Masters v. Murphy , 2020 IL App (1st) 190908 ( 2020 )

2020 IL App (1st) 190908No. 1-19-0908
Second Division
November 17, 2020
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
ROBIN MASTERS, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
) No. 18 L1 1485
v. )
)
RENEE MURPHY, ) Honorable
) James E. Snyder,
Defendant-Appellee. ) Judge, presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the
judgment, with opinion.
OPINION
¶1 On October 23, 2018, plaintiff, Robin Masters, filed a complaint against defendant, Renee
Murphy, alleging defamation and intentional interference with an existing business relationship 1
1
Masters criticizes Murphy’s brief for incorrectly referring to count II as intentional interference
with a prospective business advantage. Our review of the record shows that though count II is titled as
intentional interference with a prospective business advantage, the substance actually references
intentional interference with an existing business relationship. See Tzakis v. Berger Excavating
Contractors, Inc., 2019 IL App (1st) 170859, ¶ 59 (“[T]he title of the count does not control over the
substance of its claim.”).
No. 1-19-0908
based on an alleged false statement Murphy made about Masters in January 2018. The trial court
granted Murphy’s motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-619.1 (West 2016)), finding that she was immune under the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745
ILCS 10/1-101 et seq. (West 2016)). On appeal, Masters argues that the trial court erred in
dismissing her complaint because the sections of the Tort Immunity Act relied upon by Murphy in
support of dismissal were not applicable. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 On October 23, 2018, Masters filed a complaint against Murphy comprising two counts:
defamation (count I) and intentional interference with an existing business relationship (count II).
In her complaint, Masters alleged that on January 13, 2018, when she and Murphy were both
working as probationary correctional officers in the Cook County Department of Corrections
(Department), Murphy falsely told Sergeant William Shepsky-Linstead that Masters handed keys
to the residential treatment unit to a detainee, Megan Potter. Masters further alleged she was
terminated from her employment and “experienced humiliation and damage to her reputation” as
a result of Murphy’s false statement.
¶4 On December 10, 2018, Murphy moved to dismiss Masters’s complaint in a combined
motion pursuant to section 2-619.1 of the Code. Therein, Murphy argued that the complaint should
be dismissed pursuant to section 2-619 (735 ILCS 5/2-619 (West 2016)) because she had either
absolute or qualified immunity under sections 2-204 and 2-210 of the Tort Immunity Act (745
ILCS 10/2-204, 2-210 (West 2016)). Murphy also argued that the complaint should be dismissed
pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2016)) for failure to state a claim
upon which relief could be granted. In support of the motion, Murphy submitted an affidavit stating
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that she observed Masters hand “the keys to the tier, which consisted of three keys and a ‘cut down’
tool, to the Residential Treatment Unit to inmate Megan Potter.” According to Murphy’s affidavit,
these keys were used to open jail doors. Murphy reported the incident to her shift commander and
immediate supervisor, Sergeant Shepsky-Linstead. In the motion, Murphy cited to Title 20, section
701.140(h)(4) of the Illinois Administrative Code, which states that “[d]etainees, including
trustees, shall not be permitted to handle, use or possess jail keys of any type.” 20 Ill. Adm. Code
701.140(h)(4) (2014). Attached to her motion were copies of the Department’s “Key and
Electronic Access Device Control” policy, which states that “[u]nder no circumstances will
security keys be made available to inmates regardless of their status” as well as the Department’s
policy on report preparation, which Murphy described as requiring reporting incidents including,
inter alia, breaches of security.
¶5 Masters filed a response to Murphy’s motion to dismiss, arguing that there were questions
of fact that needed to be resolved and the Tort Immunity Act did not apply. She also argued that
Murphy’s statement was not privileged. She attached her own affidavit to the response, which
contested many of the statements in Murphy’s affidavit. Specifically, Masters averred that she did
not violate the key policy as set out in the administrative code because she never gave the keys to
Potter and, additionally, no incident report was required because she did not engage in any
misconduct.
¶6 On April 5, 2019, the court granted Murphy’s motion to dismiss the complaint. In a four-
paragraph written order, the court first noted that the matter was before the court pursuant to
Murphy’s section 2-619.1 motion to dismiss. The court then set out the legal principles that govern
dismissals pursuant to section 2-615 of the Code. In the analysis section of the order, the court
addressed the parties’ arguments regarding the applicability of the Tort Immunity Act. Finally, in
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ruling to grant dismissal, the court stated that when Murphy made the alleged false statement she
was “acting within the scope of her public employment.” As such, the Tort Immunity Act applied.
