ALANA PILOTTO, Plaintiff-Appellant, v. URBAN OUTFITTERS WEST, L.L.C., d/b/a ANTHROPOLOGIE, Defendant-Appellee.
No. 1-16-0844
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
Modified opinion filed February 3, 2017
2017 IL App (1st) 160844
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.
Fifth Division. Appeal from the Circuit Court of Cook County. No. 15 L 006611. The Honorable William Gomolinski, Judge Presiding.
¶ 1 Plaintiff, Alana Pilotto, brought this civil action against defendant, Anthropologie, a retail store, alleging that she was harmed as a result of defendant‘s violation of the
¶ 2 ¶ 3 On June 29, 2015, plaintiff filed a two-count complaint against retail stores Walgreens and Anthropologie,1 alleging that, on separate occasions, she was denied access to an employee restroom despite being entitled to such access under the Act.2 On September 14, 2015, defendant Anthropologie filed a motion to dismiss count II of the complaint pursuant to
¶ 4 On November 25, 2015, plaintiff filed an amended complaint against defendant, alleging the same material facts as the previous complaint, but adding that
¶ 5 According to the amended complaint, plaintiff lawfully entered defendant‘s retail store located in Oak Brook, Illinois, on March 30, 2014. Plaintiff, who suffers from Crohn‘s Disease, requested to use the employee restroom,3 and was denied access by an employee,
¶ 6 On January 13, 2016, defendant filed a motion to dismiss plaintiff‘s amended complaint pursuant to
¶ 7 ¶ 8 On appeal, plaintiff claims that the trial court erred in granting defendant‘s motion to dismiss pursuant to
¶ 10 The Restroom Access Act mandates that a retail establishment shall allow a customer to use the employee toilet facilities during normal business hours under certain circumstances.
“A retail establishment that has a toilet facility for its employees shall allow a customer to use that facility during normal business hours if the toilet facility is reasonably safe and all of the following conditions are met:
(1) The customer requesting the use of the employee toilet facility suffers from an eligible medical condition or utilizes an ostomy device.
(2) Three or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility.
(3) The retail establishment does not normally make a restroom available to the public.
(4) The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment.
(5) A public restroom is not immediately accessible to the customer.”
410 ILCS 39/10 (West 2014).
On appeal, defendant does not argue that the requirements of the statute were not satisfied at the time that plaintiff requested to use defendant‘s employee restroom in the instant case.6
“(a) A retail establishment or an employee of a retail establishment is not civilly liable for any act or omission in allowing a customer that has an eligible medical condition to use an employee toilet facility that is not a public restroom if the act or omission meets all of the following:
(1) It is not willful or grossly negligent.
(2) It occurs in an area of the retail establishment that is not accessible to the public.
(3) It results in an injury to or death of the customer or any individual other than an employee accompanying the customer.”
410 ILCS 39/15(a) (West 2014).
¶ 12 Additionally, section 20 is entitled “Violation” and provides, in full:
“A retail establishment or an employee of a retail establishment that violates Section 10 is guilty of a petty offense. The penalty is a fine of not more than $100.”
410 ILCS 39/20 (West 2014).
¶ 13 The Act is otherwise known as “Ally‘s Law,” a tribute to the young girl who inspired the bill. Representative Kathleen Ryg introduced this bill as a response to the needs of thousands of state citizens suffering from Crohn‘s Disease and other irritable bowel conditions. 94th Ill. Gen. Assem., House Proceedings, Apr. 14, 2005, at 195 (statements of Representative Ryg). Her aim for the bill was to enable citizens suffering from irritable bowel conditions to have access to a restroom when they need it. 94th Ill. Gen. Assem., House Proceedings, Apr. 14, 2005, at 196 (statements of Representative Ryg). After passage by the House and Senate, the
II. Common-Law Claim
¶ 15 In the case at bar, the parties argue about whether a private right of action is implied through the Act. However, before considering this argument, we must first consider the theory under which plaintiff is proceeding in her amended complaint. While defendant in its motion to dismiss, and the court in granting the motion, focused on the issue of whether the Act provides for a private cause of action, the language of the amended complaint indicates that the basis for plaintiff‘s complaint was a common-law cause of action.7 Our supreme court has noted that it can be error to simply focus on whether the statute implies a private right of action, because “[t]he four-part Noyola test is the analysis that this court uses when the plaintiff alleges a cause of action that originates in a statute, but the statute does not set forth an express right of action. [Citation.] It has no application when the plaintiff is proceeding on a common law theory.” Cowper v. Nyberg, 2015 IL 117811, ¶ 20. In the case at bar, plaintiff‘s complaint was grounded in the common law, making the analysis of whether there was an implied private right of action unnecessary or, at the very least, premature. See Cowper, 2015 IL 117811, ¶ 20 (“Here, plaintiff was proceeding on a common law negligence theory, under a long-established rule that public officials may be held liable for breaches of ministerial duties. Plaintiff‘s cause of action did not originate in the statute; the statute merely set forth the particular ministerial duty that was alleged to have been breached.“).
