Snitowsky v. NBC Subsidiary (WMAQ-TV), Inc.
Annotate this Case
SECOND DIVISION
June 9, 1998
No. 1-97-3638
ROSALYN SNITOWSKY ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
)
NBC SUBSIDIARY (WMAQ-TV), INC., d/b/a )
NBC FIVE, )
)
Defendant-Appellee )
)
(Marjorie Adams, ) Honorable
) Joseph N. Casciato,
Defendant). ) Judge Presiding
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
WMAQ-TV broadcast a report that Marjorie Adams, the principal
of Nettelhorst School, had charged Rosalyn Snitowsky, a special
education teacher, with serious misconduct. Snitowsky sued Adams
and WMAQ for defamation and invasion of privacy. The trial court
dismissed the counts against WMAQ for failure to state a cause of
action and because several privileges protected the reports.
Snitowsky appeals.
On December 19, 1996, WMAQ-TV's 10 p.m. news broadcast included
this report:
"Ron Magers: The alleged victim was only eight years
old -- allegedly beaten by fellow students at the
direction of the teacher. ***
Robin George: Ron, the incident happened in a
special education class here at Nettelhorst School. The
teacher was apparently trying to discipline an eight-year-
old student when, some believe, she went too far.
According to a police report, the teacher brought the
child to the front of the room and held him down. She
then told other kids in the classroom to come up one at a
time and beat the child. A school security guard spotted
what was happening as a fourth student was beating the
victim and broke it all up. It was the school principal
who filed the report with the Chicago Police Department.
Now, the eight-year-old student we are told was not
seriously injured. *** This is apparently not the first
problem that they've had with the teacher. Just a month
ago there was a meeting here with other concerned parents
about this teacher."
The next morning, on its 6:30 a.m. newscast, WMAQ's anchor
reported:
"A case of school discipline is under investigation
by the Chicago Police Department. A teacher at the
Nettelhorst School on North Broadway is accused of holding
an eight-year-old special education student and then
telling other kids to come up one at a time and hit that
child in the face. A school security guard spotted what
was happening and broke it up. It was the school
principal who filed the report with the Chicago Police
Department."
The 5 p.m. broadcast the same day included news of the
"investigation of a report that a teacher allowed pupils to beat a
special education child." Tracy Haynes elaborated:
"[N]o charges have been filed, and police say it's
not likely that any will be. But the Board of Education
is investigating, and parents are asking questions of
their own.
* * *
The actual allegations are that the special education
teacher Rosalyn Snitowsky held eight-year-old student
Miguel Frias and instructed four other students to hit the
boy. Snitowsky would not go on camera today, saying she
can't do so until her teachers' union allows her to. But
she did tell us quote, 'That there was a couple of kids
that punched him,' and, 'I held his hands.' She says
that's what happened when he became disruptive. But
Snitowsky does say that she restrained the boy while
trying to break up a fight, and there are those who feel
good about Snitowsky's work.
***
But today the Chicago Board of Education relieved
Snitowsky of her classroom duty.
Blondean Davis [from the Chicago Board of Education]:
We have reassigned her to the central office pending the
results of the investigation. If the allegations are
correct, then we intend to seek to terminate her from the
service of the system.
Haynes: Rosalyn Snitowsky has worked for Chicago
public schools since 1978 and has no record of complaints
against her. Chicago police say they've found no evidence
of criminal wrongdoing in their investigation."
Finally, at 10 p.m. that day, WMAQ anchor Carol Marin reported:
"Parents react tonight to reports of alleged abuse at
a Northside elementary school, and the Board of Education
is beginning its investigation. Students at Nettelhorst
Elementary were reportedly allowed to hit an eight-year-
old special education student while the teacher allegedly
held him down. Parents are shocked.
Michelle Williams: That really upsets me, and I
would really think about taking my daughter out.
Marin: The teacher, Rosalyn Snitowsky, tells NBC-5
that she did restrain a boy while trying to break up a
fight. Snitowsky said quote, 'There was a couple of kids
that punched him.' 'I held his hands...' (when he became
disruptive). The Board has reassigned Snitowsky pending
the investigation."
According to Snitowsky's complaint, on December 19, 1996,
Frias, an eight-year-old student in Snitowsky's class, tried to push
a desk into the table where Snitowsky sat, then he punched another
student. Snitowsky called Adams' office and asked for a security
officer. Snitowsky heard no page of the security officer, and the
officer did not come to the classroom.
Frias kicked Snitowsky and tried to bite her. Other students
began to attack Frias. Snitowsky attempted to restrain Frias and
protect him from the others. Snitowsky filed a discipline form
regarding the incident. Adams interviewed each student separately.
Adams asked to see Snitowsky after dismissing the students for
the day. Adams told Snitowsky the students said Snitowsky held
Frias down and told the other students to punch him. Snitowsky
denied the charge and began to recount the incident. Adams refused
to listen and told Snitowsky they would discuss it the next day.
Adams later called the police. The officer who took the call wrote
the following narrative of the accusation:
"[Adams] relates that the offender/special education
teacher physically held down the victim/student, and then
encouraged other students to strike the victim. [Adams]
interviewed all of the students in the class who stated
the same story as victim. All students in the class are
special ed students. Victim sustained a cut on his lip.
Victim transported home by mother before police arrived.
[Adams] has a list of all the students involved in
incident."
Snitowsky further alleged in her complaint that Adams spoke
with the media about the charges. No employee of WMAQ ever
attempted to contact Snitowsky or any security guard; Snitowsky
called WMAQ to protest the false reports.
On December 20, 1996, police officers interviewed all of the
students in Snitowsky's class, Snitowsky, Adams, and a security
guard. Adams did not see the incident. The guard said he did not
see anyone restrain, punch or kick Frias, as he did not come to the
classroom at the time of the alleged incident. All of the students
told police that Frias kicked Snitowsky, who restrained him, and at
least one student then hit Frias, giving him a bloody lip. All of
the students, including Frias, said Snitowsky told that student to
stop, and she never hit Frias or encouraged any students to hit him.
The officers wrote in the official report, dated December 20, 1996,
that they found "no elements of a crime" committed by Snitowsky, so
they classified the allegations against her as "UNFOUNDED."
