ply Well, lied. And when he lied to he lied to you. he *** lied. *** think, Just got years we’ve twо more the of [Plaintiff] brand of lying (125 Ill. 2d at leadership.” 411-12.) Although the verdict for plaintiff grounds, was reversed other the supreme pertinent court stated in as part follows: state the pertinent contention that the defendants’ reject
“We ac they not se because per the editorial are libelous ments in The occasion. particular of on one dishonesty cuse the plaintiff may accusations disputed do not that the suggest defendants Chap- Nor does the defamatory. is not given meaning which a number which language, us to consider the ski decision allow of being innocent libelous of of [plaintiff] lying, times accuses meaning evident. defamatory of The content as matter law. reasonably are in not The statemеnts the editorial [Citation.] are to be consid construction, and to an innocent susceptible to a want imputed se they [plaintiff ered libelous because per 2d his office.” 125 of in the duties of integrity discharging at 416-17. Amy the context. following made in
Dugan’s statement was She Herald, Dugan. Mack, a the Northwest interviewed reporter for Pease, told that, Pease had Dugan prior told in a conversation with her that the union vandalism directly responsible was statement, firm; to which Dugan response she asked to Pease’s Costello, the defama Dugan made the statement. As in complained-of sus evident, reasonably here is and the statement is not tory meaning Therefore, statement, “He ceptible an innocent constructiоn. lot,” lies a to be considered it per imputes libelous se because business, and, there discharge Pease want in the integrity fore, damages. Pease need not actual prove
However,
granting
argues
fact over
genuine
was
there
no
issue material
proper because
was
malice. While
whether
statement was made with actual
Dugan’s
dispute
in
of a
was
action for libel which occurred
the course
labor
of free and
policy
the national
not
order
ensure that
preempted
chilled,
the actual
open
during
disputes
communications
labor
Times
v.
376 U.S.
(1964),
malice standard New York
Co.
Sullivan
710,
11 L.
to causes for
applicable
Ed. 2d
S. Ct.
was held
such
Fisher v. Illinois
arising
disputes.
libel
slander
out of
Office
996, 999,
on Linn
relying
Co.
Supply
53, 15 L.
Workers America
383 U.S.
United Plant Guard
Ed. 2d
nize J. Moreover, Pease Construction Inc.” we rea- reject Pease’s soning case, that Linn in we applying extending are an open invitation to publish unions to statements and the defamatory avoid in law Illinois by labeling it a “labor That dispute.” reasoning would require us to accept premise disputes the odd thаt the labor are the for, of, excuse frosty rather than the cause the relations between management and labor.
In order establish that alleged defamatory the statements malice, were made with actual plaintiff prove by the must clear and evidence that convincing published the defendant the defamatory with knowledge statements the were false or statements reckless disregard for their truth 125 falsity. (Costello, Ill. 2d at 418-19.) disregard may Reckless for the truth only be found where defendant, evidence shows that the fact, entertained serious doubts as to the truth 125 Ill. at 419. publication. 2d dissent this case takes the that the position defendants here were not entitled to failed summary judgment they because submit any Dugan evidence that would indicate did act with Mack, actual malice since the depositions Amy newspaper reporter, light shed no on the issue of malice. The dissent that, maintains where statement is determined to defamatory be se, per the determination of actual malice is a jury question, citing Erickson v. Aetna & Casualty Co. 127 Ill. 3d (1984), App. Life se, If the is language per libelous malice from the imputed words (Welch Chicago therein. Co. 34 Ill. (1976), App. Tribune 3d 1046, 1052.) Welch, In defendant terminated plaintiff’s employment and circulated stating writer, a memorandum plaintiff, sports had been “alcoholism, terminated because of punc lack of inefficiency, tuality, and Plaintiff filed an action for libel unreliability.” alleging se, that the language the memorаndum per injuring was libelous him in his In profession. reversing granting defendants, to the reviewing court held that there were factual is published sues be determined as to whether the memorandum was and, therefore, the issue should been submitted to maliciously have the jury.
