Borcia v. Hatyina , 2015 IL App (2d) 140559 ( 2015 )

Illinois Official Reports
Appellate Court
Borcia v. Hatyina, 2015 IL App (2d) 140559
Appellate Court MARGARET BORCIA, as Special Administrator of the Estate of
Caption Antonio Borcia, Deceased; ERIN BORCIA, a Minor, Through Her
Mother and Next Friend, Margaret Borcia; JOSEPH BORCIA, a
Minor, Through His Mother and Next Friend, Margaret Borcia;
KALEIGH BORCIA; and JAMES BORCIA, Plaintiffs-Appellants, v.
DAVID HATYINA, SPRING LAKE MARINA, LTD., and FOX
WATERWAY AGENCY, Defendants (Renee Melbourn, Defendant-
Appellee).
District & No. Second District
Docket No. 2-14-0559
Filed April 14, 2015
Decision Under Appeal from the Circuit Court of Lake County, No. 12-L-961; the
Review Hon. James R. Murphy, Judge, presiding.
Judgment Reversed and remanded.
Counsel on J. Matthew Dudley, of Dudley & Lake, LLC, and Mark J. Vogg, of
Appeal Law Offices of Mark J. Vogg, both of Libertyville, for appellants.
Guy M. Conti and Mark B. Ruda, both of Condon & Cook, LLC, of
Chicago, for appellee.
Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs, Margaret Borcia, as special administrator of the estate of Antonio Borcia,
deceased, Erin and Joseph Borcia, minors, through their mother and next friend, Margaret
Borcia, Kaeleigh Borcia, and James Borcia, filed personal-injury and wrongful-death actions
against defendants, David Hatyina, Renee Melbourn, Spring Lake Marina, Ltd., and Fox
Waterway Agency, for damages they sustained in a boating accident, which claimed the life
of 10-year-old Antonio Borcia. Plaintiffs appeal from the trial court’s dismissal with
prejudice of their second amended complaint against Melbourn. The trial court found that
plaintiffs failed to state claims for wrongful death based on an “in-concert” theory of liability
and the negligent infliction of emotional distress, and it then dismissed the counts against
Melbourn pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735
ILCS 5/2-615 (West 2012)). Melbourn is the only defendant involved in this appeal. For the
following reasons, we reverse and remand for further proceedings.
¶2 I. BACKGROUND
¶3 On December 13, 2012, plaintiffs filed a 10-count complaint against Hatyina and
Melbourn. This appeal concerns counts VI and VII, directed against Melbourn. Count VI
attempted to allege a claim for wrongful death based on an in-concert theory of liability.
Count VII attempted to allege a claim for negligent infliction of emotional distress. As
amended, plaintiffs’ complaint reflected the following allegations, which are taken as true for
purposes of this appeal (see Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004)).
¶4 On July 28, 2012, Hatyina was operating a 29-foot cigarette boat named “Purple Haze”
on Petite Lake in Lake Villa; Melbourn was a passenger in the boat. James Borcia was
operating a pontoon boat, and Antonio and Erin were riding in inflatable tubes being towed
by the pontoon boat. While being towed, Antonio fell off the tube and was floating on the
water. Antonio was wearing a red personal floatation device and waving both of his arms
above his head so others could see him in the water.
¶5 During this time, Hatyina had been consuming alcohol and cocaine. Hatyina was
impaired by the alcohol and cocaine and was operating the boat at speeds in excess of 40
miles per hour. Hatyina struck Antonio with the boat. Antonio suffered severe injuries that
resulted in his death on July 28.
¶6 Melbourn resided with and had a romantic relationship with Hatyina for several years.
Melbourn knew that Hatyina had a history of drug and alcohol abuse and dependency. On or
prior to July 28, 2012, Melbourn contributed money to purchase alcohol and cocaine that she
and Hatyina would consume.
¶7 On July 28, 2012, Melbourn, after contributing money to purchase and purchasing
cocaine, provided Hatyina with cocaine while they were both occupying the cigarette boat.
