Illinois Appellate Court Reports

ATKINSON v. AFFRONTI, 1-05-3992 (Ill.App. 12-22-2006) KEVIN
Defendants-Appellees. No. 1-05-3992. Appellate Court of
Illinois, First District. December 22, 2006.

Appeal from the Circuit Court of Cook County. No. 04 L
004492, Honorable Robert Lopez-Cepero, Judge Presiding.

JUSTICE O’MALLEY delivered the opinion of the court.

Plaintiff, Kevin Atkinson, sued defendants Ralph Affronti,
Edward Juergensen and Frank O’Lone for false arrest and
Frank A. Marco for defamation and making statements that
place him in a “false light before the public.” The circuit
court dismissed defendant Marco from this case pursuant to
section 2-619(a)(9) of the Code of Civil Procedure (the
Code) (735 ILCS 5/2-619(a)(9) (West 2004)), based on an
attorney’s absolute privilege to publish defamatory
statements pursuant to section 586 of the Restatement
(Second) of Torts (Restatement (Second) of Torts §
(1977)). Plaintiff appeals the judgment assigning error to
the circuit court for granting defendant Marco’s motion to
dismiss because: (1) the privilege does not apply to
defamatory communication to another prior to the
commencement of litigation; and (2) questions of fact exist
as to whether defendant Marco had a good-faith belief that
plaintiff’s employer was liable under the doctrine of
respondeat superior. For the reasons that follow, we affirm
the judgment of the circuit court.


The following facts are derived from the well-pleaded facts
in plaintiff’s complaint and the reasonable inferences
drawn therefrom, which, for purposes of this appeal, must
be accepted as true (In re Chicago Flood Litigation, 176
Ill. 2d 179, 184 (1997)), as well as the various
evidentiary materials submitted by both parties in
connection with defendant’s motion to dismiss. See Lawson
v. City of Chicago, 278 Ill. App. 3d 628, 634 (1996) (in
ruling on a section 2-619 motion for dismissal, the court
may properly consider “external submissions of the
parties”); In re Petition for Submittal of the Question of
Annexation to the Corporate Authorities of the City of
Joliet, 282 Ill. App. 3d 684, 688 (1996) (court may
consider when ruling on section 2-619 motion to dismiss
“pleadings, depositions, affidavits [citation], and other
evidence offered by the parties”).

On July 18, 2003, plaintiff was employed as a site
superintendent by the Dobbins Group (Dobbins), a general
contractor, to oversee construction at a jobsite referred
to as Fort Sheridan. On that morning, members of the
Ceramic Tile, Terrazzo & Granite Cutters Union Local No. 67
(Local 67) began picketing the jobsite because Polco
Flooring, a nonunion contractor, was subcontracted by
Dobbins to perform the floor installation. Picketers,
including defendant Affronti, were confronted by plaintiff,
who came out of a Dobbins trailer and complained that the
demonstration was obstructing the workers. Affronti stated
that plaintiff subsequently came out of the trailer and
threw the picketers’ food and drinks to the ground during
lunch. According to defendants, plaintiff was simply

On July 22, 2003, Affronti and others again picketed the
Fort Sheridan jobsite. Plaintiff allegedly insulted the
picketers, who then called the Highland Park police and
complained that plaintiff was harassing them. Officer Weng
of the Highland Park police spoke to plaintiff and he
agreed to stay away of the picketers. On July 25, 2003,
Affronti and others commenced picketing the Fort Sheridan
jobsite again and also displayed a large inflatable rat
that belonged to Local 67 to publicize the nonunion labor
employed on the project. Affronti swore in his affidavit
that he observed plaintiff stab the inflatable rat with an
object and leave the scene in his car. Affronti called
Officer Weng and filed a police report.

Plaintiff contends that Juergensen and O’Lone also accused
him of cutting the inflatable rat. As a result of these
accusations, plaintiff was arrested on July 28, 2003.
Plaintiff maintains that the allegations against him were
false and that all charges against him were dropped when
another came forward and admitted that he, and not
plaintiff, damaged the balloon.

