SIXTH DIVISION
December 22, 2006
No. 1-05-3992
KEVIN ATKINSON ) Appeal from the
) Circuit Court
Plaintiff-Appellant ) of Cook County.
)
v. ) No. 04 L 004492
)
RALPH AFFRONTI, EDWARD JUERGENSEN, )
FRANK O'LONE and FRANK A. MARCO, ) Honorable
) Robert Lopez-Cepero,
Defendants-Appellees. ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff, Kevin Atkinson, sued defendants Ralph Affronti,
Edward Juergensen and Frank O'Lone for false arrest and Frank A.
Marco for defamation and making statements that place him in a
"false light before the public." The circuit court dismissed
defendant Marco from this case pursuant to section 2-619(a)(9) of
the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9)
(West 2004)), based on an attorney's absolute privilege to
publish defamatory statements pursuant to section 586 of the
Restatement (Second) of Torts (Restatement (Second) of Torts §
(1977)). Plaintiff appeals the judgment assigning error to the
circuit court for granting defendant Marco's motion to dismiss
because: (1) the privilege does not apply to defamatory
communication to another prior to the commencement of litigation;
and (2) questions of fact exist as to whether defendant Marco had
a good-faith belief that plaintiff's employer was liable under
the doctrine of respondeat superior. For the reasons that
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follow, we affirm the judgment of the circuit court.
BACKGROUND
The following facts are derived from the well-pleaded facts
in plaintiff's complaint and the reasonable inferences drawn
therefrom, which, for purposes of this appeal, must be accepted
as true (In re Chicago Flood Litigation, 176 Ill. 2d 179, 184
(1997)), as well as the various evidentiary materials submitted
by both parties in connection with defendant's motion to dismiss.
See Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634 (1996)
(in ruling on a section 2-619 motion for dismissal, the court may
properly consider "external submissions of the parties"); In re
Petition for Submittal of the Question of Annexation to the
Corporate Authorities of the City of Joliet, 282 Ill. App. 3d
684, 688 (1996) (court may consider when ruling on section 2-619
motion to dismiss "pleadings, depositions, affidavits [citation],
and other evidence offered by the parties").
On July 18, 2003, plaintiff was employed as a site
superintendent by the Dobbins Group (Dobbins), a general
contractor, to oversee construction at a jobsite referred to as
Fort Sheridan. On that morning, members of the Ceramic Tile,
Terrazzo & Granite Cutters Union Local No. 67 (Local 67) began
picketing the jobsite because Polco Flooring, a nonunion
contractor, was subcontracted by Dobbins to perform the floor
installation. Picketers, including defendant Affronti, were
confronted by plaintiff, who came out of a Dobbins trailer and
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complained that the demonstration was obstructing the workers.
Affronti stated that plaintiff subsequently came out of the
trailer and threw the picketers' food and drinks to the ground
during lunch. According to defendants, plaintiff was simply
ignored.
On July 22, 2003, Affronti and others again picketed the
Fort Sheridan jobsite. Plaintiff allegedly insulted the
picketers, who then called the Highland Park police and
complained that plaintiff was harassing them. Officer Weng of
the Highland Park police spoke to plaintiff and he agreed to stay
away of the picketers. On July 25, 2003, Affronti and others
commenced picketing the Fort Sheridan jobsite again and also
displayed a large inflatable rat that belonged to Local 67 to
publicize the nonunion labor employed on the project. Affronti
swore in his affidavit that he observed plaintiff stab the
inflatable rat with an object and leave the scene in his car.
Affronti called Officer Weng and filed a police report.
Plaintiff contends that Juergensen and O'Lone also accused
him of cutting the inflatable rat. As a result of these
accusations, plaintiff was arrested on July 28, 2003. Plaintiff
maintains that the allegations against him were false and that
all charges against him were dropped when another came forward
and admitted that he, and not plaintiff, damaged the balloon.
