SIXTH DIVISION September 30, 2015

No. 1-14-0683

_____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

MELINDA SCHWEIHS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) ) CHASE HOME FINANCE, LLC, successor ) by merger to CHASE MANHATTAN ) No. 10 L 11302 MORTGAGE COMPANY-WEST, ) formerly known as ) MELLON MORTGAGE COMPANY; ) SAFEGUARD PROPERTIES, INC.; ) TODD GONSALEZ; and EDILFONSO ) CENTENO, ) ) Honorable Daniel J. Lynch, Defendants-Appellees. ) Judge Presiding. ______________________________________________________________________________

JUSTICE DELORT delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion. Justice Harris dissented, with opinion.

OPINION

¶1 Illinois courts hear many cases involving mortgage foreclosures. Almost all of those

disputes involve whether the mortgage was properly foreclosed. This, however, is a tort case

regarding a physical entry into the borrower’s home which occurred before the foreclosure

litigation was even over.

¶2 Plaintiff Melinda Schweihs filed a five-count complaint against Chase Home Finance,

LLC (Chase), Safeguard Properties, Inc. (Safeguard), Todd Gonsalez, and Edilfonso Centeno, 1-14-0863

alleging trespass, negligent trespass, private nuisance, intentional infliction of emotional distress,

and negligence. After extensive discovery and pre-trial motion practice, the trial court (1)

entered summary judgment in favor of defendants on Schweihs’s claims for private nuisance and

intentional infliction of emotional distress; (2) granted Schweihs leave to amend count V of her

complaint; and (3) dismissed amended count V, which attempted to set forth a claim for

negligent infliction of emotional distress. On appeal, Schweihs argues that (1) there existed

genuine issues of material fact with respect to her claims for private nuisance and intentional

infliction of emotional distress which should have precluded the entry of judgment against her;

and (2) that the trial court erred in dismissing count V as amended because it properly stated a

claim for negligent infliction of emotional distress. We disagree and affirm.

¶3 BACKGROUND

¶4 The events leading up the incident underlying this case began on March 6, 1997. On that

day, Schweihs obtained a mortgage for a home located in Northbrook, Illinois. 1 As relevant to

this case, the mortgage contained a clause granting Chase the right, in the event of a default by

Schweihs, to enter onto the property to make repairs. The clause reads as follows:

“7. Protection of Lender’s rights in the Property. If Borrower fails

to perform the covenants and agreements contained in this Security

Instrument *** then Lender may do and pay for whatever is

reasonable or appropriate to protect the value of the Property and

Lender’s rights in the Property. Lender’s actions may include

paying any sums secured by a lien which has priority over this

Security Instrument, appearing in court, paying reasonable

1 The note which accompanied the mortgage was transferred to Chase at some point in time.

-2- 1-14-0863

attorney’s fees and entering on the Property to make repairs.

Although Lender may take action under this paragraph 7, Lender

does not have to do so.”

¶5 Schweihs defaulted on the mortgage in 2007. As a result, on December 3, 2007, Chase

filed a complaint to foreclose the mortgage against her. Chase Home Finance v. Schweihs, No.

07 CH 35360 (Cir. Ct. Cook County, IL) (“foreclosure case”). On May 25, 2010, the trial court

entered a judgment of foreclosure against Schweihs. The court order permitted Schweihs to

continue living at the property at least until her redemption period expired on August 25, 2010.

¶6 On June 17, 2010, Safeguard entered the fray. Safeguard is a company which provides

preservation services for properties in foreclosure. Safeguard’s employees do not personally

perform property inspections or render preservation services. Instead, Safeguard employs

“Client Account Representatives” (CAR) who coordinate with local vendors with whom

Safeguard contracts. The local vendors, in turn, perform inspections and preservation services.