Defendant swore in his affidavit in support of his motion
to dismiss that he had received a call from Frank O’Lone of
Local 67, advising him that plaintiff, Dobbins’
superintendent, damaged Local 67’s property while they were
engaged in a labor dispute at Fort Sheridan. O’Lone
employed defendant’s firm to represent Local 67 in this
matter and requested that defendant take all necessary
steps, including legal proceedings, to recover money for
damage to its property. Defendant issued the following
letter to Dobbins on behalf of Local 67:

“Dear Sir/Madam:

Please be advised that this office represents the Ceramic
Tile Layers Union Local 67 who are engaged in a labor
dispute with Polco Flooring at the Fort Sheridan jobsite.
The purpose of this letter is to advise you of certain
wrongful acts committed by your employee Kevin Atkinson.
As your superintendent, he has destroyed and damaged
property belonging to our Local.

Our labor dispute is not with you, but with Polco
Flooring and why Mr. Atkinson has taken these actions is
unfortunate. The purpose of the letter is to put you on
notice and to advise you that we intend on holding the
Dobbins Group responsible for the property damage.

Local 67 is engaged in a lawful and peaceful picket
against Polco Flooring. We intend on holding your company
responsible for any interference or damage caused by the
Dobbins Group. Please call me if you have any questions
or wish to discuss this matter.”

Defendant further indicated in his affidavit that litigation
was contemplated in good-faith, under serious consideration
and authorized by Local 67. Ultimately, no lawsuit was
filed, because Local 67 was paid for the damage to the
inflatable rat by a third party and no other confrontations
occurred at the Fort Sheridan jobsite.

Defendant filed his motion to dismiss based on absolute
immunity pursuant to section 586 of the Restatement
(Second) of Torts. The circuit court, in a written order,
found that the privilege “expressly applies to letters made
prior to a legal proceeding” and that defendant had a
good-faith belief that plaintiff was acting within the scope
of his employment when the alleged damage occurred. The
circuit court further held that plaintiff’s failure to
counter or contradict defendant’s affidavits necessarily
requires the court to accept defendant’s facts as true for
purposes of the motion and grant judgment in his favor.
Plaintiff now appeals.



Plaintiff contends that defendant was not entitled to the
privilege under section 586 of the Restatement (Second) of
Torts because the communication is to a third party that
occurred prior to litigation. Plaintiff cites to Golden v.
Mullen, 295 Ill. App. 3d 865 (1997), and Thompson v. Frank,
313 Ill. App. 3d 661 (2000), for the proposition that
Illinois courts have not extended this privilege to
out-of-court statements to other persons. Golden, 295 Ill.
App. 3d at 872 (declining to expand the privilege to cover
communications made by an attorney to his client’s spouse.)
Thompson, 313 Ill. App. 3d at 664 (holding that “an
absolute privilege does not bar a libel action based on an
allegedly defamatory communication between one party’s
attorney and the spouse of the opposing party to pending
litigation”). We disagree and find the authority upon which
plaintiff relies to be inapposite.

The defense of absolute privilege in a defamation action
involving statements made by an attorney is set forth in
section 586 of the Restatement (Second) of Torts and
provides as follows:

“An attorney at law is absolutely privileged to publish
defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a
judicial proceeding in which he participates as counsel,
if it has some relation to the proceeding.” (Emphasis
added) Restatement (Second) of Torts, § 586 (1977).
See also Golden v. Mullen, 295 Ill. App. 3d 865, 869-70

The privilege extends to out-of-court communications between
opposing counsel (Dean v. Kirkland, 301 Ill. App. 495
(1939)), to out-of-court communications between attorney
and client related to pending litigation (Weiler v. Stern,
67 Ill. App. 3d 179 (1978)), to out-of-court communications
between attorneys representing different parties suing the
same entities (Libco Corp. v. Adams, 100 Ill. App. 3d 314
(1981)), to statements made during quasi-judicial
proceedings (Richardson v. Dunbar, 95 Ill. App. 3d 254
(1981)), to communications necessarily preliminary to a
quasi-judicial proceeding (Parrillo, Weiss & Moss v.
Cashion, 181 Ill. App. 3d 920 (1989)), and to out-of-court
communications between an attorney and opposing parties in
demand letters prior to litigation (Simon v. Oltmann
98-C-1759 (N.D. Ill. August 31, 2001)).

