United States District Court, Northern District of Illinois, E.D
July 9, 1981
ELIZABETH A. JARVIS, ETC., PLAINTIFF,
IRA STONE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Elizabeth Jarvis filed this diversity action on her
own behalf and as Administrator of the Estate of her late husband
Willard Jarvis ("Jarvis") against Ira Stone, Richard Brams
("Brams"), Norman Stone and Graphic Center, Inc. ("Graphic"),
alleging that defendants caused Jarvis to commit suicide.
Plaintiff's original complaint as amended (the "Complaint")
comprises three counts, seeking relief under theories of wrongful
death, intentional infliction of emotional damage and loss of
consortium. Defendants have moved to dismiss the Complaint or
alternatively to dismiss the prayers for punitive damages in
Counts II and III.*fn1 For the reasons stated in this memorandum
opinion and order defendants' motion to dismiss the Complaint is
granted, and this action is dismissed as well.
This Court's February 11, 1981 Memorandum Opinion and Order
describes the allegations in the Complaint, which thus need not
be recounted in any detail here. Briefly, plaintiff claims that
after Jarvis' resignation from employment with Graphic and
acceptance of a position with a competing firm, Art Works, Inc.
("Art Works"), defendants allegedly "conspired to injure Jarvis'
physical and emotional health by destroying his business, his
reputation, and the Art Works business." According to the
Complaint those actions "affected Jarvis' health and emotional
stability adversely" so that on May 10 or 11, 1979 Jarvis
Plaintiff's Theories of Liability
Count I: Wrongful Death
Complaint Count I seeks compensatory damages*fn3 under the
theory that defendants wrongfully caused Jarvis' death.
Defendants assert that Count I must be dismissed because, as a
matter of law, suicide is "an intervening and independent cause
of death which . . . breaks the chain of causation, precluding
[defendants'] liability." Stasiof v. Chicago Hoist & Body Co.,
Inc., 50 Ill. App.2d 115, 122, 200 N.E.2d 88, 92 (1st Dist.
1964), aff'd sub nom. Little v. Chicago Hoist & Body Co.,
32 Ill.2d 156, 203 N.E.2d 902 (1965); Brown v. American Steel & Wire
Co., 43 Ind. App. 560, 88 N.E. 80 (1909).
In a diversity action all substantive questions must be decided
in accordance with applicable state law. Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Plaintiff and defendants have expressed differing views as to the
law of which state applies here: Illinois or Indiana. This Court
need not make such a choice of law determination unless there is
a conflict of laws on the relevant issue. In re Air Crash
Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594,
605 n. 2 (7th Cir. 1981). Because the asserted defense is
meritorious under the law of both Illinois and Indiana, no choice
of law determination is required.
Stasiof and Brown both hold squarely that "there is no recovery
for a suicide or attempted suicide following a tortious act." 50
Ill.App.2d at 122, 200 N.E.2d at 92; 88 N.E. at 84. That
principle (the "suicide rule") is based on the rationale that
"the act of suicide is an independent intervening act which the
original tortfeasor could not have reasonably [been] expected to
foresee." 50 Ill.App.2d at 122, 200 N.E.2d at 92.
Each state's decision recognized an exception to the suicide
rule. In Stasiof the Court stated (id.):
There is an apparent exception to the rule where, as
the proximate result of an injury upon his head
caused by the negligence of another, the person
becomes insane and bereft of reason, and while in
this condition and as a result thereof he takes his
own life. His act in that case is not a voluntary
one, and therefore does not break the causal
connection between the suicide and the act which
caused the injury.
In Brown the Indiana court articulated a broader, though still
limited, exception to the rule. It stated that for the exception
to apply (88 N.E. at 85):
the evidence must be such as to warrant the jury in
finding that the decedent in taking his life acted
"without volition, under an uncontrollable impulse,
or that he did not understand the physical nature of
Stasiof and Brown are the controlling precedents in the two
Under either decision Jarvis' death is plainly not
actionable. That Jarvis committed suicide is of course admitted
in the Complaint. And the circumstances leading to his suicide,
on plaintiff's own allegations, do not come within either state's
exception to the suicide rule.