Contrary malice, to the dissent’s of actual position, the se, even cases of libel for the per always question jury circumstances, under the may, disposed motion for proper (1978), App. See Catalano v. Pechous 69 Ill. 3d summary judgment. 146; Danekas v. Wise aff’d 3d 801. the defendants sued Danekas, police, a former chief plaintiff,
In *9 illegal unpro of plaintiff accused an editorial which alleging that alleged se. Plaintiff per in office was libelous while fessional conduct to be thе defendants by “false and known these were charges that and reckless thereof with total and defendants’ was publication false (Danekas, charges.” said any the truth or disregard falsity for motion granted The trial defendant’s App. 802.) court showing of no actual on the basis that there was summary judgment malice. the matter of
In the affirming granting summary judgment as malice, reviewing the court stated follows: actual can, the before us it as we issue “Stating succinctly as has to raise plaintiff whether the sufficient evidence presented in the publication question a issue as to whether or not triable is, false malice, it was knowingly reflected actual whether not was to whether or it or made with reckless indifference as offered in evi- In viеw of the and affidavits depositions false. defendants, fac- the have not been controverted by dence which must, think, the we question this threshold tually by plaintiff, in the answered negative. the in the judge opinion sustaining As trial remarked the article in summary judgment, published motion ‘[t]he dispraises public defendant’s not bland. It officials newspaper There the very is no but that editorial extensively.’ constitutional damaging plaintiff, was to the but under the [(1964), 376 U.S. standards set New York Times v. Sullivan by the must estab 710.], plaintiff 11 L. Ed. 2d 84 S. Ct. knowing only falsity, lish malice and not but implies actual In at the falsity. and reckless' this case the evidence submitted overcomes the pleading stage opposite clearly indicates the general allegations complaint, standing in the themselves. by Thus, to raise triable as we think the has failed issue plaintiff de to the element actual malice. corroborative required an the thereof the defendants’ supplied by tails and sources official interrogatories, by swers to the as plaintiff’s supported in a to know depositions position documents and of witnesses malice, facts, the at the least an absence of actual very indicate Times Since this material was within New York standards. no plaintiff, data offered by any controverted factual mal the material fact of actual genuine issue raised as to was ice.” Ill. 3d at 805. App. in fa- that, Danakas, judgment in points summary
The dissent out vor of the defendant only supported self-serving asser tion statement, that thе defendant believed the truth of his but upon presentation of “official depositions documents and of witnesses in a position Likewise, to know the (64 805.) facts.” 3d at dis out, Catalano, sent points the reviewing expressed court doubt to whether a defendant’s unqualified declaration that he believed the truth of negate his statement would be sufficient to showing (Catalano, However, actual malice. 83 Ill. 2d at record this case Pease showing reveals that has not made actual malice other than the bare allegations hereafter set forth in the following paragraph. Dugan motion for supported more than just allegation denial of of actual Pease’s malice.
In his third amended complaint, Pease “pub lished said statements willingly maliciously, knowing said state ments were note false.” We that Pease did not include the alternative allegation Dugan made complained-of statement with reckless *10 disregard for its truth or Defendants their motion falsity. supported for with summary judgment excerpts depositions Amy from the Mack and Dugan. William In his to the motion response summary for judgment, Pease relied on allegations the his third amended com plaint supported by a The legal correctly points memorandum. dissent that, out even though a a for party opposing summary judg motion counteraffidavits, ment fails to file the movant not entitled to sum mary his judgment supporting unless motion and affidavits establish his to right summary judgment as a matter of law. v. (Komater However, 632, 636.) Kenton Court Associates App. 3d if which, the party moving judgment facts, such summary supplies if contradicted, not would entitle such a to as a party judgment law, matter of the or opposing party complaint cannot his rely upon answer genuine alone to raise a issue of material fact. Carruthers B.C. Christopher & Co. 57 Ill. 2d It the in undisputed Dugan’s that context which statement was made response was in charge by to Pease that union of which Dugan was had president engaged acts of vandalism. The com- plained-of statement by Dugan charges. denial those On deposition, Dugan investigation testified that he made