Stratman v. Brent
Annotate this Case
No. 2--96--1306
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
JOSEPH STRATMAN, ) Appeal from the Circuit Court
) of Kane County.)
Plaintiff-Appellant, )
) No. 89--L--46
v. )
)
ROBERT BRENT, ) Honorable
) R. Peter Grometer,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
The plaintiff, Joseph Stratman, appeals the trial court's
granting of the defendant's, Robert Brent's, motion on the
pleadings, motion to dismiss, and summary judgment in this action
for slander. The trial court granted the defendant's motion on the
pleadings and motion to dismiss based on section 2--201 of the
Local Governmental and Governmental Employees Tort Immunity Act
(Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 2--201 (now
745 ILCS 10/2--201 (West 1994))). The trial court granted the
defendant's motion for summary judgment on count II of the
plaintiff's third amended complaint based on a release signed by
the plaintiff. We reverse.
The issues raised in this appeal concern the legal sufficiency
of the plaintiff's third amended complaint and the defendant's
motions directed against that complaint. The following facts are
taken from the record. The plaintiff worked as a police officer
for the City of Aurora from December 1977 to June 1985. During
that period, the defendant was the police chief of the City of
Aurora. In January and August 1987, the plaintiff applied for
positions with the United Stated Drug Enforcement Agency (DEA) and
the Bureau of Alcohol, Tobacco, and Firearms (BATF), respectively.
The Federal Bureau of Investigation (FBI) conducted a background
check of the plaintiff for the DEA, and the Department of the
Treasury (DT) conducted a background check for the BATF Both the
FBI and the DT interviewed the defendant regarding the plaintiff's
employment with the City of Aurora.
Count I of the plaintiff's third amended complaint alleges
that the defendant made the following statements about the
plaintiff to the DT:
"a. That the plaintiff was involved in a fatal shooting on
March 20, 1979 and subsequent to that shooting, the
plaintiff declined any offers of counseling;
b. That the plaintiff was given the nickname [']Code Red[']
which is the Aurora Police Department unofficial
designation for mentally disturbed person;
c. That the plaintiff became a loner soon after the shooting
and that the plaintiff became unpredictable and displayed
an increasingly negative attitude, in fact a pervasive
negative attitude;
d. That the plaintiff became incapable of handling stress
and that the defendant was relieved when the plaintiff
resigned;
e. That the defendant was keeping a close eye on the
plaintiff prior to his resignation and monitoring him
with the idea of finding just cause to fire him and was
glad to see the plaintiff leave;
f. That the defendant would not rehire the plaintiff and if
the plaintiff attempted to return to the Aurora Police
Department, the defendant would go to any length to
prevent his return and would subject the plaintiff to
every psychological screening available;
g. That the defendant could have [a] department wide mutiny
if the plaintiff returned;
h. The other officers would not work with the plaintiff;
i. That the defendant would not recommend the plaintiff for
employment with the United States Department of the
Treasury, Bureau of Alcohol, Tobacco and Firearms."
Count II of the plaintiff's third amended complaint alleges
that the defendant made the following statements about the
plaintiff to the FBI:
"a. That the plaintiff had been involved in an incident
wherein he shot a burglar and after the shooting, the
plaintiff did not have, or ask for any counseling;
b. That before the plaintiff left the department and a
considerable time after the shooting, the plaintiff began
to act strangely;
c. That the plaintiff was nicknamed [']Code Red['] by his
fellow officers and that [']Code Red['] is the Aurora
Police Department code word for a person acting crazy;
d. That although the official file on the plaintiff
indicates that he was eligible for rehire, the defendant
would not rehire the plaintiff without careful
psychiatric study and testing;
e. That the plaintiff should be given psychological testing
before the final consideration for hiring be given."
The plaintiff also alleged that the defendant's statements
were false, the defendant had limited contact with the plaintiff
during the plaintiff's employment, the defendant had no personal
knowledge upon which to base his statements, and that the defendant
failed to conduct any investigation to verify the plaintiff's
alleged conduct, behavior, and performance. Further, the plaintiff
alleged that, before the defendant made the slanderous statements
to the FBI and the DT, the defendant told the FBI during another
interview that "he had no reason to question the plaintiff's
honesty, loyalty, or trustworthiness, *** and he would recommend
the plaintiff for employment with a law enforcement agency."
Neither the DEA nor the BATF offered employment to the plaintiff.
In the defendant's amended answer to the plaintiff's third
amended complaint, the defendant admitted that he had been
interviewed as part of the federal government's background
investigation of the plaintiff. However, the defendant denied that
he made slanderous statements about the plaintiff. The defendant
asserted the affirmative defenses of (1) truth; (2) common-law
absolute government official privilege; (3) statute of limitations;
(4) the execution of a release by the plaintiff; and (5) immunity
pursuant to section 2--201 of the Tort Immunity Act. The trial
court denied the plaintiff's motion to strike the defendant's
affirmative defenses. The defendant attached a copy of the alleged
release to his answer. The defendant filed a motion for judgment
on the pleadings and a motion to dismiss based on sections 2--
615(b) and (e) of the Code of Civil Procedure (735 ILCS 5/2--
615(b), (e) (West 1994)), alleging that the plaintiff failed to
state a cause of action because the defendant's alleged statements
were protected expressions of opinion and capable of innocent
construction. The defendant also filed a section 2--619(a)(9) (735
ILCS 5/2--619(a)(9) (West 1994)) motion to dismiss, alleging
immunity based on section 2--201 of the Tort Immunity Act. In
addition, the defendant filed a motion for summary judgment only on
count II of the plaintiff's third amended complaint based on the
alleged release. The defendant attached a copy of the release to
the motion for summary judgment. The plaintiff filed a letter
signed by the defendant commending the plaintiff on his involvement
with a burglary incident and a letter signed by the defendant
praising the plaintiff for his service with the department upon the
plaintiff's resignation.
The trial court granted the defendant's motion on the
pleadings and his motion to dismiss based on immunity and granted
the defendant's motion for summary judgment based on the release,
but denied the defendant's motion to dismiss based on innocent
construction. The trial court then dismissed the plaintiff's third
amended complaint with prejudice. This timely appeal followed.
The plaintiff filed a motion to strike portions of the defendant's
reply brief. That motion was taken with this appeal.
The plaintiff argues that the trial court improperly dismissed
his complaint based on section 2--201 of the Tort Immunity Act
(Ill. Rev. Stat. 1987, ch. 85, par. 2--201). The plaintiff claims
that the defendant's alleged act is not immune under this provision
because it was not a discretionary act. The plaintiff explains
that the defendant had no duty to provide prospective employers
with statements regarding former employees. Thus, the defendant's
act was not unique to the defendant's position as a police chief.
The plaintiff also claims that the defendant's decision to provide
the statement was not a policy decision. The defendant argues the
decision to make the statements was a discretionary act and that it
is not necessary to establish that the defendant made a policy
decision. We agree with the plaintiff.
The standards guiding our review of the trial court's decision
to grant the defendant's section 2--619(a)(9) motion are clear.
Section 2--619(a)(9) of the Code of Civil Procedure provides for
dismissal if "the claim asserted against defendant is barred by
other affirmative matter avoiding the legal effect or defeating the
claim." 735 ILCS 5/2--619(a)(9) (West 1994). Thus, the moving
party admits the legal sufficiency of the complaint but asserts an
affirmative defense or other matter which avoids or defeats the
claim. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d
1080, 1083 (1994). For purposes of a section 2--619 motion, all
well-pleaded facts in the complaint are deemed admitted and only
the legal sufficiency of the complaint is at issue. Sisk v.