Defendant swore in his affidavit in support of his motion to
dismiss that he had received a call from Frank O'Lone of Local
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67, advising him that plaintiff, Dobbins' superintendent, damaged
Local 67's property while they were engaged in a labor dispute at
Fort Sheridan. O'Lone employed defendant's firm to represent
Local 67 in this matter and requested that defendant take all
necessary steps, including legal proceedings, to recover money
for damage to its property. Defendant issued the following
letter to Dobbins on behalf of Local 67:
"Dear Sir/Madam:
Please be advised that this office represents the Ceramic
Tile Layers Union Local 67 who are engaged in a labor
dispute with Polco Flooring at the Fort Sheridan jobsite.
The purpose of this letter is to advise you of certain
wrongful acts committed by your employee Kevin Atkinson. As
your superintendent, he has destroyed and damaged property
belonging to our Local.
Our labor dispute is not with you, but with Polco
Flooring and why Mr. Atkinson has taken these actions is
unfortunate. The purpose of the letter is to put you on
notice and to advise you that we intend on holding the
Dobbins Group responsible for the property damage.
Local 67 is engaged in a lawful and peaceful picket
against Polco Flooring. We intend on holding your company
responsible for any interference or damage caused by the
Dobbins Group. Please call me if you have any questions or
wish to discuss this matter."
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Defendant further indicated in his affidavit that litigation was
contemplated in good-faith, under serious consideration and
authorized by Local 67. Ultimately, no lawsuit was filed,
because Local 67 was paid for the damage to the inflatable rat by
a third party and no other confrontations occurred at the Fort
Sheridan jobsite.
Defendant filed his motion to dismiss based on absolute
immunity pursuant to section 586 of the Restatement (Second) of
Torts. The circuit court, in a written order, found that the
privilege "expressly applies to letters made prior to a legal
proceeding" and that defendant had a good-faith belief that
plaintiff was acting within the scope of his employment when the
alleged damage occurred. The circuit court further held that
plaintiff's failure to counter or contradict defendant's
affidavits necessarily requires the court to accept defendant's
facts as true for purposes of the motion and grant judgment in
his favor. Plaintiff now appeals.
ANALYSIS
I. APPLICATION OF THE PRIVILEGE
Plaintiff contends that defendant was not entitled to the
privilege under section 586 of the Restatement (Second) of Torts
because the communication is to a third party that occurred prior
to litigation. Plaintiff cites to Golden v. Mullen, 295 Ill.
App. 3d 865 (1997), and Thompson v. Frank, 313 Ill. App. 3d 661
(2000), for the proposition that Illinois courts have not
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extended this privilege to out-of-court statements to other
persons. Golden, 295 Ill. App. 3d at 872 (declining to expand
the privilege to cover communications made by an attorney to his
client's spouse.) Thompson, 313 Ill. App. 3d at 664 (holding
that "an absolute privilege does not bar a libel action based on
an allegedly defamatory communication between one party's
attorney and the spouse of the opposing party to pending
litigation"). We disagree and find the authority upon which
plaintiff relies to be inapposite.
The defense of absolute privilege in a defamation action
involving statements made by an attorney is set forth in section
586 of the Restatement (Second) of Torts and provides as follows:
"An attorney at law is absolutely privileged to publish
defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a
judicial proceeding in which he participates as counsel, if
it has some relation to the proceeding." (Emphasis added)
Restatement (Second) of Torts, §586 (1977). See also Golden
v. Mulllen, 295 Ill. App. 3d 865, 869-70 (1997).
The privilege extends to out-of-court communications between
opposing counsel (Dean v. Kirkland, 301 Ill. App. 495 (1939)), to
out-of-court communications between attorney and client related
to pending litigation (Weiler v. Stern, 67 Ill. App. 3d 179
(1978)), to out-of-court communications between attorneys
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representing different parties suing the same entities (Libco
Corp. v. Adams, 100 Ill. App. 3d 314 (1981)), to statements made
during quasi-judicial proceedings (Richardson v. Dunbar, 95 Ill.
App. 3d 254 (1981)), to communications necessarily preliminary to
a quasi-judicial proceeding (Parrillo, Weiss & Moss v. Cashion,
181 Ill. App. 3d 920 (1989)), and to out-of-court communications
between an attorney and opposing parties in demand letters prior
to litigation (Simon v. Oltmann 98-C-1759 (N.D. Ill. August 31,
2001)).
