                                                             THIRD DIVISION
                                                             April 20, 2011


No. 1-09-2578


JERROLD GOLDBERG,                                            )       APPEAL FROM THE
     Plaintiff-Appellant,                                    )       CIRCUIT COURT OF
                                                             )       COOK COUNTY
                v.                                           )
                                                             )       No. 08 L 11614
                                                             )
ELEANOR BROOKS, KAREN BRADLEY, and                           )       HONORABLE
EVANSTON/SKOKIE SCHOOL DISTRICT 65,                          )       KATHY M. FLANAGAN,
     Defendants-Appellees.                                   )       JUDGE PRESIDING.


       JUSTICE STEELE delivered the judgment of the court, with opinion.
       Presiding Justice Quinn and Justice Murphy concurred in the judgment and opinion.

                                            OPINION

       Plaintiff Jerrold Goldberg appeals orders of the circuit court of Cook County dismissing

his defamation complaint against defendants Eleanor Brooks, Karen Bradley and

Evanston/Skokie School District 65 (District 65), and denying him leave to file an amended

complaint alleging defamation and tortious interference with contract by the defendants. For the

following reasons, we conclude that the circuit court did not err in ruling that the statements by

Brooks and Bradley were subject to an absolute privilege and that District 65 enjoyed statutory

immunity from Goldberg's claims in the complaint and the proposed amended complaint.

Accordingly, we affirm the circuit court.

                                         BACKGROUND

       The record on appeal discloses the following facts. On October 20, 2008, Goldberg filed

a complaint against the defendants sounding in defamation. The complaint alleges that Goldberg
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was previously employed by the Allenton Bus Company as a bus driver transporting children for

District 65. Brooks was employed by District 65 as a teacher's assistant. As part of her duties,

Brooks drove with Goldberg as he discharged his driver duties.

       Count I of the complaint also alleges that on October 26, 2007, Brooks told Bradley, the

principal of the Dawes school in District 65, that Goldberg drove her against her will to

Wilmette/Kenilworth and Winnetka before starting the bus route. Bradley then communicated

the statement to Goldberg's employer. Goldberg alleged that the statement was false and

damaged his reputation as a dependable employee.

       Count II alleged that Bradley, as part of her duties as principal of the Dawes school,

oversaw and commented on people serving the school's children. On November 2, 2007, Bradley

allegedly told Goldberg's employer that Goldberg had attempted or threatened to run over two

children crossing slowly in front of his bus. Bradley also allegedly told Goldberg's employer that

Goldberg did not seem to be a suitable person to work with children. Goldberg alleged that

these statements were false and damaged his reputation as a dependable employee.

       Count III of Goldberg's complaint sought to hold District 65 liable for the allegedly

defamatory comments of Brooks and Bradley, based on the theory of respondeat superior.

       On January 12, 2009, defendants filed a combined motion to dismiss, pursuant to section

2-619.1 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2008)). On

March 3, 2009, defendants filed an amended motion to dismiss, limited to section 2-619(a)(9) of

the Code (735 ILCS 5/2-619(a)(9) (West 2008)). Defendants argued: (1) Brooks' statement to


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Bradley was protected by a common law privilege; (2) Brooks cannot be liable for Bradley's

statement to Goldberg's employer, pursuant to section 2-204 of the Illinois Local Governmental

and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-204

(West 2006)); (3) Brooks' statement is also immunized by section 2-210 of the Tort Immunity

Act (745 ILCS 10/2-210 (West 2006)); and (4) Brooks' statement is further immunized by

section 15 of the Citizen Participation Act (735 ILCS 110/115 (West 2006)). Defendants also

argued that Bradley's statement was: (1) constitutionally protected opinion; (2) immunized by

section 2-210 of the Tort Immunity Act; (3) immunized by section 15 of the Citizen Participation

Act; and (4) made pursuant to a contractual right to request a driver reassignment. Defendants

further argued that District 65 is a local public entity immunized under sections 2-107 and 2-109

of the Tort Immunity Act. 745 ILCS 10/2-107, 2-109 (West 2006).

