Schiller v. Mitchell

CourtUnited States Appellate Court of Illinois
Citation828 N.E.2d 323,293 Ill.Dec. 353,357 Ill. App.3d 435
Docket NumberNo. 2-04-0170.,2-04-0170.
PartiesRonald SCHILLER and Merle Schiller, Plaintiffs-Appellants, v. Bernard MITCHELL and Robert Stanley, Defendants-Appellees.
Decision Date27 April 2005

828 N.E.2d 323
357 Ill.
App.3d 435
293 Ill.Dec.

Ronald SCHILLER and Merle Schiller, Plaintiffs-Appellants,
Bernard MITCHELL and Robert Stanley, Defendants-Appellees

No. 2-04-0170.

Appellate Court of Illinois, Second District.

April 27, 2005.

828 N.E.2d 325
Glenn Seiden, Sara M. Collins, Azulay, Horn & Seiden, LLC, Chicago, for Merle Schiller, Ronald Schiller

Robert J. Long, Daniels, Long & Pinsel, Waukegan, for Bernard Mitchell, Robert Stanley.

Justice KAPALA delivered the opinion of the court:

This is an appeal from an order of the circuit court of Lake County dismissing plaintiffs' five-count second amended complaint with prejudice for failure to state a cause of action. Count I was based on the theory of common-law intrusion upon the seclusion of another, count II requested injunctive relief, count III alleged a private nuisance, count IV alleged intentional infliction of emotional distress, and count V alleged that defendants were guilty of common-law maintenance. Plaintiffs argue in this appeal that the trial court erred in dismissing the first four counts of their complaint. Plaintiffs have not appealed from the dismissal of count V. We affirm.

This action arises out of a neighbor dispute. In their second amended complaint, stated as general allegations and later incorporated into the individual counts, plaintiffs alleged that they live at 2611 Hybernia Drive in Highland Park, Illinois. Defendants live at 2601 Hybernia Drive, next door to plaintiffs. Defendant Robert Stanley is on the board of directors of the Hybernia Area Homeowners Association (the Association),

828 N.E.2d 326
which maintains an exhaustive list of rules, regulations, and restrictions governing properties in the Hybernia subdivision. Sometime after moving into their home in June 1997, plaintiffs noticed that defendants affixed to the southern facade of their house a camera aimed at the garage, driveway, and side-door area of plaintiffs' home. In February 2002, the City of Highland Park (city) charged plaintiffs with an ordinance violation following a complaint defendants made to the city. At the hearing on the ordinance violation, plaintiffs learned that defendants were using the camera to surveil plaintiffs and plaintiffs' property. A Highland Park police officer testified that he reviewed over two hours of defendants' videotapes of plaintiffs' property, including the interior of their garage. Plaintiffs believe that defendants use this camera to record their property 24 hours a day

According to the complaint, defendants have made "hundreds" of telephone calls to the police, complaining about activities in the subdivision, most of them centering on plaintiffs. As a result, the police have "investigated, questioned, and suspected" plaintiffs. The police issued in excess of 14 tickets for such things as noise ordinance violations, exterior lighting violations, and a dog running at large. Plaintiffs were found liable on only three of the complaints. In addition to the ordinance violations, police twice charged plaintiff Ronald Schiller with misdemeanors arising from defendants' complaints. One was a disorderly conduct charge for shining a light at defendants' camera; the second one was a disorderly conduct charge for "forcefully exhaling" into defendant Robert Stanley's face. The former charge was dismissed by the State's Attorney, and the trial judge directed a verdict in Schiller's favor on the latter charge.

The complaint further alleged that on those occasions when the police refused to act on defendants' complaints, defendants took their asservations about plaintiffs to other bodies, including the Association, governmental agencies, and their own private attorney, who sent plaintiffs' attorney a letter threatening "swift and strong" action in the event the attorney found proof that plaintiffs vandalized defendants' property. In grievances to the Association, defendants accused plaintiffs of driving past defendants' residence, sweeping out plaintiffs' garage in the morning, accidentally dropping a ladder on plaintiffs' own driveway, leaving flowers in boxes at the side of plaintiffs' house, placing flags to locate utilities, and spraying water onto defendants' property from plaintiffs' sprinkler system. As a result of these numerous complaints, the Association launched many investigations into plaintiffs' activities on their property.

In addition to the interrogations, administrative inspections, and criminal charges, plaintiffs claimed that they are subjected to an all-hours personal surveillance by defendants, as defendants stand on their property line and stare at plaintiffs. Plaintiffs alleged they were damaged as a result of defendants' actions.

Defendants brought a motion to dismiss the second amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2002)), which the trial court granted with prejudice. Plaintiffs filed a timely appeal.

