Schweihs v. Chase Home Finance, LLC

2016 IL 120041
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 120041)
MELINDA SCHWEIHS, Appellant, v. CHASE HOME
FINANCE, LLC, et al., Appellees.
Opinion filed December 15, 2016.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, and Theis
concurred in the judgment and opinion.
Justice Garman specially concurred, with opinion.
OPINION
¶1 This tort case arose out of foreclosure proceedings involving plaintiff Melinda
Schweihs’s home. Plaintiff sued defendants Chase Home Finance, LLC (Chase),
Safeguard Properties, Inc. (Safeguard), Todd Gonsalez, and Edilfonso Centeno for
numerous torts, including emotional distress, as a result of Gonsalez and Centeno
entering her home. Her emotional distress claims, which are at issue here, were
dismissed by the circuit court, and the appellate court affirmed. 2015 IL App (1st)
140683. This court allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Jan. 1, 2015). For the following reasons, we affirm the judgment of the
appellate court.
¶2 I. BACKGROUND
¶3 In 1997, plaintiff executed a note secured by a mortgage for a home located in
Northbrook, Illinois. Chase owned the mortgage. The mortgage contained a
provision granting Chase the right, in the event of a default by plaintiff, to enter
onto the property to make repairs. The provision reads as follows:
“7. Protection of Lender’s Rights in the Property. If Borrower fails to perform
the covenants and agreements contained in this Security Instrument, or there is
a legal proceeding that may significantly affect Lender’s rights in the Property
*** then Lender may do and pay for whatever is necessary to protect the value
of the Property and Lender’s rights in the Property. Lender’s actions may
include paying any sums secured by a lien which has priority over this Security
Instrument, appearing in court, paying reasonable attorney’s fees and entering
on the Property to make repairs. Although Lender may take action under this
paragraph 7, Lender does not have to do so.”
¶4 Plaintiff defaulted on the mortgage in 2007. Chase filed a complaint to
foreclose the mortgage against her and obtained a judgment of foreclosure on May
25, 2010. Plaintiff had the right to possession of her home until the redemption
period expired on August 25, 2010.
¶5 To protect its interest in properties, Chase contracts with outside companies to
provide property inspections and preservation services. Safeguard is one of those
companies that provide national property monitoring and preservation services for
residential properties in foreclosure. Safeguard’s employees do not physically
perform the inspections or render preservation services. Instead, Safeguard
employs “Client Account Representatives” (CARs) who coordinate with local
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vendors, with whom Safeguard contracts. These local vendors, in turn, perform the
inspections and preservation services.
¶6 On June 17, 2010, Safeguard’s inspections department received a report from
one of its vendors that plaintiff’s property was vacant. Based on the report, a
Safeguard CAR placed an “initial secure” order with A1 Builders, a local
contractor that performs the property inspection services for which Safeguard
contracted. An “initial secure” order may require a vendor to secure access to the
property by changing one of the locks on the premises and to “winterize” the house
by turning off the utilities. A1 in turn hires subcontractors, who perform the work
orders. Gonsalez and Centeno worked as A1 subcontractors.
¶7 On June 22, 2010, Gonsalez and Centeno arrived at plaintiff’s property to carry
out the “initial secure” order. They were required to determine the occupancy status
of the property before proceeding with the order. The order instructed them not to
do any work if the property was occupied.
¶8 Gonsalez testified during his discovery deposition that he and Centeno
conducted a visual inspection of the property. He observed that the grass on the
property was uncut and the trees were overgrown. Gonsalez knocked on the front
door but did not receive an answer. He also checked the gas meter and the water
spout and determined that both utilities were turned off. He further observed a “for
sale” sign at the property, along with a dumpster and a car parked in the driveway.
¶9 Gonsalez spoke with a neighbor who lived across the street from plaintiff’s
home. Gonsalez testified that the neighbor told him that the house was not occupied
but a woman would come and go on occasion. She also said that there were no
lights on at plaintiff’s home at night. She did not recognise the car in plaintiff’s
driveway. She also informed him that there was a school down the street and that
people from the school would park there knowing it was a vacant property.
¶ 10 Centeno testified during his discovery deposition that he did not talk with any
neighbors but that he recalled that Gonsalez told him the neighbor stated that “they
come and go. And sometimes they leave their vehicle there.”
¶ 11 After speaking with the neighbor, Gonsalez again knocked on plaintiff’s front
door, without a response. Gonsalez and Centeno spent in excess of 45 minutes
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determining if the house was occupied. They also entered the backyard through a
latched gate of the home’s six-foot security fence. Gonsalez testified that he saw
boxes piled on top of each other and garbage and debris on the floor, observing
these through sliding glass doors. Gonsalez then contacted management at A1
Builders, relaying the abovementioned information. He was told to proceed with
the work order.
¶ 12 To secure the premises, Gonsalez had to remove one of the secondary locks on
the property. He removed the lock to the back door. Because of the boxes and
debris blocking the entrance, Gonsalez could only open the door about a foot and
had to climb over them to enter the home. Centeno remained at the back door and
never entered the home. Once in the home, Gonsalez testified that he was
confronted by a woman. Both parties were startled, and plaintiff stated that she
wanted them out of her house and she was calling her lawyer. Gonsalez responded
he was with the mortgage company and asked her to come to the front door to speak
with him. Gonsalez then left and went around to the front and knocked on the front
door, but plaintiff did not answer. Gonsalez and Centeno then waited for the arrival
of the police.
