{ "id": 3477938, "name": "MARGARET VAN DUYN, Plaintiff-Appellant, v. GERALD T. SMITH, Defendant-Appellee", "name_abbreviation": "Van Duyn v. Smith", "decision_date": "1988-08-09", "docket_number": "No. 3\u201487\u20140598", "first_page": "523", "last_page": "541", "citations": [ { "type": "official", "cite": "173 Ill. App. 3d 523" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "429 U.S. 1062", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6882, 7139, 7046, 6760, 5930, 5644, 6316, 7919, 5839, 6523, 5751, 7899 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/1062-04", "/us/429/1062-11", "/us/429/1062-09", "/us/429/1062-05", "/us/429/1062-03", "/us/429/1062-08", "/us/429/1062-10", "/us/429/1062-06", "/us/429/1062-12", "/us/429/1062-07", "/us/429/1062-02", "/us/429/1062-01" ] }, { "cite": "515 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 476", "category": "reporters:state", "reporter": "Ill. 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App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3639350 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0238-01" ] } ], "analysis": { "cardinality": 1637, "char_count": 41144, "ocr_confidence": 0.779, "pagerank": { "raw": 1.031858481471839e-07, "percentile": 0.5483369879865583 }, "sha256": "9560fcfbb04bc47722ad1058f57b4ee2d72d43af5a967eaeb8edcb087a933fc9", "simhash": "1:19d37c9e67d6daf3", "word_count": 6731 }, "last_updated": "2023-07-14T14:33:51.483362+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARGARET VAN DUYN, Plaintiff-Appellant, v. GERALD T. SMITH, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE SCOTT\ndelivered the opinion of the court:\nThis case comes on appeal pursuant to the trial court\u2019s dismissal, with prejudice, of plaintiff\u2019s multicount complaint for failure to state a cause of action. Although numerous motions and pleadings were filed in this cause, the relevant pleadings subject to review are plaintiff\u2019s second amended complaint counts I and II, amended count IV, and plaintiff\u2019s original complaint count III.\nPlaintiff\u2019s second amended count I alleges the tort of intentional infliction of severe emotional distress; second amended count II alleges libel/negligence; amended count IV alleges libel/malice; and original count III alleges invasion of privacy (false light).\nThe relevant facts, as alleged, indicate that plaintiff, a private person, is, and was at all times stated herein, employed as the executive director of National Health Care Services of Peoria, Inc., an ambulatory surgical treatment center licensed by the State of Illinois, offering first trimester abortions to women in central Illinois. Defendant, a pro-life activist, is employed by Bradley University.\nPlaintiff alleges that during a two-year period from March 21, 1984, to March 21, 1986, defendant performed the following acts: in his motor vehicle, followed plaintiff in her motor vehicle on several occasions; confronted plaintiff at the Peoria Airport and interfered with her ingress and egress to said airport on at least two occasions; picketed plaintiff\u2019s residence on November 17, 1984, in violation of section 21.1\u2014 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 21.1\u2014 1); picketed plaintiff\u2019s employer several times a month; confronted plaintiff at her residence and her place of employment on several occasions requesting plaintiff to quit her position as executive director of the National Health Care Services of Peoria, Inc., and on March 15, 1986, caused to be distributed a \u201cWanted\u201d poster as well as and in conjunction with a \u201cFace The American Holocaust\u201d poster to plaintiff\u2019s friends, neighbors and acquaintances living in the three-block area surrounding plaintiff\u2019s residence.\nPlaintiff claims that the \u201cWanted\u201d poster, attached to the complaint, resembling those used by the Federal Bureau of Investigation and seen on bulletin boards in public places, states that plaintiff is a wanted person \u201cfor prenatal killing in violation of the Hippocratic Oath and Geneva Code\u201d; that plaintiff uses the alias \u201cMargaret the Malignant\u201d; that plaintiff has participated in killing for profit and has presided over more than 50,000 killings; and the plaintiff\u2019s modus operandi is a small round tube attached to a powerful suction machine that tears the developing child limb from limb. The poster further contains a statement at the bottom which indicates in part, that \u201c[n]othing in this poster should be interpreted as a suggestion of any activity that is presently considered unethical. Once abortion was a crime but it is not now considered a crime.\u201d\nThe \u201cFace The American Holocaust\u201d poster, also attached to the complaint, contains pictures of fetuses between 22 and 29 weeks gestational age that have been aborted. Under each picture the \u201ccause of death\u201d of the fetus is listed, referring to the method used to perform the abortion. Among the techniques listed are dismemberment, salt poisoning, and massive hemorrhaging. The poster also contains four paragraphs of information regarding the discovery of some 17,000 fetuses stored in a S^-ton container in California, the number of abortions performed per day in \u201cAmerica\u2019s abortion mills,\u201d and how \u201cAmerica\u2019s Holocaust is the responsibility of us all.