*1 DOE, Doe, her JANE for Herself and as Next Friend of Minor Son, Daughter Doe, Plaintiffs-Appellants, her Minor v. CALU- John al., Defendants-Appellees. MET CITY et (1st Division) First District No. 1—90—1121 9, 1993. Opinion 23, 1992. Rehearing filed denied March November *2 MANNING, J., dissenting. Ward, Stein, Zimmerman, all of Chi- Nottage and &
Edward T. Clifford Ward, counsel), cago (Eunice appellants. for (Gregory Rogus McCambridge, Singer Mahoney, Chicago E. Segal, & City. Wojcecki, counsel), appellee City for of Calumet and Paul E. O’Connor, Haug, R. Chicago (Robert B. Baal and Keith Baal & Surufka, Horka, Beasley. counsel), Daniel and Kevin appellees for James Ancel, Glink, P.C., Ader, Chicago (David & Cope, Diamond Lincoln DiCianni, counsel), Engler Kliejunas, appellees Thomas G. and Teri for Village Gregory Giglio. of Burnham and
JUSTICE CAMPBELL of the court: opinion delivered Plaintiffs, Doe, of her and on behalf minor chil- individually, Doe, dren and John from the order of the circuit court appeal I dismissing of Cook count VIII of County through counts IV and complaint brought against their first amended defendants Calumet Horka, Surufka, and Beasley, James Daniel and Kevin Calumet City police officers; of Burnham Village Gregory Giglio, officer, Burnham injuries sustained Jane Doe and her mi- through nor children a home Counts during invasion. V VII relate to defendant remain only pending. appeal, plaintiffs Valentine and On contend that: trial (1) finding “special court erred no relation- ship” plaintiffs Betty existed between and John Doe defendant officers; (2) determining the trial court that plaintiffs erred not plead gender-based did claims adequately against discrimination defendants Officer Horka and City; (3) the trial court erred did determining adequately plead a cause of action for intentional infliction of emotional distress. For the fol- lowing reasons, judgment we affirm the trial court.
The forth following record sets the facts to relevant this appeal. complaint charged 20, 1987, Plaintiffs’ approxi- on December at a.m., mately 4:30 defendant Benjamin illegally Valentine entered the apartment Jane, Street, Doe at Betty and John 278 Yates Illinois. all City, Valentine entered the bedroom where three Does were sleeping, and climbed on of Jane Doe. He her cloth- top grabbed and feeling area, her ing began genital declaring breasts and he would her and to rape threatening kill her. Jane not to do begged Valentine with her children off anything present. got Valentine Jane and di- rected and John to leave the room. Valentine followed the chil- out dren while to kill the front threatening them. Jane ran to door of apartment. the caught Valentine followed Jane fell and and down the stairs. struck again Valentine Jane and threatened to kill her. grabbed Jane the not railing go. stair and would let Valentine turned around and the apartment, locking reentered the door behind him.
Jane Doe reenter by kicking pushing tried to the and apartment the door. As she was unable to awaken in her Jane anyone building, time, left the At she building screaming help. for was clothed only underwear and had no or socks on her feet. shoes Several to the Doe ran and called 911. Jane heard Jane Doe’s cries neighbors the buzzers. pushed apartment next door and all building po- call, municipalities dispatched several to the 911 response Village Giglio, Defendant City. in Calumet officers to the scene lice Horka of officer, defendant shortly arrived before of Burnham 4:39 approximately Horka arrived at department. the Calumet charge role, that he was supervisory stating a.m. and assumed all scene, building per- and maintaining control of the scene, the other officers area, instructions and orders to giving sons in the her and ordered Horka talked to Jane Doe Specifically, at the scene. building. out of the stay to if her and she keys apartment Doe she had to Jane
Horka asked hus- your Horka also asked Jane: is not. “Where that she did replied chil- “Why you your would leave guy?”; know band?”; “Do you there?”; “Why man and strange if there was a apartment dren in the direction of one key?” Upon without apartment your did leave you landlord, Holland, defendants, who lived in South or more of building. to the bring keys to Illinois, requested and telephoned officers, he de- to other spoke when Horka alleged that Plaintiffs woman,” “this girl and said “an hysterical Doe as Jane scribed al- out,” anymore.” not coherent and “she’s freaking rude, demeaning accusatory. Horka’s tone of voice was leges that buzzers rang several the front door Horka checked to the rear walked around Giglio Horka and response. received no but rear door. the windows and checking the building, allegedly the area. door to secure to back assigned Giglio stay Horka door, responded Horka but Doe Horka to break down begged Jane not want be he did down the door because that he would break Doe and her Horka damage. prevented responsible property the door otherwise down attempts from their break neighbors enter the apartment. with the situation and discussed Surufka arrived
Defendant Horka shined a premises. enter Horka, attempt did not but then arrived Beasley Defendant apartment. into spotlight at different officers Chicago police him and additional Horka stationed tapped and Surufka Beasley Defendants building. around the points building. to the rang on doorbells windows Sergeant Targonski. supervisor, radio with his spoke by Horka Horka to break directed conversation, Targonski Sergeant During this *4 not do so. Horka did door. apartment down Horka. One consulted with arrived and paramedics Several that a “lock other defendants Horka and told paramedics more of the pick,” locksmith and ladder were all to gain entry available into the Horka told the apartment. paramedics not to interfere and that Horka himself would make the decisions regarding situation. No effort was made to utilize the pick,” “lock locksmith or ladder. a.m.,
At approximately Investigator Miller of the City Calumet arrived, police department and spoke with Jane Doe. Miller went building around to the rear of the and entered the apartment through the rear building door of the and the back door of apartment, which were unlocked. Investigator both When Miller entered the apartment, he found raping Valentine Doe. During the time Val- entine was in the apartment, Valentine had threatened and choked John Doe.