¶ 13 At the time Gonsalez and Centeno arrived at plaintiff’s home, she was a 58-
year-old single woman who was living alone. Plaintiff testified during her
discovery deposition that her home was in foreclosure; however, she anticipated
selling her home while it was still in the redemption period. Plaintiff testified that
when she placed the house for sale, she informed the realtor that the realtor was to
accompany anybody that came to the property. She also testified that she was not
showing the interior of the house because of the “mess” and “stuff everywhere” in
piles and in boxes. She described herself as a “packrat” and testified she was in the
process of packing her belongings which were in disarray.
¶ 14 Plaintiff heard knocking on the front door while she was in the basement;
however, she was on the phone and did not respond. After the phone call, plaintiff
went to the second floor of her home to continue packing. She stated that she heard
the flap drop on the metal mailbox attached to her house, at which time she looked
out a second-floor window. Plaintiff testified that she saw two men standing in her
driveway, along with a green truck facing the street, without any markings except
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for a “Harley” decal on the back window. Plaintiff thought that they may have been
potential buyers looking at the house, and she decided to continue to pack.
¶ 15 A short time later, plaintiff heard noises coming from the back of the house. She
went downstairs to identify the noise and encountered Gonsalez in the family room.
She testified that Gonsalez was not wearing a uniform but was in street clothes with
tattoos exposed. Centeno was in the open back doorway. Plaintiff testified that she
spoke first and asked, “Who are you and what are you doing in my home.” Plaintiff
testified that one of them told her in a “forceful way” that Chase had sent them to
secure and winterize the house and that she needed to come outside to talk with
them. She told them to leave and immediately called her attorney and the police.
She stayed on the phone with the police dispatcher until the police arrived. The
police investigated, speaking with plaintiff, Gonsalez, Centeno, and the neighbor
with whom Gonsalez had spoken. No arrests were made. Gonsalez offered to
replace the back-door lock with a new lock and key, but plaintiff declined.
¶ 16 Plaintiff testified that after the incident she was afraid while in her home and
fearful that she may be attacked. On the same day of the incident, plaintiff went to
the hospital because she “didn’t feel right.” Subsequently, she sought treatment,
therapy, and medication from multiple doctors for issues with sleeping,
post-traumatic stress, anxiety, and depression. Plaintiff stated that she felt anxiety
when approaching her home and that at times she stayed in hotels because of her
fear of subsequent break-ins. She was inhibited from packing and preparing her
home for sale because of this fear. Additionally, she alleged that she sought
temporary leave from her employment due to the incident but that her request was
denied and she was instead terminated.
¶ 17 In October 2010, plaintiff filed a five-count complaint against defendants
alleging trespass, negligent trespass, private nuisance, intentional infliction of
emotional distress, and negligence. Extensive discovery and motion practice
ensued. Defendants filed motions for summary judgment as to each of plaintiff’s
counts. On February 4, 2014, the circuit court heard argument on the motions, and
plaintiff filed a motion for leave to amend the negligence count to negligent
infliction of emotional distress.
¶ 18 On February 6, 2014, the court granted defendants’ motions for summary
judgment with respect to plaintiff’s claims for private nuisance and intentional
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infliction of emotional distress. It denied defendants’ motions with respect to the
claims for trespass and negligent trespass, and those claims are still pending in the
circuit court. The court also granted plaintiff’s motion for leave to amend. It then
dismissed the negligent infliction of emotional distress claim, as amended, pursuant
to section 2-615 of the Code of Civil Procedure (Code). 735 ILCS 5/2-615 (West
2014). Finally, the court made a finding pursuant to Illinois Supreme Court Rule
304(a) (eff. Feb. 26, 2010) that there was “no just reason for delaying either
enforcement or appeal or both.” Thereafter, plaintiff filed a timely notice of appeal.
¶ 19 A divided appellate court affirmed, first addressing the negligent infliction of
emotional distress claim. The court noted the two types of victims in emotional
distress cases: bystanders and direct victims. It determined that plaintiff was a
direct victim and must allege “some physical impact” from defendants’ conduct.
The court found that because she did not plead any physical contact, she could not
establish a claim for negligent infliction of emotional distress and that count was
properly dismissed. It further noted that its conclusion was consistent with this
court’s holdings in Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 555 (1983);
Corgan v. Muehling, 143 Ill. 2d 296, 304 (1991); and Pasquale v. Speed Products
Engineering, 166 Ill. 2d 337, 346-47 (1995). The court did acknowledge however,
that certain language in Pasquale mischaracterized the holding in Corgan, which
has led to some confusion in the courts. It concluded that the language in Pasquale
was obiter dictum and not binding. 2015 IL App (1st) 140683.
¶ 20 The appellate court next addressed plaintiff’s intentional infliction of emotional
distress claim, finding that summary judgment was proper as a matter of law
because plaintiff could not establish that defendants’ conduct was “extreme and
outrageous.”
¶ 21 Justice Harris dissented regarding the negligent infliction of emotional distress
claim, stating that the majority was wrong in continuing to require physical impact
in claims for negligent infliction of emotional distress for direct victims. 2015 IL
App (1st) 140683, ¶ 49 (Harris, J., dissenting).
¶ 22 We granted plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1,
2015). We also granted the Illinois Association of Defense Trial Counsel leave to
submit an amicus curiae brief in support of defendants. Ill. S. Ct. R. 345 (eff. Sept.
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20, 2010). We affirm the judgment of the appellate court.
¶ 23 II. ANALYSIS
¶ 24 On appeal, plaintiff argues that her claims for negligent infliction of emotional
distress and intentional infliction of emotional distress should not have been
dismissed. We first address plaintiff’s claim for negligent infliction of emotional
distress.
¶ 25 A. Negligent Infliction of Emotional Distress
¶ 26 Plaintiff contends that her claim for negligent infliction of emotional distress
should not have been dismissed pursuant to section 2-615 of the Code because the
controlling precedent of this court establishes that physical impact is not a required
element of a claim for negligent infliction of emotional distress by a direct victim.