While on the boat, Melbourn consumed cocaine and observed Hatyina consume cocaine.
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Melbourn provided Hatyina with numerous alcoholic beverages and consumed alcohol with
Hatyina while they were both on the boat. Prior to the boating accident, Melbourn observed
Hatyina become obviously impaired by his consumption of alcohol and cocaine, as shown by
his slurred speech, bloodshot eyes, and erratic behavior. Melbourn continued to provide
alcohol and cocaine to Hatyina while he was operating the boat. Melbourn knew that
providing Hatyina with and encouraging his consumption of alcohol and cocaine would
result in his intoxication and further impair his ability to safely operate the boat.
¶8 Plaintiffs further alleged that Melbourn had a duty to exercise reasonable care so as to not
proximately cause injury to other persons who were also using the lake.
¶9 Plaintiffs alleged that Melbourn, after providing both alcohol and cocaine to Hatyina in
amounts that made him obviously impaired, verbally encouraged Hatyina to drive the boat at
speeds in excess of 40 miles per hour and in an otherwise reckless and dangerous manner
while on the lake near other boaters, swimmers, and people being pulled on tubes.
¶ 10 With respect to count VI, plaintiffs alleged that Melbourn breached her duty and was
negligent in one or more of the following respects:
“Violated section 5-16(E) [of the Boat Registration and Safety Act (625 ILCS
45/5-16(E) (West 2012))] in that she verbally encouraged the unsafe operation of the
boat at speeds in excess of 40 miles per hour by Hatyina while he was under the
influence of alcohol, cocaine, or a combination;
Substantially assisted and/or encouraged *** Hatyina to operate said watercraft
under the influence of alcohol, cocaine, or a combination thereof, when she knew or
should have known consumption of alcohol and/or cocaine while operating said
watercraft was negligent and careless, so as to compromise the safety of other
occupants of the ‘Chain of Lakes’; and
Acted in concert with *** Hatyina in that she actively participated in his
consumption of alcohol and cocaine which caused him to become intoxicated while
operating the aforementioned watercraft while impaired so as to compromise the
safety of others on the ‘Chain of Lakes.’ ”
¶ 11 With respect to count VII, related to Erin, plaintiffs alleged that Antonio and Erin were
riding on the same inflatable tube. When Antonio fell off of the tube, Erin was in close
proximity to him. She observed Hatyina strike and kill her brother with the boat. Erin was
less than 50 feet from the collision and in the direct path of the boat, and she feared that the
boat was going to hit her too.
¶ 12 Plaintiffs alleged that Melbourn created an unreasonable risk of causing bodily harm or
emotional trauma to Erin. As a direct and proximate result of Melbourn’s negligence, Erin
suffered physical injury and emotional distress, which resulted in the need for continued
medical and psychological treatment and counseling.
¶ 13 On October 3, 2013, Melbourn filed a motion to dismiss counts VI and VII pursuant to
section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)). The trial court granted the
motion. The trial court stated, “[t]he common purchase of [cocaine] and alcohol and
consuming those on the boat and acting in concert, right now there’s insufficient allegations
of fact to allege that and right now there appears to be no duty to decedent under the cases. I
think you need to bring those allegations as much as you can within the cases cited ***
where the encouragement is not just tantamount to encouraging you to go faster by the
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purchase of drugs and alcohol and co-consuming those with the defendant *** but there has
to be something additional. I think that’s what those cases say ***.”
¶ 14 On January 29, 2014, plaintiffs filed a second amended complaint, and, in count VI,
attempted to assert a claim under the Wrongful Death Act (740 ILCS 180/1 et seq. (West
2012)), based on a duty imposed by section 876 of the Restatement (Second) of Torts
(Restatement (Second) of Torts § 876 (1979)). In count VII, plaintiffs attempted to renew the
claim for negligent infliction of emotional distress, based on Erin’s presence in the zone of
physical danger.