This appeal followed.
¶7 II. ANALYSIS
¶8 Masters contends that the trial court erred in dismissing her complaint and urges us to
reverse and remand this matter for further proceedings. In reviewing Masters’s claimed errors, we
are guided by the following well-established principles.
¶9 Section 2-619.1 of the Code permits a party to combine a section 2-619 motion to dismiss
based upon certain defects or defenses with a section 2-615 motion to dismiss based on a plaintiff’s
substantially insufficient pleadings. 735 ILCS 5/2-619.1 (West 2016). A section 2-619 motion to
dismiss “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). A motion
to dismiss under section 2-615 tests the legal sufficiency of the complaint and challenges whether
the complaint states a claim upon which relief can be granted. Tielke v. Auto Owners Insurance
Co., 2019 IL App (1st) 181756, ¶ 22. When ruling on a motion to dismiss under either section,
“the court should construe the pleadings and supporting documents in the light most favorable to
the nonmoving party.” Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. This court reviews a dismissal
pursuant to sections 2-615, 2-619, and 2-619.1 de novo. Gatreaux v. DKW Enterprises, LLC, 2011
IL App (1st) 103482, ¶ 10. We may affirm the court’s dismissal based upon any grounds supported
by the record (King v. City of Chicago, 324 Ill. App. 3d 856, 859 (2001)), and because our review
is de novo, our disposition is without regard to the trial court’s reasoning (United States Steel Corp.
v. Illinois Pollution Control Board, 384 Ill. App. 3d 457, 461 (2008)).
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¶ 10 We first note that Masters makes repeated assertions in her briefs that the court improperly
resolved factual disputes in ruling in favor of Murphy. Specifically, she notes that the court
resolved whether Murphy’s accusation regarding the keys was truthful, as well as whether when
Murphy made the accusation, she was working within the scope of her duties.
¶ 11 Based on our review of the record, we find no impropriety in the trial court’s review of the
pleadings before it. When considering a motion to dismiss, the court must take as true the
allegations in the complaint as well as any reasonable inferences from those facts. See De Jesus v.
Policemen’s Annuity & Benefit Fund, 2019 IL App (1st) 190486, ¶ 16; Jarvis v. South Oak Dodge,
Inc., 201 Ill. 2d 81, 86 (2002). In this case the trial court, after reviewing the complaint and
supporting documents, apparently found that Masters’s allegations did not support a claim as a
matter of law.
¶ 12 On appeal, as in her motion to dismiss, Murphy asserts several bases upon which the trial
court’s dismissal may be supported: Murphy’s communication to Sergeant Shepsky-Linstead fell
within an absolute and qualified privilege, Masters failed to sufficiently allege facts in support of
her claim of intentional interference with a prospective business advantage, 2 and sections 2-204
and 2-210 of the Tort Immunity Act bar Masters’s claims. Because we may affirm on any basis
supported by the record, we limit our review to the applicability of the Tort Immunity Act, which
we find to be dispositive.
¶ 13 The Tort Immunity Act protects local public entities and their public employees from
liability arising from the operation of government. 745 ILCS 10/1-101.1(a) (West 2016). The
2
As previously noted, Murphy characterizes this claim as one for intentional interference with a
prospective business advantage. However, we read the substance of Masters’s claim as one for intentional
interference with an existing business relationship.
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immunity conferred by the Act is an affirmative matter that can be raised under section 2-619.
DeSmet v. County of Rock Island, 219 Ill. 2d 497, 504 (2006). It is the entity or employee’s burden
to assert and prove an immunity under the Act. Wright-Young v. Chicago State University, 2019
IL App (1st) 181073, ¶ 61.
¶ 14 Masters contends that sections 2-204 and 2-210 of the Tort Immunity Act are not applicable
to her claims and that the court’s dismissal on that basis was, therefore, in error. Although the trial
court does not specifically mention any particular section of the Act in its ruling, we agree with
Masters that section 2-204 has no application in this case. Section 2-204 provides: “[A] public
employee, as such and acting within the scope of his employment, is not liable for an injury caused
by the act or omission of another person.” 745 ILCS 10/2-204 (West 2016). Clear from its
language, section 2-204 “provides immunity from vicarious liability claims.” Doe-3 v. McLean
County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 42 (plurality opinion). Masters
has not pleaded vicarious liability. Thus, that section offers no support to Murphy.