¶ 17 First, to state a cause of action for intentional infliction of emotional distress, “[t]he plaintiff must plead facts which indicate: (1) that the defendant‘s conduct was extreme and outrageous; (2) that the defendant knew that there was a high probability that his conduct would cause severe emotional distress; and (3) that the conduct in fact caused severe emotional distress.” Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 20 (1992). In considering whether conduct as pleaded could be considered extreme and outrageous, “of serious consideration is a defendant‘s awareness that the plaintiff is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. Behavior which (though rude, abrasive or extremely inconsiderate) may not otherwise be actionable may be deemed outrageous if the defendant knows that the plaintiff is peculiarly susceptible to emotional distress.” McGrath v. Fahey, 126 Ill. 2d 78, 89-90 (1988). In the case at bar, plaintiff‘s complaint alleges that “[k]nowing that plaintiff had a problem with bowel control and seeing her Medical Alert Restroom Access Required Card, defendant still denied her
¶ 18 With respect to negligent infliction of emotional distress, “[a] plaintiff claiming to be a direct victim of negligently inflicted emotional distress must establish the traditional elements of negligence: duty, breach, causation and injury.” Cooney v. Chicago Public Schools, 407 Ill. App. 3d 358, 363 (2010) (citing Corgan v. Muehling, 143 Ill. 2d 296, 306 (1991)). “Duty is defined as ‘a legal obligation to conform one‘s conduct to a certain standard for the benefit or protection of another.‘” Kotarba v. Jamrozik, 283 Ill. App. 3d 595, 597 (1996) (quoting Rabel v. Illinois Wesleyan University, 161 Ill. App. 3d 348, 356 (1987)). “A tort duty can derive either from the common law or from statute.” People ex rel. Department of Labor v. Valdivia, 2011 IL App (2d) 100998, ¶ 12 (citing Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App. 3d 444, 452 (1991)). “A statute may create a duty expressly, or it may do so impliedly where it is ‘designed to protect human life or property.‘” Rommell v. Illinois State Toll Highway Authority, 405 Ill. App. 3d 1124, 1128 (2010) (quoting Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434 (1991)).
¶ 19 In the case at bar, the Act expressly imposes a duty on retail establishments that have employee toilet facilities to permit customers to use those employee facilities in certain circumstances, as we have detailed above. See
¶ 20 In the instant case, plaintiff has set forth all of the necessary elements for a negligence action in her amended complaint. First, plaintiff‘s complaint alleges that defendant is a retail establishment subject to the Act and that she was entitled to use the employee restroom pursuant to the statute. Accordingly, plaintiff alleged that defendant owed her a duty under the Act. Plaintiff also alleged that defendant breached that duty by refusing to permit her
III. Implied Private Right of Action
¶ 22 Furthermore, even if there was no applicable common-law cause of action, we agree with plaintiff that a private right of action can be implied from the statute. A court may determine that a private right of action is implied in a statute that lacks explicit language regarding whether a private right of action shall be allowed. Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 460 (1999). In order to find an implied private right of action, a court must find that (1) the plaintiff is a member of the class for whose benefit the statute was enacted, (2) the plaintiff‘s injury is one the statute was designed to prevent, (3) a private right of action is consistent with the underlying purpose of the statute, and (4) implying a private right of action is necessary to provide an adequate remedy for violations of the statute. Fisher, 188 Ill. 2d at 460.
A. First and Second Elements
¶ 24 The first two elements, that plaintiff is a member of the class for whose benefit the statute was enacted and the injury is one the statute was designed to prevent, are factually satisfied and uncontested by defendant. The Act was created for the benefit of a class of citizens who suffer from an eligible medical condition.
B. Third Element
¶ 26 Unlike the first and second elements, the parties dispute whether the third and fourth elements are satisfied. The third element is satisfied if it is determined that a private right of action is consistent with the underlying purpose of the statute. Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 460 (1999). We note that other courts do not necessarily discuss this factor in detail, instead discussing it together with the fourth element. However, in this case, we find a separate discussion helpful to our analysis of the issue.