Count I of plaintiffs’ amended complaint alleges that the defend- ants assumed a “special to relationship” Betty and John Doe when became they aware of the facts and circumstances surrounding Valen- tine’s intrusion and sexual assault of Jane Doe. allege Plaintiffs defendants had a to enter duty to prevent injury children, Jane Doe’s and that defendants willfully and wantonly breached this duty when did not enter the apartment. Counts II III, based on the same theory recovery, were brought on behalf of Jane Doe for loss of and for society medical expenses under the family act, expense respectively. Plaintiffs count ultimately withdrew II.
Count alleges IV that defendants Horka and Calumet en- City gaged in gender-based discrimination by defendant Horka’s conduct toward Jane Doe during incident and defendant Calumet City’s ratification of such conduct. VIII, count all plaintiffs seek for recovery intentional infliction
of emotional against distress defendants Horka and Calumet City on grounds that defendants’ conduct was extreme outrageous and caused Jane severe emotional distress.
Defendants filed section 2—615 (Ill. Rev. par. Stat. ch. 615) motions dismiss plaintiffs’ complaint grounds on the that: 2— (1) section 4—102 of the Local Governmental and Governmental Em ployees Tort Immunity (Ill. Act Stat. Rev. ch. par. 102) 4— provided immunity for the municipalities and the individual officers in the absence of a special duty plaintiffs, owed and that failed to allege special duty; (2) plaintiffs failed to state a cause of action against Horka and gender-based for City discrimina tion; and (3) plaintiffs failed to state a cause of action against Horka and Calumet intentional infliction of emotional distress. *5 motions, granted a on the the trial court
Following hearing timely ap- to with Plaintiffs’ prejudice. defendants’ motions dismiss peal followed. to sec pursuant this is an from a dismissal
Preliminarily,
appeal
615,
to
actions based on the
which allows a court
dismiss
tion 2—
on the plead
A
dismiss a cause
action
trial court should
pleadings.
proven
that no set of acts can be
apparent
if it is
ings only
clearly
(Burdinie Village
a
to recover.
v.
Glen
which will entitle
654,
501, 504,
657.)
ap
Ill.
565 N.E.2d
On
(1990),
dale
139
2d
Heights
of the
portions
facts in the attacked
well-pleaded
all
peal,
the allegations,
court must decide whether
are taken as true and this
are sufficient
plaintiff,
in
most favorable to
light
when viewed
Burdinie,
may
granted.
of action
which relief
be
upon
to state a cause
505,
Ill.