¶ 15 We reach a contrary conclusion with respect to section 2-210, however. Section 2-210
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 2016). “Provision of information,” which is a separate category from
“negligent misrepresentation” under the Act, affords a broad protection to public employees acting
within the scope of their employment. Goldberg v. Brooks, 409 Ill. App. 3d 106, 111 (2011). To
establish immunity under section 2-210’s provision of information category, Murphy needed to
show that (1) she was a public employee who (2) provided information while (3) acting within the
scope of her employment. In her complaint, the allegations in which we accept as true, Masters
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alleges that Murphy is employed by Department. There is no dispute that the Department is a
public entity, making Murphy a public employee. Further, the allegations in the complaint allege
that Murphy provided information to Sergeant Shepsky-Linstead, namely that Masters handed the
keys to an inmate. Thus, there is also no dispute that information was provided. The only issue
remaining, and the only criterion under section 2-210 of the Act with which Masters takes issue,
is whether Murphy’s provision of the information to Sergeant Shepsky-Linstead was conduct that
fell within the scope of her employment. Masters complains that the trial court’s resolution of the
scope of employment issue, a disputed factual matter, was improper and, for that reason, dismissal
on the pleadings was in error.
¶ 16 The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily
proved issues of fact at the outset of litigation. Van Meter v. Darien Park District, 207 Ill. 2d 359,
367 (2003). As we noted above, a motion to dismiss pursuant to section 2-619 asserts that other
affirmative matter defeats the cause of action. An affirmative matter is something in the nature of
a defense which negates the cause of action completely or refutes crucial conclusions of law or
conclusions of material fact contained in or inferred from the complaint. Smith v. Waukegan Park
District, 231 Ill. 2d 111, 120-21 (2008). The “affirmative matter” contemplated in a motion to
dismiss must be apparent on the face of the complaint; otherwise, the motion must be supported
by affidavits or other evidentiary materials. Van Meter, 207 Ill. 2d at 377; see 735 ILCS 5/2-619(a)
(West 2016). Once the defendant satisfies this initial burden of going forward on the motion, the
burden then shifts to the plaintiff to establish that the defense is unfounded or requires the
resolution of an essential element of material fact before it is proven. Kedzie & 103rd Currency
Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). If, after considering the pleadings and the
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affidavits, the court finds that the plaintiff has failed to meet the shifted burden, the defendant’s
motion to dismiss may be granted and the case properly dismissed. Id.¶ 17 Murphy maintains that she was acting within the scope of her employment as a correctional
officer when she reported the key incident to her immediate supervisor. Attached as exhibits to her
motion were the Department’s key control policy, as well as the policy regarding incident reports.
In her affidavit, Masters countered that the policies have no application in this case because there
had been no violation of the Department’s key policy and Murphy was under no requirement under
the report policy to engage in an investigation.
¶ 18 Even accepting that the policies required no affirmative act by Murphy, given their
substance, the court could reasonably infer that when Murphy provided information concerning
the keys to her superior, she was acting within the scope of her employment. Notably, Masters
alleged that she was terminated on account of Murphy’s report. The inference to be drawn is that
the Department determined Murphy’s report concerning the key to have been credible and
compliant with its policies regarding the management of keys. Thus, the Department’s response
upon receiving the information additionally supports a conclusion that Murphy was acting within
the scope of her duties. We note in passing that in Illinois, “ ‘even if a statement is defamatory,
under Illinois law, the defendants would have immunity for their statements made within the scope
of their authority.’ ” Cox v. Calumet Public Schools District 132, 180 F. Supp. 3d 556, 563 (N.D.
Ill. 2016) (quoting Horwitz v. Board of Education of Avoca School District No. 37, 260 F.3d 602,
617 (7th Cir. 2001)); see also Klug v. Chicago School Reform Board of Trustees, District No. 299,
197 F.3d 853, 861 (7th Cir. 1999) (citing Blair v. Walker, 64 Ill. 2d 1 (1976)). Section 2-210’s
provision of immunity cannot be overcome by a showing of improper motivation or knowledge of
the statement’s falsity, including malice. Horwitz, 260 F.3d at 618.