¶ 27 A motion to dismiss under section 2-615 of the Code challenges only the legal
sufficiency of the complaint. Bonhomme v. St. James, 2012 IL 112393, ¶ 34. The
critical inquiry is whether the allegations of the complaint, when considered in a
light favorable to the plaintiff, are sufficient to state a cause of action upon which
relief may be granted. Id. All well-pled facts in the complaint must be taken as true,
but conclusions of law will not be taken as true unless supported by specific factual
allegations. Id. Review of the dismissal of a complaint under section 2-615 of the
Code is de novo. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 47.
¶ 28 Plaintiff first argues that decisions of this court make clear that Illinois, like
other jurisdictions, has abandoned the impact rule. Plaintiff relies on this court’s
decision in Corgan, which she claims established that a direct victim need only
properly allege the accepted elements of a negligence claim, including an
emotional or psychological injury, but without the necessity of also proving a
secondary physical impact or injury. Plaintiff further claims that this court
reaffirmed that principle in Pasquale.
¶ 29 Plaintiff also argues that the appellate court majority misinterpreted Corgan
and Pasquale and should not have disregarded language in Pasquale as obiter
dictum. The language stated that Corgan had “eliminated the contemporaneous
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injury or impact requirement for a direct victim’s recovery for emotional distress
based on a theory of negligence.” Pasquale, 166 Ill. 2d at 346. This court reiterated
similar statements two more times in Pasquale. Id. at 348-49. Plaintiff maintains
that this court’s statements in Pasquale were entirely consistent with its decision in
Corgan. Plaintiff argues that, in accordance with our prior decisions, we should not
depart from settled precedent, which eliminated the contemporaneous physical
impact or injury requirement for direct victims.
¶ 30 Defendants and amicus contend that the impact rule is still the law in Illinois
when a direct victim pleads negligent infliction of emotional distress.
¶ 31 To address plaintiff’s claim, we set forth this court’s history of the impact rule
and claims for negligent infliction of emotional distress. Generally, to state a claim
for negligent infliction of emotional distress, a plaintiff must allege the traditional
elements of negligence: duty, breach, causation, and damages. Corgan, 143 Ill. 2d
at 306. And until this court’s decision in Rickey, all plaintiffs were also required to
allege a contemporaneous physical injury or impact. Braun v. Craven, 175 Ill. 401,
419-20 (1898). This was known as the “impact rule.” Under the impact rule, a
plaintiff could recover damages if he suffered (1) emotional distress and (2) “ ‘a
contemporaneous physical injury or impact.’ ” Corgan, 143 Ill. 2d at 303 (quoting
Rickey, 98 Ill. 2d at 553). Prior to Rickey, there was no distinction between a direct
victim and a bystander in negligent infliction of emotional distress cases.
Subsequently, in Rickey, this court drew such a distinction.
¶ 32 In Rickey, an eight-year-old boy witnessed his five-year-old brother’s clothing
become entangled in a subway escalator mechanism, resulting in the younger
brother being choked and unable to breathe for a substantial period of time. Rickey,
98 Ill. 2d at 549. The eight-year-old boy brought an action through his mother
against numerous defendants, alleging that as a result of witnessing the accident to
his brother, he sustained severe mental and emotional distress and psychiatric
trauma. Id. The complaint alleged that the emotional distress manifested in physical
injury, including “definite functional, emotional, psychiatric and behavioral
disorders, extreme depression, prolonged and continuing mental disturbances,
[and] inability to attend school.” Id. at 550. This court adopted the
“zone-of-physical-danger rule” for bystanders who allege negligent infliction of
emotional distress. Id. at 555. Under the zone-of-physical-danger rule, “a bystander
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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 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. Therefore, this court held that a bystander must
show physical injury or illness as a result of the emotional distress, caused by the
defendant’s negligence and not a contemporaneous physical injury or impact. Id.
¶ 33 Subsequently, in Corgan, the plaintiff, who was a patient of a man who held
himself out to be a licensed psychologist, sued the man for emotional damages
because, under the guise of therapy, he sexually exploited her. Corgan, 143 Ill. 2d
at 300. The plaintiff alleged that the defendant’s conduct caused and still caused her
to experience fear, shame, humiliation, and guilt. Id. She also alleged that the
defendant’s conduct compelled her to undergo more intensive and extensive
psychotherapeutic care and counseling. Id. The circuit court certified questions for
the appellate court, and the precise issue in Corgan was whether “as a direct victim
of defendant’s psychological malpractice, a question remains as to whether the
complaint should be dismissed because the plaintiff did not allege that she suffered
a physical injury or illness as a result of her emotional distress.” Id. at 308. This
court held that the requirement that the plaintiff allege a physical symptom as a
result of the emotional distress caused by the defendant’s negligence did not apply
to direct victim cases. Id. at 312.
¶ 34 Also, in Corgan, this court made it clear that Rickey did not define the scope of
negligent infliction of emotional distress as it applies to direct victims. Id. at 304.
Corgan was a direct victim case, and the patient satisfied the impact rule; on
multiple occasions, the psychologist had sexual relations with her. Id. at 300. Thus,
Corgan is an example of the continued application of the impact rule in direct
victim cases.
¶ 35 Moreover, in Corgan, the special concurrence clarified “that the only question
before us, and the only one resolved by today’s decision, is the question certified by
the trial judge: whether this court’s earlier opinion in Rickey v. Chicago Transit
Authority (1983), 98 Ill. 2d 546, bars recovery of damages for emotional distress in
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the limited set of circumstances alleged here. We have, in the present case,
answered that question in the negative.” Corgan, 143 Ill. 2d at 316 (Miller, C.J.,
specially concurring).
