Jerman v. Woolsey Operating Co., LLC ( 2021 )

2021 IL App (5th) 210007-UNOTICE
NOTICE
Decision filed 10/07/21. The
This order was filed under
text of this decision may be NO. 5-21-0007
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
CLIFFORD JERMAN and LORA JERMAN, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Wayne County.
)
v. ) No. 19-L-9
)
WOOLSEY OPERATING COMPANY, LLC, )
and FRANKLIN WELL SERVICES, INC., ) Honorable
) Michael J. Molt,
Defendants-Appellees. ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court.
Justices Barberis and Wharton concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting summary judgment for defendants is affirmed
where plaintiffs’ amended complaint stated a claim for negligent infliction of
emotional distress and plaintiff failed to sustain a direct injury and was not a
bystander.
¶2 Plaintiffs, Clifford Jerman (Clifford) and Lora Jerman (Lora), appeal from the trial court’s
order granting summary judgment to Woolsey Operating Company, LLC (Woolsey) and Franklin
Well Services, Inc. (Franklin) (collectively defendants), claiming their amended complaint did not
state a claim for negligent infliction of emotional distress (NIED). Plaintiffs also argue, in the
alternative, that even if the claim was a NIED claim, no direct victim was required because Clifford
was a bystander in the zone of danger. For the following reasons, we affirm.
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¶3 I. BACKGROUND
¶4 On January 27, 2014, Clifford, a truck driver hired by Linde North America (Linde), hauled
and delivered liquid nitrogen to a SAMS well in Wayne County, Illinois. Upon arrival, Clifford
parked his truck approximately 20 yards from the wellhead with the rear of his trailer facing the
wellhead. A smaller tanker truck was in between Clifford’s truck and the wellhead. The hose on
Clifford’s truck pumped nitrogen from his truck to the smaller tanker truck, which heated up the
nitrogen and pumped it into the well. Clifford was standing between the two trucks, which were
10 feet apart. He was almost to the end of his tank when the guy wire started shimmying. The
pressure reached 8600 psi and resulted in a casing failure that caused 650 feet of 5½-inch casing,
along with nitrogen foam, to eject from the well. Clifford and the other parties at the site ran toward
the levee, which was the predetermined meeting place in the event of an accident. Once Clifford
reached the levee, he got into a car with another Linde employee and waited for the well to stop
ejecting material. Thereafter, he went back to pick up his hard hat and removed the broken hose
from his truck. Neither Clifford nor anyone else at the location was struck by the fragments
emanating from the well. Following the incident, Clifford took photos of the site and spent the
night in a motel, as he had worked the maximum number of hours for one day allowed by Linde.
The Linde representative followed him to the motel to make sure he was okay. He later had dinner
in the restaurant at the motel but had a hard time sleeping. He woke up at 2 a.m. but could not
leave because he had not gotten past the 10-hour off-work limit yet. Later that morning, Clifford
drove his truck back to Linde’s terminal, dropped off his stuff, and went home. He did not go into
work on Wednesday because the terminal manager told him to take some time off. His employer
recommended counseling, and Clifford’s first visit was on January 30, 2014. He was eventually
diagnosed with PTSD and has not driven a tractor trailer since the incident.
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¶5 On January 26, 2016, Clifford and Lora filed a 10-count complaint against the operators
and servicers of the well (Woolsey, Franklin, Les Wilson, Inc., and C&J Well Services) and
Clifford’s employer (Linde) in Madison County, Illinois. Plaintiffs filed one count of negligence
and one count of loss of consortium against each defendant. Each count of negligence alleged that
Clifford was in the “zone of danger” while unloading the liquid nitrogen and that debris hit him
and his truck after the explosion occurred.
¶6 Subsequently, the trial court granted plaintiffs’ motions to voluntarily dismiss defendants
Linde, Les Wilson, Inc., and C&J Well Services, and the remaining defendants filed a motion to
transfer for wrongful venue or, in the alternative, motion to transfer for forum non conveniens. On
January 29, 2019, plaintiffs moved to amend the complaint due to the dismissal of three of the
defendants and the misspelling of one name. The trial court granted the motion on February 5,
2019, and plaintiff’s first amended complaint was filed the same day.
¶7 The amended complaint consisted of four counts: counts I and II were against Woolsey
and counts V and VI were against Franklin. Counts I and V alleged negligence, and paragraph 6
of both counts alleged, “That at the aforesaid date and place a blowout explosion occurred while
Plaintiff was in the ‘zone of danger’ and debris hit him and the truck he was unloading.”
