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08/06/97 MICHAEL BUSHELL v. CATERPILLAR

August 6, 1997

MICHAEL BUSHELL, PLAINTIFF-APPELLANT,
v.
CATERPILLAR, INC., A FOREIGN CORPORATION, AND CHARLES VAN TINE, INDIVIDUALLY AND AS EMPLOYEE AND AGENT FOR CATERPILLAR, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court for the 10th Judicial Circuit Peoria County, Illinois. No. 88-L-41. Honorable John A. Barra, Judge, Presiding.

Released for Publication September 18, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Peg Breslin, Justice, Honorable John F. Michela, Justice. Presiding Justice Lytton delivered the opinion of the court. Breslin and Michela, JJ., concur.

The opinion of the court was delivered by: Lytton

PRESIDING JUSTICE LYTTON delivered the opinion of the court:

Pursuant to the central agreement between defendant Caterpillar, Inc. and the union to which plaintiff Michael Bushell belonged, an arbitration hearing was conducted regarding Caterpillar's termination of plaintiff's employment. Defendant Charles Van Tine, a manager at the engine plant where plaintiff had worked, testified that plaintiff slept on the job and falsified employment records. Plaintiff filed suit in circuit court, alleging that Van Tine and Caterpillar had defamed him. After defendants filed a motion pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619(West 1994)), the circuit court dismissed the case, finding that, as a matter of law, defendants had absolute immunity for statements made in quasi-judicial proceedings. Plaintiff appealed, asserting that private arbitration proceedings do not constitute quasi-judicial proceedings. We affirm.

A narrow class of cases exist in which defamatory statements are absolutely privileged. Ringier America, Inc. v. Enviro-Technics, Ltd., 284 Ill. App. 3d 1102, 1105, 673 N.E.2d 444, 446, 220 Ill. Dec. 532 (1996), citing Allen v. Ali, 105 Ill. App. 3d 887, 890, 435 N.E.2d 167, 169, 61 Ill. Dec. 678 (1982). The defense of absolute privilege rests upon the idea that conduct which otherwise would be actionable is permitted to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation. Thomas v. Petrulis, 125 Ill. App. 3d 415, 418, 465 N.E.2d 1059, 1061, 80 Ill. Dec. 713 (1984), quoting W. Prosser, Torts § 114, at 776 (4th ed. 1971). Absolute privilege provides complete immunity from civil action, even though the statements are made with malice, because public policy favors the free and unhindered flow of information. Ringier America, 284 Ill. App. 3d at 1105, 673 N.E.2d at 446; Starnes v. International Harvester Co., 184 Ill. App. 3d 199, 203, 539 N.E.2d 1372, 1374, 132 Ill. Dec. 566 (1989). The privilege embraces statements made in the course of judicial or quasi-judicial proceedings. Parrillo, Weiss & Moss v. Cashion, 181 Ill. App. 3d 920, 925, 537 N.E.2d 851, 854, 130 Ill. Dec. 522 (1989). Whether an otherwise actionable defamatory statement is protected by absolute privilege is a question of law. Joseph v. Collis, 272 Ill. App. 3d 200, 210, 649 N.E.2d 964, 971, 208 Ill. Dec. 604 (1995); Layne v. Builders Plumbing Supply Co., 210 Ill. App. 3d 966, 969, 569 N.E.2d 1104, 1106, 155 Ill. Dec. 493 (1991).

In determining the scope of absolute privilege, Illinois courts have relied upon the Restatement (Second) of Torts (1977). See Layne, 210 Ill. App. 3d at 971-72, 569 N.E.2d at 1108; Starnes, 184 Ill. App. 3d at 204-05, 539 N.E.2d at 1375. Section 587 of the Restatement (Second) provides:

"A party to a private litigation * * * is absolutely privileged to publish defamatory matter concerning another in communications * * * during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding." Restatement (Second) of Torts, § 587 (1977).

The comments to section 587 indicate that the privilege extends to communications such as those in this case:

"The rule stated in this Section is applicable to protect parties to any action before a judicial tribunal.

Judicial proceedings include all proceedings in which an officer or tribunal exercises judicial functions * * * an arbitration proceeding may be included." Restatement (Second) of Torts § 587, comments b and f, at 249-50 (1977) (emphasis added).

In similar fashion, section 588 of the Restatement (Second) provides:

"A witness is absolutely privileged to publish defamatory matter concerning another * * * as part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding." Restatement (Second) of Torts, § 588 (1977).

The comments to section 588 also indicate applicability in an arbitration procedure such as the one in this case. See Restatement (Second) of ...


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