Appeal from the Circuit Court of Cook County, Law Division. No. 98 L 2069 The Honorable David G. Lichtenstein, Judge Presiding
The opinion of the court was delivered by: Justice Wolfson
The free flow of information on matters of compelling public interest is highly prized in our society. There are times when someone speaking out on such a matter gets the facts wrong and ends up defaming someone else. For these occasions the law provides a qualified privilege, one that can be abused and lost. This case requires us to examine whether the defendant defamed the plaintiff, whether she was protected by a qualified privilege, and, if the privilege did exist, whether it was abused.
Plaintiff Theodore E. Parker, P.E. (Parker), brought this suit for defamation per se and false light invasion of privacy against defendant Susan M. Larson, individually and in her capacity as President of House O'Lite Corporation d/b/a Holcor (collectively Larson), alleging Larson published false and defamatory statements when she wrote two letters questioning his specifications for lighting fixtures to be used in a multi-million dollar project to build a new Cook County Hospital (CCH).
Larson moved for summary judgment, contending the letters she wrote were substantially true and were privileged communications. The trial court entered an order granting summary judgment, finding that because her statements in the letters involved a matter of public interest, i.e., construction of a public hospital using taxpayer monies, they were privileged communications.
On appeal, Parker contends the trial court erred in granting summary judgment on his claim for defamation per se because Larson's statements in her two letters were not privileged communications, and if Larson's statements were found to be privileged, the trial court should have allowed a jury to determine whether she abused that privilege. Parker also contends the trial court erred in granting summary judgment on his false light claim "where the record contained substantial evidence of actual malice," sufficient to raise material questions of fact. We reverse the trial court's order granting summary judgment and remand for further proceedings.
In 1994, Cook County (County) received approval to build a new state-of-the-art hospital. The new CCH would replace the old CCH on the near west side of Chicago. The County hired Turner Construction (Turner) as the program manager to oversee the CCH project.
As program manager, Turner was to oversee the work of a design team of private architectural and engineering firms. The design team comprised a partnership or joint venture of four private firms. These firms were responsible for designing the hospital and preparing drawings, plans, and specifications that detailed how the hospital was to be built, including the types and quantities of materials for the project.
Globetrotters Engineering Corporation (Globetrotters) was one of four private firms selected in early 1997 to form the design team for the CCH project. Although Globetrotters was retained by the County to do the electrical and mechanical design work, including lighting design and specification, the County's agent on the CCH project always was Turner.
Parker was employed by Globetrotters as a senior electrical engineer. He was responsible for the electrical and lighting design for the new CCH. His responsibilities included the drafting of a lighting fixture schedule or specifications of fixtures to be installed in the new CCH.
Parker drafted the lighting specifications which became the subject matter of this lawsuit. Although he was responsible to ensure the information on the lighting specifications was accurate and met Globetrotters' quality assurance guaranties before he sent it out for bidding in January 1998, he sent out "incomplete" lighting specifications.
In the fall of 1997, Larson decided she wanted to sell Holcor products for use in the CCH project. At the time, she was president of Holcor. Holcor was a women's business enterprise (WBE) that manufactured, among other things, fixtures for institutional applications such as hospitals.
Larson was disturbed by Parker's lighting specifications for the CCH project. Specifically, she believed they authorized bids from companies that were not manufacturers, did not meet Globetrotters' quality specifications, and/or were owned or affiliated with Jeff Baum of Total Lighting Resources (TLR) and Design Galleries. She felt Baum was preferred on the lighting specifications because of a rumored "special relationship" between Baum and Parker, i.e., they were brothers-in-law.
After Larson conducted an investigation of Parker and spoke to several people in the lighting industry familiar with the CCH project, she met with Turner's Ken Mullin, the program manager who represented the County on the CCH project. They discussed Larson's concern that Parker "rigged" the lighting specifications of the CCH project in favor of his "brother-in-law" Baum. Mullin, after conducting his own investigation, told Larson he could not substantiate any of her concerns and/or allegations. Mullin declined to investigate Parker's lighting specifications any further, causing Larson to write the letters which led to this lawsuit.
Parker contends the trial court erred in granting summary judgment in favor of Larson on his defamation per se and false light invasion of privacy claims.