¶8 In paragraph 7 of counts I and V, plaintiff alleged that the defendants were
“guilty of one of more of the following negligent acts or omissions:
a. Improperly operated, managed, maintained and controlled the fracking at the well
site;
b. Failed to warn the Plaintiff of the dangerous condition of said well operations;
c. Failed to properly fence off an appropriate setback from the well thereby allowing
the Plaintiff and others to be in the ‘zone of danger’;
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d. Caused an explosion in the well that sent debris at the Plaintiff and the truck he was
unloading; [and]
e. Exceeded the pressure limit of the casing causing a blow out explosion.”
¶9 In paragraph 8, the plaintiff alleged:
“That as a direct and proximate result of one or more of the aforesaid acts or omissions of
the Defendant, Plaintiff then and there suffered severe and permanent injuries, internally,
and was and will be hindered and prevented from attending to usual duties and affairs,
employment, and has lost, and will in the future lose, the value of that time as
aforementioned. Plaintiff also suffered great pain both in body and mind, and will in the
future continue to suffer. Plaintiff further has experienced and become liable for, and will
expend and become liable for, large sums of money for medical care and services
endeavoring to become healed and cured of said injuries.”
Counts II and VI were Lora’s loss of consortium claims against Woolsey and Franklin,
respectively.
¶ 10 On April 26, 2019, the trial court entered an order noting that only two of the original five
defendants remained in the case and that neither remaining defendant owned property, maintained
an office, or did business in Madison County. The trial court found that Clifford’s post-injury
treatment was performed in Madison County, but his alleged injury occurred in Wayne County.
Thereafter, the trial court granted defendants’ motion to transfer venue to Wayne County.
¶ 11 On August 19, 2020, Woolsey and Franklin filed a joint motion for summary judgment
based on the “zone of danger” language in the first amended complaint and contended that based
on Clifford’s deposition testimony, the elements for a NIED claim could not be met. The
deposition testimony stated:
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“Q. *** Did you sustain any physical injury in the incident?
A. Not that I’m aware of.
***
Q. Did anything hit you?
A. Stuff was close.
Q. Did anything hit you?
A. I don’t think so.
Q. Did anything hit your vehicle?
A. Yes.
***
Q. Let me ask you this. After this accident, did you have any physical sign of injury,
any cut, any bruise, any swelling, any mark?
A. Not that I’m aware of.
Q. Okay. Was anyone injured in the incident?
A. I don’t know.”
¶ 12 The defendants’ motion claimed Clifford was not a “direct victim” because he was not
personally injured in the incident. The motion further claimed that Clifford was not a bystander
because he did not witness anyone being injured in the zone of danger. Defendants claimed that
because Clifford’s claim was a NIED claim, his claim failed as a matter of law, and Lora’s
derivative claim failed as well.
¶ 13 Plaintiffs filed a response on October 20, 2020, stating Clifford was within the “zone of
danger” of the well explosion solidifying his NIED claim. Plaintiffs argued that a person was “not
precluded from bringing a bystander claim for negligent infliction of emotional distress simply
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because another person was not injured in the explosion resulting from a defendant’s negligence.”
(Emphasis in original.) The key question was “whether the bystander was within the zone of danger
and as a result had a reasonable fear for his own safety causing physical injury or illness resulting
from emotional distress.” As such, plaintiffs argued that Clifford’s claim did not fail as a matter
of law, and therefore his wife’s consortium claim did not fail either.
¶ 14 On November 5, 2020, defendants filed a reply in support of the joint motion for summary
judgment solely disputing Clifford’s claim that all he was required to show for a NIED claim was
that he was in the “zone of danger,” noting that all the cases relied on by plaintiffs required and
contained a direct victim before the bystander who was in the zone of danger could recover for a
NIED claim.
¶ 15 On November 16, 2020, the trial court heard oral argument. At that time, plaintiffs claimed,
for the first time, that their complaint was not a NIED claim but was instead a “straight-out
negligence claim.”
¶ 16 On December 29, 2020, the trial court issued summary judgment for defendants. The court
found that Clifford’s claim was a NIED claim, and that Clifford was not a direct victim because
he was not physically injured by the incident. The court also found that Clifford was not a
bystander because he was “not in such proximity to the accident in which the direct victim was
physically injured” as there was no “direct victim.” Plaintiffs timely filed their notice of appeal on
January 8, 2021.
