Kapoulas v. Williams Ins. Agency, Inc.

• Decision Date: 26 January 1994
• Docket Number: No. 92-3993,92-3993
• Citation: 11 F.3d 1380
• Parties: Loren KAPOULAS and Alyssa Kapoulas, Plaintiffs-Appellants, v. WILLIAMS INSURANCE AGENCY, INC. and Constance Williams, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1380

11 F.3d 1380

Loren KAPOULAS and Alyssa Kapoulas, Plaintiffs-Appellants, v. WILLIAMS INSURANCE AGENCY, INC. and Constance Williams,

Defendants-Appellees.

No. 92-3993.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 28, 1993.

Decided Dec. 15, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 26, 1994.

Paul G. Hardiman, Hardiman & Hardiman, Chicago, IL (argued), for plaintiffs-appellants.

Edward C. Abderholden (argued), Horace W. Jordan, Richard J. Loeffler, Van Duzer, Gershon, Jordan, Petersen & Loeffler, Chicago, IL, for defendants-appellees.

Before BAUER, Circuit Judge, and WOOD, Jr. and ESCHBACH, Senior Circuit Judges.

ESCHBACH, Senior Circuit Judge.

In this tort action between diverse citizens, the district court awarded summary judgment to the defendants, Williams Insurance Company and Constance Williams ("Williams"), on the issue of negligent infliction of emotional distress. 777 F.Supp. 688. Loren and Alyssa Kapoulas ("Kapoulas") now appeal. We have jurisdiction under 28 U.S.C. Sec. 1291. We reverse and remand.

On June 27, 1988, Constance Williams and her young son and daughter were driving east on a two-lane highway in a car owned by the Williams Insurance Company. As she turned left and started to cross the westbound lane, Loren Kapoulas, driving a tractor-trailer rig, collided with her car. Ms. Williams survived the accident, but her two children did not. Kapoulas suffered only a bruised shoulder. After the accident, however, Kapoulas suffered psychiatric and emotional problems evidenced by insomnia, nightmares, lethargy, loss of libido, facial twitching, loss of appetite and weight, shaking and sweating. The precise cause or source of this emotional distress is the primary issue in this appeal.

Kapoulas and his wife Alyssa, who correspondingly claims loss of consortium resulting from Kapoulas' emotional distress, settled all other claims against Williams for lost wages, bodily injury, and property damage to the tractor-trailer. Their settlement did not contemplate any damages for mental or emotional suffering, and Kapoulas' only remaining claim is for negligent infliction of emotional distress.

We review summary judgments de novo and resolve any doubt as to the existence of a material fact in favor of the non-moving party. New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1477 (7th Cir.1990). Both parties agree that we are to interpret and apply Illinois law. Unfortunately, under the Illinois law applicable to this case, our task is more simply stated than done. Like several other jurisdictions, Illinois' law regarding negligent infliction of emotional distress has undergone several transformations. Prior to the Illinois Supreme Court's decision in Rickey v. Chicago Transit Authority, 98 Ill.2d 546, 75 Ill.Dec 211, 457 N.E.2d 1 (1983), "recovery for negligently caused emotional distress suffered by the direct victim or by a bystander who witnesses the injury of another [had] been consistently denied unless it was accompanied by a contemporaneous physical injury to or impact on the plaintiff." (Emphasis supplied.) Id. 75 Ill.Dec. at 212, 457 N.E.2d at 2 (citing Braun v. Craven, 175 Ill. 401, 51 N.E. 657 (1898); Carlinville National Bank v. Rhoads, 63 Ill.App.3d 502, 20 Ill.Dec. 386, 380 N.E.2d 63 (1978); Kaiserman v. Bright, 61 Ill.App.3d 67, 18 Ill.Dec. 108, 377 N.E.2d 261 (1978); and Neuberg v. Michael Reese Hosp. & Med. Ctr., 60 Ill.App.3d 679, 18 Ill.Dec. 62, 377 N.E.2d 215 (1978)). Illinois courts refer to this as the "impact rule." In Rickey, the Illinois Supreme Court went a step beyond the impact rule and adopted the "zone of physical danger" rule. The zone of danger rule widened the class of plaintiffs that could recover for negligent infliction of emotional distress to include those bystanders "in a zone of physical danger and who, because of the defendant's negligence, [had] reasonable fear for [their] own safety" which caused them emotional distress, and who could demonstrate physical injury or illness resulting from the emotional distress. Rickey, 75 Ill.Dec. at 215, 457 N.E.2d at 5. Thus, after Rickey, a bystander need not prove impact or injury as a prerequisite to recovering emotional distress damages, but he must nevertheless demonstrate that he was in the zone of danger and that his emotional distress resulted from a fear for his own safety. These two requirements--a dangerous proximity to the accident and a fear for one's own safety--suggest that even though the Illinois Supreme Court desired to permit certain bystanders to recover for emotional distress, it correspondingly intended to limit the class of unimpacted or uninjured bystanders to those who could demonstrate a fear for their own safety.

