been in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact. The bystander, as stated, must show physical injury or illness as a result of the emotional distress caused by the defendant's negligence.
Id. at 555, 457 N.E.2d at 5.
After Rickey, courts disagreed as to whether Rickey had replaced the impact rule with the zone-of-physical-danger rule in direct-victim as well as bystander situations, or whether it had created a new rule to be used solely in bystander situations. See McAdams v. Eli Lilly & Co., 638 F.Supp. 1173 (N.D. Ill. 1986); see also Robbins v. Kass, 163 Ill.App.3d 927, 516 N.E.2d 1023, 114 Ill. Dec. 868 (2d Dist. 1987). However, the Illinois Supreme Court in Corgan v. Muehling, 143 Ill. 2d 296, 574 N.E.2d 602, 158 Ill. Dec. 489 (1991), recently made clear that the zone-of-physical-danger rule is to be applied only in bystander cases and not in cases involving direct victims. In other words, the "zone-of-physical-danger rule is patently inapplicable to direct victims." Id., 574 N.E.2d at 605-06.
Also, though Corgan was a case involving a direct victim of negligent conduct, the extensive dicta in the case casts serious doubt on the vitality of the requirement that plaintiffs must show physical manifestations of their emotional distress under either the direct-impact rule or the zone-of-physical-danger rule in order to recover. Corgan, 574 N.E.2d at 607-09.
The Corgan court found that emotional distress that is not coupled with physical manifestations is "no less real" than distress that is coupled with physical manifestations "and should not be distinguishable at law." Id., 574 N.E.2d at 609. The court also noted that "the women and men of the mental health care field have made significant improvements in the diagnosis, description and treatment of emotional distress," and that jurors are quite capable of determining what is and is not emotional distress. Id., 574 N.E.2d at 609.
B. Whether Plaintiff is Either a Direct Victim or Within the Zone of Danger
Plaintiffs would be bystanders "within an accident's zone of danger (and able to seek recovery under Rickey) [if they were] sufficiently close to that accident such that [they were] subjected to a high risk of physical impact emanating from the accident itself." Corgan, 574 N.E.2d at 606, quoting Lewis v. Westinghouse Electric Corp., 139 Ill.App.3d 634, 640, 487 N.E.2d 1071, 1075, 94 Ill. Dec. 194 (1st Dist. 1985) (Linn, J., dissenting) (emphasis in original).
There was a violent explosion in relatively close proximity to the Buckley house. The Buckleys evacuated the house because of the possibility of imminent harm from fire or additional explosions. As it turned out, the house was subsequently destroyed by such an explosion or its aftermath. After resolving all factual doubts in favor of plaintiffs, we have no difficulty finding that they were sufficiently close to the accident as to be subjected to a high risk of physical impact emanating from the accident itself. Plaintiffs, then, were bystanders in the zone of danger, as described by Rickey and Corgan.4
As discussed above, in a bystander case Rickey required a showing of physical injury or illness as a result of the emotional distress. Again, the Corgan decision questions the vitality of this requirement. In any event, plaintiffs do claim physical manifestations such as sleeplessness and disturbed sleep, and anxiety, among other things, as a result of the accident. At this stage, and especially in light of Corgan, we are unwilling to find the physical manifestations of emotional distress presented by plaintiffs to be insufficient as a matter of law.
Whether plaintiffs are characterized as direct victims or as bystanders within the zone of danger, plaintiffs must be able to demonstrate severe emotional distress. In depositions and interrogatories the Buckleys claim their emotional distress has taken the form of depression, anxiety, and post-traumatic stress disorder syndrome, among other things. They have seen therapists for their problems resulting from the accident. Defendants, on the other hand, argue that the therapy sought by plaintiffs has been minimal. Similarly, defendants point to plaintiffs' success since the accident in jobs, at school, and in marriage, as precluding the existence of severe emotional distress.
Defendants also argue that plaintiffs are unable to demonstrate severe emotional distress, given cases such as Robbins v. Kass, supra. The Illinois appellate court in Robbins affirmed the circuit court's granting of summary judgment to defendants in a negligent infliction of emotional distress claim arising from the unattended stillbirth of plaintiff's child. The appellate court assumed, without deciding, that the mother was within the zone of physical danger. Id. at 932, 516 N.E.2d at 1027. Nevertheless, the court upheld the granting of summary judgment because the plaintiff's physical manifestations, such as crying, sleeplessness, migraine headaches and becoming upset when she saw a pregnant woman, were insufficient to establish physical injury or illness, as then required. Id. at 933-34, 516 N.E.2d at 1027-28. The decision in Robbins5 was based on an insufficient showing by plaintiff under the physical manifestations requirement. As we have seen, Corgan indicates that the physical manifestations requirement is no longer the law in Illinois.
Defendants' arguments may point to weaknesses in plaintiffs' ultimate case; however, we cannot say as a matter of law that plaintiffs have not experienced serious emotional distress.
Our conclusion is strengthened by the faith Corgan placed "in the ability of jurors to fairly determine what is, and is not, emotional distress." Corgan, 574 N.E.2d at 609.
For the above reasons, we deny ANR's motion for partial summary judgment on plaintiffs' claim of negligent infliction of emotional distress.
JAMES B. MORAN
Chief Judge, United States District Court
November 25, 1991.