Jacobson v. CBS Broad., Inc.

19 N.E.3d 1165

Amy JACOBSON, Plaintiff–Appellant

v.CBS BROADCASTING, INC., Defendant–Appellee.

No. 1–13–2480.

Appellate Court of Illinois, First District, Sixth Division.

Sept. 30, 2014.

Kathleen Zellner and Douglas H. Johnson, both of Kathleen Zellner & Associates, P.C., of Downers Grove, for appellant.

Brian A. Sher and Jena M. Valdetero, both of Bryan Cave LLP, of Chicago, and Lee Levine, pro hac vice, Jay Ward Brown, pro hac vice, and Matthew E. Kelley, pro hac vice, all of Levine, Sullivan, Koch & Schulz, LLP, of Washington, D.C., for appellee.

OPINION

Justice HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, news reporter Amy Jacobson, filed suit against the defendant, CBS Broadcasting, Inc. (CBS), for damages arising from a videotape made of her and her two young children while they were swimming in the backyard pool of a high-profile source in a story upon which the plaintiff was reporting. The seven-count, fifth-amended complaint (complaint) asserted claims for intrusion upon seclusion, false light, intentional infliction of emotional distress, defamation of character, and tortious interference with a business relationship and business expectation. After two separate proceedings, the circuit court granted summary judgment for CBS under section 2–1005 of the Code of Civil Procedure (735 ILCS 5/2–1005 (West 2010) ), as to all seven counts, and the plaintiff now appeals, raising the following issues: (1) the court erred in finding her to be a public figure, and thus required to prove actual malice in her claims for defamation; (2) even assuming she is a public figure, she raised a triable issue of fact as to the existence of actual malice; (3) summary dismissal of her false light claim similarly was error because a triable issue of fact exists as to actual malice; (4) the court erred in summarily dismissing her claim for intrusion upon seclusion because she sufficiently demonstrated that CBS recorded private facts at a time when she had a reasonable expectation of privacy; and (5) the court erred in summarily dismissing her emotional distress and tortious interference claims as being merely derivative of her defamation claims. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 As this case is on review from a grant of summary judgment for CBS, we recite the facts in a manner consistent with this procedural posture, construing the evidence most favorably to the plaintiff. At the time of the occurrence, the plaintiff had been employed for eleven years as a reporter for Chicago television station WMAQ, NBC–5. She was assigned to report on the case of Lisa Stebic, who, on April 30, 2007, vanished from the Plainfield home she shared with her husband, Craig Stebic (hereinafter Stebic house). At the time of Lisa's disappearance, she and Craig were in the midst of a contentious divorce, and the ensuing disappearance became the focus of media attention.

¶ 3 From the moment the plaintiff was assigned to the case, she developed a rapport with the families of both Lisa and Craig Stebic. On July 6, 2007, the plaintiff was invited to the Stebic house by Craig's sister, Jill Webb, to discuss the case. While she was there, she was videotaped from a neighbor's home, allegedly by Michael Puccinelli, a reporter from CBS's local station, CBS–2, and his cameraman, Nathan Delack. At the time, CBS and NBC were competitors locked in an intense battle for ratings. Excerpts of the videotape were subsequently aired by CBS in the context of a news report, after which the plaintiff was terminated from NBC, and subjected to criticism over her journalistic ethics. The plaintiff claimed that the taping and the broadcast violated her right to privacy, were defamatory, and caused her to be fired by NBC–5. In particular, she alleged that the edited version of the videotape as broadcast maliciously placed her in a false light, and intentionally sought to portray her “as an adulteress and an unethical reporter.”

¶ 4 In her deposition, the plaintiff testified that the morning of July 6, 2007, was her day off, and she had planned to go swimming with her two young sons, ages two and three, at a health club near her home. On the way to the health club, however, she received a call from Jill inviting her to come to the Stebic house. Not wanting to miss out on a potential lead and a chance to “get the story,” the plaintiff decided to proceed with the boys to the Stebics', which had a backyard swimming pool. The plaintiff arrived at the house around 11 or 11:30 a.m., at which point her children immediately went into the pool. The plaintiff removed her shirt and shorts and accompanied the boys into the water. Present at the home with the plaintiff were Craig Stebic, Jill, Jill's husband Robert Webb, and the Webbs' children, who were visiting from out of town. The plaintiff denied being aware at the time she arrived at the Stebics' that there were any other reporters or news media in the surrounding area. However, she acknowledged learning that day that there were in fact other camera crews and news personnel present in the neighborhood, including Puccinelli and Delack. Nonetheless, the plaintiff testified that she never gave anyone permission to record her in any manner, and that she believed she was in a private area when she and her boys were at the Stebic house.