Snitowsky alleged that in June 1996 she was a member of the
Nettelhorst School Local School Council. The council issued a
negative evaluation of Adams, particularly criticizing her
understanding of special education and her failure to meet legal
special education requirements. The council formally asked Adams to
resign. Adams did not resign. Instead she threatened to begin the
process to terminate Snitowsky's employment. Snitowsky no longer
held a position on the council by December 1996.
In count I Snitowsky sought compensation for defamation per se
by WMAQ, and in count VII she charged WMAQ with invasion of privacy.
WMAQ moved to dismiss the counts against it pursuant to sections 2-
615 and 2-619 of the Civil Practice Law. 735 ILCS 5/2-615, 5/2-619,
5/2-619.1 (West 1996).
The court held that the broadcasts "speak in terms of
allegations and ongoing investigations and are, therefore,
susceptible of innocent construction." Also the court found that
"as a past elected member" of the council Snitowsky was a public
figure, and she had failed to allege actual malice sufficiently. As
grounds for dismissing count VII, and as a third basis for
dismissing the first count, the court held that the fair report
privilege applied. The court dismissed the counts against WMAQ with
prejudice, further finding no just reason to delay enforcement or
appeal.
On appeal Snitowsky argues that all three bases for the court's
order must fail. If a statement supports an innocent construction
it cannot render its publisher liable for defamation per se, even if
the publisher fabricated the statement without any basis. Insofar
as a defendant relies on the accuracy of its report that someone
else made certain allegations, the innocent construction rule is
irrelevant. Under the innocent construction rule:
"a written or oral statement is to be considered in
context, with the words and the implications therefrom
given their natural and obvious meaning; if, as so
construed, the statement may reasonably be innocently
interpreted or reasonably be interpreted as referring to
someone other than the plaintiff it cannot be actionable
per se." Chapski v. Copley Press, 92 Ill. 2d 344, 352,
442 N.E.2d 195 (1982).
In the news broadcasts WMAQ told its audience that the
principal of Nettelhorst charged Snitowsky with directing her
students to beat Frias. The conduct charged amounts to criminal
offenses of aggravated battery and child abuse, and the conduct
charged is incompatible with Snitowsky's profession as a special
education teacher. The allegations are not so vague as to admit of
any interpretation compatible with Snitowsky's innocence. Compare
Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 47, 684 N.E.2d 935 (1997). Therefore the substance of the charge could be
defamation per se, actionable without proof of special damages. See
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 87-88,
672 N.E.2d 1207 (1996).
The trial court found an innocent construction because WMAQ
said only that the principal alleged Snitowsky so acted. "[T]he
repetition of an imputation made by a third person is actionable
although the defamer attributes the charge to [a] third person."
Restatement (Second) of Torts 571, Comment c, at 187 (1977); see
Lorillard v. Field Enterprises, Inc., 65 Ill. App. 2d 65, 73, 213 N.E.2d 1 (1965).
In Owens v. CBS, Inc., 173 Ill. App. 3d 977, 996, 527 N.E.2d 1296 (1988), CBS broadcast a report that a third party alleged that
the plaintiff wrote a letter threatening to kill the President. CBS
argued that the innocent construction rule protected it because it
presented the charges as allegations. The court held:
"[T]he gravamen of plaintiff's cause of action against CBS
is that it should be held liable because it republished a
defamatory statement ***. ***[W]e fail to see how the
statements *** repeated by defendant CBS on its 6 and 10
p.m. news broadcasts could reasonably be innocently
interpreted." CBS, 173 Ill. App. 3d at 990-91.
See also Bryson, 174 Ill. 2d at 97 (labeling account as "fiction"
not sufficient to give article innocent construction as
fabrication).
Owen v. Carr, 113 Ill. 2d 273, 497 N.E.2d 1145 (1986), presents
an important qualification to the rule which renders a republisher
liable for the original defamation despite referring to the charges
of misconduct as allegations. In that case Owen, an attorney, had
sued a judge, who was Carr's client. Carr then sued Owen. A
newspaper reported that Carr charged Owen with abuse of process by
suing the judge for the purpose of intimidation. Carr, 113 Ill. 2d
at 276. The newspaper article suggested that both parties "had
ulterior motives" for the lawsuits they filed. Carr, 113 Ill. 2d at
279. The court held that the "article and words within it can
reasonably be construed as an attorney's biased presentation of his
client's view of a pending cause of action." Carr, 113 Ill. 2d at
280.
Thus the article in Carr gave readers enough background to
doubt the charges against Owen on the basis of the ulterior motives
of the person making the charges. Absent such explanation giving
the audience reason to doubt the charges, the general rule of the
Restatement and CBS should prevail. The republisher remains liable
for damages caused by the republication of defamatory material, even
with correct attribution to the party charging the misconduct, if
the republisher acted negligently and no other privileges protect
the publication.
Here, WMAQ reported that a school principal charged one of the
teachers who worked at her school with criminal misconduct. As the
school could conceivably incur liability for the teacher's
misconduct, the allegation may have seemed to the audience to be an
especially trustworthy admission against interest. WMAQ provided
none of the background needed for the audience to recognize any
reason to doubt the principal's accusations. In particular, WMAQ
made no reference to prior disagreements between the principal and
the teacher, or the teacher's membership on a school council which
requested the principal's resignation.
WMAQ points out that it reported, "Chicago police say they've
found no evidence of criminal wrongdoing in their investigation."
In the same broadcast WMAQ reported as admitted fact that Snitowsky
held Frias' hands while other students hit him. In this context,
the broadcast leads the audience to conclude either that the
criminal law permits this conduct, and only the school board might
find it objectionable, or the police conducted a woefully inadequate
investigation. The report, in context, does not present grounds for
doubting Adams' motives for the initial allegations, as it omitted
any account of the prior disagreements between Adams and Snitowsky.
Due to the omissions, the allegations reported fall under the
general rule of CBS and not the special exception of Carr. The
allegations reported charge criminal misconduct inconsistent with
Snitowsky's professional competence, and without further context the
audience has no basis to arrive at the innocent construction that
the person charging has ulterior motives for making possibly untrue
charges. See Berkos v. National Broadcasting Co., 161 Ill. App. 3d
476, 486-88, 515 N.E.2d 668 (1987). That is, if WMAQ had wholly
fabricated the reports without any statement from Adams or any other
factual basis, the reports imply that Snitowsky engaged in criminal
misconduct with sufficient clarity to leave WMAQ potentially liable
without proof of special damages. The innocent construction rule
does not exempt WMAQ from liability for the defamation per se
alleged here.