¶ 36 Also of note is the case of Pasquale, 166 Ill. 2d at 339-40, where the husband of
a spectator at a drag race, who was killed when she was struck by flying debris
resulting from the failure of a clutch mechanism on a race car, brought an action
against the race track, the manufacturer of the engine housing, and the distributor of
the engine parts. When the mechanism failed, the plaintiff’s wife was struck by the
flying debris, and the plaintiff was then struck by his wife’s body parts. Id. at 343.
The complaint alleged a cause of action for a wrongful death sounding in strict
liability. Id. Although the plaintiff maintained that he was both a bystander and a
direct victim, this court found that the plaintiff was a bystander because his
emotional distress was not caused by being struck with flying debris. Id. at 347.
¶ 37 Therefore, in Pasquale, this court confined its inquiry to “whether the
elimination of the contemporaneous injury or impact requirement for bystander
recovery for emotional distress in the area of negligence meaningfully translate[d]
into an elimination of the element of physical harm for a bystander’s recovery for
emotional distress under strict liability theory.” Id. This court determined that it did
not and declined to reexamine the established rule that physical harm is required to
state a bystander’s cause of action and recovery based on strict liability. Id. at
349-50.
¶ 38 This precedent makes clear that a direct victim’s claims for negligent infliction
of emotional distress must include an allegation of contemporaneous physical
injury or impact. To the extent plaintiff argues that Corgan eliminated the impact
rule for direct victims, a careful reading of Rickey, Corgan, and Pasquale indicates
that this court did not eliminate the impact rule for negligent infliction of emotional
distress claims brought by direct victims.
¶ 39 Additionally, defendants have brought to our attention numerous appellate
court decisions that have analyzed the elements necessary for a direct victim to
plead negligent infliction of emotional distress and have correctly applied this
precedent. See Borcia v. Hatyina, 2015 IL App (2d) 140559, ¶¶ 43-44 (observing
that a cause of action for negligent infliction of emotional distress requires a
plaintiff to allege facts establishing that she suffered a direct impact that caused
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emotional distress 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 also Doe v. Northwestern University, 289
Ill. App. 3d 39, 47 (1997) (stating that Illinois courts permit a “plaintiff who has
suffered a physical impact and injury due to a defendant’s negligence [to] recover
for emotional distress that the injury directly causes”); Majca v. Beekil, 289 Ill.
App. 3d 760, 762-63 (1997) (same); Doe v. Surgicare of Joliet, Inc., 268 Ill. App.
3d 793, 796 (1994) (holding that the plaintiff qualified as a direct victim due to the
physical impact he suffered and acknowledging the requirement that the physical
impact be contemporaneous with the occurrence); Hayes v. Illinois Power Co., 225
Ill. App. 3d 819, 825 (1992) (holding that the plaintiff was a direct victim because
he was electrocuted as a result of coming into contact with decedent who had been
electrocuted); Leonard v. Kurtz, 234 Ill. App. 3d 553, 555-56 (1992) (finding there
was no contemporaneous physical injury to the plaintiff sufficient to make her a
direct victim).
¶ 40 Furthermore, consistent with our understanding of Rickey, Corgan, Pasquale,
and Illinois tort law, federal district courts applying Illinois law have held on
several occasions that the impact rule applies to direct victims. See Lewis v. CITGO
Petroleum Corp., 561 F.3d 698, 703 (7th Cir. 2009) (observing that a direct victim
of alleged negligent infliction of emotional distress must satisfy the “impact” rule);
Cleveland v. Rotman, 297 F.3d 569, 574 (7th Cir. 2002) (stating that Illinois
follows the “impact rule,” which allows a plaintiff to recover for negligent
infliction of emotional distress only if the distress is directly and causally related to
a physical injury); Kapoulas v. Williams Insurance Agency, Inc., 11 F.3d 1380,
1382 (7th Cir. 1993) (recognizing that when a direct victim claims emotional
distress, the impact rule still applies).
¶ 41 Moreover, we agree with the appellate court’s characterization of certain
language referring to Corgan, in Pasquale, as obiter dictum. We note that to
evaluate the precedential effect of this court’s pronouncements concerning the
impact rule, we must preliminarily examine general rules governing judicial
statements. Cates v. Cates, 156 Ill. 2d 76, 79-80 (1993). The term “dictum” is
generally used as an abbreviation of obiter dictum, which means a remark or
opinion uttered by the way. Id. at 80; Exelon Corp. v. Department of Revenue, 234
Ill. 2d 266, 277-78 (2009). Such an expression or opinion as a general rule is not
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binding as authority or precedent within the stare decisis rule. Cates, 156 Ill. 2d at
80. On the other hand, an expression of opinion upon a point in a case argued by
counsel and deliberately passed upon by the court, though not essential to the
disposition of the cause, if dictum, is a judicial dictum. People v. Palmer, 104 Ill. 2d
340, 345-46 (1984) (indicating that precedential scope of decision is limited to facts
before the court); see Scovill Manufacturing Co. v. Cassidy, 275 Ill. 462, 470
(1916); Rhoads v. Chicago & Alton R.R. Co., 227 Ill. 328, 337 (1907); Law v.
Grommes, 158 Ill. 492, 494 (1895); Cohens v. Virginia, 19 U.S. 264, 399 (1821)
(stating that “[i]t is a maxim not to be disregarded, that general expressions, in
every opinion, are to be taken in connection with the case in which those
expressions are used. If they go beyond the case, they may be respected, but ought
not to control the judgment in a subsequent suit when the very point is presented for
decision”).
