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12/29/95 DANIEL ROEHRBORN v. POLICE CHIEF THOMAS

December 29, 1995

DANIEL ROEHRBORN, PLAINTIFF-APPELLANT,
v.
POLICE CHIEF THOMAS LAMBERT, CHIEF OF POLICE OF THE VILLAGE OF RIVER GROVE, ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Willard J. Lassers, Judge Presiding.

Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Tully delivered the opinion of the court: Rizzi and Cerda, JJ., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiff, Daniel Roehrborn, filed this action against defendant, Thomas Lambert, chief of police of the village of River Grove, Illinois, asserting claims under the Freedom of Information Act (hereinafter Act) (Ill. Rev. Stat. 1991, ch. 116, par. 201 et seq. (now 5 ILCS 140/1 (West 1994))), and Title VII of the Civil Rights Act of 1964 (see 42 U.S.C. § 1983 (1988)), for allegedly violating his rights to privacy in addition to violating his liberty interest under the Fourteenth Amendment to the United States Constitution (U.S. Const., amend. XIV). Defendant moved to strike plaintiff's complaint and dismiss the action pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1994))). The circuit court granted defendant's motion. Plaintiff now appeals to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

STATEMENT OF FACTS

The following facts are undisputed. Prior to the filing of this suit, August 8, 1991, Roehrborn was employed as a probationary officer by the village of River Grove. Lambert had arranged for Roehrborn to attend the Police Training Institute (hereinafter Institute) in Champaign, Illinois. Before attending the Institute, the Board of Fire and Police Commissioners (hereinafter Board) required Roehrborn to take polygraph and psychological testing evaluations. Shortly afterwards, the examiners informed the Board and Lambert that Roehrborn had failed both the polygraph and the psychological tests. Subsequently, on August 8, 1991, Lambert wrote a letter to Jim Whitmore, the administrator at the Institute, informing him that Roehrborn had failed these tests and he would be withdrawing Roehrborn from the Institute. Roehrborn withdrew from the Institute. The Board sent Roehrborn a letter, dated August 8, 1991, dismissing him as a probationary officer.

For the reasons which follow, we affirm.

ISSUES PRESENTED

On appeal, plaintiff argues that: (1) the circuit court erred in holding that his complaint did not state a cause of action for the common law tort of invasion of privacy; (2) the circuit court erred in holding that defendant's disclosure of plaintiff's test results did not violate the Act; and (3) the circuit court erred in holding that plaintiff's complaint did not state a cause of action under 42 U.S.C. § 1983 (1988).

We begin our analysis by noting that a motion to dismiss under section 2-615 challenges the legal sufficiency of the complaint. ( Urbaitis v. Commonwealth Edison, Inc. (1981), 143 Ill. 2d 458, 575 N.E.2d 548, 159 Ill. Dec. 50.) The relevant inquiry is whether sufficient facts are contained in the pleadings which, if proved, would entitle a plaintiff to relief. ( Urbaitis, 143 Ill. 2d at 475, 159 Ill. Dec. 50, 575 N.E.2d 548.) Upon review of an order granting a section 2-615 motion, all well-pleaded facts are taken as true. ( Boyd v. Travelers Insurance Co. (1995), 166 Ill. 2d 188, 652 N.E.2d 267, 209 Ill. Dec. 727.) In reviewing orders on a motion to dismiss, we apply a de novo standard of review. Dace International, Inc. v. Apple Computer, Inc. (1995), 275 Ill. App. 3d 234, 237, 655 N.E.2d 974, 211 Ill. Dec. 591.

Plaintiff's first contention is that the trial court erred in dismissing his complaint for failing to state a cause of action for the common law tort of invasion of privacy. He asserts that the claim set forth a violation of the public disclosure of private facts. We disagree.

The Restatement (Second) of Torts enumerates the following types of an invasion of privacy: (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another's name or likeness; (3) a public disclosure of private facts; and (4) publicity which reasonably places another in a false light before the public. (Restatement (Second) of Torts §§ 652B, 652C, 652D, 652E, at 378-94 (1977); W. Keeton, Prosser & Keeton on Torts § 117, at 849-69 (5th ed. 1984).) Plaintiff alleges public disclosure of private facts, wherein "one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." (Restatement (Second) of Torts, § 652D, at 383. (1977).) Comment a explains that the "publicity" requirement for this tort is different from the "publication" requirement for defamation; "publication" in defamation requires only that the matter be communicated to a third person; "publicity" in this invasion of privacy tort means communicating the matter to the public at large or to so many persons that the matter must be regarded as one of general knowledge. Restatement (Second) of Torts, § 652D, comment a, at 384. (1977).

In the case at hand, plaintiff did not meet the requirements needed to state an action for the invasion of privacy tort based on the disclosure of private facts, because he failed to satisfy the publicity requirement. Plaintiff relies on Miller v. Motorola (1990), 202 Ill. App. 3d 976, 560 N.E.2d 900, 148 Ill. Dec. 303, wherein the court held that the plaintiff stated a cause of action for public disclosure of private facts by alleging that her employer had disclosed her mastectomy surgery to co-workers. The Miller court articulated that the public disclosure requirement can be met where a plaintiff has a special relationship with the "public" to whom the information was disclosed. ( Miller, 202 Ill. App. 3d at 980.) The Miller court justified its flexible application of the requirement by ...


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