Next, the court found Snitowsky to be a public figure who must
plead and prove actual malice to recover for defamation. We agree
with WMAQ that the first amendment to the United States
Constitution, rather than state law, controls the determination of
whether a plaintiff is a public figure for purposes of defamation.
See Rosenblatt v. Baer, 383 U.S. 75, 84, 15 L. Ed. 2d 597, 604, 86 S. Ct. 669, 675 (1966). WMAQ cites Gray v. Udevitz, 656 F.2d 588,
590-91 (10th Cir. 1981), in which the court held that, for the
plaintiff to count as a public figure for a defamation suit:
"Two prerequisites must be met ***. The plaintiff
must be a public official for the purposes of the article
and the defamatory statements must relate to his official
conduct."
WMAQ's report made no reference to Snitowsky's membership on
the school council, and the allegedly defamatory statements do not
refer in any way to her conduct in office. Accordingly, Snitowsky's
former status as an elected official does not make her a public
figure for this lawsuit.
WMAQ argues that Snitowsky made herself a public figure for
this suit because she alleged in her complaint that Adams made the
defamatory charges in retaliation for acts Snitowsky took when she
was a member of the council. As the court held in Street v.
National Broadcasting Co., 645 F.2d 1227, 1235 (6th Cir. 1981):
"[O]nce a person becomes a public figure in connection
with a particular controversy, that person remains a
public figure thereafter for purposes of later commentary
or treatment of that controversy."
Snitowsky's acts on the council made her a public figure in
connection with the council's criticisms of Adams and the request
for her resignation. WMAQ in its story made no comment on or
reference to that controversy. Instead, it reported an allegation
without making any reference to the possible motivation arising from
the earlier controversy. Since WMAQ did not comment on the
controversy for which Snitowsky made herself a public figure, her
status as a former elected official does not make her a public
figure for this suit.
One Illinois court held that school teachers generally count as
public figures for defamation suits. Basarich v. Rodeghero, 24 Ill.
App. 3d 889, 321 N.E.2d 739 (1974). Later decisions have renounced
that holding. McCutcheon v. Moran, 99 Ill. App. 3d 421, 423-24, 425 N.E.2d 1130 (1981); Kumaran v. Brotman, 247 Ill. App. 3d 216, 229,
617 N.E.2d 191 (1993). We agree with the reasoning of the court in
Franklin v. Lodge No. 1108, Benevolent & Protective Order of Elks,
97 Cal. App. 3d 915, 924, 159 Cal. Rptr. 131, 136 (1979), which held
that the protection for comments on public officials derives from
"the concept of a freedom of the governed to question the
governor, of those who are influenced by the operation of
government to criticize those who control the conduct of
government. The governance or control which a public
classroom teacher might be said to exercise over the
conduct of government is at most remote and philosophical:
Far too much so, in our view, to justify exposing each
public classroom teacher to a qualifiedly privileged
assault upon his or her reputation. *** We are unwilling
to hold that a school teacher must be deemed to have
assumed the risk of nonmalicious defamation. We perceive
in such a rule a real and intolerable danger to the
freedom of intellect and of expression which the teacher
must have to teach effectively." (Emphasis omitted.)
Snitowsky's work as a teacher does not make her a public figure
for this defamation suit. To recover she must prove that WMAQ acted
negligently, but she need not prove actual malice. Kumaran, 247
Ill. App. 3d at 230.
The trial court also dismissed the complaint based on the fair
report privilege, finding that WMAQ presented a fair account of the
public proceedings reflected in the written report police made of
Adams' phone call. For this privilege, Illinois courts have adopted
section 611 of the Restatement (Second) of Torts (see Gist v. Macon
County Sheriff's Department, 284 Ill. App. 3d 367, 376-78, 671 N.E.2d 1154 (1996); O'Donnell v. Field Enterprises, Inc., 145 Ill.
App. 3d 1032, 1035, 491 N.E.2d 1212, 1215 (1986)), which provides:
"The publication of defamatory matter concerning
another in a report of an official action or proceeding or
of a meeting open to the public that deals with a matter
of public concern is privileged if the report is accurate
and complete or a fair abridgment of the occurrence
reported." Restatement (Second) of Torts 611 (1977).
The privilege applies to a news report of an "official action
or proceeding" or of a public meeting; WMAQ does not argue that a
public meeting took place here. We note that in general charges
made to the police are not rendered official acts by the officer's
act of recording the charge. See Restatement (Second) of Torts
611, Comment h (1977); Pittsburgh Courier Pub. Co. v. Lubore, 200 F.2d 355 (D.C. Cir. 1952). If the fair report privilege applies at
all, it applies only because Adams is a public official and her
statement to the police an official act. But we need not decide
whether the report qualifies as an official act, because the record
before us does not establish sufficient facts to show that WMAQ
broadcast a fair report. "[W]hen a news media account is neither
complete nor a fair abridgment of the proceedings, then the
privilege is lost." O'Donnell, 145 Ill. App. 3d at 1036.
In Tunney v. American Broadcasting Co., 109 Ill. App. 3d 769,
441 N.E.2d 86 (1982), several homeowners complained to their village
about homes they bought from the plaintiff. The village inspector
checked the complaints and filed a public report finding water leaks
and one broken driveway. The inspector, in a discussion with the
reporter, called the work done on the houses "shoddy." Tunney, 109
Ill. App. 3d at 773. The defendant broadcast a report detailing the
inspector's report and the plaintiff's rejoinder that acts of God,
rather than faulty construction, caused the problems. The report
continued:
"But sinking driveways, leaking roofs and similar
complaints are obviously the result of poor construction."
(Emphasis omitted.) Tunney, 109 Ill. App. 3d at 771.
The inspector in his report and discussion with the reporter never
said faulty construction caused the cracks or leaks, and he did not
point to the leaks or cracks to show that the work was shoddy.
The court held that the defendant abandoned the fair report
privilege by going beyond the official's statements to find evidence
supporting the charge of shoddy work. The court reversed summary
judgment for the defendant.