       Defendants supported their motion to dismiss with affidavits from Brooks, Bradley, and

Roger Allen, District 65's transportation manager. Brooks, in addition to detailing the incident in

which Goldberg drove outside Evanston, stated that riding on buses with students is an additional

task teacher's assistants can perform for additional pay. Brooks also stated that her

responsibilities while on the bus include supervising students and reporting any problems or

unusual incidents to Bradley. Brooks further stated that Goldberg told her several days before

the incident he served on a jury in a case involving a kidnapped dog, drove his bus to block the

defendant's driveway, and called the police to have the dog returned. Brooks stated she reported

the conversation to Bradley.




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       Bradley's affidavit states she received a telephone call from a parent claiming that

Goldberg yelled at her son and another student for crossing in front of his bus too slowly.

Bradley spoke to the students and then told Goldberg he should register any complaints with her,

rather than shout at students. Bradley's affidavit also recounts the conversation she had with

Brooks, adding that Brooks advised her that she no longer wanted to ride Goldberg's bus.

Bradley further states she contacted Allen to inform him she did not want Goldberg driving her

students any more. According to Bradley, Allen said he would request a reassignment and

requested she document the matter in writing, which she did in a letter to Allen.

       Allen's affidavit states that District 65 has the contractual right to request that Allenton

remove any driver deemed unfit or unsuitable for the district's transportation services. Allen

states after he received the letter from Bradley, he spoke to the district superintendent. After

receiving approval, he contacted Allenton to request Goldberg be reassigned. Allen states that he

was told Goldberg would be reassigned.

       On April 6, 2009, the circuit court issued a memorandum opinion and order dismissing

Goldberg's complaint. The circuit court ruled that the statements by Brooks and Bradley were

privileged because they were made within the scope of their employment as public employees

and in the performance of their official duties. The circuit court noted that the defendants'

arguments regarding sections 2-210 and 2-104 of the Tort Immunity Act were "well-taken." The

circuit court added that the Citizen Participation Act did not appear to apply to this case. Lastly,

the circuit court ruled that District 65 was immune under both sections 2-107 and 2-109 of the

Tort Immunity Act.


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         Goldberg filed a motion to vacate the dismissal and for leave to file an amended

complaint. Counts I through III of the proposed amended complaint were substantially similar to

the original defamation claims; counts IV through VI alleged tortious interference with contract.

On August 28, 2009, the circuit court issued a memorandum opinion and order denying

Goldberg's motion. On September 25, 2009, Goldberg filed a timely notice of appeal to this

court.

                                           DISCUSSION

         On appeal, the issues are whether the trial court erred in dismissing Goldberg's complaint

and denying him leave to file an amended complaint. We address each issue in turn.

                                      I. The Motion to Dismiss

         A motion to dismiss under section 2-619 of the Code "admits the legal sufficiency of the

plaintiff's claim but asserts ‘affirmative matter’ outside of the pleading that defeats the claim."

Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008). The Tort Immunity Act and, in defamation cases,

defenses based on privileges are affirmative matter that can be raised under section 2-619(a)(9)

of the Code. See Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 641-42 (2010)

(Freeman, J., specially concurring) (and cases and authorities cited therein); Hartlep v. Torres,

324 Ill. App. 3d 817, 819 (2001). The purpose of a dismissal under section 2-619 of the Code "is

to dispose of issues of law and easily proved issues of fact early in the litigation." Czarobski,

227 Ill. 2d at 369. When reviewing a motion to dismiss under section 2-619 of the Code, this

court " 'must consider whether the existence of a genuine issue of material fact should have

precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of


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law.' " Czarobski, 227 Ill. 2d at 369 (quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge,

156 Ill. 2d 112, 116-17 (1993)).

       Goldberg's complaint sounded in defamation. To establish defamation, the plaintiff must

show the defendant: (1) made a false statement about the plaintiff; (2) made an unprivileged

publication of that statement to a third party; and (3) damaged the plaintiff by publishing the

statement. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). A

statement is defamatory per se if the words impute that a person lacks integrity in performing his

job. Solaia Technology, LLC, 221 Ill. 2d at 580. An allegedly defamatory remark is "published"

when it is communicated to someone other than the plaintiff, including internal communication

within a company. Gibson v. Philip Morris, Inc., 292 Ill. App. 3d 267, 275 (1997).

