APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
In this appeal we face several issues involving both fundamental principles of common law libel and constitutional limitations, imposed under the first amendment, on the liability of the press for libel. Plaintiff, George Newell, alleged that a newspaper article, printed in the Chicago Daily News and published by the defendant Field Enterprises, Inc., contained defamatory statements about him. The article purported to be a summary of a civil complaint in a wrongful death action brought against Newell. In granting summary judgment for defendant, the trial court stated that the article was a fair and accurate report on a judicial proceeding and was published without malice. Consequently, the trial court ruled that the common law privilege to report on judicial proceedings protected defendant from liability. Plaintiff appeals.
On January 18, 1976, Joan Marie Dini died in a fire in the home of George and Kathleen Newell. The estate of Joan Marie Dini filed a wrongful death action against the Newells on September 29, 1976. The two-count complaint alleged that the Newells kept gunpowder and other incendiary materials in their home. On January 17, 1976, George Newell installed an oil-burning lamp in the family room of the house. Joan Marie Dini was an overnight guest of the Newells that night. She slept in the upstairs master bedroom, while George Newell slept on the living room couch in the family room on the first floor. Before going to sleep, George Newell filled the oil lamp and lit it. During the night a fire broke out, and the heat and the smoke from the fire woke George Newell. To insure clarity, a summary of the remainder of the complaint will not suffice; therefore, several allegations must be repeated verbatim here:
"Defendant George O. Newell, upon discovering the fire, made efforts to save his pet parrot from the fire and attempted to put out the fire by tearing down the curtains which were in flames.
Defendant George O. Newell made no immediate attempt to reach decedent [Joan Marie Dini], to wake her directly or to help her escape from the fire, despite the fact that the bedroom in which decedent was asleep at the time was above the location of the fire visible to defendant George O. Newell.
Defendant George O. Newell removed his pet parrot from the family room to another room in the home, went outside the home to get fresh air and escape the heat and smoke then filling the home, returned to a separate part of the home to telephone the fire department, and removed the parrot to outside the home, but did not reach or assist the decedent in any way.
Defendant then attempted, from outside the home, to break a window in the upstairs master bedroom by throwing snowballs in order to attract decedent's attention to the windows because defendant knew that the windows were entirely draped on the inside and obscured from decedent's view from within the bedroom.
As a direct and proximate result of the aforesaid negligence of defendants, decedent then and there sustained severe injuries from the fire and resulting heat and smoke, of which she died on January 18, 1976 * * *."
Count II of the complaint, containing essentially the same factual allegations as count I, rests on defendants' negligence in allowing a fire to start in their home.
One day after this complaint was filed, the Chicago Daily News ran an article capsulizing the allegations of this complaint. The article appeared on the top of the last page of section one of the newspaper and was set off from other articles on the page by double black lines. The headline of the article, consisting of dark black letters approximately one-quarter inch high, read: "SAVED PARROT, LET WOMAN DIE, SUIT SAYS." The article stated:
"A Glenview man has been accused in a damage suit of saving his parrot from his burning home while making no effort to rescue a young woman who was staying there.
The charge was included in a $400,000 negligence suit filed in Circuit Court Wednesday against George and Kathleen Newell, who lived at 1043 Queens Lane at the time of the fire.
The suit was filed on behalf of the estate of Miss Joan Marie Dini, 20, of 619 Gunderson, Carol Stream, who died as the result of injuries from the fire.
THE COUPLE is charged with having `gun powder and other flammables' in their home which contributed to the fire.
The suit alleges that before the fire on January 17, Newell had filled an oil-burning lamp in the home and left it burning. The lamp was near some curtains in the family room of the home, the suit says.
When the fire broke out, Newell rescued his parrot, but did not attempt to rescue Miss Dini from an upstairs bedroom in the home, the suit charges.
Miss Dini's survivors include her father, Raymond J.; mother, Marie; a sister and four brothers."
Plaintiff's amended two-count complaint alleges that defendant maliciously published the above article which contained "inaccurate, untrue and libelous" statements about him. Plaintiff further alleged: "That defendant knew or ought to have known that the aforesaid [the article] was false, and made and published same with such knowledge. Furthermore, defendant either did not believe in the truth of said defamatory statement or same was published with reckless disregard of the truth, and in the publication of said statement showed actual malice toward plaintiff." As a result of this article, plaintiff was held up to "public hatred, ridicule, and contempt and by means of said publication, plaintiff has suffered injury to his good name, reputation, standing in the community, personal humiliation, mental anguish and suffering." Consequently, plaintiff seeks recovery for compensatory and punitive damages.
Count II of plaintiff's complaint differs from count I only in its expression of defendant's wrongful conduct. According to count II, defendant "knew or ought to have known that the aforesaid was false, and it made and published same with such knowledge. Furthermore, defendant either did not believe the truth of said defamatory statement or if it did, had no reasonable grounds for so believing. In addition, defendant did not make a reasonable investigation into the accuracy and truth of the statement, or did it in such a negligent manner as to cause plaintiff great damage to his reputation." In count II, plaintiff seeks only compensatory damages for the injuries he sustained. The crucial difference between these two counts is that count I bases defendant's liability on actual malice (see New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710), while count II is predicated upon ordinary negligence.
After filing its answer, defendant moved for summary judgment on several grounds. First, defendant maintained that the article carries no libelous meaning. Second, the article is not actionable as libel because of the application of the innocent construction rule. Third, the article is protected under the common-law privilege to report on judicial proceedings. Fourth, the article is protected by the freedom of the press guarantee of the first amendment. (U.S. Const., amend. I.) Fifth, the complaint fails to state a cause of action upon which relief may be granted. In support of its motion, defendant filed the affidavit of the reporter, Saundra Saperstein, who wrote this article. The Saperstein affidavit states that the sole source for her article was the complaint filed by the estate of Joan Marie Dini. She had no knowledge that anything in the complaint was false, and did not know George Newell.
Plaintiff also filed a motion for summary judgment with supporting affidavits. These affidavits by persons who knew George Newell essentially stated that, in their opinion, prior to the date of the Chicago Daily News story, Newell enjoyed a good name and reputation and was held in high esteem. An affidavit by George Newell was also filed. This affidavit described the various injuries incurred by Newell as a result of the article. As one of these injuries, Newell stated that he lost four business customers because of the article.
On October 20, 1977, the trial court denied both motions for summary judgment. Both parties moved for reconsideration of this order, and on March 6, 1979, the trial court granted defendant's motion for summary judgment.
The right to summary judgment must be clear beyond question, and when deciding this question, a court must construe the pleadings, depositions, and affidavits most strongly against the moving party and most liberally in favor of the opponent. (Baier v. State Farm Ins. Co. (1975), 28 Ill. App.3d 917, 329 N.E.2d 543, aff'd (1977), 66 Ill.2d 119, 361 N.E.2d 1100.) On appeal from an order granting summary judgment, the reviewing court must consider all grounds and facts urged below to determine if a genuine issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. (Welch v. Chicago Tribune Co. (1975), 34 Ill. App.3d 1046, 340 N.E.2d 539.) For the reasons stated below, we feel that the trial court improperly granted summary judgment to ...