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Halpern v. News-sun Broadcasting Co.

OPINION FILED OCTOBER 14, 1977.

DANIEL HALPERN ET AL., PLAINTIFFS-APPELLANTS,

v.

NEWS-SUN BROADCASTING COMPANY, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. THOMAS DORAN, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 14, 1977.

Plaintiffs, the Pavilion of Highland Park, Inc., a corporation, and Daniel Halpern, the director, president and chief operating officer of said corporation, sued the News-Sun Broadcasting Company, Inc., the News-Sun and Steve Rothman, a reporter for the News-Sun, for allegedly libelous statements published during the period from October 1974 to and including February 1975, more explicitly set forth hereafter. On motion of the defendants, the circuit court of Lake County dismissed the amended complaint for failure to state a cause of action. The plaintiffs have appealed, contending that the amended complaint set forth sufficient factual allegations to sustain a cause of action for libel.

The plaintiffs admit that they are "public officials" within the meaning of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710. In its order dismissing the complaint the trial court so found but held that the same "fails to state a cause of action in that it fails to allege actual malice or special damage."

One of the other grounds which defendants raised in their motion to dismiss the amended complaint was that the alleged libelous words were capable of an innocent construction. The order of the trial court dismissing the amended complaint makes no reference to this ground, apparently because the court found other grounds upon which to predicate the dismissal. Defendants have taken the position on this appeal that the complaint was properly dismissed on this ground as well as those set forth in the trial court's order. Because we deem this question dispositive of the major portion of the case before us, we will deal with it first.

The factual background giving rise to this libel action is as follows. The corporate plaintiff operates a nursing home. On August 20, 1974, 13 patients of the home became ill and Richard Hall, a mentally retarded patient, died. On October 1, 1974, a report of the incident was made to the Lake County Department of Health by Mrs. Josephine Schabowicz, an institutional nurse consultant. Following that meeting defendants published a series of articles concerning the incident which plaintiffs interpret as accusing them of a crime or being guilty of misconduct in the operation of the nursing home and improperly prejudicing them in their business or profession. In pertinent part paragraph 10 of the complaint alleges that defendants published the following allegedly false statements:

"10.

* * *

(a) On October 2, 1974 in an article entitled `Child's Death Sparks Curbs of Nursing Home' the Defendants having actual knowledge that Mrs. Schabowicz did not know the cause of Richard Hall's death, wrote and published the following quote:

`She said the hamburger and turkey had not been stored properly and this may have caused the development of gaseous gangrene, the ailment which caused the patient's death.'

`She explained the illness could have been prevented if the food had been heated sufficiently to kill the virus.'

`All residents were extremely ill, but the home didn't call for help from the health department until 4 p.m. the following day after one patient died.'

(b) On December 11, 1974, in an article entitled `Autopsy Rules Out Food Poisoning' the Defendants, who had actual knowledge of the contents of the Coroner's autopsy report, and knew that said reported [sic] indicated death caused by pneumonia and colitis, wrote and published the following false statement:

`The death of a mentally retarded patient in a Highwood nursing home was the result of pneumonia and malnutrition and not food poisoning as the death ...


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