\u201d The poster additionally gives the name and address of Pro-Life Action League and lists the defendant\u2019s name and telephone number for those who choose to call locally.\nAlthough count III varied slightly, plaintiff further alleged the following: that as a result of defendant\u2019s actions, her good name, character and reputation were impaired and brought into disrepute before her friends and acquaintances; that she became emotionally upset and suffered great anxiety and mental anguish; that she was humiliated and embarrassed in front of her friends and neighbors; that she became physically upset, nervous and cried; that her blood pressure became elevated beyond normal limits for several days; that her vision was impaired for approximately 24 hours; that she sought and received emergency medical care at Proctor Hospital and was treated by a physician at Proctor Hospital for several hours because of her physical and emotional condition of ill-being and remained under medication and a doctor\u2019s care for approximately two months; that she became physically and emotionally exhausted and had to lie down for approximately 24 hours; that she was unable to work at her occupation and had to cease work for several days; that she could not sleep for several days; and that she incurred doctor and hospital bills. Plaintiff also alleged that her damages exceed $15,000.\nThe procedural posture of the case is that it comes to this court pursuant to the trial court\u2019s granting of defendant\u2019s motions to dismiss. Two of defendant\u2019s motions to dismiss are at issue since the dismissal of original count III was by order dated July 15, 1986, and the order dismissing second amended counts I and II and amended count IV was entered August 26, 1987. In both motions, however, the defendant has failed to state the section under which the motion was brought. Therefore, our first determination is whether defendant\u2019s respective motions were brought pursuant to section 2 \u2014 615 or section 2 \u2014 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 \u2014 615, 2 \u2014 619), as those sections involve dismissal by different legal theories. (MBL (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 484 N.E.2d 371.) Both of defendant\u2019s motions to dismiss allege that plaintiff\u2019s complaint fails to \u201callege sufficient facts to state a cause of action.\u201d Therefore, we construe defendant\u2019s statement as disputing the sufficiency of plaintiff\u2019s complaint and consider the motions as being brought under section 2 \u2014 615. As support for our position, we note that motions to dismiss under section 2 \u2014 619 admit the legal sufficiency of the attacked pleadings and allows assertions of affirmative matter, with or without supporting affidavits, to defeat the plaintiff\u2019s claim. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619.) Here, defendant has not admitted the legal sufficiency of the complaint.\nOur inquiry then, is to determine whether plaintiff has pleaded sufficient facts to state a cause of action for any or all of the asserted theories of recovery. We keep in mind that \u201c[a] cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover.\u201d (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224, 226; Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 308 N.E.2d 790, 794.) We will discuss the required elements for each tort thoroughly as we separately discuss each alleged cause of action.\nPlaintiff\u2019s second amended count I alleged that defendant committed the tort of intentional infliction of severe emotional distress. In Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765, our supreme court set forth the conduct giving rise to a cause of action:\n\u201cFirst, the conduct must be extreme and outrageous. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities. \u2018It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by \u2018malice,\u2019 or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.\u2019 Restatement (Second) of Torts, sec. 46, comment d (1965).\nSecond, infliction of emotional distress alone is not sufficient to give rise to a cause of action. The emotional distress must be severe. Although fright, horror, grief, shame, humiliation, worry, etc. may fall within the ambit of the term \u2018emotional distress,\u2019 these mental conditions alone are not actionable. \u2018The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.\u2019 Comment j. See also Prosser, Law of Torts sec. 12, at 54 (4th ed. 1971).\nThird, reckless conduct which will support a cause of action under the rules stated is conduct from which the actor knows severe emotional distress is certain or substantially certain to result. (Comment i.) Liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it. Prosser, Law of Torts 60 (4th ed. 1971).