Busy Bees Day Care v. State of Illinois

This cause comes before this Court on Respondent’s Motion to Dismiss, pursuant to Section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 2-619. The Claimants filed their Objections, and the Respondent filed a Reply. The Court being fully advised finds:

FACTS

Busy Bees Day Care, Inc. and Carisa Hurley (the sole shareholder) (“Claimants”) brought suit against the State of Illinois for defamatory statements published about Busy Bees Day Care, Inc. on the Respondent’s Day Care Information Line.

Busy Bees Day Care, Inc. was authorized to have 53 children enrolled in its daycare. In June 2006, Busy Bees Day Care, Inc. had 40 students enrolled at a weekly tuition rate of $145 per week, per student. Due to the volume of children, Ms. Hurley was able to hire an assistant, a teacher and a teacher’s assistant. Ms. Hurley estimated that Busy Bees Day Care, Inc. would have reached capacity by September 2006. However, instead of gaining enrollees, Busy Bees Day Care, Inc. began losing enrollees and was unable to attract new business.

The Complaint alleged the failing business was due to false statements published by the Respondent.

On June 19, 2006 the Respondent listed the following false information about the Claimants on the Respondent’s Day Care Information Line:

a. A child was permitted to engage in inappropriate and/or dangerous activities at the

site,

b. The Claimants failed to comply with requirements for the safe storage of dangerous

and/or potentially dangerous articles and/or cleaning supplies,

c. A child was seriously injured or died at the site, and

d. There was a dangerous animal at the site.

[*154] These statements remained available until June 19, 2007. It was at this time that Ms. Hurley contacted the Respondent and alerted them to the mistakes. The Respondent corrected the error.

However, during the time that the erroneous statements were available, referrals were made by The Illinois Action for Children’s Child Care Resource and Referral Service to the Claimants. Additionally, Ms. Hurley herself referred individuals to call the Day Care Information Line as a reference. The Claimants alleged that at least 28 potential new clients called the Day Care Information Line and received the false information. The Claimants alleged that none of the people who called the Day Care Information Line enrolled a child with the Claimants.

Additionally, the Claimants alleged that the proximate cause of the declining enrollment to 16 children was due to the incorrect information listed on the Day Care Information Line by the Respondent.

Respondent filed its Motion to Dismiss on the following two grounds: 1) the claim was time-barred by the statute of limitations for defamation actions; and 2) the Respondent is shielded from liability by public official immunity.

ANALYSIS

The defamatory statements were published by the Respondent on June 19, 2006. However, the Claimants did not file their Complaint until January 10, 2008. There is a one-year statute of limitations for defamation. 735 ILCS 5/13-201.1 Respondents argue, therefore, that Claimants’ suit must be barred since it was filed more than one year after the publication of the defamatory statements.

For defamation, the limitation period generally commences with the first publication of an allegedly defamatory statement. Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill.2d 129, 131 (1975). On occasion, the “discovery rule” will apply and overcome a statute of limitations defense. Id. at 132. The discovery rule “delays the commencement of the relevant statute of limitations until the plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused.” Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill.2d 240, 249 (1994) (citing Knox College v. Celotex Corp, 88 Ill.2d 407, 415 (1981); Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 171 (1981); Witherell v. Weimer, 85 Ill.2d 146, 156 (1981)).

The Claimants argue that the discovery rule should apply here because the Claimants had no reason to know of the Respondent’s defamatory statements until they were first notified of them in June 2007. The Claimants allege that during the period of time between the first publication, in June 2006 and the last publication, in June 2007, the Respondent regularly provided Claimants with Licensing Monitor Reports that gave no indication of any negative

Defamation - Privacy. Actions for slander, libel or for publication of matter violating the right of privacy, shall be commenced within one year next after the cause of action accrued.

[*155] information about Busy Bees Day Care. In their Objection, the Claimants allege that they reasonably relied on these reports. The Claimants assert that once they learned about the false statements being published, they took immediate action to correct the misinformation and filed this claim within seven months.