¶ 15 On February 19, 2014, Melbourn filed a motion to dismiss pursuant to section 2-615 of
the Code. The parties fully briefed the issue, and the trial court conducted a hearing on April
25, 2014.
¶ 16 On May 8, 2014, the trial court granted Melbourn’s motion to dismiss, with prejudice. As
to count VI, the court found that plaintiffs had “alleged insufficient facts to establish
‘substantial assistance or encouragement’ for establishing a duty by Melbourn to attach under
section 876 of the Restatement (Second) of Torts.” The trial court further found that the only
facts plaintiffs alleged were that “defendant Melbourn provided and consumed alcohol and
drugs with defendant Hatyina.” The trial court determined that there was no section 876
liability on the facts alleged.
¶ 17 The trial court also dismissed count VII on the basis that, “[i]f there is no duty on Count
VI, there is also no duty on Count VII.” The trial court did not address Melbourn’s other
argument, that plaintiffs did not plead sufficient facts to place Erin in the “zone of physical
danger.”
¶ 18 Plaintiffs filed a timely notice of appeal.
¶ 19 II. ANALYSIS
¶ 20 As noted above, the trial court granted Melbourn’s section 2-615 motion to dismiss and
dismissed counts VI and VII of plaintiffs’ complaint with prejudice. A motion to dismiss
brought pursuant to section 2-615 attacks the legal sufficiency of the complaint. Vitro v.
Mihelcic, 209 Ill. 2d 76, 81 (2004). When ruling on such a motion, the court must accept as
true all well-pleaded facts in the complaint, as well as any reasonable inferences that may
arise from them. Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004). The merits of
the case, at this point, are not yet considered. See Kilburg v. Mohiuddin, 2013 IL App (1st)
113408, ¶ 19. However, a court cannot accept as true mere conclusions unsupported by
specific facts. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). The
court is to construe the complaint liberally and should not dismiss it unless it is clearly
apparent from the pleadings that “no set of facts can be proved which would entitle ***
plaintiff[s] to recover.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305 (2008). The
critical inquiry is whether the allegations of the complaint, when construed in the light most
favorable to the plaintiff, are sufficient to establish a cause of action on which relief may be
granted. Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 61. We review de novo an
order granting a section 2-615 motion to dismiss. Solaia Technology, LLC v. Specialty
Publishing Co., 221 Ill. 2d 558, 579 (2006).
¶ 21 Illinois is a fact-pleading state. Time Savers, Inc. v. LaSalle Bank, N.A., 371 Ill. App. 3d
759, 767 (2007). This means that, although pleadings are to be liberally construed and formal
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or technical allegations are not necessary, a complaint must, nevertheless, contain facts to
state a cause of action. Purmal v. Robert N. Wadington & Associates, 354 Ill. App. 3d 715,
720 (2004). The complaint is deficient when it fails to allege the facts necessary for a
plaintiff to recover. See Doe v. Chicago Board of Education, 339 Ill. App. 3d 848, 853
(2003). “But it is a rule of pleading long established, that a pleader is not required to set out
his evidence. To the contrary, only the ultimate facts to be proved should be alleged and not
the evidentiary facts tending to prove such ultimate facts.” Board of Education of the
Kankakee School District No. III v. Kankakee Federation of Teachers Local No. 886, 46 Ill. 2d
439, 446-47 (1970).
¶ 22 With these principles in mind, we will review the trial court’s section 2-615 dismissal of
count VI and count VII of plaintiffs’ second amended complaint.
¶ 23 Count VI of plaintiffs’ complaint sought relief based on an in-concert theory of liability.
Section 876 of the Restatement (Second) of Torts provides a basis upon which a party, who
is injured from the tortious conduct of a second party, may seek relief in the event that a duty
from a third party is found to exist. See Restatement (Second) of Torts § 876 cmt. d (1979).
This is a recognized cause of action in Illinois. See Simmons v. Homatas, 236 Ill. 2d 459
(2010); Sanke v. Bechina, 216 Ill. App. 3d 962 (1991).
