"[The language in HPI Health Care ] certainly does not foreclose the possibility that justification can be an affirmative defense ... rather than an absence of justification being an essential element ...."
How later courts described this case
- "[The language in HPI Health Care ] certainly does not foreclose the possibility that justification can be an affirmative defense ... rather than an absence of justification being an essential element ...."
- “[I]f the complaint may not fairly be said to introduce the existence of a recognized statutory or common law privfiege ... it becomes the defendant’s burden to plead and prove the privilege as an affirmative matter.”
- party claiming affirmative defense of justification may be able to base claim on advice of counsel
Written by the judges who cited it.
The opinion
JUSTICE HARTMAN specially concurring in part and dissenting in part:
While concurring in the result reached by the majority in this case, I find it both unnecessary and undesirable to undertake a "restructuring of the elements of this tort” which the majority purports to do in its pedantic and prolix treatment of this subject. Accordingly, I dissent from this portion of the opinion.
As the majority notes, "[defendants do not contest the adequacy of the complaint as to all elements of this tort. Rather, their arguments on appeal focus only on whether the third amended complaint sufficiently alleged the ’intent’ or ’purpose’ element of both of the interference torts.” (259 Ill. App. 3d at 275-76.) The rule has long been established that reviewing courts should not extend their opinions beyond the issues presented to the court for decision on appeal. This rule was recently repeated in Wysocki v. Reed (1991), 222 Ill. App. 3d 268, 279 , 583 N.E.2d 1139 , where the court wisely observed: ”[a]s a general rule, reviewing courts, particularly intermediate reviewing courts, should be reluctant to expand their holdings beyond those necessary to decide the particular facts before them. *** [W]e hold that resolution of the question [not raised in the appeal would be obiter dicta and] *** must wait for another day and another case.” We should follow that sage advice in this case, even though the majority seems to equate itself with the United States Supreme Court and this case with the importance of Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137 , 2 L. Ed. 60 .
The majority in the instant case creates the strawman of whether the plaintiff should be required to both "plead and prove” the absence of justification on a defendant’s part. None of the cases in which the majority purports to reconstitute the elements of the interference torts, Agrimerica, Inc. v. Mathes (1990), 199 Ill. App. 3d 435 , 557 N.E.2d 357 , appeal denied (1990), 135 Ill. 2d 553 , 564 N.E.2d 834 , Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890 , 275 N.E.2d 429 , HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145 , 545 N.E.2d 672 , and Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495 , 568 N.E.2d 870 , considers the issue of whether a plaintiff must both "plead and prove” the presence or absence of justification. Indeed, as the majority itself notes, both Agrimerica and Zamouski have held that the presence or absence of justification is an affirmative defense which must be proved by a defendant. (Agrimerica, 199 Ill. App. 3d at 449-50 ; Zamouski, 1 Ill. App. 3d at 897 .) Simply recognizing the elements of a tort does not necessarily, and did not in the foregoing cases, allocate to either party the burden of proof. There simply is no "abounding confusion” as suggested by the majority.
Accordingly, although I admire and respect the majority’s effort to contribute to the literature of the law, I am unable to subscribe to and dissent from the obiter dicta propounded in the opinion and suggest that "we hold that resolution of the question *** for another day” (Wysocki, 222 Ill. App. 3d at 279 ) and in an actual case, if one ever arises.