Van Horne v. Muller

SIXTH DIVISION
January 30, 1998


No. 1-96-0331

KEITH VAN HORNE,

Plaintiff-Appellant,

v.

MATTHEW "MANCOW" MULLER, an individual,
IRMA BLANCO, an individual, EVERGREEN
MEDIA CORPORATION, a Delaware
corporation, and WRCX RADIO,

Defendants-Appellees.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

Honorable
Michael J. Hogan,
Judge Presiding.


JUSTICE QUINN delivered the opinion of the court:
This case involves an appeal from the circuit court of Cook
County in which Keith Van Horne (Van Horne) alleges that Chicago
disc jockey Matthew "Mancow" Muller (Muller) and his on-air
associate, Irma Blanco (Blanco), published defamatory remarks about
him during their morning broadcast. We also address the scope of
liability for an action alleging negligent and/or reckless hiring,
supervision, or retention where the plaintiff has suffered no
physical harm. Plaintiff appeals from the trial court's order
dismissing five counts of the complaint under section 2-615 of the
Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)).
Jurisdiction is vested in this court pursuant to Supreme Court Rule
304(a) (155 Ill. 2d R. 304(a)).

For the following reasons, we reverse.
The facts pertaining to this appeal are as follows. On
November 11, 1994, at approximately 5 a.m. Muller encountered Van
Horne at the radio station where Muller worked. At that time,
Muller and Van Horne exchanged words, and Van Horne allegedly
chased Muller down a hallway and threatened to kill him. Muller
reported the incident numerous times during his morning talk show.
Blanco discussed the incident with Muller on-air and included a
summary of the incident in her news reports during the broadcast.
Van Horne alleges that Muller and Blanco made various defamatory
remarks about him during the course of the radio program.
On November 28, 1994, Van Horne filed a verified complaint
against Muller, Blanco, and their employers, Evergreen Media
Corporation (Evergreen) and WRCX Radio (WRCX), alleging that the
statements made by Muller and Blanco during the broadcast were
defamatory per se. Defendants responded by filing a motion to
dismiss pursuant to section 2-615 of the Code of Civil Procedure
(735 ILCS 5/2-615 (West 1994)). On March 30, 1995, the trial court
dismissed the count against Blanco and let stand the counts against
Muller, Evergreen, and WRCX. The dismissal of the count against
Blanco was without prejudice.
On April 27, 1995, Van Horne filed an amended verified
complaint that revised the defamation claim against Blanco (count
II). The complaint also added four counts against WRCX and
Evergreen for negligent and/or reckless hiring and for negligent
and/or reckless retention and supervision (counts V through VIII).
Defendants subsequently moved to dismiss both the defamation count
against Blanco and the four new counts against WRCX and Evergreen.
On September 11, 1995, the trial court dismissed the negligent
and/or reckless hiring counts and the negligent and/or reckless
retention and supervision counts with prejudice on the grounds that
Van Horne could not allege that he suffered physical injury as a
result of the alleged defamatory statements. On December 27, 1995,
the trial court dismissed the defamation count against Blanco with
prejudice.
On appeal, plaintiff contends that: (1) the trial court erred
in dismissing the defamation count against Blanco where Blanco
participated in and contributed to the statements found to be
defamatory per se; (2) the trial court erred in dismissing the
defamation count against Blanco where Blanco republished the
statements found to be defamatory per se; and (3) the trial court
erred in dismissing the negligent and/or reckless hiring and the
negligent and/or reckless supervision and retention counts against
WRCX and Evergreen.
A trial court may grant a motion to dismiss a complaint
pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
5/2-615 (West 1994)) when the complaint does not contain
allegations of fact sufficient to state a cause of action. Singer
v. Brookman, 217 Ill. App. 3d 870, 878, 578 N.E.2d 1 (1991). Upon
ruling on a motion to dismiss, courts must take all well-pleaded
facts as true and construe all reasonable inferences in the light
most favorable to the plaintiff. Roderick Development Investment
Co., Inc. v. Community Bank, 282 Ill. App. 3d 1052, 1057, 668 N.E.2d 1129 (1996). Pleadings in the complaint must be viewed
liberally with a view toward doing substantial justice between the
parties. Disc Jockey Referral Network, Ltd. v. Ameritech
Publishing, 230 Ill. App. 3d 908, 912, 596 N.E.2d 4 (1992). The
issue before the court when reviewing a motion to dismiss is one of
law, and the standard of review therefore is de novo. Roderick,
282 Ill. App. 3d at 1057.
Van Horne first alleges that the trial court erred in
dismissing the defamation count against Blanco where Blanco
participated in and contributed to statements found to be
defamatory per se. The statements in question here formed the
basis of the count against Muller for defamation per se, and that
count of the complaint survived a motion to dismiss pursuant to
section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615
(West 1994). Hence, we address Blanco's liability for
participating in and contributing to statements found to be
defamatory per se.
This issue involves the scope of liability for actions
alleging defamation. Generally,
"[a]ll persons who cause or participate in the publication of
libelous or slanderous matter are personally responsible for
such publication, each being liable in full without
apportionment as to his particular share. Hence, one who
requests, procures, or aids or abets, another to publish
defamatory matter is liable as well as the publisher." 53
C.J.S. Libel & Slander, Section 115, at 194 (1987).