¶ 42 This court wrote in Pasquale that Corgan had “eliminated the
contemporaneous injury or impact requirement for a direct victim’s recovery for
emotional distress on a theory of negligence.” Pasquale, 166 Ill. 2d at 346. In fact,
as previously stated, in Corgan, this court addressed whether a direct victim of
negligent infliction of emotional distress had to allege that she suffered a physical
symptom of her emotional distress. Corgan, 143 Ill. 2d at 308; see Brogan v.
Mitchell International, Inc., 181 Ill. 2d 178, 184-85 (1998). This court held that she
did not. Corgan, 143 Ill. 2d at 312. Corgan did not address the impact rule, and in
fact there was no question in that case that the plaintiff had suffered a physical
impact, as her claim rested on allegations of sexual relations with her therapist. Id.
at 300. Thus, Corgan did not eliminate the need for a direct victim to allege and
prove a contemporaneous physical injury or impact. Id. at 304, 312; Braun, 175 Ill.
at 420; Kapoulas, 11 F.3d at 1382. Further, Pasquale concerned a cause of action
based on strict liability, and its mischaracterization of Corgan’s holding was not a
factor in the issue on appeal in Pasquale. Therefore, we find that this court’s
statements in Pasquale that Corgan eliminated the contemporaneous injury or
impact requirement for a direct victim’s recovery for emotional distress are obiter
dictum and thus are not binding authority or precedent.
¶ 43 Now we turn to the allegations in plaintiff’s amended complaint to determine
whether they are sufficient to state a cause of action for negligent infliction of
emotional distress and thus survive a motion to dismiss under section 2-615 of the
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Code. Plaintiff alleges that Chase and Safeguard had a duty to use reasonable care
in training their employees, agents, and contractors and that Chase breached its
duty by failing to properly train and supervise its employees, agents, and
contractors regarding how to determine whether a property is abandoned and how
to proceed when they are uncertain as to whether a property is abandoned. Also, it
is alleged that defendants had a duty to use reasonable care not to interfere with
plaintiff’s right and interest in the private use and enjoyment of her home and that
defendants breached this duty of care by “(a) negligently determining that the
property was ‘vacant,’ ” “(b) negligently entering a report that labeled the property
as ‘first time vacancy,’ ” “(c) negligently employing a system that permits an
‘initial secure’ work order to be placed and carried out without first obtaining a
court order finding that [p]laintiff had ‘abandoned’ the property as required by both
735 ILCS 5/15-1603 1 and the Judgment of Foreclosure order,” “(d) negligently
instructing *** Gonsalez and Centeno to carry out the ‘initial secure’ work order
when it was clear that the property was neither vacant nor abandoned” and
“(e) negligently carrying out the ‘initial secure’ work order even though it was clear
that the property was neither vacant nor abandoned.” Finally, plaintiff sought
damages for the injuries sustained by her as a direct and proximate result of
defendants’ actions.
¶ 44 As previously determined, the pleading requirements for a direct victim’s
recovery for negligently inflicted emotional distress include an allegation of a
contemporaneous physical injury or impact. Therefore, since plaintiff did not
include an allegation of a physical impact, as a direct victim, she failed to allege a
cause of action for negligent infliction of emotional distress. Thus, we conclude
that the negligent infliction of emotional distress count of her complaint was
properly dismissed.
¶ 45 B. Intentional Infliction of Emotional Distress
¶ 46 Initially, we respond to defendants’ argument that plaintiff has forfeited review
of her intentional infliction of emotional distress claim. Defendants point out that
1
Section 15-1603 of the Code allows a court to shorten the redemption period if the
court finds that the property has been abandoned. 735 ILCS 5/15-1603 (West 2014).
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plaintiff’s November 4, 2015, petition for leave to appeal sought review of both her
negligent infliction of emotional distress claim and intentional infliction of
emotional distress claim. However, this court denied the petition in its entirety, and
plaintiff filed a motion to reconsider on February 1, 2016. Defendants maintain
that, because plaintiff solely referenced her negligent infliction of emotional
distress claim and so limited her motion, she has forfeited further review of her
intentional infliction of emotional distress claim. We disagree. In this court’s order
dated February 23, 2016, plaintiff’s motion for reconsideration was allowed. The
order of January 20, 2016, denying the petition for leave to appeal was vacated, and
the petition for leave to appeal was allowed. Thus, the court allowed the petition in
its entirety, and plaintiff has not forfeited review of her claim for intentional
infliction of emotional distress. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015); Central Illinois
Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 152 (2004).
¶ 47 We now address plaintiff’s contention that it was improper to grant summary
judgment on her intentional infliction of emotional distress claim because there was
a question of fact as to whether Gonsalez and Centeno’s conduct was extreme and
outrageous.
¶ 48 Summary judgment is appropriate when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. 735 ILCS
5/2-1005(c) (West 2014). Summary judgment is a drastic measure and should only
be granted if the movant’s right to judgment is clear and free from doubt. Adams v.
Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Where a reasonable person
could draw divergent inferences from undisputed facts, summary judgment should
be denied. Id. In determining the existence of a genuine issue of material fact,
courts must consider the pleadings, depositions, admissions, exhibits, and
affidavits on file in the case and must construe them strictly against the movant and
liberally in favor of the opponent. Id. In appeals from summary judgment rulings,
we conduct a de novo review. Standard Mutual Insurance Co. v. Lay, 2013 IL
114617, ¶ 15 (citing Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154
Ill. 2d 90, 102 (1992)).
¶ 49 In Illinois, the tort of intentional infliction of emotional distress was first
recognized in Knierim v. Izzo, 22 Ill. 2d 73, 87 (1961), in which a widow was
permitted to maintain such an action against the person who had killed her husband.
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It was not until 1976, however, that this court (relying on Restatement (Second) of
Torts § 46 (1965)) outlined the requirements for the tort. Public Finance Corp. v.