the mat- ter after he made the that complained-of statement confirmed Pease was as to the aсts He lying of vandalism. further testi- fied to prior making complained-of statement he had no rea- son an investigation to conduct because he had never heard such charges before. about the statement or the context which Nothing it was made as support established depositions provides in his testified Dugan merely malice. Had of actual allegation Pease’s statement, would of his we in the truth that he believed deposition appropri- not be would the dissent that agree with action. on his defamation ultimately prevail Pease could still ate since Pease a that he called allegation, Pease’s However, countered Dugan but true, allegation only by denying liar that was not knowing he had never heard the additional facts that by furnishing also before, thus, him no giving the union charges Pease’s of vandalism investigation that a charges, subsequent reason to such believe were, fact, In of the fact light that Pease’s false. proved charges state- made the allege Dugan complained-of that Pease did not the fact that disregard falsity, ment with reckless for its truth occurred after he made the state- Dugan’s investigation complained-of to allege any ment a different result. Pease failed require does that at the time made the Dugan complained-of facts which showed statement, reason to its truth. Dugan had doubt in claiming malice is on the proving party burden In order to defeat the motion for jury. (Welch, 1052.) 3d at Peаse was sufficient admissi summary judgment, required present that a of material fact existed genuine ble evidence establish issue Interna Dugan as to the existence of actual malice on the part position evidentiary tional. Pease has not further supported Dugan facts knew that Pease was the truth about showing telling he the vandalism when made the statement or that complained-of telling serious that Pease was not Dugan entertained doubts of mate Therefore, genuine truth. Pease has not established issue (See malice. Car rial fact as to whether acted with actual ruthers, as to counts I and II judgment 57 Ill. 2d at Summary was, therefore, and International. properly granted Dugan PROSECUTION MALICIOUS *11 dismissing that the trial court erred in his claims
Pease contends Magdic, Strong, and International. prosecution against for malicious as pertinent part Pease’s claim for malicious prosecution follows: 1987, ma- 19, MAGDIC and August willfully
“4. On or about of PEASE Lake directed and arrest liciously procured him accusing Police County by falsely wrongfully Sheriff’s of a criminal offense. proceeded wilfully maliciously
5. Thereafter MAGDIC PEASE with- charges against of criminal prosecution with the out cause do so. probable
6. The criminal prosecutions against PEASE were termi- nated in PEASE’S favor.
7. As a direct and result of the proximate prosecution, PEASE suffered damages.”
Identical allegations were directed at International Strong, as well.
In dismissing counts, the malicious prosecution the trial court stated pertinent part follоws: 19, 1987,
“The court finds that on August the Nineteenth Judi- cial Judge Tonigan Circuit Court found Henry probable cause to arrest Jack Pease and issued a warrant for that purpose. Ab- of probable sence cause to arrest is an essential element of the claim of therefore, malicious prosecution, and the previous find- ing of cause probable bars this claim.” Defendants’ motion to dismiss did not state whether it was brought pursuant to section 2—615 or section 2—619 of the Code of Civil (Ill. 110, 615, Procedure Rev. Stat. ch. pars. 619). 2— 2— The basis for the motion appears to be insufficient pleadings resulting in a failure to state a cause of pursuant action to section 2—615. However, the basis stated in the order of dismissal was the absence оf probable cause upon based the issuance of a judicial warrant which the trial court here held barred the claim for malicious prosecution, and thus it would be considered a disposition under section 2—619 (cause of action barred by matter). affirmative
We are. of the opinion that the trial court erred in dis missing prosecution malicious counts of Pease’s third amended complaint. Even if the court in the criminal proceedings had found cause probable trial, to bind defendant over for which is similar to a finding arrest, cause to probable finding such a would be at most only probable evidence cause and would not be conclusive on this issue in subsequent civil proceedings. (Lyons v. Kanter 285 Ill. 336, 341.) The faсt that the in the judge prior criminal proceedings here probable found cause to arrest likewise does not foreclose fur ther inquiry on this in the instant proceedings, civil so dis missal of the malicious prosecution counts of the third amended com plaint improper. argue