¶ 27 In the case at bar, we find that implying a private right of action is consistent with the underlying purpose of the Act and also note that such a private right would not adversely affect any other provision within it. For instance, in Metzger v. DaRosa, 209 Ill. 2d 30, 39 (2004), our supreme court found that an implied private right of action for a government whistleblower reprimanded after reporting statutory violations was inconsistent with the Illinois Personnel Code (
¶ 28 By contrast, in King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 266-67 (2003), an implied private right of action under the Elder Abuse and Neglect Act (Elder Act) (
¶ 29 In the matter before us, as noted, the underlying purpose of the Act is to ensure that citizens suffering from irritable bowel conditions have immediate restroom access when they need it. 94th Ill. Gen. Assem., House Proceedings, Apr. 14, 2005, at 196 (statements of Representative Ryg). The only process expressly set forth in the Act to remedy violations of the Act is the imposition of a petty offense fine of not more than $100.
¶ 30 Plaintiff also argues that it would be inconsistent for the legislature to provide that a private right of civil action is available against retailers’ willful acts or omissions when complying with the Act, but not available in cases where retailers refuse to comply with the Act. For support, she emphasizes the liability provision in the Act, but mischaracterizes the language of the provision by asserting that it expressly provides a civil remedy to customers injured by retailers’ willful acts or omissions while in compliance with the statute. The plain language of the liability provision expressly immunizes retailers from civil liability for any act or omission in complying with the Act, if the act or omission (1) is not willful or grossly negligent, (2) occurs in a nonpublic area of the store, and (3) results in injury or death to the customer.
¶ 31 We find plaintiff‘s argument to be persuasive. It would make no sense for the statute to be read in such a way that a retailer can be held civilly liable for its actions when complying with the Act, but could not be held civilly liable for not complying with the Act at all. “In construing a statute, we presume that the legislature did not intend absurd, inconvenient, or unjust results [citation], and we will not, absent the clearest reasons, interpret a law in a way that would yield such results [citation].” Nelson v. Artley, 2015 IL 118058, ¶ 27. Assuming arguendo that we found an implied private right of action to be inconsistent with the Act, the only way a retailer could possibly be exposed to civil liability would be through compliance with the Act. With this in mind, it is not hard to imagine a retailer deciding to never comply with the Act in order to avoid any possibility of civil liability, instead opting to take the chance of being fined no more than $100 for noncompliance. This would directly compromise the underlying purpose of the Act, which, as previously stated, is to ensure that citizens suffering from irritable bowel conditions have immediate restroom access when they need it. 94th Ill. Gen. Assem., House Proceedings, Apr. 14, 2005, at 196 (statements of Representative Ryg). Plaintiff‘s argument, together with the cited case law, convinces us that an implied private right of action is consistent with the underlying purpose of the Act.
¶ 32 While defendant does not expressly argue that this element weighs in its favor, defendant does emphasize the text of the violation provision in the Act, which expressly states that a
C. Fourth Element
¶ 34 Finally, the fourth element is satisfied if it is shown that a private right of action is necessary to provide an adequate remedy to individuals injured as a result of violations of the statute. Fisher, 188 Ill. 2d at 460. A private right of action has only been implied in cases where a statute would be ineffective without the implication. Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 395 (1999).
¶ 35 In the case at bar, the Act expressly provides that a violation is a petty crime, punishable by a fine not to exceed $100.
¶ 37 However, we agree with plaintiff that an individual harmed by a violation of the Act would be reluctant to divulge embarrassing information to local authorities in order to pursue the expressed petty offense remedy and add that the petty offense remedy does nothing to redress the injuries that plaintiff has already sustained. Such was the case in Corgan v. Muehling, 143 Ill. 2d 296, 300 (1991), where the plaintiff brought an action under the Psychologist Registration Act (Ill. Rev. Stat. 1981, ch. 111, ¶ 5301 et seq.), alleging that the defendant, who lied about being a registered psychologist, began a sexual relationship with her “under the guise of therapy.” The Psychologist Registration Act provides that a violation of the statute is a public nuisance. Corgan, 143 Ill. 2d at 312. The Director of the Department of Professional Regulation or the State‘s Attorney in the county where the nuisance occurs may file a complaint in the name of the People of the State of Illinois requesting an injunction against the person unlawfully acting as a psychologist to stop performing such unlawful acts. Corgan, 143 Ill. 2d at 312. Despite the absence of express language regarding a private right of action, our supreme court held that an implied private right of action was the only way the statute could be enforced because it was unlikely that an injured patient
¶ 38 In addition, we note that the petty offense remedy in the present case is even more inadequate than the injunction available to the plaintiff in Corgan. An injunction would at least serve to ensure that defendant would be obligated by a court order to comply with the Act, making it more likely that, should plaintiff desire to visit the store in the future, she would feel comfortable knowing that a court has specifically addressed defendant‘s noncompliance and that she is much more likely to be granted access to the employee restroom in the event that she requires it. However, the imposition of the petty offense fine is unlikely to make the plaintiff feel comfortable in visiting the store in the future, since should defendant again deny plaintiff access to the employee restroom when she needs it, defendant would not be subjected to an increased penalty, and would still only risk the imposition of a small fine. In sum, the express remedy does nothing to make plaintiff whole again after sustaining harm, nor to ensure that plaintiff can feel comfortable visiting defendant‘s retail store in the future.