at
Plaintiffs through Doe when became aware Betty and John tionship” John locked in Jane Doe’s Doe that were Valentine, complaint alleges The potential rapist. an intruder and with to enter Jane Doe’s failed “willfully wantonly” that defendants Doe. Plaintiffs allowing rape Betty thereby Valentine apartment, “special duty” under the count I states a cause of action contend that are not liable for fail- municipalities to the rule that exception general police powers. ure to exercise dismiss, sup must assert facts a motion to
To overcome action; words, plain of the cause of other allegations porting of that duty, facts establish a breach allege duty, tiffs must which 168 Ill. 3d (Anthony City Chicago (1988), App. v. resulting injury. 733, 735-36, 22; (1980), App. v. Midlothian 90 Ill. 3d 523 N.E.2d Bell erred in 967, 969, 414 Plaintiffs contend the trial court N.E.2d III complaint. counts I of their dismissing through for failure held liable employees may A or its be municipality Ill. 2d at (Burdinie, or fire 139 general police protection. to supply 363, 361, 41 2d 243 N.E.2d 520; (1968), v. Town Cicero Ill. Huey 85, 102, 103.) This rule rests 214; 1987, pars. ch. Ill. Rev. Stat. 5— 5— the conclusion consideration and “embodies upon public policy a blunders, omis oversights, negligence police department’s —its oth by of harms committed legal not the or cause proximate sions—is 113 Ill. 3d Authority (1983), App. Transit (Marvin Chicago ers.” v. 88 Ill. 172, 176, 1183; (1980), Porter v. Urbana 446 N.E.2d however, ex 443, public employee, 3d 410 N.E.2d Where App. el individual, the individual’s status is an custody ercises care or over “special general public, that of a member of beyond evated is employee injury is activated and the liable duty” exception Burdinie, 508; Ill. 2d at negligence. caused his proximately 363; Anthony, Fessler 736; Huey, 41 Ill. 2d v. App. at 3d at Ill. 295, Santy 290, 515; R.E.J. Inc. (1987), App. 161 Ill. 3d 514 N.E.2d Gardner v. 69; v. Bresee 658, 662, 129 Ill. 3d 473 N.E.2d (1984), App. Village Chicago Ridge 378-79, App. 373, 71 Ill. 2d part, part rev’d remanded 147, N.E.2d aff’d cert, denied 262 N.E.2d 403 U.S. 29 L. Ed. 2d Ct. 91 S. 2230. “special of the general requirements duty” exception,
whereby individual, owe a as special duty to an contrasted the public large, are as (1) follows: must be uniquely particular aware risk to danger or exposed; allegations (2) there must be specific acts omissions on (3) acts municipality; specific or omissions must be *6 nature; either affirmative or in (4) willful and the must injury occur while the is under the direct plaintiff and control of em immediate Burdinie, ployees or of the agents municipality. 508; 139 Ill. 2d at Anthony, 737; Bell, 970; 168 Ill. 3d Marvin, App. at 90 Ill. 3d App. at v. Curtis Cook 176; Ill. County App. 3d 109 Ill. App. 400, 407, 3d N.E.2d 942. The cases relied on by plaintiffs are factually distinguishable from the present and case therefore first unpersuasive. rely Plaintiffs on Chicago Gardner, Gardner v. Ridge. In police apprehended suspects who had attacked the plaintiff and requested plaintiff the assist in the identifying suspects. plaintiff The accompanied officers police to where the suspects being held, plaintiff were whereupon was again the presence beaten the court police officers. The reversed the plaintiff’s dismissal of the plaintiff because had been Gardner, “called into a position peril” by the 71 Ill. 3d police. App. at 380. in Brooks v. Lundeen
Similarly, 49 Ill. 3d App. N.E.2d set plaintiff approached police motorist a inup roadblock path the of a police high speed. car at a approaching very knew was Police to plaintiff road, giv directed on the side the without park ing so, him a for warning danger, reason him of and doing the and was hit killed motorist. The court found speeding special had relationship been created between the and held parties police an directing liable remain in area they knew was dangerous warning speed without him approaching, Brooks, ing car. 49 Ill. at 7. App. 3d Chicago, when Anthony City v. injured a civilian was Finally, him an elevator door firefighters opening directed to assist
city burning building, knowing in a escaping from which smoke was nor for such assist- equipped neither trained Anthony properly dangerous him condition. ance, failing to warn of the elevator’s that he acted un- alleged the plaintiff sufficiently The court held that fire because department immediate control of the der the direct and plain- affirmative for the position peril acts created a defendants’ tiff.
Plaintiffs if case is similar to these cases present contend that Plain- given interpretation. control” is a new “direct and immediate spe- element of the standard for the fourth argue proper tiffs “maintained or not the defendants test is whether relationship cial injury such that control of the entire situation and preserved for their However, authority fail to cite plaintiffs any could occur.” proposition. amended case, the trial court found that while the present no al- three made requirements, plaintiffs the first
complaint satisfies
John Doe were
to the conclusion that
which lead
legations
control of the
the direct and immediate
under
injured
they
while
were
allegation
officers. Plaintiffs’
village police
or Burnham
City
from
believed
prevented
were
neighbors
that “JANE
several
of the po-
of the orders and actions
children because
helping JANE’s
Doe and
state of mind of Jane
added) goes
to the
(emphasis
only
lice”
requirement.
not meet this latter
neighbors
and does
v.
