A heated argument with a parking lot security guard at a Chicago Jewel-Osco store, sparked by a man’s anger at how the store was policing who was parked in handicapped parking spaces, did not make the supermarket liable for the customer’s ensuing health emergency, a state appeals panel has said.
A three-justice panel of the Illinois First District Appellate Court issued an unpublished order affirming the decision of Cook County Circuit Court Judge James N. O’Hara, who granted summary judgment for Jewel-Osco and North Central Security Agency. The supermarket chain, through its corporate parent Supervalu, and security firm faced a complaint from customer Jerry Orloff, who sought damages for “intentional affliction of emotional distress” following a 2009 parking lot altercation with a security guard.
Justice Thomas E. Hoffman wrote the order, with justices Mary K. Rochford and Mathias W. Delort concurring. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.
At issue was an appeal on O’Hara’s ruling for summary judgment in favor of the company. The root incident was an Aug. 11, 2009, argument outside a Chicago Jewel store. Orloff, who said he suffers from congestive heart failure, shopped at the store regularly and used the reserved handicapped parking spaces.
Orloff’s license plate carried the proper designation to use such spaces, but he frequently complained to store employees and security personnel about other cars that lacked special plates or decals. He claimed the Aug. 11, 2009, incident rose to the level of “extreme and outrageous conduct,” per Hoffman’s order, and that employees used “denigrating language designed to incite anger, intimidation, anxiety and fear in him, and continuing to castigate him for bringing his complaint to the attention of security personnel when it was obvious that he was extremely upset and spiraling into distress over the course of events and interaction between the parties.”
According to a summary of events listed in the appellate order, Orloff and a security guard traded obscenities during the confrontation. The guard testified it was his first encounter with Orloff and that Orloff used a racial slur typically aimed at African-Americans. Store Manager Joseph Escobar denied anyone used a slur.
Orloff allegedly suffered a heart attack in the store parking lot and collapsed, after which he was hospitalized in an intensive care unit. He blamed the medical emergency on the guard’s “misdirected rage” and being falsely accused of uttering the racial slur.
The circuit court granted summary judgment, ruling the guard’s conduct “was neither extreme nor outrageous.” Hoffman noted there is no testimony, by Orloff or any witnesses, that the guard actually accused Orloff of using the slur, “nor was there any evidence that a false accusation regarding a racial slur played any role in the plaintiff’s ultimate emotional or physical distress.”
While neither party disputed the guard told Orloff to “mind his own (expletive) business,” and that he “became overly loud and aggravated, and bordered upon engaging in threatening behavior by pointing his finger in” Orloff’s face, Hoffman said there also is no dispute about Orloff’s demeanor and role in escalating the interaction. By the time Orloff collapsed, the guard had “retreated from the scene” and was no longer yelling with Orloff.
“While the facts here demonstrate offensive or disconcerting behavior, it did not approach the level of being unendurable to a reasonable person,” Hoffman wrote. “In light of our decision, we do not reach the plaintiff’s contention that Jewel must be held vicariously liable for Hill's conduct.
According to Cook County court records, Orloff was represented by attorney Ira M. Kleinmuntz, of Chicago.
The defendants were represented by the firms of Matushek Nilles LLC and Nora & Tanzillo LLP, both of Chicago.