State high court upholds dismissal of 'negligent hiring' claim

ILLINOIS–A unanimous state Supreme Court in Springfield in early December dismissed a “negligent hiring” claim which alleged WRCX Radio should have know that a disc jockey’s controversial broadcasts would lead to defamatory speech.

The related defamation claims, which were brought by former Chicago Bear Keith Van Horne after disk jockey Matthew “Mancow” Muller stated on his morning show that Van Horne assaulted him and threatened his life, were allowed to proceed to trial.

But the court dismissed Van Horne’s negligent hiring, supervision, and retention claim against WRCX because it found that even though Muller had previously engaged in “offensive or outrageous conduct during his radio programs,” such behavior had given WRCX no reason to believe Muller would make false and defamatory statements on the air.

In November 1994, Muller and Blanco stated during a morning radio show that Van Horne had approached Muller at the elevators in the WRCX building and threatened to kill him. Van Horne’s negligent hiring and retention claim was based, however, on prior conduct at a San Francisco radio station and at WRCX.

In San Francisco, Muller obstructed traffic for hours on the Golden Gate Bridge so one of his colleagues could get a haircut in a van parked on the bridge, dropped cinder blocks off a California overpass onto cars parked below, and visited a nursing home to mock the elderly. At WRCX, Muller declared “Roadkill Tuesday” and convinced listeners to leave rotting animal carcasses at a mall, offered female listeners money to ride public transportation topless, and held a sign over a Lake Shore Drive bridge that read “Honk and we’ll drop a cinder block.”

Van Horne alleged in a claim filed in circuit court in Chicago that such conduct on Muller’s part indicated WRCX knew, or should have known, that Muller was likely to make false and defamatory statements on the air, thus making WRCX’s hiring and retention of Muller negligent. The circuit court dismissed this claim, but an appellate court reversed that dismissal.

The state Supreme Court rejected Van Horne’s negligent hiring argument and upheld the circuit court’s dismissal because none of Muller’s prior conduct involved false or defamatory statements.

In rejecting Van Horne’s claim, the court noted that under such a negligent hiring theory, a media employer would be liable “for its decision to hire or retain a broadcaster simply because that broadcaster was a controversial figure, the reasoning being that such controversial figures are ‘likely’ to engage in defamatory speech.” The court added that imposing liability would take away the “breathing space” that the First Amendment guarantees.

“The only thing defendants could have known about Muller from these prior incidents was that he engaged in outrageous and offensive conduct. We hold that this conduct was not sufficient to put defendants on notice that Muller would make false, defamatory statements on the air,” the court stated in an opinion written by Chief Justice Michael Bilandic.

The court nonetheless declined to decide whether a negligent hiring claim could ever be based on an employee’s defamatory statements. “We hold only that this cause of action may not be premised solely on allegations that an employer hired an employee who had previously engaged in controversial, but nondefamatory, speech or conduct,” Bilandic wrote. (Van Horne v. Muller; Media Counsel: Steven L. Baron, Chicago)