\nFourth, as is stated in comment e, the extreme and outrageous character of the conduct may arise from an abuse of a position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interests.\u201d (Emphasis deleted.) Public Finance Corp. v. Davis, 66 Ill. 2d at 89-90, 360 N.E.2d at 767.\nIn Davis, the defendant, a creditor of the plaintiff, persistently attempted to collect on a debt plaintiff owed. The defendant called plaintiff several times a week, frequently more than once a day, visited plaintiff\u2019s home one or more times a week, and called plaintiff at the hospital while her daughter was seriously ill even after plaintiff had requested that defendant refrain from bothering her at the hospital. Defendant further induced plaintiff to draft a check, promising that the check would not be processed. Instead, the defendant immediately phoned and informed an acquaintance of the plaintiff that she was writing bad checks. Lastly, defendant\u2019s employee used plaintiff\u2019s phone to call in to the company to describe and report the items in plaintiff\u2019s home and at the same time refused to leave plaintiff\u2019s home until her son arrived.\nThe Davis court stated that defendant\u2019s conduct was not of such an extreme and outrageous nature to warrant recovery for intentional infliction of severe emotional distress. The court reasoned that the plaintiff was legally obligated to pay the debt, and that where a creditor is doing no more than insisting upon his legal rights, he must be given some latitude to pursue collection of the debt even though it may cause some \u201cinconvenience, embarrassment or annoyance to the debtor.\u201d (Davis,. 66 Ill. 2d at 92, 360 N.E.2d at 768.) There was also no evidence regarding what was said by the agents of defendant who were making the calls and visits to plaintiff at her home and at the hospital which indicated those calls and visits were outrageous. As to the allegation regarding the bad check, the court considered the action as only one isolated event which could be considered extreme or outrageous and refused to invoke liability for a single impermissible act. Davis, 66 Ill. 2d at 93, 360 N.E.2d at 769.\nIn Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373, this court concisely stated the elements for intentional infliction of emotional distress as:\n\u201c(1) extreme and outrageous conduct, (2) intent by the defendant to cause, or a reckless disregard of the probability of causing emotional distress, (3) severe or extreme emotional distress suffered by the plaintiff, and (4) an actual and proximate causation of emotional distress by the defendant\u2019s outrageous conduct.\u201d Debolt, 56 Ill. App. 3d at 113, 371 N.E.2d at 375.\nAs in the present case, Debolt was before this court on defendant\u2019s motion to dismiss. This court noted that a motion to dismiss admits all well-pleaded facts as well as all reasonable inferences drawn therefrom, but such motion does not admit conclusions of law or fact unsupported by allegations of specific facts. (Debolt, 56 Ill. App. 3d at 113, 371 N.E.2d at 375, citing Pierce v. Board of Education (1976), 44 Ill. App. 3d 324, 358 N.E.2d 67.) Therefore, the court stripped the complaint of all conclusory statements and determined that the specific facts alleged could not be interpreted as outrageous conduct on the part of the defendant. (Debolt, 56 Ill. App. 3d at 113, 371 N.E.2d at 375-76.) Numerous other courts have dealt with the tort of intentional infliction of emotional distress. However, the type of conduct and the elements of the tort as cited, respectively, in Davis and Debolt are consistent with all other cases we have reviewed.\nComplicating our consideration of this cause of action is the recent United States Supreme Court decision in Hustler Magazine v. Falwell (1988), 485 U.S. 46, 99 L. Ed. 2d 41, 108 S. Ct. 876, wherein the Supreme Court added an additional element to the tort of intentional infliction of emotional distress in what we believe are limited circumstances.\nIn Hustler Magazine, the respondent Jerry Falwell filed a diversity action in Federal district court against petitioners, a nationally circulated magazine and its publisher, to recover damage for invasion of privacy, libel, and intentional infliction of emotional distress, arising from petitioner\u2019s publication of an ad \u201cparody\u201d which portrayed respondent as having engaged in a drunken, incestuous rendezvous with his mother in an outhouse. The district court directed a verdict for petitioners on the privacy claim and the jury found for petitioners on the libel claim, but found for respondent on the claim of intentional infliction of emotional distress. (Hustler Magazine, 485 U.S. at_, 99 L. Ed. 2d at 47, 108 S. Ct. at 877-78.) The issue before the court was whether the jury\u2019s award was consistent with the first and fourteenth amendments of the United States Constitution.\nThe jury found that the ad \u201cparody\u201d could not \u201creasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.\u201d (Hustler Magazine, 485 U.S. at_, 99 L. Ed. 2d at 47, 108 S. Ct. at 878.) It was undisputed that respondent was a \u201cpublic figure\u201d for purposes of first amendment law. Hustler Magazine, 485 U.S. at_, 99 L. Ed. 2d at 53, 108 S. Ct. at 882.