The Illinois Supreme Court has ruled plaintiffs need to
suffer “physical impact” to pursue a lawsuit claiming negligent infliction of
emotional distress, saying a lender had not breached the bounds of decency by sending contractors to change the locks and perform other maintenance on her home, which was in foreclosure, while she was still inside.
The Dec. 15 opinion was authored by Justice Charles Freeman,
with concurrence from Justices Mary Jane Theis, Thomas Kilbride, Robert Thomas,
Rita Garman and Anne Burke, as well as Chief Justice Lloyd Karmeier.
Illinois Supreme Court
The ruling involved a lawsuit brought by Melinda Schweihs
against Chase Home Finance and others.
Schweihs took a loan from Chase for a home in suburban
Northbrook, on which she defaulted in 2007, with foreclosure in May 2010.
Schweihs had until that August to vacate the property. However, per the agreement
between Chase and Schweihs, Chase had the right to enter the home after
foreclosure to inspect and protect its value, such as by making repairs.
Chase contracted with Safeguard Properties, who then sent
two subcontractors to the home in June 2010 to determine if the property was
vacant, and if so, to change the locks and turn off utilities.
After deciding the home was unoccupied, one of the
subcontractors broke the locked back door and entered, but encountered Schweihs
inside. The then 58-year-old Schweihs was alarmed and ordered the subcontractor
and his partner, who had remained outside the house, to leave, according to the
lawsuit. She then phoned police. Officers investigated, but no charges were
Schweihs claimed she suffered anxiety and depression as a
consequence of the incident. She filed a suit in Cook County Circuit Court
against Chase, Safeguard and the subcontractors, alleging trespass, negligent
trespass, private nuisance and negligence, as well as negligent and intentional
infliction of emotional distress.
Defendants’ motion for summary judgment was granted in
regard to the nuisance and emotional distress counts. Schweihs appealed the
distress claims. The Illinois First District Appellate Court upheld the lower
court in a 2-1 decision, saying Schweihs failed to allege she suffered a
“physical impact” from defendants, and at any rate, the subcontractors did not
engage in “extreme and outrageous” behavior. A dissenting justice said physical
impact was not needed.
Schweihs next sought relief from the state high court,
saying the physical impact requirement has been abandoned by Illinois courts,
including the state high court, as expressed by its rulings in cases from 1983,
1991 and 1995.
Justice Freeman, speaking for the supreme court, disagreed,
saying a “careful reading” of those rulings show physical impact remains a
requirement in suits claiming emotional distress.
Schweihs also contended that breaking into a house is by its
nature an extreme and outrageous act, which in her case, would only have been
permitted by court order. Freeman was not persuaded, saying the subcontractors
spent 45 minutes trying to learn whether anyone was inside the home, taking
such steps as talking to a neighbor, checking to see that the natural gas and
water were already shut off and noticing, through sliding glass doors, debris
was strewn around the interior.
Freeman also pointed out Schweihs admitted seeing the
subcontractors outside the house beforehand and ignoring their knocks on her
door, all with the knowledge her home was in foreclosure. Further, once the
subcontractors realized Schweihs was home, they retreated and awaited the
arrival of police.
Justice Freeman concluded Chase had the “right to enter the
property to make reasonable repairs for the preservation of the property.”
Schweihs argued repairs were not needed, but didn’t explain how Chase would
have had that knowledge, according to Freeman.
“There may have been a better and more commonsense way to
determine if the property was occupied,” Freeman observed, but nonetheless, the
subcontractors did not transgress “all possible bounds of decency.”
The supreme court affirmed the dismissals of the emotional
distress counts. The suit remains pending on the trespass and negligent
The Illinois Association of Defense Trial Counsel filed a
friend-of-the-court brief on behalf of defendants.
Schweihs has been represented by Edward T. Joyce &
Associates, of Chicago. Defendants have been represented by the Chicago firms
of Burke, Warren & MacKay and Kopka, Landau & Pinkus.