Davis, 66 Ill. 2d 85, 90 (1976).
¶ 50 First, the conduct involved must be truly extreme and outrageous. Second, the
actor must either intend that his conduct inflict severe emotional distress or know
that there is at least a high probability that his conduct will cause severe emotional
distress. Third, the conduct must in fact cause severe emotional distress. McGrath
v. Fahey, 126 Ill. 2d 78, 86 (1988) (citing Public Finance, 66 Ill. 2d at 90).
¶ 51 It is clear that the tort “does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” Restatement (Second) of Torts
§ 46 cmt. d, at 73 (1965); McGrath, 126 Ill. 2d at 86. “It has not been enough that
the defendant has acted with an intent which is tortious or even criminal, or that he
has intended to inflict emotional distress, or even that his conduct has been
characterized by ‘malice,’ or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort. Liability has been found only where
the conduct has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Restatement (Second) of Torts § 46 cmt. d,
at 73 (1965); Public Finance, 66 Ill. 2d at 90. “The law intervenes only where the
distress inflicted is so severe that no reasonable man could be expected to endure it.
The intensity and the duration of the distress are factors to be considered in
determining the severity.” Restatement (Second) of Torts § 46 cmt. j, at 77-78
(1965); McGrath, 126 Ill. 2d at 86; Public Finance, 66 Ill. 2d at 90.
¶ 52 Several factors have been identified that should be considered in determining
whether a defendant’s conduct may be deemed outrageous. Kolegas v. Heftel
Broadcasting Corp., 154 Ill. 2d 1, 21 (1992). The extreme and outrageous nature of
the conduct may arise from the defendant’s abuse of some position that gives him
authority over the plaintiff or the power to affect the plaintiff’s interests. Id. (citing
McGrath, 126 Ill. 2d at 86-87). A factor to be considered is also the reasonableness
of a defendant’s belief that his objective is legitimate. McGrath, 126 Ill. 2d at 89.
Another factor to be considered is the defendant’s awareness that the plaintiff is
particularly susceptible to emotional distress. Kolegas, 154 Ill. 2d at 21 (citing
McGrath, 126 Ill. 2d at 89-90). Those factors are to be considered in light of all of
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the facts and circumstances in a particular case, and the presence or absence of any
of these factors is not necessarily critical to a cause of action for intentional
infliction of emotional distress. McGrath, 126 Ill. 2d at 90. The outrageousness of a
defendant’s conduct must be determined in view of all the facts and circumstances
pled and proved in a particular case. Id.
¶ 53 Specifically, plaintiff argues that the conduct of Gonsalez and Centeno was
extreme and outrageous because (a) breaking into someone’s locked home
constitutes extreme and outrageous conduct and (b) there was no justification for
the forcible break-in by those defendants.
¶ 54 Here, we find that the conduct of Gonsalez and Centeno did not rise to the level
of extreme and outrageous. We observe that the record reveals that Gonsalez and
Centeno conducted an investigation to determine whether the house was occupied.
While there were signs that the house was not abandoned, such as the presence of
the dumpster and a vehicle, Gonsalez inquired into the nature of the vehicle and
was told that different people were parking there. Gonsalez did indeed find that the
gas was turned off, boxes were piled on top of each other haphazardly and blocked
the back door entrance to the property, and debris and garbage littered the interior.
After 45 minutes of inspection, which included knocking on the door, observing the
property, and talking with neighbors, Gonsalez received permission to proceed
with the “initial secure” order. By removing one secondary lock on the premises,
defendants were securing the property for entrance for repairs, not taking
possession of the property for residential purposes.
¶ 55 We acknowledge that under Illinois law, the sanctity of the home and the
inherent right to be free from intrusion are important principles of law. See, e.g., Ill.
Const. 1970, art. I, § 6. However, we note that plaintiff was aware that her property
was in foreclosure and was in the redemption period. Moreover, knowing the legal
status of her right to possession, she ignored the knocking on her door after
observing two men and a van in her driveway. Her actions prevented Gonsalez and
Centeno from introducing themselves and explaining their presence on the
property. Further, once Gonsalez and Centeno found the property was occupied,
they left the home and waited for the police. The interaction was not extreme or
outrageous, and therefore, we decline to accept plaintiff’s argument that
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defendants’ entry into her home was sufficient, in and of itself, to be extreme and
outrageous conduct.
¶ 56 We are not persuaded by plaintiff’s contentions to the contrary. Plaintiff
contends that by entering her home, defendants were taking possession. Plaintiff
claims that, absent a court order finding that she had abandoned her home,
defendants had no right to break in and seek to take possession. Plaintiff argues
that, under Illinois mortgage foreclosure law, “the redemption period shall end on
the date 30 days after the date the judgment of foreclosure is entered if the court
finds that the mortgaged real estate has been abandoned.” 735 ILCS
5/15-1603(b)(4) (West 2014). She further argues that foreclosure law regarding the
“right to possession” establishes that a mortgagee is not entitled to possession of a
mortgagor’s home without a court order. 735 ILCS 5/15-1701 (West 2014). She
maintains that, absent a court order granting Chase the right to enter the property,
defendants had no right to enter her home.
¶ 57 We find plaintiff’s reliance on foreclosure law unconvincing. As noted by the
appellate court, there is a substantial difference between the right to possession for
residential purposes, which these statutes address, and the contractual right to enter
to make repairs. Contrary to plaintiff’s argument that defendants had no legal
justification for their entry into the property, plaintiff signed a note with the
mortgage that contained a provision designated “protection of lender’s rights in the
property,” which allowed Chase to enter the property to make repairs if plaintiff fell
into default. “It is a rule universally recognized that a written contract is the highest
evidence of the terms of an agreement between the parties to it, and it is the duty of
every contracting party to learn and know its contents before he signs it.” Vargas v.