Complaint Paragraph 17 states that the "actions of
Defendants . . . affected Jarvis' health and emotional
stability. . . ." Paragraph 18 alleges, "Defendants took these
actions intentionally, maliciously and with an utter disregard
for Jarvis' life." Neither of those allegations nor anything else
in the Complaint suggests (indeed plaintiff does not argue in her
memorandum) that Jarvis was "insane and bereft of reason" or
"under an uncontrollable impulse" in taking his own life. Hence
plaintiff's claim is not encompassed by either exception to the
suicide rule, and Count I must be dismissed.*fn5
Count II: Intentional Infliction of Emotional Damage
Defendants next urge that a cause of action for intentional
infliction of emotional damage (or distress) does not "survive" a
decedent's death under either Illinois or Indiana law. If so
Count II of the Complaint must also be dismissed.
As to Indiana law, the appropriate inquiry is not whether such
a cause of action could "survive" Jarvis' death, but rather
whether it was maintainable in the first instance. As stated in
Kaletha v. Bortz Elevator Co., Inc., 383 N.E.2d 1071, 1074
(Ind. App. 1978):
Indiana does not recognize as an independent tort the
infliction of mental anguish unaccompanied by
contemporaneous physical injury or the breach of some
other duty. . . .
Plaintiff's Complaint alleges no tort independent of
intentional infliction of emotional damage upon which the latter
claim, under the Indiana rule, might properly be maintained.
Count II would therefore have to be dismissed under Indiana law.
Illinois law leads to the same result for somewhat different
reasons. Illinois does recognize the tort of intentional
infliction of emotional damage, independent of a related
actionable claim. See, e.g., Public Finance Corp. v. Davis,
66 Ill.2d 85, 4 Ill. Dec. 652, 360 N.E.2d 765 (1976). But
controlling interpretations of the Illinois Survival Act (the
"Act"), Ill.Rev.Stat. ch. 110 1/2, § 27-6 (1976), compel the
conclusion that an "emotional damage" claim does not survive a
That Act states:
In addition to the actions which survive by the
common law, the following also survive: . . . actions
to recover damages for an injury to the person
(except slander and libel). . . .
From the language of the Act alone it might be argued that the
"emotional damage" tort survives as an action for "injury to the
Neither party has brought to the Court's attention,
nor has the Court discovered in its own research, any cases
specifically deciding that question. However the Illinois courts
have consistently held that "the words `damages for injury to the
person' clearly and unequivocally mean damages of a physical
character." Mattyasovszky v. West Town Bus Co., 21 Ill. App.3d 46,
54, 313 N.E.2d 496
, 502 (2d Dist. 1974), aff'd, 61 Ill.2d 31
330 N.E.2d 509
(1975). Actions to redress a variety of injuries of a
non-physical nature, impacting a personal (as opposed to
property) interest, have uniformly been held not to survive under
the Act. See, e.g., Maritote v. Desilu Productions, Inc.,
230 F. Supp. 721
(N.D.Ill. 1964), aff'd, 345 F.2d 418
(7th Cir. 1965)
(right to privacy); Kent v. Muscarello, 9 Ill. App.3d 738,
293 N.E.2d 6
(2d Dist. 1973) (malicious prosecution); Pinkerton v.
Gilbert, 22 Ill. App. 568 (1st Dist. 1887) (false imprisonment).
Those cases are indistinguishable in principle from plaintiff's
claim. Count II alleges a personal injury tort wholly
non-physical in nature. Illinois courts have expressly held in a
variety of factual contexts that non-physical personal torts do
not survive under the Act. Nothing in those decisions or in
plaintiffs' memorandum suggests the inapplicability of the same
Indiana and Illinois thus travel different paths to arrive at
the same destination. Count II must also be dismissed.
Count III: Loss of Consortium
Under both Illinois and Indiana law the spouse of a wrongfully
injured person may bring an action for loss of consortium on his
or her own behalf. Such claims however are purely derivative in
nature. They first require that the defendants be liable for the
injuries to the person whose spouse brings the action. Knox v.
