Calhoun v. Jumer

NO. 4-97-0243

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

BRENDA CALHOUN, individually and ) Appeal from
as next friend of Waylon Calhoun, ) Circuit Court of
a Minor, ) Peoria County
Plaintiff-Appellant, ) No. 96L85
v. )
KARL R. JUMER, )
Defendant-Appellee, ) Honorable
) John A. Barra,
) Judge Presiding.

JUSTICE GREEN delivered the opinion of the court:
Plaintiff, Brenda Calhoun, filed this action in the
circuit court of Peoria County against defendant, Karl R. Jumer,
alleging in counts IV and VIII that defendant's sexual abuse of
her minor son, Waylon Calhoun (W.C.), caused emotional distress
to plaintiff. Following a hearing on November 4, 1996, the court
granted defendant's motion to dismiss those counts of the
complaint for failure to state a cause of action. That order was
made final on March 14, 1997, with the court's granting of
plaintiff's motion to voluntarily dismiss counts I, II, III, V,
VI and VII, which were claims she brought on behalf of the minor
son.
On appeal, plaintiff contends this court should, under
the alleged circumstances, recognize a cause of action in favor
of a custodial biological parent of a minor for emotional
distress caused by a defendant's commission of sexual abuse upon
that minor. We affirm and agree with the trial court's judgment
that plaintiff's complaint failed to state a cause of action.
On review of an order passing on the sufficiency of a
complaint, all well-pleaded facts and all reasonable inferences
from them are taken as true. Mt. Zion State Bank & Trust v.
Consolidated Communications, Inc., 169 Ill. 2d 110, 115, 660 N.E.2d 863, 867 (1995). Plaintiff alleged in her amended
complaint as follows: (1) on December 9, 1995, defendant was an
adult guest in plaintiff's house; (2) at that time, plaintiff
lived with her eight-year-old son, W.C.; (3) defendant was under
a duty to refrain from sexually abusing W.C.; and (4) in
violation of that duty and section 12-16(c)(1) of the Criminal
Code of 1961 (720 ILCS 5/12-16(c)(1) (West 1994)), defendant
committed an act of sexual abuse in that he placed the minor's
hand on the defendant's penis for purposes of defendant's sexual
arousal. In counts I, II, and III of the complaint, plaintiff
alleged defendant's actions caused the minor emotional distress,
suffering, humiliation, and embarrassment. Counts V, VI, and VII
were brought on behalf of the minor seeking punitive damages.
In count IV, plaintiff alleged she was in the next room
"within 10 feet" of the doorway to the room where the alleged
sexual contact took place, and defendant had a duty to plaintiff
to refrain from engaging in outrageous conduct that involved an
unreasonable risk of causing emotional distress to plaintiff.
She further alleged defendant's negligence "in failing to know
that his conduct involved [an] unreasonable risk of causing
emotional distress to [plaintiff] proximately caused emotional
distress" to her. In count VIII, plaintiff alleged defendant
violated his duty "to exercise reasonable care to avoid injury or
damage to the [p]laintiff" by sexually abusing her minor son.
Plaintiff maintains the trial court, in dismissing
counts IV and VIII of her complaint, necessarily found defendant
had no duty to plaintiff to avoid sexually abusing her minor
child. Defendant argues, however, this court should not create a
new cause of action in favor of the minor's mother (plaintiff)
for emotional distress caused by defendant's actions upon that
minor.
The leading and most recent Illinois case concerning
the duty one person owes to another to not cause that other
person emotional damage resulting from the first person's
tortious injury of a third person is Rickey v. Chicago Transit
Authority, 98 Ill. 2d 546, 457 N.E.2d 1 (1983). There, suit was
brought on behalf of a minor child, who was alleged to have been
on a Chicago Transit Authority (CTA) escalator when he was eight
years old and witnessed his then five-year-old brother being
severally injured when his clothing got caught in the escalator,
dragging him to the bottom of the escalator, whereby the brother
was choked and rendered permanently comatose. The CTA and
manufacturers of the escalator were charged with negligence and
the manufacturers were charged with defective product liability.
The circuit court dismissed the complaint for failure
to state a cause of action, and the appellate court reversed the
dismissal except in regard to one manufacturer. Rickey, 98 Ill. 2d at 548-49, 457 N.E.2d at 1-2. The supreme court affirmed,
allowing, on remand, any amendment consistent with the opinion.
Rickey, 98 Ill. 2d at 556, 457 N.E.2d at 5. The circuit court
followed a long line of cases, starting with Braun v. Craven, 175 Ill. 401, 51 N.E. 657 (1898), that prevented a person from
recovery for an emotional injury to himself arising from the
tortious injury to another unless the person seeking recovery
also received physical injury from that event or his body was
physically impacted. That rule was referred to as the "impact
rule." The Rickey court held that the impact rule was no longer
applicable and was to be replaced by a rule that the party
seeking recovery for mental anguish from tortious injury to
another must have been in the "zone of physical danger" at the
time of the injury, which was the case there. Rickey, 98, Ill.
2d at 555, 457 N.E.2d at 5. Clearly, under the allegations here,
plaintiff was not in the zone of physical danger of injury from
defendant. Plaintiff responds to that fact by explaining that
here, unlike in Rickey, the alleged conduct of the defendant was
intentional and not merely negligent as in Rickey.
Plaintiff requests that we establish, in this jurisdic-
tion, a rule that close family members of a victim have a cause
of action for whatever emotional harm they receive from injury
intentionally and tortiously inflicted upon another family
