Pearson v. Lake Forest Country Day School

• Decision Date: 04 May 1994
• Docket Number: No. 2-93-0478,2-93-0478
• Citation: 199 Ill.Dec. 324,633 N.E.2d 1315,262 Ill.App.3d 228
• Parties: , 199 Ill.Dec. 324 Debra PEARSON, Indiv. and as Parent and Next Friend of Phoenix Pearson, a Minor, Plaintiff-Appellant, v. LAKE FOREST COUNTRY DAY SCHOOL et al., Defendants (American Airlines, Inc., and Steve J. Brno, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 1315

633 N.E.2d 1315

262 Ill.App.3d 228, 199 Ill.Dec. 324

Debra PEARSON, Indiv. and as Parent and Next Friend of

Phoenix Pearson, a Minor, Plaintiff-Appellant, v. LAKE FOREST COUNTRY DAY SCHOOL et al., Defendants (American

Airlines, Inc., and Steve J. Brno, Defendants-Appellees).

No. 2-93-0478.

Appellate Court of Illinois,

Second District.

May 4, 1994.

Nunc pro tunc May 19, 1994.

Norman Rifkind, Beigel & Sandler, Laurence M. Landsman (argued), Beigel & Sandler, Chicago, for Debra Pearson and Phoenix Pearson (a minor).

Patrick J. Lubenow, Querrey & Harrow, Ltd., Waukegan, for Lake Forest Country Day School, Ann M. Shiras and Larry Ivens.

Amy P. Hartman (argued), Joel H. Kaplan, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, for American Airlines and Steve J. Brno.

Justice COLWELL delivered the opinion of the court:

Plaintiff, Debra Pearson, brought suit in her capacity as parent and next friend of Phoenix, a 13-year-old girl, against American Airlines (American) for intentional and negligent infliction of emotional distress after American refused to board Phoenix on a flight from Madrid to Dallas at the end of a school-sponsored trip. Plaintiff also sued, individually, American and one of its employees, Steve J. Brno, for defamation, alleging injuries resulting from a letter written by Brno to an employee of the school two months after the incident. Although Lake Forest Country Day School (Lake Forest) and two of its employees were also named as defendants, this appeal involves only plaintiff's claims against American and Brno.

Pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), the circuit court dismissed plaintiff's causes of action against American on the ground that they were preempted by the Federal Aviation Act (42 U.S.C.App. § 1305(a)(1) (1988)). The court also granted Brno's motion to dismiss the defamation claim against him for lack of personal jurisdiction. We vacate the court's ruling with respect to personal jurisdiction over Brno but affirm the dismissal of plaintiff's causes of action against both Brno and American.

We note, preliminarily, that plaintiff's statement of facts is defective. Supreme Court Rule 341(e)(6) provides that the facts shall be "stated accurately and fairly without argument or comment." (134 Ill.2d R. 341(e)(6).) It is not the least bit helpful to our review, or to plaintiff's cause, that her statement of facts is laden with argument and comment. Supreme Court Rules pertaining to appellate briefs are not merely suggestions. First National Bank v. Loffelmacher (1992), 236 Ill.App.3d 690, 177 Ill.Dec. 299, 603 N.E.2d 80.

The facts, when viewed in the light most favorable to plaintiff, can be summarized as follows. Between June 14 and July 4, 1991, Phoenix participated in a trip to Spain offered by Lake Forest Country Day School (Lake Forest) through its Spanish program. The itinerary included arrival at, and departure from, Madrid, Spain. Because Phoenix's mother, the plaintiff, was an international flight attendant with American, Phoenix was entitled to use a pass available to the families of American employees.

Although a priority pass, the "D-1" pass Phoenix was entitled to use does not guarantee a seat on a flight. Pass passengers are required to telephone the airline prior to the day of the flight and have themselves placed on a list for the flight's meal count. Pass passengers put themselves on a stand-by list on the day of the flight, and the decision as to whether a pass passenger can travel on a particular flight depends on the priority level of the pass as well as the pass passenger's position on the stand-by list. Although a pass passenger is, generally, only eligible to fly coach class, a pass passenger 13 years old or older, who is dressed appropriately and for whom a meal is available, could be seated in a business or first class seat if all coach class seats are occupied.

On July 4, 1991, the students and their two chaperons arrived at the Madrid airport. Ann M. Shiras, a teacher at Lake Forest, was not returning with the others and said goodbye to them at the security gate inside the airport. The other supervisor, Larry Ivens, accompanied the students to the departure gate where all the members of the trip except for Phoenix, her roommate, and Ivens boarded a bus to be taken to the aircraft. When the final boarding call was announced, Ivens told Phoenix that American would not permit her on the flight because there were purportedly no unoccupied seats available for her. He then gave Phoenix her passport and boarded the bus with Phoenix's roommate. The plane flew to Dallas with three empty seats.

