2016 IL App (1st) 160844
Ill. App. Ct.2017Background
- Plaintiff Alana Pilotto (suffering from Crohn’s disease) alleged that on March 30, 2014 she was denied use of Anthropologie’s employee restroom despite showing a Restroom Access card and needing immediate access; while seeking another store's restroom she uncontrollably defecated in public and suffered extreme emotional distress.
- Pilotto sued Anthropologie under the Restroom Access Act ("Ally’s Law") and for emotional-distress torts; Walgreens (co-defendant) settled and was dismissed.
- The Act requires certain retail establishments to permit customers with eligible medical conditions to use employee restrooms and classifies violations as a petty offense (fine up to $100); it also contains a limited liability/immunity provision for complying retailers.
- The trial court granted Anthropologie’s motion to dismiss under section 2-615, concluding the Act does not create a private civil cause of action; dismissal was with prejudice on the amended complaint.
- The appellate court considered (1) whether Pilotto’s amended complaint pleaded viable common-law claims (intentional or negligent infliction of emotional distress) and (2) whether a private right of action may be implied from the Restroom Access Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the amended complaint pleads a viable common-law claim (intentional or negligent infliction of emotional distress) | Pilotto alleged facts showing extreme/outrageous conduct, knowledge of her vulnerability, causation (public defecation), and severe emotional distress; statute-defendant duty supports negligence claim | Anthropologie focused on absence of statutory private remedy and urged dismissal | The court held Pilotto sufficiently alleged both intentional and negligent infliction of emotional distress to survive a 2-615 dismissal |
| Whether a private right of action can be implied from the Restroom Access Act | An implied private right is proper: Pilotto is in the protected class, suffered the harm the statute targets, implication is consistent with the statute’s purpose, and the $100 petty-fine remedy is inadequate | The Act’s text limits remedies to a petty offense; no express private remedy exists so implication is improper | The court held an implied private right of action is appropriate under the four-factor Fisher test and that the statute’s $100 petty-offense remedy is inadequate to provide meaningful relief |
Key Cases Cited
- Fisher v. Lexington Health Care, 188 Ill. 2d 455 (1999) (sets forth four-factor test for implying private cause of action)
- Cowper v. Nyberg, 2015 Ill. 117811 (Ill. 2015) (distinguishes statutory-origin claims from common-law claims when implying remedies)
- Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1 (1992) (elements for intentional infliction of emotional distress)
- McGrath v. Fahey, 126 Ill. 2d 78 (1988) (awareness of plaintiff's particular susceptibility is relevant to outrageousness)
- Corgan v. Muehling, 143 Ill. 2d 296 (1991) (implied private right appropriate where statutory remedies are inadequate to make plaintiff whole)
- Abbasi v. Paraskevoulakos, 187 Ill. 2d 386 (1999) (private right implied only where statute would be ineffective without it)
- Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978) (implying private remedies where express penalties are insufficient to effectuate statute)
- King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264 (2003) (appellate recognition of implied private right under Elder Abuse Act)