Pilotto v. Urban Outfitters W., L.L.C.

• Decision Date: 03 February 2017
• Docket Number: No. 1-16-0844,1-16-0844
• Citation: 2017 IL App (1st) 160844,72 N.E.3d 772
• Parties: Alana PILOTTO, Plaintiff-Appellant, v. URBAN OUTFITTERS WEST, L.L.C., d/b/a Anthropologie, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 160844

72 N.E.3d 772

Alana PILOTTO, Plaintiff-Appellant,

v.URBAN OUTFITTERS WEST, L.L.C., d/b/a Anthropologie, Defendant-Appellee.

No. 1-16-0844

Appellate Court of Illinois, First District, Fifth Division.

Modified opinion filed February 3, 2017

John S. Bishof, Jr., of Law Offices of John Bishof, P.C., of Chicago, for appellant.

Christian D. Ambler and John M. Kyle, both of Stone & Johnson, Chtrd., of Chicago, for appellee.

OPINION

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Alana Pilotto, brought this civil action against defendant, Anthropologie, a retail store, alleging that she was harmed as a result of defendant's violation of the Restroom Access Act (Act) ( 410 ILCS 39/1 et seq. (West 2014)). Plaintiff is appealing the trial court's order granting defendant's motion to dismiss her first amended complaint, pursuant to section 2–615 of the Code of Civil Procedure (735 ILCS 5/2–615 (West 2014) ), on the basis that the Act does not provide a private right of action. For the reasons that follow, we reverse.

¶ 2 BACKGROUND

¶ 3 On June 29, 2015, plaintiff filed a two-count complaint against retail stores Walgreens and Anthropologie,¹ alleging that, on separate occasions, she was denied access to an employee restroom despite being entitled to such access under the Act.² On September 14, 2015, defendant Anthropologie filed a motion to dismiss count II of the complaint pursuant to section 2–615 of the Code of Civil Procedure (Code) (735 ILCS 5/2–615 (West 2014) ), arguing that the Act does not provide a private right of civil action. Defendant's motion was based on the text of the Act, which does not expressly indicate whether violations can be decided in civil suits, but does provide that violations of the Act are petty offenses that may result in a fine not to exceed $100. The court granted the motion to dismiss without prejudice on October 29, 2015.

¶ 4 On November 25, 2015, plaintiff filed an amended complaint against defendant, alleging the same material facts as the previous complaint, but adding that " 410 ILCS 39/5 was enacted for the purpose of preventing the foregoing incident," and that "Plaintiff is a member of the class for whose benefit 410 ILCS 39/5 was enacted. This civil action is consistent with the underlying purpose of this statute and the only adequate remedy for the Plaintiff and others similarly situated."

¶ 5 According to the amended complaint, plaintiff lawfully entered defendant's retail store located in Oak Brook, Illinois, on March 30, 2014. Plaintiff, who suffers from Crohn's Disease, requested to use the employee restroom,³ and was denied access by an employee, despite showing her Restroom Access card⁴ and explaining her need to use the facility. The employee told plaintiff to go to another retail store across the street in a shopping mall to use the restroom. On her way to the other retail store, plaintiff lost control of her bowels and defecated in the presence of customers at the shopping mall. As a result of this occurrence, plaintiff alleged that she experienced extreme emotional distress, did not leave her house for days afterwards, and still experiences fear of not having access to a restroom in public places.

¶ 6 On January 13, 2016, defendant filed a motion to dismiss plaintiff's amended complaint pursuant to section 2–615 of the Code (735 ILCS 5/2–615 (West 2014) ), again arguing that the Act does not provide a private right of civil action. Plaintiff filed a response to the motion to dismiss on January 22, 2016, arguing that although the text of the Act does not expressly indicate whether violations can be determined in civil suits, a private right of action should be implied in order to provide plaintiff with an adequate remedy for her damages. Plaintiff further argued that the remedy detailed in the text of the Act is not adequate, since it requires the wronged individual to report the incident to authorities, which is a questionable method of encouraging compliance. On February 3, 2016, defendant filed a reply to plaintiff's response, pointing out that plaintiff's amended complaint did not add or delete any factual allegations from the original complaint and that a private right of action is not the only remedy available for plaintiff, since the statute already provides a remedy, decided upon by the General Assembly. On February 22, 2016, the court granted defendant's motion to dismiss, this time with prejudice. This appeal follows.

