Kreisman Law Offices Professional Corporation
In a divided opinion, Illinois law on negligence still requires proof of physical impact in “direct victim” emotional distress cases. There was a strong dissent written by Justice Sheldon A. Harris.
In this case, Melinda Schweihs lost her mortgage foreclosure case and was packing to move out of her Northbrook home when two subcontractors of Safeguard Properties Inc. mistakenly concluded that the property had been abandoned. Her car was parked in the driveway. The men broke into the house to implement an “initial secure order.”
The unexpected confrontation with the intruders supposedly scared Schweihs. She brought a lawsuit against Chase Home Finance, Safeguard and the subcontractors, alleging negligent infliction of emotional distress.
One count of the complaint alleged negligent infliction of emotional distress. That count was dismissed on motion and Schweihs appealed. She conceded that she was not a “bystander” and furthermore, does not allege that the defendants made any physical contact with her. The majority in this Illinois Appellate Court case concluded “she has failed to plead facts sufficient to establish that she was a direct victim.”
In Illinois, there are two types of plaintiffs who may bring claims for negligent infliction of emotional distress: (1) bystanders and (2) direct victims.
A bystander is someone who observes an accident which results in an injury to a direct victim. A direct victim, by contrast, is someone who suffers harm as a direct consequence of someone’s negligence.
Illinois courts have consistently held that, in order to be considered a direct victim, the victim must come into actual physical contact with the defendant and suffer a physical injury as a result. Corgan v. Muehling, 143 Ill.2d 296 (1991).
Unless a plaintiff can meet the definitions of either a bystander or a direct victim, a claim for negligent infliction of emotional distress cannot stand.
When a person brings a claim as a bystander, to survive a motion to dismiss, the plaintiff must allege that (1) she was a bystander in the “zone of physical danger,” i.e., that she was in such close proximity to an accident which injured the direct victim that there was a high risk of injury to the plaintiff and (2) she suffered physical injury or illness as a result of the mental stress experienced due to the defendant’s negligence. Rickey v. Chicago Transit Authority, 98 Ill.2d 546 (1983).
If on the other hand, claims brought by direct victims were to survive a motion to dismiss, the plaintiff must allege facts showing that the defendant (1) owed the plaintiff a duty of care; (2) breached that duty; (3) caused an injury to the plaintiff which was proximately caused by the breach. Corgan, 143 Ill.2d at 306.
In this case, Schweihs admits she was not a bystander. Therefore, plaintiff’s claim can survive dismissal only if she has alleged facts showing that she was a direct victim of the defendant’s negligence. In order to do that, plaintiff must allege, at a minimum, that there was some physical contact between her and the defendants.
Because Schweihs’ amended complaint does not allege that the defendants made physical contact with her, she has failed to plead facts sufficient to establish that she was a direct victim and, because Schweihs failed to allege facts establishing that she was either a bystander or direct victim, her claim for negligent infliction of emotional distress necessarily fails.
In order to make her claim, the plaintiff argued that the Illinois Supreme Court in Corgan abandoned the impact rule for both bystander and direct victim plaintiffs alike. In fact, the court held precisely the opposite.
In Corgan, the defendant argued that the Supreme Court “abandoned the impact rule in Rickey and adopted the zone-of-physical-danger rule as the standard under which all plaintiffs can recover for negligent infliction of emotional distress.” The court flatly rejected that argument:
“Defendants’ contentions are, however, misplaced. Although use of the word ‘substitute’ implies replacement of the impact rule with the zone-of-physical-danger rule, a closer reading of Rickey reveals such a substitution was intended only in bystander cases.”
“Rickey, therefore, abandoned the impact rule as it applied to bystanders and adopted the zone-of-physical-danger rule as the standard rule under which they can recover damages for negligent infliction of emotional distress. Rickey did not, however, define the scope of negligent infliction of emotional distress as it applies to direct victims. The court in Rickey was solely concerned with defining the parameters of bystander recovery.”
The court in Rickey abrogated the impact rule only, with respect to bystander plaintiffs. It did not do so with respect to direct victims.
The appeals panel then examined the case of Pasquale v. Speed Products Engineering, 166 Ill.2d 337 (1995) in support of plaintiffs’ argument. The plaintiffs cited the Pasquale case because it argued that in that case, the court stated that Corgan “eliminated the contemporaneous injury or impact requirement for a direct victim’s recovery for emotional distress on a theory of negligence.” The appeals panel however found that the Pasquale case was isolated and had no controlling effect on this case. For one, Pasquale was a bystander case, not a direct victim case. Second, the quoted language is obiter dictum because it was not essential to the court’s decision and obiter dictum is not binding authority. Third, the court’s statement in Pasquale is so inconsistent with Corgan that it can be considered nothing less than an overruling of Corgan. Yet, the court’s discussion of Corgan did not include any reference to stare decisis or any other acknowledgment that the court was departing from settled precedent. Accordingly, in declining to find that Pasquale was controlling in this case, the Illinois Appellate Court affirmed the dismissal of Schweihs’ claim for negligent infliction of emotional distress.
The dissent in the case states that the zone-of-danger test, or the necessity of a physical impact, does not apply where the plaintiff is a direct victim as in this case. In Corgan, the plaintiff was a direct victim who filed an action for negligent infliction of emotional distress against her psychologist for allegedly engaging in sexual relations with her as part of or during her course of treatment.
The Illinois Supreme Court specifically found that Rickey did not “define the scope of negligent infliction of emotional distress as it applies to direct victims.” Id. at 304. It held that the Rickey zone-of-danger test “does not apply to the instant case, as the plaintiff was a direct victim and not a bystander.” Id. at 306.
The dissent went on to state that the Supreme Court found that it “had yet to determine the pleading requirements for a plaintiff who has directly suffered emotional distress due to” negligence. The court concluded that the relevant question in a direct victim case “is whether the plaintiff properly alleged negligence on the part of the defendant.” The concluding remarks of the dissent was that the majority was wrong in continuing to require physical impact in claims for negligent infliction of emotional distress where the plaintiff is a direct victim.
Schweihs v. Chase Home Finance, 2015 IL App (1st) 140683 (Sept. 30, 2015).
Kreisman Law Offices has been handling catastrophic injury cases, medical malpractice cases, birth trauma injury cases, nursing home abuse cases and truck accident cases for individuals and families who have been injured or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Willow Springs, Tinley Park, Streamwood, Skokie, South Barrington, Palatine, Hanover Park, Harvey, Harwood Heights, Hinsdale, Hillside, Hoffman Estates, Northbrook, Norridge, Oak Lawn, Olympia Fields, Franklin Park, Evergreen Park, Elk Grove Village, Elgin, Dixmoor, Steger, Crete, Matteson and Bedford Park, Ill.
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