Appeal from the Circuit Court of Cook County. Honorable Patrick McGann, Judge Presiding.
As Corrected January 7, 1997. Released for Publication February 13, 1997.
The Honorable Justice O'brien delivered the opinion of the court: Theis, J., concurs. Justice Cahill dissents.
The opinion of the court was delivered by: O'brien
JUSTICE O'BRIEN delivered the opinion of the court:
Plaintiff, Laura Green, filed an amended complaint against defendant, the Chicago Tribune Company (hereinafter Tribune), alleging invasion of privacy, intentional infliction of emotional distress, and battery. The trial court dismissed plaintiff's amended complaint against the Tribune pursuant to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 1992). Plaintiff appeals.
First, we address whether the trial court properly granted the Tribune's section 2-615 motion to dismiss plaintiff's claim for invasion of privacy. In the invasion of privacy count, plaintiff pleaded The following allegations which must be assumed true for purposes of the motion: Tribune staffers photographed her son, Calvin Green, on December 30, 1992, while he was undergoing emergency treatment at Cook County Hospital for a bullet wound. The Tribune never asked plaintiff's permission to photograph Calvin. After attempts to resuscitate Calvin failed, medical personnel moved him to a private hospital room to await the coroner. The coroner pronounced Calvin dead at 12:10 a.m. on December 31, 1992. Around that time, a reporter for the Tribune asked plaintiff for a statement regarding her son's death. She refused to make a statement. Meanwhile, Tribune staffers entered the private hospital room and took further unauthorized photographs of Calvin. While photographing Calvin, they prevented plaintiff from entering the room. When plaintiff did enter the room, the Tribune staffers listened to her statements to Calvin.
On January 1, 1993, the Tribune published a front-page article, about Chicago's record homicide rate. The article included the following quotes from plaintiff's statements to Calvin on December 31: "I love you, Calvin. I have been telling you for the longest time about this street thing." "I love you, sweetheart. That is my baby. The Lord has taken him, and I don't have to worry about him anymore. I accept it." "They took him out of this troubled world. The boy has been troubled for a long time. Let the Lord have him." The Tribune also published one of the unauthorized photographs taken of Calvin after he died. In a January 3, 1993, article *fn1, the Tribune published one of the unauthorized photographs taken of Calvin while undergoing medical treatment.
Plaintiff's complaint alleges the Tribune publicly disclosed private facts and thus invaded her privacy when it (a) "trespassed" into Calvin's room; (b) photographed Calvin without plaintiff's consent; (c) prevented plaintiff from entering Calvin's room while the Tribune took photographs of him; (d) "eavesdropped" on plaintiff's statements to Calvin; (e) published on January 1 the front-page article containing quotes from plaintiff's statements to Calvin and the photograph of Calvin lying dead; and (f) published on January 3 the photograph of Calvin undergoing medical treatment. The trial court dismissed plaintiff's action pursuant to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 1992).
When ruling on a section 2-615 motion to dismiss, the trial court must accept as true all well-pleaded facts and all reasonable inferences that can be drawn therefrom. Palmer v. Chicago Park District, 277 Ill. App. 3d 282, 284, 213 Ill. Dec. 889, 660 N.E.2d 146 (1995). The trial court should not dismiss a complaint under section 2-615 unless it clearly appears no set of facts could be proved under the pleadings entitling plaintiff to relief. Palmer, 277 Ill. App. 3d at 284. In making such a determination, the trial court must interpret the allegations of the complaint in the light most favorable to plaintiff. Palmer, 277 Ill. App. 3d at 284. Accordingly, we also analyze plaintiff's complaint, although only allegations, in the light most favorable to plaintiff.
The public disclosure of private facts is one branch of the tort of invasion of privacy. Roehrborn v. Lambert, 277 Ill. App. 3d 181, 184, 213 Ill. Dec. 923, 660 N.E.2d 180 (1995); Beverly v. Reinert, 239 Ill. App. 3d 91, 97, 179 Ill. Dec. 789, 606 N.E.2d 621 (1992). To state a cause of action for the public disclosure of private facts, plaintiff must plead (1) the Tribune gave publicity; (2) to her private, not public, life; (3) the matter publicized was highly offensive to a reasonable person; and (4) the matter publicized was not of legitimate public concern. See Miller v. Motorola, Inc., 202 Ill. App. 3d 976, 978, 148 Ill. Dec. 303, 560 N.E.2d 900 (1990), which adopted the Restatement (Second) of Torts' definition of the public disclosure of private acts.
