Hammond v. Lane

• Decision Date: 30 September 1987
• Docket Number: No. 85-1326,85-1326
• Citation: 113 Ill.Dec. 843,515 N.E.2d 828,162 Ill.App.3d 17
• Parties: , 113 Ill.Dec. 843 Caroline A. HAMMOND, Plaintiff-Appellee, v. Charles E. LANE, Defendant (The Irene Josselyn Clinic, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

Page 828

515 N.E.2d 828

162 Ill.App.3d 17, 113 Ill.Dec. 843

Caroline A. HAMMOND, Plaintiff-Appellee, v. Charles E. LANE, Defendant (The Irene Josselyn Clinic Defendant-Appellant).

No. 85-1326.

Appellate Court of Illinois First District, Fifth Division.

Sept. 30, 1987.

Wildman, Harrold, Allen & Dixon, Chicago (Douglas L. Prochnow, Sharon R. Gromer, of counsel), for defendant-appellant.

Patricia C. Bobb & Associates, Chicago (Patricia C. Bobb, Kathryn A. Bettasso, of counsel), for plaintiff-appellee.

Justice LORENZ delivered the opinion of the court:

Defendant appeals the denial of its motion to dismiss under Supreme Court Rule 308(a). 87 Ill.2d R. 308.

We reverse and remand.

On March 6, 1985, plaintiff filed a single count second-amended complaint against Dr. Charles Lane and The Irene Josselyn Clinic. In her complaint plaintiff alleges that Dr. Lane treated her for certain psychiatric and psychological disorders from May 12, 1982, to July 14, 1983. The plaintiff further alleges that during the treatment Dr. Lane had sexual contact with her on four occasions. The second-amended complaint asserts that this contact constituted professional negligence causing the plaintiff emotional distress which resulted in physical injuries.

On May 1, 1985, the Clinic moved to strike and dismiss the complaint on the grounds that it sought recovery for negligent infliction of emotional distress without alleging the elements necessary for such a claim pursuant to Rickey v. C.T.A. (1983), 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1. The plaintiff filed no response. The trial court denied the motion. However, the following question of law was certified by the trial court as the basis for this Rule 308 appeal:

"Whether the second amended complaint properly states a cause of action for the negligent infliction of emotional distress according to Rickey v. C.T.A.? "

OPINION

The terms of Rule 308 provide an exception to the general rule that an appeal may be taken only from final judgments of the circuit court. (87 Ill.2d R. 308(a).) The supreme court has indicated that such appeals are to be allowed only in exceptional circumstances and as such should be strictly construed and sparingly exercised. (See People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 25 Ill.Dec. 669, 387 N.E.2d 325.) Of more import to this cause is the rule that an appeal pursuant to Rule 308 should be limited to the question certified by the trial court. (People v. Pollution Control Board (1984), 129 Ill.App.3d 958, 85 Ill.Dec. 84, 473 N.E.2d 452.) We are without jurisdiction to entertain matters outside the scope of the certified question because all review by this court is limited by supreme court rule to final orders and certain interlocutory appeals specified in those rules. (Getto v. City of Chicago (1981), 92 Ill.App.3d 1045, 48 Ill.Dec. 588, 416 N.E.2d 1110.) This court cannot, therefore, expand upon the questions properly brought before us by the trial court in order to answer other matters which could have been included. Potter v. Chicago Heights Motor Freight, Inc. (1979), 78 Ill.App.3d 676, 33 Ill.Dec. 642, 396 N.E.2d 1366.

Inexplicably, plaintiff has devoted almost her entire brief to addressing an issue which we have no jurisdiction to consider, whether a cause of action for medical malpractice has been properly pled. Even more inexplicably, the special concurrence has embraced this argument. We are confined to the issue of whether plaintiff has properly pled a cause of action for the negligent infliction of emotional distress.

Plaintiff argues, in effect, that recovery should be allowed in any case where, as here, the defendants reasonably could have foreseen that their negligence would cause emotional distress. This interpretation of Rickey, however, has been rejected as "untenable." See Gihring v. Butcher (1985), 138 Ill.App.3d 976, 93 Ill.Dec. 631, 487 N.E.2d 75.

To plead successfully a cause of action for negligent infliction of emotional distress, plaintiff must allege that defendant's negligence put her in reasonable fear for her own personal safety. (Gihring v. Butcher (1985), 138 Ill.App.3d 976, 93 Ill.Dec. 631, 487 N.E.2d 75.) Although plaintiff arguably has alleged that she suffered the "physical injury or illness" referred to in Rickey she has not alleged that she was "in a zone of danger and had reasonable fear for her safety." (See Johnston v. St. Anne's Hospital West, Inc. (1986), 146 Ill.App.3d 763, 100 Ill.Dec. 430, 497 N.E.2d 408.) Since plaintiff has not met the threshold requirement of Rickey, the trial court improperly denied defendant's motion to dismiss.