Chi
Galuszynski
similar to
case is more
present
There,
failed
Plaintiffs complaint fails al Plaintiffs’ peril by police.” into a position the direct John Doe were under lege Betty facts which show oc injuries at the time their police control of the and immediate with Val apartment in Jane Doe’s curred. and John Doe were Betty did not officers police at the scene. police entine when the arrived oc or over what was control over Valentine have direct or immediate scene, nor at reached the they when in Jane Doe’s curring what incident, exactly nor were aware during time any not adequately Plaintiffs do the apartment. inside happening allege that the police through officers exacerbated the situation their awareness of the dangers of the situation. harm Any occurring and John Doe by police Valentine while the were outside the apartment determining their method of action cannot prox- have been caused imately police. Burdinie v. The dissent’s reliance Village Glendale upon
Heights The dissent misplaced. quotes court out of supreme context, thereby misinterpreting meaning opinion. court’s case, In that the court found no duty part on the of the defendant under the “special duty” exception injuries incurred aby jumped who into a at pool the direction of a village swimming instructor. The court found that the third and fourth re- quirements of the test had not been satisfied in that case. Addressing the fourth requirement of “direct and control,” immediate the court explained in full:
“The situations which have satisfied the fourth the test have all involved or fire protection. (See, e.g., Anthony, 737; Gardner, App. 168 Ill. 3d at 71 Ill. 379; 2d at App. Brooks, 49 Ill. App. 6-7.) Police and fire departments are paramilitary organizations. The very essence of their duties is be cloaked State authority, making refusal to an obey or der or suggestion a difficult proposition in the mind of a pri vate citizen. There is a tremendous qualitative difference be tween following a police officer’s command and following municipal recreational program instructor’s command. mind,
With this in we note that the appellate court has stated that the fourth test requirement is met where the public employee creates a position peril ultimately injurious to a plaintiff, as opposed to situations where a merely seeks protection from the public employee is not normally pro vided. (Anthony, 737; 168 Ill. 3d at [citation].) We inter App. pret this to mean that the control element arises when pub employee lic initiates the circumstances which create the dangerous Thus, situation. where a firefighter or officer initiates the dangerous situation without any suggestion from the plaintiff, it has been held that the plaintiff is under the control the police department. (Anthony, 168 Ill. App. fire 3d at 737; Brooks, 6-7; Gardner, 3d at App. 71 Ill. However, 2d at where the plaintiff initiates the contact with the municipal employee, it has been held that the plaintiff is not under the direct or immediate control the municipal ity. [Citations.]
Thus, it has
person
been held that a
is under the direct and
immediate control of a
if
a municipal employee
who is acting with official authority which
citizens
private
would reasonably believe
cannot refuse
(such
as a
officer’s
makes a
authority)
request of the private citizen and
the citizen complies with the
a
request.
private
Where
citizen
task,
asks the municipal employee to
a
perform
and the em
ployee
citizen,
the task
performs
injure
so as to
the citizen
cannot claim he was under the municipality’s direct or imme
(Burdinie,
diate control.” (Emphasis added.)
Plaintiffs’ further contention that the defendants’ conduct was willful in and wanton reliance on Barth v. Board Education (1986), 77, 3d App. There, 490 N.E.2d is misplaced. an 11-year- old a in injury received head the school yard was taken office, to the principal’s where school officials called the plaintiff’s mother. The plaintiff’s mother directed the school officials to take the injured child to the The school hospital. officials called but made no effort to take the hospital, was directly across the street from the school. Plaintiff was not transported to the hour, result, hospital for another and as a suffered irreparable brain damage. In determining city’s liability for the 911 dispatcher’s negligence, the court found the Tort Immunity Act and the four-part “special relationship” test to the inapplicable city’s emergency system court, because it is not a police protection service. The in stead, found the city liable under the standard of “willful and wanton in (Ill. misconduct” section 15.1 of the 911 act Rev. Stat. ch. 134, par. 45.1). (Barth, 141 Ill. The 911 act is not present relevant to the case.
Next, plaintiff Jane Doe contends on her own behalf that Horka engaged department-supported gender-based discrimination through his of her questioning at the scene. Jane Doe argues Horka treated her than he differently would have treated male the same questions situation that the he asked her is (“Where your husband?”; you “Do know the would leave chil- guy?”; “Why you your dren in there?”; if there was a man strange “Why you did leave without the your apartment key?”), and the comments woman,” he (he made described Jane Doe as “an and said hysterical out,” girl freaking “this and “she’s not coherent were anymore”) rooted in Doe claims a vio- gender-based stereotypes of females. Jane rights lation of her fourteenth amendment under equal protection (1988). equal pro- U.S.C. trial court dismissed Jane Doe’s §1983 gender-based tection for failure to show discrimination or to claim of a department policy the existence discrimination. plead an action under section a plaintiff To sustain must al right (2) constitutional the constitu lege (1) deprivation *9 by government caused a official acting tional was in ac deprivation (City Oklahoma City v. municipal policy a custom. cordance with 808, Tuttle 791, 2427; 85 L. Ed. 2d Monell 471 U.S. S. Ct. v. Services Department Social 658, 436 U.S. 56 L. Ed. 2d v. City Chicago (N.D. Jackson 611, 2018; 1986), 98 S. Ct. Ill. 645 F. one Supp. 926.) Alleging specific incident of constitutional deprivation and that generally alleging deprivation resulted from a custom or does not constitute policy adequate pleadings; plaintiff a allege must a or series of specific pattern incidents that support general allega 645 F. (Jackson, Supp. tions. Because is an this equal protec tion general claim and there is no right constitutional to police protec v. (Hawk Perillo tion Lowers (N.D. 1985), 380, 384; Ill. 642 F. Supp. v. City Streator (N.D. 244, Ill. 1985), 246), 627 F. Supp. plain tiff must demonstrate that she differently was treated because of her (Watson v. City in a certain City (10th Kansas membership class. Cir. 1988), 690, 857 F.2d An need equal protection plaintiff prove a class; discriminatory policy against an entire discrimination against the because her in the membership class is it self enough. Bohen v. City Chicago (7th East 1986), Cir. 799 F.2d 1180, 1187.