Here, too, as the record now stands, the fair report privilege
may not protect WMAQ, because WMAQ did not abridge the statements
made to police; instead it reported evidence not found in the
report. WMAQ reported that a security guard witnessed the beating,
although the police report on which WMAQ claims it relied makes no
mention of such an eyewitness. Neither does the police report
include any statement supportive of the broadcast news that
Snitowsky told her pupils to come up one at a time and hit Frias in
the face. By announcing facts beyond the official report to make
the charges more credible, WMAQ abandoned the fair report privilege.
WMAQ argues that the fair report privilege protects it, because
the "gist or sting" of the broadcast matched the police report. See
Dolatowski v. Life Printing & Publishing Co., 197 Ill. App. 3d 23,
27, 554 N.E.2d 692 (1990). The extension of the privilege to
publications with the same gist as official reports applies only to
fair abridgements of those reports. Dolatowski, 197 Ill. App. 3d at
27; O'Donnell, 145 Ill. App. 3d at 1037-38. The privilege does not
permit the expansion of the official report by the addition of
fabricated evidence designed to improve the credibility of the
defamation. Since WMAQ has not presented any source for many
statements in its broadcast, especially for the eyewitness security
guard or the demand that students come up one at a time to strike
Frias in the face, the broadcasts cannot qualify as a fair
abridgement of Adams' report to the police.
WMAQ also claims in its brief that it fairly reported
statements Adams made to WMAQ reporters. No evidence in the record
supports this assertion. Adams has filed a sworn response to the
complaint in which she categorically denies that she had any
discussions with reporters about the charges. WMAQ says it relied
on statements of Blondean Davis, but she too denied that she made
statements supporting the details added to the broadcast report.
At oral argument in this court, WMAQ raised for the first time
an argument for a fair report privilege based on Snitowsky's
original, unverified complaint. In that complaint Snitowsky
alleged, as grounds for a cause of action against Davis, that Davis
told WMAQ reporters the falsities WMAQ broadcast. Davis swore she
never made those false statements. Snitowsky did not repeat the
allegation in her amended complaint.
Amended pleadings ordinarily supersede prior pleadings. Yarc
v. American Hospital Supply Corp., 17 Ill. App. 3d 667, 670, 307 N.E.2d 749 (1974). The admissions of a party in an unverified
original pleading may be used at trial as evidence of the matter
admitted, but they are not binding judicial admissions. Yarc, 17
Ill. App. 3d at 670. Here the statements in the unverified original
pleading meet Davis' sworn denial to create an issue of fact as to
whether Davis, in her official capacity, made statements that WMAQ
accurately summarized in its broadcast report. WMAQ can at best
create an issue of fact concerning the fair report privilege. The
trial court erred by granting judgment on this basis. For the fair
report privilege to protect WMAQ, WMAQ will need to persuade the
trier of fact that its broadcast reports fairly abridged official
acts or proceedings.
Finally, Snitowsky argues that this court should reverse the
dismissal of the count of her complaint charging WMAQ with invasion
of privacy. To establish this cause of action, Snitowsky must prove
that the news reports placed her before the public (1) in a false
light (2) which would be highly offensive to a reasonable person,
and (3) WMAQ had "knowledge that the statements were false or
[acted] with reckless disregard for whether the statements were true
or false." Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 17-
18, 607 N.E.2d 201 (1992).
The broadcast presented Snitowsky as a teacher who encouraged
her students to beat another student. The complaint adequately
alleges the placement in an offensively false light. WMAQ contends
that Snitowsky has not alleged facts that could prove it recklessly
disregarded the falsity of its broadcast. She alleged that WMAQ
reporters made no attempt to contact her or the security guard.
After she contacted WMAQ, the station deliberately distorted her
statements to make them appear to support the false charges raised
against her, although the police investigation showed that all
witnesses, including the supposed victim, agreed that Snitowsky had
not committed the alleged misconduct.
The sole source for the report WMAQ has presented is a
statement Adams made to the police. That statement mentions no
security guard although WMAQ reported that a security guard
witnessed the beating. The report says nothing about instructing
the children to come to the front of the room one at a time to hit
Frias in the face. Courts have found actual malice when the only
source for a story does not contain statements supposedly derived
from it. Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1071 (5th
Cir. 1987).
In Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976), the
defendant claimed it derived its allegedly defamatory publication
from a prior article about the plaintiff. The author admitted that
he did not derive all of the publication from the prior article, as
some statements he took from information he found "[s]omewhere in
the research file." Carson, 529 F.2d at 212. The court held:
"Nothing in the present record, which consists of the
pleadings, depositions and affidavits, lends any support
whatsoever, or even relates to, the published [defamatory]
statements ***. At this stage of the proceedings, it can
only be concluded that those statements are a sheer
fabrication by the defendants ***.
* * *
We believe that the district court could only find on
the basis of pretrial affidavits, depositions and other
documentary evidence that the plaintiffs will be able to
prove actual malice and that they should therefore be
given the opportunity to do so. The defendants in
fabricating and imagining 'facts' necessarily entertained
serious doubts as to the truth of the statements and had
a high degree of awareness of their probable falsity."
Carson, 529 F.2d at 212-13.
On the state of the pleadings here, too, with no source shown
for many statements in the broadcast, we must assume WMAQ fabricated
this evidence of misconduct. Accordingly, we find that Snitowsky
has adequately pled facts that could support a finding that WMAQ
acted with actual malice, recklessly disregarding the falsity of its
report.
The innocent construction rule does not protect WMAQ's report
of defamatory allegations because WMAQ reported no reason to
disbelieve the source of the allegations. WMAQ also did not connect
the report to Snitowsky's former status as a public official, so the
special protection for reports concerning public figures does not
apply. The fair report privilege also does not apply because the
report broadcast presented evidence not included in the report. The
facts alleged could support a finding that WMAQ invaded Snitowsky's
privacy by placing her in a false light, especially in light of
their response to her call and the result of the police
investigation. To establish her claims, Snitowsky will need to
prove only that WMAQ and its reporters acted negligently when they
broadcast the defamatory statements WMAQ either originated or
republished on December 19 and 20, 1996. Accordingly, we reverse
the judgment entered in favor of WMAQ on the counts charging
defamation per se and invasion of privacy.
Reversed and remanded.