In Golden, this court recognized that the only requirement
is that the communication pertain to proposed or pending
litigations and that "[a]ll doubts should be resolved in favor of
a finding of pertinency, which is a question of law for the
court." Golden, 295 Ill. App. 3d at 870, citing Skopp v. First
Federal Savings of Wilmette, 189 Ill. App. 3d 440, 447-48 (1989),
and Macie v. Clark Equipment Co., 8 Ill. App. 3d 613, 615 (1972).
If, however, the defamatory statements have "no connection
whatever with the litigation," then no privilege will attach.
Golden, 295 Ill. App. 3d at 870; Restatement, (Second) of Torts
§586, Comment c, at 248 (1977). The privilege is predicated on
the tenet that although defendant's conduct is otherwise
actionable, because he is acting in furtherance of some interest
of social importance, the communication is protected and no
liability will attach, even at the expense of uncompensated harm
to the plaintiff's reputation. Golden, 295 Ill. App. 3d at 870,
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citing Weber v. Cueto, 209 Ill. App. 3d 936, 942 (1991); Libco,
100 Ill. App. 3d at 317. We are convinced that the same public
policy considerations that protect an attorney's statements made
to his or her client during the course of a legal proceeding
necessarily protect prelitigation communications such as the
letter defendant sent to plaintiff's employer.
An attorney must be at liberty to candidly and zealously
represent his client in communications to potential opposing
parties in litigation or other proceedings without the specter of
civil liability for his statements clouding his efforts. Were we
to accept plaintiff's argument that extending the privilege to
communications to others prior to litigation goes beyond the
scope of the privilege, we would obstruct more than just an
attorney's ability to properly represent his client. Such a
limitation on the privilege could frustrate an attorney's ability
to settle or resolve cases favorably for his client without
resorting to expensive litigation or other judicial processes.
Under plaintiff's rule, an attorney may be liable for
defamation by demanding that several potentially culpable
defendants settle a dispute out of court. Frequently, the best
strategy for certain disputes is to avoid formal proceedings and
resolve matters out of court. An attorney could be stymied by
this rule from putting forth his best evidence supporting his
client's position that might otherwise deter formal litigation
and spare his client's time and resources, as well as those of
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potential defendants. There is, in our view, an incalculable
social and economic benefit to litigants, taxpayers, attorneys
and the general public in settling cases that would otherwise add
to the already clogged dockets and further strain our thinly
spread judicial resources. We therefore hold that the absolute
privilege which applies to defamatory statements made by an
attorney during pending litigation applies to prelitigation
defamatory statements made in written communications to a
potential litigant.
II. PERTINENCY REQUIREMENT
Plaintiff asserts that the privilege cannot be applied here
because defendant must prove that he had a good-faith belief that
Dobbins was responsible for plaintiff's acts. He argues that
concluding, as defendant did, that Dobbins would be vicariously
liable for plaintiff's acts based on self-serving statements from
his client was insufficient. He also claims that had defendant
conducted a reasonable investigation and waited three additional
days prior to communicating with Dobbins, he would have been made
aware that another party acknowledged responsibility. However,
plaintiff offers no authority to support his assertion that an
attorney must first investigate a client's claim for legal
sufficiency prior to issuing a demand letter. We disagree with
plaintiff and hold that defendant did not have to prove a good-
faith belief that Dobbins was responsible for plaintiff's acts or
conduct an investigation to verify his client's statements.
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The privilege affords complete immunity, irrespective of the
attorney's knowledge of the statement's falsity or the attorney's
motives in publishing the defamatory matter. Restatement
(Second) of Torts §586, Comment a, at 247 (1977); Weber v. Cueto,
209 Ill. App. 3d 936, 942 (1991). The only requirement is that
the communication pertain to proposed or pending litigation. The
pertinency requirement is not applied strictly, and the privilege
will attach even where the defamatory communication is not
confined to specific issues related to the litigation. Golden,
295 Ill. App. 3d at 870; Libco, 100 Ill. App. 3d at 317. In the
instant case, defendant's letter was directed to Dobbins,
plaintiff's employer, and described the conduct of plaintiff, its
employee. The letter further indicated that defendant's client
intended to hold Dobbins financially responsible for plaintiff's
conduct. Here, notwithstanding the aforementioned requirement
and its liberal application, the alleged defamatory statements
relate only to the specific issues of the potential litigation,
namely plaintiff's stabbing the inflatable rat which was
interfering with progress at the Fort Sheridan site construction
while performing his duties as superintendent for Dobbins. We
find, as a matter of law, the content of defendant's letter to
Dobbins meets the pertinency requirement.
