Corgan v. Muehling

• Decision Date: 30 May 1991
• Docket Number: No. 67123,67123
• Parties: , 158 Ill.Dec. 489, 59 USLW 2755 Penelope CORGAN, Appellee, v. Conrad MUEHLING, Appellant.
• Court: Illinois Supreme Court

Page 602

574 N.E.2d 602

143 Ill.2d 296, 158 Ill.Dec. 489, 59

USLW 2755

Penelope CORGAN, Appellee, v. Conrad MUEHLING, Appellant.

No. 67123.

Supreme Court of Illinois.

May 30, 1991.

Wildman, Harrold, Allen & Dixon, Douglas L. Prochnow and Gary E. Dyal, Chicago, of counsel, for appellant.

Michael L. Bolos, Shorewood, for appellee.

John C. Wunsch, Corboy & Demetrio, Todd A. Smith, of counsel, Chicago, for amicus curiae Illinois Trial Lawyers Association.

Justice MORAN delivered the opinion of the court:

Plaintiff, Penelope Corgan, filed this tort action in the circuit court of Cook County against defendant, Conrad Muehling. Defendant filed a motion to dismiss counts I, III and IV of plaintiff's third-amended complaint, hereinafter referred to as the complaint (Ill.Rev.Stat.1981, ch. 110, par. 2-615). The circuit court dismissed count IV, refused to dismiss counts I and III and certified the following questions for appellate review (134 Ill.2d R. 308):

"1. Whether Rickey v. Chicago Transit Authority [ (1983), 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1], bars recovery for emotional damages under Count I of the plaintiff's [complaint] against a psychologist for negligence.

2. Whether Rickey * * * bars recovery for emotional damages under Count III of the plaintiff's [complaint] against a psychologist for negligence."

The appellate court affirmed the circuit court in part, holding that Rickey does not bar plaintiff from recovering damages under counts I and III. The appellate court also vacated the circuit court's dismissal of count IV, holding that the Psychologist Registration Act (the Act) (Ill.Rev.Stat.1981, ch. 111, par. 5301 et seq.) implicitly permits plaintiff to maintain a private right of action for nuisance. (167 Ill.App.3d 1093, 118 Ill.Dec. 698, 522 N.E.2d 153.) This court granted defendant's petition for leave to appeal (134 Ill.2d R. 315) and allowed the Illinois Trial Lawyers Association to file an amicus curiae brief in support of plaintiff. 134 Ill.2d R. 345.

The issues presented for review are whether: (1) direct victims must set forth the pleading requirements established in Rickey when stating a cause of action for negligent infliction of emotional distress; and (2) the Act permits plaintiff to maintain a private right of action for nuisance.

As our review of this case is limited to the sufficiency of plaintiff's complaint, all well-pled facts must be accepted as true. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill.2d 378, 387, 98 Ill.Dec. 1, 493 N.E.2d 1022.) Plaintiff alleged the following facts in her four-count complaint. She alleged that defendant publicly held himself out as a registered psychologist, that she came under his professional care in March 1979, and that she ended her professional relationship with him in October 1980.

She further alleged that between March 1979 and October 1980, defendant repeatedly engaged in sexual intercourse with her "under the guise of therapy." Plaintiff also alleged that defendant's conduct caused and still causes her to experience "fear, shame, humiliation and guilt." Moreover, that defendant's conduct compelled her "to undergo more intensive and extensive psychotherapeutic care and counseling."

Count I, entitled "PSYCHOLOGICAL MALPRACTICE," alleged that defendant owed plaintiff "a duty to possess and exercise the skill, knowledge and expertise which would have been exercised by reasonably well qualified psychologists in like circumstances." Count I further alleged that defendant breached this duty by: (1) undertaking psychological care of female patients when he knew from past experience that he was incapable of maintaining appropriate professional objectivity; (2) failing "to establish and maintain an appropriate and proper therapeutic milieu"; (3) failing to recognize and deal with the evolving psychotherapeutic phenomenon of transference and countertransference; (4) permitting his relationship with plaintiff to become a vehicle for the "resolution of his own psychosexual infirmities"; (5) failing to consult with other qualified psychologists or psychiatrists when he realized that his relationship with plaintiff was adverse to her psychological well-being; and (6) failing to refer plaintiff to another qualified psychologist or psychiatrist when he knew or should have known that his therapy was adverse to her psychological well-being.

