Burns v. Masterbrand Cabinets, Inc. ( 2007 )

NO. 4-06-0296 Filed 1/9/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JAMES BURNS, Jr., ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Macon County
MASTERBRAND CABINETS, INC., ) No. 04L173
a Delaware Corporation; GALLAGHER )
BASSETT SERVICES, INC.; a Delaware )
Corporation; METRO PRIVATE )
INVESTIGATIONS, INC., an Alabama ) Honorable
Corporation; and JOHN T. KENNEDY III, ) Katherine M. McCarthy,
Defendants-Appellees. ) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
On March 9, 2006, the trial court granted the section
2-615 (735 ILCS 5/2-615 (West 2004)) motion of defendant
Masterbrand Cabinets, Inc. (Masterbrand), to dismiss plaintiff
James Burns, Jr.’s complaint alleging Masterbrand committed the
tort of intrusion upon seclusion of another. Earlier, on November
18, 2005, the court had already granted section 2-615 motions to
dismiss the counts against defendants Gallagher Bassett Services,
Inc. (Gallagher); Metro Private Investigations, Inc. (Metro); and
John T. Kennedy alleging intrusion upon seclusion. Plaintiff
appeals the court’s orders dismissing his allegations of intrusion
upon seclusion for failure to state a claim. Plaintiff argues
that, although this court has yet to expressly recognize the tort
of intrusion upon seclusion, the tort constitutes a cause of
action in Illinois. We agree with plaintiff and reverse and
remand this case for further proceedings.
I. BACKGROUND
On November 12, 2004, plaintiff filed a complaint in
the circuit court of Macon County alleging that on April 3, 2000,
plaintiff sustained a work injury to his thoracic spine while
stacking wood onto a cart as part of his employment at
Masterbrand. Plaintiff filed a claim with the Illinois Industrial
Commission for workers’ compensation. Masterbrand retained the
services of codefendant Gallagher to adjust the claim and manage
the litigation related to plaintiff’s workers' compensation case.
Plaintiff alleges that prior to November 12, 2005,
Gallagher retained codefendant Metro to perform personal
surveillance of plaintiff. On November 13, 2002, an employee of
Metro, Kennedy, approached plaintiff’s mobile home and sought
entry into his home under the false pretense that he was looking
for a missing juvenile. Plaintiff alleged that Kennedy was
holding the picture of a young girl when he approached his home.
Once inside, plaintiff alleges that Kennedy asked him questions
about the missing juvenile.
Kennedy used a hidden camera in a fanny pack to record
plaintiff’s movement and conversation while plaintiff was inside
his home. Kennedy later filed an affidavit stating that the
recording device did not record the conversation he had with
plaintiff, only the visual interaction. On December 17, 2002,
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Kennedy testified in plaintiff’s workers’ compensation case with
regard to plaintiff’s physical limitations. The entry into
plaintiff’s home was the basis for Kennedy’s testimony. Plaintiff
alleges that Kennedy admitted under oath at a prior arbitration
hearing that he used a false story regarding a missing juvenile to
gain access to plaintiff’s home.
Plaintiff alleges the intrusion was highly offensive
and that he sustained anguish and suffering as a direct and
proximate cause of Kennedy’s entrance into his home.
On November 18, 2005, the trial court granted
defendants’ Gallagher, Metro, and Kennedy’s section 2-615 motion
to dismiss the counts in plaintiff’s complaint alleging defendants
committed the tort of intrusion upon seclusion of another. The
trial court’s docket entry granting these three defendants’ motion
to dismiss stated as follows:
"At the outset it should be noted that
the Illinois Supreme Court has never
specifically recognized a cause of action for
intrusion into seclusion. In fact, the
Supreme Court in Lovgren, specifically stated
that its holding in that case did not imply a
recognition of the cause of action by the
[c]ourt. Following that decision, there has
been a split in the [a]ppellate [c]ourt
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[d]istricts concerning this cause of action.
Interesting enough, all districts now seem to
recognize this cause of action EXCEPT the
Fourth District (Bureau of Credit Control v.
Scott, 36 Ill. App. 3d 852 (4th [Dist.] ,
1976)). Although the Fourth District is now
the only district which does not recognize
this branch of privacy law, this [c]ourt is
compelled to follow its rulings.
Consequently, the [c]ourt GRANTS the
[d]efendants’ [m]otion to [d]ismiss [c]ounts
II, III[,] and IV pursuant to [s]ection 2-615
of the Code of Civil Procedure for failure to
state a cause of action since it is based
upon the [p]laintiff’s alleged right."
Defendant Masterbrand was not a party to the motion to
dismiss. On March 9, 2006, the trial court granted plaintiff
leave to amend his complaint and add three additional counts
alleging violations of the eavesdropping statute contained in the
Criminal Code of 1961 (720 ILCS 5/14-1 through 14-9 (West 2004)).
The court then granted defendant Masterbrand’s section 2-615
motion to dismiss, stating, as it had done earlier in granting the
other three defendants’ motion, that this appellate district court
does not recognize intrusion upon seclusion as a cause of action.