Williamson County, 167 Ill. 2d 343, 346 (1995); Kubian v. Alexian
Brothers Medical Center, 272 Ill. App. 3d 246, 250 (1995). However,
exhibits attached to the complaint become part of the complaint and
will also be considered. Abbott v. Amoco Oil Co., 249 Ill. App. 3d
774, 778-79 (1993). Thus, "the trial court may consider pleadings,
depositions, and affidavits." Zedella v. Gibson, 165 Ill. 2d 181,
185 (1995). "We review an order granting a section 2--619(a)(9)
motion de novo, considering whether the existence of a genuine
issue of material fact should have precluded the dismissal or,
absent such an issue of fact, whether dismissal is proper as a
matter of law." Bainter v. Village of Algonquin, 285 Ill. App. 3d
745, 750 (1996), citing Kedzie & 103rd Currency Exchange, Inc. v.
Hodge, 156 Ill. 2d 112, 116-17 (1993).
Section 2--201 of the Tort Immunity Act provides:
"Except as otherwise provided by Statute, a public
employee serving in a position involving the determination of
policy or the exercise of discretion is not liable for an
injury resulting from his act or omission in determining
policy when acting in the exercise of such discretion even
though abused." Ill. Rev. Stat. 1987, ch. 85, par. 2--201.
Section 2--201 codifies the common-law distinction between
discretionary acts and ministerial duties. Snyder v. Curran
Township, 167 Ill. 2d 466, 473 (1995); Corning v. East Oakland
Township, 283 Ill. App. 3d 765, 768 (1996). Thus, a public
official is immune from liability for injuries caused by
discretionary acts, but not from those caused by ministerial acts.
Snyder, 167 Ill. 2d at 473. While the distinction between
discretionary and ministerial acts has evaded precise formulation,
it is well settled that an act will not be held to be discretionary
unless it is "unique to a particular public office." Snyder, 167 Ill. 2d at 474. Further, a public official's discretionary act
will not be shielded by section 2--201 immunity unless the
discretionary act is made in furtherance of a governmental policy.
Harinek v. City of Chicago, 283 Ill. App. 3d 491, 496 (1996).
For example, in Lenz v. Julian, 276 Ill. App. 3d 66 (1995),
this court held that a state trooper was not immune from liability
for injuries caused by a car accident, because the decisions that
caused the accident were not unique to his position as a state
trooper. Lenz, 276 Ill. App. 3d at 73. While on duty, the
defendant, a state trooper, began pursuit of a motorcyclist. After
the pursuit was called off, the defendant sped through an
intersection and struck the plaintiff's vehicle. The defendant
heard that the motorcyclist had crossed into Wisconsin, and the
defendant intended to travel to Wisconsin to assist his fellow
officer. The defendant's flashing lights were not visible to most
motorists, and he activated his siren only shortly before entering
the intersection. A jury found in favor of the plaintiff. Lenz,
276 Ill. App. 3d at 67-68. On appeal, the defendant argued that he
was immune from suit under the common-law doctrine of public
officials' immunity because his conduct involved the performance of
a discretionary duty. Lenz, 276 Ill. App. 3d at 72. This court
held that the defendant was not immune because the act that caused
the accident was not unique to his particular office. Lenz, 276
Ill. App. 3d at 73. This court reasoned that the decision to
respond to a call for assistance was not the cause of the accident.
Lenz, 276 Ill. App. 3d at 73. Rather, the accident was caused by
the defendant's decision to speed as he travelled through the
intersection, even though he was not in hot pursuit and the chase
had been abandoned. Lenz, 276 Ill. App. 3d at 73.
Similarly, in Currie v. Lao, 148 Ill. 2d 151 (1992), our
supreme court held that a state trooper was not entitled to common-
law public officials' immunity because the choices he made which
caused the plaintiff's injuries were not "an exercise of his
official discretion." (Emphasis in original.) Currie, 148 Ill. 2d
at 167. While responding to a nonemergency call, the defendant
drove the wrong way down a one-way street and struck the
plaintiff's vehicle. It was not clear whether the defendant
activated his siren and flashing lights. A jury found in favor of
the plaintiff. Currie, 148 Ill. 2d at 154. On appeal, the
defendant argued that he was immune from the plaintiff's suit under
the doctrine of public officials' immunity. Currie, 148 Ill. 2d at
166. Our supreme court held that the defendant was not protected
by public officials' immunity because, although his decisions
regarding what route to follow were discretionary, they were not
"uniquely related to [his] official duties as a State trooper."
Currie, 148 Ill. 2d at 167. The court reasoned that "[t]hese same
choices are made by all drivers of motor vehicles." Currie, 148 Ill. 2d at 167.
The case at bar is similar to both Currie and Lenz. The
defendant in the instant case was asked to provide information
contained in the files regarding the plaintiff's job performance.
Although not required by any official mandate to provide employment
information, the defendant decided to provide the plaintiff's
prospective employers with statements. However, the defendant did
not report information that was contained in the plaintiff's
record. Rather, the defendant told the plaintiff's prospective
employers that the plaintiff was called "Code Red," was unstable,
and that he would not hire him back. Thus, the decision that
caused the plaintiff's injury in the present case was not the
decision to provide information, but, rather the statements he
chose to provide. The defendant's decisions were not unique to his
position as police chief. To the contrary, decisions regarding
what to tell prospective employers are made by all past employers.
Currie, 148 Ill. 2d at 167. Accordingly, we determine that the
defendant was not exercising his official discretion while making
the alleged defamatory statements because his act was not unique to
the office of police chief.
The case at bar is also similar to Harinek (283 Ill. App. 3d
491), wherein the Appellate Court, First District, held that a fire
marshall's order to a tenant to stand behind a door during a fire
drill was not covered by section 2--201 because his order was not
made in furtherance of a governmental policy. Harinek, 283 Ill.
App. 3d at 496. The court stated that "[t]he operative language in
section 2--201 is 'not liable for an injury resulting from his act
or omission in determining policy.' " (Emphasis in original.)
Harinek, 283 Ill. App. 3d at 496, quoting 745 ILCS 10/2--201 (West
1992). The court reasoned that, although the City of Chicago had
a policy of fire safety and the fire marshall's act was
discretionary, it was not a policy determination within the meaning
of the Tort Immunity Act. Harinek, 283 Ill. App. 3d at 496. In
the case at bar, the defendant has failed to allege that his action
was, in fact, a policy determination.
Therefore, because the defendant's statements were not
discretionary and were not policy determinations, the defendant is
not entitled to immunity from suit under section 2--201 of the Tort
Immunity Act. Thus, the trial court improperly dismissed the
plaintiff's third amended complaint based on the defendant's motion
on the pleadings and on his section 2--619(a)(9) motion.
The defendant's citation to Johnson v. Mers, 279 Ill. App. 3d
372 (1996), is misplaced. Johnson is factually distinguishable
from the case at bar. In Johnson, the plaintiff was injured by an
off-duty police officer hired by the defendant, a police chief.
The plaintiff alleged that the defendant was liable for wilful and
wanton and reckless misconduct, negligent hiring, negligent
retention, and negligent entrustment. Johnson, 279 Ill. App. 3d at
375. The trial court granted the defendant's motion for summary
judgment based on the lack of proximate cause. This court affirmed
on this ground and then noted that the defendant was entitled to
summary judgment on another basis of governmental immunity under
section 2--201 of the Tort Immunity Act. Johnson, 279 Ill. App. 3d
at 380. This court reasoned that the act of hiring a police
officer is discretionary because, although there was a hiring plan
in place, the ultimate decision whether to hire an officer is
discretionary. Johnson, 279 Ill. App. 3d at 380.