¶ 24 The ultimate facts required to be pleaded for a general cause of action based on
common-law negligence are the existence of a duty owed by the defendant to the plaintiff,
the breach of that duty, and the injury proximately caused by that breach. Ward v. K mart
Corp., 136 Ill. 2d 132, 140 (1990). Unless a duty is owed, there can be no recovery in tort for
negligence. American National Bank & Trust Co. of Chicago v. National Advertising Co., 149
Ill. 2d 14, 26 (1992). Whether a duty exists is a question of law for the court to decide and is
reviewed de novo. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010).
¶ 25 For a cause of action based on an in-concert theory of liability, section 876 of the
Restatement (Second) of Torts provides in pertinent part:
“For harm resulting to a third person from the tortious conduct of another, one is
subject to liability if he
***
(b) knows that the other’s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself[.]”
Restatement (Second) of Torts § 876 (1979).
¶ 26 Section 876 of the Restatement (Second) of Torts becomes operative when “harm
result[s] *** from the tortious conduct of another.” See Restatement (Second) of Torts § 876
cmt. d (1979). Comment d states:
“Advice or encouragement to act operates as a moral support to a tortfeasor and if the
act encouraged is known to be tortious it has the same effect upon the liability of the
adviser as participation or physical assistance. If the encouragement or assistance is a
substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor
and is responsible for the consequences of the other’s act. *** [The rule] likewise
applies to a person who knowingly gives substantial aid to another who, as he knows,
intends to do a tortious act.”
¶ 27 In the present case, plaintiffs contend that the trial court erred when it dismissed count VI
after finding that they had not alleged sufficient facts to trigger liability under section 876 of
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the Restatement (Second) of Torts. Plaintiffs’ complaint alleged that Melbourn assisted and
encouraged Hatyina in operating his boat while intoxicated. Plaintiffs argue that this
allegation alone was sufficient to withstand a dismissal motion; however, plaintiffs argue that
they presented additional allegations to ensure that their pleadings were sufficient. Plaintiffs
further alleged that Melbourn bought the alcohol and cocaine used by Hatyina, consumed
alcohol and cocaine with Hatyina on the boat and while Hatyina was driving the boat, and
encouraged Hatyina to continue to operate the boat, at an unsafe speed, despite his overt
signs of impairment, including slurred speech and bloodshot eyes.
¶ 28 Melbourn counters that the only well-pleaded fact plaintiffs alleged in their attempt to
impose a duty was that she provided intoxicating substances to Hatyina, which cannot serve
as a basis of liability. Melbourn asserts that the other allegations are either surplusage or
conclusions, which cannot be considered, and that plaintiffs thus failed to allege any specific
facts that trigger liability under section 876 of the Restatement (Second) of Torts.
¶ 29 Both parties discuss a number of cases dealing with in-concert liability under section 876
of the Restatement (Second) of Torts, but two are particularly instructive: one from our
supreme court, Simmons v. Homatas, 236 Ill. 2d 459 (2010), and one from our appellate
district, Sanke v. Bechina, 216 Ill. App. 3d 962 (1991).
¶ 30 In Simmons, the decedents were fatally injured due to intoxicated driving by Homatas,
who had been a patron at a strip club that was not a dramshop but allowed customers to
consume alcohol while on the premises. Simmons, 236 Ill. 2d at 461. The plaintiffs filed a
cause of action alleging that the operator of the club, On Stage, negligently encouraged
Homatas to consume alcoholic beverages until he became intoxicated and then required him
to drive off the premises, causing the collision that killed the plaintiffs’ decedents. Id. The
plaintiffs further alleged that the club “knew or should have known” that Homatas was
intoxicated and leaving the premises by driving a vehicle in that inebriated state. Id. at 465.
¶ 31 The supreme court determined that On Stage could be held liable to the plaintiffs, not as a
result of any provision of alcohol, but as a result of the encouragement of or assistance in
tortious conduct. A duty toward the plaintiffs’ decedents arose because On Stage “took on
the burden of determining whether Homatas was dangerously intoxicated when club
employees discovered him vomiting in the restroom, a likely result of his intoxication. On
Stage, on its own initiative, made this determination and expelled Homatas from the club.”