Jane Doe relies on a number of cases to support the contention that defendants against discriminated her. Each case is distinguish- able on the facts. In reliance on Price Hopkins Waterhouse v. 228, U.S. 104 L. Ed. 109 S. Ct. Jane Doe first con- tends that the questions comments at issue are the product of sex There, stereotyping. proved gender-based comments in her file employment that she should take “a course in charm school,” should not use foul language because a lady,” “[she’s] that she should “walk more femininely, talk more dress femininely, more wear femininely, make-up, have her hair wear styled, jew- elry,” contributed her denial of partnership. finding that defendant in engaged sex stereotyping, the court held:
“Remarks at work that are based on sex do not stereotypes inevitably prove that in gender played part particular a em- ployment decision. The plaintiff must show that the employer relied on her
actually
gender
making its decision. In making
this showing, stereotyped remarks
can certainly be evidence
***
that gender
part.
played
Hopkins proved that Price Wa-
comments;
terhouse invited
partners
submit
that some of the
comments
stemmed from sex stereotypes;
that an important
Board’s
Policy
decision of Hopkins
an assess-
comments;
ment of
submitted
and that Price
Waterhouse
no
disclaimed reliance on the
way
sex-linked evaluations.”
Waterhouse,
Price
In the Jane Doe present asserts if Horka acted women, on preconceived based beliefs about then sex stereotyping oc curred, are questions sufficient evidence to show sex However, Jane Doe has not stereotyping. alleged facts supporting her questions contention that defendant Horka’s and comments were women, on preconceived based beliefs about and that defendants in no way sex-linked, disclaimed that these comments were as did the plain tiff, in the Hopkins, alleged above case. Doe has no facts show that Horka ing pattern asking had a these specific questions of women nor that he would not have the same put questions to a man e.g., stated, the same as the trial predicament, court “Where’s your wife?” Do you guy?” “Why you know would leave children?” your The trial court held it was more that defendant likely ques Horka’s *10 tions were an to determine if he attempt had a domestic situation and how he should proceed. agree. We Horka’s comments that Jane Doe was and that she not coherent fail “hysterical” similarly was to indi cate pattern gender-based a discrimination. City City reliance Watson v. Kansas Jane Doe’s further on Watson, City
Lowers v.
Streator
In
the
misplaced.
plaintiff
claimed that an unwritten
or custom of the Kansas
policy
City police
department
respond
allowed officers to
to victims of do-
differently
mestic violence.
In
offered
support, plaintiff
showing
evidence
out of 608 nondomestic assault cases where there
a
perpe-
was
known
trator,
there were 186 arrests for an
rate of 31%.
of 369
arrest
Out
assaults,
16%. Wat-
domestic
there were
for a rate of
only
arrests
son,
In plaintiff reported the was the incident raped the The police. plaintiff rapist police photographs identified the from the police investigated and defendant officers scene of the crime. One officer would re- police plaintiff rapist defendant warned Thereafter, turn and the crime. defendants took no action to repeat incident, and the apprehend rapist, make a record of the nor to arrested was rapist the same man. raped again by plaintiff 245.) The 627 F. at (Lowers, Supp. rapes. to both pled guilty the police plaintiff relationship a between special court found pro for denial of a cause of action stated officers and that suffi plaintiff’s held that The court tective services. because equal protection of action for denial of a cause ciently alleged over a six-month activity of a pattern evidence plaintiff submitted of the defend indifference on the a deliberate indicating period women. against of violent crimes prosecution city ant toward 246-47. Lowers, F. at Supp. Al- nor Lowers Jane Doe’s contention. supports Watson
Neither of discrimi- policy that she need show argues Doe though Jane alleged cases statistical evidence nation, of the above both that the defend- showing police department pattern activity or a to female victims of cer- respond differently ants allowed officers to Further, special relationship the Lowers court found be- tain crimes. officers which is not present and defendant tween here. alternative, municipal policy, in the that if a argues,
Jane Doe shown, the and customs of practice practices or custom must be a claim of dis City department support gender-based may Jane Doe contends that a be liable crimination. when more than one incident of evidences the existence discrimination at 85 L. Ed. 2d policy, practice (Tuttle, of a or custom. 471 U.S. 802-03, Doe evi support, 105 S. Ct. at Jane submitted searching City police department policy strip dence of a Calumet District female arrestees held unconstitutional the United States Illinois. See Doe v. Calumet Court for the Northern District of 3594, Memorandum (N.D. 1990), Opinion Ill. December No. 87— and Order.1
However, Doe seeks to argue policy rely defendants that the alleged: “At deprivation is far from the constitutional upon removed the policy there must an affirmative link between least be very L. 471 U.S. at alleged.” (Tuttle, and the violation particular A related to the department policy Ed. 2d at 105 S. Ct. at alleged depart- of female arrestees is unrelated to an strip searches at the asking discriminating ment of women practice questions link scene of a home invasion. Jane Doe has shown no between *11 present 1 Jane Doe in the Federal district case is not the same Jane Doe case.