The case at bar is factually distinguishable from Johnson in
two important respects. First, the defendant in Johnson had a
duty, pursuant to a municipal hiring plan, to make hiring
decisions. The defendant in the case at bar had no duty to provide
information to former employees' prospective employers. Second, in
Johnson, the decision which allegedly caused the injury, that is,
the decision to hire the police officer, was unique to the police
chief's office. The decision in the case at bar, that is, the
decision to relate information not contained in the plaintiff's
file, was not unique to the defendant's office. Thus, Johnson is
not dispositive of the case at bar.
The defendant's argument that he has a duty to the general
public to reasonably insure that only qualified applicants become
law enforcement officers is also not persuasive. The defendant
cites no authority for this proposition. Further, we have found
nothing to support the proposition that a police chief owes a duty
to the public regarding the hiring decisions of federal law
enforcement agencies.
Next, the defendant urges this court to affirm the trial
court's dismissal based on the affirmative defense of absolute
common-law privilege. The defendant asserts that the defendant is
immune from liability for slander because he was a public official
at the time the alleged statements were made. The plaintiff argues
that the defendant waived this argument, because he raised it for
the first time on appeal. Further, the plaintiff asserts that the
privilege does not apply in this case because the defendant was
not acting within the scope of his official duties when he made the
alleged statements. We agree with the plaintiff that absolute
common-law privilege does not apply in this case.
It is well settled that, although an appellant may not raise
an issue for the first time on appeal, an appellee may raise a
defense for the first time on appeal as long as the factual basis
for such defense was before the trial court. Mortell v. Insurance
Co., 165 Ill. App. 3d 915, 921 (1988), citing Shaw v. Lorenz, 42 Ill. 2d 246 (1969). Because the factual basis for the defense of
common-law absolute privilege was contained in the plaintiff's
third amended complaint and the defendant's motions to dismiss, we
will address the merits of this argument.
We recognize that, in certain circumstances, communications
made by public officials are absolutely privileged in that no
remedy can be had in a civil action. Geick v. Kay, 236 Ill. App.
3d 868, 875 (1992). However, it is well settled that the privilege
does not apply unless the public official made the communication
while acting within the scope of his or her official duties.
Geick, 236 Ill. 2d at 876-77. Because nothing in the record
indicates that the defendant had a duty as police chief to provide
prospective employers with statements regarding former employees,
common-law absolute privilege is inapplicable.
The defendant also argues that the trial court's dismissal
should be affirmed because the defendant's statements could be
innocently construed. The plaintiff argues that the defendant
waived this argument because the trial court denied the defendant's
motion to dismiss on this ground and the defendant failed to file
a cross-appeal on this issue. An appellee need not cross appeal to
preserve an argument ruled on adversely to the appellee in the
trial court if the judgment of the trial court was not, at least in
part, against him. Landmarks Preservation Council v. City of
Chicago, 125 Ill. 2d 164, 174 (1988); Fillpot v. Midway Airlines,
Inc., 261 Ill. App. 3d 237, 240 (1994). Because no part of the
judgment of the trial court was against the defendant in this case,
we will address the merits of this argument.
The trial court denied the defendant's section 2--615 motion
to dismiss the plaintiff's third amended complaint based on the
innocent construction rule. "When the legal sufficiency of a
complaint is challenged by a section 2--615 motion to dismiss, all
well-pleaded facts in the complaint are taken as true and a
reviewing court must determine whether the allegations of the
complaint, when interpreted in the light most favorable to the
plaintiff, are sufficient to establish a cause of action upon which
relief may be granted." Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490 (1996). We review the denial of a section 2--615 motion
to dismiss de novo. Kedzie & 103rd Currency Exchange, 156 Ill. 2d
at 116.
There are two types of defamation actions, defamation per se
and defamation per quod. To prove defamation per se, the plaintiff
must establish that the challenged statement is so obviously and
naturally harmful to the person to whom it refers that a showing of
special damages is not necessary. Four categories of statements
constitute defamation per se: (1) language that imputes the
commission of a criminal offense; (2) language that imputes
infection with a loathsome communicable disease; (3) language that
imputes an inability to perform or want of integrity in the
discharge of duties or office or employment; and (4) language that
prejudices a party, or imputes a lack of ability, in his or her
trade, profession, or business. Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 88 (1996).
However, even if statements fit into a recognized defamation
per se category, the plaintiff will not recover if the statements
can reasonably be given an innocent construction. Bryson, 174 Ill. 2d at 90. As our supreme court recently explained:
"The innocent construction rule requires courts to consider a
written or oral statement in context, giving the words, and
their implications, their natural and obvious meaning. If, so
construed, a statement 'may reasonably be innocently
interpreted or reasonably be interpreted as referring to
someone other than the plaintiff, it cannot be actionable per
se.' " Bryson, 174 Ill. 2d at 90, quoting Chapski v. Copley
Press, 92 Ill. 2d 344, 352 (1982).
Further, the fact that an allegedly defamatory statement is capable
of an innocent construction is insufficient to bar recovery for
defamation per se. Bryson, 174 Ill. 2d at 93. Rather, the
allegedly defamatory statement must be given its natural and
obvious meaning and must be interpreted as it was used, according
to the ideas it was intended to convey to the listener. Bryson,
174 Ill. 2d at 93.
When the defendant's allegedly defamatory statements are taken
in context and given their natural and obvious meaning, it is clear
that the defendant intended to describe the plaintiff as someone
who was and would be unable to perform as a law enforcement
officer. Count I of the plaintiff's third amended complaint
alleged that the defendant told the DT that after a shooting
incident "the plaintiff was given the nickname [']Code Red['] "
which designates a person who is "mentally disturbed," "the
plaintiff became incapable of handling stress," "became
unpredictable," and "displayed an increasingly [and pervasive]
negative attitude." Count I also alleged that the defendant told
the DT that the defendant monitored the plaintiff "with the idea of
finding just cause to fire him," was "glad to see the plaintiff
leave," "would not rehire the plaintiff," "would go to any length
to prevent [the plaintiff's] return," and "would subject the
plaintiff to every psychological screening available." Further,
the defendant allegedly stated that if the plaintiff returned "the
defendant could have department wide mutiny," that "other officers
would not work with the plaintiff," and the "defendant would not
recommend the plaintiff for employment with the United States
Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms." Count II of the plaintiff's third amended complaint
alleged that the defendant told the FBI that after a shooting
incident the plaintiff "began to act strangely," "was nicknamed
[']Code Red['] by his fellow officers *** a code word for a person
acting crazy," and "[t]hat the plaintiff should be given
psychological testing before the final consideration for hiring."
After considering all of these statements taken together in
context, it is clear that, in making the alleged statements, the
defendant intended to convey that the plaintiff was, and is
currently, unable to perform his duties as a law enforcement
officer. See Bryson, 174 Ill. 2d at 88. The defendant made the
alleged statements in the context of a professional recommendation.
Therefore, he knew his words would have great impact on whether the
plaintiff received a job offer from the DEA or the BATF. He
further knew that the plaintiff applied for law enforcement
positions. Telling such a prospective employer that an applicant
is "mentally ill" or "crazy," taken in context with the other
alleged statements, constitutes defamation per se, incapable of an
innocent construction. Thus, the trial court properly denied the
defendant's motion to dismiss the plaintiff's third amended
complaint based on the innocent construction rule.
The defendant cites to Anderson v. Vanden Dorpel, 172 Ill. 2d 399 (1996), to support his argument. However, Anderson is
factually distinguishable. In Anderson, the plaintiff worked under
the defendant as a fund raiser for Northwestern University.
