Kolegas v. Heftel Broadcasting Corp.

578 N.E.2d 299, 217 Ill. App. 3d 803, 19 Media L. Rep. (BNA) 2020, 161 Ill. Dec. 172, 1991 Ill. App. LEXIS 1459
CourtAppellate Court of Illinois
DecidedAugust 29, 1991
DocketNo. 2-90-0992
StatusPublished
Cited by6 cases

This text of 578 N.E.2d 299 (Kolegas v. Heftel Broadcasting Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kolegas v. Heftel Broadcasting Corp., 578 N.E.2d 299, 217 Ill. App. 3d 803, 19 Media L. Rep. (BNA) 2020, 161 Ill. Dec. 172, 1991 Ill. App. LEXIS 1459 (Ill. Ct. App. 1991).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Anthony, Donna, and Christopher Kolegas, appeal the dismissal of their first amended complaint by the trial court. Plaintiffs brought this action against defendants, Tim and Beth Disa, two WLUP-AM radio personalities, et al., for defamation, publication of an injurious falsehood, invasion of privacy, and reckless infliction of emotional distress. Defendants moved to dismiss the complaint for failure to state a cause of action pursuant to section 2 — 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) After a hearing on the matter, the trial court dismissed the complaint. We affirm in part and reverse in part.

This action was brought as a result of a radio broadcast on April 26, 1988. According to the amended complaint, Anthony Kolegas was engaged in the business of promoting and producing classic cartoon festivals. In April 1988, Kolegas was preparing for a cartoon festival to be held on April 30 and May 1, 1988. The complaint alleged the cartoon festival was to be a benefit for public awareness of neurofibromatosis, which was once known as the elephant man’s disease. Kolegas intended to donate a portion of the proceeds from the festival to the National Neurofibromatosis (NF) Foundation, Inc. The complaint also alleged that Kolegas’ wife, Donna, and his son, Christopher, were afflicted with the disease.

Kolegas hired Evergreen Media Corporation of Chicago AM to advertise the festival on WLUP-AM from April 25, 1988, through May 1, 1988. On April 26, shortly after the advertisement aired during the broadcast of a radio program featuring Tim and Beth Disa, Kolegas telephoned WLUP-AM. A conversation ensued between Kolegas and Tim and Beth Disa on the air. Kolegas was allowed to introduce himself by name. He stated that he was the producer of the cartoon festival described in the advertisement. He also described the dates and times of the festival, as well as its location.

During the conversation, Kolegas stated that a portion of the proceeds from the festival would benefit the NF Foundation. In response to questions posed by Tim and Beth Disa, Kolegas explained that NF was neurofibromatosis, or elephant man’s disease. Beth Disa asked Kolegas how he was involved, and Kolegas replied that his wife and son had elephant man’s disease. Tim Disa then stated on the air, “You’re gone,” and disconnected Kolegas.

The amended complaint alleges that shortly after the conversation, Tim Disa stated on the air that Kolegas was not for real and that Beth Disa stated that Kolegas was “scamming” them. The amended complaint also alleges that both Tim and Beth Disa stated that “there was no such show as the classic cartoon festival” described by Kolegas.

In addition, the complaint alleges Tim Disa stated, “Why would someone marry a woman if she had Elephant Man disease? It’s not like he couldn’t tell — unless it was a shotgun wedding.” Allegedly, Beth Disa replied that it must have been a shotgun wedding. Shortly after the comments concerning the shotgun wedding, the complaint alleges that Tim Disa stated, “If he is producing it, he’s only producing it part-time. The rest of the time he’s too busy picking out their wardrobe. You know, he has to make sure they have large hats to cover their big heads and make sure that all of their collars are big enough to fit.” Beth Disa allegedly indicated her agreement with that statement. Kolegas’ five-year-old son, Christopher, was listening to the broadcast. Kolegas alleges these statements were made wantonly and maliciously, and with knowledge of, or with reckless disregard as to their truth or falsity.

Count I was brought in the name of Anthony Kolegas alone. It alleges the statements made by the Disas concerning Kolegas’ business were false and defamatory. In particular, Kolegas alleges the statements made by the Disas that he was “not for real,” that he was “scamming” the Disas, and that “there was no such show as the classic cartoon festival” prejudiced him in the business of producing and promoting classic cartoon festivals. Kolegas alleges that, as a proximate result of these false and defamatory statements, he was greatly injured in his reputation and business and that the attendance receipts earned from the festival held April 30 and May 1, 1988, were greatly diminished. Defendants claim these statements are insufficient to support a cause of action for defamation because they consist of constitutionally protected opinion, rhetorical hyperbole, and are capable of an innocent construction. We disagree.

Defamatory statements may be actionable per se or actionable per quod. A statement is actionable per se if it is “so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary.” (Owen v. Carr (1986), 113 Ill. 2d 273, 277; Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 731.) Statements are actionable per quod if they necessitate extrinsic facts or innuendo to explain their defamatory meaning, and require evidence demonstrating, as a matter of fact, that some substantial injury resulted to the aggrieved person from their use. (Heerey v. Berke (1989), 188 Ill. App. 3d 527, 532; Schaffer v. Zekman, 196 Ill. App. 3d at 731.) Among other things, a statement is actionable per se if it imputes an inability to perform or want of integrity in the discharge of duties of office or employment or if it prejudices a particular party in his or her profession or trade. (Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 414; Lowe v. Rockford Newspaper, Inc. (1989), 179 Ill. App. 3d 592, 595.) The statements at issue in count I appear to fall within this category.

A cause of action will not be dismissed under section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) unless it clearly appears that no set of facts can be proved which entitle plaintiff to recover. (Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App. 3d 524, 527; Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 111. App. 3d 182, 187.) All facts which are well pleaded are to be construed as true, as well as all reasonable inferences favorable to the nonmoving party which can be drawn from those facts. (Downers Grove Volkswagen, 190 Ill. App. 3d at 527; Century Universal Enterprises, 158 Ill. App. 3d at 187.) Although the question of whether a statement is reasonably understood as defamatory is generally a question of fact for the jury, it is nevertheless the role of the court to determine, in the first instance, if the alleged defamatory remark is reasonably susceptible to an innocent construction. Heerey v. Berke (1989), 188 Ill. App. 3d 527, 530.

In Chapski v. Copley Press (1982), 92 Ill. 2d 344, our supreme court explained how the rule of innocent construction is to be applied. The court stated:

“We therefore hold that a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dancor Construction, Inc. v. FXR Construction, Inc.
2016 IL App (2d) 150839 (Appellate Court of Illinois, 2016)
Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc.
853 N.E.2d 770 (Appellate Court of Illinois, 2006)
Becker v. Zellner
292 Ill. App. 3d 116 (Appellate Court of Illinois, 1997)
Kumaran v. Brotman
617 N.E.2d 191 (Appellate Court of Illinois, 1993)
Kolengas v. Heftel Broadcasting Corp.
578 N.E.2d 299 (Appellate Court of Illinois, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
578 N.E.2d 299, 217 Ill. App. 3d 803, 19 Media L. Rep. (BNA) 2020, 161 Ill. Dec. 172, 1991 Ill. App. LEXIS 1459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolegas-v-heftel-broadcasting-corp-illappct-1991.