Our supreme court has recently reaffirmed the established principles of Rickey. (See Siemieniec v. Lutheran General Hospital (May Term 1987) 117 Ill.2d 230, 512 N.E.2d 691.) There, in her complaint plaintiff alleged that she became pregnant in February of 1980 and was concerned about the possibility of her child being born with hemophilia, a genetic disorder, because two of her cousins were afflicted with it. Plaintiff consulted with defendant-doctors with regard to her concerns. She was told the risk of her being a hemophilia carrier was "very low." Her child was born in October of 1980 and was diagnosed shortly thereafter as a hemophiliac. The complaint alleged that because the defendants were negligent in their diagnosis Adam was not aborted and the Siemieniecs suffered injury. The supreme court stated that Rickey adopted the zone-of-danger rule regarding recovery for emotional distress, which requires that before a plaintiff can recover he must have, himself, been endangered by the negligence and have demonstrated manifestations of physical injuries as a result of the emotional distress caused by defendant's negligence. The court stated further:

"There are no allegations in the complaint from which it can be said that the defendants' alleged negligence in any way endangered the parents of the impaired child. * * * "

The court, in finding that plaintiff failed to state a cause of action for negligent infliction of emotional distress, stated that they were not inclined to expand the right to recover for emotional distress.

Similarly, the plaintiff here has failed to allege that she was in any way endangered or in any way feared for her safety. Consequently, to answer the certified question, plaintiff has not successfully pled a cause of action for negligent infliction of emotional distress.

Accordingly for the reasons set forth in this opinion we reverse and remand.

REVERSED AND REMANDED.

SULLIVAN, P.J., concurs.

PINCHAM, J., specially concurring.

Justice PINCHAM, specially concurring:

Plaintiffs asserted in the trial court that plaintiff did not attempt to allege a cause of action for the negligent infliction of emotional distress and, accordingly, Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1, did not apply to plaintiff's alleged cause of action in her second amended complaint. I agree with plaintiff's contention. Because I fear that a simple "no" answer to the question certified to this court could be misconstrued as a basis for dismissing plaintiff's complaint, as urged by the defendant, I specially concur.

Plaintiff, Caroline A. Hammond, filed an action against defendants, Dr. Charles E. Lane and the Irene Josselyn Clinic (the Clinic). In plaintiff's second amended complaint plaintiff alleged that she was treated as an out-patient at the Clinic for psychiatric and psychological disorders by the defendant, Dr. Lane, a psychologist, therapist and counselor, from May 12, 1982, to July 14, 1983, and that as part of his treatment and care of plaintiff, Dr. Lane had sexual contacts with plaintiff on at least four occasions. Plaintiff further alleged that defendants were guilty of negligence in that they failed to use proper and ethical techniques of psychiatric therapy. Plaintiff's second amended complaint further alleged:

"7. The aforesaid conduct of [Dr.] Lane and the clinic, and each of them, constituted a substantial deviation from the accepted standard of care as practiced by reasonably well qualified psychologists, therapists and psychiatric clinics under the same or similar circumstances.

8. As a proximate result of one or more of the aforesaid negligent acts or omission by [Dr.] Lane and the clinic, and each of them, [plaintiff] Hammond sustained damages of a personal and pecuniary nature, including psychological, emotional and physical injuries, including insomnia, nausea, recurrent acute gastritis and irritable colon syndrome." (Emphasis added.)

The clinic filed a motion to dismiss plaintiff's second amended complaint. The clinic's dismissal motion asserted that negligent psychotherapy "does not directly cause" the medical problems of which plaintiff complains but that negligent psychotherapy may cause emotional distress which, in turn, causes those problems. The clinic's dismissal motion alleged:

"[T]he plaintiff's amended complaint seeks damages for the negligent infliction of emotional distress. The seminal case on the negligent infliction of emotional distress is, of course, Rickey v. C.T.A., 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1 (1983).

The Rickey court adopted what has been described as the zone of physical danger rule."

The clinic argued that to plead a proper cause of action for the negligent infliction of emotional distress, plaintiff must allege that the negligent act complained of gave her a reasonable fear for her own safety. Because plaintiff did not make such allegation, the clinic urged to the trial court, plaintiff's second amended complaint failed to state a cause of action for the negligent infliction of emotional distress and should be dismissed.

The clinic's dismissal motion was predicated on the clinic's expressed assumption that plaintiff's second amended complaint sought damages for the negligent infliction of emotional distress. On this...