Anderson, 172 Ill. 2d at 403. The plaintiff applied for another
job as a fund raiser for the Young Men's Christian Association of
Metropolitan Chicago (YMCA). Anderson, 172 Ill. 2d at 403. The
plaintiff alleged that the defendant told a representative of the
YMCA that the plaintiff failed to follow up on assignments.
Anderson, 172 Ill. 2d at 404. Our supreme court held that this
statement was not defamatory per se because it was capable of an
innocent construction. Anderson, 172 Ill. 2d at 413. The court
reasoned that "the remark, construed in context, may be understood
to mean simply that the plaintiff did not fit in with [the
defendant's organization] *** and failed to perform well in that
particular job setting, and not as a comment on her ability to
perform in other, future positions." Anderson, 172 Ill. 2d at 413.
In the case at bar, the defendant's statements were clearly
meant to be a comment on the plaintiff's ability to perform in
future positions. The defendant allegedly stated that the
plaintiff was mentally ill and crazy and that the defendant would
not rehire him and would not recommend him for a position with the
BATF. The defendant also allegedly stated that, before considering
the plaintiff for a position, the plaintiff should undergo
psychological testing. These statements cannot be reasonably
construed as applying only to the plaintiff's ability to perform as
a police officer for the City of Aurora. Bryson, 174 Ill. 2d at
90. Rather, the statements impute the plaintiff's inability to
perform as a law enforcement officer in general. Thus, Anderson is
not dispositive of the case at bar.
Further, the defendant's citation to Pease v. International
Union of Operating Engineers, Local 150, 208 Ill. App. 3d 863
(1991), is not persuasive. In Pease, the defendant and the
plaintiff were embroiled in a collective bargaining agreement
dispute. Pease, 208 Ill. App. 3d at 866. The defendant's union
picketed the plaintiff's business. Pease, 208 Ill. App. 3d at 866.
The defendant alleged that the plaintiff threatened two union
members with a revolver. Pease, 208 Ill. App. 3d at 866.
Subsequently, the defendant was quoted in a newspaper as making the
following statements about the plaintiff: "He's dealing with half
a deck, did you know that? I think he's crazy." Pease, 208 Ill.
App. 3d at 867. This court held that the defendant's statements
were not actionable per se because they were "mere name calling or
*** rhetorical hyperbole *** employed only in a loose, figurative
sense." Pease, 208 Ill. App. 3d at 870. The case at bar is
factually distinguishable from Pease because the parties in the
instant case were not involved in a public dispute. Further, when
taken in context, it is clear that the defendant intended that the
DEA and BATF take his statements as more than mere name calling or
hyperbole.
The plaintiff also argues that the trial court erroneously
granted the defendant's motion to dismiss count II of the
plaintiff's third amended complaint based on an exculpatory/release
authorization the plaintiff issued to the DEA. The plaintiff
claims that the defendant's statements exceeded the scope of the
exculpatory/release authorization. The defendant argues that the
plaintiff waived this issue by failing to raise it in the trial
court. The defendant also asserts that his statements were covered
by the exculpatory/release authorization because he was attempting
to comply with the release. We agree with the plaintiff.
Initially, we note that the plaintiff did not waive this
argument. The trial court granted the defendant's motion for
summary judgment based on its interpretation of the
exculpatory/release authorization. Because we must review this
decision de novo (McNamee v. State of Illinois, 173 Ill. 2d 433,
438 (1996)), we must decide, as a matter of law, whether the
authorization applies to the facts alleged in the plaintiff's
complaint. Thus, our analysis must contain the meaning and scope
of the exculpatory/release authorization.
Summary judgment is proper where the pleadings, admissions,
and depositions on file, together with the affidavits, demonstrate
that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2--
1005 (West 1994); McNamee, 173 Ill. 2d at 438. A motion for
summary judgment and its supporting documents must be construed
"strictly against the movant and liberally in favor of the
opponent." Barnett v. Zion Park District, 171 Ill. 2d 378, 385
(1996). However, a trial court must grant a defendant's motion for
summary judgment where a plaintiff fails to factually support an
element of her claim. Madeo v. Tri-Land Properties, Inc., 239 Ill.
App. 3d 288, 294 (1992). The review of a trial court's decision to
grant a summary judgment motion is de novo. McNamee, 173 Ill. 2d
at 438.
Although exculpatory/release agreements releasing parties from
future liability are not favored, a court will enforce an
exculpatory clause unless it is against public policy or there is
something in the social relationship between the parties militating
against enforcement. Tyler Enterprises of Elwood, Inc. v. Skiver,
260 Ill. App. 3d 742, 750 (1994). However, such agreements are
strictly construed against the benefiting party and "must spell out
the intention of the parties with great particularity." Scott &
Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 395 (1986).
Further, an exculpatory agreement "will not be construed to defeat
a claim which is not explicitly covered by [its] terms." Scott &
Fetzer Co., 112 Ill. 2d at 395.
"AUTHORITY TO RELEASE INFORMATION
TO WHOM IT MAY CONCERN:
I hereby authorize any Special Agent or other authorized
representative of the Drug Enforcement Administration bearing
this release, or copy thereof, within one year of this date,
to obtain any information in your files pertaining to my
employment, military, credit, residential, criminal, or
education records including, but not limited to, academic,
achievement, attendance, athletic, personal history,
disciplinary, arrest, and conviction records. I hereby direct
you to release such information upon request of the bearer.
This release is executed with full knowledge and understanding
that the information released is for official use by the Drug
Enforcement Administration and may be disclosed to such third
parties as necessary in the fulfillment of official
responsibilities.
I hereby release you, as custodian of such records, and
any school, college, university, or other educational
institution, or business establishment, including its
officers, employees, or related personnel, both individually
and collectively, from any and all liability for damages of
whatever kind, which may at any time result to me because of
compliance with this authorization and request to release
information, or any attempt to comply with it. Should there
be any question as to the validity of this release, you may
contact me at the address or telephone number below."
(Emphasis added.)
After strictly construing the language of the
exculpatory/release authorization, it is clear that the plaintiff
only intended to authorize the release of information contained in
his personnel file. The authorization states that the DEA is
authorized "to obtain any information in [the Aurora Police
Department's] files pertaining to [the plaintiff's] employment."
Nothing in the authorization permitted the defendant to make
statements regarding the plaintiff's employment. Because the
plaintiff's third amended complaint alleges that the defendant
provided statements to the DEA, the plaintiff sufficiently alleged
that the defendant exceeded the exculpatory/release authorization.
Accordingly, the trial court erroneously granted the defendant's
motion for summary judgment on count II of the plaintiff's third
amended complaint.
The defendant asserts that, even if he exceeded the scope of
the exculpatory/release authorization, summary judgment was proper
because the defendant was attempting to comply with the
exculpatory/release authorization. We fail to see how the
defendant's "attempt to comply" could be construed to be covered by
the terms of the authorization. Scott, 112 Ill. 2d at 395.
Furthermore, the defendant does not allege that he based his
statements on information contained in the plaintiff's employment
file. In fact, the defendant does not explain why he did not tell
the DEA about the favorable letters the plaintiff allegedly
received from the defendant regarding the plaintiff's involvement
in a burglary incident and the plaintiff's resignation. The
defendant has not established that, in making the statements, he
was attempting to comply with the exculpatory/release
authorization.
The defendant also cites numerous cases from foreign
jurisdictions for the proposition that employment information
releases are a complete bar to defamation suits. However, these
cases are not binding on this court. Skipper Marine Electronics,
Inc. v. United Parcel Service, Inc., 210 Ill. App. 3d 231, 239
(1991).
Finally, we deny the plaintiff's motion to strike portions of
the defendant's brief as moot.
For the above reasons, the judgment of the circuit court of
Kane County is reversed.
Reversed.