Id. at 475. The employees had told the valet service to bring Homatas’s car to the front door.
When the car arrived, the employees opened the door and told Homatas to leave. Our
supreme court found that the plaintiffs’ complaint sufficiently stated a cause of action for
common-law negligence under section 876 of the Restatement (Second) of Torts. Id. at 478.
The court stated that “On Stage acquired a duty not to encourage and assist Homatas in the
tortious conduct of driving while intoxicated” and “that the Dramshop Act does not preempt
plaintiffs’ common law claims in this case, and does not preclude imposing a duty of care on
On Stage.” Id. at 475.
¶ 32 In Sanke, the parents of a passenger killed in a car accident sued the driver and another
passenger under negligent-driving and concert-of-action theories respectively. Sanke, 216 Ill.
App. 3d at 963. In the front seat were the driver and a passenger; in the backseat were the
decedent and another passenger. The plaintiffs asserted that the defendant (front seat)
passenger was a contributing tortfeasor whose encouragement of the negligent driving
constituted substantial assistance and was a proximate cause of their daughter’s death. The
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trial court dismissed the complaint against the passenger for failure to state a cause of action,
holding that liability for the negligent act of a driver did not attach against a person other
than the driver, unless that person was the vehicle’s owner or had the right to control the
vehicle. In reversing and remanding, this court held that the passenger could be held liable,
not under a duty to control the driver’s actions, but under a duty to control his own behavior.
We found that the facts of the case fell squarely within the definition of joint concerted
tortious activity as defined under section 876 of the Restatement (Second) of Torts. We
concluded that the determination of whether the passenger’s conduct constituted substantial
encouragement was a jury question. Id. at 971-72.
¶ 33 In both Simmons and Sanke, the pleadings alleged affirmative conduct on the defendant’s
part that amounted to an assertion of undetermined “substantial assistance or encouragement”
of another person, which increased the risk of harm to that person and to others. In the
present case, therefore, we consider whether, taken as true, plaintiffs’ allegations, as well as
any reasonable inferences that arise from them (Doe, 213 Ill. 2d at 28), construed in the light
most favorable to plaintiffs (Sheffler, 2011 IL 110166, ¶ 61), are sufficient to establish a
cause of action for in-concert liability under section 876 of the Restatement (Second) of
Torts.
¶ 34 We conclude that plaintiffs have sufficiently pleaded a cause of action for in-concert
liability under section 876 of the Restatement (Second) of Torts. Plaintiffs’ complaint alleged
that Hatyina and Melbourn were in Hatyina’s boat on July 28, 2012; we may infer that no
others were present in the boat to report on the specific interactions between them. Plaintiffs’
complaint alleged that Hatyina and Melbourn were consuming alcoholic beverages and
cocaine and that Hatyina became obviously impaired. Plaintiffs’ complaint alleged that
Hatyina and Melbourn went for a boat ride, and Hatyina was operating the craft. Pursuant to
section 2-615 of the Code, we may reasonably infer that, in addition to Hatyina’s boat, there
were other watercraft on the lake, including a pontoon boat that James was operating. The
pleadings reflect, and we may infer, that other watercraft, swimmers, and people using
equipment were occupying and using the lake for their enjoyment. Hatyina’s boat reached
speeds in excess of 40 miles per hour. Given Hatyina’s degree of intoxication and
impairment, we may infer that the speed and conditions under which he was operating the
boat were unsafe for them and any other individual on the lake at that time. Plaintiffs alleged
that Melbourn encouraged Hatyina’s continued conduct of operating the boat at an unsafe
speed in his significantly impaired state. We may infer that Melbourn’s encouragement
served as an affirmative act, leading Hatyina to continue operating the boat in an unsafe
manner. Plaintiffs pleaded that Melbourn owed them a duty to protect them at the lake from
Hatyina’s actions when she knew or should have known of his impairment and of his
decision to operate the boat at an unsafe speed. Through the pleadings and the reasonable
inferences therefrom, plaintiffs have sufficiently pleaded allegations reflecting that Melbourn
was a contributing tortfeasor whose encouragement of Hatyina’s negligent conduct in
operating the boat constituted substantial assistance and was a proximate cause of Antonio’s
death. Accordingly, the trial court erred when it found otherwise.