¶ 7 ANALYSIS

¶ 8 On appeal, plaintiff claims that the trial court erred in granting defendant's motion to dismiss pursuant to section 2–615 of the Code because a private right of action should have been implied in the Act. We note that there exists no precedential⁵ case law regarding the Act, which renders the issue before us a case of first impression. A motion to dismiss pursuant to section 2–615 of the Code attacks the legal sufficiency of a complaint by alleging defects on the face of the complaint. Vitro v. Mihelcic , 209 Ill.2d 76, 81, 282 Ill.Dec. 335, 806 N.E.2d 632 (2004). When ruling on a section 2–615 motion, the relevant question is whether the allegations in the complaint, construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Canel v. Topinka , 212 Ill.2d 311, 317, 288 Ill.Dec. 623, 818 N.E.2d 311 (2004). A motion to dismiss should not be granted "unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief." Tedrick v. Community Resource Center, Inc. , 235 Ill.2d 155, 161, 336 Ill.Dec. 210, 920 N.E.2d 220 (2009). Illinois is a fact-pleading state; conclusions of law and conclusory allegations unsupported by specific facts are not sufficient to survive dismissal. Anderson v. Vanden Dorpel , 172 Ill.2d 399, 408, 217 Ill.Dec. 720, 667 N.E.2d 1296 (1996). Appellate review of a dismissal pursuant to section 2–615 is de novo . Kedzie & 103rd Currency Exchange, Inc. v. Hodge , 156 Ill.2d 112, 116, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP , 408 Ill.App.3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (2011).

¶ 9 I. Restroom Access Act

¶ 10 The Restroom Access Act mandates that a retail establishment shall allow a customer to use the employee toilet facilities during normal business hours under certain circumstances. Section 10 of the Act sets forth the duty imposed by the Act and provides, in full:

"A retail establishment that has a toilet facility for its employees shall allow a customer to use that facility during normal business hours if the toilet facility is reasonably safe and all of the following conditions are met:

(1) The customer requesting the use of the employee toilet facility suffers from an eligible medical condition or utilizes an ostomy device.

(2) Three or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility.

(3) The retail establishment does not normally make a restroom available to the public.

(4) The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment.

(5) A public restroom is not immediately accessible to the customer." 410 ILCS 39/10 (West 2014).

On appeal, defendant does not argue that the requirements of the statute were not satisfied at the time that plaintiff requested to use defendant's employee restroom in the instant case.⁶

¶ 11 The Act also contains two provisions relating to liability and violations of the Act. First, section 15 is entitled "Liability" and provides, in relevant part:

"(a) A retail establishment or an employee of a retail establishment is not civilly liable for any act or omission in allowing a customer that has an eligible medical condition to use an employee toilet facility that is not a public restroom if the act or omission meets all of the following:

(1) It is not willful or grossly negligent.

(2) It occurs in an area of the retail establishment that is not accessible to the public.

(3) It results in an injury to or death of the customer or any individual other than an employee accompanying the customer." 410 ILCS 39/15(a) (West 2014).

¶ 12 Additionally, section 20 is entitled "Violation" and provides, in full:

"A retail establishment or an employee of a retail establishment that violates Section 10 is guilty of a petty offense. The penalty is a fine of not more than $100." 410 ILCS 39/20 (West 2014).

¶ 13 The Act is otherwise known as "Ally's Law," a tribute to the young girl who inspired the bill. Representative Kathleen Ryg introduced this bill as a response to the needs of thousands of state citizens suffering from Crohn's Disease and other irritable bowel conditions. 94th Ill. Gen. Assem., House Proceedings, Apr. 14, 2005, at 195 (statements of Representative Ryg). Her aim for the bill was to enable citizens suffering from irritable bowel conditions to have access to a restroom when they need it. 94th Ill. Gen. Assem., House Proceedings, Apr. 14, 2005, at 196 (statements of Representative Ryg). After passage by the House and Senate, the bill was approved by the governor on August 4, 2005, and immediately became effective law.

¶ 14 II. Common-Law Claim

¶ 15 In the case at bar, the parties argue about whether a private right of action is implied through the Act. However, before considering this argument, we must first consider the theory under which plaintiff is proceeding in her amended complaint. While defendant in its motion to dismiss, and the court in granting the motion, focused on the issue of whether the Act provides for a private cause of action, the language of the amended complaint indicates that the basis for plaintiff's complaint was a common-law cause of action.⁷ Our supreme court has noted...