RAKOWSKI and COUSINS, JJ., concur.
June 9, 1998
No. 1-97-3638
ROSALYN SNITOWSKY ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
)
NBC SUBSIDIARY (WMAQ-TV), INC., d/b/a )
NBC FIVE, )
)
Defendant-Appellee )
)
(Marjorie Adams, ) Honorable
) Joseph N. Casciato,
Defendant). ) Judge Presiding
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
WMAQ-TV broadcast a report that Marjorie Adams, the principal
of Nettelhorst School, had charged Rosalyn Snitowsky, a special
education teacher, with serious misconduct. Snitowsky sued Adams
and WMAQ for defamation and invasion of privacy. The trial court
dismissed the counts against WMAQ for failure to state a cause of
action and because several privileges protected the reports.
Snitowsky appeals.
On December 19, 1996, WMAQ-TV's 10 p.m. news broadcast included
this report:
"Ron Magers: The alleged victim was only eight years
old -- allegedly beaten by fellow students at the
direction of the teacher. ***
Robin George: Ron, the incident happened in a
special education class here at Nettelhorst School. The
teacher was apparently trying to discipline an eight-year-
old student when, some believe, she went too far.
According to a police report, the teacher brought the
child to the front of the room and held him down. She
then told other kids in the classroom to come up one at a
time and beat the child. A school security guard spotted
what was happening as a fourth student was beating the
victim and broke it all up. It was the school principal
who filed the report with the Chicago Police Department.
Now, the eight-year-old student we are told was not
seriously injured. *** This is apparently not the first
problem that they've had with the teacher. Just a month
ago there was a meeting here with other concerned parents
about this teacher."
The next morning, on its 6:30 a.m. newscast, WMAQ's anchor
reported:
"A case of school discipline is under investigation
by the Chicago Police Department. A teacher at the
Nettelhorst School on North Broadway is accused of holding
an eight-year-old special education student and then
telling other kids to come up one at a time and hit that
child in the face. A school security guard spotted what
was happening and broke it up. It was the school
principal who filed the report with the Chicago Police
Department."
The 5 p.m. broadcast the same day included news of the
"investigation of a report that a teacher allowed pupils to beat a
special education child." Tracy Haynes elaborated:
"[N]o charges have been filed, and police say it's
not likely that any will be. But the Board of Education
is investigating, and parents are asking questions of
their own.
* * *
The actual allegations are that the special education
teacher Rosalyn Snitowsky held eight-year-old student
Miguel Frias and instructed four other students to hit the
boy. Snitowsky would not go on camera today, saying she
can't do so until her teachers' union allows her to. But
she did tell us quote, 'That there was a couple of kids
that punched him,' and, 'I held his hands.' She says
that's what happened when he became disruptive. But
Snitowsky does say that she restrained the boy while
trying to break up a fight, and there are those who feel
good about Snitowsky's work.
***
But today the Chicago Board of Education relieved
Snitowsky of her classroom duty.
Blondean Davis [from the Chicago Board of Education]:
We have reassigned her to the central office pending the
results of the investigation. If the allegations are
correct, then we intend to seek to terminate her from the
service of the system.
Haynes: Rosalyn Snitowsky has worked for Chicago
public schools since 1978 and has no record of complaints
against her. Chicago police say they've found no evidence
of criminal wrongdoing in their investigation."
Finally, at 10 p.m. that day, WMAQ anchor Carol Marin reported:
"Parents react tonight to reports of alleged abuse at
a Northside elementary school, and the Board of Education
is beginning its investigation. Students at Nettelhorst
Elementary were reportedly allowed to hit an eight-year-
old special education student while the teacher allegedly
held him down. Parents are shocked.
Michelle Williams: That really upsets me, and I
would really think about taking my daughter out.
Marin: The teacher, Rosalyn Snitowsky, tells NBC-5
that she did restrain a boy while trying to break up a
fight. Snitowsky said quote, 'There was a couple of kids
that punched him.' 'I held his hands...' (when he became
disruptive). The Board has reassigned Snitowsky pending
the investigation."
According to Snitowsky's complaint, on December 19, 1996,
Frias, an eight-year-old student in Snitowsky's class, tried to push
a desk into the table where Snitowsky sat, then he punched another
student. Snitowsky called Adams' office and asked for a security
officer. Snitowsky heard no page of the security officer, and the
officer did not come to the classroom.
Frias kicked Snitowsky and tried to bite her. Other students
began to attack Frias. Snitowsky attempted to restrain Frias and
protect him from the others. Snitowsky filed a discipline form
regarding the incident. Adams interviewed each student separately.
Adams asked to see Snitowsky after dismissing the students for
the day. Adams told Snitowsky the students said Snitowsky held
Frias down and told the other students to punch him. Snitowsky
denied the charge and began to recount the incident. Adams refused
to listen and told Snitowsky they would discuss it the next day.
Adams later called the police. The officer who took the call wrote
the following narrative of the accusation:
"[Adams] relates that the offender/special education
teacher physically held down the victim/student, and then
encouraged other students to strike the victim. [Adams]
interviewed all of the students in the class who stated
the same story as victim. All students in the class are
special ed students. Victim sustained a cut on his lip.
Victim transported home by mother before police arrived.
[Adams] has a list of all the students involved in
incident."
Snitowsky further alleged in her complaint that Adams spoke
with the media about the charges. No employee of WMAQ ever
attempted to contact Snitowsky or any security guard; Snitowsky
called WMAQ to protest the false reports.
On December 20, 1996, police officers interviewed all of the
students in Snitowsky's class, Snitowsky, Adams, and a security
guard. Adams did not see the incident. The guard said he did not
see anyone restrain, punch or kick Frias, as he did not come to the
classroom at the time of the alleged incident. All of the students
told police that Frias kicked Snitowsky, who restrained him, and at
least one student then hit Frias, giving him a bloody lip. All of
the students, including Frias, said Snitowsky told that student to
stop, and she never hit Frias or encouraged any students to hit him.
The officers wrote in the official report, dated December 20, 1996,
that they found "no elements of a crime" committed by Snitowsky, so
they classified the allegations against her as "UNFOUNDED."