¶ 17 On May 27, 2021, defendants filed a joint motion to strike portions of plaintiffs’ reply brief
and plaintiffs responded on June 9, 2021. Pursuant to this court’s June 25, 2021, order, the motion
and response were taken with the case.
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¶ 18 II. ANALYSIS
¶ 19 We first consider defendants’ motion to strike section A of plaintiffs’ reply brief argument
which defendants claimed was violative of Illinois Supreme Court Rule 341(j) (eff. Oct. 1, 2020).
Defendants contend that plaintiffs’ argument, based on a purported claim of negligence stemming
from 62 Ill. Adm. Code 245.540 and 245.835, was improper because the argument was not raised
in plaintiffs’ initial brief. In response, plaintiffs contend the issue was properly raised in their reply
brief because the issue was raised in numerous locations during its briefing and cited portions of
the record where such argument was made.
¶ 20 Illinois Supreme Court Rule 341(j) provides that “[t]he reply brief, if any, shall be confined
strictly to replying to arguments presented in the brief of the appellee and need contain only
Argument.” Ill. S. Ct. R. 341(j) (eff. Oct. 1, 2020). It is well-settled that “arguments not raised in
a party’s opening brief may not be raised in its reply brief or at oral argument.” Three Angels
Broadcasting Network, Inc. v. Department of Revenue, 381 Ill. App. 3d 679, 699 (2008). In such
instances, the appellant’s failure results in forfeiture of the issue. People ex rel. Village of Vernon
Hills v. Village of Lincolnshire, 283 Ill. App. 3d 266 (1996).
¶ 21 Section A of plaintiffs’ reply brief argues that the amended complaint sufficiently sets forth
the underlying negligence of defendants by violating 62 Ill. Adm. Code 245.540 (eff. Nov. 14,
2014) and 62 Ill. Adm. Code 245.835 (eff. Nov. 14, 2014) when the pressure limit of the well
casing was exceeded. However, review of the amended complaint reveals neither any mention of
the regulatory sections nor any allegation that defendants violated any regulation. Further, while
plaintiffs’ initial brief mentioned the regulations in its statement of facts, at no time did the
plaintiffs provide any argument regarding the regulations in the initial brief. “If a point is not
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argued, it is waived and may not be raised in a reply brief, oral argument or petition for rehearing.”
Piper v. Moran’s Enterprises, 121 Ill. App. 3d 644, 649 (1984).
¶ 22 “Supreme court rules are not advisory suggestions, but rules to be followed.”
In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57. As the plaintiffs failed to provide any
argument regarding the regulatory issue in their initial brief, argument of the issue in the reply
brief was improper and forfeited pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1,
2020). Accordingly, section A of plaintiffs’ reply brief is stricken.
¶ 23 We now turn to the trial court’s summary judgment for defendants. “Summary judgment
is a drastic remedy to be granted only where the movant’s right to it is clear and free from doubt.”
Cozza v. Culinary Foods, Inc., 311 Ill. App. 3d 615, 619 (2000). We review the trial court’s entry
of summary judgment de novo. Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 15.
De novo review means we perform “the same analysis that a trial court would perform.” Khan v.
BDO Seidman, LLP, 408 Ill App. 3d 564, 578 (2011).
¶ 24 “In reviewing a court’s grant of a summary judgment, this court must construe the
pleadings, admissions, depositions, and affidavits strictly against the movant and liberally in favor
of the opponent of the motion.” Morgan v. Richardson, 343 Ill. App. 3d 733, 739 (2003).
“Reasonable inferences drawn from the facts must also be resolved in favor of the opponent of the
motion.” Id. “A defendant moving for summary judgment bears the initial burden of proof.” Siegel
Development, LLC v. Peak Construction LLC, 2013 IL App (1st) 111973, ¶ 109. A defendant
meets the burden of proof either by “showing that some element of the case must be resolved in
his favor or by establishing that there is an absence of evidence to support the nonmoving party’s
case.” (Internal quotation marks omitted.) Id. A motion for summary judgment is properly granted
only where the pleadings, depositions, admissions, and affidavits establish that no genuine issue
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of material fact exists and the moving party is entitled to judgment as a matter of law. 735 ILCS
5/2-1005(c) (West 2020); Nationwide Financial, LP v. Pobuda, 2014 IL 116717, ¶ 25.
