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Kelly v. Franco

OPINION FILED MAY 21, 1979.

BARBARA KELLY, INDIV. AND AS PARENT AND GUARDIAN OF ANN KELLY, A MINOR, ET AL., PLAINTIFFS-APPELLANTS,

v.

GLORIA FRANCO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the trial court dismissing both counts of plaintiffs' third amended complaint for failure to state a cause of action. Count I of that complaint was premised on the theory of invasion of privacy and count II on the theory of intentional infliction of severe emotional distress. On appeal plaintiffs argue that the trial court erred in dismissing counts I and II because each count of the third amended complaint alleged facts which stated a cause of action.

We affirm.

Count I of the third amended complaint alleged that plaintiff Barbara Kelly and her minor children lived at 381 Newport Road in the Village of Hoffman Estates and that the defendants lived at 380 Newport Road in the same village. Count I further alleged that the plaintiff Luke Kelly maintained his legal residence in Chicago, but generally resided with his wife in Hoffman Estates. Count I went on to allege that on November 8 and November 9, 1974, defendants telephoned plaintiffs' residence and that when the telephone was answered defendants immediately hung up. Plaintiffs further alleged on information and belief that defendants had committed the same act on numerous occasions both before and after November of 1974. In their brief plaintiffs indicate that they base their action for invasion of privacy on these phone calls. In count II of their third amended complaint plaintiffs realleged the above allegations and went on to allege that defendants verbally harassed and abused plaintiffs, threatened the plaintiffs that they were going to make them move from their home, and complained to the police regarding plaintiffs' son, Luke Kelly, Jr., on trivial matters. Count II went on to allege that defendants knew Luke Kelly was a fireman and that the threat to make the Kelly family move carried with it the sanction of the loss of Luke Kelly's job; that defendants knew Luke Kelly was called by his employer and threatened with the loss of his job; and that defendants knew their children were telling plaintiffs' children that they would be forced to move from their home. Count II concluded alleging that the above acts were done intentionally and with malice and were of a nature to cause plaintiffs extreme emotional distress and that the above acts did in fact cause severe emotional distress to plaintiffs, especially to Ann Kelly who underwent medical treatment as a result of the above alleged acts.

• 1 In support of their contention that count I of the third amended complaint states a cause of action for invasion of privacy, plaintiffs first rely on section 6 of article I of the Illinois Constitution which provides in part:

"The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." (Ill. Const. 1970, art. I, § 6.)

We do not believe that the above provision creates a cause of action for invasion of privacy of the type alleged in count I. This is clear from the record of proceedings of the Sixth Illinois Constitutional Convention. As defendants indicate in their brief the following colloquy occurred at the convention between Mr. Tomei, and Mr. Dvorak, the sponsor of section 6:

"MR. TOMEI: Delegate Dvorak * * * Your provision with respect to invasions of right of privacy pertains only to invasions by government of public officials. Is that correct?

"MR. DVORAK: Yes, that's true." 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1532.

In addition, there was a proposed amendment which sought to add "by the state or any person" after the word "privacy" in section 6. As indicated by the sponsor of the amendment, its purpose was "to deal with the relationship between individuals and individuals." This amendment was rejected by a vote of 49 to 41. 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1539-1543.

Our conclusion that section 6 of article I of the Illinois Constitution creates no cause of action for an invasion of privacy of the type alleged in count I off the complaint is consistent with the Bill of Rights Committee's Report. That committee, whose proposed language covering freedom from invasions of privacy was adopted by the Convention, stated the following in its report:

"`* * * [T]he Committee concluded that it was essential to the dignity and well being of the individual that every person be guaranteed a zone of privacy in which his thoughts and highly personal behavior were not subject to disclosure or review. The new provision creates a direct right to freedom from such invasions of privacy by government or public officials.'" Ill. Ann. Const., art. I, § 6, Constitutional Commentary, at 317-18 (Smith-Hurd 1971).

In further support for their argument that count I states a cause of action, plaintiffs cite section 12 of article I of the 1970 Constitution which provides in part: "Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. * * *" (Ill. Const. 1970, art. I, § 12.) We believe, however, that plaintiffs' reliance on article I is misplaced. As we stated in Angelini v. Snow (1978), 58 Ill. App.3d 116, 119, 374 N.E.2d 215, 218:

"Section 12 incorporates the guarantees formerly contained in article II, section 19 of the Illinois Constitution of 1870. Besides rearranging the wording and placement of this provision, the only change was to substitute the word `shall' for `ought to' to make the statement of the principle more emphatic. (See Ill. Ann. Stat., 1970 Const., art. I, § 12, Constitutional Commentary, at 556 (Smith-Hurd 1971).) This change has had, and was meant to have, no substantive effect on Illinois law. (See People v. Dowery (1975), 62 Ill.2d 200, 340 N.E.2d 529; Sullivan v. Midlothian Park District (1972), 51 Ill.2d 274, 281 N.E.2d 659; Gertz, Hortatory ...


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