\nThe court held:\n\u201cWe conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with \u2018actual malice,\u2019 i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a \u2018blind application\u2019 of the New York Times standard [New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710], see Time, Inc. v. Hill, 385 U.S. 374, 390, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967), it reflects our considered judgment that such a standard is necessary to give adequate \u2018breathing space\u2019 to the freedoms protected by the First Amendment.\u201d Hustler Magazine, 485 U.S. at_, 99 L. Ed. 2d at 52-53,108 S. Ct. at 882.\nDefendant asserts that Hustler Magazine is controlling for resolution of this issue. We disagree for two reasons. First, Hustler Magazine concerned the publication of an ad parody as the sole basis for respondent\u2019s claim of severe emotional distress. Although arguably the two posters at issue in the present case can be compared to the ad parody in Hustler Magazine, defendant in the present case did much more than distribute posters. Therefore, even if the posters in the present case can be considered privileged speech under the first amendment and excluded under the holding of Hustler Magazine, defendant has committed other tortious acts for which we can find no constitutional privilege. Such acts warrant our consideration whether a jury could find that defendant\u2019s conduct was outrageous beyond the bounds of decency.\nSecond, the court in Hustler Magazine was clear in its holding that only public officials and public figures may not recover for intentional infliction of emotional distress based upon publications such as ad parodies without satisfying the New York Times standard of actual malice. In our view, the present case does not concern a public official, nor does it concern public figures as that status has been defined by the Supreme Court, as those who are \u201cintimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.\u201d (Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 164, 18 L. Ed. 2d 1094, 1116, 87 S. Ct. 1975, 1996.) Moreover, instances of involuntary public figures are exceedingly rare.\n\u201cFor the most part those who attain [public figure] status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.\u201d Gertz v. Welch (1974), 418 U.S. 323, 345, 41 L. Ed. 2d 789, 808, 94 S. Ct. 2997, 3009.\nWe do not consider plaintiff a public figure in this case merely because of her status as the executive director of an abortion clinic. Although she must apparently be a pro-choice advocate, we do not consider her as being in a position to influence society. Likewise, we disagree with defendant\u2019s position that plaintiff is still subject to the actual malice standard because she is involved in an issue of public interest or concern. In Gertz v. Welch (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, the Supreme Court left to the individual States the decision as to whether the New York Times standard should be applied to defamers of private individuals involved in matters of public concern so long as the States do not impose liability without fault. (Gertz, 418 U.S. at 346, 41 L. Ed. 2d at 809, 94 S. Ct. at 3010.) Accordingly, in Troman v. Wood (1975), 62 Ill. 2d 184, 340 N.E.2d 292, the Illinois Supreme Court stated that \u201c[t]o extend the New York Times standard to statements falling in the public interest category would thus reduce materially the scope of the protection afforded the private individual.\u201d (Troman, 62 Ill. 2d at 196, 340 N.E.2d at 297.) Therefore, the court held that \u201cnegligence may form the basis of liability regardless of whether or not the publication in question related to a matter of public or general interest.\u201d Troman, 62 Ill. 2d at 198, 340 N.E.2d at 299.\nAlthough the Troman standard has been eroded somewhat in limited circumstances (see, e.g., Colson v. Stieg (1982), 89 Ill. 2d 205, 433 N.E.2d 246), we believe the negligence standard, rather than actual malice, is applicable to the present situation.\nThus, having determined that plaintiff herein need not meet the actual malice standard as did respondent in Hustler Magazine, the logical inquiry is whether Hustler Magazine should be read broadly enough to require some additional element for private plaintiffs to meet when publications are either wholly or in part the basis for such plaintiff\u2019s claims for intentional infliction of emotional distress. In other words, must plaintiff herein additionally show that the posters contained a false statement of fact which the defendant either knew was false or, believing it to be true, lacked reasonable grounds for that belief? We think not. Our review of Hustler Magazine leads us to believe that the court\u2019s primary concern was with public officials and public figures. Nowhere did the court indicate that its holding applied to private individuals. Although we do not discount defendant\u2019s right to free speech under the first amendment, we do not read Hustler Magazine as requiring proof of an additional element to the tort of intentional infliction of emotional distress where the plaintiff is a private individual. Therefore, we consider it proper to take into account the posters and surrounding circumstances when determining if defendant\u2019s conduct was sufficiently outrageous to cause plaintiff to suffer severe emotional distress.