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The court also made clear that it was dismissing all four counts
of intrusion upon seclusion (one against each defendant) with
prejudice. The court stated, "[Y]our appeal of right starts now.
So that [c]ounts 2, 3, and 4, are hereby dismissed with prejudice
as well. Then no just reason for delay or enforcement of said
order." The docket entry also states, "No just reason for delay
or enforcement of said [o]rder."
On April 10, 2006, plaintiff filed a notice of appeal,
stating that pursuant to Supreme Court Rule 301 (155 Ill. 2d R.
301) he was appealing the trial court’s order dismissing with
prejudice counts I through IV of his complaint. Also on April 10,
2006, plaintiff filed a motion to voluntarily dismiss counts V
through VII of his complaint, which alleged violations of the
eavesdropping statute. Although plaintiff’s motion requests the
counts be dismissed pursuant to section 2-1008 (735 ILCS 5/2-1008
(West 2004)), which provides for the substitution of parties, the
plaintiff’s motion must be a request under section 2-1009 (735
ILCS 5/2-1009 (West 2004)), which provides for voluntary
dismissal. On April 24, 2006, the court granted plaintiff’s
motion to dismiss counts V through VII without prejudice. The
jurisdictional statement in plaintiff’s appeal states that this
court has jurisdiction to hear this appeal pursuant to Supreme
Court Rules 301 and 304(a). 155 Ill. 2d R. 301; 210 Ill. 2d R.
304(a). We review this case under our authority in Supreme Court
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Rules 301 and 304(a).
II. ANALYSIS
We review de novo an appeal from a motion to dismiss
pursuant to section 2-615 of the Code of Civil Procedure.
Beahringer v. Page, 204 Ill. 2d 363, 369, 789 N.E.2d 1216, 1221
(2003). The trial court dismissed plaintiff’s complaint that
alleged defendants committed the tort of intrusion upon seclusion
of another. The court’s order states that the court is compelled
to follow the Fourth District’s opinion in Scott, 36 Ill. App. 3d
1006, 345 N.E.2d 37, in which this court refused to recognize the
tort of intrusion upon seclusion.
We recognize that the trial court was put in the
awkward position of conflicting appellate authority regarding
whether a cause of action for intrusion upon seclusion exists in
Illinois. On one hand, this district has refused to recognize the
tort in Scott, 36 Ill. App. 3d 1006, 345 N.E.2d 37, and Hall v.
InPhoto Surveillance Co., 271 Ill. App. 3d 852, 649 N.E.2d 83
(1995). However, a close examination of the relevant case law
reveals that a uniform result among the other four districts
supports the conclusion that the tort of intrusion upon seclusion
is actionable in Illinois. All other districts are unanimous in
recognizing this tort. And although the appellate court in
Illinois is a single entity (People v. Layhew, 139 Ill. 2d 476,
489, 564 N.E.2d 1232, 1238 (1990)), the supreme court has held
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that, "[W]hen conflicts arise amongst the districts, the circuit
court is bound by the decisions of the appellate court of the
district in which it sits." Aleckson v. Village of Round Lake
Park, 176 Ill. 2d 82, 92, 679 N.E.2d 1224, 1229 (1997), citing
State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533,
539-40, 605 N.E.2d 539, 542 (1992).
Now, in keeping with the other districts, this court
expressly recognizes that the tort of intrusion upon seclusion is
actionable in Illinois. This district has addressed the tort
twice. First, in 1976 the court heard Scott, in which Peggy Scott
filed a complaint against a credit company for placing at least 15
harassing phone calls to her at home, work, and her parents’ home
during the first three weeks of August 1976. Scott, 36 Ill. App.
3d at 1007, 345 N.E.2d at 38. Scott claimed that during these
phone calls, the bureau’s agent shouted at her, called her "a
deadbeat," criticized her moral character, threatened court
action, and threatened to continue the phone calls until the debt
was paid. Scott, 36 Ill. App. 3d at 1007, 345 N.E.2d at 38.
Scott claimed that the calls continued despite her demands for the
calls to stop. Scott, 36 Ill. App. 3d at 1007, 345 N.E.2d at 38.
Scott claimed that the phone calls caused her a loss of sleep, a
loss of appetite, and headaches for which she sought medical
attention. Scott, 36 Ill. App. 3d at 1007, 345 N.E.2d at 38.
This court was faced with the question of whether Scott
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had filed a legally sufficient complaint. Scott, 36 Ill. App. 3d
at 1007, 345 N.E.2d at 39. This court held that Scott had alleged
a sufficient claim for the tort of intentional infliction of
emotional distress in count I of her complaint and that the
remaining counts in her petition were dismissed. Scott, 36 Ill.
App. 3d at 1008-09, 345 N.E.2d at 39-40. The court stated:
"It would unduly prolong this opinion to
discuss all of the Illinois cases in which
plaintiffs have sought to establish remedies
similar to, or identical with, those sought
[in the additional counts, which included
intrusion upon seclusion]. It appears that a
cause of action for invasion of privacy may
be stated for unauthorized use of an
individual’s name or likeness for commercial
purposes. [Citations.] *** We are aware of
no other Illinois cases upholding a complaint
alleging invasion of privacy. In this case,
we see no need to create additional remedies.