North American Car Corp., 80 Ill. App.3d 683, 35 Ill.Dec. 827,
399 N.E.2d 1355 (1st Dist. 1980); Arthur v. Arthur, 156 Ind. App. 405,
406, 296 N.E.2d 912, 913 (3d Dist. 1973). Defendants argue that
if Counts I and II of the Complaint are dismissed (as they now
have been) and plaintiff therefore cannot obtain any relief as
Administrator, Count III must be dismissed as well because of its
Defendants fail to recognize the complexity of the issue raised
by Count III. They assume that because any cause of action Jarvis
might have had has expired, no claim exists from which Count III
can "derive." But it must be remembered that consortium claims
are derivative in the sense that they must derive from the claim
of the injured spouse (in this case Jarvis) in the first
instance. It is at least arguable that if the injured spouse once
had a viable primary claim, its expiration (or non-survival) does
not necessarily extinguish the non-injured spouse's derivative
claim for loss of consortium.
Given that possibility, the Court must review the choice of law
considerations that did not have to be dealt with earlier. There
are four possible alternatives, three of which require little
(1) Illinois law could apply to both the consortium and
emotional damage claims. Knox v. North American Car Corp. teaches
that the consortium claim could not survive. In Knox the Court
held that a consortium claim could not "derive" from a primary
claim that had been extinguished by the statute of limitations.
In this case Illinois law would hold the primary claim —
intentional infliction of emotional damage — extinguished by
Jarvis' death. Thus Knox is directly on point and confirms that
defendants' characterization of the derivative nature of
consortium, rather than the alternative theory, accurately
reflects Illinois law.
(2) Illinois law could apply to the consortium claim, while
Indiana law governed the emotional damage claim. Because Indiana
law does not recognize the tort of intentional infliction of
emotional damage, there would be no primary claim from which the
consortium claim could derive under that alternative.
(3) Indiana law could apply to both the consortium and
emotional damage claims. Under that possibility the reasoning
just outlined would apply with equal force to defeat the
However the fourth possible choice of law situation (Indiana
law controlling the consortium claim and Illinois law controlling
the emotional damage claim*fn8) is problematic. If Indiana
consortium law embodies the alternative theory of derivation,
Elizabeth Jarvis' own claim (stemming as it would from an
extinguished emotional distress claim that Illinois law had once
considered viable) would survive (at least for purposes of a
motion to dismiss).
No Indiana case is directly in point. Arthur v. Arthur is the
"closest" precedent. There the Indiana Court of Appeals stated
(296 N.E.2d at 913, citations omitted):
The law in Indiana is clear that a wife is entitled
to recover for loss of consortium against a wrongdoer
who has injured her husband. However, a cause of
loss of consortium derives its viability from the
validity of the claim of the injured spouse against
the wrongdoer. Where, for example, the claim of the
injured spouse against the alleged tortfeasor has
been abrogated by statute, the right of the other
spouse to recover for loss of consortium cannot
exist. Thus the critical issue in the instant case is
whether . . . [the injured spouse] has a valid cause
of action against . . . [the tortfeasor].
Arthur and the cases it cites all held that where the injured
spouse recovered under the Indiana Workmen's Compensation Act,
which contains an exclusive remedy provision, recovery for loss
of consortium would not be permitted. That is not of course the
specific situation presented in this case. However the principle
underlying Arthur, the principle that represents Indiana law, may
be stated in broader terms: If public policy (in Arthur, public
policy as manifested by the Workmen's Compensation Act) bars a
direct claim by the injured spouse, it would undermine that
public policy to permit recovery by the other spouse.
That principle is readily applicable to this case. On the
assumption now under consideration, Illinois public policy
dictates that the primary claim dies with the injured spouse.
Under the Arthur principle the derivative claim must be
extinguished as well.
Accordingly the Court concludes that under each choice of law
possibility this case presents, Count III of the Complaint must
Defendants' motion is granted. This action is dismissed.