concurring in part and dissenting in part:
I agree with the majority’s opinion insofar as it holds that the trial court correctly entered summary judgment in favor of defendants on counts V, VI, IX and X of the third amended complaint seeking recovery based on false imprisonment. I further agree with the majority that the trial court erred in dismissing counts XIII through XVI of the third amended complaint which sought recovery for malicious prosecution.
I disagree, however, with the majority’s determination that defendants were entitled to summary judgment on counts I and IT of the third amended complaint based on defamation. It is important to note the narrow scope of our inquiry in this regard. In its ruling on defendants’ motion for partial summary judgment on counts I and II, the trial court found that the statements made by defendant Dugan constituted defamation which was actionable per se. No party on appeal has taken issue with this determination. Therefore, unlike that of the majority, my analysis is undertaken assuming, but not deciding, that the statements at issue constitute defamation which is actionable per se.
In their motion for partial summary judgment on counts I and II, defendants argued that the statements at issue arose in the context of a labor dispute and that, therefore, this case, falls within the ambit of Linn v. United Plant Guard Workers of America (1966), 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657. The record reveals that plaintiff conceded that the events in question occurred during the same time period as a union organizing campaign, so I agree with the majority that Linn is applicable here.
Linn addressed the question of whether an action for defamation under State law is preempted by Federal labor law if the action arises in the context of a labor dispute. The Supreme Court held that such actions were not preempted so long as the plaintiff could also demonstrate actual malice on the part of the defendant according to the test enunciated in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. (Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664.) The court also held that plaintiffs in such actions must offer some proof of the harm suffered as a result of the defamation and may not rely on a presumption of harm recognized by State law. The court stated that plaintiffs “may not recover except upon proof of such harm, which may include general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or whatever form of harm would be recognized by state tort law.” Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664.
The majority concludes that summary judgment on counts I and II was appropriate because plaintiff failed to present an issue of material fact regarding the question of whether Dugan acted with actual malice. However, defendants did not submit any evidence along with their motion for partial summary judgment which' would .establish that Dugan did not act with actual malice.
The majority notes that “[djefendants supported their motion for summary judgment with excerpts from the depositions of Amy Mack and William Dugan.” (208 Ill. App. 3d at 874.) The majority does not explain how the deposition of Mack, the newspaper reporter, shows a lack of actual malice on the part of Dugan. Mack’s deposition merely shows that Dugan made the statement at issue. Because malice may be proved by the defamatory statement itself, Mack’s deposition actually supports plaintiff’s position that a question of fact on the issue of actual malice remained which should not have been disposed of by summary judgment. See Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 1052-53.
Moreover, the majority ascribes far too much weight to Dugan’s self-serving affidavit claiming that he believed in the truth of his statement that plaintiff “lies a lot.” Even where the party opposing a motion for summary judgment fails to file counteraffidavits, the movant is not entitled to summary judgment unless his motion and supporting affidavits establish his right to summary judgment as a matter of law. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636.) A defendant will not necessarily defeat a finding of actual malice merely “by testifying that he published with a belief that the statements were true.” (St. Amant v. Thompson (1968), 390 U.S. 727, 732, 20 L. Ed. 2d 262, 267, 88 S. Ct. 1323, 1326.) Therefore, because plaintiff could ultimately succeed in a defamation action despite Dugan’s assertion that he believed in the truth of his statement, the affidavit does not establish Dugan’s right to summary judgment in his favor as a matter of law even though it is uncontroverted.
Although the majority correctly notes that the existence of actual malice “may, under the proper circumstances, be disposed of by a motion for summary judgment,” the majority fails to show that the proper circumstances for such a summary disposition exist in this case. It remains true that the question of actual malice is generally one for the trier of fact. (Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 810, aff’d (1980), 83 Ill. 2d 146; see also Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 764 (where a statement is determined to be defamatory per se, the determination of malice is a jury question).) I believe that the self-serving statements in Dugan’s affidavit are not sufficient to require plaintiff to have filed counter-affidavits in order to defeat the motion for summary judgment.
The cases cited by the majority do not support a contrary conclusion. The entry of summary judgment in favor of the defendant in Danekas v. Wise (1978), 64 Ill. App. 3d 801, was not, as here, supported only by a self-serving assertion that the defendant believed the truth of his statement, but upon presentation of “official documents and depositions of witnesses in a position to know the facts.” (64 Ill. App. 3d at 805.) Similarly, the supreme court in Catalano v. Pechous (1980), 83 Ill. 2d 146, expressed doubt as to whether a defendant’s unqualified declaration that he believed in the truth of his statement would be sufficient to negate a showing of actual malice. (83 Ill. 2d at 167.) Thus, Catalano contradicts, rather than supports, the majority’s position.
Defendants also argue that plaintiff failed to present a factual question as to whether he sustained damages from the alleged defamation as required by Linn. Defendants correctly note that plaintiff made it clear below that he was not pursuing a claim based on special damages. However, Linn does not require a plaintiff to seek special damages in order to escape Federal preemption; recovery can be based on proof of “general injury to reputation” if such harm is recognized as compensable under State law. (Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664.) Generally, Illinois allows recovery for general damages stemming from injury to reputation. (Brown v. Farkas (1986), 158 Ill. App. 3d 772, 777.) In Illinois, such damages generally arise by inference of law and need not be proved by evidence. Brown, 158 Ill. App. 3d at 777; see also Mittelman v. Witous (1989), 135 Ill. 2d 220, 238-39.
In the instant case, State law would allow plaintiff to recover damages based on general injury to his reputation. Although such damages would normally be presumed under Illinois law, where, as here, the suit arises in the context of a labor dispute, Linn requires plaintiff to offer “evidence as to the severity” of the harm {i.e., injury to reputation) in order to escape Federal preemption. (Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664.) This does not mean that plaintiff is required to prove special or actual damages measured by some pecuniary loss.
Contrary to defendants’ assertions, there is nothing in the record to suggest that plaintiff conceded he could not prove his allegation that the alleged defamation caused injury to plaintiff’s “reputation for honesty and integrity in his personal and business affairs.” Moreover, defendants offered no evidence by affidavit or deposition in support of their motion for summary judgment which would negate this allegation. Accordingly, an issue of fact remained, and there was no basis for the entry of summary judgment. Plaintiff is entitled to the opportunity to present evidence regarding the alleged injury to his reputation.
Accordingly, while I would affirm the trial court’s entry of summary judgment in favor of defendants on the false imprisonment counts of the third amended complaint, I would reverse the order granting summary judgment on the defamation counts and dismissing those counts of the complaint alleging malicious prosecution.