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09/30/87 Caroline A. Hammond, v. Charles E. Lane

September 30, 1987

CAROLINE A. HAMMOND, PLAINTIFF-APPELLEE

v.

CHARLES E. LANE, DEFENDANT (THE IRENE JOSSELYN CLINIC, DEFENDANT-APPELLANT)

"WHETHER THE SECOND AMENDED COMPLAINT PROPERLY STATES A CAUSE OF ACTION FOR THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ACCORDING TO RICKEY

v.

C.T.A." OPINION



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

515 N.E.2d 828, 162 Ill. App. 3d 17, 113 Ill. Dec. 843 1987.IL.1463

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Bosco, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., concurs. JUSTICE PINCHAM, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ, Defendant appeals the denial of its motion to dismiss under Supreme Court Rule 308(a) (87 Ill. 2d R. 308).

We reverse and remand.

On March 6, 1985, plaintiff filed a single count second-amended complaint against Dr. Charles Lane and the Irene Josselyn Clinic. In her complaint plaintiff alleges that Dr. Lane treated her for certain psychiatric and psychological disorders from May 12, 1982, to July 14, 1983. The plaintiff further alleges that during the treatment Dr. Lane had sexual contact with her on four occasions. The second-amended complaint asserts that this contact constituted professional negligence causing the plaintiff emotional distress which resulted in physical injuries.

On May 1, 1985, the clinic moved to strike and dismiss the complaint on the grounds that it sought recovery for negligent infliction of emotional distress without alleging the elements necessary for such a claim pursuant to Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1. The plaintiff filed no response. The trial court denied the motion. However, the following question of law was certified by the trial court as the basis for this Rule 308 appeal:

The terms of Rule 308 provide an exception to the general rule that an appeal may be taken only from final judgments of the circuit court. (87 Ill. 2d R. 308(a).) The supreme court has indicated that such appeals are to be allowed only in exceptional circumstances and as such should be strictly construed and sparingly exercised. (See People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325.) Of more import to this cause is the rule that an appeal pursuant to Rule 308 should be limited to the question certified by the trial court. (People v. Pollution Control Board (1984), 129 Ill. App. 3d 958, 473 N.E.2d 452.) We are without jurisdiction to entertain matters outside the scope of the certified question because all review by this court is limited by supreme court rule to final orders and certain interlocutory appeals specified in those rules. (Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 416 N.E.2d 1110.) This court cannot, therefore, expand upon the questions properly brought before us by the trial court in order to answer other matters which could have been included. Potter v. Chicago Heights Motor Freight, Inc. (1979), 78 Ill. App. 3d 676, 396 N.E.2d 1366.

Inexplicably, plaintiff has devoted almost her entire brief to addressing an issue which we have no jurisdiction to consider, whether a cause of action for medical malpractice has been properly pled. Even more inexplicably, the special concurrence has embraced this argument. We are confined to the issue of whether plaintiff has properly pled a cause of action for the negligent infliction of emotional distress.

Plaintiff argues, in effect, that recovery should be allowed in any case where, as here, the defendants reasonably could have foreseen that their negligence would cause emotional distress. This interpretation of Rickey, however, has been rejected as "untenable." See Gihring v. Butcher (1985), 138 Ill. App. 3d 976, 487 N.E.2d 75.

To plead successfully a cause of action for negligent infliction of emotional distress, plaintiff must allege that defendant's negligence put her in reasonable fear for her own personal safety. (Gihring v. Butcher (1985), 138 Ill. App. 3d 976, 487 N.E.2d 75.) Although plaintiff arguably has alleged that she suffered the "physical injury or illness" referred to in Rickey, she has not alleged that she was "in a zone of danger and had reasonable fear for her safety." (See Johnston v. St. Anne's Hospital West, Inc. (1986), 146 Ill. App. 3d 763, 497 N.E.2d 408.) Since plaintiff has not met the threshold requirement of Rickey, the trial court improperly denied defendant's motion to dismiss.

Our supreme court has recently reaffirmed the established principles of Rickey. (See Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230.) There, in her complaint plaintiff alleged that she became pregnant in February of 1980 and was concerned about the possibility of her child's being born with hemophilia, a genetic disorder, because two of her cousins were afflicted with it. Plaintiff consulted with defendants-doctors with regard to her concerns. She was told the risk of her being a hemophilia carrier was "very low." Her child was born in October of 1980 and was diagnosed shortly thereafter as a hemophiliac. The complaint alleged that because the defendants were negligent in their diagnosis, Adam was not aborted and the Siemieniecs suffered injury. The supreme court stated that Rickey adopted the zone-of-danger rule regarding recovery for emotional distress, which requires that before a plaintiff can recover he must have, himself, been endangered by the negligence and have demonstrated manifestations of physical injuries as a result of the emotional distress caused by defendant's negligence. The court stated further:

"There are no allegations in the complaint from which it can be said that the defendants' alleged negligence in any way endangered the parents of the impaired child."

The court, in finding that plaintiff failed to state a cause of action for negligent infliction of emotional distress, stated that they were not inclined to expand the right to recover for emotional distress.

Similarly, the plaintiff here has failed to allege that she was in any way endangered or in any way feared for her safety. Consequently, to answer the certified question, plaintiff has not successfully pled a cause of action for negligent infliction of emotional distress.

Accordingly, for the reasons set forth in this opinion we reverse and remand.

Reversed and ...


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