Illinois Defamation Law: The Quick and Dirty

Defamation is a false, factual statement published to a third party reader or listener.  Illinois recognizes two types of defamation – libel (written) and slander (oral) and the same rules apply to both.

A defamation plaintiff must present sufficient facts establishing (1) a false statement about the plaintiff, (2) that’s not privileged, (3) to a third party; and (4) that caused damages.

A defamatory statement is per se (meaning no proof of specific damages are required)  defamatory when it’s harmful on its face.  Defamatory per se statements are those that (1) impute that a plaintiff committed a crime; (2) impute a plaintiff is unable to perform or lacks integrity in his employment; or (3) statements that plaintiff lacks ability or that otherwise prejudices the plaintiff in her profession.

Only statements that are factual (“he stole $1,000 from me”) – capable of being proven true or false – are actionable; opinions are not (“I think he’s a nut job!”).  Calling someone a crook, a traitor, trashy, a rip-off artist are examples of non-defamatory statements of opinion under prior Illinois cases.

Even per se defamatory statements are not actionable if they are reasonably capable of an innocent construction.  Under the innocent-construction rule, a court considers a statement in context and gives words their natural and ordinary meaning.  If a statement in context is reasonably susceptible to a nondefamatory meaning, it should be given that meaning.

Truth is a defense to defamation.  The challenged statement doesn’t have to be completely true; it’s enough that it’s ‘substantially true’.  A defamatory statement is also not actionable where it’s subject to a privilege.  Two privileges the law recognizes are absolute and qualified privileges.

Qualified privilege applies where as a matter of law and general policy, the defendant has an interest in or duty to make the communication such that it’s privileged.  A classic example of a qualified privilege statement involves a corporation’s statement made while  investigating an employee’s conduct.

Once a qualified privilege attaches, the plaintiff must prove that the defendant intentionally published the material knowing it was false or displaying a reckless disregard as to it truth.  “Reckless disregard” means the speaker made a statement aware that it’s probably false with serious doubts as to its truth.

Source: Coghlan v. Beck (http://www.state.il.us/court/opinions/AppellateCourt/2013/1stDistrict/1120891.pdf

Preliminary Injunctions and The Illinois Trade Secrets Act

Trade secrets cases provide fertile grounds for preliminary injunctions and temporary restraining orders.  Here are the black-letter basics:

– A preliminary injunction plaintiff must show: (1) irreparable harm, (2) likelihood of success on the merits, (3) the harm the plaintiff would suffer if the injunction is denied is greater than the harm inflicted on the defendants and (4) the injunction is in the public interest;

– To win a trade secrets case, the plaintiff must establish (1) that the information at issue is a trade secret, and (2) that the information was misappropriated and used in the defendant’s business;

– A trade secret is broadly defined as “information” that is (a) sufficiently secret to derive monetary value from not being generally known to others (who can obtain monetary value from its use); and (b) subject of efforts to maintain the information’s secrecy or confidentiality. See Illinois Trade Secrets Act, 760 ILCS 1065/2 (the ITSA);

– Six common-law trade secrets factors include

(1) extent to which the information is known outside of plaintiff’s business,

(2) extent to which the information is known by employees and others involved in plaintiff’s business;

(3) extent of measures taken by plaintiff to guard the information’s secrecy;

(4) value of the information to the plaintiff’s business and its competitors;

(5) the amount of time, effort and money expended by the plaintiff in developing the information; and

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others;

– Misappropriation means acquisition or discovery by improper means or use of the secret;

– There is a presumption of irreparable harm in trade secrets misappropriation cases;

– Irreparable injury means harm that is difficult to quantify;

– The purpose of a preliminary injunction (in the trade secrets context) is not to punish; but to eliminate a litigant’s unfair advantage over another.

 

 

 

  

 

 

 

 

 

 

 

 


General Contractor Can Be Liable For Subcontractor Mishap: The ‘Retained Control’ Exception

stilts2In Lederer v. Executive Construction, 2014 IL App (1st) 123170, a drywall subcontractor’s employee sued a general contractor and an electrical subcontractor after the stilt-walking employee tripped on an uncovered electrical outlet at a downtown (Chi.) office building construction site.  The outlet was left uncovered by the electrical subcontractor who was hired by the general contractor.  The plaintiff’s theory of recovery was negligence: he argued that the general contractor owed and breached a legal duty of care to the plaintiff (and others like him) to ensure that the electrical subcontractor was adhering to project safety requirements.

The general contractor moved for summary judgment on the basis that it didn’t supervise the electrical subcontractor and wasn’t responsible for plaintiff’s injuries.  The trial court agreed and granted summary judgment for the general contractor. The plaintiff appealed.

Result: summary judgment for the general contractor reversed. Questions of fact concerning the degree of control the general contractor exerted over the project and the plaintiff’s work precludes summary judgment.

Rules/Reasoning:

The First District found that the evidence showed that the general contractor exerted enough supervisory control over the project that it could be liable for an independent (sub)contractor’s negligence.  The following liability principles controlled the Court’s analysis:

– Under Illinois negligence law, whether a duty exists is a question of law to be determined by the court;

 – A general contractor defendant is usually not liable for negligence of an independent contractor;

 – Under Section 414 of the Restatement (Second) of Torts, a defendant can be liable for the negligence of an independent contractor where it retains (a) control over the operative detail of the independent contractor’s work; or (b) “supervisory control” over the work;

 – Supervisory control consists of the power to direct the order in which a contractor’s work is to be done;

 – But, a defendant is not liable where he merely has a general right to order work stopped or resumed, to inspect work progress and to receive status reports. In such a case, there isn’t enough control to subject the defendant to liability for the independent contractor’s negligence;

 – The best indicator of whether a contractor has retained control is the parties’ contract;

 – A defendant general contractor only needs to retain control over a single part of the overall work to be subject to liability for failure to exercise control with reasonable care.

(¶¶48-58); Restatement (Second) of Torts, s. 414, comments a-c.

Here, the Court pointed to substantial record evidence that showed the general contractor controlled and supervised multiple aspects of  both the electrical sub’s and the drywall sub’s (the plaintiff’s employer) work including: (1) retaining authority to stop unsafe work; (2) ensuring that all subs followed the general contractor’s safety policies; (3) having a strong work site presence; (4) having its safety coordinator visit the site regularly; and (5) all subcontracts had extensive references to project safety and required all subs to adhere to the defendant’s written safety guidelines.

Significantly, the defendant’s safety manual specifically banned the use of the type of stilts the plaintiff was using (to reach the high ceiling) when he was injured.  Taken together, these facts established as a matter of law that the defendant knew or should have known of the dangerous conditions surrounding the plaintiff’s injury.  (¶¶ 62-64).

Take-aways:  Aside from providing a thorough synopsis of the relevant negligence principles and liability-shifting rules that govern construction project injuries, the case should serve as a cautionary tale for general contractors who carry on an active presence on a job site.  It’s clear that if a general contractor exerts even a modicum of control over a subcontractor and takes an active role for setting the safety guidelines on a project, that contractor may be held liable for a subcontractor’s employee’s on-site injuries; at least enough to survive summary judgment.