Poulos v. Lutheran Social Services of Illinois, Inc. ( 2000 )

JUSTICE QUINN,

dissenting:

I respectfully dissent. The majority correctly state that the statute of limitations for the tort of false light invasion of privacy is one year. 735 ILCS 5/13 — 201 (West 1998). They are also correct that a limitations period will not be deemed to have commenced until such time a person knows, or reasonably should have known, of his or her injury and that such injury was wrongfully caused. Knox College v. Celotex Corp., 88 Ill. 2d 407, 415, 430 N.E.2d 976, 980 (1981). However, the supreme court’s opinion continued “ ‘[a]t that point the burden is upon the injured person to inquire further as to the existence of a cause of action.’ ” (Emphasis in original.) Knox College, 88 Ill. 2d at 416, quoting Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981).

In the instant case, plaintiff was certainly aware of his injury on the date he was terminated, July 18, 1989. The majority assert that plaintiff had no reason to know of the false statements made by Golden to Harris in February 1989 until Harris was deposed in 1993. However, Mrs. Poulos testified that on February 17, 1989, she and her husband met with Golden. It was during this meeting that Golden allegedly told the Pouloses that if she was a parent she would not want Steve around her child. When Mrs. Poulos said the school had made its decision, Golden replied, “[wje’ll see about that.” Golden then took a copy of Steve’s teacher’s contract. Further, during a deposition, Steve testified that before he was terminated, he believed that Golden had spoken to parents of children at the school.

Under the common law discovery rule, the accrual of the cause of action does not await the awareness by the plaintiff that he actually has a cause of action; the statute of limitations begins to run when a reasonable person possesses sufficient information to be put on inquiry to determine whether a cause of action exists. Benton v. Vonnahmen, 288 Ill. App. 3d 199, 205-06, 674 N.E.2d 1270, 1275 (1997). At the time of his termination on July 18, 1989, Poulos was certainly aware of his injury and that it was wrongfully caused. He was also aware that Golden had expressed an intention to review the school’s decision to allow him to continue to teach. The fact that Poulos did not depose Harris until 1993 does not relieve Poulos of his responsibility to discover against whom he had a cause of action. Poulos’ action based on false light invasion of privacy was filed years after the statute of limitations had expired and it should have been dismissed.

Even if I did not believe that Poulos’ complaint of false light invasion of privacy was time-barred, I would reverse the jury’s verdict on that count on other grounds. “In recognizing the tort of false light, the Illinois Supreme Court *** reasoned that ‘the outrageous character of the publicity comes about in part by virtue of the fact that some part of the matter reported was false and deliberately so.’ ” (Emphasis omitted.) Kirchner v. Greene, 294 Ill. App. 3d 672, 683, 691 N.E.2d 107, 116 (1998), quoting Lovgren v. Citizens First National Bank, 126 Ill. 2d 411, 423, 534 N.E.2d 987 (1989). The only statement by Golden that plaintiff alleges to be false is her statement to Harris that the culture taken from Daniel was a “definite positive” for the presence of gonorrhea. The majority asserts that the jury may have interpreted the word “definite” as an assurance by Golden that there was absolutely no possibility that the lab result was in error and this placed plaintiff in a false light. The majority also asserts that the fact that Golden knew that Daniel’s second exam was negative for gonorrhea at the time she spoke to Harris was a basis for the jury to find Golden acted with actual malice. The facts simply do not support either of these assertions.

As a result of the DCFS investigation into the allegations made by R.F., the Pouloses contacted a lawyer. Based on that lawyer’s suggestion, the Pouloses took Daniel to Dr. Linda Lang for evaluation. A laboratory test performed on Daniel came back positive for oral gonorrhea. Dr. Lang reported this result to DCFS, as she was required by statute. Soon after this exam, Kathy Poulos took Daniel to Virginia without notifying DCFS. She only returned Daniel to Illinois after a juvenile court judge issued an arrest warrant. While they were gone, Daniel was treated with antibiotics, ostensibly for an ear infection. It was after this treatment that Daniel was retested for gonorrhea. It was this second test which was negative. Under these circumstances, the second negative test does not in any way negate the first positive test. Indeed, had Daniel not been given antibiotics and a second test been negative, this still would not mean that the first test was not positive. There is absolutely no evidence in the record indicating that the first test result was anything but positive. The fact that Golden described this positive test result as a “definite positive” is the sole basis upon which the jury found Golden liable for false light. To hold that such a description of the positive test result is a deliberate falsehood (as required under Lovgren and Kirchner) is manifestly erroneous.