¶ 25 On appeal, plaintiffs contend that an issue of fact, namely whether Clifford’s claim was for
negligence or NIED, precluded summary judgment. Plaintiffs also contend, in the alternative, that,
even if the claim was properly classified as a NIED claim, Clifford’s recovery as a bystander was
not precluded by the lack of a direct victim. Defendants contend the claim was properly classified
as a NIED claim, the lack of a direct victim precludes recovery for a bystander in a NIED claim,
and therefore urge affirmation of the trial court’s summary judgment.
¶ 26 Given the dispute, we initially address the history of and the requirements for a NIED
claim. Prior to Rickey v. Chicago Transit Authority, 98 Ill. 2d 546 (1983), “recovery for negligently
caused emotional distress suffered by the direct victim or a bystander who witnesses the injury of
another [was] consistently denied unless it was accompanied by a contemporaneous physical
injury to or impact on the plaintiff.” Id. at 550 (citing Braun v. Craven, 175 Ill. 401 (1898),
Carlinville National Bank v. Rhoads, 63 Ill. App. 3d 502 (1978), Kaiserman v. Bright, 61 Ill. App.
3d 67 (1978), and Neuberg v. Michael Reese Hospital & Medical Center, 60 Ill. App. 3d 679(1978)). This was known as the “impact rule.” Id. at 553.
¶ 27 In Rickey, an eight-year-old boy, filed a claim for emotional distress after watching his
five-year-old brother’s clothes become entangled in an escalator which resulted in the brother
choking and passing out from lack of oxygen. Id. at 548-49. On appeal, the question presented was
whether a bystander who did not suffer physical injury or impact at the time of the occurrence
could recover damages for emotional distress which resulted from witnessing an injury to his
brother caused by the defendants’ negligence. Id. at 549. Answering the question in the affirmative,
the Illinois Supreme Court substituted the “impact rule” with the “zone-of-physical-danger rule.”
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Id. at 555. Under the zone-of-physical-danger rule, “a bystander who is in a zone of physical
danger and who, because of the defendant’s negligence, has reasonable fear for his own safety is
given a right of action for physical injury or illness resulting from emotional distress.” Id. The
court stated the “rule does not require that the bystander suffer a physical impact or injury at the
time of the negligent act, but it does require that he must have been in such proximity to the
accident in which the direct victim was physically injured that there was a high risk to him of
physical impact.” Id.
¶ 28 In a 2011 decision, Clark v. Children’s Memorial Hospital, 2011 IL 108656, the “court
revisited this area of the law and concluded that things had gone badly astray.” Cochran v.
Securitas Security Services USA, Inc., 2017 IL 121200, ¶ 22. In Clark, the defendants, inter alia,
requested the court affirm the trial court’s grant of summary judgment in favor of defendants based
on its decision in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 262-63 (1987), where
the court recognized a claim for wrongful birth but denied damages for the parents’ emotional
distress because they could not state a claim for negligent infliction of emotional distress under
the “zone-of-danger rule.” Clark, 2011 IL 108656, ¶ 23. Clark noted that “where the claim of
emotional distress is freestanding and not anchored to any other tort against the plaintiff, courts
have applied special restrictions such as the zone-of-danger rule because of concerns regarding the
possibility of fraudulent claim or frivolous litigation.” Id. ¶ 106 (citing Rickey, 98 Ill. 2d at 555).
The court found, however, that the special restrictions had no logical bearing for a wrongful-birth
claim, “where a tort ha[d] already been committed against the parents.” Id. ¶ 107. “Wrongful-birth
plaintiffs do not assert a freestanding emotional distress claim, but merely assert emotional distress
as an element of damages for a personal tort.” Id. “ ‘For these reasons the physical manifestation
and zone-of-danger rules offer no occasion to reject mental distress damages in wrongful birth
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cases any more than they would do so in the case of libel or invasion of privacy.’ ” Id. (quoting 2
Dan B. Dobbs, Law of Remedies § 8.2, at 414 (2d ed. 1993)). The court found its prior decision in
Siemieniec erroneous (id. ¶ 109), stating the “nature of the error is evident when one considers that
the damages for emotional distress are available to prevailing plaintiffs in cases involving other
personal torts such as defamation [citation]; conversion [citation]; and misappropriation of identity
[citation].” Id. ¶ 111. The court concluded by holding
“that the zone-of-danger rule applies only in cases where the plaintiff’s theory of
liability is the negligent infliction of emotional distress. It does not apply where, as
in a wrongful-birth case, a tort has already been committed against the plaintiffs
and they assert emotional distress as an element of damages for that tort.” Id. ¶ 113.