Moreover, even if defendant was required to show a good-
faith belief that Dobbins was vicariously liable for plaintiff's
conduct based on his client's statements, the evidence in the
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record here shows far more than a good-faith belief. The
doctrine of respondeat superior permits an employer to be held
vicariously liable for the torts of his employee if they are
committed within the scope of that employment. Pyne v. Witmer,
129 Ill. 2d 351, 359 (1989), citing Darner v. Colby, 375 Ill.
558, 566-67 (1941), and Gomien v. Wear-Ever Aluminum, Inc., 50
Ill. 2d 19, 21 (1971); see generally Restatement (Second) of
Agency §219 (1958). Although there is no precise definition for
"scope of employment," our supreme court in Pyne identified the
following broad criteria found in section 228 of the Restatement
(Second) of Agency which provides, in pertinent part:
" '(1) Conduct of a servant is within the scope of
employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized
time and space limits;
(c) it is actuated, at least in part, by a purpose
to serve the master, * * *
* * *
(2) Conduct of a servant is not within the scope of
employment if it is different in kind from that authorized,
far beyond the authorized time or space limits, or too
little actuated by a purpose to serve the master.' "
Pyne, 129 Ill. 2d at 360, quoting Restatement (Second) of
Agency §228 at 504 (1958).
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Defendant's conclusion that Dobbins could be held liable for
plaintiff's actions is clearly supported by the statements that
were made to him by representatives of Local 67. In the
uncontested affidavits attached to defendant's motion to dismiss,
defendant states that he was contacted by Local 67 to represent
them in recovering money for damage to its property caused by
plaintiff. Defendant was told by his client that plaintiff was
employed by Dobbins to supervise the construction at the Fort
Sheridan site at approximately 9:30 a.m. when the incident
occurred. It was further alleged that plaintiff stabbed the
inflatable rat because it was interfering with the construction
work, for which plaintiff was responsible, at the Fort Sheridan
site. These unrebutted statements in the record support the
conclusion that Dobbins would be vicariously liable for
plaintiff's conduct. Plaintiff's act of stabbing the inflatable
rat was actuated, at least in part, by a purpose to serve the
master by clearing an obstruction, at the Fort Sheridan site,
during regular business hours and thus imputes liability to
Dobbins under the doctrine of respondeat superior.
If a party moving for dismissal or summary judgment supplies
facts which, if not contradicted, would entitle the party to a
judgment as a matter of law, the opposing party cannot rely on
bare allegations alone to raise issues of material fact. Barber-
Coleman Co. v. A&K Midwest Installation Co., 236 Ill. App. 3d
1065, 1070-71 (1992). Facts contained in an affidavit in support
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of a motion to dismiss which are not contradicted by counter-
affidavit must be taken as true for purposes of the motion.
Barber-Coleman Co., 236 Ill. App. 3d at 1071. We, like the
circuit court in this case, find that defendant had a good-faith
belief that Dobbins was responsible for plaintiff's conduct. We
also hold that an attorney is not required to undertake an
investigation or wait until statements made by their clients are
proven true prior to communicating with potential litigants in
order to be protected under the privilege.
III. CONCLUSION
For the foregoing reasons, we hold that the absolute
privilege in the section 586 of the Restatement (Second) of Torts
applies to defamatory statements in written communications from
an attorney to a potential litigant to the extent that the
communication pertains to proposed litigation or other
proceedings. Defendant's communication in this case pertained to
proposed litigation and he was not required to undertake any
investigation to determine the truthfulness or accuracy of his
clients' statement before the absolute privilege could be applied
to him. As a result, the circuit court properly applied the
privilege to defendant's statement and dismissed all claims
against him. Accordingly, the judgment of the circuit court is
affirmed.
Affirmed.
FITZGERALD-SMITH, PJ., and JOSEPH GORDON, J., concur.
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