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February 4, 1999

NO. 4-98-0490

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

____________________________________________________________

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Plaintiff, Theodore R. Turner, appeals the trial court's dismissal of his defamation and intentional interference with contract claims. We affirm.

I. BACKGROUND

Turner is a police officer for the University of Illinois police department in Champaign, Illinois, and has been since 1988 or 1989. In April 1995 Turner was placed on administrative leave with pay following reprimands and an evaluation by Dr. Campion finding Turner unfit for duty.

In May 1995 Turner's supervisor, Captain Krystal Fitzpatrick, contracted defendant, Dr. David Fletcher, M.D., MPH FACOEM (Master Public Health, Fellow American College Occupational and Environmental Medicine), to evaluate Turner's fitness for duty. Fletcher is a board-certified occupational and preventive medicine practitioner affiliated with Midwest Occupational Health Associates. In a five-page letter to Fletcher, Fitzpatrick detailed the department's observations of Turner's on-the-job conduct and the effect of that conduct on Turner's fellow officers, supervisors, and members of the public. Fitzpatrick noted a recent increase in the frequency and intensity of Turner's inappropriate conduct.

Fletcher first met with Turner in June 1995 but Turner refused to cooperate on the advice of his attorney. Turner was more cooperative at a second examination in July. Following the appointment, Fletcher referred Turner to Dr. Chapman, a psychiatrist, for further evaluation. In August 1995 Dr. Chapman concluded Turner suffered "no mental disease, disorder, or defect, or any other mental condition that substantially impaired his capacity to serve in a full range of duties as a police officer." Dr. Chapman's report was submitted to Fletcher.

Later in August 1995, Fletcher delivered the results of his evaluation, in the form of a letter, to Fitzpatrick. The letter included the following paragraph, which Turner deems actionable:

"I have concluded my evaluation on Ted Turner. It is my opinion Ted Turner is not fit for duty as a police officer. He was examined by Dr. Chapman[,] who did not find any overt psychiatric diagnosis. However, based on my total involvement in this case plus the review of the records, and input from all sources I do not believe that he is fit to function as a police officer." (Emphasis in original.)

In the same letter, Fletcher also wrote:

"My observations are based on three evaluations on Mr. Turner, as well as the review of the case file. *** This specialist feels that his ability to function as a police officer needs to be based on his total work records, interaction with co-workers, citizen's complaints, and other pertinent sources. I believe that he is impaired in his ability to respond effectively in emergency situations." (Emphasis in original.)

After Fletcher's evaluation was submitted, Turner was given an opportunity to get a second opinion while he remained on paid leave. When, at the end of November 1995, Turner still had not seen another specialist, he was put on unpaid leave. By February 1996 Turner was evaluated and found fit for duty by Dr. Traugot and was reinstated on February 4, 1996.

In August 1996 Turner filed this action seeking $50,000 plus costs of the suit as compensatory damages for loss of income, emotional and mental distress, embarrassment, humiliation, loss of appetite, loss of sleep, and loss of reputation amongst his colleagues. Count I alleges tortious interference with contract, and Count II alleges defamation for the paragraph indicated above.

Fletcher filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)), which was denied after a hearing in August 1997, but then granted following another hearing in May 1998. The trial court granted Fletcher's motion to dismiss both counts because the statement at issue is subject to a qualified privilege and any argument that the privilege was abused is without merit. The trial court further held Fletcher's statement is an opinion and subject to innocent construction. This appeal followed.

II. ANALYSIS

An action may be dismissed pursuant to section 2-619 when the asserted claim is barred by other affirmative matter that defeats the claim or voids its legal effect. "An 'affirmative matter' includes something in the nature of a defense that completely negates the alleged cause of action." Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 870, 658 N.E.2d 1225, 1233 (1995).

Dismissal of a cause of action on the pleadings is only proper when no set of facts can be proved that would entitle the plaintiff to recover. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 483, 639 N.E.2d 1282, 1289 (1994). In making this determination, the court takes all well-pleaded facts as true, and all reasonable inferences therefrom are construed in plaintiff's favor. Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108, 111 (1991). An appeal from an involuntary dismissal is subject to de novo review. In re Estate of Mayfield, 288 Ill. App. 3d 534, 542, 680 N.E.2d 784, 789 (1997).

A. Defamation

Because "[a]n otherwise defamatory statement is not actionable if made under a qualified privilege," (Larson v. Decatur Memorial Hospital, 236 Ill. App. 3d 796, 799, 602 N.E.2d 864, 867 (1992)), we first consider the trial court's finding of privilege. Illinois follows the Restatement (Second) of Torts in determining whether a qualified privilege should be recognized in a given situation. Gist v. Macon County Sheriff's Department, 284 Ill. App. 3d 367, 372, 671 N.E.2d 1154, 1158 (1996). Conditional privileges generally fall into three categories: "(1) situations which involve some interest of the person who publishes the defamatory matter; (2) situations which involve some interest of the person to whom the matter is published or of some third person; and (3) situations which involve a recognized interest of the public." Gist, 284 Ill. App. 3d at 372-73, 671 N.E.2d at 1158. Whether a qualified privilege exists is a question of law. Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 619 N.E.2d 129 (1993); Larson, 236 Ill. App. 3d at 802, 602 N.E.2d at 869. Courts must look only to the occasion giving rise to the defamation action to determine whether, as a matter of public policy, the occasion created some recognized duty or interest that makes communication of the defamatory statement in that situation conditionally privileged as a matter of law. Kuwik, 156 Ill. 2d at 27, 619 N.E.2d at 134. The inquiry is a general one, requiring the court to weigh the value of the type of interest to be protected against the degree of damage to be expected from release of the type of defamatory matter involved. Kuwik, 156 Ill. 2d at 28, 619 N.E.2d at 134.

Sound public policy supports recognition of a privilege for statements made under the circumstances of this case. An effective process for evaluating fitness of police officers is essential to ensuring public safety and maintaining a reliable, responsible police force. Subjecting evaluators who conscientiously fulfill their contractual obligations to provide such evaluations to the apprehension that such work may subject them to civil suits would cripple the effective administration of such evaluations. Cf. Muthuswamy v. Burke, 269 Ill. App. 3d 728, 731, 646 N.E.2d 616, 619-20 (1993) (held, statements of hospital department head pertaining to the performance of a staff physician are covered by qualified privilege, and effective review of the professional capabilities of physicians is a matter of serious public policy).

The authors of the Restatement anticipated defamation claims under these circumstances and specifically addressed the applicability of a privilege in the comments to section 598: "The duties of a public officer include supervision of inferior officers, and this supervision in many cases carries with it the power to remove or discipline the inferiors for neglect of duty or malfeasance in office ***. In performing this duty of supervision, it is desirable that public officers have extensive information concerning the conduct of their subordinates, in order that they may intelligently exercise their discretion. Therefore, a defamatory publication made by a citizen to a public officer concerning the work of a subordinate under his control or supervision is conditionally privileged." Restatement (Second) of Torts