\nIf the only alleged actions were the contents and distribution of the two posters, we would be inclined to affirm the trial court\u2019s dismissal. However, the distribution of the posters is just the last in a series of events that has spanned a two-year period. We find it particularly bothersome that defendant, a seemingly well-educated person, would stoop to following, in his car, plaintiff while she was driving her car and to confronting plaintiff at the airport and preventing her ingress and egress. We believe this type of behavior, compounded with the other acts alleged, is worthy of a jury\u2019s consideration whether defendant is liable for the intentional infliction of emotional distress. Although we acknowledge that plaintiff has a position in a highly controversial enterprise, we consider defendant\u2019s acts are subject to being viewed as directed at plaintiff personally, not the subject matter of plaintiff\u2019s occupation.\nWe further believe that plaintiff has sufficiently alleged that she suffered severe emotional distress. Plaintiff alleges, among other things: that she was treated at a hospital for her physical and emotional condition of ill-being; that she was under a doctor\u2019s care for two months; that she could not work for several days; that she could not sleep for several days; and that all of this was a direct and proximate result of defendant\u2019s conduct. \u201cIt is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.\u201d Restatement (Second) of Torts \u00a746, comment j (1965).\nTaken as true for purposes of a motion to dismiss under section 2 \u2014 615, plaintiff has alleged sufficient facts upon which a jury could find that defendant\u2019s conduct was sufficiently outrageous to be beyond the bounds of decency and that plaintiff suffered emotional distress such that \u201cno reasonable man could be expected to endure it.\u201d Restatement (Second) of Torts \u00a746, comment j (1965); see also Public Finance Corp. v. Davis, 66 Ill. 2d at 90, 360 N.E.2d at 767.\nWe therefore reverse and remand the trial court\u2019s dismissal of plaintiff\u2019s second amended count I consistent with this opinion, but reserve for the trial court the discretion to strike any allegations not in conformance with pleading requirements.\nPlaintiff\u2019s second amended count II and amended count IV both alleged causes of action for libel. Second amended count II alleged negligence in that defendant either knew said statements contained within the two posters were false; should have known in exercise of ordinary care that said statements in said posters were false; lacked reasonable grounds for believing said statements were true; or made no investigation as to the truth of the statements contained in said posters. Amended count IV alleged that defendant caused the posters to be distributed with actual malice in that defendant either knew said statements contained in said posters were false, or caused the posters to be distributed containing false statements with reckless disregard as to whether said statements were false. At all times, plaintiff alleged she was a private person and therefore need only show defendant was negligent. However, plaintiff acknowledged that she must show actual malice on the part of defendant to recover punitive damages. See Gertz v. Welch, 418 U.S. at 349, 41 L. Ed. 2d at 810, 94 S. Ct. at 3011.\nGenerally, defamation, which consists of the identically treated branches of libel and slander, is the publication of anything injurious to the good name or reputation of another, or which tends to bring him into disrepute. (Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 207 N.E.2d 482.) Illinois courts have held that a statement is defamatory if it impeaches a person\u2019s integrity, virtue, human decency, respect for others, or reputation and thereby lowers that person in the estimation of the community or deters third parties from dealing with that person. (Dauw v. Field Enterprises, Inc. (1979), 78 Ill. App. 3d 67, 397 N.E.2d 41.) Each defamation case must be decided on its own facts. (Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 371 N.E.2d 874.) Defamatory words, however, are divided into two classes: those actionable per se and those actionable per quod. (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 506 N.E.2d 1370; Cook v. East Shore Newspapers, Inc. (1945), 327 Ill. App. 559, 64 N.E.2d 751.) Words defamatory per se are those so obviously and naturally harmful to the subject, that proof of their injurious character can be, and is, dispensed with. (Owen v. Carr (1986), 113 Ill. 2d 273, 492 N.E.2d 1145; Harris Trust, 154 Ill. App. 3d at 578-79, 506 N.E.2d at 1373.) Per se defamation has been found where words \u201cimpute: (1) commission of a criminal offense; (2) infection with a communicable disease; (3) inability to perform, or want of integrity to discharge duties of office or employment; and (4) prejudicing a particular party in his trade, profession or calling.