Defendants moved to dismiss counts I, II, and III pursuant to section 2-615 of the Code. They moved to dismiss count IV (intentional infliction of emotional distress) pursuant to section 2-619 of the Code. However, the trial court ruled on count IV on section 2-615 grounds and did not deal with the affirmative matters defendants raised. Consequently, we will treat the

828 N.E.2d 327
trial court's dismissal of that count as if it were done pursuant to section 2-615

We review de novo a motion to dismiss under section 2-615. Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill.App.3d 812, 815, 273 Ill.Dec. 494, 789 N.E.2d 394 (2003). "The question presented by a section 2-615 motion to dismiss is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted." Kumar v. Bornstein, 354 Ill.App.3d 159, 164, 290 Ill.Dec. 100, 820 N.E.2d 1167 (2004). Illinois requires a plaintiff to present a legally and factually sufficient complaint. Kumar, 354 Ill.App.3d at 164-65, 290 Ill.Dec. 100, 820 N.E.2d 1167. "The plaintiff is not required to prove his or her case, but must allege sufficient facts to state all the elements of the asserted cause of action." Kumar, 354 Ill.App.3d at 165, 290 Ill.Dec. 100, 820 N.E.2d 1167. When ruling on a section 2-615 motion, the trial court should deem all well-pleaded facts as true and disregard legal and factual conclusions that are unsupported by allegations of fact. Kumar, 354 Ill.App.3d at 165, 290 Ill.Dec. 100, 820 N.E.2d 1167. "We may affirm the dismissal of the amended complaint on any ground supported by the record, regardless of the basis for the trial court's decision." Kumar, 354 Ill.App.3d at 165, 290 Ill.Dec. 100, 820 N.E.2d 1167. With these principles in mind, we will examine counts I through IV of the second amended complaint.


Plaintiffs alleged that in videotaping their property for the purpose of making frivolous and trivial charges against them, defendants invaded their privacy, which plaintiffs sought to guard by planting large trees and bushes in their backyard. Specifically, plaintiffs alleged unreasonable intrusion upon the seclusion of another. We conclude that plaintiffs' complaint fails to state a cause of action because the areas photographed by the camera were not private.

The Restatement (Second) of Torts sets out four privacy torts: (1) intrusion upon the seclusion of another; (2) appropriation of the name or likeness of another; (3) publicity given to private life; and (4) publicity placing a person in a false light. Restatement (Second) of Torts § 652A, at 376 (1977). The Restatement defines the tort of intrusion upon the seclusion of another as follows: "It consists solely of an intentional interference with [a person's] interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man." Restatement (Second) of Torts § 652B, Comment a, at 378 (1977). Our supreme court discussed the tort of intrusion upon the seclusion of another in Lovgren v. Citizens First National Bank of Princeton, 126 Ill.2d 411, 416, 128 Ill.Dec. 542, 534 N.E.2d 987 (1989). Although the court declined to hold whether or not the tort was actionable in Illinois, the court stated the parameters of the tort thusly:

"The comments to this section of the Restatement indicate that the nature of this tort depends upon some type of highly offensive prying into the physical boundaries or affairs of another person. * * * [T]he core of this tort is the offensive prying into the private domain of another." Lovgren, 126 Ill.2d at 416, 128 Ill.Dec. 542, 534 N.E.2d 987.

The Third District of the Appellate Court recognized the tort of intrusion upon the seclusion of another in Melvin v. Burling, 141 Ill.App.3d 786, 789, 95 Ill.Dec. 919, 490 N.E.2d 1011 (1986), where the

828 N.E.2d 328
court enunciated four elements that must be pleaded to sustain the cause of action: (1) an unauthorized intrusion or prying into the plaintiff's seclusion; (2) the intrusion must be offensive or objectionable to a reasonable person; (3) the matter upon which the intrusion occurs must be private; and (4) the intrusion causes anguish and suffering. The Fifth District recognized a cause of action for intrusion upon the seclusion of another in Davis v. Temple, 284 Ill.App.3d 983, 994, 220 Ill.Dec. 593, 673 N.E.2d 737 (1996), where it adopted the four-pronged test set forth in Melvin. This court recognized the tort in Benitez v. KFC National Management Co., 305 Ill.App.3d 1027, 1033-34, 239 Ill.Dec. 705, 714 N.E.2d 1002 (1999). In Johnson v. K mart Corp., 311 Ill.App.3d 573, 243 Ill.Dec. 591, 723 N.E.2d 1192 (2000), the First District expressly recognized the tort and adopted Melvin's four elements. Johnson, 311 Ill.App.3d at 578, 243 Ill.Dec. 591, 723 N.E.2d 1192. The First...

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