Snitowsky alleged that in June 1996 she was a member of the
Nettelhorst School Local School Council. The council issued a
negative evaluation of Adams, particularly criticizing her
understanding of special education and her failure to meet legal
special education requirements. The council formally asked Adams to
resign. Adams did not resign. Instead she threatened to begin the
process to terminate Snitowsky's employment. Snitowsky no longer
held a position on the council by December 1996.
In count I Snitowsky sought compensation for defamation per se
by WMAQ, and in count VII she charged WMAQ with invasion of privacy.
WMAQ moved to dismiss the counts against it pursuant to sections 2-
615 and 2-619 of the Civil Practice Law. 735 ILCS 5/2-615, 5/2-619,
5/2-619.1 (West 1996).
The court held that the broadcasts "speak in terms of
allegations and ongoing investigations and are, therefore,
susceptible of innocent construction." Also the court found that
"as a past elected member" of the council Snitowsky was a public
figure, and she had failed to allege actual malice sufficiently. As
grounds for dismissing count VII, and as a third basis for
dismissing the first count, the court held that the fair report
privilege applied. The court dismissed the counts against WMAQ with
prejudice, further finding no just reason to delay enforcement or
appeal.
On appeal Snitowsky argues that all three bases for the court's
order must fail. If a statement supports an innocent construction
it cannot render its publisher liable for defamation per se, even if
the publisher fabricated the statement without any basis. Insofar
as a defendant relies on the accuracy of its report that someone
else made certain allegations, the innocent construction rule is
irrelevant. Under the innocent construction rule:
"a written or oral statement is to be considered in
context, with the words and the implications therefrom
given their natural and obvious meaning; if, as so
construed, the statement may reasonably be innocently
interpreted or reasonably be interpreted as referring to
someone other than the plaintiff it cannot be actionable
per se." Chapski v. Copley Press, 92 Ill. 2d 344, 352,
442 N.E.2d 195 (1982).
In the news broadcasts WMAQ told its audience that the
principal of Nettelhorst charged Snitowsky with directing her
students to beat Frias. The conduct charged amounts to criminal
offenses of aggravated battery and child abuse, and the conduct
charged is incompatible with Snitowsky's profession as a special
education teacher. The allegations are not so vague as to admit of
any interpretation compatible with Snitowsky's innocence. Compare
Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 47, 684 N.E.2d 935 (1997). Therefore the substance of the charge could be
defamation per se, actionable without proof of special damages. See
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 87-88,
672 N.E.2d 1207 (1996).
The trial court found an innocent construction because WMAQ
said only that the principal alleged Snitowsky so acted. "[T]he
repetition of an imputation made by a third person is actionable
although the defamer attributes the charge to [a] third person."
Restatement (Second) of Torts 571, Comment c, at 187 (1977); see
Lorillard v. Field Enterprises, Inc., 65 Ill. App. 2d 65, 73, 213 N.E.2d 1 (1965).
In Owens v. CBS, Inc., 173 Ill. App. 3d 977, 996, 527 N.E.2d 1296 (1988), CBS broadcast a report that a third party alleged that
the plaintiff wrote a letter threatening to kill the President. CBS
argued that the innocent construction rule protected it because it
presented the charges as allegations. The court held:
"[T]he gravamen of plaintiff's cause of action against CBS
is that it should be held liable because it republished a
defamatory statement ***. ***[W]e fail to see how the
statements *** repeated by defendant CBS on its 6 and 10
p.m. news broadcasts could reasonably be innocently
interpreted." CBS, 173 Ill. App. 3d at 990-91.
See also Bryson, 174 Ill. 2d at 97 (labeling account as "fiction"
not sufficient to give article innocent construction as
fabrication).
Owen v. Carr, 113 Ill. 2d 273, 497 N.E.2d 1145 (1986), presents
an important qualification to the rule which renders a republisher
liable for the original defamation despite referring to the charges
of misconduct as allegations. In that case Owen, an attorney, had
sued a judge, who was Carr's client. Carr then sued Owen. A
newspaper reported that Carr charged Owen with abuse of process by
suing the judge for the purpose of intimidation. Carr, 113 Ill. 2d
at 276. The newspaper article suggested that both parties "had
ulterior motives" for the lawsuits they filed. Carr, 113 Ill. 2d at
279. The court held that the "article and words within it can
reasonably be construed as an attorney's biased presentation of his
client's view of a pending cause of action." Carr, 113 Ill. 2d at
280.
Thus the article in Carr gave readers enough background to
doubt the charges against Owen on the basis of the ulterior motives
of the person making the charges. Absent such explanation giving
the audience reason to doubt the charges, the general rule of the
Restatement and CBS should prevail. The republisher remains liable
for damages caused by the republication of defamatory material, even
with correct attribution to the party charging the misconduct, if
the republisher acted negligently and no other privileges protect
the publication.
Here, WMAQ reported that a school principal charged one of the
teachers who worked at her school with criminal misconduct. As the
school could conceivably incur liability for the teacher's
misconduct, the allegation may have seemed to the audience to be an
especially trustworthy admission against interest. WMAQ provided
none of the background needed for the audience to recognize any
reason to doubt the principal's accusations. In particular, WMAQ
made no reference to prior disagreements between the principal and
the teacher, or the teacher's membership on a school council which
requested the principal's resignation.
WMAQ points out that it reported, "Chicago police say they've
found no evidence of criminal wrongdoing in their investigation."
In the same broadcast WMAQ reported as admitted fact that Snitowsky
held Frias' hands while other students hit him. In this context,
the broadcast leads the audience to conclude either that the
criminal law permits this conduct, and only the school board might
find it objectionable, or the police conducted a woefully inadequate
investigation. The report, in context, does not present grounds for
doubting Adams' motives for the initial allegations, as it omitted
any account of the prior disagreements between Adams and Snitowsky.
Due to the omissions, the allegations reported fall under the
general rule of CBS and not the special exception of Carr. The
allegations reported charge criminal misconduct inconsistent with
Snitowsky's professional competence, and without further context the
audience has no basis to arrive at the innocent construction that
the person charging has ulterior motives for making possibly untrue
charges. See Berkos v. National Broadcasting Co., 161 Ill. App. 3d
476, 486-88, 515 N.E.2d 668 (1987). That is, if WMAQ had wholly
fabricated the reports without any statement from Adams or any other
factual basis, the reports imply that Snitowsky engaged in criminal
misconduct with sufficient clarity to leave WMAQ potentially liable
without proof of special damages. The innocent construction rule
does not exempt WMAQ from liability for the defamation per se
alleged here.