In Golden, this court recognized that the only requirement
is that the communication pertain to proposed or pending
litigations and that “[a]ll doubts should be resolved in
favor of a finding of pertinency, which is a question of
law for the court.” Golden, 295 Ill. App. 3d at 870, citing
Skopp v. First Federal Savings of Wilmette, 189 Ill. App. 3d
440, 447-48 (1989), and Macie v. Clark Equipment Co., 8
Ill. App. 3d 613, 615 (1972). If, however, the defamatory
statements have “no connection whatever with the
litigation,” then no privilege will attach. Golden, 295
Ill. App. 3d at 870; Restatement, (Second) of Torts §
586, Comment c, at 248 (1977). The privilege is predicated
on the tenet that although defendant’s conduct is otherwise
actionable, because he is acting in furtherance of some
interest of social importance, the communication is
protected and no liability will attach, even at the expense
of uncompensated harm to the plaintiff’s reputation.
Golden, 295 Ill. App. 3d at 870, citing Weber v. Cueto, 209
Ill. App. 3d 936, 942 (1991); Libco, 100 Ill. App. 3d at
317. We are convinced that the same public policy
considerations that protect an attorney’s statements made
to his or her client during the course of a legal
proceeding necessarily protect prelitigation communications
such as the letter defendant sent to plaintiff’s employer.

An attorney must be at liberty to candidly and zealously
represent his client in communications to potential
opposing parties in litigation or other proceedings without
the specter of civil liability for his statements clouding
his efforts. Were we to accept plaintiff’s argument that
extending the privilege to communications to others prior
to litigation goes beyond the scope of the privilege, we
would obstruct more than just an attorney’s ability to
properly represent his client. Such a limitation on the
privilege could frustrate an attorney’s ability to settle
or resolve cases favorably for his client without resorting
to expensive litigation or other judicial processes.

Under plaintiff’s rule, an attorney may be liable for
defamation by demanding that several potentially culpable
defendants settle a dispute out of court. Frequently, the
best strategy for certain disputes is to avoid formal
proceedings and resolve matters out of court. An attorney
could be stymied by this rule from putting forth his best
evidence supporting his client’s position that might
otherwise deter formal litigation and spare his client’s
time and resources, as well as those of potential
defendants. There is, in our view, an incalculable social
and economic benefit to litigants, taxpayers, attorneys and
the general public in settling cases that would otherwise
add to the already clogged dockets and further strain our
thinly spread judicial resources. We therefore hold that
the absolute privilege which applies to defamatory
statements made by an attorney during pending litigation
applies to prelitigation defamatory statements made in
written communications to a potential litigant.


Plaintiff asserts that the privilege cannot be applied here
because defendant must prove that he had a good-faith
belief that Dobbins was responsible for plaintiff’s acts.
He argues that concluding, as defendant did, that Dobbins
would be vicariously liable for plaintiff’s acts based on
self-serving statements from his client was insufficient.
He also claims that had defendant conducted a reasonable
investigation and waited three additional days prior to
communicating with Dobbins, he would have been made aware
that another party acknowledged responsibility. However,
plaintiff offers no authority to support his assertion that
an attorney must first investigate a client’s claim for
legal sufficiency prior to issuing a demand letter. We
disagree with plaintiff and hold that defendant did not
have to prove a good-faith belief that Dobbins was
responsible for plaintiff’s acts or conduct an
investigation to verify his client’s statements.

