Illinois Retains “Impact Rule” for Direct Victims Claiming Negligent Infliction Of Emotional Distress

February 2, 2017 / Writing and Speaking

The Illinois Supreme Court has recently confirmed that, despite some indications to the contrary in prior cases, the “impact rule” still applies to claims for negligent infliction of emotional distress in “direct victim” situations. Schweihs v. Chase Home Finance, LLC, 2016 IL 120041 (Dec. 15, 2016).

Facts

Plaintiff Schweihs sued Chase, outside companies, and two individual vendors who perform inspection and preservation services on foreclosed properties. Schweihs defaulted on the mortgage for her Northbrook home in 2007. Chase obtained a judgment of foreclosure in May of 2010. Schweihs retained the right to possession until the redemption period expired in August 2010. In June 2010 – prior to expiration of the redemption period- the individual defendants (Gonsalez and Centeno) went to plaintiff’s home after they were engaged to change the locks and turn off the utilities. They were instructed not to do any work if they found the home occupied. After initially knocking on the door and then spending more than 45 minutes trying to determine if anyone was home, and hearing from neighbors that the house was usually vacant, Gonsalez again knocked on the front door. Receiving no answer, Gonsalez and Centeno contacted management and were told to proceed, which they did, by removing the lock to the back door. Inside the house, they encountered Schweihs, who was 58 years old at the time and lived alone. Schweihs testified she had heard the initial knocking but decided not to answer the door. She ordered the men to leave and stated she was calling her lawyer. Plaintiff further testified that one of the two workmen spoke to her “in a forceful way” about securing and winterizing the house and needing to speak with her outside the home. Gonsalez and Centeno then went outside, around to the front of the house, and knocked again. Schweihs did not answer, and the men waited for the police, who did not speak to the plaintiff, but to Gonsalez, Centeno and a neighbor. The police made no arrests.

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.

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 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.

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 the Illinois Supreme 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. 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.” 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.

The Illinois Supreme Court granted plaintiff’s petition for leave to appeal.

Analysis

The Illinois Supreme Court focused on clarifying the law concerning the impact rule in actions for negligent infliction of emotional distress. After thoroughly analyzing Rickey, Corgan and Pasquale, the Court concluded that this precedent had not eliminated the impact rule for plaintiffs claiming to be the direct victim of negligent infliction of emotional distress. While acknowledging that Pasquale and Corgan contained language indicating that the impact rule had been abrogated, the Supreme Court agreed with the appellate court that those statements were non-precedential obiter dictum. As Schweihs’ complaint lacked any allegation of a physical impact during her encounter with Gonsalez and Centeno, the Supreme Court affirmed dismissal of her negligent infliction of emotional distress claim.

The Supreme Court also affirmed the entry of summary judgment for the defendants on plaintiff’s intentional infliction of emotional distress claim. After reviewing the facts of record concerning plaintiff’s encounter with the individual defendants, the Court found that plaintiff had not been subjected to extreme and outrageous mistreatment. The Court concluded that the defendants’ efforts to preserve the property, pursuant to the bank’s contractual right, did not constitute atrocious conduct “utterly intolerable in a civilized community.”

In a special concurrence, Justice Rita Garman noted that the basis for the Court’s holding in Corgan was rejected, at least in part, by its decision in Clark v. Children’s Memorial Hospital, 2011 IL 108656, and to make a clear distinction between a claim of negligent infliction of emotional distress (“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. Justice Garman wrote: “[i]n 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.”

Learning Point: The “impact rule” is alive and well in Illinois. A plaintiff asserting a claim for negligent infliction of emotional distress as a “direct victim” must plead and prove contemporaneous physical impact or injury directly resulting from the defendant’s conduct in order to maintain and prevail on such a claim.

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