INGLIS and HUTCHINSON, JJ., concur.
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
JOSEPH STRATMAN, ) Appeal from the Circuit Court
) of Kane County.)
Plaintiff-Appellant, )
) No. 89--L--46
v. )
)
ROBERT BRENT, ) Honorable
) R. Peter Grometer,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
The plaintiff, Joseph Stratman, appeals the trial court's
granting of the defendant's, Robert Brent's, motion on the
pleadings, motion to dismiss, and summary judgment in this action
for slander. The trial court granted the defendant's motion on the
pleadings and motion to dismiss based on section 2--201 of the
Local Governmental and Governmental Employees Tort Immunity Act
(Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 2--201 (now
745 ILCS 10/2--201 (West 1994))). The trial court granted the
defendant's motion for summary judgment on count II of the
plaintiff's third amended complaint based on a release signed by
the plaintiff. We reverse.
The issues raised in this appeal concern the legal sufficiency
of the plaintiff's third amended complaint and the defendant's
motions directed against that complaint. The following facts are
taken from the record. The plaintiff worked as a police officer
for the City of Aurora from December 1977 to June 1985. During
that period, the defendant was the police chief of the City of
Aurora. In January and August 1987, the plaintiff applied for
positions with the United Stated Drug Enforcement Agency (DEA) and
the Bureau of Alcohol, Tobacco, and Firearms (BATF), respectively.
The Federal Bureau of Investigation (FBI) conducted a background
check of the plaintiff for the DEA, and the Department of the
Treasury (DT) conducted a background check for the BATF Both the
FBI and the DT interviewed the defendant regarding the plaintiff's
employment with the City of Aurora.
Count I of the plaintiff's third amended complaint alleges
that the defendant made the following statements about the
plaintiff to the DT:
"a. That the plaintiff was involved in a fatal shooting on
March 20, 1979 and subsequent to that shooting, the
plaintiff declined any offers of counseling;
b. That the plaintiff was given the nickname [']Code Red[']
which is the Aurora Police Department unofficial
designation for mentally disturbed person;
c. That the plaintiff became a loner soon after the shooting
and that the plaintiff became unpredictable and displayed
an increasingly negative attitude, in fact a pervasive
negative attitude;
d. That the plaintiff became incapable of handling stress
and that the defendant was relieved when the plaintiff
resigned;
e. That the defendant was keeping a close eye on the
plaintiff prior to his resignation and monitoring him
with the idea of finding just cause to fire him and was
glad to see the plaintiff leave;
f. That the defendant would not rehire the plaintiff and if
the plaintiff attempted to return to the Aurora Police
Department, the defendant would go to any length to
prevent his return and would subject the plaintiff to
every psychological screening available;
g. That the defendant could have [a] department wide mutiny
if the plaintiff returned;
h. The other officers would not work with the plaintiff;
i. That the defendant would not recommend the plaintiff for
employment with the United States Department of the
Treasury, Bureau of Alcohol, Tobacco and Firearms."
Count II of the plaintiff's third amended complaint alleges
that the defendant made the following statements about the
plaintiff to the FBI:
"a. That the plaintiff had been involved in an incident
wherein he shot a burglar and after the shooting, the
plaintiff did not have, or ask for any counseling;
b. That before the plaintiff left the department and a
considerable time after the shooting, the plaintiff began
to act strangely;
c. That the plaintiff was nicknamed [']Code Red['] by his
fellow officers and that [']Code Red['] is the Aurora
Police Department code word for a person acting crazy;
d. That although the official file on the plaintiff
indicates that he was eligible for rehire, the defendant
would not rehire the plaintiff without careful
psychiatric study and testing;
e. That the plaintiff should be given psychological testing
before the final consideration for hiring be given."
The plaintiff also alleged that the defendant's statements
were false, the defendant had limited contact with the plaintiff
during the plaintiff's employment, the defendant had no personal
knowledge upon which to base his statements, and that the defendant
failed to conduct any investigation to verify the plaintiff's
alleged conduct, behavior, and performance. Further, the plaintiff
alleged that, before the defendant made the slanderous statements
to the FBI and the DT, the defendant told the FBI during another
interview that "he had no reason to question the plaintiff's
honesty, loyalty, or trustworthiness, *** and he would recommend
the plaintiff for employment with a law enforcement agency."
Neither the DEA nor the BATF offered employment to the plaintiff.
In the defendant's amended answer to the plaintiff's third
amended complaint, the defendant admitted that he had been
interviewed as part of the federal government's background
investigation of the plaintiff. However, the defendant denied that
he made slanderous statements about the plaintiff. The defendant
asserted the affirmative defenses of (1) truth; (2) common-law
absolute government official privilege; (3) statute of limitations;
(4) the execution of a release by the plaintiff; and (5) immunity
pursuant to section 2--201 of the Tort Immunity Act. The trial
court denied the plaintiff's motion to strike the defendant's
affirmative defenses. The defendant attached a copy of the alleged
release to his answer. The defendant filed a motion for judgment
on the pleadings and a motion to dismiss based on sections 2--
615(b) and (e) of the Code of Civil Procedure (735 ILCS 5/2--
615(b), (e) (West 1994)), alleging that the plaintiff failed to
state a cause of action because the defendant's alleged statements
were protected expressions of opinion and capable of innocent
construction. The defendant also filed a section 2--619(a)(9) (735
ILCS 5/2--619(a)(9) (West 1994)) motion to dismiss, alleging
immunity based on section 2--201 of the Tort Immunity Act. In
addition, the defendant filed a motion for summary judgment only on
count II of the plaintiff's third amended complaint based on the
alleged release. The defendant attached a copy of the release to
the motion for summary judgment. The plaintiff filed a letter
signed by the defendant commending the plaintiff on his involvement
with a burglary incident and a letter signed by the defendant
praising the plaintiff for his service with the department upon the
plaintiff's resignation.
The trial court granted the defendant's motion on the
pleadings and his motion to dismiss based on immunity and granted
the defendant's motion for summary judgment based on the release,
but denied the defendant's motion to dismiss based on innocent
construction. The trial court then dismissed the plaintiff's third
amended complaint with prejudice. This timely appeal followed.
The plaintiff filed a motion to strike portions of the defendant's
reply brief. That motion was taken with this appeal.
The plaintiff argues that the trial court improperly dismissed
his complaint based on section 2--201 of the Tort Immunity Act
(Ill. Rev. Stat. 1987, ch. 85, par. 2--201). The plaintiff claims
that the defendant's alleged act is not immune under this provision
because it was not a discretionary act. The plaintiff explains
that the defendant had no duty to provide prospective employers
with statements regarding former employees. Thus, the defendant's
act was not unique to the defendant's position as a police chief.
The plaintiff also claims that the defendant's decision to provide
the statement was not a policy decision. The defendant argues the
decision to make the statements was a discretionary act and that it
is not necessary to establish that the defendant made a policy
decision. We agree with the plaintiff.
The standards guiding our review of the trial court's decision
to grant the defendant's section 2--619(a)(9) motion are clear.
Section 2--619(a)(9) of the Code of Civil Procedure provides for
dismissal if "the claim asserted against defendant is barred by
other affirmative matter avoiding the legal effect or defeating the
claim." 735 ILCS 5/2--619(a)(9) (West 1994). Thus, the moving
party admits the legal sufficiency of the complaint but asserts an
affirmative defense or other matter which avoids or defeats the
claim. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d
1080, 1083 (1994). For purposes of a section 2--619 motion, all
well-pleaded facts in the complaint are deemed admitted and only
the legal sufficiency of the complaint is at issue. Sisk v.
