Schweihs v. Chase Home Finance, LLC , 2016 IL 120041 ( 2017 )

Digitally signed by
Reporter of Decisions
Illinois Official Reports Reason: I attest to the
accuracy and
integrity of this
document
Supreme Court Date: 2017.07.06
14:34:53 -05'00'
Schweihs v. Chase Home Finance, LLC, 2016 IL 120041Caption in Supreme MELINDA SCHWEIHS, Appellant, v. CHASE HOME FINANCE,
Court: LLC, et al., Appellees.
Docket No. 120041
Filed December 15, 2016
Rehearing denied March 27, 2017
Decision Under Appeal from the Appellate Court of the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Daniel Lynch, Judge, presiding.
Judgment Appellate court judgment affirmed.
Cause remanded to the circuit court for further proceedings consistent
with this opinion.
Counsel on Edward T. Joyce, Jennifer L. Doherty, and Joan M. Mannix, all of
Appeal Chicago, for appellant.
Jeffrey S. Pavlovich and Gerard C. Fosco, of Leahy, Eisenberg &
Fraenkel, Ltd., of Joliet, for appellees Safeguard Properties, Inc., Todd
Gonsalez, and Edilfonso Centeno.
Edward J. Lesniak, Susan M. Horner, and Daniel Klapman, of Burke,
Warren, MacKay & Serritella, P.C., of Chicago, for appellee Chase
Home Finance, LLC.
R. Sean Hocking, of Craig & Craig, LLC, of Mattoon, for amicus
curiae Illinois Association of Defense Trial Counsel.
Justices 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.”
-2-
¶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 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 recognize 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 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.
-3-
¶ 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 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.
-4-
¶ 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 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. 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.
-5-
¶ 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 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
-6-
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 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 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
-7-
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 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).
-8-
¶ 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 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 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,’ ”
-9-
“(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 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
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).
- 10 -
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. 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 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.
- 11 -
¶ 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 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
- 12 -
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) 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.
¶ 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
- 13 -
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 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 between the tort of
NIED and the tort of negligence where the plaintiff seeks damages for emotional distress.
- 14 -
¶ 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).
¶ 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
- 15 -
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 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.
- 16 -