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¶ 19 Other than her assertion that Murphy’s report regarding the key handoff was untrue,
Masters presented nothing to rebut the inference that Murphy was acting within the scope of her
employment. Nevertheless, Masters argues that scope of employment is a factual issue that
required, for its resolution, an evidentiary hearing. Based on the record before us, we disagree.
¶ 20 Because dismissal under section 2-619 resembles the grant of a motion for summary
judgment, an appeal from such a dismissal is the same in nature as an appeal following a grant of
summary judgment. Van Meter, 207 Ill. 2d at 377. On appeal of a section 2-619 dismissal, the
reviewing 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 law.’ ” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997) (quoting
Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116-17). A section 2-619 motion permits
resolution of easily proved issues of fact about the asserted affirmative matter. Reynolds v. Jimmy
John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 53.
¶ 21 In Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 165 (2007), the court noted that
ordinarily, scope of employment is a factual issue, which is usually inappropriate to resolve in the
context of reviewing the grant of a motion for summary judgment. However, the court held that
where the facts involved are undisputed, resolution is an issue of law. Id. at 171; see also Krickl v.
Girl Scouts, Illinois Crossroads Council, Inc., 402 Ill. App. 3d 1, 5 (2010) (“Although the
existence of an agency relationship usually is a question of fact, it is an issue of law where the
facts relating to the relationship are undisputed ***.”). Based on the pleadings and other
evidentiary materials before the court, we find that such is the case here. In other words, we find
that whether Murphy was acting within the scope of her duties is easily proved and there are no
material issues of fact that would have precluded dismissal.
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¶ 22 The supreme court’s analysis in Bagent not only provides guidance but bolsters our finding
here. In determining whether conduct is within the scope of one’s employment, the court expressly
adopted the following factors:
“ ‘ “(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master ***[.]
***
(2) Conduct of a servant is not within the scope of employment if it is different in
kind from that authorized, far beyond the authorized time or space limits, or too little
actuated by a purpose to serve the master.” (Restatement (Second) of Agency § 228
(1958).)’ ” Bagent, 224 Ill. 2d at 164 (quoting Pyne v. Witmer, 129 Ill. 2d 351, 360 (1989)).
A finding that the challenged conduct is within the scope of employment requires that all three
criteria be met. Id. at 165; see also Adames v. Sheahan, 233 Ill. 2d 276, 303 (2009).
¶ 23 Based upon our review, we find the three criteria to have been met. First, it is axiomatic
that correctional officers are responsible for the security of detainees, some of whom may be
violent offenders. Not only is it critical for security purposes to keep keys to the jail out of the
hands of inmates, it is in fact required by the Department’s key policy and the administrative code.
That the proffered policies do not mandate a report or an investigation does not render Murphy’s
conduct in providing information about an alleged infraction outside of the scope of her
employment. On the contrary, the policies provide insight, if any is truly needed, regarding the
propriety of the information provided. Murphy informed Sergeant Shepsky-Linstead of Masters’s
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violation of the policy to maintain the necessary safety internal to the facility, as well as to the
public. We conclude that Murphy’s conduct was of the type that she was employed to perform as
a correctional officer. Thus, the first criterion is satisfied.
¶ 24 We conclude similarly with respect to the second and third criteria. Murphy was clearly
within the time and space confines of her position as a correctional officer. Her conduct involved
only Masters, with whom she was partnered, and their superior officer, at a time when she was on
duty, and operating within the confines of the Department. Finally, Murphy was serving the
interests of the Department when she provided information regarding an alleged infraction
regarding the keys. Based on these facts, we conclude as a matter of law that Murphy’s provision
of information occurred within the scope of her employment.
¶ 25 Based upon our review of the pleadings, Murphy was immunized from liability pursuant
to section 2-210 of the Tort Immunity Act. We therefore find that the trial court did not err in
dismissing Masters’s complaint.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we affirm the judgment of the circuit court.
¶ 28 Affirmed.
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Cite as: Masters v. Murphy, 2020 IL App (1st) 190908Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-L1-
1485; the Hon. James E. Snyder, Judge, presiding.
Attorneys Joel F. Handler, of Chicago, for appellant.
for
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil
for Stein, Mona Lawton, and Jay Rahman, Assistant State’s
Appellee: Attorneys, of counsel), for appellee.
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