Next, the court found Snitowsky to be a public figure who must
plead and prove actual malice to recover for defamation. We agree
with WMAQ that the first amendment to the United States
Constitution, rather than state law, controls the determination of
whether a plaintiff is a public figure for purposes of defamation.
See Rosenblatt v. Baer, 383 U.S. 75, 84, 15 L. Ed. 2d 597, 604, 86 S. Ct. 669, 675 (1966). WMAQ cites Gray v. Udevitz, 656 F.2d 588,
590-91 (10th Cir. 1981), in which the court held that, for the
plaintiff to count as a public figure for a defamation suit:
"Two prerequisites must be met ***. The plaintiff
must be a public official for the purposes of the article
and the defamatory statements must relate to his official
conduct."
WMAQ's report made no reference to Snitowsky's membership on
the school council, and the allegedly defamatory statements do not
refer in any way to her conduct in office. Accordingly, Snitowsky's
former status as an elected official does not make her a public
figure for this lawsuit.
WMAQ argues that Snitowsky made herself a public figure for
this suit because she alleged in her complaint that Adams made the
defamatory charges in retaliation for acts Snitowsky took when she
was a member of the council. As the court held in Street v.
National Broadcasting Co., 645 F.2d 1227, 1235 (6th Cir. 1981):
"[O]nce a person becomes a public figure in connection
with a particular controversy, that person remains a
public figure thereafter for purposes of later commentary
or treatment of that controversy."
Snitowsky's acts on the council made her a public figure in
connection with the council's criticisms of Adams and the request
for her resignation. WMAQ in its story made no comment on or
reference to that controversy. Instead, it reported an allegation
without making any reference to the possible motivation arising from
the earlier controversy. Since WMAQ did not comment on the
controversy for which Snitowsky made herself a public figure, her
status as a former elected official does not make her a public
figure for this suit.
One Illinois court held that school teachers generally count as
public figures for defamation suits. Basarich v. Rodeghero, 24 Ill.
App. 3d 889, 321 N.E.2d 739 (1974). Later decisions have renounced
that holding. McCutcheon v. Moran, 99 Ill. App. 3d 421, 423-24, 425 N.E.2d 1130 (1981); Kumaran v. Brotman, 247 Ill. App. 3d 216, 229,
617 N.E.2d 191 (1993). We agree with the reasoning of the court in
Franklin v. Lodge No. 1108, Benevolent & Protective Order of Elks,
97 Cal. App. 3d 915, 924, 159 Cal. Rptr. 131, 136 (1979), which held
that the protection for comments on public officials derives from
"the concept of a freedom of the governed to question the
governor, of those who are influenced by the operation of
government to criticize those who control the conduct of
government. The governance or control which a public
classroom teacher might be said to exercise over the
conduct of government is at most remote and philosophical:
Far too much so, in our view, to justify exposing each
public classroom teacher to a qualifiedly privileged
assault upon his or her reputation. *** We are unwilling
to hold that a school teacher must be deemed to have
assumed the risk of nonmalicious defamation. We perceive
in such a rule a real and intolerable danger to the
freedom of intellect and of expression which the teacher
must have to teach effectively." (Emphasis omitted.)
Snitowsky's work as a teacher does not make her a public figure
for this defamation suit. To recover she must prove that WMAQ acted
negligently, but she need not prove actual malice. Kumaran, 247
Ill. App. 3d at 230.
The trial court also dismissed the complaint based on the fair
report privilege, finding that WMAQ presented a fair account of the
public proceedings reflected in the written report police made of
Adams' phone call. For this privilege, Illinois courts have adopted
section 611 of the Restatement (Second) of Torts (see Gist v. Macon
County Sheriff's Department, 284 Ill. App. 3d 367, 376-78, 671 N.E.2d 1154 (1996); O'Donnell v. Field Enterprises, Inc., 145 Ill.
App. 3d 1032, 1035, 491 N.E.2d 1212, 1215 (1986)), which provides:
"The publication of defamatory matter concerning
another in a report of an official action or proceeding or
of a meeting open to the public that deals with a matter
of public concern is privileged if the report is accurate
and complete or a fair abridgment of the occurrence
reported." Restatement (Second) of Torts 611 (1977).
The privilege applies to a news report of an "official action
or proceeding" or of a public meeting; WMAQ does not argue that a
public meeting took place here. We note that in general charges
made to the police are not rendered official acts by the officer's
act of recording the charge. See Restatement (Second) of Torts
611, Comment h (1977); Pittsburgh Courier Pub. Co. v. Lubore, 200 F.2d 355 (D.C. Cir. 1952). If the fair report privilege applies at
all, it applies only because Adams is a public official and her
statement to the police an official act. But we need not decide
whether the report qualifies as an official act, because the record
before us does not establish sufficient facts to show that WMAQ
broadcast a fair report. "[W]hen a news media account is neither
complete nor a fair abridgment of the proceedings, then the
privilege is lost." O'Donnell, 145 Ill. App. 3d at 1036.
In Tunney v. American Broadcasting Co., 109 Ill. App. 3d 769,
441 N.E.2d 86 (1982), several homeowners complained to their village
about homes they bought from the plaintiff. The village inspector
checked the complaints and filed a public report finding water leaks
and one broken driveway. The inspector, in a discussion with the
reporter, called the work done on the houses "shoddy." Tunney, 109
Ill. App. 3d at 773. The defendant broadcast a report detailing the
inspector's report and the plaintiff's rejoinder that acts of God,
rather than faulty construction, caused the problems. The report
continued:
"But sinking driveways, leaking roofs and similar
complaints are obviously the result of poor construction."
(Emphasis omitted.) Tunney, 109 Ill. App. 3d at 771.
The inspector in his report and discussion with the reporter never
said faulty construction caused the cracks or leaks, and he did not
point to the leaks or cracks to show that the work was shoddy.
The court held that the defendant abandoned the fair report
privilege by going beyond the official's statements to find evidence
supporting the charge of shoddy work. The court reversed summary
judgment for the defendant.
