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Wilson v. Norfolk & Westernrailway Co.

June 17, 1999

RONALD WILSON, APPELLEE,
v.
NORFOLK & WESTERNRAILWAY COMPANY, APPELLANT



The opinion of the court was delivered by: Justice Bilandic

-Agenda 8-January 1999

The circuit court of Madison County certified the following question for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):

"Whether plaintiff must plead and offer proof of physical contact or the threat of physical contact before a plaintiff can recover for the intentional infliction of emotional distress under the [Federal Employers' Liability Act]." We answer this question in the affirmative.

FACTS

Plaintiff, Ronald Wilson, filed this action in the circuit court of Madison County on April 24, 1995. His single-count complaint charged his employer, Norfolk & Western Railway Company (defendant), with intentional infliction of emotional distress in violation of the Federal Employers' Liability Act (FELA) (45 U.S.C. §51 et seq. (1994)).

Plaintiff alleged that he was employed by defendant as a trainman between June 28, 1972, and January 30, 1995. Plaintiff claimed that, during that time period, he was injured by the intentional acts of one of defendant's managerial agents, Mike Will, who was employed by defendant as a trainmaster. The complaint charged that defendant violated the FELA through the intentional infliction of emotional distress and demeaning comments by Mike Will. Plaintiff claimed that, as a result of defendant's violation of the FELA, he suffered severe and permanent injury to his nervous system.

Defendant moved to dismiss the complaint for failure to state a cause of action. Defendant's motion argued that, based on decisions of the Seventh Circuit Court of Appeals, plaintiff had failed to state a cause of action under the FELA because he had not alleged physical contact or threat of physical contact to him as a result of defendant's acts. The circuit court denied defendant's motion to dismiss, but granted defendant leave to further address this issue by means of a motion for summary judgment.

Defendant thereafter filed a motion for summary judgment reasserting the argument made in its motion to dismiss. Defendant again pointed out that plaintiff's complaint did not allege physical contact or threat of physical contact. The motion for summary judgment also referenced plaintiff's deposition testimony. In that testimony, plaintiff conceded that he did not sustain any physical contact or threat of physical contact as a result of actions by defendant. Plaintiff responded to the motion by urging the circuit court to hold that such evidence is not required to recover for intentional infliction of emotional distress under the FELA.

The circuit court denied defendant's motion for summary judgment. Defendant subsequently filed a motion for reconsideration or, in the alternative, a Rule 308 finding. The circuit court denied the motion for reconsideration, but entered an order certifying the above question for interlocutory appeal pursuant to Rule 308.

The appellate court accepted defendant's Rule 308 petition for leave to appeal. The appellate court answered the certified question in the negative, holding that a plaintiff need not plead and prove physical contact or threat of physical contact in order to recover for intentional infliction of emotional distress under the FELA. Relying on section 46 of the Restatement (Second) of Torts, the appellate court held that a plaintiff need only prove that the defendant has, by extreme and outrageous conduct, intentionally or recklessly caused severe emotional distress to the plaintiff. In so holding, the appellate court expressly declined to follow the precedent of the Seventh Circuit Court of Appeals on this issue. 296 Ill. App. 3d 1044.

We accepted defendant's petition for leave to appeal (177 Ill. 2d R. 315), and we now reverse the appellate court.

ANALYSIS

Section 1 of the FELA provides, in pertinent part, as follows:

"Every common carrier by railroad *** shall be liable in damages to any person suffering injury while he is employed by such carrier *** for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees or such carrier ***." 45 U.S.C. §51 (1994).

We must determine whether a claim for intentional infliction of emotional distress is cognizable under this section without evidence that the plaintiff was subjected to physical contact or the ...


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