Dymek v. Nyquist, 83-1651

• Decision Date: 18 September 1984
• Docket Number: No. 83-1651,83-1651
• Citation: 469 N.E.2d 659,83 Ill.Dec. 52,128 Ill.App.3d 859
• Parties: , 83 Ill.Dec. 52 Allen R. DYMEK, individually and as a custodial parent of Robert A. Dymek, a minor, Plaintiff-Appellant, v. Robert E. NYQUIST and Retha J. Dymek, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 659

469 N.E.2d 659 128 Ill.App.3d 859, 83 Ill.Dec. 52 Allen R. DYMEK, individually and as a custodial parent of
Robert A. Dymek, a minor, Plaintiff-Appellant,
v.
Robert E. NYQUIST and Retha J. Dymek, Defendants-Appellees. No. 83-1651. Appellate Court of Illinois,
First District, Second Division. Sept. 18, 1984.

Page 661

[128 Ill.App.3d 860] [83 Ill.Dec. 54] Edward L. Osowski, Chicago, for plaintiff-appellant.

Maurice J. Garvey, William J. Rogers, and Thomas E. Patterson, Wildman, Harrold, Allen & Dixon, Chicago, for defendants-appellees.

DOWNING, Justice:

Plaintiff, Allen R. Dymek, appeals from the entry of an order dismissing his complaint at law with prejudice pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-615). ¹

On March 9, 1982, plaintiff instituted the present action against defendant Robert E. Nyquist, a psychiatrist, and defendant Retha J. Dymek, ² plaintiff's former wife. Essentially, plaintiff's complaint alleged that Retha took their son, Robert, a 9-year-old minor over whom plaintiff had been awarded custody, to see Dr. Nyquist for a period of one year for purposes of psychiatric treatment. Robert allegedly underwent psychotherapy without the knowledge or consent of plaintiff. Subsequent thereto, Dr. Nyquist testified on behalf of Retha at a hearing held in connection with her petition for change of custody.

By virtue of these allegations, plaintiff averred that he had suffered "severe emotional stress and disturbance to [his] mental tranquility" as a result of Dr. Nyquist's conduct (count I); that Dr. Nyquist [128 Ill.App.3d 861] had breached the fiduciary duty of trust and confidence owed to Robert (count II); that Dr. Nyquist and Retha conspired "to gain physical and mental custody and control of [Robert] * * * and to maliciously, unlawfully and wrongfully injure the plaintiff in his mental and emotional well-being" (count III); that Dr. Nyquist and Retha deprived, alienated and destroyed the affection of Robert toward plaintiff (count IV); and that Dr. Nyquist had engaged in malpractice through unauthorized treatment as well as unconsented revelation of privileged psychiatric information (count V).

Count IV, originally premised on alienation of affections, was amended by leave of court on January 25, 1983 so that the words "to alienate and destroy the affection" were replaced by the words "to injure

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[83 Ill.Dec. 55] and destroy the society and companionship." On that same day, January 25, pursuant to Dr. Nyquist's motion, the trial court entered an order dismissing counts II, IV, and V of the complaint, and striking counts I and III with leave to amend. Plaintiff, however, elected to stand on his pleadings and subsequently filed a motion for rehearing and to vacate the order of January 25, 1983. This motion was denied and plaintiff's complaint was thereupon dismissed with prejudice on June 6, 1983. ³ It is the propriety of this dispositive order which plaintiff now contests on appeal.

I.

The sole issue presented for review is whether the lower court properly dismissed plaintiff's complaint with prejudice.

COUNT I

In order to state a cause of action for intentional infliction of emotional distress, facts must be alleged which establish: (1) that the defendant's conduct was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant's conduct, if alleged to have been "reckless," was such that the defendant knew severe emotional distress would be certain or substantially certain to result. Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 89-90, 4 Ill.Dec. 652, 360 N.E.2d 765.

Regarding the first element, the nature of defendant's conduct, liability exists only where such conduct has been " 'so outrageous in character, and so extreme in degree, as to go beyond all possible [128 Ill.App.3d 862] bounds of decency * * *.' " (Plocar v. Dunkin' Donuts of America, Inc. (1st Dist.1981), 103 Ill.App.3d 740, 745-46, 59 Ill.Dec. 418, 431 N.E.2d 1175, quoting Restatement (Second) of Torts § 46, comment d (1965).) With respect to the second element, the severity of plaintiff's distress, " '[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity.' " (Public Finance Corp., 66 Ill.2d at 90, 4 Ill.Dec. 652, 360 N.E.2d 765, quoting Restatement (Second) of Torts § 46, comment j (1965).) Pertaining to the recklessness of defendant's conduct, "liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it." Plocar, 103 Ill.App.3d at 746, 59 Ill.Dec. 418, 431 N.E.2d 1175, citing Restatement (Second) of Torts § 46, comment i (1965), and Prosser, Torts § 12, at 60 (4th ed. 1971).

In order to determine whether a plaintiff has stated a cause of action for intentional infliction of emotional distress, a reviewing court must accept as true the allegations contained in the complaint. (Witkowski v. St. Anne's Hospital of Chicago, Inc. (1st Dist.1983), 113 Ill.App.3d 745, 752, 69 Ill.Dec. 581, 447 N.E.2d 1016, appeal denied, 97 Ill.2d (37).) Here, plaintiff's complaint charges that Dr. Nyquist surreptitiously performed psychotherapy on Robert twice a month for a period of one year. By virtue of this course of action, it is claimed that Dr. Nyquist intentionally or recklessly caused severe emotional distress to plaintiff's mental tranquility.

It is our opinion that the psychiatrist's conduct, performed at the request of Robert's mother, cannot be characterized as so outrageous, so atrocious and so utterly intolerable that a person of ordinary sensibilities could not reasonably be expected to endure it. In support of a contrary conclusion, plaintiff cites and strongly relies on Burchfield v. Regents of the University of Colorado (D.Colo.1981), 516 F.Supp. 1301. Such reliance, however, is seriously misplaced since Burchfield did not concern the tort of intentional infliction...