924 policy and the alleged deprivation constitutional and has thus failed to substantiate a claim for gender-based against discrimination City.
Finally, all contend the trial court erred rejecting their claim of intentional infliction of emotional distress against defendants Calumet City and Horka. The trial court ruled plain- tiffs’ complaint failed to show intent to injure. Plaintiffs argue that the complaint all alleges requisite elements of the tort of intentional infliction of emotional distress.
To
plead a
sufficiently
cause of action for intentional
infliction
distress,
emotional
plaintiffs must allege facts which
(1)
establish
the conduct was extreme and outrageous;
(2)
conduct
resulted
severe
distress;
emotional
(3) the conduct was
or
intentional
in reck
disregard
less
of the consequences;
(4)
the conduct was the actual
and proximate cause of emotional distress. Public Finance Corp. v.
Davis 85,
66 Ill. 2d
McGrath v. Fahey 765;
360 N.E.2d
78,
126 Ill. 2d
The Illinois Supreme Court has determined that extreme and out rageous conduct is that goes beyond all bounds decency. (Public Finance, Ill. 2d at Whether certain conduct can be characterized as extreme and outrageous necessarily depends on the facts of each case. Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 392 N.E.2d 595.
Reckless disregard is conduct from which the actor knows severe
emotional distress is certain or substantially certain to result. Liability
extends to situations in which there is a high degree of probability
that severe emotional distress will follow and the
goes
actor
ahead in
(Public Finance,
conscious
disregard
it.
66 Ill. 2d at
It is not
enough that the plaintiff experience fright
actionable,
worry;
be
the distress must
of such intensity
be
and duration that no reasonable
person could
Finance,
Public
expected
be
to endure it.
that defendants’ conduct can judged be to be extreme outrageous is distinguishable on the (Morrison v. Sandell facts Ill. App. (stuffing N.E.2d 290 toilet paper and human waste in a file drawer held extreme and outrageous)), and therefore unper suasive.
Plaintiffs contend the intentional character of defendants’ conduct in not entering the apartment and in removing Doe from the area was an of position abuse and authority. Jane Doe al- leges that she her children suffer severe emotional distress as a *12 the conduct of defendants and that result of defendants’ conduct the or both. intentional, consequences, of disregard in reckless either There, the court held Fahey. cite McGrath v. In support, plaintiffs emo intentional infliction of alleged adequately that the had plaintiff defendants, a and its threatened president, bank tional distress where his signing the into over to coerce power to exercise their bank, something he would not do otherwise. to the mortgage second of position on the of defendants part coercion The court held such an intentional infliction intent requirement met the authority McGrath, 2d at claim. 126 Ill. 89-90. emotional distress the case, alleged not that In the have present some doing Jane Doe into authority used their to coerce position it likely not do. The trial court found thing she would otherwise from the reentering apartment officers Jane Doe restrained Further, Horka’s deci danger. her from further defendant protect judgment door was a call sion not to break down intent to inflict emotional distress under cannot be said to have shown plaintiffs’ complaint. the facts set forth in reasons, judgment
For aforementioned of the trial court affirmed.
Affirmed.
