Eubanks v. Northwest Herald Newspapers

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-08-0812 Rel

Case Date: 01/22/2010

Preview:No. 2--08--0812 Filed: 1-22-10 _____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ CAROLENE A. EUBANKS, ) Appeal from the Circuit Court ) of McHenry County. Plaintiff-Appellant, ) ) v. ) No. 07--L--205 ) NORTHWEST HERALD NEWSPAPERS, ) d/b/a Northwest Herald, an Entity of an ) Unknown Nature, f/k/a Northwest Herald, ) Inc., ) Honorable ) Maureen P. McIntyre, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE SCHOSTOK delivered the opinion of the court: On June 15, 2007, the plaintiff, Carolene Eubanks, filed a complaint against the defendant, Northwest Herald Newspapers, alleging defamation and false light invasion of privacy based on a short article indicating that she had been arrested and charged with retail theft and obstruction of justice. The defendant filed a motion for summary judgment, arguing that the publication could not be held defamatory under the fair-report privilege. On August 20, 2008, the trial court granted the defendant's motion for summary judgment. The plaintiff appeals from that order. On appeal, the plaintiff argues that the fair-report privilege should not apply because the subject publication was not "accurate and complete" and that a question of fact was raised as to whether the defendant abused or forfeited that privilege. We affirm.

No. 2--08--0812 The record reveals that on Friday, December 29, 2006, the defendant received an e-mail from the Lake in the Hills police department at 2:08 a.m. The e-mail was a Lake in the Hills police department "Daily Bulletin" dated December 28, 2006. The document stated, in relevant part, as follows: "L06--14615 RETAIL THEFT OFC LATHROP (NS) 1610 HRS 101 N RANDALL RD (DOMINICKS) F/W 49 YOA

EUBANKS, CAROLENE A 25 PERSHING AVE

LAKE IN THE HILLS, IL

CHARGES: RETAIL THEFT UNDER, ATTEMPT TO OBSTRUCT JUSTICE. SUBJECT BONDED."

It is standard practice for the defendant to receive e-mails from local police agencies about recent criminal arrests and to publish that information in its newspaper. On this occasion, the December 29 e-mail was opened and read by an employee for the defendant, Brenda Schory, at 1:14 p.m. Based on this e-mail, Schory prepared the following article: "Carolene A. Eubanks, 49, 25 Pershing Ave., Lake in the Hills, was charged Thursday, Dec. 28, with retail theft and attempted obstruction of justice." Schory then placed the article in line for publication in the upcoming issue of the newspaper. The article was eventually printed before 6 a.m. on January 2, 2007, and appeared in the defendant's newspaper on the same date. The Lake in the Hills police department had also sent a second e-mail on December 29, 2006, at 10:25 p.m. The second e-mail contained the following: "Please remove the identifiers of 'Eubanks, Carolene A. F/W 49 YOA, 25 Pershing Ave.,

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No. 2--08--0812 Lake in the Hills, IL' from the arrest for Retail Theft on 122806 and replace with Bradshaw, Barbara J. F/W 44 YOA, 73 N. Geneva St. Elgin, IL." Unfortunately, Schory and the defendant's other employees left the office before the second e-mail was sent. In addition, the weekend of December 30, 31, and January 1 was a holiday weekend and no employees were at the defendant's office during that period. Pursuant to an affidavit filed by the defendant, the first time the second e-mail was read was on January 2, 2007, at 10:17 a.m. Thus, the January 2, 2007, edition of the defendant's newspaper, printed before 6 a.m. on that date, published the article indicating that the plaintiff had been arrested and charged with theft and attempted obstruction of justice. The defendant published a retraction of the article in its January 3, 2007, newspaper, stating that the plaintiff was not the one charged with those crimes. On June 15, 2007, the plaintiff filed her complaint for defamation and false light invasion of privacy based on the January 2, 2007, publication. The defendant filed a motion for summary judgment on November 29, 2007, asserting that it was immune from the plaintiff's claims under the fair-report privilege. Attached to the defendant's motion was the affidavit of Schory. The affidavit revealed that Schory was an employee of the defendant and that it was her job to check e-mails received from police agencies; however, she was under no obligation to check over the holiday weekend. Schory averred that she had not been able to open the second e-mail until after the false information about the plaintiff had already been published. On May 12, 2008, the trial court denied the defendant's motion for summary judgment. The trial court reasoned that there was no evidence of whether any other employee of the defendant opened and read the second e-mail before the defamatory article was published. On June 23, 2008, the defendant renewed its motion for summary judgment, attaching an affidavit of Ben Shaw. This

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No. 2--08--0812 affidavit indicated that Shaw was the defendant's employee responsible for maintaining the defendant's computer system. Shaw reviewed the defendant's computer records and researched the history of e-mails the defendant received from the Lake in the Hills police department. According to Shaw, the records proved that no employee of the defendant had opened Lake in the Hills' second e-mail before 10:17 a.m. on January 2, 2007. On August 20, 2008, the trial court granted the defendant's renewed motion for summary judgment because "there [was] no issue of fact that the supplemental police report was not opened or read by anyone at the newspaper until after publication of the article at issue." 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. Parker v. House O'Lite Corp., 324 Ill. App. 3d 1014, 1019 (2001). The court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Maple Lanes, Inc. v. News Media Corp., 322 Ill. App. 3d 842, 844 (2001). We review de novo a trial court's ruling on a motion for summary judgment. Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 399 (1999). On appeal, the plaintiff first contends that the trial court erred in applying the fair-report privilege to the newspaper article at issue. Section 611 of the Restatement (Second) of Torts defines the fair-report privilege as follows: "The publication of defamatory matter concerning another in a report of an official action or proceeding *** is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported." Restatement (Second) of Torts

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