                                     A. The Tort Immunity Act

       On appeal, Goldberg primarily argues the Tort Immunity Act does not shield the

defendants in this case. In interpreting a provision of the Tort Immunity Act, as with any statute,

our primary goal is to ascertain and give effect to the intention of the legislature. Ries v. City of

Chicago, No. 109541, slip op. at 8 (Ill. Feb. 25, 2011). The best evidence of legislative intent is

the language used in the statute itself, which must be given its plain and ordinary meaning.

Where the language of the statute is clear, we may not read into it exceptions that the legislature

did not express and we will give it effect as written. Elementary School District 159 v. Schiller,

221 Ill. 2d 130, 144 (2006).

       The circuit court dismissed the claim against District 65 pursuant to section 2-107 of the

Tort Immunity Act, which provides:


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       "A local public entity is not liable for injury caused by any action of its employees that is

       libelous or slanderous or for the provision of information either orally, in writing, by

       computer or any other electronic transmission, or in a book or other form of library

       material." 745 ILCS 10/2-107 (West 2006).

The plain language of section 2-107 of the Tort Immunity Act unambiguously immunizes

District 65 from liability in this case. See Horwitz v. Board of Education of Avoca School

District No. 37, 260 F.3d 602, 617 (7th Cir. 2001). Indeed, we note that Goldberg's brief

contains no discussion of section 2-107 of the Tort Immunity Act. Thus, we conclude the circuit

court did not err in dismissing the claim against District 65.

       Defendants also argue that Brooks and Bradley are immunized by section 2-210 of the

Tort Immunity Act, which provides:

       "A public employee acting in the scope of his employment is not liable for an injury

       caused by his negligent misrepresentation or the provision of information either orally, in

       writing, by computer or any other electronic transmission, or in a book or other form of

       library material." 745 ILCS 10/2-210 (West 2006).

Defendants argue that the statements by Brooks and Bradley are the "provision of information,"

which defendants claim is broader than the immunization of "negligent misrepresentation."

Goldberg maintains the word "negligent" must be read to apply to both misrepresentations and

the provision of information by any means.

       The word "or" is disjunctive. Schiller, 221 Ill. 2d at 145. Disjunctive connotes two

different alternatives. Id. Thus, "[a]s used in its ordinary sense, the word 'or' marks an


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alternative indicating the various parts of the sentence which it connects are to be taken

separately." Id. Moreover, we note that the phrase, "or the provision of information either

orally, in writing, in a book or other form of library material" was the result of an amendment to

the original version of section 2-210 of the Tort Immunity Act (Pub. Act 84-1431 (eff. Nov. 25,

1986)), as was the language regarding computer and electronic transmissions (Pub. Act. 89-100

(eff. July 7, 1995)). Thus, grammar, the rules of statutory construction, and legislative history all

point to the conclusion that the provision of information is a separate category from negligent

misrepresentation, providing a broad protection to public employees acting within the scope of

their employment.

       In this case, Brooks' affidavit states that the bus duty is not part of the assigned duties of a

teacher's assistant. However, she was paid additional money for the bus duty. Brooks also states

it was her responsibility to supervise the students and to report any problems or unusual incidents

to the principal. Similarly, Bradley merely passed the complaints from Brooks and a parent up

the internal chain to Allen. Goldberg submitted no counteraffidavit or evidence creating a

genuine issue of material fact on this issue. While affirmative matter must be more than

evidence offered to refute a well-pleaded fact, if facts within an affidavit dispute the allegations

of the complaint and are not contradicted by a counteraffidavit, the court must accept the facts in

the affidavit as true. Harris v. News-Sun, 269 Ill. App. 3d 648, 651 (1995). Accordingly, we

conclude that Brooks and Bradley were immunized for providing information within the scope of

their public employment.

                               B. Absolute Common Law Privilege


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       However, we also note that in this case, the circuit court ruled that the statements made

by Brooks and Bradley were privileged. Defamatory statements are not actionable if they are

protected by an absolute or conditional privilege. Zych v. Tucker, 363 Ill. App. 3d 831, 834

(2006). The question of whether a privilege is absolute or conditional is a matter of law to be

decided by the court. Zych, 363 Ill. App. 3d at 834.