First, we address whether plaintiff pleaded facts sufficient to assert the first prong of the tort: the publicity element. The comments to the Restatement (Second) of Torts state that publicity means "the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. *** Any publication in a newspaper or a magazine, even of small circulation *** is sufficient to give publicity [to a private fact]." Restatement (Second) of Torts Sec. 652D, comment a, at 384-85 (1977).
Plaintiff satisfied the publicity element of the tort by pleading a cause of action premised on the Tribune's publishing her statements and the photographs of her son in the January 1 and January 3 editions of the Chicago Tribune.
Next, we address whether plaintiff pleaded facts sufficient to assert the second prong of the tort: the facts disclosed in the Chicago Tribune were private. The circuit court found plaintiff failed to plead that the matter published was private, not public. The court stated "When you talk aloud in a public place, *** how can you say that you have an expectation of privacy? *** The reporting was of at least a semi-public statement of the plaintiff *** said aloud voluntarily with knowledge of [Tribune personnel] present."
We disagree with the trial court's finding as a matter of law that Calvin's hospital room was a "public place" and thus plaintiff's statements in that room could not BE private. Plaintiff's complaint clearly pleads that Calvin was in a private room, and, as the court must accept all well-pleaded facts as true, the trial court's failure to accept that fact as true contributed to the error in its analysis. FURTHER, Black's Law Dictionary defines "public place" as:
"A place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighboring public (e.g. a park or public beach). Also, a place in which the public has an interest as affecting the safety, health, morals, and welfare of the community. A place exposed to the public, and where the public gather together or pass to and fro." Black's Law Dictionary 1107 (5th ed. 1979).
The general public surely had no right to resort in Calvin's private hospital room, nor did the public have an interest in THAT room that affected their safety, health, morals, or welfare. Thus, Calvin's hospital room was not a "public place."
We also disagree with the trial court's finding as a matter of law that plaintiff's statements were not private because she made them in front of Tribune personnel. In support, we cite two cases from other jurisdictions that faced a similar issue, Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975) and Y.G. and L.G. v. Jewish Hospital of St. Louis, 795 S.W.2d 488 (Mo. App. 1990). The plaintiff in Virgil willingly gave an interview to Sports Illustrated. Virgil, 527 F.2d at 1124. Before Sports Illustrated published the article, plaintiff indicated his desire to "stop the story." Virgil, 527 F.2d at 1124. Nevertheless, Sports Illustrated published the article, and plaintiff brought a public disclosure of private facts action against defendant. The trial court denied defendant's motion for summary judgment, and defendant brought an interlocutory appeal. Virgil, 527 F.2d at 1123.
On appeal, defendant argued that by voluntarily talking to Sports Illustrated, plaintiff had rendered public the facts disclosed. Virgil, 527 F.2d at 1126. The Ninth Circuit of the United States Court of Appeals disagreed:
"Talking freely to someone is not in itself *** making public the substance of the talk. There is an obvious and substantial difference between the disclosure of private facts to an individual--a disclosure that is selective and based on a judgment as to whether knowledge by that person would be felt to be objectionable--and the disclosure of the same facts to the public at large. ***
Talking freely to a member of the press, knowing the listener to be a member of the press, is not then in itself making public. Such communication can be said to anticipate that what is said will be made public since making public is the function of the press, and accordingly such communication can be construed as a consent to publicize. Thus if publicity results it can be said to have been consented to. However, if consent is withdrawn prior to the act of publicizing, the consequent publicity is without consent." Virgil, 527 F.2d at 1127.
In Y.G. and L.G., plaintiffs participated in Jewish Hospital's in vitro fertilization program. Y.G., 795 S.W.2d at 492. Plaintiffs brought a public disclosure of private facts action against the hospital and a television station after the station televised them while they were attending a hospital function commemorating the success of the program. Y.G., 795 S.W.2d at 492. Plaintiffs pleaded that before the hospital function, they had told only Y.G.'s mother about their attempt to procreate. Y.G., 795 S.W.2d at 492. The trial court granted Jewish Hospital's motion to dismiss for failure to state a cause of action. Y.G., 795 S.W.2d at 493.