Thus, a defendant may be held liable for participating in or
contributing to the publication of a defamatory statement.
Contrary to defendants' position, this principle of law holds true
regardless of whether a plaintiff alleges defamation per se or
defamation per quod. See Kumaran v. Brotman, 247 Ill. App. 3d 216,
617 N.E.2d 191 (1993) (plaintiff allowed to amend complaint to
allege defamation per se against a newspaper reporter, the
newspaper, and two individuals quoted in alleged defamatory
article).
Here, it is clear from the record that there are sufficient
allegations of fact to support a cause of action against Blanco for
her participation in the publication of the statements found to be
defamatory per se. In count II, Van Horne alleges that Blanco was
more than an innocent bystander when Muller published the remarks
found to be defamatory per se. The count sets forth how Blanco
joined Muller in his description of the encounter with Van Horne,
how Blanco agreed with Muller's version of the events, and how
Blanco confirmed that the encounter was not a prearranged stunt.
Blanco was not a disinterested or detached witness to Muller's
defamatory remarks, rather, she was an active participant.
Defendants argue that a cause of action against Blanco for
defamation per se cannot stand because Blanco's statements, on
their own, were not defamatory. Defendants overlook the fact that
defamatory statements must be considered in the context in which
they were made. See Flip Side, Inc. v. Chicago Tribune Co., 206
Ill. App. 3d 641, 651, 564 N.E.2d 1244 (1990). As such, we find
that there are allegations of fact sufficient to state a cause of
action, and the trial court therefore erred in dismissing count II
of the complaint alleging defamation based upon Blanco's
participation in the broadcast.
Van Horne next alleges that the trial court erred in
dismissing the defamation count against Blanco where Blanco
republished the statements found to be defamatory per se.
Initially, we note that this issue is separate and distinct
from the first issue on appeal. The first issue involves the
sufficiency of a complaint alleging liability based on Blanco's
participation in the broadcast. This issue involves the
sufficiency of a complaint alleging liability based on Blanco's own
words. Further, we note that Blanco did not republish verbatim the
statements made by Muller that the trial court found to be
defamatory per se. Rather, Blanco summarized the encounter between
Van Horne and Muller. Yet, the form of the republication in the
present case is largely irrelevant due to our finding that Blanco
published statements that were defamatory per se.
A statement is considered defamatory if it tends to cause harm
to the reputation of another by lowering that person in the eyes of
the community or deterring third persons from associating with the
person. Restatement (Second) of Torts 559 (1977). A defamatory
statement may be classified as either defamatory per se or
defamatory per quod. In actions alleging defamation per quod, the
plaintiff must allege extrinsic facts to prove the defamatory
nature of the statement, whereas in actions alleging defamation per
se, the defamatory character of the statement is apparent on its
face. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 607 N.E.2d 201 (1992).
In Illinois, there are five classes of defamatory statements
that give rise to a cause of action for defamation per se: (1)
those imputing the commission of a criminal offense; (2) those
imputing infection with a communicable disease that, if true, would
tend to exclude one from society; (3) those imputing inability to
perform or want of integrity in the discharge of the duties of
office or employment; (4) those prejudicing a particular party in
his or her profession or trade; and (5) those stating false
accusations of fornication or adultery. Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 88-89, 672 N.E.2d 1207 (1996);
Fried v. Jacobson, 99 Ill. 2d 24, 27, 457 N.E.2d 392 (1983).
Further, a defendant may be held liable for republishing a
defamatory statement published by another. Owens v. CBS, Inc., 173
Ill. App. 3d 977, 527 N.E.2d 1296 (1988).
In the present case, we find that the trial court also erred
in dismissing count II because there are sufficient allegations of
fact to support a cause of action for defamation per se against
Blanco. During her first news report of the morning, Blanco made
the following statements:
"Keith Van Horne's violent side was shining through this
morning shortly after 5:00 a.m. in the John Hancock
building. Former Bears lineman Van Horne, who is already
in a little bit of trouble for allegedly hitting a woman
at a gas station, literally ran into Mancow at the
elevators in the building, with a near brawl with Van
Horne threatening Mancow's life, calling him names, and
even talking about a lawsuit."