Defendants that in his deposition Pease conceded cause to arrest him probable appeal existed. On an from an order court, dismissing action to section like the pursuant 2— court, trial consider contained in the may only allegations complaint. Warner, (Stefani v. Baird & Inc. A motion to dismiss under section 2—619 does not brought appear *12 to be often required motions are since such under similar constraints not appear for motion does if the the ground affidavit supported by 2— 110, par. ch. Rev. Stat. complaint. (Ill. of the on the face dismissed, up the dismissal will has been 619.) complaint When will record, court reviewing in and the held basis found the upon any (Outlaw properly presented. one of the presume grounds it was upon here did The defendants v. 161 Ill. 3d O’Leary (1987), App. prob the issue of court Pease had conceded to the trial argue the and, therefore, dismissing pros malicious able that basis cause to the complaint presented counts of the was properly ecution trial court. these argue ap also that dismissal of counts
Defendants were insufficient to propriate any pleadings in event because Pease’s Howеver, the al prosecution. state the cause of action malicious was not of the leged plaintiff’s allegations the basis insufficiency Although trial these counts dismissing prejudice. court’s order with court affirm a on basis on the reviewing may judgment any appearing record, it to invoke this rule affirm the inappropriate would be and dismissal of with on the alternative basis complaint prejudice defect. pleading Cutsinger Cullinan conclude, therefore, in dismissing that the trial court erred the
We malicious counts of Pease’s amended prosecution complaint. third court
Accordingly, judgment granting partial circuit judgment Magdic, Strong, and International as to counts summary V, X VI, imprisonment) partial IX and and (false granting summary I judgment (defama- and International to counts and II tion is affirmed. The newspaper article) based circuit court’s (mali- XIII XVI granting through order the motion dismiss counts reversed, this cause is remanded for further prosecution) cious in this proceedings expressed opinion. consistent with the views in part; part Affirmed reversed in remanded.
DUNN, J., concurs. REINHARD, in concurring part dissenting part:
JUSTICE it insofar as holds opinion I agree majority’s summary entered favor defend- correctly judgment trial court seek- V, VI, complaint IX and X of the third amended ants on counts with the agree on false I further ing recovery imprisonment. based XIII dismissing through that the trial court erred in counts majority XVI of the third amended complaint which sought for mali- recovery cious prosecution.
I disаgree, however, with the majority’s determination that defendants were entitled to on counts I and IT of the third amended complaint based on defamation. It is important to note the narrow scope our inquiry regard. In its ruling on *13 defendants’ motion for partial summary judgment II, on counts I and the trial court found that the statements made by defendant Dugan constituted defamation which was actionable per se. No on party ap- peal has taken issue with this Therefore, determination. unlike that of the majority, my analysis undertaken assuming, but not deciding, that the statements at issue constitute defamation which is actionable per se.
In their motion for partial summary judgment
II,
on counts I and
argued
defendants
that the statements at issue arosе in the context of
case,
a
dispute
that, therefore,
labor
falls within the ambit of
Linn v. United Plant Guard Workers America (1966),
53,
383 U.S.
of
582,
15 L. Ed. 2d
Linn addressed the question of whether an action for defamation
under State law is
Federal
preempted by
labor law if the action arises
in the context of a labor
The
dispute.
Supreme Court held that such
actions were not preempted
long
so
as the plaintiff could also demon-
strate actual malice on the
of
part
the defendant according to the test
enunciated in New York Times
v.Co.
Sullivan (1964),
254,
376 U.S.
686,
11 L. Ed. 2d
84 S. Ct.
(Linn,
65,
The concludes that majority summary judgment on counts I II was appropriate because plaintiff failed to present issue material fact regarding the of whether question Dugan acted with actual mal- However, ice. defendants not did submit evidence with their any along motion for partial judgment which' would summary .establish act with actual malice. Dugan did not their motion “[djefendants supported
The notes that majority Mack Amy from the excerpts depositions summary judgment Ill. 3d at does Dugan.” (208 App. majority and William Mack, shows explain deposition newspaper reporter, how the part Dugan. deposition merely lack of actual malice on the Mack’s malice may the statement at issue. Because shows that made itself, Mack’s actu deposition statement proved by defamatory of fact on the issue of ally that a supports plaintiff’s position disposed actual malice remained which shоuld have been See Welchv. Tribune Co. summary judgment. Chicago App. 3d 1052-53.
