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July 28, 2003


The opinion of the court was delivered by: Blanche Manning, District Judge


Plaintiffs David and Barbara Shemenski bring this action against Sergeant Michael Chapiesky, a Village of Lyons (the "Village") police officer, and the Village. David Shemenski alleges a 42 U.S.C. § 1983 unreasonable seizure claim against Chapiesky (Count I), pendent state law false arrest and intentional infliction of emotional distress ("IIED") claims against Chapiesky (Counts II and III, respectively), a respondeat superior claim against the Village for the claims set forth in Counts I through III (Count IV), and a statutory indemnification claim against the Village for any judgment on Counts I through III (Count V). Barbara Shemenski joined in Counts III through V. Presently before the court is Defendants' motion to dismiss Barbara Shemenski's claims set forth in Counts III through V pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, Defendants' motion is denied.

I. Background*fn1

David and Barbara Shemenski are married with four children. On June 18, 2002, Mrs. [ Page 2]

Shemenski gave birth to their then-fifth child, Claire. On the morning of July 2, 2002, Mr. Shemenski noticed that Claire was bleeding from her nose and mouth and was having trouble breathing. The Shemenskis immediately placed a 911 call, and paramedics arrived and took the newborn to the hospital. Mrs. Shemenski drove to the hospital while Mr. Shemenski waited at home for the arrival of a babysitter to watch the other children. When the babysitter arrived, Mr. Shemenski attempted to leave for the hospital, but his car was blocked by the squad car of Village Police Sergeant Chapiesky, who had responded to the 911 call. When Mr. Shemenski asked Chapiesky to move his vehicle, Chapiesky refused, and told Mr. Shemenski that he "had to wait." Shortly thereafter, Mr. Shemenski attempted to leave for the hospital with the babysitter's car (with her permission), but was arrested and taken to the Village police station by Chapiesky. At the police station, Mr. Shemenski repeatedly requested to be freed so he could join his wife at the hospital, but Chapiesky refused. After some period of time, Chapiesky informed Mr. Shemenski that his daughter had died.

At the hospital, medical personnel had informed Mrs. Shemenski that they had been unable to save Claire. Mrs. Shemenski was then driven to the Village police station, interviewed, and finally taken to see her husband in an interrogation room. Shortly thereafter, Village police released Mr. Shemenski, and the Shemenskis returned to the hospital together.

On February 5, 2003, the Shemenskis filed a five-count Complaint in which Mr. Shemenski alleged a 42 U.S.C. § 1983 claim for unreasonable seizure against Chapiesky (Count I); pendent state law claims for false arrest and IIED against Chapiesky (Counts II and III, respectively); and respondeat superior and statutory indemnification claims against the Village for Counts I through III (Counts IV and V, respectively). Mrs. Shemenski is also named as a [ Page 3]

Plaintiff in Counts III through V (of course, because Mrs. Shemenski is not named in Counts I and II, Counts IV and V seek recovery only for liability on Count HI). On April 11, 2003, Defendants filed a Fed.R.Civ. P. 12(b)(6) motion to dismiss the claims of Mrs. Shemenski.

II. Standard of Review

In ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must assume the truth of all facts alleged in the pleadings, construe all allegations liberally, and view them in the light most favorable to the plaintiff. Hickey v. O'Bannon, 287 F.3d 656, 657-58 (7th Cir. 2002). To survive a motion to dismiss, the complaint need only state a claim and facts that give the defendant adequate notice of the basis of the lawsuit. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id.

Dismissal is properly granted only if it is clear that no set of facts which the plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Hickey, 287 F.3d at 657. In other words, if it is possible to hypothesize a set of facts that would entitle a plaintiff to relief consistent with the complaint's allegations, dismissal of the plaintiff's claims under Rule 12(b)(6) is not warranted. Graehling v. Village of Lombard, 58 F.3d 295, 297 (7th Cir. 1995).

III. Discussion*fn2 [ Page 4]

Defendants, in moving to dismiss Mrs. Shemenski's IIED claim in Count III, argue that she may not bring an IIED claim for tortious conduct directed at Mr. Shemenski. Defendants seek to dismiss Mrs. Shemenski's remaining claims, Counts IV and V, because both are derivative claims dependent upon a finding of liability on Count III.

Illinois first recognized an actionable tort for IIED in Knierim v. Izzo, 22 Ill.2d 73; 174 N.E.2d 157 (1961), and has since outlined its elements. Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001). First, the defendant's conduct must be extreme and outrageous; second, the defendant must intend that his conduct inflict severe emotional distress, or know with a high degree of certainty that the distress would result; and third, the conduct must in fact ...

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