Blanco made substantially similar statements during three other
news reports that morning. We find that these statements allege
that Van Horne committed the offense of assault - unlawful conduct
which places another in reasonable apprehension of receiving a
battery. 720 ILCS 5/12-1(a) (West 1994). Statements imputing the
commission of an offense are properly classified as defamatory per
se. Bryson, 125 Ill. 2d at 88. Accordingly, the trial court erred
in dismissing Count II of the complaint.
This case differs from defendants' citation to Richardson v.
Dunbar, 95 Ill. App. 3d 254, 419 N.E.2d 1205 (1981). In
Richardson, the plaintiff alleged that the following statement
constituted defamation per se: "he grabbed Danny by the shoulder
and tried to turn him around." Richardson, 95 Ill. App. 3d at 259.
The appellate court disagreed with the plaintiff on the grounds
that the statement did not import the commission of a crime.
Richardson, 95 Ill. App. 3d at 259. Rather, the statement required
an explanation of the surrounding circumstances and, therefore,
could not be classified as defamatory per se. Here, Blanco
published the above-discussed statements on four different
occasions. These statements allege the commission of the crime of
assault, and no explanation of surrounding circumstances is
necessary to reach that conclusion.
However, even if a statement is found to be defamatory per se,
it will no longer be considered defamatory if the statement is
reasonably capable of an innocent construction. Quinn v. Jewel
Food Stores, Inc., 276 Ill. App. 3d 861, 868, 658 N.E.2d 1225
(1995). To determine whether a statement is capable of an innocent
construction, a court must consider the statement in context giving
the words and implications therefrom their natural and obvious
meaning. Quinn, 276 Ill. App. 3d at 868. When so construed, a
statement will not be considered defamatory per se if it "may
reasonably be innocently interpreted." Chapski v. Copley Press, 92 Ill. 2d 344, 352, 442 N.E.2d 195 (1982).
Here, given the words and implications therefrom their natural
and obvious meaning, we conclude that Blanco's remarks are not
capable of innocent construction. Blanco, on four different
occasions, reported that Van Horne threatened Muller's life. Given
that Blanco made these statements while describing an altercation
between Van Horne and Muller, the statements are not reasonably
capable of innocent construction. As such, Blanco's statements are
properly classified as defamatory per se, and the trial court erred
in dismissing count II of the complaint.
Van Horne's third argument on appeal is that the trial court
erred in dismissing the negligent and/or reckless hiring and the
negligent and/or reckless supervision and retention counts against
WRCX and Evergreen where Muller allegedly has a history of reckless
conduct both in his current employment and in previous jobs as a
disc jockey.
Plaintiff's complaint sets forth seven different instances of
alleged reckless conduct by Muller prior to his employment by WRCX
and Evergreen. Specifically, the complaint alleges that while
Muller was a disc jockey in California he, among other actions:
obstructed access to the San Francisco Bay Bridge for three hours,
causing a traffic jam involving 35,000 commuters; dropped cinder
blocks off a California Bayshore overpass causing damage to cars
parked below; harassed the host of a local television program by
calling her "fat" and "unprofessional" over the public airwaves;
and designated a day as "Alzheimer's Awareness Day" where he
visited a geriatric center in San Francisco and asked the residents
questions they could not answer. The complaint also sets forth
three instances of alleged reckless conduct that occurred while
Muller was employed by WRCX and Evergreen. These instances
included, among other actions: declaring a "Roadkill Tuesday",
where he prompted listeners to leave dead animals at a shopping
mall, and directing an on-air associate to stand on the North
Avenue bridge while holding a sign that read "[h]onk and we'll drop
a cinder block."
Negligent and/or reckless hiring, supervision, and retention
are distinct causes of action. A cause of action for negligent
hiring alleges that: (1) an employer knew or should have known that
the employee had a particular unfitness for the position so as to
create a danger of harm to third persons, (2) the unfitness was
known or should have been known at the time of hiring, and (3) the
unfitness proximately caused the claimed injury. Mueller v.
Community Consolidated School District 54, 287 Ill. App. 3d 337,
341-42, 678 N.E.2d 660 (1997), citing Fallon v. Indian Trail
School, Addison Township School District No. 4, 148 Ill. App. 3d
931, 935, 500 N.E.2d 101 (1986). Negligent supervision alleges
that: (1) an employer had a duty to supervise its employees, (2)
the employer negligently supervised an employee, and (3) such
negligence proximately caused the plaintiff's injuries. Mueller,
287 Ill. App. 3d at 342-43. Negligent retention alleges that: (1)
an employer knew or should have known that the employee had a
particular unfitness for the position so as to create a danger of
harm to third persons, (2) the employer retained the employee in
his or her employment even after the employer knew or should have
known about the unfitness, and (3) the unfitness proximately caused
the claimed injury. Johnson v. Mers, 279 Ill. App. 3d 372, 376,
664 N.E.2d 668 (1996); Bates v. Doria, 150 Ill. App. 3d 1025, 1030-
31, 502 N.E.2d 454 (1986).
An action for negligent hiring may be brought even where the
employee's conduct occurred outside the scope of his or her
employment. Johnson, 279 Ill. App. 3d at 376. The rationale
behind this theory is that in an action alleging negligent hiring,
the proximate cause of the plaintiff's injuries is the employer's
failure to exercise reasonable care in hiring the employee, rather
than the wrongful conduct of the employee. Young v. Lemons, 266
Ill. App. 3d 49, 52, 639 N.E.2d 610 (1994).
Illinois courts have not explicitly defined the type of injury
necessary to sufficiently allege a cause of action under these
forms of employer liability. However, precedent establishes that
some form of physical injury has been alleged in each of the cases
where the complaint has withstood a challenge to its legal
sufficiency. See generally Malroney v. L & B Motor Freight, Inc.,
146 Ill. App. 3d 265, 496 N.E.2d 1086 (1986) (employee raped and
assaulted victim); Gregor v. Kleiser, 111 Ill. App. 3d 333, 443 N.E.2d 1162 (1982) (employee physically attacked and assaulted
victim); Easley v. Apollo Detective Agency, Inc., 69 Ill. App. 3d
920, 387 N.E.2d 1241 (1979) (employee sexually assaulted victim);
cf. Huber v. Seaton, 165 Ill. App. 3d 445, 519 N.E.2d 73 (1988),
rev'd on other grounds, 186 Ill. App. 3d 503, 542 N.E.2d 464
(1989).
However, just because physical injury has been alleged in
previous cases does not mean that such an allegation is a
prerequisite to stating a cause of action under these forms of
employer liability. The Restatement (Second) of Agency describes
the basis for these causes of action as follows:
"A person conducting an activity through servants or
other agents is subject to liability for harm resulting
from his conduct if he is negligent or reckless:
***
(b) in the employment of improper persons or
instrumentalities in work involving risk of harm to
others;
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent
or other tortious conduct by persons, whether or not his
servants or agents, upon premises or with
instrumentalities under his control." Restatement
(Second) of Agency 213 (1958).