Here, too, as the record now stands, the fair report privilege
may not protect WMAQ, because WMAQ did not abridge the statements
made to police; instead it reported evidence not found in the
report. WMAQ reported that a security guard witnessed the beating,
although the police report on which WMAQ claims it relied makes no
mention of such an eyewitness. Neither does the police report
include any statement supportive of the broadcast news that
Snitowsky told her pupils to come up one at a time and hit Frias in
the face. By announcing facts beyond the official report to make
the charges more credible, WMAQ abandoned the fair report privilege.
WMAQ argues that the fair report privilege protects it, because
the "gist or sting" of the broadcast matched the police report. See
Dolatowski v. Life Printing & Publishing Co., 197 Ill. App. 3d 23,
27, 554 N.E.2d 692 (1990). The extension of the privilege to
publications with the same gist as official reports applies only to
fair abridgements of those reports. Dolatowski, 197 Ill. App. 3d at
27; O'Donnell, 145 Ill. App. 3d at 1037-38. The privilege does not
permit the expansion of the official report by the addition of
fabricated evidence designed to improve the credibility of the
defamation. Since WMAQ has not presented any source for many
statements in its broadcast, especially for the eyewitness security
guard or the demand that students come up one at a time to strike
Frias in the face, the broadcasts cannot qualify as a fair
abridgement of Adams' report to the police.
WMAQ also claims in its brief that it fairly reported
statements Adams made to WMAQ reporters. No evidence in the record
supports this assertion. Adams has filed a sworn response to the
complaint in which she categorically denies that she had any
discussions with reporters about the charges. WMAQ says it relied
on statements of Blondean Davis, but she too denied that she made
statements supporting the details added to the broadcast report.
At oral argument in this court, WMAQ raised for the first time
an argument for a fair report privilege based on Snitowsky's
original, unverified complaint. In that complaint Snitowsky
alleged, as grounds for a cause of action against Davis, that Davis
told WMAQ reporters the falsities WMAQ broadcast. Davis swore she
never made those false statements. Snitowsky did not repeat the
allegation in her amended complaint.
Amended pleadings ordinarily supersede prior pleadings. Yarc
v. American Hospital Supply Corp., 17 Ill. App. 3d 667, 670, 307 N.E.2d 749 (1974). The admissions of a party in an unverified
original pleading may be used at trial as evidence of the matter
admitted, but they are not binding judicial admissions. Yarc, 17
Ill. App. 3d at 670. Here the statements in the unverified original
pleading meet Davis' sworn denial to create an issue of fact as to
whether Davis, in her official capacity, made statements that WMAQ
accurately summarized in its broadcast report. WMAQ can at best
create an issue of fact concerning the fair report privilege. The
trial court erred by granting judgment on this basis. For the fair
report privilege to protect WMAQ, WMAQ will need to persuade the
trier of fact that its broadcast reports fairly abridged official
acts or proceedings.
Finally, Snitowsky argues that this court should reverse the
dismissal of the count of her complaint charging WMAQ with invasion
of privacy. To establish this cause of action, Snitowsky must prove
that the news reports placed her before the public (1) in a false
light (2) which would be highly offensive to a reasonable person,
and (3) WMAQ had "knowledge that the statements were false or
[acted] with reckless disregard for whether the statements were true
or false." Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 17-
18, 607 N.E.2d 201 (1992).
The broadcast presented Snitowsky as a teacher who encouraged
her students to beat another student. The complaint adequately
alleges the placement in an offensively false light. WMAQ contends
that Snitowsky has not alleged facts that could prove it recklessly
disregarded the falsity of its broadcast. She alleged that WMAQ
reporters made no attempt to contact her or the security guard.
After she contacted WMAQ, the station deliberately distorted her
statements to make them appear to support the false charges raised
against her, although the police investigation showed that all
witnesses, including the supposed victim, agreed that Snitowsky had
not committed the alleged misconduct.
The sole source for the report WMAQ has presented is a
statement Adams made to the police. That statement mentions no
security guard although WMAQ reported that a security guard
witnessed the beating. The report says nothing about instructing
the children to come to the front of the room one at a time to hit
Frias in the face. Courts have found actual malice when the only
source for a story does not contain statements supposedly derived
from it. Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1071 (5th
Cir. 1987).
In Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976), the
defendant claimed it derived its allegedly defamatory publication
from a prior article about the plaintiff. The author admitted that
he did not derive all of the publication from the prior article, as
some statements he took from information he found "[s]omewhere in
the research file." Carson, 529 F.2d at 212. The court held:
"Nothing in the present record, which consists of the
pleadings, depositions and affidavits, lends any support
whatsoever, or even relates to, the published [defamatory]
statements ***. At this stage of the proceedings, it can
only be concluded that those statements are a sheer
fabrication by the defendants ***.
* * *
We believe that the district court could only find on
the basis of pretrial affidavits, depositions and other
documentary evidence that the plaintiffs will be able to
prove actual malice and that they should therefore be
given the opportunity to do so. The defendants in
fabricating and imagining 'facts' necessarily entertained
serious doubts as to the truth of the statements and had
a high degree of awareness of their probable falsity."
Carson, 529 F.2d at 212-13.
On the state of the pleadings here, too, with no source shown
for many statements in the broadcast, we must assume WMAQ fabricated
this evidence of misconduct. Accordingly, we find that Snitowsky
has adequately pled facts that could support a finding that WMAQ
acted with actual malice, recklessly disregarding the falsity of its
report.
The innocent construction rule does not protect WMAQ's report
of defamatory allegations because WMAQ reported no reason to
disbelieve the source of the allegations. WMAQ also did not connect
the report to Snitowsky's former status as a public official, so the
special protection for reports concerning public figures does not
apply. The fair report privilege also does not apply because the
report broadcast presented evidence not included in the report. The
facts alleged could support a finding that WMAQ invaded Snitowsky's
privacy by placing her in a false light, especially in light of
their response to her call and the result of the police
investigation. To establish her claims, Snitowsky will need to
prove only that WMAQ and its reporters acted negligently when they
broadcast the defamatory statements WMAQ either originated or
republished on December 19 and 20, 1996. Accordingly, we reverse
the judgment entered in favor of WMAQ on the counts charging
defamation per se and invasion of privacy.
Reversed and remanded.
RAKOWSKI and COUSINS, JJ., concur.
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