Scott has a remedy under [c]ount I of the
counterclaim." (Emphasis added.) Scott, 36
Ill. App. 3d at 1008-09, 345 N.E.2d at 40.
Our court again revisited the issue in 1995 in Hall,
271 Ill. App. 3d 852, 649 N.E.2d 83. In Hall, we refused to
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decide whether to recognize the tort of intrusion upon seclusion
because the plaintiff failed to allege facts that would satisfy
the four elements of the tort. Hall, 271 Ill. App. 3d at 855, 649
N.E.2d at 85. This court has not addressed the issue in a
published opinion since Hall.
However, since our decision in Scott, all four of the
other appellate districts in the state have explicitly recognized
that a cause of action exists for the tort of intrusion upon
seclusion. See Melvin v. Burling, 141 Ill. App. 3d 786, 490
N.E.2d 1011 (1986) (Third District); Davis v. Temple, 284 Ill.
App. 3d 983, 673 N.E.2d 737 (1996) (Fifth District); Benitez v.
KFC National Management Co., 305 Ill. App. 3d 1027, 714 N.E.2d
1002 (1999) (Second District); Johnson v. K Mart Corp., 311 Ill.
App. 3d 573, 723 N.E.2d 1192 (2000) (First District); Schmidt v.
Ameritech Illinois, 329 Ill. App. 3d 1020, 768 N.E.2d 303 (2002)
(First District).
Although the Supreme Court of Illinois often resolves
conflict among the appellate districts, the supreme court has not
expressly addressed whether the tort of intrusion upon seclusion
is actionable in Illinois. In Lovgren v. Citizens First National
Bank of Princeton, 126 Ill. 2d 411, 534 N.E.2d 987 (1989), the
supreme court refused to decide whether to recognize the tort,
saying that, in any case, the plaintiff in Lovgren did not satisfy
the elements of the tort. The court’s opinion also expressly
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stated that its discussion of intrusion upon seclusion does not
imply the court’s recognition that the tort constitutes a cause of
action in Illinois. Lovgren, 126 Ill. 2d at 417, 534 N.E.2d at
989. However, Valley Forge Insurance Co. v. Swiderski
Electronics, Inc., No. 101261, slip op. at 12 (November 30, 2006),
___ Ill. 2d ___, ___, ___ N.E.2d ___, ___, the court noted that
Black’s Law Dictionary’s definition of "right of privacy" "refers
the reader to the entry for 'invasion of privacy,' which is
defined as '[a]n unjustified exploitation of one's personality or
intrusion into one's personal activities' and includes 'invasion
of privacy by intrusion' ***. [Citation.] [Invasion of privacy
by intrusion is] defined as '[a]n offensive, intentional
interference with a person's seclusion or private affairs' ***.
[Citation.] In addition, Webster's defines 'privacy' as 'the
quality or state of being apart from the company or observation of
others: seclusion.' [Citation]."
The Valley Forge court further stated as follows:
"These definitions confirm that 'right
of privacy' connotes *** an interest in
seclusion ***. Accordingly, the policy
language 'material that violates a person's
right of privacy' can reasonably be
understood to refer to material that violates
a person's seclusion." Valley Forge, slip
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op. at 12, __ Ill. 2d at __, __ N.E.2d at __.
In the case sub judice, plaintiff has alleged the four
elements of the tort set forth in Melvin: (1) an unauthorized
intrusion or prying into the plaintiff’s seclusion, (2) the
intrusion must be offensive or objectionable to a reasonable man,
(3) the matter upon which the intrusion occurs must be private,
and (4) the intrusion causes anguish and suffering. Melvin, 141
Ill. App. 3d at 789, 490 N.E.2d at 1013-14, citing W. Prosser,
Torts §112, at 832-34 (3d ed. 1964); see also W. Keeton, Prosser
and Keeton on Torts §117, at 854-67 (5th ed. 1984). We also
acknowledge the Restatement’s definition, which says, "One who
intentionally intrudes, physically or otherwise, upon the solitude
or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if
the intrusion would be highly offensive to a reasonable person."
Restatement (Second) of Torts §652B, at 378 (1977).
Finally, codefendants Gallagher and Masterbrand’s
arguments regarding vicarious liability are also not properly
before this court. Plaintiff appeals from the trial court’s
ruling dismissing his complaint for failure to state a cause of
action. The appeal is before this court pursuant to Supreme Court
Rules 301 and Rule 304(a). Rule 301 provides for appeals from
final orders of the trial court, and Rule 304(a) provides for
appeals from final judgments that do not dispose of all the claims
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pending in the court. The trial court made no findings and issued
no final and appealable order regarding codefendants’ liability.
Therefore, issues of vicarious liability are not ripe for review
at this time.
III. CONCLUSION
Based on the foregoing reasons, we reverse the trial
court’s order granting defendants’ motions to dismiss and remand
for further proceedings.
Reversed and remanded.
STEIGMANN, P.J., and COOK, J., concur.
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