On appeal, defendants argued plaintiffs waived any right to privacy by attending the function. Y.G., 795 S.W.2d at 502. The court held plaintiffs did not waive the right to privacy because the hospital assured them no publicity would occur and plaintiffs twice refused interviews. Y.G., 795 S.W.2d at 502. The court also noted plaintiffs pleaded in their complaint that the hospital assured them only persons involved in the in vitro program would attend the function. Y.G., 795 S.W.2d at 502. The court held that by choosing to disclose their participation to other in vitro couples, plaintiffs did not waive their right to keep their in vitro participation private with respect to the general public. Y.G., 795 S.W.2d at 502. The court reversed the trial court's order dismissing plaintiffs' cause of action. Y.G., 795 S.W.2d at 503.
We glean from Virgil and Y.G. that plaintiff's allegation here THAT SHE spoke to her dead son in front of Tribune personnel in Cook County Hospital is not dispositive as to whether her statements were private or public. Rather, the analysis must focus on whether plaintiff alleged that she informed the Tribune personnel that she wished to keep the content of those statements private with respect to the general public. Plaintiff pleaded in her amended complaint that around the time of her son's death in Cook County Hospital, she informed the Tribune reporter who was in the hospital that she wished to make no statement to the Tribune regarding her son's death. Taking these well-pleaded facts as true for purposes of the section 2-615 motion to dismiss, we think a jury could find plaintiff's conversation with that reporter sufficient to put the Tribune on notice it was not to disclose to the general public the statements she made in the hospital to her son. Accordingly, plaintiff pleaded sufficient facts to allege her statements to her son were private, not public.
The Tribune argues, though, that we should affirm the trial court's dismissal order because plaintiff's complaint seeks to recover damages for the invasion of her son's privacy. The Tribune contends the right of privacy is purely personal and plaintiff must prove invasion of her own privacy before she can recover. In support of this argument, the Tribune cites Bradley v. Cowles Magazines, Inc., 26 Ill. App. 2d 331, 168 N.E.2d 64 (1960). Bradley involved the murder of a 14-year-old boy. Five months after his death, Look magazine published the first of two articles about the murder. One year later, Look published its second article. Bradley, 26 Ill. App. 2d at 332. The issue on appeal was whether the right of privacy extended to provide damages for the anguish of the boy's mother, caused by the publication concerning the murder of her son, although the magazine did not feature or substantially publicize her. Bradley, 26 Ill. App. 2d at 333. The court held the mother could not bring the action because the articles did not invade her right to privacy. Bradley, 26 Ill. App. 2d at 336.
In the present case, the complaint alleges the Tribune did substantially publicize plaintiff on January 1, 1993, by publishing a photograph of her dead son, Calvin, and by identifying her as Calvin's mother and publishing her statements to Calvin. Thus, plaintiff's cause of action for the January 1 publication can go forward because it is based on her privacy interest. However, plaintiff also pleaded an invasion of privacy for the January 3, 1993, publication that included the December 30 photograph of Calvin undergoing medical treatment. The January 3 publication never mentions plaintiff and thus does not invade her privacy. Accordingly, pursuant to Bradley, we hold plaintiff's complaint for invasion of privacy based on the January 3 publication must be dismissed.
Next, we address whether plaintiff's complaint pleaded facts sufficient to assert the third prong of the public disclosure of private facts tort: the matter published was highly offensive to a reasonable person. Having determined the January 3 publication cannot be the basis for plaintiff's privacy action, we examine only the January 1 publication.
On January 1, 1993, the Tribune published a front-page story on Chicago's record homicide rate that included a discussion of Calvin's murder and an unauthorized photograph taken of Calvin while Tribune personnel barred plaintiff from entering the hospital room to see him. The article also included the following quotes from plaintiff's statements to her son that she made after refusing the Tribune reporter's request for a public statement: "I love you, Calvin. I have been telling you for the longest time about this street thing." "I love you, sweetheart. That is my baby. The Lord has taken him, and I don't ...