If the verdict in this case is allowed to stand, social workers will need to constantly consider the threat of harassing lawsuits as well as the best interests of the children they are to protect. Several courts of review have recognized this concern. In Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986), the court upheld the grant of summary judgment for caseworkers from the Illinois Department of Children and Family Services. The caseworkers had conducted visual inspections of the unclothed bodies of children to determine whether they had been abused. The Seventh Circuit opinion held that the caseworkers were protected from damage liability even if the physical examinations themselves may have been unconstitutional.

In Landstrom v. Illinois Department of Children & Family Services, 892 F.2d 670 (7th Cir. 1990), the court similarly upheld the dismissal of a suit brought by parents against a social worker and school personnel. The defendants had physically examined a student and questioned the student and her sister to determine if the student had been abused. These actions were taken in spite of the fact that the father objected to the examination and questioning.

In Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997), the Connecticut Supreme Court held that a psychiatrist who had performed an evaluation on children to determine whether they had been sexually abused owed no duty to the father even though he had been cleared of criminal charges in the case.

“[I]mposing such a duty creates too high a risk that, in close cases, mental health professionals would conclude that no sexual abuse had occurred because they feared potential liability to the suspected abusers, rather than because of their professional judgment that, in all likelihood, no abuse had occurred. Because ‘[r]ules of law have an impact on the manner in which society conducts its affairs’; Maloney v. Conroy, 208 Conn. 392, 403-404, 545 A.2d 1059 (1988); we conclude that the sounder judicial ruling is to hold that no such duty exists.” Zamstein, 240 Conn. at 561, 692 A.2d at 787.

In Whaley v. State, 90 Wash. App. 658, 956 P.2d 1100 (1998), the court held that the statutory immunity for persons who made good-faith reports of suspected child abuse was not limited to the initial report. The supplying of further information to follow up the initial report was protected by the same qualified immunity, though the information reported may have been incomplete or inaccurate. Whaley, 90 Wash. App. at 670, 956 P.2d at 1106.

Other jurisdictions have found social workers liable for damages arising from their actions taken in response to allegations of child abuse that were subsequently shown to be false. However, the factual basis upon which those social workers acted were uniformly outrageous when compared to the actions of Golden in the case sub judice.

Here, even though they were aware of the second test result, DCFS “indicated” Poulos, finding probable cause that he sexually abused his son, Daniel. On January 18, 1989, the juvenile court held a custody hearing. After hearing from witnesses, including testimony regarding the negative test result, the juvenile court found credible evidence that Daniel had been abused and gave DCFS temporary custody. That night Daniel was taken to LaRabida Hospital, where Nancy Golden first met Daniel and had contact with the Pouloses.

Further, it was only after Golden was told by Mrs. Poulos that the Francis Parker administration had not implemented a protective plan on behalf of its students that Golden called Harris. This information directly contradicted the assurances Cotton had given DCFS. In reviewing the conversation between Harris and Golden, I do not believe that Golden made any false statements. Golden’s statement that she felt “that people who were guilty of such child abuse should not be teaching children” is not false, nor does it put Poulos in a false light. Also, since Golden’s statements to Harris were not false, they were not made with actual malice. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 17-18, 607 N.E.2d 201 (1992). Similarly, the truthful statements made by Golden are not evidence of bad faith. For this reason the presumption of good faith within section 11 of the Illinois Mental Health and Developmental Disabilities Confidentiality Act was not overcome. 740 ILCS 110/1 et seq. (West 1998).

