JUSTICE LAVIN delivered the judgment of the court, with opinion.
Appeal from the Circuit Court of Cook County. No. 16 L 8406 The Honorable Moira Johnson, Judge Presiding. JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiff Omid Shariat Razavi now files his second interlocutory appeal relating to his defamation action against defendants Eva Walkuski and Ariel Zekelman. Defendants filed separate motions to dismiss under section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2016)), both of which the circuit court granted after finding an absolute privilege precluded the lawsuit from proceeding. Plaintiff now contests that judgment on appeal. For the reasons to follow, we affirm.
¶ 2 BACKGROUND
¶ 3 In fall 2011, plaintiff, then age 29, and also Walkuski, then age 19, and Zekelman were students at the School of the Art Institute of Chicago (SAIC), a private institution, and all three lived in the SAIC dormitory. Walkuski and Zekelman were friends, and at some point before December 2011, plaintiff and Walkuski were also friends. In early September 2013, Walkuski reported to the SAIC campus security director and the director of student outreach that plaintiff had sexually assaulted her in 2011 and had stalked her in 2012 and 2013. Specifically, she reported to SAIC that plaintiff "repeatedly engaged in harassing behavior by following her around campus, contacting her against her wishes, and staring at her for extended periods of time during" spring 2012 and fall 2013. ¶ 4 About a week after Walkuski told SAIC campus security and authorities about plaintiff's actions, on September 13, 2013, SAIC's campus security director escorted Walkuski to the Chicago Police Department where she filed an incident report pertaining to the sexual assault and stalking. Around the same time, Zekelman reported to campus security an incident in plaintiff's dormitory, where while sleeping in a separate bed, she awoke to find plaintiff on top of her and kissing her in spite of Zekelman's expressed wishes not to have any physical contact. ¶ 5 These reports prompted several conversations between plaintiff and Patrick Spence, associate dean of student affairs, along with the campus security director. Plaintiff did not deny the sexual contact with Walkuski but claimed it was consensual and sometimes initiated by Walkuski. He presented campus security with a photograph and text messages and also denied the truth, reported to agents and employees of SAIC that plaintiff had sexually assaulted her in 2011 and had subsequently contacted her against her wishes and stalked her in 2012 and 2013. Plaintiff alleged that Walkuski made these statements to SAIC authorities knowing that they would constitute rule violations leading to his expulsion. Regarding Zekelman, plaintiff alleged she falsely, or with reckless disregard for the truth, reported to agents and employees of SAIC that plaintiff battered or sexually assaulted her in March 2012. He alleged her false allegations were considered in relation to Walkuski's allegations and contributed to SAIC's decision to expel him. ¶ 15 Again, Walkuski and Zekelman filed motions to dismiss under section 2-619(a)(9) of the Code. They argued that an investigation is a continuum and that it would make little sense to apply different levels of privilege to the same statements made at different points in an investigation. They argued that since their initial reports to campus security were absolutely privileged, so too were their subsequent statements to SAIC officials during the investigation and resolution of their complaints. In addition, Walkuski argued the restatements to SAIC officials of her initial crime report were absolutely privileged because they "were made as part of communications required by law." ¶ 16 On May 3, 2017, the circuit court granted their motions and dismissed the relevant counts in plaintiff's first amended complaint based on absolute privilege. The case remained pending as to SAIC, and accordingly, the court made an Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) finding that there was no just reason to delay enforcement or appeal of the order. Plaintiff then filed this interlocutory appeal, challenging the trial court's judgment.
¶ 17 ANALYSIS
permitting such statements as outweighing the harm which may be done to the reputation of others. Weber, 209 Ill. 2d at 942. ¶ 21 Indeed, according to the Restatement (Second) of Torts, absolute privilege recognizes that certain individuals, due to their special position or status,
"should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position. Therefore the privilege, or immunity, is absolute and the protection that it affords is complete." Restatement (Second) of Torts, ch. 25, topic 2, tit. B, intro. note, at 243 (1977).
¶ 22 The privilege embraces actions required or permitted by law in the course of judicial or quasi-judicial proceedings, as well as actions "necessarily preliminary" to judicial or quasi-judicial proceedings.
Layne v.
Builders Plumbing Supply Co.,
210 Ill. App. 3d 966, 969 (1991). In addition, section 592A of the Restatement (Second) of Torts says, "One who is required by law to publish defamatory matter is absolutely privileged to publish it." Restatement (Second) of Torts § 592A, at 257 (1977). According to the comment, "This Section rests upon the principle that one who is required by law to do an act does not incur any liability for doing it." Restatement (Second) of Torts § 592A cmt. b, at 257 (1977). As with a motion to dismiss, the question of whether a defamatory statement is protected by an absolute privilege is one of law for the court.
Layne, 210 Ill. App. 3d at 969.
correct decision for any reason appearing in the record, regardless of the basis relied upon by the trial court. See
Weber, 209 Ill. App. 3d at 947.
Here, plaintiff alleged both defamation per quod, requiring him to plead and prove actual damages, and defamation per se, which does not require proof of actual damages for recovery. See Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶ 68.
Although not entirely clear, Plaintiff appears to argue that Zekelman first reported plaintiff's misconduct to SAIC authorities, including Dublon. This is contrary to the facts set forth in Razavi I, 2016 IL App (1st) 151435, ¶ 4. It is also contrary to plaintiff's initial complaint, wherein he alleged Zekelman falsely reported the misconduct to "campus security." In addition, Dublon's October 1, 2013, letter addressed to plaintiff, indicates Zekelman reported his sexual misconduct to campus security. We therefore reject plaintiff's claim.
As we noted in Razavi I, 2016 IL (1st) 1511435, ¶ 14 n.2, effective in 2015, the Illinois legislature enacted the Preventing Sexual Violence in Higher Education Act (Act) (110 ILCS 155/1 et seq. (West 2016)). The Act requires higher education institutions, including those that are for-profit like SAIC, to have a comprehensive policy to "address student allegations of sexual violence, domestic violence, dating violence, and stalking," consistent with federal and state law. 110 ILCS 155/5 (West 2016). The Act requires the comprehensive policy to identify procedures for reporting sexual violence, the institution's procedure for responding to a report of an alleged incident of sexual violence or misconduct, the complaint procedures, and possible sanctions that might be imposed, including expulsion. See 110 ILCS 155/10 (West 2016). This law is inapplicable to the present case, insofar as the policy in place and incidents occurred prior to the enactment of the Act. --------
¶ 42 CONCLUSION
¶ 43 For the reasons set forth above, we affirm the trial court's dismissal of plaintiff's defamation claims against both Walkuski and Zekelman. ¶ 44 Affirmed.