the Workers' Comp. Act would normally bar Otterbacher's claim for intentional infliction of emotional distress against Northwestern (insofar as the allegations under the doctrine of respondeat superior relate to the alleged outrageous job harassment) Otterbacher's claims are not barred in the present case because Garner, when directing Otterbacher's job duties in her capacity as supervisor, may have acted as an alter ego of Northwestern. See Johnson, 557 N.E.2d at 332 (manager was alter ego of bank).
Further, as to the allegations which extend beyond the term of Otterbacher's employment, the court cannot separate these claims from the course of conduct Garner began as Otterbacher's superior absent the benefit of specific facts adduced during discovery. The court cannot hold, at the pleading stage, that these injuries were received during the course of Otterbacher's employment which would fall outside the third exception identified in Meerbrey, 564 N.E.2d at 1226 and thus bar the common-law claims. See Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 324 (7th Cir. 1992) (subordinate's emotional distress arose from employment).
IV. Right to Privacy.
Last, Otterbacher's complaint purports to state a claim for the privacy tort of intrusion into seclusion. Defendants assert that the complaint fails to state a claim because Illinois does not recognize this variety of the privacy tort and because the allegations do not rise to a privacy violation.
The court analyzes the complaint against the backdrop of Illinois's substantive law. Ross v. Creighton, 957 F.2d at 413. Thus, in determining whether Illinois recognizes the tort of intrusion into the seclusion of another, the court must attempt to predict how the Illinois Supreme Court would decide the issue. Id. When the issue has not yet been considered by that court, this court also looks to decisions by Illinois appellate courts and other states' courts in order to formulate a decision. Id. (citing Brooks v. Chicago Downs Ass'n, 791 F.2d 512, 514 (7th Cir. 1986)).
Illinois has yet to specifically recognize this variety of privacy tort. Lovgren v. Citizens First Nat'l Bank, 126 Ill. 2d 411, 534 N.E.2d 987, 989, 128 Ill. Dec. 542 (1989); see Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, slip op. at 11 (7th Cir. 1993). The Illinois Supreme Court has, however, cautiously recognized a general right to privacy, Leopold v. Levin, 45 Ill. 2d 434, 259 N.E.2d 250 (1970), and has thus recognized privacy torts, including, for instance, the false light privacy tort, Lovgren, 534 N.E.2d at 992. A number of the Illinois appellate districts have recognized the seclusion privacy tort, although the tally is far from unanimous. See Lovgren, 534 N.E.2d at 989 (noting the split between the appellate districts). Nonetheless, other states have recognized the intrusion tort and its application where unwanted and repeated telephone calls form the basis for imposition of liability. Harms v. Miami Daily News, Inc., 127 So. 2d 715, 716-17 (Fla. App. 1961); W. PROSSER & W. KEETON, TORTS § 117, at 854-55 (5th ed. 1984); see also Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir. 1993) (noting application of intrusion tort to unwanted and repeated telephone calls); Lovgren, 534 N.E.2d at 989 (same).
Without deciding whether it is likely that the Illinois Supreme Court would recognize a cause of action for intrusion into the seclusion, the court finds that there may exist a set of facts demonstrating a severe intrusion into the seclusion of Otterbacher such that the Illinois courts would recognize a cause of action. The court will again await the development of the operative facts forming the core of this case before proceeding with the question.
For the reasons stated above, the court dismisses count III. The court denies the remainder of the motion to dismiss.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court