Left alone in the airport, Phoenix was upset and afraid. An American couple from Dallas, Texas, also flying stand-by and also unable to get on the flight to Dallas, approached Phoenix and took her to an apartment where the couple was staying. The couple telephoned plaintiff to explain what had happened. The next day, all three flew to Dallas together, where the couple ensured that Phoenix cleared customs and boarded a flight to Chicago.

Plaintiff's complaint alleges that Phoenix suffered extreme emotional distress as a result of her ordeal. According to plaintiff, American breached its duty to Phoenix by, inter alia, disregarding its knowledge that Phoenix, a 13-year-old, was left alone at the gate without adult supervision and by failing to allow her to occupy an empty business-class or first-class seat, failing to contact plaintiff, and failing to arrange for Phoenix to board the next flight to Dallas.

On or about September 10, 1991, Brno, acting at all relevant times within the scope and course of his employment by American, wrote a letter to Shiras regarding the incident in Madrid. Brno's letter was purportedly written in response to a letter from Shiras to American. In his letter, Brno made the following statements: "I feel that [Phoenix's] mother did not properly explain to you that anyone travelling on an employee pass is subject to removal for reasons that might not apply to our revenue passengers, and that you should not have left the airport until the plane had taken off and you were assured that she indeed was accommodated"; "I question the employee's judgment in having her daughter travel stand-by out of Madrid during our busy season when her chances of not getting on board were high"; and "I only mention this so as to put the blame where it belongs, not with you, but with the parent."

Plaintiff's complaint alleges that she has suffered emotional distress and mental anguish as a result of the letter, in that her good name has been damaged, her reputation at Lake Forest and in her community has been injured, and she has been exposed to public ridicule.

When proceeding under section 2-619, a movant concedes all well-pleaded facts set forth in the complaint but does not admit conclusions of law. (Falk v. Martel (1991), 210 Ill.App.3d 557, 560-61, 155 Ill.Dec. 248, 569 N.E.2d 248; Miranda v. Jewel Cos. (1989), 192 Ill.App.3d 586, 588, 139 Ill.Dec. 634, 548 N.E.2d 1348.) In its review, an appellate court may consider admissions in the record and exhibits that are attached to the pleadings. (Fahey v. State & Madison Property Association (1990), 200 Ill.App.3d 437, 146 Ill.Dec. 229, 558 N.E.2d 192.) While appellate review of the dismissal of a complaint pursuant to a section 2-619 motion is limited to a consideration of the legal questions presented by the pleadings, such review is independent and need not defer to the trial court's reasoning. Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill.2d 281, 286, 122 Ill.Dec. 805, 527 N.E.2d 303; Miranda, 192 Ill.App.3d at 588, 139 Ill.Dec. 634, 548 N.E.2d 1348; Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill.App.3d 168, 172, 135 Ill.Dec. 55, 543 N.E.2d 290.

We address first plaintiff's contention that the trial court erred in ruling that it lacked personal jurisdiction over Brno. The trial court's ruling was based solely on Brno's lack of minimum contacts with the forum State. Plaintiff, however, makes the initial argument that Brno submitted to the court's jurisdiction by participating in the proceedings after filing a special and limited appearance. Counsel for defendants Brno and American counters by arguing that the inclusion of Brno's name on "several pleadings" after he filed the special appearance was a clerical error which the court recognized as such by dismissing plaintiff's claims against Brno for lack of personal jurisdiction based on constitutional due process grounds.

Personal jurisdiction is conferred by the service of summons or by a general appearance, and it is derived from the actions of the person sought to be bound. (In re Estate of Zoglauer (1992), 229 Ill.App.3d 394, 397, 170 Ill.Dec. 551, 593 N.E.2d 93.) Section 301(a) of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-301(a) (now 735 ILCS 5/2-301(a) (West 1992))) provides that a defendant may make a special appearance to object to the court's assertion of personal jurisdiction over him, so long as such appearance is made prior to filing any other pleading or motion. The primary concern of this rule is to prevent a party from simultaneously invoking and denying jurisdiction, the inquiry being whether a party has set forth a defense or has taken other steps in the cause which invoked the jurisdiction of the challenged court. Supreme Hive Ladies of the Maccabees v. Harrington (1907), 227 Ill. 511, 525, 81 N.E. 533.

Once a defendant enters a special appearance, he is "confined to contesting only the question of jurisdiction; his participation in other aspects of the trial destroys the limitation of his appearance and waives the jurisdictional objection." (In re Marriage of Falstad (1987), 152 Ill.App.3d 648, 653, 105 Ill.Dec. 623, 504 N.E.2d 908.) Thus, "any action taken by [a] litigant which recognizes the case as in court...