Count II is not at issue in this appeal, as it involved another party with whom plaintiff settled. Count III, entitled "WILLFUL AND WANTON MISCONDUCT," alleged that defendant owed plaintiff "a duty to refrain from willful abuse of his professional relationship" with her. Count III further alleged that defendant breached this duty and demonstrated "a conscious indifference and reckless disregard for [p]laintiff" by repeatedly engaging "in sexual intercourse with her under the guise of therapy."

Count IV, entitled "NUISANCE," alleged that the Act requires psychologists to register with the State and that defendant never so registered. Count IV further alleged that defendant was, therefore, a "public nuisance" pursuant to section 26 of the Act, because he "represent[ed] himself as a psychologist" and rendered "psychological services without having in effect a currently valid certificate." Ill.Rev.Stat.1981, ch. 111, par. 5327.

In his motion to dismiss counts I, III and IV, defendant: (1) characterized count I as a cause of action for negligent infliction of emotional distress and argued that it should be dismissed because plaintiff failed to set forth the pleading requirements established in Rickey; (2) characterized count III as a cause of action for intentional infliction of emotional distress and argued that it should be dismissed for failure to state a cause of action because plaintiff failed to set forth the pleading requirements established in Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157; and (3) argued that count IV should be dismissed because the Act does not expressly provide a private right of action for nuisance.

In her response to defendant's motion to dismiss, plaintiff argued that defendant mischaracterized count III. She explained that count III stated a cause of action for negligence rather than intentional infliction of emotional distress, because "[w]illful [sic ] and wanton misconduct is an aggravated form of negligence." The circuit court then dismissed count IV, refused to dismiss counts I and III and certified the related questions for appellate review.

The appellate court determined that count I was "in essence for negligence" and that count III was "basically an action for negligence, since * * * willful and wanton misconduct is an aggravated form of negligence." (167 Ill.App.3d at 1096, 118 Ill.Dec. 698, 522 N.E.2d 153.) Upon concluding that both counts I and III stated a cause of action for negligent infliction of emotional distress, the appellate court affirmed the circuit court in part, holding that Rickey did not bar plaintiff from recovering damages under counts I and III. The appellate court reasoned that Rickey had no application to plaintiff's case because she was the direct victim of alleged negligent conduct, whereas the Rickey plaintiff was a bystander who witnessed a negligent act involving the defendant and the direct victim. Moreover, the appellate court determined that direct victims only need to set forth the elements of negligence--duty, breach, causation and damages--when stating a cause of action for negligent infliction of emotional distress. 167 Ill.App.3d at 1102, 118 Ill.Dec. 698, 522 N.E.2d 153.

The appellate court also vacated the circuit court's dismissal of count IV, holding that the Act implicitly permits plaintiff to maintain a private right of action for nuisance. The appellate court reasoned that plaintiff was a member of the class for whose benefit the Act was enacted, that implication of a private right of action was consistent with the purpose of the Act, that the Act was designed to prevent plaintiff's injury, and that implication of a private right of action was necessary to provide plaintiff with an adequate remedy for defendant's violation of the Act. 167 Ill.App.3d at 1104, 118 Ill.Dec. 698, 522 N.E.2d 153.

The first issue presented for review is whether direct victims must set forth the pleading requirements established in Rickey when stating a cause of action for negligent infliction of emotional distress.

Prior to this court's decision in Rickey, Illinois courts were guided by the impact rule when determining whether direct victims and bystanders could recover damages for negligent infliction of emotional distress. (See Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657.) The impact rule permitted both direct victims and bystanders to recover damages, if they suffered: (1) emotional distress; and (2) "a contemporaneous physical injury or impact." Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 553, 75 Ill.Dec. 211, 457 N.E.2d 1.

In Rickey, this court disavowed the impact rule, stating:

"The standard that we substitute for the one requiring contemporaneous injury or impact is the standard which has been adopted in the majority of jurisdictions where this question of recovery by a bystander for emotional distress has been examined. [Citations.] That standard has been described as the zone-of-physical-danger rule. Basically, under it a bystander who is in a zone of physical danger and who, because of the defendant's negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress. This rule does not require that the bystander suffer a physical impact or injury at the time of the negligent act, but it does require that he must have 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...