Lewis v. Westinghouse Electric Corp. , 139 Ill. App. 3d 634 ( 1985 )

PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

In the third count of a three-count amended complaint the plaintiff, Lucille Lewis, sought damages from the defendants, Westinghouse Elevator Co., a division of Westinghouse Electric Corporation and the Chicago Housing Authority (CHA) for the negligent infliction of emotional distress. The defendants moved to dismiss the plaintiff’s complaint for failure 'to state a cause of action. The trial court granted the motion to dismiss. The plaintiff now appeals the dismissal of the complaint.

The plaintiff is a resident at one of the apartments owned by the defendant CHA. The defendant Westinghouse maintains and services the elevators at the CHA building. On August 16, 1983, the plaintiff entered the elevator on the first floor and rode it to the 16th floor. As she attempted to exit the elevator, however, the elevator stalled and the doors remained closed. The elevator remained in this position for approximately 40 minutes. The plaintiff alleges that during that time she was in danger of “suffocation and serious physical harm.” In addition, plaintiff alleges that as a result of the incident she suffered an unstable angina and aggravation of her coronary arteriosclerotic heart disease and hypertension.

The central issue to be resolved on appeal is whether the plaintiff has stated a cause of action for the negligent infliction of emotional distress under Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1. In Rickey, the plaintiff, age eight, sought damages for the emotional distress he suffered as a result of watching his five-year-old brother’s near strangulation by an article of clothing which became entangled in a CTA escalator. In determining whether the plaintiff could recover, the court adopted the zone of physical danger standard. In order to state a cause of action under that standard the plaintiff must have been in “such proximity to the accident” that there was “a high risk of physical impact” so as to cause the plaintiff “reasonable fear for his own safety.” Additionally, the plaintiff “must show a physical injury or illness as a result of the emotional distress.” (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 555, 457 N.E.2d 1, 5.) In adopting this standard, the court abandoned the “impact rule,” which requires that in order to state a cause of action for the negligent infliction of emotional distress, the plaintiff must have suffered some contemporaneous impact.

For at least two reasons we do not believe the plaintiff has stated a cause of action. First, we find that the plaintiff did not have a reasonable fear for her own safety. Whether a fear is reasonable is determined by the objective standard of whether a particular incident would produce fear in the person of ordinary sensibilities. (Knierim v. Izzo (1961), 22 Ill. 2d 73, 86, 174 N.E.2d 157, 165.) In this case, the elevator merely stalled and the doors failed to open. This is not a case such as Bass v. Nooney Co. (Mo. 1983), 646 S.W.2d 765, where water began to rise in the elevator so that the party reasonably feared drowning. Apprehensive or uncomfortable it may have been for the plaintiff, but, absent something more, the incident in this case was not one which produces fear of suffocation.

Secondly, we find that for the same reasons stated above, the plaintiff was not in a high risk of physical impact. The elevator merely stalled. There is no suggestion in this case that any outside force was present that would injure the plaintiff. In our estimation, the facts here cannot lead to the conclusion that there was a high risk to the plaintiff of physical impact.

In making these judgments concerning high risk of physical impact and reasonable fear, we believe that this is a question of law and not a question of fact. We recognize nevertheless that the line between those questions is hazy at best. The determination is usually made on a common sense or intuitive basis. (See Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.) Moreover, in making that judgment, we are mindful of the admonition of the Illinois Supreme Court in a case involving an intentional infliction of emotional distress, Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157. In Knierim, the court stated that “[indiscriminate allowance of actions for mental anguish would encourage neurotic overreactions to trivial hurts, and the law should aim to toughen the psyche of the citizen rather than pamper it.” Knierim v. Izzo (1961), 22 Ill. 2d 73, 85, 174 N.E.2d 157,164.

One of the fears expressed by courts in abandoning the impact rule has been the potential flood of litigation that could result. (See Rickey v. Chicago Transit Authority (1981), 101 Ill. App. 3d 439, 441, 428 N.E.2d 596, 598, aff’d (1983), 98 Ill. 2d 546, 457 N.E.2d 1.) While that flood has apparently not appeared where the impact rule has been abandoned, trial courts must monitor such litigation, as the trial court did here, to limit such claims to those that closely follow the rule enunciated in Rickey. Similarly, we believe that the determination of whether a fear is reasonable, whether there was a high risk of impact, and whether an injury or illness resulted must be made at the pleading stages of the litigation. This comports with the supreme court’s statement in Knierim that “[w]e are confident, *** that the trial judges in this State will not permit litigation to enter the field of trivialities and mere bad manners.” Knierim v. Izzo (1961), 22 Ill. 2d 73, 87,174 N.E.2d 157,165.

It might be argued that this is not a neurotic overreaction to a trivial hurt since the plaintiff has alleged a resulting physical injury, aggravation of her angina condition. However, the Knierim court favorably commented on the case of Slocum v. Food Fair Stores of Florida, Inc. (Fla. 1958), 100 So. 2d 396, in which the plaintiff suffered a heart attack as a result of an aggravation of a preexisting condition. The Florida court found that there was no cause of action because the defendant’s conduct must cause distress to a person of “ordinary sensibilities.” The finding of the Florida court, in which the fllinois Supreme Court agreed, was that this was not a person of ordinary sensibilities. We judge that to be the situation in this instance.

An additional argument raised by the defendants is that recovery under Rickey is limited to “bystanders” to the exclusion of “direct victims.” The defendants suggest that the plaintiff Lewis cannot recover because she did not witness an injury to a third person. We do not believe that the supreme court in Rickey intended its decision to be read in such a manner. First, although Rickey involved a bystander situation, the court noted that “[t]he underlying question is, of course, whether any person who suffers emotional distress can recover ***.” (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 553, 457 N.E.2d 1, 4.) Second, in adopting the zone of physical danger standard the court cited comment c to section 436A of the Restatement (Second) of Torts. Neither section 436A nor comment c and the illustration contained therein are limited to bystander recovery.

It must be recognized that under the zone of physical danger standard there is no longer the need to distinguish between whether the plaintiff is a direct victim or a bystander. The proper focus is on whether the plaintiff was in proximity to the danger. One within the zone of physical danger can recover regardless of whether or not they witnessed an accident to a third person.

For the reasons stated above, we believe the plaintiff has not satisfied the elements necessary to state a cause of action for negligent infliction of emotional distress. The order of the trial court is affirmed.

Affirmed.

McMORROW, J., concurs.