Williamson County, 167 Ill. 2d 343, 346 (1995); Kubian v. Alexian
Brothers Medical Center, 272 Ill. App. 3d 246, 250 (1995). However,
exhibits attached to the complaint become part of the complaint and
will also be considered. Abbott v. Amoco Oil Co., 249 Ill. App. 3d
774, 778-79 (1993). Thus, "the trial court may consider pleadings,
depositions, and affidavits." Zedella v. Gibson, 165 Ill. 2d 181,
185 (1995). "We review an order granting a section 2--619(a)(9)
motion de novo, considering whether the existence of a genuine
issue of material fact should have precluded the dismissal or,
absent such an issue of fact, whether dismissal is proper as a
matter of law." Bainter v. Village of Algonquin, 285 Ill. App. 3d
745, 750 (1996), citing Kedzie & 103rd Currency Exchange, Inc. v.
Hodge, 156 Ill. 2d 112, 116-17 (1993).
Section 2--201 of the Tort Immunity Act provides:
"Except as otherwise provided by Statute, a public
employee serving in a position involving the determination of
policy or the exercise of discretion is not liable for an
injury resulting from his act or omission in determining
policy when acting in the exercise of such discretion even
though abused." Ill. Rev. Stat. 1987, ch. 85, par. 2--201.
Section 2--201 codifies the common-law distinction between
discretionary acts and ministerial duties. Snyder v. Curran
Township, 167 Ill. 2d 466, 473 (1995); Corning v. East Oakland
Township, 283 Ill. App. 3d 765, 768 (1996). Thus, a public
official is immune from liability for injuries caused by
discretionary acts, but not from those caused by ministerial acts.
Snyder, 167 Ill. 2d at 473. While the distinction between
discretionary and ministerial acts has evaded precise formulation,
it is well settled that an act will not be held to be discretionary
unless it is "unique to a particular public office." Snyder, 167 Ill. 2d at 474. Further, a public official's discretionary act
will not be shielded by section 2--201 immunity unless the
discretionary act is made in furtherance of a governmental policy.
Harinek v. City of Chicago, 283 Ill. App. 3d 491, 496 (1996).
For example, in Lenz v. Julian, 276 Ill. App. 3d 66 (1995),
this court held that a state trooper was not immune from liability
for injuries caused by a car accident, because the decisions that
caused the accident were not unique to his position as a state
trooper. Lenz, 276 Ill. App. 3d at 73. While on duty, the
defendant, a state trooper, began pursuit of a motorcyclist. After
the pursuit was called off, the defendant sped through an
intersection and struck the plaintiff's vehicle. The defendant
heard that the motorcyclist had crossed into Wisconsin, and the
defendant intended to travel to Wisconsin to assist his fellow
officer. The defendant's flashing lights were not visible to most
motorists, and he activated his siren only shortly before entering
the intersection. A jury found in favor of the plaintiff. Lenz,
276 Ill. App. 3d at 67-68. On appeal, the defendant argued that he
was immune from suit under the common-law doctrine of public
officials' immunity because his conduct involved the performance of
a discretionary duty. Lenz, 276 Ill. App. 3d at 72. This court
held that the defendant was not immune because the act that caused
the accident was not unique to his particular office. Lenz, 276
Ill. App. 3d at 73. This court reasoned that the decision to
respond to a call for assistance was not the cause of the accident.
Lenz, 276 Ill. App. 3d at 73. Rather, the accident was caused by
the defendant's decision to speed as he travelled through the
intersection, even though he was not in hot pursuit and the chase
had been abandoned. Lenz, 276 Ill. App. 3d at 73.
Similarly, in Currie v. Lao, 148 Ill. 2d 151 (1992), our
supreme court held that a state trooper was not entitled to common-
law public officials' immunity because the choices he made which
caused the plaintiff's injuries were not "an exercise of his
official discretion." (Emphasis in original.) Currie, 148 Ill. 2d
at 167. While responding to a nonemergency call, the defendant
drove the wrong way down a one-way street and struck the
plaintiff's vehicle. It was not clear whether the defendant
activated his siren and flashing lights. A jury found in favor of
the plaintiff. Currie, 148 Ill. 2d at 154. On appeal, the
defendant argued that he was immune from the plaintiff's suit under
the doctrine of public officials' immunity. Currie, 148 Ill. 2d at
166. Our supreme court held that the defendant was not protected
by public officials' immunity because, although his decisions
regarding what route to follow were discretionary, they were not
"uniquely related to [his] official duties as a State trooper."
Currie, 148 Ill. 2d at 167. The court reasoned that "[t]hese same
choices are made by all drivers of motor vehicles." Currie, 148 Ill. 2d at 167.
The case at bar is similar to both Currie and Lenz. The
defendant in the instant case was asked to provide information
contained in the files regarding the plaintiff's job performance.
Although not required by any official mandate to provide employment
information, the defendant decided to provide the plaintiff's
prospective employers with statements. However, the defendant did
not report information that was contained in the plaintiff's
record. Rather, the defendant told the plaintiff's prospective
employers that the plaintiff was called "Code Red," was unstable,
and that he would not hire him back. Thus, the decision that
caused the plaintiff's injury in the present case was not the
decision to provide information, but, rather the statements he
chose to provide. The defendant's decisions were not unique to his
position as police chief. To the contrary, decisions regarding
what to tell prospective employers are made by all past employers.
Currie, 148 Ill. 2d at 167. Accordingly, we determine that the
defendant was not exercising his official discretion while making
the alleged defamatory statements because his act was not unique to
the office of police chief.
The case at bar is also similar to Harinek (283 Ill. App. 3d
491), wherein the Appellate Court, First District, held that a fire
marshall's order to a tenant to stand behind a door during a fire
drill was not covered by section 2--201 because his order was not
made in furtherance of a governmental policy. Harinek, 283 Ill.
App. 3d at 496. The court stated that "[t]he operative language in
section 2--201 is 'not liable for an injury resulting from his act
or omission in determining policy.' " (Emphasis in original.)
Harinek, 283 Ill. App. 3d at 496, quoting 745 ILCS 10/2--201 (West
1992). The court reasoned that, although the City of Chicago had
a policy of fire safety and the fire marshall's act was
discretionary, it was not a policy determination within the meaning
of the Tort Immunity Act. Harinek, 283 Ill. App. 3d at 496. In
the case at bar, the defendant has failed to allege that his action
was, in fact, a policy determination.
Therefore, because the defendant's statements were not
discretionary and were not policy determinations, the defendant is
not entitled to immunity from suit under section 2--201 of the Tort
Immunity Act. Thus, the trial court improperly dismissed the
plaintiff's third amended complaint based on the defendant's motion
on the pleadings and on his section 2--619(a)(9) motion.
The defendant's citation to Johnson v. Mers, 279 Ill. App. 3d
372 (1996), is misplaced. Johnson is factually distinguishable
from the case at bar. In Johnson, the plaintiff was injured by an
off-duty police officer hired by the defendant, a police chief.
The plaintiff alleged that the defendant was liable for wilful and
wanton and reckless misconduct, negligent hiring, negligent
retention, and negligent entrustment. Johnson, 279 Ill. App. 3d at
375. The trial court granted the defendant's motion for summary
judgment based on the lack of proximate cause. This court affirmed
on this ground and then noted that the defendant was entitled to
summary judgment on another basis of governmental immunity under
section 2--201 of the Tort Immunity Act. Johnson, 279 Ill. App. 3d
at 380. This court reasoned that the act of hiring a police
officer is discretionary because, although there was a hiring plan
in place, the ultimate decision whether to hire an officer is
discretionary. Johnson, 279 Ill. App. 3d at 380.