Summary judgment is appropriate where "the pleadings, depositions and admissions, together with the affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 399, 719 N.E.2d 1101 (1999), citing 735 ILCS 5/2-1005(c) (West 1996). The party opposing summary judgment does not have to prove his or her case, but must present some factual basis arguably entitling him or her to judgment. Dunlap v. Alcuin Montessori School, 298 Ill. App. 3d 329, 338, 698 N.E.2d 574 (1998).
We note that while summary judgment is "encouraged as an aid in the expeditious disposition of a lawsuit [citation], it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. [Citations.]" Vickers, 308 Ill. App. 3d at 399, quoting Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986).
We review de novo the trial court's ruling on a motion for summary judgment. Vickers, 308 Ill. App. 3d at 399. Although the scope of our review of a summary judgment motion is limited to the record as it existed at the time the trial court ruled, we are not restricted to the exact reasons the trial court stated or implied in entering its order. Dunlap, 298 Ill. App. 3d at 338. We may affirm the trial court's decision for any reason in the record, regardless of its basis for the decision. Dunlap, 298 Ill. App. 3d at 338.
To prove defamation, a plaintiff must show (1) the defendant made a false statement about the plaintiff, (2) there was an unprivileged publication to a third party with fault by the defendant, and (3) the publication damaged the plaintiff. Vickers, 308 Ill. App. 3d at 400.
The law of defamation is well-settled:
"A statement is considered defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him. [Citations.] Certain limited categories of defamatory statements are deemed actionable per se because they are so obviously and materially harmful to the plaintiff that injury to the plaintiff's reputation may be presumed." Van Horne v. Muller, 185 Ill. 2d 299, 307, 705 N.E.2d 898 (1998).
Illinois recognizes five categories of statements which are considered actionable per se, two pertinent to this case: (1) those imputing the commission of a criminal offense; and (2) those imputing an inability to perform or want of integrity in the discharge of duties of office or employment. Van Horne, 185 Ill. 2d at 307. In determining whether the statement is defamatory, we must "focus on the predictable effect the statement had on those who received the publication." Dunlap, 298 Ill. App. 3d at 339.
This case centers on Larson's January 12, 1998, letter. We set it out in full:
"Mr. Ken Mullin, Project Executive Turner Construction Company 230 S. LaSalle Street Chicago, IL 60604-1413
Enclosed is some of the documentation on the Cook County hospital lighting specifications that we have discussed on several previous occasions.
Our concern, as we have advised, is that the specification of the lighting is rigged. The specifications are written so that only one lighting representative, Mr. Jeff Baum, of TLC and Design Galleries, has a complete lighting package. In our industry, if you cannot present a complete lighting package, you are usually unable to bid the job competitively or successfully.
As shown in the attached spreadsheet, only Mr. Baum is able to bid the entire job. In several cases, the spec does not list "apples to apples". For example, Mr. Baum's fixture is listed against higher quality, higher cost products, giving him a price advantage in supplying a lesser quality product. Additionally, on one item, F24R, Mr. Baum is listed as the only approved fixture, as a "one name spec". As a comparison, we have only included P&G, the agent able to bid the most items. P&G has bid items that are not approved to improve the coverage of the bid. Other agents have far fewer items than P&G that they are able to bid and have little chance of winning the job.
Our concerns are exacerbated by the fact that the specifier, Mr. Ted Parker of Globetrotters, is Mr. Jeff Baum's brother-in-law. It appears that he has rigged the specifications so that only his relative can bid and win the job.
In addition, Globetrotter's Mr. Parker has violated his own specifications in rigging this bid. In the "Quality Assurance" section of the Lighting requirements, the specifications read as follows:
Section 16510, 1.3 Quality Assurance A Manufacturer's Qualifications: Firms regularly engaged in the manufacture of interior lighting fixture of the types and ratings required, whose products have been in satisfactory use in similar service for not less than 5 years.
Globetrotter's Mr. Parker has listed 2 companies that exist in name only and do not meet this specification. They are PMC and Lexes. These companies are owned by Mr. Jeff Baum, Mr. Parker's brother-in-law, and are not manufactures in any sense of the word. Mr. Baum's non-existent manufacturers represent $500,000 of the lighting ...