Plocar v. Dunkin' Donuts of America, Inc.

• Decision Date: 29 December 1981
• Docket Number: No. 80-2788,80-2788
• Citation: Plocar v. Dunkin' Donuts of America, Inc., 431 N.E.2d 1175, 103 Ill.App.3d 740, 59 Ill.Dec. 418 (Ill. App. 1981)
• Parties: , 59 Ill.Dec. 418 Betty Jane PLOCAR and Joseph Plocar, Sr. v. DUNKIN' DONUTS OF AMERICA, INC. and Elizabeth Bennett, agent, and Elizabeth Bennett, individually.
• Court: United States Appellate Court of Illinois

Page 1175

431 N.E.2d 1175

103 Ill.App.3d 740, 59 Ill.Dec. 418

Betty Jane PLOCAR and Joseph Plocar, Sr. v.DUNKIN' DONUTS OF AMERICA, INC. and Elizabeth Bennett agent, and Elizabeth Bennett, individually.

No. 80-2788.

Appellate Court of Illinois, First District, Second Division.

Dec. 29, 1981.

Philip L. Kotula, Roselle, for appellants.

Jenner & Block, Chicago (Howard R. Barron and Ruben Castillo, Chicago, of counsel), for appelleeElizabeth Bennett.

Rothbart, Stein & Moran, Chicago (Thomas E. Moran, Chicago, of counsel), for appelleeDunkin' Donuts of America, Inc.

PERLIN, Justice:

This is an appeal from an order of the circuit court of Cook County which dismissed with prejudice, for failure to state a cause of action, the complaint of the plaintiffs, Betty Jane Plocar(Betty Jane) and Joseph Plocar, Sr.(Joseph, Sr.), upon motions of the defendants, Dunkin' Donuts of America, Inc.(Dunkin' Donuts) and Elizabeth Bennett, a district manager for Dunkin' Donuts.The trial court's dismissal of the action for intentional infliction of emotional distress, loss of consortium and violation of a franchise contract was based solely on the pleadings.

The following issues are presented for review: (1) whether Betty Jane sufficiently alleged a cause of action against Elizabeth Bennett for intentional infliction of emotional distress; (2) whether Betty Jane sufficiently alleged a cause of action against Dunkin' Donuts on the basis of the alleged actions of Elizabeth Bennett; (3) whether Joseph, Sr. sufficiently alleged a cause of action against Elizabeth Bennett and Dunkin' Donuts for loss of consortium or intentional infliction of emotional distress; (4) whether plaintiffs properly alleged a cause of action against Dunkin' Donuts for violation of a franchise contract; and (5) whether the trial court abused its discretion by dismissing with prejudice plaintiff's second amended complaint.

For the reasons hereinafter set forth, we affirm the order of the trial court.

Plaintiffs filed three complaints in this action, all of which alleged that Betty Jane was a franchisee of Dunkin' Donuts, and that Elizabeth Bennett was a district manager for that company.

Betty Jane's first complaint was filed on December 28, 1979 in the circuit court of Will County, Illinois.Subsequently the parties agreed by stipulation to transfer the cause to the circuit court of Cook County.Dunkin' Donuts and Elizabeth Bennett then filed motions to dismiss the complaint based on Betty Jane's failure to state a cause of action for injury to her business and intentional infliction of emotional distress and her failure to set forth, as required by Section 36 of the Civil Practice Act, an alleged written agreement between her and Dunkin' Donuts.

On May 28, 1980 after a full hearing, the trial court entered an order granting defendants' motions to dismiss the complaint.The court also granted plaintiff 28 days in which to file an amended complaint.

On July 11, 1980Betty Jane moved the court for leave to file an amended complaint and to add Joseph Plocar, Sr. as a partyplaintiff.Defendants renewed their motions to dismiss the complaint for failure to state a cause of action.After reviewing plaintiff's amended complaint and hearing argument from all parties, the trial court ordered that plaintiff's amended complaint be stricken.The court granted plaintiff seven days to file a second amended complaint and granted plaintiff's motion to add the additional partyplaintiff.

On July 16, 1980plaintiffs filed their second amended complaint.That complaint is the subject of this appeal.

Plaintiffs' second amended complaint was comprised of four counts.Count I alleged that defendantElizabeth Bennett had "unlawfully, wilfully and contemptuously insulted, disturbed, disquieted and threatened the plaintiff(Betty Jane) by the use of indecent language and proposals when she knew or should have known that such conduct was likely to cause the plaintiff the injuries herein described."It was averred that Bennett, a district manager and agent of Dunkin' Donuts, became romantically involved with Betty Jane's son, who was also her store manager.Due to Mrs. Plocar's disapproval of the relationship between Bennett and her son, Bennett "threatened" Mrs. Plocar that if she did not stay out of her store, Bennett would cause her to lose the store by making false reports to the franchisor.

