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08/09/88 Margaret Van Dyun, v. Gerald T. Smith

August 9, 1988

MARGARET VAN DYUN, PLAINTIFF-APPELLANT

v.

GERALD T. SMITH, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

527 N.E.2d 1005, 173 Ill. App. 3d 523, 123 Ill. Dec. 367 1988.IL.1245

Appeal from the Circuit Court of Peoria County; the Hon. Stephen J. Covey, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. STOUDER, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This case comes on appeal pursuant to the trial court's dismissal, with prejudice, of plaintiff's multicount complaint for failure to state a cause of action. Although numerous motions and pleadings were filed in this cause, the relevant pleadings subject to review are plaintiff's second amended complaint counts I and II, amended count IV, and plaintiff's original complaint count III.

Plaintiff's second amended count I alleges the tort of intentional infliction of severe emotional distress; second amended count II alleges libel/negligence; amended count IV alleges libel/malice; and original count III alleges invasion of privacy (false light).

The relevant facts, as alleged, indicate that plaintiff, a private person, is, and was at all times stated herein, employed as the executive director of National Health Care Services of Peoria, Inc., an ambulatory surgical treatment center licensed by the State of Illinois, offering first trimester abortions to women in central Illinois. Defendant, a pro-life activist, is employed by Bradley University.

Plaintiff alleges that during a two-year period from March 21, 1984, to March 21, 1986, defendant performed the following acts: in his motor vehicle, followed plaintiff in her motor vehicle on several occasions; confronted plaintiff at the Peoria Airport and interfered with her ingress and egress to said airport on at least two occasions; picketed plaintiff's residence on November 17, 1984, in violation of section 21.1-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 21.1-1); picketed plaintiff's employer several times a month; confronted plaintiff at her residence and her place of employment on several occasions requesting plaintiff to quit her position as executive director of the National Health Care Services of Peoria, Inc., and on March 15, 1986, caused to be distributed a "Wanted" poster as well as and in conjunction with a "Face The American Holocaust" poster to plaintiff's friends, neighbors and acquaintances living in the three-block area surrounding plaintiff's residence.

Plaintiff claims that the "Wanted" poster, attached to the complaint, resembling those used by the Federal Bureau of Investigation and seen on bulletin boards in public places, states that plaintiff is a wanted person "for prenatal killing in violation of the Hippocratic Oath and Geneva Code"; that plaintiff uses the alias "Margaret the Malignant"; that plaintiff has participated in killing for profit and has presided over more than 50,000 killings; and the plaintiff's modus operandi is a small round tube attached to a powerful suction machine that tears the developing child limb from limb. The poster further contains a statement at the bottom which indicates in part, that "[nothing] in this poster should be interpreted as a suggestion of any activity that is presently considered unethical. Once abortion was a crime but it is not now considered a crime."

The "Face The American Holocaust" poster, also attached to the complaint, contains pictures of fetuses between 22 and 29 weeks gestational age that have been aborted. Under each picture the "cause of death" of the fetus is listed, referring to the method used to perform the abortion. Among the techniques listed are dismemberment, salt poisoning, and massive hemorrhaging. The poster also contains four paragraphs of information regarding the discovery of some 17,000 fetuses stored in a 3 1/2-ton container in California, the number of abortions performed per day in "America's abortion mills," and how "America's Holocaust is the responsibility of us all." The poster additionally gives the name and address of Pro-Life Action League and lists the defendant's name and telephone number for those who choose to call locally.

Although count III varied slightly, plaintiff further alleged the following: that as a result of defendant's actions, her good name, character and reputation were impaired and brought into disrepute before her friends and acquaintances; that she became emotionally upset and suffered great anxiety and mental anguish; that she was humiliated and embarrassed in front of her friends and neighbors; that she became physically upset, nervous and cried; that her blood pressure became elevated beyond normal limits for several days; that her vision was impaired for approximately 24 hours; that she sought and received emergency medical care at Proctor Hospital and was treated by a physician at Proctor Hospital for several hours because of her physical and emotional condition of ill-being and remained under medication and a doctor's care for approximately two months; that she became physically and emotionally exhausted and had to lie down for approximately 24 hours; that she was unable to work at her occupation and had to cease work for several days; that she could not sleep for several days; and that she incurred doctor and hospital bills. Plaintiff also alleged that her damages exceed $15,000.

The procedural posture of the case is that it comes to this court pursuant to the trial court's granting of defendant's motions to dismiss. Two of defendant's motions to dismiss are at issue since the dismissal of original count III was by order dated July 15, 1986, and the order dismissing second amended counts I and II and amended count IV was entered August 26, 1987. In both motions, however, the defendant has failed to state the section under which the motion was brought. Therefore, our first determination is whether defendant's respective motions were brought pursuant to section 2-615 or section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-619), as those sections involve dismissal by different legal theories. Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 484 N.E.2d 371.) Both of defendant's motions to dismiss allege that plaintiff's complaint fails to "allege sufficient facts to state a cause of action." Therefore, we construe defendant's statement as disputing the sufficiency of plaintiff's complaint and consider the motions as being brought under section 2-615. As support for our position, we note that motions to dismiss under section 2-619 admit the legal sufficiency of the attacked pleadings and allows assertions of affirmative matter, with or without supporting affidavits, to defeat the plaintiff's claim. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619.) Here, defendant has not admitted the legal sufficiency of the complaint.

Our inquiry then, is to determine whether plaintiff has pleaded sufficient facts to state a cause of action for any or all of the asserted theories of recovery. We keep in mind that "[a] cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover." (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224, 226; Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 308 N.E.2d 790, 794.) We will discuss the required elements for each tort thoroughly as we separately discuss each alleged cause of action.

Plaintiff's second amended count I alleged that defendant committed the tort of intentional infliction of severe emotional distress. In Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765, our supreme court set forth the conduct giving rise to a cause of action:

"First, the conduct must be extreme and outrageous. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities. 'It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . ..' Restatement (Second) of Torts, sec. 46, comment d (1965).

Second, infliction of emotional distress alone is not sufficient to give rise to a cause of action. The emotional distress must be severe. Although fright, horror, grief, shame, humiliation, worry, etc. may fall within the ambit of the term 'emotional distress,' these mental conditions alone are not actionable. 'The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.' Comment j. See also Prosser, Law of Torts sec. 12, at 54 (4th ed. 1971).

Third, reckless conduct which will support a cause of action under the rules stated is conduct from which the actor knows severe emotional distress is certain or substantially certain to result. (Comment i.) 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. Prosser, Law of Torts 60 (4th ed. 1971).

Fourth, as is stated in comment e, the extreme and outrageous character of the conduct may arise from an abuse of a position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interests." (Emphasis deleted.) Public Finance Corp. v. Davis, 66 Ill. 2d at 89-90, 360 N.E.2d at 767.

In Davis, the defendant, a creditor of the plaintiff, persistently attempted to collect on a debt plaintiff owed. The defendant called plaintiff several times a week, frequently more than once a day, visited plaintiff's home one or more times a week, and called plaintiff at the hospital while her daughter was seriously ill even after plaintiff had requested that defendant refrain from bothering her at the hospital. Defendant further induced plaintiff to draft a check, promising that the check would not be processed. Instead, the defendant immediately phoned and informed an acquaintance of the plaintiff that she was writing bad checks. Lastly, defendant's employee used ...


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