In addition to finding Golden’s statements to be conditionally privileged, I would also reverse the jury’s verdict on the complaint alleging tortious interference with a contractual relation on other grounds. The evidence, instructions, and arguments regarding the false light invasion of privacy claim so permeated the trial on both counts that its verdict should not stand. To prevail on this count, Poulos had to prove that Golden’s statements were a proximate cause of his termination. Both Cotton and Harris testified that Golden’s statements were not the cause but, rather, Poulos was terminated after numerous parents called to complain regarding his continued teaching and after Poulos failed to clear his name prior to July 18, 1989. It was at this point that Cotton had to offer a teaching contract to a replacement teacher. Cotton testified that in addition to the parents, he had been contacted by DCFS and an assistant State’s Attorney regarding the allegations against Poulos. As to the source providing the information to the parents, Poulos testified that he had told numerous people of the allegations.

I also strongly disagree with the majority’s holding that the trial court erred in refusing to allow the jury to consider the issue of punitive damages. The initial decision whether punitive damages may be imposed in a particular case is a matter usually reserved to the circuit court and its decision will not be reversed absent an abuse of discretion. Proctor v. Davis, 291 Ill. App. 3d 265, 285, 682 N.E.2d 1203 (1997). The majority correctly cites Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 109-11, 672 N.E.2d 1207, 1224-25 (1996), for the proposition that punitive damages may be awarded in actions for false light invasion of privacy. The court in Bryson pointed out that it had not yet considered whether, as a matter of state law, punitive damages may be awarded in a defamation action absent a showing of actual malice. Bryson, 174 Ill. 2d at 110. Further, in Bryson, the court cited Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 86 L. Ed. 2d 593, 603-04, 105 S. Ct. 2939, 2946 (1985), for its holding that the first amendment of the federal constitution does not bar states from awarding private individuals presumed and punitive damages in a defamation action upon a showing of less than actual malice where the statements in question do not involve matters of public concern. Bryson, 174 Ill. 2d at 109. I believe that allegations of child abuse against a grammar school teacher are a matter of public concern. Based on Bryson and Dun & Bradstreet, I think it is clear that for Poulos to be awarded punitive damages, he had to prove actual malice on the part of Golden. While the jury found this to be so, its finding was based on the erroneous premise that Golden’s statement concerning a “definite positive” was false.

In Gibson v. Philip Morris, Inc., 292 Ill. App. 3d 267, 685 N.E.2d 638 (1997), another case cited by the majority, Gibson sued his employer for defamation and wrongful discharge because his supervisors had accused him of stealing company property and selling it for personal profit. This court affirmed an award for punitive damages, saying “[t]he statements were not the result of an investigation but were gratuitous gossip maliciously conjured into a reason for discharge.” Gibson, 292 Ill. App. 3d at 280. The court also agreed that $1 million in punitive damages “was needed to adequately bring this matter to defendant Philip Morris’s attention.” Gibson, 292 Ill. App. 3d at 280.

In the instant case, the statements complained of were the result of an investigation by DCFS based on evidence supplied by plaintiffs own physician. Further, while a cigarette company may need a large damage award to get its attention, a social worker and social service agency certainly do not. In reviewing a punitive damages award, reviewing courts should consider the nature and the enormity of the wrong, the financial status of the defendant, and the potential liability of the defendant. Deal v. Byford, 127 Ill. 2d 192, 204, 537 N.E.2d 267 (1989).

Punitive damages are similar to criminal penalties. Proctor v. Davis, 291 Ill. App. 3d at 285. Because of their penal nature, punitive damages are not favored in the law, and courts must be cautious in seeing that they are not improperly or unwisely awarded. Deal, 127 Ill. 2d at 203. I firmly believe that any punitive damage award in this case would be most unwise. It would be impossible to overestimate the chilling effect such an award would have on persons responsible for making decisions on which notifications to make in child abuse cases.

As our supreme court said in Kolegas: “The purpose underlying the false light cause of action is to define and protect an area within which every citizen must be left alone.” Kolegas, 154 Ill. 2d at 18. To hold that a social worker and a social service agency acting within the scope of their assigned duties are subject to liability on claims of false light invasion of privacy and tortious interference with a contractual relation and for punitive damages on the facts present in this case is a grave error.