Subsequent Illinois decisions have construed Rickey 's zone of danger rule to apply only where a bystander claims emotional distress. When a direct victim claims emotional distress, the impact rule still applies. See Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 491-92, 574 N.E.2d 602, 604-05 (1991). Therefore, the distinction between direct victim and bystander takes on some importance in determining whether to allow recovery for emotional distress. If a plaintiff is solely a bystander, Rickey presents a significant barrier to recovery. On the other hand, if a plaintiff is a direct victim and the impact rule applies, recovering emotional distress damages is less arduous. In this case, the Kapoulas argue that Loren Kapoulas was a direct victim of Constance Williams' negligence and therefore Rickey does not apply to him. The defendants do not dispute that Kapoulas was in part a direct victim, but they also contend that Kapoulas was also a bystander for purposes of evaluating his emotional distress. They argue that his emotional distress resulted from witnessing the deaths of the two children rather than from a fear for his own safety. Therefore, they contend, Rickey does not permit recovery.

The district court held that Kapoulas was a bystander and denied plaintiffs' requests for relief under Rickey because Kapoulas could not sufficiently demonstrate that his emotional distress arose from a fear for his own safety rather than a concern for the two children. However, the district court incorrectly assumed that a plaintiff is either a direct victim or a bystander, and therefore did not consider the possibility that Kapoulas could have been both a bystander and direct victim. In so doing, the district court only applied the Rickey analysis and did not consider the possibility that some of Kapoulas' emotional distress resulted from being a direct victim which would have necessitated an alternative analysis under the impact rule. As shown below, several Illinois cases illustrate that a plaintiff may be both a direct victim and a bystander in the same incident for the purposes of determining the source of his emotional distress. Moreover, we disagree with the district court and the defendants that Kapoulas' emotional suffering came solely from his status as a witness. Our examination of the record reveals that at least part of his emotional distress resulted from his direct involvement as a participant in the accident. This, we conclude, was of such importance in determining plaintiffs' ability to recover that summary judgment was inappropriate.

Defendants cite two Illinois decisions, Alexander v. De Paepe, 148 Ill.App.3d 831, 102 Ill.Dec. 285, 499 N.E.2d 1065 (1986), and Carlinville Nat'l Bank v. Rhoads, 63 Ill.App.3d 502, 20 Ill.Dec. 386, 380 N.E.2d 63 (1978), with fact patterns remarkably similar to this case. Both demonstrate that a plaintiff may be both a direct victim and a bystander in the same accident. ¹ In Carlinville, decided prior to Rickey, a wife sought emotional distress damages for an accident involving herself and her husband. She made separate claims for relief. First, she sought damages for her own physical injuries and the mental trauma associated with those injuries. Next, she sought damages for her emotional distress which resulted from witnessing her husband's death as a passenger in the same car. Even though the plaintiff was a direct victim in the accident, the court nevertheless denied her second claim for emotional distress damages because that emotional distress arose "solely as the result of witnessing peril or harm to another." Id. 20 Ill.Dec. at 389, 380 N.E.2d at 66.

In Alexander, decided after Rickey, the plaintiff separately requested damages for her own injuries resulting from an automobile accident, and her emotional distress which resulted from witnessing the fatal injuries to her fiance. Id., 102 Ill.Dec. at 286, 499 N.E.2d at 1066. As in Carlinville, the Alexander court denied her request for emotional distress damages, but in this case the court relied on Rickey. It held that "Rickey does not support a cause of action for negligent infliction of emotional distress based only on witnessing injury to a direct victim. The bystander's action arises only when he shows that his emotional distress arose from fear for his own well-being." Id., 102 Ill.Dec. at 288, 499 N.E.2d at 1068. Therefore, it is not without precedent that we separate Kapoulas' emotional distress which resulted from his actual involvement in the accident (from his impact or injury) from his emotional distress caused by witnessing the death of the two children. ²

Defendants cite Alexander and Carlinville for the uncontested proposition that mere witnesses cannot recover for emotional distress unless they satisfy the Rickey analysis. However, the real issue here is whether Loren Kapoulas' emotional distress arose strictly from his status as a witness or arose from a combination of his status as a witness and his direct participation in the accident as a victim.

The defendants argue that because Kapoulas' emotional distress did not result from a fear for his own safety, he cannot recover for any emotional...