¶ 39 We also recognize the inadequacy of the petty offense remedy by distinguishing it from case law where the expressed remedies in a statute were deemed adequate. In Rekosh v. Parks, 316 Ill. App. 3d 58, 61-62 (2000), the plaintiffs brought an action under the Funeral Directors and Embalmers Licensing Code (
¶ 40 We are aware of the differences in the issues between the statute involved in Rekosh and the Restroom Access Act, but the lack of relevant case law forces us to draw comparisons between inherently different statutes. The statute in Rekosh went far beyond providing one simple remedy, instead providing several different remedies in order to ensure compliance among funeral homes. In the case at bar, the Act only expressly provides one remedy, a fine not to exceed $100. There is nothing regarding investigations or any other sanctions that would seek to ensure that the Act is not repeatedly violated. Defendant, a nationwide retail store, certainly has the financial capability to simply refuse to comply with the Act each time it is approached by a customer with an irritable bowel condition, since the maximum penalty that can be assessed for each violation is $100. While a funeral home that violates the statute
¶ 41 We find defendant‘s arguments to the contrary to be unpersuasive. Defendant argues that an implied private right of action is not necessary to provide an adequate remedy, since the Act already expresses a different remedy, and this expressed remedy is the extent of what the legislature intended to be adequate for enforcement. While the plain language of the Act is evidence that it is the only remedy intended by the legislature, it is not dispositive as to that issue, especially since the Act does appear to contemplate some form of civil liability in certain circumstances, as discussed above. There have been several instances where an Illinois court has determined that the remedies expressed by the legislature in a statute are not adequate to enforce compliance, necessitating the implication of a private right of action. See Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 185 (1978) (implying a private right of action under the Workmen‘s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, ¶ 138.1 et seq.) is necessary to effectuate the purpose of the statute in part because it is conceivable that employers would risk the threat of the expressed small fine in order to escape their responsibility under the statute); Rodgers v. St. Mary‘s Hospital of Decatur, 149 Ill. 2d 302, 309 (1992) (implied private right of action is appropriate under the X-Ray Retention Act (Ill. Rev. Stat. 1987, ch. 111½, ¶ 157-11), since no administrative remedies were specified and requiring the Public Health Department to hire an inspector to monitor hospital compliance is not efficient). In Corgan, 143 Ill. 2d at 314, our supreme court, finding that an implied private right of action
¶ 42 Furthermore, defendant argues it is not up to this court to determine whether the legislature‘s intent is different than what is expressed by the language of the statute. However, defendant‘s argument would mean that there could never be an implied private right of action, since such an implied right necessarily means that there is no express language granting such a right. Such an argument is inconsistent with the numerous cases finding an implied private right of action in statutes that already have express remedies incorporated within the text, some of which have been discussed in this analysis. Defendant‘s argument directly contrasts with judicial precedent regarding an implied private right of action. In addition, we must note that this court is not invalidating the expressed remedy in the Act. Instead, we are simply determining that the expressed remedy is not adequate to enforce the Act.
¶ 43 Defendant cites federal case law from the northern district of Illinois in order to support the textual argument, which happens to be the only case to date that has ruled on whether an implied private right of action is appropriate for the Act. In Kindle v. Fifth Third Bank, No. 1:14 CV 6502, 2015 WL 5159890 at *1 (N.D. Ill. Sept. 1, 2015), the plaintiff was a customer in the defendant‘s bank and requested to use the employee restroom, although it is not clear
¶ 44 We find defendant‘s case law to be unpersuasive. At the forefront, it is a federal district court case, thus having no precedential influence over our decision. Ryan, 198 Ill. 2d at 127. In addition, it is important to note, as plaintiff points out in her brief, that the plaintiff in Kindle was representing himself pro se and does not appear to have argued for an implied private right of action. As a result, the court did not address any of the four elements for finding an implied private right of action. Thus, despite the factual similarities to the present case, Kindle offers no material guidance for us to follow.
¶ 45 As a final matter, we must also consider whether there would be any other adequate remedy available to the plaintiff in this situation. Illinois courts have found that an implied private right of action is not appropriate in situations where a common law cause of action can also be brought by the plaintiff. See Abbasi, 187 Ill. 2d at 393 (the plaintiff‘s complaint under the
CONCLUSION
¶ 47 For the foregoing reasons, we find that the trial court erred in granting defendant‘s motion to dismiss on the basis that plaintiff did not have a private right of civil action under the Restroom Access Act.
¶ 48 Reversed.