Illinois Supreme Court Clarifies Scope of Negligent Infliction of Emotional Distress Without Physical Impact

Courts in most jurisdictions have been cautious about the parameters of any possible cause of action for negligent infliction of emotional distress where the plaintiff has pled no physical impact. The Illinois Supreme Court clarified the scope of that claim in one of its last decisions of 2016, affirming the Appellate Court in Schweihs v. Chase Home Finance, LLC.

Schweihs began in 1997, when the plaintiff executed a note secured by a mortgage on her home. The mortgage contained a provision granting the mortgage lender the right, in the event of default, to enter the property to make repairs.

Plaintiff defaulted in 2007, and the lender sought and received a judgment of foreclosure. Pursuant to the redemption period, the plaintiff had the right to possession of the home for three months after the date of the judgment.

A month after the judgment – but still within the redemption period – the vendor used by the mortgage lender to provide property inspections and preservation services received a report that the property was vacant. The vendor placed an “initial secure” order with its contractor, which sometimes involves changing the locks on the home and turning off the utilities. The contractor tried to execute the order five days later. The contractor’s employees were instructed to begin by determining whether the house was occupied, and to do nothing if it was.

The employees later testified that they looked over the property, observing that the grass was uncut and the trees were overgrown. One knocked on the front door, but received no answer. He checked the meters and concluded that both gas and water had been shut off. The employees spoke with a neighbor, who said the house was not occupied, although a woman would come and go on occasion, and there were no lights on in the house at night. The employees once again knocked on the door, receiving no response. At this point, the employees had spent 45 minutes merely trying to determine if the house was occupied. The employees entered the back yard through a latched gate and saw boxes piled on top of each other and garbage and debris on the floor inside the house. They reported all this to the contractor, which instructed them to proceed with the “initial secure” order.

One of the employees removed the lock to the back door and entered the home, stepping over boxes and debris. Once inside the home, one of the employees was confronted by a woman, who ordered him out of the house. The employee explained that he was from the mortgage company, and asked the woman to speak with him further at the front door. He exited the house, walked to the front and knocked on the front door, but received no answer. The two employees then did nothing further, waiting for the arrival of the police. The plaintiff later testified that she had heard knocking when she was in the basement, but had been on the phone and did not respond. She saw the men from a second-floor window shortly after, but thought they may have been potential buyers looking at the house, and decided to continue packing.

The plaintiff filed suit, alleging trespass, private nuisance, intentional infliction of emotional distress and negligence. The court granted defendants’ motions for summary judgment with respect to claims for private nuisance and intentional infliction of emotional distress. The court also granted the plaintiff leave to amend her negligence claim to allege negligent infliction of emotional distress. The court then dismissed the negligent infliction claim, and entered a Rule 304(a) finding that there was “no just reason for delaying” an appeal. The Appellate Court affirmed (with one dissenter), holding that since the plaintiff was a “direct victim” in terms of the case law, she could not state a claim for negligent infliction of emotional distress without evidence of physical impact.

In an opinion by Justice Freeman, the Supreme Court unanimously affirmed the Appellate Court. The plaintiff argued that the Supreme Court had eliminated the requirement for a direct victim to plead and prove physical impact in order to state a claim for negligent infliction of emotional distress in Corgan v. Muehling. The court conceded that certain language in Pasquale v. Speed Products Engineeringappeared to read Corgan that way, but the plaintiff in Corgan had indeed pled contemporaneous physical impact, making the language plaintiff was relying upon dictum. “[A] careful reading” of the Court’s precedents demonstrated that Illinois has not, in fact, eliminated the requirement that a direct victim of the defendant’s conduct must plead and prove contemporaneous physical impact in order to state a claim for negligent infliction of emotional distress. Since plaintiff failed to plead any physical impact, she failed to state a claim for negligent infliction.

The Court then turned to plaintiff’s claim for intentional infliction of emotional distress. The plaintiff argued that the trial court should not have dismissed the claim because it was a triable issue of fact for the jury whether the defendants’ conduct was extreme and outrageous. Based upon the employees’ attempt to investigate the status of the house before entering, and the plaintiff’s ignoring the knocking on her door, the Court concluded that the conduct was not extreme or outrageous as a matter of law.

Justice Garman filed a special concurrence, noting that while the impact rule continued to apply to any attempt to allege negligent infliction of emotional distress, that rule did not limit plaintiffs who sought to recover emotional distress damages for other recognized torts.

Image courtesy of Flickr by Taber Andrew Bain (no changes).