The case at bar is factually distinguishable from Johnson in
two important respects. First, the defendant in Johnson had a
duty, pursuant to a municipal hiring plan, to make hiring
decisions. The defendant in the case at bar had no duty to provide
information to former employees' prospective employers. Second, in
Johnson, the decision which allegedly caused the injury, that is,
the decision to hire the police officer, was unique to the police
chief's office. The decision in the case at bar, that is, the
decision to relate information not contained in the plaintiff's
file, was not unique to the defendant's office. Thus, Johnson is
not dispositive of the case at bar.
The defendant's argument that he has a duty to the general
public to reasonably insure that only qualified applicants become
law enforcement officers is also not persuasive. The defendant
cites no authority for this proposition. Further, we have found
nothing to support the proposition that a police chief owes a duty
to the public regarding the hiring decisions of federal law
enforcement agencies.
Next, the defendant urges this court to affirm the trial
court's dismissal based on the affirmative defense of absolute
common-law privilege. The defendant asserts that the defendant is
immune from liability for slander because he was a public official
at the time the alleged statements were made. The plaintiff argues
that the defendant waived this argument, because he raised it for
the first time on appeal. Further, the plaintiff asserts that the
privilege does not apply in this case because the defendant was
not acting within the scope of his official duties when he made the
alleged statements. We agree with the plaintiff that absolute
common-law privilege does not apply in this case.
It is well settled that, although an appellant may not raise
an issue for the first time on appeal, an appellee may raise a
defense for the first time on appeal as long as the factual basis
for such defense was before the trial court. Mortell v. Insurance
Co., 165 Ill. App. 3d 915, 921 (1988), citing Shaw v. Lorenz, 42 Ill. 2d 246 (1969). Because the factual basis for the defense of
common-law absolute privilege was contained in the plaintiff's
third amended complaint and the defendant's motions to dismiss, we
will address the merits of this argument.
We recognize that, in certain circumstances, communications
made by public officials are absolutely privileged in that no
remedy can be had in a civil action. Geick v. Kay, 236 Ill. App.
3d 868, 875 (1992). However, it is well settled that the privilege
does not apply unless the public official made the communication
while acting within the scope of his or her official duties.
Geick, 236 Ill. 2d at 876-77. Because nothing in the record
indicates that the defendant had a duty as police chief to provide
prospective employers with statements regarding former employees,
common-law absolute privilege is inapplicable.
The defendant also argues that the trial court's dismissal
should be affirmed because the defendant's statements could be
innocently construed. The plaintiff argues that the defendant
waived this argument because the trial court denied the defendant's
motion to dismiss on this ground and the defendant failed to file
a cross-appeal on this issue. An appellee need not cross appeal to
preserve an argument ruled on adversely to the appellee in the
trial court if the judgment of the trial court was not, at least in
part, against him. Landmarks Preservation Council v. City of
Chicago, 125 Ill. 2d 164, 174 (1988); Fillpot v. Midway Airlines,
Inc., 261 Ill. App. 3d 237, 240 (1994). Because no part of the
judgment of the trial court was against the defendant in this case,
we will address the merits of this argument.
The trial court denied the defendant's section 2--615 motion
to dismiss the plaintiff's third amended complaint based on the
innocent construction rule. "When the legal sufficiency of a
complaint is challenged by a section 2--615 motion to dismiss, all
well-pleaded facts in the complaint are taken as true and a
reviewing court must determine whether the allegations of the
complaint, when interpreted in the light most favorable to the
plaintiff, are sufficient to establish a cause of action upon which
relief may be granted." Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490 (1996). We review the denial of a section 2--615 motion
to dismiss de novo. Kedzie & 103rd Currency Exchange, 156 Ill. 2d
at 116.
There are two types of defamation actions, defamation per se
and defamation per quod. To prove defamation per se, the plaintiff
must establish that the challenged statement is so obviously and
naturally harmful to the person to whom it refers that a showing of
special damages is not necessary. Four categories of statements
constitute defamation per se: (1) language that imputes the
commission of a criminal offense; (2) language that imputes
infection with a loathsome communicable disease; (3) language that
imputes an inability to perform or want of integrity in the
discharge of duties or office or employment; and (4) language that
prejudices a party, or imputes a lack of ability, in his or her
trade, profession, or business. Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 88 (1996).
However, even if statements fit into a recognized defamation
per se category, the plaintiff will not recover if the statements
can reasonably be given an innocent construction. Bryson, 174 Ill. 2d at 90. As our supreme court recently explained:
"The innocent construction rule requires courts to consider a
written or oral statement in context, giving the words, and
their implications, their natural and obvious meaning. If, so
construed, a statement 'may reasonably be innocently
interpreted or reasonably be interpreted as referring to
someone other than the plaintiff, it cannot be actionable per
se.' " Bryson, 174 Ill. 2d at 90, quoting Chapski v. Copley
Press, 92 Ill. 2d 344, 352 (1982).
Further, the fact that an allegedly defamatory statement is capable
of an innocent construction is insufficient to bar recovery for
defamation per se. Bryson, 174 Ill. 2d at 93. Rather, the
allegedly defamatory statement must be given its natural and
obvious meaning and must be interpreted as it was used, according
to the ideas it was intended to convey to the listener. Bryson,
174 Ill. 2d at 93.
When the defendant's allegedly defamatory statements are taken
in context and given their natural and obvious meaning, it is clear
that the defendant intended to describe the plaintiff as someone
who was and would be unable to perform as a law enforcement
officer. Count I of the plaintiff's third amended complaint
alleged that the defendant told the DT that after a shooting
incident "the plaintiff was given the nickname [']Code Red['] "
which designates a person who is "mentally disturbed," "the
plaintiff became incapable of handling stress," "became
unpredictable," and "displayed an increasingly [and pervasive]
negative attitude." Count I also alleged that the defendant told
the DT that the defendant monitored the plaintiff "with the idea of
finding just cause to fire him," was "glad to see the plaintiff
leave," "would not rehire the plaintiff," "would go to any length
to prevent [the plaintiff's] return," and "would subject the
plaintiff to every psychological screening available." Further,
the defendant allegedly stated that if the plaintiff returned "the
defendant could have department wide mutiny," that "other officers
would not work with the plaintiff," and the "defendant would not
recommend the plaintiff for employment with the United States
Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms." Count II of the plaintiff's third amended complaint
alleged that the defendant told the FBI that after a shooting
incident the plaintiff "began to act strangely," "was nicknamed
[']Code Red['] by his fellow officers *** a code word for a person
acting crazy," and "[t]hat the plaintiff should be given
psychological testing before the final consideration for hiring."
After considering all of these statements taken together in
context, it is clear that, in making the alleged statements, the
defendant intended to convey that the plaintiff was, and is
currently, unable to perform his duties as a law enforcement
officer. See Bryson, 174 Ill. 2d at 88. The defendant made the
alleged statements in the context of a professional recommendation.
Therefore, he knew his words would have great impact on whether the
plaintiff received a job offer from the DEA or the BATF. He
further knew that the plaintiff applied for law enforcement
positions. Telling such a prospective employer that an applicant
is "mentally ill" or "crazy," taken in context with the other
alleged statements, constitutes defamation per se, incapable of an
innocent construction. Thus, the trial court properly denied the
defendant's motion to dismiss the plaintiff's third amended
complaint based on the innocent construction rule.
The defendant cites to Anderson v. Vanden Dorpel, 172 Ill. 2d 399 (1996), to support his argument. However, Anderson is
factually distinguishable. In Anderson, the plaintiff worked under
the defendant as a fund raiser for Northwestern University.
Anderson, 172 Ill. 2d at 403. The plaintiff applied for another
job as a fund raiser for the Young Men's Christian Association of
Metropolitan Chicago (YMCA). Anderson, 172 Ill. 2d at 403. The
plaintiff alleged that the defendant told a representative of the
YMCA that the plaintiff failed to follow up on assignments.