¶ 35 Melbourn relies on Charles v. Seigfried, 165 Ill. 2d 482 (1995), in support of her
argument that liability should be precluded for injuries arising from another’s intoxication.
Melbourn’s reliance on Charles is misplaced; we need not present a discussion of its
inapplicability, as the Simmons court has previously done so. See Simmons, 236 Ill. 2d at
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467-73. As the Simmons court expressed, “[a]lthough one does not have a duty to prevent the
criminal acts of a third party, one does have a duty to refrain from assisting and encouraging
such tortious conduct.” Id. at 476. We decline to depart from the rationale and holding of
Simmons.
¶ 36 Melbourn argues that plaintiffs failed to allege any specific facts to trigger liability.
However, unlike a complaint for common-law fraud, which “must allege, with specificity
and particularity, facts from which fraud is the necessary or probable inference, including
what misrepresentations were made, when they were made, who made the misrepresentations
and to whom they were made” (Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496-97 (1996)),
there is no such specificity requirement for the cause of action presented here.
¶ 37 Rather, the purpose of pleadings is to present, define, and narrow the issues and limit the
proof needed at trial. People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 307
(1981). Pleadings are intended not to erect barriers to a trial on the merits but instead to
remove them and facilitate the trial. Id. The object of pleadings is to produce an issue
asserted by one side and denied by the other so that a trial can determine the actual truth. Id.
at 307-08 (citing Fleshner v. Copeland, 13 Ill. 2d 72, 77 (1958)). In determining whether a
cause of action has been stated, we must consider the whole complaint, rather than taking a
myopic view of a disconnected part. Stenwall v. Bergstrom, 398 Ill. 377, 383 (1947).
¶ 38 The degree of specificity required to sufficiently plead a cause of action in any case is
difficult to determine and is dependent upon the individual circumstances of each case. For
example, in Simmons, there were a number of employees at the club who observed
Homatas’s state of impairment, and then a number of employees who assisted Homatas in
retrieving his vehicle, placing him in the driver’s seat, and directing him to drive. See
Simmons, 236 Ill. 2d at 475-78. In Sanke, there were four individuals in one vehicle: Sanke
(in the backseat), Schwartz (driving), Bechina (in the front passenger seat), and another
individual (in the backseat with Sanke). In both Simmons and Sanke, there were various
witnesses who observed, heard, or were otherwise present when the defendants were
allegedly acting in concert with the tortfeasors. In the present case, there were only two
individuals in the boat that killed Antonio Borcia: Melbourn and Hatyina, and no other
known sensory witness during the relevant time period. Because in Simmons and Sanke there
were more individuals who witnessed, participated in, or survived the accidents, there were
more opportunities to obtain more specific factual allegations than in the present case.
Plaintiffs in the present case should not be foreclosed from bringing a cause of action based
on an in-concert theory of liability against Melbourn due to a lack of sensory witnesses other
than the two individuals in the boat that killed Antonio. To hold otherwise would be contrary
to justice and the purpose of section 2-615 of the Code. See Fahner, 88 Ill. 2d at 307.