Esquire, Inc., 166 F.2d 651, 654 (7th Cir. 1948). In the absence of fraud, which
must be proved by clear and convincing evidence (Bundesen v. Lewis, 368 Ill. 623,
636-37 (1938)), a man in possession of all his faculties who signs a contract cannot
relieve himself from the obligations of the contract by saying he did not know or
understand what it contained (Upton v. Tribilcock, 91 U.S. 45, 50 (1875)). A person
is presumed to know those things that reasonable diligence on his part would bring
to his attention. Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716, ¶ 14
(recognizing that the act of signing legally signifies that the individual had an
opportunity to become familiar with and comprehend the terms of the document he
or she signed); Asset Exchange II, LLC v. First Choice Bank, 2011 IL App (1st)
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103718, ¶ 43 (“One is under a duty to learn, or know, the contents of a written
contract before he signs it, and is under a duty to determine the obligations which
he undertakes by the execution of a written agreement.” (Internal quotation marks
omitted.)); Vargas, 166 F.2d at 654.
¶ 58 Moreover, the judgment of foreclosure obtained by Chase stated that “[i]n order
to protect and preserve the mortgaged real estate, it has or may also become
necessary for [Chase] to pay fire and other hazard insurance premiums on the real
estate or to make such repairs to the real estate as may reasonably be deemed
necessary for the proper preservation thereof.” Therefore, we find that Chase had
the right to enter the property to make reasonable repairs for the preservation of the
property. Although plaintiff argues that the house was not in need of repairs, she
does not explain how defendants were to know or determine that.
¶ 59 In addition, we note that Safeguard’s order instructed the subcontractors not to
enter if the property was occupied and Gonsalez and Centeno undertook efforts
attempting to determine the occupancy of the house for over 45 minutes.
Furthermore, the evidence reveals that Gonsalez and Centeno were only instructed
to change one secondary lock, which they attempted to do. We fail to see how
removing one secondary lock to allow access to Chase for preservation services
equates to taking possession of the property for residential purposes.
¶ 60 In sum, we cannot disagree with the appellate court that there may have been a
better and more commonsense way to determine if the property was occupied.
However, based upon this record in the context of mortgage foreclosure
proceedings, it cannot be said that the entry, after which defendants left and never
returned, is conduct so extreme and outrageous that it goes beyond all possible
bounds of decency.
¶ 61 Therefore, since there is no question of fact as to whether the conduct of
Gonsalez and Centeno could be deemed extreme and outrageous, summary
judgment against plaintiff on her intentional infliction of emotional distress claim
was proper. Our disposition renders unnecessary any discussion of the agency
arguments raised by the parties. See, e.g., Standard Mutual Insurance, 2013 IL
114617, ¶ 35.
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¶ 62 III. CONCLUSION
¶ 63 We conclude that the appellate court’s holding that plaintiff has no cause of
action for negligent infliction of emotional distress is affirmed. The appellate
court’s granting of summary judgment in favor of defendants with regard to
plaintiff’s intentional infliction of emotional distress claim is also affirmed.
¶ 64 Appellate court judgment affirmed.
¶ 65 Cause remanded to the circuit court for further proceedings consistent with this
opinion.
¶ 66 JUSTICE GARMAN, specially concurring:
¶ 67 I agree that under our long-standing precedents, the impact rule continues to
apply to claims of negligent infliction of emotional distress (NIED). I write
separately to note that the basis for this court’s holding in Corgan v. Muehling, 143
Ill. 2d 296 (1991), upon which our opinion relies, was rejected, at least in part, by
our decision in Clark v. Children’s Memorial Hospital, 2011 IL 108656, and to
make a clear distinction between a claim of NIED and a claim of liability for
negligence or other personal tort in which the act or omission of the defendant
caused emotional distress for which damages may be recovered.
¶ 68 In Corgan, a former patient sued an unregistered psychologist for what she
characterized in her count I as “PSYCHOLOGICAL MALPRACTICE” after he
engaged in sexual intercourse with her “under the guise of therapy,” causing her
severe psychological symptoms requiring extensive treatment. Corgan, 143 Ill. 2d
at 300. Her count III alleged that defendant breached his duty to her by his
“ ‘conscious indifference and reckless disregard’ ” for her well-being by repeatedly
engaging in “ ‘sexual intercourse with her under the guise of therapy.’ ” Id. at 301.
Thus, both counts I and III sounded in negligence, specifically, professional
malpractice.
¶ 69 In his motion to dismiss, the defendant inaccurately characterized count I as a
claim of NIED and count III as a claim of intentional infliction of emotional
distress (IIED). Id. She responded that count III stated a claim for negligence, not
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IIED. In response to defendant’s motion to dismiss both counts, the circuit court
certified the two questions for interlocutory review, asking whether this court’s
holding in Rickey v. Chicago Transit Authority, 98 Ill. 2d 546 (1983), barred her
claims of emotional distress. Corgan, 143 Ill. 2d at 301-02.
¶ 70 Although the appellate court stated that count I was “ ‘in essence for
negligence’ ” and that count II “was ‘basically an action for negligence’ ” (id. at
302), the appellate court nevertheless treated both counts as claims of NIED. The
appellate court concluded that Rickey was not applicable to her claims of NIED
because she was a “direct victim” of the defendant’s alleged negligent conduct
rather than a bystander. Id.
