The Illinois Appellate Court for the Second District has reversed a Lake County, Ill., dismissal of a personal-injury and wrongful-death claim against Rene Melbourn who was dismissed on motion under the Illinois Code of Civil Procedures, Section 2-615, for failure to state a cause of action. The plaintiffs appealed the dismissal with prejudice of their second amendment complaint against Melbourn. The trial judge had found that the plaintiffs failed to state a claim for wrongful-death based on an “in-concert” theory of liability and the negligent infliction of emotional distress. Melbourn was the only defendant involved in the appeal.
The facts of the case were that on Dec. 13, 2013, the Borcia family, including Antonio Borcia, was out boating and tubing on Lake County’s Chain of Lakes. The defendant, Melbourn, was sued along with David Hatyina, Spring Lake Marina Ltd. and Fox Waterway Agency over the death of Antonio. In this boating accident, which killed Antonio, it was alleged that Melbourn was liable for in-concert liability for the wrongful death as well as negligent infliction of emotional distress for a bystander who witnessed the collision.
The incident involved Hatyina’s 29-foot cigarette boat, named “Purple Haze,” which struck and killed Antonio on Petite Lake, in Lake Villa, Ill. Melbourn was a passenger on the boat; it was alleged she contributed to Hatyina’s consumption of alcohol and cocaine. Hatyina was impaired as he operated the boat at speeds in excess of 40 mph. Hatyina struck Antonio with the boat. Antonio suffered severe injuries that resulted in his death on July 28, 2012.
In plaintiffs’ complaint, they alleged that Melbourn provided Hatyina with both alcohol and cocaine in amounts that had him obviously impaired, encouraged Hatyina to drive the boat at speeds in excess of 40 mph and in an otherwise reckless and dangerous manner while on the lake near other boaters, swimmers, and people being pulled on tubes, such as Antonio.
In Count VI of the complaint, the plaintiffs alleged that Melbourn breached her duty and was negligent in the following respects:
“Violated section 5/16(E) [of the Boat Registration and Safety Act (625 ILCS 45/5-16(E) (West 2012))] in that she verbally encouraged the unsafe operation of the boat at speeds in excess of 40 mph by Hatyina while he was under the influence of alcohol, cocaine, and a combination; and,
“Acted in concert with * * * Hatyina in that she actively participated in his consumption in alcohol and cocaine, which caused him to become intoxicated while operating the aforementioned watercraft while impaired so as to compromise the safety of others on the Chain of Lakes.”
There was also a count that Antonio’s sister and brother were in close proximity. Erin was less than 50 feet from the collision and in direct path of the boat. She feared that she would be hit and was in the zone of danger of an unreasonable risk of causing bodily harm or emotional trauma. As a result, it was claimed that Erin suffered physical injury and emotional distress, which resulted in the need for continued medical treatments and psychological counseling.
Melbourn filed a motion to dismiss Counts VI and VII pursuant to Section 2-615, 735 ILCS 5/2-615. The trial judge granted the motion.
On Jan. 29, 2014, the plaintiff filed a second amended complaint and again attempted to assert a claim for wrongful death pursuant to section 876 of the Restatement (Second) of Torts, §876, 1979. In the second amended complaint, the plaintiffs alleged in Count VII their renewed claim for negligent infliction for emotional distress based on Erin’s presence in the zone of physical danger. Again, the motion brought by Melbourn to dismiss against those amended counts were granted and this appeal ensued brought by plaintiffs.
The Illinois Appellate Court for the Second District acknowledged that Illinois is a fact-pleading state. Time Savers Inc. v. LaSalle Bank, N.A., 371 Ill. App. (3d) 759, 767 (2007).
The appellate court then took up the analysis of the plaintiffs’ complaint which sought relief based on an in-concert theory of liability. Section 876 of the Restatement (Second) of Torts provides the basis upon which a party, who is injured from the tortious conduct of a second party, may seek relief in the event that a duty from a third-party is found to exist. The court referred to the case of Simmons v. Homatas, 236 Ill.2d 459 (2010).
It appears that Section 876 is applicable when “harm result[s] * * * from the tortious conduct of another.” In this case, the plaintiffs alleged that the trial court erred when it dismissed Count VI after finding that they had not alleged sufficient facts to trigger liability under §876 of the Restatement (Second) of Torts. The plaintiffs’ complaint alleged that Melbourn assisted and encouraged Hatyina in operating his boat while intoxicated.
This court concluded that plaintiff had in fact sufficiently pleaded a cause of action for in-concert liability under §876 of the Restatement (Second) of Torts. The appellate court relied on the Simmons decision which stated that “[a]lthough one does not have a duty to prevent criminal acts of a third-party, one does have a duty to refrain from assisting and encouraging such tortious conduct.” Id. at 476. As to the pleadings themselves, the plaintiffs were not required to plead facts other than what might trigger liability. This appeals panel agreed that the plaintiffs had accomplished that.
The degree of specificity required to sufficiently plead a cause of action in any case is difficult to determine and is dependent on the individual circumstances of each case. See Simmons, 236 Ill.2d at 475-78.
In this case, the court referring back to the facts noted that there were two individuals in the boat that killed Antonio Borcia: Melbourn and Hatyina, and no other known sensory witnesses during the relevant time period.
As to the Count VII, the appeals panel again agreed that the trial court erred when it granted Melbourn’s motion to dismiss the claim that Erin suffered by the negligent infliction of emotional distress. Negligent infliction of emotional distress is a recognized cause of action in Illinois. See Seitz v. Vogler, 289 Ill. App. (3d) 1029 (1997).
To state a cause of action for negligent infliction of emotional distress, a plaintiff must 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. To be in that “zone of physical danger”, the plaintiff must have been “in such proximity to the accident in which the direct victim was physically injured but there was a high risk to him of physical impact.” Rickey v. Chicago Transit Authority, 98 Ill.2d 546, 555 (1983).
In this case, the pleadings alleged that Erin was a bystander to, not a direct victim of Melbourn’s alleged negligence. The plaintiffs’ complaint alleged that Melbourn’s conduct of encouraging Hatyina to run the boat at high speed while in a severely intoxicated state caused Erin to be in the zone of physical danger during the accident wherein she reasonably feared for her own safety, given the proximity to her brother on the lake and right after witnessing Hatyina strike and kill her brother.
For these reasons, the court concluded that plaintiffs had sufficiently pleaded facts that Melbourn should remain in the case as in in-concert participant in the wrongful death as well as a cause of emotional distress caused to Erin. The decision of the Lake County, Illinois Circuit Court judge dismissing those counts was reversed and remanded for further disposition.
Margaret Borcia, Special Administrator of the Estate of Antonio Borcia, deceased, et al. v. David Hatyina, Rene Melbourn, et al., No. 2015 IL App (2d) 140559 (April 14, 2015).
Kreisman Law Offices has been handling boat accident cases, wrongful death cases, product liability cases, nursing home abuse cases and automobile accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Crete, Crestwood, Deerfield, Tinley Park, Palos Park, Evanston, Rosemont, Riverside, Schaumburg, Schiller Park, Orland Park, Chicago (Edgewater, Chinatown, Avondale, Archer Heights, Little Italy, Oz Park, North Park, Sheffield, Wrigleyville, Kenwood), Alsip, Worth, Chicago Ridge and Blue Island, Ill.
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