The Illinois Supreme Court has declared that the primary purpose of limitations periods is to require the prosecution of a right of action within a reasonable time to prevent the loss or impairment of available evidence and to discourage delay in the bringing of claims. Tom Olesker’s Exciting World of Fashion, Inc., 61 Ill.2d 129 at 132. In analyzing whether to apply the discovery rule, the Court has held that “where the passage of time does little to increase the problems of proof, the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue.” Rozny v. Marnul, 43 Ill.2d 54, 70 (1969). Here, the passage of time does not appear to present problems of proof; the Respondent has admitted the publishing of the false statements. Thus, the Court must look at whether it can apply the discovery rule to this particular case.

Since Rozny, Illinois courts have applied the discovery rule in a wide range of cases. See Lipsey v. Michael Reese Hospital, 46 Ill.2d 32 (1970) (medical malpractice); Witherell v. Weimer, 421 N.E.2d 869 (Ill. 1981) (medical malpractice); Williams v. Brown Manufacturing Co., 261 N.E.2d 305 (Ill. 1970) (products liability in which the design did not manifest itself until long after the product left the manufacturer); Berry v. G.D. Searle & Co., 56 Ill.2d 548 (1974) (products liability); Kohler v. Woollen, Brown & Hawkins, 15 Ill.App.3d 455 (1973) (legal malpractice); Knox College v. Celotex Corp., 430 N.E.2d 976 (1981) (tortious misrepresentation and fraud arising from a roofing contract). In Olesker, cited supra, the Supreme Court specifically applied the discovery rule in a defamation case. Citing Rozny, the Court held that the interests of justice required that the plaintiff be allowed to use the date of discovery of the false statements, as opposed to the date of publication, to defeat a statute of limitation defense by the defendant credit reporting agency. Tom Olesker’s Exciting World of Fashion, Inc., 61 Ill.2d 129 at 136.

The Respondent notes that in Olesker, and in the other Illinois cases cited, the holdings centered around the fact that either there was no reasonable way for the plaintiff to know about the defamatory information or the injury itself was shielded from them. In Olesker, for example, the defendant credit reporting agency limited distribution of its reports to subscribers. Respondent points out that the Claimants here required no special knowledge or special access to get the defamatory information or learn the alleged injury. Indeed, the information was only a phone call away. Since it was not unreasonable for the Claimants to pick up the phone and check the information on the hotline, Respondent argues, the discovery rule should not apply.

Respondent’s argument fails to take into account the underlying rationale behind Rozny and Olesker. As those cases point out, statutes of limitations must give way in cases where flagrant injustice otherwise would result. Undoubtedly, the statements made by the Respondent regarding Busy Bees Day Care, Inc. were defamatory. The defamatory nature of the statements was not denied by the Respondent. In fact, the Respondent sent the Claimants a letter acknowledging the error. The statements were utterly untrue and allegedly damaged the [*156] Claimants. Moreover, the Claimants here apparently relied on the Respondent’s own Licensing Monitor Reports to believe they were in full compliance and, specifically, that no negative information would be reported about them on the phone hotline. Accepting as true the Claimants’ pleadings, as the Court must at the motion to dismiss stage, it would be flagrant injustice to bar application of the discovery rule in this particular case.

Respondent next argues that the Claimants’ claim should be barred by public official immunity. The Respondent offers no information, however, about who published the allegedly defamatory statements. In Illinois, public official immunity has been granted only to certain classes of government employee. See Blair v. Walker, 64 Ill.2d 1 (1976) (governor); McLaughlin v. Tilendis, 115 Ill.App.2d 148 (1969) (superintendent of schools); Larson v. Doner, 32 Ill.App.2d 471 (1961) (mayor and city commissioners); Haskell v. Perkins, 165 Ill.App. 144 (1911) (head of architecture at Board of Education); Dolatowski v. Life Printing and Pub. Co., Inc., 197 Ill.App.3d 23 (1990) (deputy police superintendent). Without knowing who published the allegedly defamatory statements, the Court cannot say that this claim falls under public official immunity and declines to extend such immunity to all government employees at any level.

For the foregoing reasons, IT IS HEREBY ORDERED that the Respondent’s motion to dismiss is DENIED and the case is referred back to the Commissioner for further proceedings.