O’CONNOR, J., concurs. MANNING, dissenting:
JUSTICE I in this case. It is well majority must dissent from the decision a cause of action on the established that a trial court should dismiss of facts can if it is that no set be pleadings only clearly apparent (Burdinie Village v. entitle a to recover. proved which will Heights Glendale 654.) 139 Ill. 2d 565 N.E.2d When to a sec complaint pursuant as to all or of a challenge is raised in the dismiss, all facts well-pleaded tion 2—615 motion to strike or v. (Miner are to taken as true. complaint attacked be portion re The role of the Gillette Co. 87 Ill. 2d 428 N.E.2d the com viewing allegations court is to determine whether plaintiff, to the light when in the most favorable plaint, interpreted may relief be upon are sufficient to set forth a cause of action granted. (Zandrozny City Colleges v. set allegations to the
N.E.2d Thus our review here is limited in their that: complaint. pleaded forth in the Plaintiffs Defendant Horka arrived the scene and assumed a supervisory role;
Defendant Giglio Horka; arrived on the scene a short time before From the time thereafter, Horka he was arrived the officer charge, assumed supervisory gave responsibility, instructions scene, orders other officers and maintained control the build- all ing and in the persons area; he specifically, maintained control so that children; Jane she was restrained and unable to her aid Plaintiff Doe said, told Horka that the intruder “I’m going children,” kill your and that pleaded she with Horka to break in; door
Horka that he responded would break down door because he responsible would be held for the property damages; and he nothing further indicated there was he could do and would not break door; down plaintiff attempted
When to break door down the herself one *13 more of prevented the defendants restrained her from physically and going apartment; into the
At no time did Horka break down the to the nor apartment door he did or other officer or direct other any attempt officer to enter any manner; the apartment any other Horka,
Defendants Surufka and at all times mate- Beasley, Giglio knew, notice, rial to the all incident were on and were aware uniquely intruder, the of facts and circumstances the his as- surrounding sexual danger John, sault of threat and his plaintiff, Betty and to and John; in the and presence Betty with Defendant officers in the were direct and immediate control Street, of and Doe Betty John at 278 Yates on the City, morning 20,1987, a.m.; 4:30 5:30 December from a.m. until
Each
had a
if
duty
plaintiffs’ apartment, by
officer
to enter
force
children;
necessary, to
to
Jane Doe’s minor
prevent
injury
plaintiff
that none
action
any
defendant officers took
to enter
Doe were
to
premises
exposed
danger.
which
and John
or
While it
held
Illinois that a
its employ
has been
fire
ees
held liable for failure to
or
may
supply general
be
361, 363,
2d
243
(1968),
v. Town
41 Ill.
protection (Huey
Cicero
214),
exception
general immunity
an
to that
exists where
N.E.2d
an
custody
exercises care
over
individual.
public employee
733,
736,
168 Ill.
3d
(Anthony
Chicago (1988),
App.
v.
instances,
In those
the individual’s
is elevated be
N.E.2d
status
ex
“special
that of
yond
general public,
duty”
a member of
ception
injury proximately
and the
is
for
employee
activated
liable
Ill.
negligence.
caused
his
Fessler v. R.E.J. Inc.
290, 296,
Count II of the complaint alleged in tort defend- liability because ant had a “special relationship established of control and supervision over the plaintiff.” Count III of complaint alleged in tort liability operated because defendant the sports complex swimming pool as function. In proprietary arguing that the test for establishing spe- cial existed, relationship plaintiff first asserted that defendant was uniquely aware of the particular danger or risk to which exposed. Plaintiff argued that his complaint clearly alleged that he was a “beginner swimmer” and that defendant supplied a “qualified” swimming instructor who knew or should have known that directing a beginner jump into the shallow end of a swimming concrete pool could result in injuries.
As to specific acts or omissions by defendant which caused the in juries, plaintiff maintained that his averred he was told to jump into the pool by the swimming instructor. Plaintiff likened the affirmative command given by the swimming given instructor to that by the fireman in v. Anthony City Chicago App. 3d 523 N.E.2d where the court found by instructing a by stander to him accompany into a burning building fireman’s af firmative act created a position of peril bystander.
As to the test, third requires that the specific acts in question be nature, affirmative or willful in plaintiff again re- *14 lied on the fact the that swimming instructor commanded him to jump into pool. the
Plaintiff maintained that the test, fourth of the which re quires that the to injury plaintiff occur while is the plaintiff under di rect and defendant, immediate control of should be disregarded. Spe cifically, he asserted the that court should the adopt language of Brooks v. 1, Lundeen 49 Ill. 3d 364 N.E.2d App. which would find a special relationship based on traditional of concepts duty foreseeability negligence law. The court appellate refused to accept plaintiff’s argument and stated that the determination of
928 special whether a relationship existed must be analyzed accordance test in Bell v. Midlothian with the four-part Village 90 Ill. 3d 414 N.E.2d 104. reversing court, In the appellate supreme the court stated that had plaintiff probably pleaded enough to 2 and 3 of satisfy parts facts test, special complaint but that to relationship failed contain sufficient averments of facts under 1 4 of the parts test to state a cause of action. The complaint court reasoned that the was devoid allegations factual that any defendant was aware of any particular (Burdinie, or risk to danger plaintiff which was 139 Ill. 2d at exposed and that also 521), any failed to facts to a allege support claim that he was while direct injured under the and immediate con (Burdinie, trol defendant. 525.) However, Ill. 2d at the court that a person stated is under the direct and immediate control a municipal if a employee acting who with au official thority private citizens would believe cannot reasonably (such pri refuse as a officer’s makes a authority) request request. (Burdinie, citizen and the complies vate citizen with the 2d at Ill. court found that because was not forced to into the nor to jump pool, jump by ordered or instructed a person he could whom have believed he must failed reasonably obey, plaintiff to the fourth of the satisfy prong special relationship test. v. Town Huey Cicero