The privilege affords complete immunity, irrespective of
the attorney’s knowledge of the statement’s falsity or the
attorney’s motives in publishing the defamatory matter.
Restatement (Second) of Torts § 586, Comment a, at
247 (1977); Weber v. Cueto, 209 Ill. App. 3d 936, 942
(1991). The only requirement is that the communication
pertain to proposed or pending litigation. The pertinency
requirement is not applied strictly, and the privilege will
attach even where the defamatory communication is not
confined to specific issues related to the litigation.
Golden, 295 Ill. App. 3d at 870; Libco, 100 Ill. App. 3d at
317. In the instant case, defendant’s letter was directed to
Dobbins, plaintiff’s employer, and described the conduct of
plaintiff, its employee. The letter further indicated that
defendant’s client intended to hold Dobbins financially
responsible for plaintiff’s conduct. Here, notwithstanding
the aforementioned requirement and its liberal application,
the alleged defamatory statements relate only to the
specific issues of the potential litigation, namely
plaintiff’s stabbing the inflatable rat which was
interfering with progress at the Fort Sheridan site
construction while performing his duties as superintendent
for Dobbins. We find, as a matter of law, the content of
defendant’s letter to Dobbins meets the pertinency

Moreover, even if defendant was required to show a
good-faith belief that Dobbins was vicariously liable for
plaintiff’s conduct based on his client’s statements, the
evidence in the record here shows far more than a
good-faith belief. The doctrine of respondeat superior
permits an employer to be held vicariously liable for the
torts of his employee if they are committed within the
scope of that employment. Pyne v. Witmer, 129 Ill. 2d 351,
359 (1989), citing Darner v. Colby, 375 Ill. 558, 566-67
(1941), and Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d
19, 21 (1971); see generally Restatement (Second) of Agency
§ 219 (1958). Although there is no precise
definition for “scope of employment,” our supreme court in
Pyne identified the following broad criteria found in
section 228 of the Restatement (Second) of Agency which
provides, in pertinent part:

“`(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.'” Pyne, 129 Ill. 2d at 360, quoting Restatement
(Second) of Agency § 228 at 504 (1958).

Defendant’s conclusion that Dobbins could be held liable
for plaintiff’s actions is clearly supported by the
statements that were made to him by representatives of
Local 67. In the uncontested affidavits attached to
defendant’s motion to dismiss, defendant states that he was
contacted by Local 67 to represent them in recovering money
for damage to its property caused by plaintiff. Defendant
was told by his client that plaintiff was employed by
Dobbins to supervise the construction at the Fort Sheridan
site at approximately 9:30 a.m. when the incident occurred.
It was further alleged that plaintiff stabbed the
inflatable rat because it was interfering with the
construction work, for which plaintiff was responsible, at
the Fort Sheridan site. These unrebutted statements in the
record support the conclusion that Dobbins would be
vicariously liable for plaintiff’s conduct. Plaintiff’s act
of stabbing the inflatable rat was actuated, at least in
part, by a purpose to serve the master by clearing an
obstruction, at the Fort Sheridan site, during regular
business hours and thus imputes liability to Dobbins under
the doctrine of respondeat superior.

If a party moving for dismissal or summary judgment
supplies facts which, if not contradicted, would entitle
the party to a judgment as a matter of law, the opposing
party cannot rely on bare allegations alone to raise issues
of material fact. Barber-Coleman Co. v. A & K Midwest
Installation Co., 236 Ill. App. 3d 1065, 1070-71 (1992).
Facts contained in an affidavit in support of a motion to
dismiss which are not contradicted by counter-affidavit
must be taken as true for purposes of the motion.
Barber-Coleman Co., 236 Ill. App. 3d at 1071. We, like the
circuit court in this case, find that defendant had a
good-faith belief that Dobbins was responsible for
plaintiff’s conduct. We also hold that an attorney is not
required to undertake an investigation or wait until
statements made by their clients are proven true prior to
communicating with potential litigants in order to be
protected under the privilege.


For the foregoing reasons, we hold that the absolute
privilege in the section 586 of the Restatement (Second) of
Torts applies to defamatory statements in written
communications from an attorney to a potential litigant to
the extent that the communication pertains to proposed
litigation or other proceedings. Defendant’s communication
in this case pertained to proposed litigation and he was
not required to undertake any investigation to determine
the truthfulness or accuracy of his clients’ statement
before the absolute privilege could be applied to him. As a
result, the circuit court properly applied the privilege to
defendant’s statement and dismissed all claims against him.
Accordingly, the judgment of the circuit court is affirmed.