\u201d (Harris Trust, 154 Ill. App. 3d at 580, 506 N.E.2d at 1374, citing Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 805, 387 N.E.2d 714, affd (1980), 83 Ill. 2d 146, 419 N.E.2d 350, cert. denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981.) Words not falling into the categories otherwise attributable to libel per se may be actionable per quod if they are actually defamatory and specific damage is alleged. (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297.) Libel per quod requires extrinsic facts and innuendo to give it defamatory meaning. (Bruck v. Cincotta, 56 Ill. App. 3d at 260, 371 N.E.2d at 874.) To sustain an action of libel per quod, plaintiff must allege and prove special damages. Whitby v. Associates Discount Corp., 59 Ill. App. 2d 337, 207 N.E.2d 482.\nPlaintiff maintains that the \u201cWant\u00e9d\u201d poster, when read alone, or in conjunction with the \u201cFace The American Holocaust\u201d poster, contains false statements of fact that are libelous per se. In particular, plaintiff argues that defendant\u2019s use of the word \u201ckilling\u201d would cause the average reader to believe that plaintiff has committed a criminal offense. Alternatively, plaintiff argues that defendant's statements are libelous per quod.\nWe acknowledge, however, that the Supreme Court has recognized a constitutional privilege for expressions of opinion. (Gertz v. Welch, 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997; see also Owen v. Carr (1986), 113 Ill. 2d 273, 497 N.E.2d 1145.) Whether a statement is one of opinion or fact is a matter of law. (Owen, 113 Ill. 2d at 280, 497 N.E.2d at 1148; Lewis v. Time, Inc. (9th Cir. 1983), 710 F.2d 549.) Moreover, the alleged defamatory language must be considered in context to determine whether or not it is an expression of opinion. (Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin (1974), 418 U.S. 264, 41 L. Ed. 2d 745, 94 S. Ct. 2770; Ollman v. Evans (D.C. Cir. 1984), 750 F.2d 970; Owen, 113 Ill. 2d at 280, 497 N.E.2d at 1148.) We further consider it proper to determine whether alleged defamatory statements are expressions of opinion pursuant to a section 2 \u2014 615 motion to dismiss for failure to state a cause of action.\nIn Ollman v. Evans, the court drew upon theories used in prior cases to devise the totality of the circumstances analysis for determining whether a publication is a statement of fact or an expression of opinion. The four-part analysis is explained as follows:\n\u201cFirst, we will analyze the common usage or meaning of the specific language of the challenged statement itself. Our analysis of the specific language under scrutiny will be aimed at determining whether the statement has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous. See Buckley v. Littell, 539 F.2d 882, 895 (2d Cir. 1976), cert. denied, 429 U.S. 1062, 97 S. Ct. 785, 50 L. Ed. 2d 777 (1977). Readers are, in our judgment, considerably less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning. Second, we will consider the statement\u2019s verifiability \u2014 is the statement capable of being objectively characterized as true or false? See, e.g., Hotchner v. CastilloPuche, supra, 551 F.2d at 913. Insofar as a statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content. And, in the setting of litigation, the trier of fact obliged in a defamation action to assess the truth of an unverifiable statement will have considerable difficulty returning a verdict based upon anything but speculation. Third, moving from the challenged language itself, we will consider the full context of the statement \u2014 the entire article or column, for example \u2014 inasmuch as other, unchallenged language surrounding the allegedly defamatory statement will influence the average reader\u2019s readiness to infer that a particular statement has factual content. See Greenbelt Cooperative Publishing Association v. Bresler, supra, 398 U.S. at 13-14, 90 S. Ct. at 1541; cf. Restatement (Second) of Torts, \u00a7563. Finally, we will consider the broader context or setting in which the statement appears. Different types of writing have, as we shall more fully see, widely varying social conventions which signal to the reader the likelihood of a statement\u2019s being either fact or opinion. See Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, supra, 418 U.S. at 286, 94 S. Ct. at 2782.\u201d Ollman v. Evans, 750 F.2d at 979.