It was also asserted that Bennett, as district manager for Dunkin' Donuts, possessed "great power over the operation and success of the franchises within her district and the plaintiff was at all times in great emotional fear of losing her store if she did not comply with the defendant's requests."Bennett allegedly offered to Mrs. Plocar's son another franchise operation for a price below the reasonable market value.Bennett also allegedly caused Mrs. Plocar's son to absent himself from the store for hours, disrupting Mrs. Plocar's business.

Plaintiffs also claimed that Bennett's wrongful acts, words and proposals caused Mrs. Plocar to become "ill, excited and nervous; her moral sensibilities and ideals of decency and propriety were shocked and she suffered a nervous breakdown, and great pain, anguish and humiliation."Moreover, Bennett's acts allegedly caused Mrs. Plocar to be "nervous, irritable, and unable to perform her necessary duties" and that Mrs. Plocar was institutionalized as a result.Mrs. Plocar's health was allegedly "permanently injured" and she was "forced to expend large sums for doctor bills and medicine."

It was further charged that Bennett "exhibited letters and made statements to the plaintiff referring to the plaintiff's son which included explicit and sexual connotations, all of which were calculated to severely traumatize and emotionally distress the plaintiff."Plaintiffs sought judgment against Elizabeth Bennett for $200,000, punitive damages in the amount of $200,000 and costs of the suit.

Count II of plaintiffs' second amended complaint alleged that Elizabeth Bennett had acted with the implied and apparent authority of Dunkin' Donuts and that Dunkin' Donuts had thus negligently caused Mrs. Plocar to suffer "mental and emotional distress and anxiety" despite its being aware of the problem between Bennett and Mrs. Plocar.A judgment was sought against Dunkin' Donuts in the amount of $300,000 plus costs of the suit.

Count III of plaintiff's second amended complaint alleged an action on behalf of Joseph Plocar, Sr., the husband of Betty Jane Plocar, for loss of his wife's consortium.It was alleged further that "by being forced to witness the suffering endured by his wife, whereby his own nerves and health have been seriously and permanently shocked, weakened and impaired * * *," Mr. Plocar was deprived of the care and companionship of his wife.This count sought judgment against defendants in the amount of $75,000.

Count IV of the second amended complaint alleged that Dunkin' Donuts, at the time it sold a franchise to Mrs. Plocar, both orally and in writing agreed to repair faulty equipment existing on the franchise premises.It was asserted further that Dunkin' Donuts "refused and still refuses to" repair such equipment, and that as a "direct and proximate cause, plaintiff has been damaged in the amount of" $3,057.Plaintiffs sought judgment against Dunkin' Donuts in the same amount, plus costs of the suit.

Both defendants, Dunkin' Donuts and Elizabeth Bennett, filed motions to dismiss plaintiffs' second amended complaint on the grounds that: (1) Counts I and II failed to properly set forth facts that would support a cause of action for intentional infliction of mental and emotional distress because no bodily injury or physical impact was alleged and because the alleged facts did not show any extreme or outrageous conduct; (2) Count III failed to properly set forth facts which would support the allegation that defendants were liable for the injuries allegedly sustained by Mrs. Plocar and thus Mr. Plocar would have no cause of action against defendants for loss of his wife's consortium; (3) Count IV failed to state a cause of action against Dunkin' Donuts because plaintiffs did not set out in their complaint, as required by Section 36 of the Civil Practice Act, the agreement allegedly breached by Dunkin' Donuts.

On September 25, 1980 a hearing was held on the respective motions of Elizabeth Bennett and Dunkin' Donuts to dismiss plaintiffs' second amended complaint.Following the hearing, the trial court entered an order granting defendants' motions to dismiss and dismissed "with prejudice as to all defendants"plaintiffs' second amended complaint.

On October 24, 1980plaintiffs filed a timely notice of appeal from the order of the trial court.

I.

The first issue presented is whether Betty Jane, in Count I of her second amended complaint, sufficiently alleged a cause of action against Elizabeth Bennett for intentional infliction of emotional distress.Defendants argue that this count of Mrs. Plocar's complaint is unsupported by allegations of specific facts that would give rise to an action for intentional infliction of emotional distress, and thus the trial court's order granting defendants' motion to dismiss Count I was proper.

To state a cause of action for intentional infliction of emotional distress a plaintiff must allege facts to establish: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by plaintiff was severe; and (3) in cases such as the instant one where plaintiff alleges that defendant's conduct was "reckless," that defendant's conduct was such that defendant knew that severe emotional distress would be certain or substantially certain to result.SeePublic Finance v. Davis(1976), 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765.

With respect to the first element, the nature of defendant's conduct, "liability has been found only where the conduct has been so...