¶ 29 In Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, the court again addressed a
NIED claim, this time related to a foreclosed home. In Schweihs, the plaintiff continued to live in
the home and was trying to sell it during the redemption period. Id. ¶ 13. The mortgagor contracted
with Safeguard to perform an inspection on the house after the foreclosure proceeding. Id. ¶ 5. A
subcontractor for Safeguard, believing the house was empty, entered the home, startling the
plaintiff, and police were called. Id. ¶¶ 12, 15. No arrests were made; however, plaintiff became
fearful she would be attacked and was afraid when at the house. Id. ¶¶ 15-16. She eventually
received treatment and medication for sleeping, post-traumatic stress, anxiety, and depression. Id.
¶ 16. On appeal, the issue before the Illinois Supreme Court was whether the requirement for a
physical impact remained for a direct victim in a NIED case. Id. ¶¶ 28-30. The court answered in
the affirmative and affirmed the dismissal of the NIED claim after finding the mortgagee had no
“direct impact.” Id. ¶ 44. Justice Garman issued a special concurrence that stated:
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“In light of our reasoning in Clark and the majority opinion in the present case,
it should be clear that when a plaintiff claims NIED, she must allege a
contemporaneous physical impact or injury as a direct result of the defendant’s
conduct or else that she was a bystander in the zone of physical danger. If, however,
she states a claim for a tort other than NIED, no such additional pleading
requirement applies.
In the present case, while the plaintiff cannot state a claim for NIED in the
absence of a contemporaneous physical impact or injury directly resulting from the
defendants’ entry into her home, her other claims [for trespass and negligent
trespass] are still pending in the circuit court. Whether any of these claims succeeds,
whether damages for emotional distress are available for the particular claim, and
whether she proves her entitlement to such damages remain to be seen.” Id. ¶¶ 80-
81 (Garman, J., specially concurring).
¶ 30 More recently, the Illinois Supreme Court again addressed NIED claims in Cochran v.
Securitas Security Services USA, Inc., 2017 IL 121200, a case that was not cited by either party in
the case at bar. In Cochran, the issue involved whether plaintiff’s claim of tortious interference
with the right to possess a corpse required her to plead “wilful and wanton” conduct to proceed
with the claim. Id. ¶¶ 12-13. The court confirmed that the plaintiff was only required to plead
negligent conduct for a claim of tortious interference with the right to possess a corpse. Id. ¶ 1. In
explaining the rationale for the decision, the court addressed the requirement of NIED cases,
specifically addressing its decision in Clark and the progeny from Rickey, stating:
“[W]e see a similar dynamic at work. In both cases [Siemieniec v. Lutheran General
Hospital, 117 Ill. 2d 230 (1987), and Courtney v. St. Joseph Hospital, 149 Ill. App.
123d 397 (1986)], the courts equated the rules governing the recovery of damages in
NIED cases with the rules governing the recovery of emotional damages in all
negligence cases. The result was that the recovery of emotional distress damages
effectively was barred for any negligence plaintiff who neither suffered a
contemporaneous injury nor satisfied the zone-of-danger rule, regardless of the tort
that was actually pleaded. ***
This is where things remained until 2011, when this court revisited this area of
the law and concluded that things had gone badly astray. In Clark v. Children’s
Memorial Hospital [citation], the question again arose whether parents in a
wrongful birth case may recover damages for their resulting emotional distress. ***
Specifically, the court explained [in Clark] that
the zone-of-danger rule applies only in cases where the plaintiff’s
theory of liability is the negligent infliction of emotional distress. It
does not apply where, as in a wrongful-birth case, a tort has already
been committed against the plaintiffs and they assert emotional distress
as an element of damages for that tort. [Citation.]
*** To then drive this point home, the court pointed out that damages for emotional
distress are available to prevailing plaintiffs in cases involving other personal torts,
including defamation, conversion, and misappropriation of identity. ***
In light of Clark, the critical question in the case before us is not whether
plaintiff’s third amended complaint alleges facts showing that she herself either
suffered a contemporaneous injury or falls within the zone-of-danger rule. Rather,
the critical question is whether the theory of liability set forth in that complaint is
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NIED or, as in a wrongful birth case, some other tort for which emotional distress
is simply an element of plaintiff’s damages. This is because if plaintiff’s claim falls
into the latter of these categories, there is no principled reason to disallow the
recovery of emotional distress damages upon proof of ordinary negligence.”