\nWe believe defendant\u2019s statement that plaintiff is involved in \u201ckilling\u201d can be commonly understood as meaning that plaintiff has terminated a life of something or someone that was previously living. In itself the accusation that plaintiff is involved with \u201ckilling the unwanted and unprotected\u201d is a potentially damaging fact. Our difficulty, however, is that the type of killing being referred to in this instance is not, in our opinion, objectively capable of being proven or disproven. This is especially true when the allegedly defamatory statements are read in the context in which the statements occur. It becomes apparent when looking at the \u201cWanted\u201d poster in its entirety that defendant\u2019s use of the word \u201ckilling\u201d is his description of what takes place during an abortion procedure. We are not prepared to find that the word \u201ckilling\u201d in this context is verifiable and, thus, a defamatory statement of fact. Additionally, when the statements are considered within the social context, it becomes quite clear that defendant\u2019s use of the word \u201ckilling\u201d merely describes his opinion of the results of an abortion procedure. Since the Supreme Court decision of Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, wherein a woman\u2019s right to have an abortion was determined to be constitutionally protected, one of the primary issues has been, and still is, whether or not there is an actual killing of a human life as the result of an abortion. Pro-life activists certainly maintain that abortion is a killing; however, pro-choice activists believe the contrary, especially before the fetus has reached viability. Regardless of which position may ultimately be considered correct, at the present we find that the average reasonable reader of the \u201cWanted\u201d poster would not believe as an actual fact that plaintiff has been involved in killing, as that word is commonly understood by our society. In fact, we believe that the average reader would quickly realize that the central theme of the \u201cWanted\u201d poster is that abortion is a killing, to which plaintiff plays a part, and should be a crime in the opinion of those siding with the pro-life movement.\nAlthough we consider the \u201cWanted\u201d poster repulsive, explicit, unnecessary and in bad taste, we adhere to the belief that \u201c[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.\u201d (Gertz v. Welch, 418 U.S. at 339-40, 41 L. Ed. 2d 805, 94 S. Ct. at 3007.) As elaboration, we cite Sloan v. Hatton, wherein the court stated:\n\u201cFree speech is not restricted to compliments. Were this not so there could be no verbal give and take, no meaningful exchange of ideas, and we would be forced to confine ourselves to platitudes and compliments. But members of a free society must be able to express candid opinions and make personal judgments. And those opinions and judgment may be harsh or critical \u2014 even abusive \u2014 yet still not subject the speaker or writer to civil liability.\u201d Sloan v. Hatton (1978), 66 Ill. App. 3d 41, 42, 383 N.E.2d 259, 260.\nWe consider the above rationale applicable to all the other allegedly defamatory statements with the exception of the allegedly false statement that plaintiff performs abortions on 29-week gestationally old fetuses. This alleged statement requires reading the two posters in conjunction. In this regard we perceive plaintiff\u2019s reasoning to be that the two posters were distributed at the same time; therefore, the average reader would look at the pictures of apparently aborted fetuses on the \u201cFace The American Holocaust\u201d poster and infer that plaintiff was involved with abortions involving fetuses as old as 29 weeks gestationally. Without more information, we note that an abortion at 29 weeks may be a crime. (Ill. Rev. Stat. 1987, ch. 38, par. 81 \u2014 21 et seq.) Our reading of the amended complaint, which incorporates the two posters by reference, does not result in the inference that plaintiff is suggesting. Only well-pleaded facts are admitted by a section 2 \u2014 615 motion to dismiss and it is commonly understood that attached exhibits supercede any inconsistent allegations of a complaint. (Outboard Marine Corp. v. James Chisolm & Sons, Inc. (1985), 133 Ill. App. 3d 238, 478 N.E.2d 651.) Accordingly, we find the allegation that defendant stated that plaintiff performs abortions on 29-week gestationally old fetuses is inconsistent with the attached ex-Mbits for two reasons. First, there is absoMtely no cross-referencing between the two posters which would lead the average reader to infer that the two posters should be read and considered together. Second, the \u201cFace The American Holocaust\u201d poster tells the story of how 17,000 fetuses were found in a SVz-ton container in Los Angeles, California. Nowhere does it state that plaintiff was responsible for any of the fetuses found in the container.\nPlaintiff further argues that an expression of an opinion that does not disclose the facts forming the basis for the speaker\u2019s opinion may be actionable. Section 566 of the Restatement (Second) of Torts, captioned \u201cExpression of Opimon,\u201d states the following:\n\u201cA defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opimon.\u201d (Restatement (Second) of Torts, \u00a7566 (1977).)\nSection 566 has been cited approvingly in Illinois. See Stewart v. Chicago Title Insurance Co. (1987), 151 Ill. App. 3d 888, 503 N.E.2d 580; O\u2019Donnell v. Field Enterprises, Inc. (1986), 145 Ill. App. 3d 1032, 491 N.E.2d 1212.