¶ 71 After allowing the defendant’s petition for leave to appeal, this court
formulated the issue as whether “direct victims must set forth the pleading
requirements established in Rickey when stating a cause of action for negligent
infliction of emotional distress.” Id. It answered the question in the negative,
distinguishing between direct victim NIED cases and bystander NIED cases, which
require that the plaintiff be in the zone of danger. Id. at 304. After observing that
“the zone-of-physical-danger rule is patently inapplicable to direct victims” (id. at
305), this court also rejected any additional requirement that the NIED plaintiff
plead and prove that the emotional distress caused by the defendant’s negligence
caused physical symptoms (id. at 312).
¶ 72 In reaching this holding, this court discussed Siemieniec v. Lutheran General
Hospital, 117 Ill. 2d 230 (1987), in which the parents of a child born with
hemophilia sued for wrongful birth and sought damages, including compensation
for their resulting emotional distress. In that case, this court’s analysis treated the
parents as if they were “bystanders who were witnessing the effects of hemophilia”
(Corgan, 143 Ill. 2d at 305) and said that they failed to state a claim for NIED
because they failed to allege that they were in the zone of danger. Siemieniec, 117
Ill. 2d at 261-62. Thus, “the Siemieniec majority’s mere failure to address the
direct-victim/bystander distinction [did] not amount to expansion of the
zone-of-physical-danger rule to include direct victims.” Corgan, 143 Ill. 2d at 305.
¶ 73 In Clark, this court expressly overruled Siemieniec, not on the basis of the
distinction between a direct victim and a bystander, but on the basis of a distinction
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between the tort of NIED and the tort of negligence where the plaintiff seeks
damages for emotional distress.
¶ 74 The parents in Clark claimed wrongful birth due to negligent genetic testing
and counseling, alleging that they would not have conceived another child had the
defendants provided them with accurate information about the risk of giving birth
to a second child with a serious genetic abnormality. Clark, 2011 IL 108656, ¶ 5.
The damages sought in the wrongful birth count included “the extraordinary costs
of caring for [the child] during his minority” (id. ¶ 16) but not damages for the
emotional distress they experienced as a result of the burden of raising a second
severely disabled child. To recover damages for the emotional distress caused by
the conduct of the defendants, they pleaded a separate count of NIED. Id. ¶ 17.
¶ 75 The appellate court reversed the circuit court’s dismissal of the parents’ NIED
count, stating that “[i]n contrast to Siemieniec, plaintiffs in the present case have
pleaded they are subject to physical pain, exhaustion, and emotional distress from
caring for their son ***; they are subject to ‘hitting, biting, and physical trauma’
while caring for [him]; and they are thus within the zone-of-physical-danger caused
by defendants’ alleged negligence.” Clark v. Children’s Memorial Hospital, 391
Ill. App. 3d 321, 332 (2009). Thus, the appellate court held, the parents “adequately
pleaded that they fall within the zone-of-physical-danger rule and therefore have
stated a cause of action for negligent infliction of emotional distress.” Id.
¶ 76 The defendants argued before this court that the appellate court’s ruling was in
conflict with Siemieniec. Clark, 2011 IL 108656, ¶ 96. We distinguished between a
claim of NIED and a claim of professional negligence in which compensatory
damages include compensation for emotional distress, explaining that “[w]here the
claim of emotional distress is freestanding and not anchored to any other tort
against the plaintiff, courts have applied special restrictions *** because of
concerns regarding the possibility of fraudulent claims or frivolous litigation.” Id.
¶ 106 (citing Rickey, 98 Ill. 2d at 555). Such special restrictions include the
requirement of a contemporaneous physical impact or injury when the plaintiff
claims to be a direct victim of NIED (supra ¶¶ 31, 38) and the requirement that the
plaintiff be in the zone of physical danger in a bystander NIED claim (Rickey, 98
Ill. 2d at 550).
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¶ 77 We acknowledged contributing to this misunderstanding in Siemieniec when
we viewed damages sought for emotional distress in a professional negligence
claim as a claim of NIED. Clark, 2011 IL 108656, ¶ 109. Further, we noted that:
“[t]he nature of the error [of denying recovery of damages for emotional
distress] is evident when one considers that damages for emotional distress are
available to prevailing plaintiffs in cases involving other personal torts such as
defamation (see, e.g., Slovinski v. Elliott, 237 Ill. 2d 51 (2010)); conversion
(see, e.g., Cruthis v. Firstar Bank, N.A., 354 Ill. App. 3d 1122 (2004)); and
misappropriation of identity (see, e.g., Petty v. Chrysler Corp., 343 Ill. App. 3d
815 (2003)). See also 2 Dan B. Dobbs, Law of Remedies § 8.2, at 413-14 (2d
ed. 1993) (“When it comes to mental or emotional distress, the usual rule allows
free recovery of emotional distress damages to any victim of a personal tort.”).
Id. ¶ 111.
¶ 78 Thus, we expressly overruled Siemieniec, stating 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 *** a tort has already been
committed against the plaintiffs and they assert emotional distress as an element of
damages for that tort.” Id. ¶ 113.
¶ 79 Like Siemieniec, Corgan was not really an NIED case. The plaintiff pleaded
negligence, specifically professional malpractice, which resulted in emotional
distress. Corgan, 143 Ill. 2d at 300. Indeed, Chief Justice Miller specially
concurred in Corgan, making just this point. Id. at 315 (Miller, C.J., specially
concurring). He would have treated the case as an ordinary negligence/malpractice
case, which is where the court eventually arrived in Clark, 20 years later. He noted
that the duty at issue was the duty imposed by the therapist-patient relationship. Id.
at 316. Notably, the majority in Corgan also concluded that the defendant, as a
treating psychologist, owed a duty to the plaintiff and that he breached that duty by
having sexual relations with her during the course of treatment. Id. at 307 (majority
opinion). Such a breach of such a duty is grounds for finding negligence—even if
damages are claimed for emotional distress.
¶ 80 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
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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.
¶ 81 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 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.
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