¶ 5 That same morning, Puccinelli and Delack went to the Stebic house on assignment from CBS in an attempt to interview Craig Stebic regarding a large public search for Lisa that was scheduled for July 7. When Puccinelli knocked on the Stebics' front door, Robert Webb responded and told him that no one from the family would be making any comment. Webb testified that, at that point, Puccinelli appeared upset and left the premises. After leaving, Puccinelli and Delack proceeded to the home of neighbors, Tracy Reardon and William Ahlstrom, who lived behind the Stebics', and with whom Puccinelli had developed a professional relationship during Lisa's case. Reardon and Ahlstrom invited Puccinelli into their home, and from the kitchen window, Puccinelli observed what he described in his deposition as a social gathering in the Stebics' backyard. According to Puccinelli's testimony, he was able to recognize both the plaintiff and Craig Stebic. Puccinelli was then allowed by the neighbors to bring Delack into the home with his camera, at which time Delack filmed the footage which became the subject of this case.

¶ 6 After obtaining the footage, Puccinelli returned to the Stebic house and recorded the license plate number of a vehicle parked in front of the house. He conducted a search which confirmed that the vehicle belonged to the plaintiff. Puccinelli then notified CBS's news director, Carol Fowler, who instructed him to transmit the videotape into the station. The plaintiff testified that copies of the tape immediately made their way around the editing “bays” at CBS. However, CBS did not immediately air the story.

¶ 7 Later that afternoon, after the plaintiff left the house, she contacted her supervisor at NBC and informed him that she had been videotaped swimming at the Stebic house. Her supervisor expressed displeasure, and subsequently instructed her not to report for her next scheduled shift on Sunday, and to retain an attorney. The following Monday, July 9, 2007, a meeting was held between the plaintiff and her supervisors, during which the plaintiff expressed regret for her decision to go to the Stebic house with her children.

¶ 8 In the meantime, on July 9, Fowler had been informed that two local newspapers were aware of the plaintiff's presence at the Stebic house the previous Friday and that executives at NBC were very displeased with her conduct in covering the Stebic case. Fowler stated in one email that CBS nonetheless would wait to air the videotape until after the newspapers broke the story, but that the tape was nonetheless CBS's exclusive story, and should be released by them. CBS then proceeded in its efforts to prepare the planned broadcast.

¶ 9 On the evening of July 9, both the Chicago Tribune and the Chicago Sun–Times published, in print and on their websites, the story of the plaintiff's presence at the Stebic house, and NBC's adverse reaction to it. The Sun–Times story, under the headline and bi-line “In too deep * * * pool party with missing woman's husband could sink Channel 5 reporter,” stated that the plaintiff was in trouble with her bosses for “going swimming on her day off with the estranged husband of a missing Plainfield woman.” The Tribune story similarly reported that the plaintiff had been “seen on video tape with her children at a backyard pool-side get-together,” and that her WMAQ superiors were evaluating whether an ethical line had been breached and if punishment was warranted for her actions.

¶ 10 On July 10, 2007, CBS broadcast the report in its early morning news. In its original form, the videotape footage had covered a time span of roughly 16 minutes, and contained images of the plaintiff, Jill Webb, Craig Stebic, and the children, engaging in different activities at various times in the pool area. It depicted the plaintiff in her halter swimsuit top and a towel, primarily walking in and out of the sliding door of the pool area, talking on her cell phone. The news report, however, featured an edited version lasting approximately 2 minutes, portions of which were juxtaposed with commentary of CBS reporter, Alita Guillen.

¶ 11 In the broadcast version, which was shot from a distance and is somewhat blurry, the plaintiff is seen initially in her swimsuit top and towel standing inside the open sliding door of the backyard, talking on her cell phone. The tape then cuts to Craig, who is behind the fence in another area of the yard, putting a tee shirt over his bare upper body, then immediately to the plaintiff's children. The tape shows an image of the front of the Stebic house, and shortly thereafter,...