A plain reading of this section reveals no requirement that a
plaintiff allege physical injury, and we hold that complaints
stating a cause of action for negligent or reckless hiring,
supervision and retention need not allege physical injury. As
such, we find that the trial court erred in dismissing counts V
through VIII.
Defendants express concern that this holding will result in a
"chilling effect" on free speech as media companies will be
discouraged from hiring controversial broadcasters. We disagree.
The issue before us is whether a complaint alleging negligent
and/or reckless hiring, supervision, and retention can withstand a
legal challenge under section 2-615 of the Illinois Code of Civil
Procedure where the complaint does not allege physical injury. As
noted above, we find that there is no requirement that physical
injury be alleged. Without expressing an opinion about defendants'
ultimate liability in the present case, we note that the intent of
this holding is not to discourage companies from hiring
controversial broadcasters; rather, the intent is to protect
innocent persons from defamatory remarks.
Defendants also express concern over the burden placed on the
communications industry by our holding. Specifically, defendants
argue that this holding could impose liability on employers for not
accurately predicting what a broadcaster might say on the air. We
do not consider a review of a prospective employee's past to
determine his or her fitness for a job as a broadcaster to be
unduly burdensome.
For the above-stated reasons, we reverse the judgment of the
circuit court of Cook County and remand for further proceedings not
inconsistent with the views contained herein.
Reversed and remanded.
THEIS and ZWICK, JJ., concur.