       This court's decision in Anderson v. Beach, 386 Ill. App. 3d 246 (2008), is instructive. In

that case, which involved two former police officers, Anderson alleged that Beach defamed him

when she orally disclosed to at least five other officers accusations of wrongdoing by Anderson,

originally published in a six-page letter to her superior officer. Anderson, 386 Ill. App. 3d at 247.

This court ruled that Beach's letter to her superior officer was absolutely privileged, but the

communication to the other officers was not. Anderson, 386 Ill. App. 3d at 249-50. Rather,

Beach's communications with her fellow officers were conditionally privileged, based on an

arguably reasonable belief that the publication was warranted. Anderson, 386 Ill. App. 3d at 252.

The Anderson court relied on Busch v. Bates, 323 Ill. App. 3d 823 (2001), which reasoned that

such complaints are absolutely privileged where the complainant is under a duty to report

misconduct. Busch, 323 Ill. App. 3d at 833-34. Such a duty may arise by law, or, as in Anderson

and Busch, arise from agency rules or regulations. See also Weber v. Cueto, 209 Ill. App. 3d 936,

946 (1991) (attorney ethically required to report misconduct by State's Attorney); Horwitz, 260

F.3d at 618 (government officials must be free to exercise their duties unencumbered by the

threat of defamation lawsuits).




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       As noted earlier, in this case, Brooks and Bradley acted within the scope of their public

employment. Given the circumstances of this case, where Brooks was under a duty to report

misconduct and Bradley was exercising her duties as principal, we conclude the trial court did

not err in ruling their statements were absolutely privileged. Accordingly, we conclude the

circuit court did not err in dismissing Goldberg's complaint on either ground.

                      II. The Denial of Leave to File an Amended Complaint

       The remaining question is whether the circuit court erred in denying Goldberg leave to

file an amended complaint. Goldberg relies on the general rule that amendments should be

granted liberally. Notwithstanding the liberal rule, a party's right to amend is not absolute and

unlimited. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467-68 (1992). The decision

whether to grant leave to amend a pleading rests within the sound discretion of the trial court. Id.

Absent an abuse of that discretion, its decision will not be disturbed on review. Id. Among the

factors to be considered in determining whether to permit an amendment to the pleadings are: (1)

whether the amendment cures a defect in the pleadings; (2) whether the other party is prejudiced

or surprised by the proposed amendment; (3) whether the proposed amendment is timely; and (4)

whether there were previous opportunities to amend the pleadings. Id.

       In this case, Goldberg's complaint did not suffer from pleading defects. Rather, pursuant

to section 2-619 of the Code, plaintiff's complaint was considered sufficient and was dismissed

because it was defeated by some other affirmative matter outside of the complaint. See 735 ILCS

5/2-619(a)(9) (West 2008). The primary difference in the proposed amended complaint was the

addition of claims of tortious interference with contract. However, the protection provided by


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the plain language of section 2-210 of the Tort Immunity Act is not limited to defamation claims.

Moreover, the absolute privilege of government employees acting within the scope of their duties

has been applied to virtually every common law tort including, but not limited to, malicious

prosecution, tortious interference with business, false arrest, blackmail, fraud, and intimidation.

Morton v. Hartigan, 145 Ill. App. 3d 417, 426-27 (1986). If Brooks and Bradley are not liable,

District 65 cannot be liable. 745 ILCS 10/2-109 (West 2006). Furthermore, as defendants note,

District 65's contractual rights support finding a privilege to complain about Goldberg's job

performance. Accordingly, we conclude the circuit court did not abuse its discretion in denying

leave to amend. Langone v. Schad, Diamond & Shedden, P.C., No. 1-09-2079, slip op. at 20-22

(Ill. App. Jan. 18, 2011).

                                          CONCLUSION

       In sum, the circuit court did not err in dismissing Goldberg's complaint. The circuit court

did not err in dismissing the claims against the defendants under the Tort Immunity Act.

Similarly, the circuit court did not err in ruling that Brooks and Bradley had an absolute privilege

to complain about Goldberg's job performance. Lastly, the circuit court did not abuse its

discretion in denying Goldberg leave to amend, as the tortious interference with contract claims

are subject to the same claims of immunity and privilege defeating the defamation claims.

       For all of the aforementioned reasons, the judgment of the circuit court of Cook County is

affirmed.

       Affirmed.




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