Similarly, in N.E.2d of a Supreme Illinois Court affirmed dismissal defendant, against plaintiff’s did complaint finding complaint forth a general not set basis for deviation from the immu statutory granted nity public by entities Local Governmental and Govern case, mental Tort Act. dece Employees Immunity plaintiff’s en to an fatally by dent beaten four white while route youths Cicero, complaint office in Illinois. Plaintiff’s averred employment dangers him a faced person town failed to black warn on time. The being particular appellate the streets of Cicero at a complaint allege court held that since the did not that defendants town, or presence had reason plaintiff’s knew decedent’s danger, that he from no relation required specific know protection to warn impose duty upon city could be found sufficient ship fur (Huey, danger. 41 Ill. 2d at The court plaintiff’s decedent of or specific held that lacked acts allegations ther con between such any defendant causal connection omissions Huey, 2d at and the decedent. Ill. injury plaintiff’s duct fatal 364. *15 Huey. from Bwrdinie
The instant case is distinguishable Here, I find the facts as sat- alleged plaintiffs’ complaint expressly isfy “unique supervision” awareness” and “control over the Bell test. First, sufficient averred that satisfy plaintiff told Horka that the intruder was inside the with her children and that had kill intruder threatened to them. Plain- tiff further advised Horka that the intruder had assaulted sexually her while she was inside the The apartment. complaint also stated knew, notice, defendant was on agents and that all the of defend- ant were uniquely aware of the facts and and the dan- circumstances ger Thus, and threat suggest John Doe. these pleadings that defendant was uniquely aware of the risk that particular plain- assaulted, tiffs faced of being sexually physically harmed or mur- dered.
Plaintiffs’ complaint further averred Horka refused to break door, down the apartment refused to allow plaintiff and others break the door down and told plaintiff there nothing he could do. Horka also refused to direct other officers to break down the door. The intruder remained inside the apartment and eventually injured I plaintiffs. find these pleadings sufficient to meet the second prong test, of the which requires that plaintiff allege acts or specific omissions by defendant which caused the injuries.
As to the test, third prong which requires that the specific acts in question willful, be affirmative or clearly pleadings estab- lished that Horka willfully refused to break down the apartment door and restrained plaintiff and others from entering the apartment. The pleadings state that Horka advised that he would not break down the door because he would be held responsible for the property damage, and that there was nothing he could do.
I would find that test, fourth prong which requires that the injury occur while plaintiff is under the direct and immediate con- trol defendant, is satisfied here. The pleadings state that defendant police officers were in the direct control of the residence at 278 Yates Street when the injury They occurred. further state that Horka was officer, supervising gave orders and maintained control of the scene, the building and all persons in the area. More significantly, Horka physically restrained plaintiff, other officers and paramedics from entering the apartment or breaking down door.
I believe that the language in Burdinie controlling here. Plain- tiff and her neighbors were ordered not to enter the apartment Horka. Certainly, they could reasonably believe that Horka had to restrain authority them from entering the apartment and that could not refuse that request. scene, Horka arrived at the assumed a role, supervisory and the other officers complied with his orders. Although the Burdinie court held that no special relationship ex- isted, the facts here are distinguishable from those in Burdinie. defendant in Burdinie swimming instructor, was a not a police officer. The facts in Burdinie do not indicate that the instructor had knowl- edge of a known danger that existed in the swimming pool, while the pleadings in this case state specifically that defendant knew *16 danger plaintiffs Further, faced. plaintiff Huey, unlike the in this case specifically alleged in the complaint defendant knew of the danger plaintiffs faced.
I would recognize, as the cannot, majority apparently that the of- ficers’ knowledge of plaintiffs’ predicament their expression of in- tent to help, coupled acts, with their affirmative amounted to direct control over plaintiffs. Restraining plaintiff Jane Doe and others from on acting their own behalf is an affirmative act I which believe consti- tuted direct physical Indeed, control. decision here majority re- City lieves the of Calumet City and its police officers of any obligation to do more than up show at the scene of scene, a crime. Once at the they are free to by stand incurring observe without liability for action, their spectators likened to at a wrestling match. This is true even if the officers have special knowledge that harm will be done to a victim who cries out for help.
I find there are sufficient allegations in the complaint establish that the “instructed,” “directed” or otherwise exercised direct and immediate control plaintiffs. over I would allow to show that respondent’s failure to help during arose, this crisis out of the sound exercise of professional judgment, but from arbitrari- ness and capriciousness that cannot be condoned this State. My disagreement with the majority arises from its failure to recognize, as the statute requires, that a motion to dismiss be viewed in the light most favorable to plaintiff. plaintiffs’ When viewed light, it is clear that plaintiffs have facts pleaded and circum- establishing stances of Calumet City’s actions in this case created a special relationship.
Therefore, I respectfully dissent.