(Emphasis in original and internal quotation marks omitted.) Id. ¶¶ 21-23.
¶ 31 After recognizing that “interference with the right to possess a decedent’s remains” was a
“distinct and independent tort that has a settled place in Illinois jurisprudence,” the court found
that plaintiff’s claim fell “into the category of cases in which ‘a tort has already been committed
against the plaintiffs and they assert emotional distress damages as an element of damages for that
tort.’ ” Id. ¶ 24 (quoting Clark, 2011 IL 108656, ¶ 113).
¶ 32 We are aware of no case law positioning this claim into the realm of another tort such as a
wrongful-birth claim, tortious interference with a deceased’s remains claim, defamation claim,
conversion claim, or misappropriation of identity claim, in which emotional distress was simply
an element of plaintiff’s damages because they were already injured by the defendant’s actions.
Contrary to the commonality seen in the cases set forth above, Clifford’s testimony confirmed that
neither he, nor anyone else at the well site, incurred a physical injury, and his sole injury was
emotional distress.
¶ 33 To further address the proper classification of Clifford’s action, we review the complaint
in conjunction with the well-established law setting forth the elements for a NIED claim, which
are dependent on whether the plaintiff was a direct victim of the defendant’s negligence or merely
a bystander. On appeal, Clifford did not contest the trial court’s finding that he was not a “direct
victim” because he suffered no actual impact. As such, we do not address this issue on appeal and
focus solely on the bystander elements.
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¶ 34 Where the plaintiff is a bystander to the defendant’s negligence, the plaintiff must plead
that he was in the “zone of danger,” reasonably feared for his own safety, and suffered a physical
injury or illness as a result of the emotional distress caused by the defendant’s negligence. Rickey,
98 Ill. 2d at 555. Here, plaintiffs’ complaint pled that Clifford was in the “zone of danger” and that
he suffered an injury due to one or more of the defendant’s negligent acts or omissions. We
interpret these allegations as consistent with a theory of liability for a bystander NIED claim.
¶ 35 While plaintiffs contend on appeal that the allegations in the first amended complaint were
for “freestanding negligence” and not NIED, as shown above, the complaint was well-crafted to
fall within the requirements of a NIED claim, whether as a direct victim or a bystander. We further
note that plaintiffs’ response to defendants’ motion for summary judgment failed to make this
argument and the heading for their October 20, 2020, response stated Clifford “was within the
‘zone of danger’ of the well explosion caused by Defendants’ negligence thus solidifying his NIED
claim.” (Emphasis added.) Thereafter, the response contained five pages of argument supporting
the heading. At no time in the response did plaintiffs contend that Clifford’s claim was not a NIED
claim. For all these reasons, we find that Clifford’s claim was for NIED.
¶ 36 Finally, we address plaintiffs’ alternative contention that Clifford’s emotional damages
were not precluded under a zone-of-danger theory simply because no other person was injured in
the well explosion. In support, the plaintiffs rely on Buckley v. Jones Truck Lines, Inc., 778 F.
Supp. 449 (N.D. Ill. 1991), and Hayes v. Illinois Power Co., 225 Ill. App. 3d 819 (1992). In
Buckley, the “direct victim” was the truck driver who was killed in the accident; Buckley was the
bystander who “witnessed the truck crashing into the pipeline.” Buckley, 778 F. Supp. at 450. In
Hayes, Todd witnessed his grandfather’s electrocution and was personally injured when he was
electrocuted after reaching out to help his grandfather. Hayes, 225 Ill. App. 3d at 821. The court
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found that Todd pled sufficient facts as both a direct victim due to his own injury at the scene as
well as a bystander because he remained in the zone of danger where his grandfather was injured
until the electricity was shut off. Id. at 825-26.
¶ 37 Neither Buckley nor Hayes allowed for recovery in a NIED bystander case where there was
no direct victim. We are aware of no case since the issuance of Rickey that ever deviated from the
requirement that to be in the zone of danger, the bystander must be “in such proximity to the
accident in which the direct victim was physically injured.” Rickey, 98 Ill. 2d at 555. Therefore,
we affirm the trial court’s summary judgment for defendants.
¶ 38 III. CONCLUSION
¶ 39 For the foregoing reasons, we affirm the trial court’s finding that Clifford’s claim was a
NIED claim as well as the trial court’s summary judgment for defendants.
¶ 40 Affirmed.
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