Anderson, 172 Ill. 2d at 404. Our supreme court held that this
statement was not defamatory per se because it was capable of an
innocent construction. Anderson, 172 Ill. 2d at 413. The court
reasoned that "the remark, construed in context, may be understood
to mean simply that the plaintiff did not fit in with [the
defendant's organization] *** and failed to perform well in that
particular job setting, and not as a comment on her ability to
perform in other, future positions." Anderson, 172 Ill. 2d at 413.
In the case at bar, the defendant's statements were clearly
meant to be a comment on the plaintiff's ability to perform in
future positions. The defendant allegedly stated that the
plaintiff was mentally ill and crazy and that the defendant would
not rehire him and would not recommend him for a position with the
BATF. The defendant also allegedly stated that, before considering
the plaintiff for a position, the plaintiff should undergo
psychological testing. These statements cannot be reasonably
construed as applying only to the plaintiff's ability to perform as
a police officer for the City of Aurora. Bryson, 174 Ill. 2d at
90. Rather, the statements impute the plaintiff's inability to
perform as a law enforcement officer in general. Thus, Anderson is
not dispositive of the case at bar.
Further, the defendant's citation to Pease v. International
Union of Operating Engineers, Local 150, 208 Ill. App. 3d 863
(1991), is not persuasive. In Pease, the defendant and the
plaintiff were embroiled in a collective bargaining agreement
dispute. Pease, 208 Ill. App. 3d at 866. The defendant's union
picketed the plaintiff's business. Pease, 208 Ill. App. 3d at 866.
The defendant alleged that the plaintiff threatened two union
members with a revolver. Pease, 208 Ill. App. 3d at 866.
Subsequently, the defendant was quoted in a newspaper as making the
following statements about the plaintiff: "He's dealing with half
a deck, did you know that? I think he's crazy." Pease, 208 Ill.
App. 3d at 867. This court held that the defendant's statements
were not actionable per se because they were "mere name calling or
*** rhetorical hyperbole *** employed only in a loose, figurative
sense." Pease, 208 Ill. App. 3d at 870. The case at bar is
factually distinguishable from Pease because the parties in the
instant case were not involved in a public dispute. Further, when
taken in context, it is clear that the defendant intended that the
DEA and BATF take his statements as more than mere name calling or
hyperbole.
The plaintiff also argues that the trial court erroneously
granted the defendant's motion to dismiss count II of the
plaintiff's third amended complaint based on an exculpatory/release
authorization the plaintiff issued to the DEA. The plaintiff
claims that the defendant's statements exceeded the scope of the
exculpatory/release authorization. The defendant argues that the
plaintiff waived this issue by failing to raise it in the trial
court. The defendant also asserts that his statements were covered
by the exculpatory/release authorization because he was attempting
to comply with the release. We agree with the plaintiff.
Initially, we note that the plaintiff did not waive this
argument. The trial court granted the defendant's motion for
summary judgment based on its interpretation of the
exculpatory/release authorization. Because we must review this
decision de novo (McNamee v. State of Illinois, 173 Ill. 2d 433,
438 (1996)), we must decide, as a matter of law, whether the
authorization applies to the facts alleged in the plaintiff's
complaint. Thus, our analysis must contain the meaning and scope
of the exculpatory/release authorization.
Summary judgment is proper where the pleadings, admissions,
and depositions on file, together with the affidavits, demonstrate
that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2--
1005 (West 1994); McNamee, 173 Ill. 2d at 438. A motion for
summary judgment and its supporting documents must be construed
"strictly against the movant and liberally in favor of the
opponent." Barnett v. Zion Park District, 171 Ill. 2d 378, 385
(1996). However, a trial court must grant a defendant's motion for
summary judgment where a plaintiff fails to factually support an
element of her claim. Madeo v. Tri-Land Properties, Inc., 239 Ill.
App. 3d 288, 294 (1992). The review of a trial court's decision to
grant a summary judgment motion is de novo. McNamee, 173 Ill. 2d
at 438.
Although exculpatory/release agreements releasing parties from
future liability are not favored, a court will enforce an
exculpatory clause unless it is against public policy or there is
something in the social relationship between the parties militating
against enforcement. Tyler Enterprises of Elwood, Inc. v. Skiver,
260 Ill. App. 3d 742, 750 (1994). However, such agreements are
strictly construed against the benefiting party and "must spell out
the intention of the parties with great particularity." Scott &
Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 395 (1986).
Further, an exculpatory agreement "will not be construed to defeat
a claim which is not explicitly covered by [its] terms." Scott &
Fetzer Co., 112 Ill. 2d at 395.
"AUTHORITY TO RELEASE INFORMATION
TO WHOM IT MAY CONCERN:
I hereby authorize any Special Agent or other authorized
representative of the Drug Enforcement Administration bearing
this release, or copy thereof, within one year of this date,
to obtain any information in your files pertaining to my
employment, military, credit, residential, criminal, or
education records including, but not limited to, academic,
achievement, attendance, athletic, personal history,
disciplinary, arrest, and conviction records. I hereby direct
you to release such information upon request of the bearer.
This release is executed with full knowledge and understanding
that the information released is for official use by the Drug
Enforcement Administration and may be disclosed to such third
parties as necessary in the fulfillment of official
responsibilities.
I hereby release you, as custodian of such records, and
any school, college, university, or other educational
institution, or business establishment, including its
officers, employees, or related personnel, both individually
and collectively, from any and all liability for damages of
whatever kind, which may at any time result to me because of
compliance with this authorization and request to release
information, or any attempt to comply with it. Should there
be any question as to the validity of this release, you may
contact me at the address or telephone number below."
(Emphasis added.)
After strictly construing the language of the
exculpatory/release authorization, it is clear that the plaintiff
only intended to authorize the release of information contained in
his personnel file. The authorization states that the DEA is
authorized "to obtain any information in [the Aurora Police
Department's] files pertaining to [the plaintiff's] employment."
Nothing in the authorization permitted the defendant to make
statements regarding the plaintiff's employment. Because the
plaintiff's third amended complaint alleges that the defendant
provided statements to the DEA, the plaintiff sufficiently alleged
that the defendant exceeded the exculpatory/release authorization.
Accordingly, the trial court erroneously granted the defendant's
motion for summary judgment on count II of the plaintiff's third
amended complaint.
The defendant asserts that, even if he exceeded the scope of
the exculpatory/release authorization, summary judgment was proper
because the defendant was attempting to comply with the
exculpatory/release authorization. We fail to see how the
defendant's "attempt to comply" could be construed to be covered by
the terms of the authorization. Scott, 112 Ill. 2d at 395.
Furthermore, the defendant does not allege that he based his
statements on information contained in the plaintiff's employment
file. In fact, the defendant does not explain why he did not tell
the DEA about the favorable letters the plaintiff allegedly
received from the defendant regarding the plaintiff's involvement
in a burglary incident and the plaintiff's resignation. The
defendant has not established that, in making the statements, he
was attempting to comply with the exculpatory/release
authorization.
The defendant also cites numerous cases from foreign
jurisdictions for the proposition that employment information
releases are a complete bar to defamation suits. However, these
cases are not binding on this court. Skipper Marine Electronics,
Inc. v. United Parcel Service, Inc., 210 Ill. App. 3d 231, 239
(1991).
Finally, we deny the plaintiff's motion to strike portions of
the defendant's brief as moot.
For the above reasons, the judgment of the circuit court of
Kane County is reversed.
Reversed.
INGLIS and HUTCHINSON, JJ., concur.
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