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Angelo v. Brenner

OPINION FILED MAY 9, 1980.

THOMAS ANGELO, PLAINTIFF-APPELLANT,

v.

ARTHUR BRENNER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, JR., Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, a Chicago policeman, appeals the trial court's order granting defendant's motion for summary judgment in his action for slander against defendant. He contends that the motion for summary judgment should not have been granted because genuine issues as to material facts existed in the case. We affirm.

The record in this case includes the pleadings, a deposition of plaintiff, and the affidavits of plaintiff and Officer M. Giersch. At about 10 a.m. on August 18, 1974, plaintiff observed an automobile making an illegal U-turn on Pueblo Street near Bryn Mawr Street. The automobile was being driven by defendant's wife and was carrying defendant, who was a psychiatrist, and an elderly woman as passengers. Plaintiff followed the car and ordered the driver of the car to pull over to the side of the road. After she had done so, he requested to see her driver's license. She showed him an out-of-State driver's license. He then informed her that she could not post this license as bond for the traffic offense and asked her if she had a bond card. When she told him that she did not have a bond card, he told her that she would have to go to the police station where she could post a cash bond. She and defendant then told him that they were on their way to the airport and asked if he could just write them a ticket and save the 10-minute trip to the police station. He said that he could not do this, and told them to follow him to the station.

After they arrived at the station, plaintiff told Thomas Ianonitti, the acting desk sergeant, about the traffic offense and asked him what the cash bond would be for such an offense. Officers Stan Cook and M. Giersch were present while he was speaking to Ianonitti. After defendant posted bond, he was given a receipt and a copy of the traffic ticket. He then asked to talk to plaintiff's supervisor, Lieutenant Vitek. Defendant explained to Vitek what had happened and told him that plaintiff did not use any foul language and was not abusive to him. Ultimately, Vitek told him that the matter would be handled in court. As the defendant was leaving the station, he pointed at plaintiff and said in a raised voice, "as a psychiatrist, Officer Angelo is unfit to be a policeman." Afterwards, Officers Ianonitti, Cook, and Giersch told plaintiff that they heard this statement. Officer Giersch, in his affidavit, stated:

"9. Because I am aware that doctors have certain professional standards, I believe that no psychiatrist would tell a policeman that he was unfit to be a policeman unless that psychiatrist had proof of the unfitness.

10. After Dr. Brenner said that Officer Angelo was unfit to be a policeman, I began to wonder whether or not Officer Angelo was fit. I also began to wonder what happened between the Brenners and Officer Angelo before the three of them came into the police station."

Nonetheless, despite these averments, plaintiff's deposition indicates that Officer Giersch never told him that he believed the statement.

Plaintiff brought suit claiming that defendant's statement constituted slander per se. Defendant ultimately filed a motion for summary judgment. After hearing arguments on the motion, the trial court granted the summary judgment, stating:

"I think that you must examine the entire context of the statement made in a police station and that in light of all the surrounding facts that the statement is generally protected by the First Amendment."

This appeal follows the entry of the order of the trial court.

OPINION

Plaintiff contends that the motion for summary judgment should have been denied since the record contains ample evidence of actual malice on defendant's part in making the statement and ample evidence that the statement constituted slander per se.

• 1, 2 Plaintiff is a public official (Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill.2d 257, 239 N.E.2d 837; Weber v. Woods (1975), 31 Ill. App.3d 122, 334 N.E.2d 857) and as such he must establish that defendant made his allegedly defamatory statement with actual malice before he can prevail. (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710.) Actual malice is defined as knowledge that a statement is false or reckless disregard as to whether the statement is true or false. (Troman v. Wood (1975), 62 Ill.2d 184, 340 N.E.2d 292.) In order to establish that a statement has been made with reckless disregard of its truth or falsity, plaintiff must establish more than that defendant failed to investigate. (Catalano v. Pechous (1978), 69 Ill. App.3d 797, 387 N.E.2d 714.) He must establish that the defendant "entertained serious doubts as to the truth of his publication." (St. Amant v. Thompson (1968), 390 U.S. 727, 731, 20 L.Ed.2d 262, 267, 88 S.Ct. 1323, 1325.) A summary judgment is properly granted in a public official defamation suit if there is no evidence presented to support a finding of actual malice. See Weber v. Woods.

• 3 We find no evidence in the present record to support a finding of actual malice. Plaintiff claims that the record creates at least a triable issue ...


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