\nWe do not consider the rationale of section 566 applicable to this case. The average reasonable reader would realize that the \u201cWanted\u201d poster is referring to the practice of abortion and that the basis for defendant\u2019s opinion that plaintiff is \u201ckilling for profit the unwanted and unprotected\u201d is that plaintiff is somehow involved in the abortion process. Moreover, the average reader of the \u201cWanted\u201d poster would recogmze that it is merely another restatement of the pro-life movement\u2019s opinion regarding abortion; an opinion that has been publicized since at least the Roe v. Wade decision in 1973. The \u201cWanted\u201d poster does not imply that plaintiff has been involved in any \u201ckilling for profit\u201d outside of her involvement with abortions. The \u201cFace The American Holocaust\u201d poster simply does not refer to plaintiff and cannot be read in conjunction with the \u201cWanted\u201d poster for reasons previously stated.\nAccordingly, we affirm the trial court\u2019s dismissal of plaintiff\u2019s second amended count II and amended count IV. Plaintiff has not pleaded facts sufficient to state a cause of action for defamation.\nCount III of plaintiff\u2019s original complaint alleged a cause of action against defendant for invasion of privacy (false light). By order dated July 15, 1986, the trial court dismissed plaintiff\u2019s count III with prejudice based on this court\u2019s decision in Melvin v. Burling (1986), 141 Ill. App. 3d 786, 490 N.E.2d 1011.\nIn Melvin, this court stated, in dicta, that \u201cthe false light area of privacy law has not, as yet, been judicially accepted in Illinois as a cause of action.\u201d (Melvin, 141 Ill. App. 3d at 787-88, 490 N.E.2d at 1012.) Since Melvin, the Appellate Court for the First District, Fourth Division, in Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 515 N.E.2d 668, recognized a false light invasion of privacy claim. Quoting the Restatement (Second) of the Law of Torts, the court stated that a complaint for such a claim must allege facts tending to show the following:\n\u201cOne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if\n(a) the false light in which the other was placed would be highly offensive to a reasonable person, and\n(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.\u201d Berkos, 161 Ill. App. 3d at 496, 515 N.E.2d at 680, quoting Restatement (Second) of Torts \u00a7652E (1977).\nPlaintiff\u2019s complaint alleges a cause of action in negligence. Nonetheless, plaintiff argues that Berkos is not controlling because that case involved a public official plaintiff and a media defendant and the New York Times actual malice standard applied, whereas, the instant case involves a dispute between two private individuals and thus plaintiff need only satisfy the negligence standard enunciated in Gertz v. Welch. We disagree. The principal case for attaching first amendment privileges to invasion of privacy claims was Time, Inc. v. Hill (1967), 385 U.S. 374, 17 L. Ed. 2d 456, 87 S. Ct. 534. In Time, Inc. v. Hill, the Supreme Court held that a private plaintiff must satisfy the New York Times actual malice standard when the alleged falsehood is a matter of public concern. (Time, Inc. v. Hill, 385 U.S. at 390, 17 L. Ed. 2d at 468, 87 S. Ct. at 543.) We likewise consider abortion to be a matter of public concern and, thus, consider Time, Inc. v. Hill applicable. Moreover, in Gertz, the court specifically excluded the Time, Inc. v. Hill decision as outside the scope of its consideration. (Gertz, 418 U.S. at 348, 41 L. Ed. 2d at 810, 94 S. Ct. at 3011.) Therefore, we believe the elements for a cause of action for a false-light invasion-of-privacy claim as stated by the restatements and cited by Berkos are accurate reflections of the law.\nInasmuch as count III of plaintiff\u2019s complaint does not allege malice on the part of defendant, the trial court\u2019s dismissal of plaintiff\u2019s count III is affirmed.\nFinally, defendant made a motion to dismiss appeal alleging that plaintiff failed to argue in her brief the question of whether defendant\u2019s statements were privileged. Defendant\u2019s motion is denied.\nFor all of the foregoing reasons, the judgment of the circuit court of Peoria County is reversed and remanded consistent with this opinion as to plaintiff\u2019s second amended count I, and affirmed as to plaintiff\u2019s second amended count II, count III and amended count IV.\nAffirmed in part; reversed in part and remanded.\nSTOUDER, P.J., and HEIPLE, J., concur.", "type": "majority", "author": "JUSTICE SCOTT" } ], "attorneys": [ "John M. Wood, of Goldsworthy, Fifield & Hasselberg, of Peoria (Michael R. Hasselberg, of counsel), for appellant.", "Daniel J. Smith, of Morton (Harry M. Williams, of counsel), for appellee." ], "corrections": "", "head_matter": "MARGARET VAN DUYN, Plaintiff-Appellant, v. GERALD T. SMITH, Defendant-Appellee.\nThird District\nNo. 3\u201487\u20140598\nOpinion filed August 9, 1988.\nRehearing denied September 20, 1988.\nJohn M. Wood, of Goldsworthy, Fifield & Hasselberg, of Peoria (Michael R. Hasselberg, of counsel), for appellant.\nDaniel J. Smith, of Morton (Harry M. Williams, of counsel), for appellee." }, "file_name": "0523-01", "first_page_order": 545, "last_page_order": 563 }