member. Plaintiff cites first Croft v. Wicker, 737 P.2d 789
(Alaska 1987), where an employee (Wicker) sued his supervisor
(Croft) for wrongful discharge and Croft, his wife, and daughter
counterclaimed for injury resulting when Wicker allegedly
molested Croft's daughter while taking her for a ride on a three-
wheeler. The counterclaim alleged the parents were present when
Wicker and their daughter started the ride and the two of them
were in "close proximity" to the parents when Wicker touched the
daughter "in a sexual manner." Croft, 737 P.2d at 790. The
parents further alleged they subsequently witnessed the
daughter's emotional distress and suffered such distress
themselves. That court held the counterclaim stated a cause of
action.
Plaintiff also relies on Bishop v. Callais, 533 So. 2d 121 (La. App. 1988), and Doe v. Cuomo, 43 Conn. Supp. 222, 239,
649 A.2d 266, 274 (1994), both of which involved alleged sexual
assaults upon minors by persons who clearly had been entrusted
with the care of the minor. In Bishop, the assault allegedly
occurred when the minor was confined in a hospital for
psychiatric treatment. In Doe, the allegedly molested child was
a guest in the home of the defendant.
Here, the minor child was not alleged to be in the
custody of the defendant. We express no opinion as to whether a
parent may have a cause of action for mental suffering against
another who molests his or her child while the child has been
entrusted with that person. We hold that, absent entrustment, no
cause of action exists for a parent under the allegations here.
We do note that even when the injured child has been
entrusted to the defendant and is injured through the tortious
conduct of the defendant, parents have been held to have no cause
of action. In Martin v. United States, 779 F. Supp. 1242, 1248-
50 (N.D. Cal. 1991), aff'd in part & rev'd in part on other
grounds, 984 F.2d 1033 (9th Cir. 1993), when a child was placed
in a day-care center and raped, the day-care center was held not
liable to the child's mother for emotional distress even if the
day-care center was negligent. However, that case did not decide
whether the mother had a cause of action against the rapist.
Rather, the case decided that the tort of negligent supervision,
which was not based upon an intentional act, did not create
liability.
Similarly, in Johnson v. Jamaica Hospital, 62 N.Y.2d 523, 526-27, 467 N.E.2d 502, 503, 478 N.Y.S.2d 838, 839 (1984),
the court of appeals of New York held that the parents of an
infant who was abducted from the defendant hospital could not
recover damages for their own emotional distress resulting from
the hospital's negligence in its care of the child. That court
determined the plaintiffs were not alleged to be within the "zone
of danger" nor did their emotional distress result from
"contemporaneous observation of serious physical injury or death
caused by defendant's negligence." Johnson, 62 N.Y.2d at 526,
467 N.E.2d at 503, 478 N.Y.S.2d at 839. The court concluded that
the defendant hospital did not owe the plaintiff parents a direct
duty to refrain from causing them psychic injury.
In McDonald v. Jarrabet, 188 A.D.2d 1045, 1046, 591 N.Y.S.2d 676, 677-78 (1992), the court held that a parent who did
not witness an alleged sexual assault upon her daughter had no
personal cause of action against the defendant for negligent
infliction of emotional distress.
We recognize that plaintiff's theory would impose
general liability on a tortfeasor in favor of parents only when
his tort is intentional, abhorent, and criminal. Where, as here,
no entrustment is involved, of the cases cited, only Croft and
McDonald are directly on point. We agree with plaintiff that
when sexual misconduct is the tort for which parents seek relief,
the question of whether the parents actually witness the act or
acts involved is a rather arbitrary threshold as to whether
liability arises.
Nevertheless, the situation here is far different than
in Rickey where a four-year-old boy was traumatized by seeing his
brother choking. Plaintiff impliedly suggests that every time a
person commits an intentional tort arising from a criminal,
physical act against a victim, a cause of action should lie
against the tortfeasor and in favor of the family members of the
victim for any trauma they suffered. That is not the law. Only
with artificial boundary lines can we prevent that from
happening. Here, the facts that the tort was not alleged to
occur in the presence of plaintiff and the child was not alleged
to be entrusted to defendant are sufficient to justify the
dismissal of the complaint.
Much of the expansion of the cause of action for
emotional suffering brought against one who wrongfully injures a
family member of the person bringing the action arises from
Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72
(1968). There, a majority of the Supreme Court of California
allowed a mother who was a bystander or "percipient witness" to
the infliction of injury and death to her daughter to have a
cause of action for the mother's emotional injury against a
negligent driver who drove the vehicle that hit the daughter.
Despite the attractive position of the Dillon plaintiffs, three
justices, including the highly distinguished Chief Justice
Traynor, dissented on the basis that a prior decision of that
court (Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295, 379 P.2d 513, 29 Cal. Rptr. 33 (1963)) had rejected the theory of the
majority as unsound and opening the door into the "'fantastic
realm of infinite liability.'" Dillon, 68 Cal. 2d at 749, 441 P.2d at 926, 69 Cal. Rptr. at 86 (Burke, J., dissenting, joined
by McComb, J.), quoting Amaya, 59 Cal. 2d at 315, 379 P.2d at
525, 29 Cal. Rptr. at 45. We share some of that skepticism in
regard to plaintiff's theory here.
Accordingly, we affirm the judgment on appeal.
Affirmed.
GARMAN and KNECHT, JJ., concurred.