¶ 39 Although Melbourn characterizes plaintiffs’ allegations as “conclusions,” it is clear that
most are presented as inferences from the pleaded facts. Black’s Law Dictionary defines
“inference” as “[a] conclusion reached by considering other facts and deducing a logical
consequence from them.” Black’s Law Dictionary 793 (8th ed. 2004). Black’s Law
Dictionary defines a “legal conclusion” as “[a] statement that expresses a legal duty or result
but omits the facts creating or supporting the duty or result.” Id. at 912. Therefore, despite
Melbourn’s assertion that the only well-pleaded fact was that she provided intoxicating
substances to Hatyina, plaintiffs presented allegations with proper inferences sufficient to
survive a section 2-615 dismissal motion. Plaintiffs will still bear the burden of proof with
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respect to the elements of their claim (see 740 ILCS 180/0.01 et seq. (West 2012)); our
holding today recognizes only the sufficiency of plaintiffs’ allegations vis-à-vis the
in-concert theory of liability under section 876 of the Restatement (Second) of Torts.
¶ 40 In so holding, we recognize, as our supreme court did in Simmons, that the provision of
intoxicating substances to another does not, in and of itself, establish in-concert liability. See
Simmons, 236 Ill. 2d at 471-73. We also recognize, as we did in Sanke, that the assistance or
participation by a defendant might be so slight that the defendant is not ultimately liable for
the act of the other. See Sanke, 216 Ill. App. 3d at 965-66. However, a section 2-615 motion
does not require plaintiffs to prove their case at this juncture, and plaintiffs’ allegations are
sufficient to show that liability might attach. Thus, we need not, and should not, decide at this
stage of the litigation whether any inaction (such as failing to warn Hatyina or plaintiffs) or
action (such as telling Hatyina to stay parked in the marina) breached a duty.
¶ 41 With respect to count VII, plaintiffs contend that the trial court erred when it granted
Melbourn’s motion to dismiss. Plaintiffs argue that they pleaded sufficient facts regarding
Erin’s presence in the zone of danger to survive dismissal. We agree.
¶ 42 Having determined that plaintiffs’ complaint sufficiently alleged that liability might
attach to Melbourn, we need review only whether the remaining allegations of count VII
state a cause of action for negligent infliction of emotional distress pertaining to Erin.
¶ 43 Negligent infliction of emotional distress is a recognized cause of action in Illinois. See
Seitz v. Vogler, 289 Ill. App. 3d 1029 (1997). To state a cause of action for negligent
infliction of emotional distress, a plaintiff must allege facts establishing that she suffered a
direct impact that caused emotional distress (see Corgan v. Muehling, 143 Ill. 2d 296, 312
(1991)) or that she was a bystander in a zone of physical danger that caused her to fear for
her own safety and that she suffered physical injury or illness as a result of her emotional
distress (see Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 555 (1983)). To have been
within the “zone of physical danger,” the plaintiff 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.
¶ 44 “Basically, 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. This 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. The bystander, [in addition], must show physical injury or illness as a result
of the emotional distress caused by the defendant’s negligence.” Id.; see also Seitz, 289 Ill.
App. 3d at 1042 (holding that the plaintiff sufficiently pleaded a cause of action for negligent
infliction of emotional distress; in a boating accident she was both a direct victim (who was
physically injured) and a bystander (with respect to the death of her husband and the injury
and threat of injury to her children)).
¶ 45 The pleadings allege that Erin was a bystander to, not a direct victim of, Melbourn’s
alleged negligence. Plaintiffs’ complaint alleged that Melbourn’s conduct of encouraging
Hatyina to operate the boat at unsafe speeds while in a severely intoxicated state caused Erin
to be in a zone of physical danger during the accident wherein she reasonably feared for her
own safety, given the proximity to her brother on the lake and right after witnessing
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Hatyina’s boat strike and kill her brother. Plaintiffs’ complaint also alleged that, by being in
the zone of physical danger, Erin suffered physical injury and emotional distress, which
resulted in the need for continued medical and psychological treatment and counseling.
¶ 46 Again, the question is whether plaintiffs adequately pleaded a cause of action for
negligent infliction of emotional distress as a bystander. Under the above principles, we find
that they did. Accordingly, we hold that the trial court erred when it dismissed count VII of
plaintiffs’ complaint.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we reverse the judgment of the circuit court of Lake County and
remand for further proceedings consistent with this opinion.
¶ 49 Reversed and remanded.
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