Moreover, the far much majority weight Dugan’s ascribes too self-serving claiming affidavit that he believed in the truth of his statement that “lies a lot.” plaintiff party opposing Even where motion for summary judgment counteraffidavits, fails to file movant is not entitled to unless his motion and supporting affidavits establish his right summary judgment as a matter of law. (Komater v. Kenton Court Associates 636.) A defendant will not defeat a necessarily finding actual malice merely “by testifying he published with belief *14 that the statements were true.” (St. (1968), Amant v. 390 Thompson 727, 732, U.S. 262, 267, 1323, 20 L. Ed. 2d 88 S. Ct. 1326.) There fore, because plaintiff could succeed in a ultimately defamation action despite Dugan’s assertion that he in the believed truth of his state ment, the affidavit does not Dugan’s right establish to summary judg ment in his favor a of though matter law even it is uncontroverted. as
Although notes that the majority correctly existence of actual malice under the “may, circumstances, proper disposed be a mo by tion for summary judgment,” the majority fails to show that proper circumstances for such a summary disposition exist in this case. It remains true that the of actual malice generally one for the (Catalano trier fact. v. Pechous (1978), App. 69 Ill. 3d 797, 810, 146; aff’d (1980), 83 Ill. 2d see also Erickson v. Aetna Life Casualty (1984), 753, & Co. 127 Ill. App. (where 3d 764 a statement is se, determined to be defamatory per the determination of malice is a I jury question).) self-serving believe that the statements in Dugan’s affidavit are not sufficient to to require plaintiff have filed counter- affidavits in order to defeat the motion for summary judgment.
The cases cited by do not a majority support contrary conclu sion. The entry favor the defendant in 801, not, here, Danekas v. Wise 64 Ill. 3d as App. sup 880 a
ported only by self-serving assertion that the defendant believed the statement, truth of his but of “official documents upon presentation and depositions position (64 of witnesses in a to know the facts.” Ill. 3d at App. 805.) Similarly, supreme court Catalano v. Pechous 146, (1980), 83 Ill. 2d doubt as to a defendant’s un expressed whether qualified declaration that he in the truth believed statement would be sufficient to negate showing (83 of actual malice. Ill. 2d at Thus, 167.) contradicts, Catalano rather than supports, majority’s position.
Defendants also to argue plaintiff present failed factual to he question as whether sustained from the defa damages alleged mation as Linn. Defendants note required by correctly plaintiff it made clear below that he was not pursuing claim based on special damages. However, Linn does not require plaintiff to seek special damages in order to escape preemption; Federal can be recovery on to proof “general injury reputation” based if such harm is rec ognized (Linn, 65, as under State compensable law. U.S. at 15 L. 591, 664.) Ed. 2d at 86 S. Ct. at Illinois Generally, recovery allows general damages stemming reputation. (Brown from to injury 772, 777.) Illinois, Farkas 158 Ill. 3d In App. damаges such arise inference of law and need not be generally proved by evi Brown, 777; dence. 3d at see also Mittelman v. Witous (1989), 135 238-39. case,
In the instant
State law would allow
to
plaintiff
recover
damages
general injury
based
to his
such
reputation. Although
damages
law, where,
would
normally
presumed under Illinois
here,
the suit arises
the context of a labor
Linn
dispute,
requires
plaintiff to offer “evidence as to the
of the harm
severity”
{i.e., injury
to reputation)
(Linn,
in order to
Federal
escape
preemption.
U.S.
Contrary nothing to defendants’ record allegation cоnceded he could not suggest plaintiff prove that the defamation caused injury plaintiff’s “reputation Moreover, in his honesty personal and business affairs.” integrity *15 offered no deposition support defendants evidence affidavit allega- their motion for which would negate remained, tion. an issue of fact and there was no basis Accordingly, for the Plaintiff is entitled to the entry summary judgment. oppor- to his tunity present regarding alleged injury reputa- evidence tion. of sum- entry the trial court’s I would affirm
Accordingly, while the false imprisonment in favor defendants mary judgment the order I would reverse complaint, counts of the third amended dismissing counts and on the defamation granting summary judgment prosecution. malicious complaint alleging those counts of the GRUESEN, CHEVRIE, Defendant- v. FRANK Plaintiff-Appellant, DIANE Appellee. Second District No. 2 — 90—0270 13, 1991. Opinion February filed