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Dymek v. Nyquist

OPINION FILED SEPTEMBER 18, 1984.

ALLEN R. DYMEK, INDIV. AND AS A CUSTODIAL PARENT OF ROBERT A. DYMEK, A MINOR, PLAINTIFF-APPELLANT,

v.

ROBERT E. NYQUIST ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff, Allen R. Dymek, appeals from the entry of an order dismissing his complaint at law with prejudice pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615). *fn1

On March 9, 1982, plaintiff instituted the present action against defendant Robert E. Nyquist, a psychiatrist, and defendant Retha J. Dymek, *fn2 plaintiff's former wife. Essentially, plaintiff's complaint alleged that Retha took their son, Robert, a nine-year-old minor over whom plaintiff had been awarded custody, to see Dr. Nyquist for a period of one year for purposes of psychiatric treatment. Robert allegedly underwent psychotherapy without the knowledge or consent of plaintiff. Subsequent thereto, Dr. Nyquist testified on behalf of Retha at a hearing held in connection with her petition for change of custody.

By virtue of these allegations, plaintiff averred that he had suffered "severe emotional stress and disturbance to [his] mental tranquility" as a result of Dr. Nyquist's conduct (count I); that Dr. Nyquist had breached the fiduciary duty of trust and confidence owed to Robert (count II); that Dr. Nyquist and Retha conspired "to gain physical and mental custody and control of [Robert] * * * and to maliciously, unlawfully and wrongfully injure the plaintiff in his mental and emotional well-being" (count III); that Dr. Nyquist and Retha deprived, alienated and destroyed the affection of Robert toward plaintiff (count IV); and that Dr. Nyquist had engaged in malpractice through unauthorized treatment as well as unconsented revelation of privileged psychiatric information (count V).

Count IV, originally premised on alienation of affections, was amended by leave of court on January 25, 1983, so that the words "to alienate and destroy the affection" were replaced by the words "to injure and destroy the society and companionship." On that same day, January 25, pursuant to Dr. Nyquist's motion, the trial court entered an order dismissing counts II, IV, and V of the complaint, and striking counts I and III with leave to amend. Plaintiff, however, elected to stand on his pleadings and subsequently filed a motion for rehearing and to vacate the order of January 25, 1983. This motion was denied, and plaintiff's complaint was thereupon dismissed with prejudice on June 6, 1983. *fn3 It is the propriety of this dispositive order which plaintiff now contests on appeal.

I

The sole issue presented for review is whether the lower court properly dismissed plaintiff's complaint with prejudice.

COUNT I

• 1 In order to state a cause of action for intentional infliction of emotional distress, facts must be alleged which establish: (1) that the defendant's conduct was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant's conduct, if alleged to have been "reckless," was such that the defendant knew severe emotional distress would be certain or substantially certain to result. Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 89-90, 360 N.E.2d 765.

Regarding the first element, the nature of defendant's conduct, liability exists only where such conduct has been "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency * * *.'" (Plocar v. Dunkin' Donuts of America, Inc. (1981), 103 Ill. App.3d 740, 745-46, 431 N.E.2d 1175, quoting Restatement (Second) of Torts sec. 46, comment d (1965).) With respect to the second element, the severity of plaintiff's distress, "`[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity.'" (Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 90, quoting Restatement (Second) of Torts sec. 46, comment j (1965).) Pertaining to the recklessness of defendant's conduct, "liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it." Plocar v. Dunkin' Donuts of America, Inc. (1981), 103 Ill. App.3d 740, 746, citing Restatement (Second) of Torts sec. 46, comment i (1965), and Prosser, Torts sec. 12, at 60 (4th ed. 1971).

In order to determine whether a plaintiff has stated a cause of action for intentional infliction of emotional distress, a reviewing court must accept as true the allegations contained in the complaint. (Witkowski v. St. Anne's Hospital of Chicago, Inc. (1983), 113 Ill. App.3d 745, 752, 447 N.E.2d 1016, appeal denied, 96 Ill.2d 552.) Here, plaintiff's complaint charges that Dr. Nyquist surreptitiously performed psychotherapy on Robert twice a month for a period of one year. By virtue of this course of action, it is claimed that Dr. Nyquist intentionally or recklessly caused severe emotional distress to plaintiff's mental tranquility.

It is our opinion that the psychiatrist's conduct, performed at the request of Robert's mother, cannot be characterized as so outrageous, so atrocious and so utterly intolerable that a person of ordinary sensibilities could not reasonably be expected to endure it. In support of a contrary conclusion, plaintiff cites and strongly relies on Burchfield v. Regents of the University of Colorado (D. Colo. 1981), 516 F. Supp. 1301. Such reliance, however, is seriously misplaced since Burchfield did not concern the tort of intentional infliction of emotional distress.

In addition, we note that plaintiff's complaint is absolutely devoid of any allegation that the purported psychiatric treatment was in any way detrimental to Robert's mental or physical state of health. In fact, there is no claim that Dr. Nyquist's care was unnecessary. In view of these deficiencies, we simply cannot conclude that the psychiatrist's actions reached such an extreme level of outrageousness and severity "beyond all bounds of decency" so as to give rise to a cause ...


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