On that day, Safeguard received a report from one of its vendors that Schweihs’s property was

vacant. In response, a Safeguard employee asked the vendor to explain his basis for reporting

the property as vacant. The vendor replied, explaining:

“The property looks like it belonged to a hoarder, there was never

an answer anytime I have been at the property? This past

inspection, the same thing happened, but I did notice that the gas

meter is turned off, electricity and water are still?on [sic], and there

is a dumpster in front of the property, indicating that someone is

trying to clean property. I spoke to the neighbor to the left? and

-3- 1-14-0863

[sic] across the street of property, and they also verified that they

have seen people at property, but not fully occupied??”

¶7 Based on the vendor’s report, a Safeguard CAR placed an “Initial Secure Order” with A1

Builders, a local contractor which performs property inspection services with whom Safeguard

contracted. According to Jeff Marlowe, A1’s Vice President, A1 in turn hired subcontractors

who performed work orders. In June 2010, Gonsalez and Centeno worked as A1 subcontractors.

¶8 On June 22, 2010, at approximately 4 p.m., Gonsalez and Centeno arrived at Schweihs’s

property to execute the initial secure order. Gonsalez and Centeno were required to determine

the vacancy status of the property before executing the order. They conducted a visual

inspection of the property, observing that the grass on the property was uncut and the trees were

overgrown. However, they also saw that there was a dumpster and a car parked on the driveway.

Gonsalez knocked on the front door but did not receive an answer. He then checked the gas

meter and water spout and determined that both utilities had been shut off.

¶9 The men also spoke to some neighbors. One neighbor told Gonsalez that Schweihs’s

property was unoccupied, but that a woman would occasionally visit. Gonsalez was also

informed that random people occasionally used the driveway. However, Centeno was told by a

neighbor that the car parked in the driveway belonged to the homeowner and that the “owner

comes and goes.” In all, Gonsalez and Centeno spent 45 to 90 minutes knocking on the door and

gathering information from neighbors to determine if the house was occupied. Gonsalez also

looked inside the home from the backyard and observed substantial debris, garbage, and boxes

on the floor. Based upon this information, Gonsalez called Marlowe for permission to execute

the work order, which Marlowe gave.

¶ 10 In order to gain entry into Schweihs’s home, Gonsalez removed the door lock and

-4- 1-14-0863

crawled through the doorway, because boxes and debris were piled up against it. Unbeknownst

to Gonsalez, Schweihs was inside when he entered the home. When he got inside, Gonsalez saw

Schweihs and said “lady, you scared the shit out of me.” Schweihs told Gonsalez to leave and

said that she was calling her foreclosure lawyer. Gonsalez told Schweihs that he was “from the

mortgage company” and asked her to come to the front door to speak with him. At that point,

Schweihs called her foreclosure lawyer, and then the police. The police arrived shortly

thereafter. After speaking with all parties involved, as well as neighbors, the police made no

arrests.

¶ 11 Schweihs’s account of what occurred differs from that of the defendants. Schweihs

testified she was at her home in her basement packing her belongings and talking on the

telephone. At some point, she thought she heard knocking on her door. Rather than answer the

door, however, she continued talking on the telephone. After some time, Schweihs went upstairs

to continue packing when she heard the noise of a metal mailbox “flap.” She looked outside

from her second floor window and saw Gonsalez, Centeno, and a green truck in her driveway.

She thought that Gonsalez and Centeno were potential buyers because she was trying to sell her

home during the redemption period. Shortly thereafter, she heard noises coming from inside of

the house. When she went downstairs, she saw “a man in the family room and a man in the open

doorway.” Schweihs asked Gonsalez and Centeno who they were and what they were doing in

her house. According to her, “one of them” told her in a “forceful” way that Chase sent them to

winterize the house and that she needed to come outside to talk to them. Schweihs refused to

leave and instead told the men that she was going to call her lawyer and the police, which she in

fact did after Gonsalez and Centeno went outside. Shortly thereafter, five or six police officers

arrived and told Schweihs that Gonsalez and Centeno were from Safeguard, and that they were at

-5- 1-14-0863

her property related to Schweihs’s foreclosure.

¶ 12 After the incident, Schweihs was afraid while in her home, fearful that she may be

attacked. On the same day as the incident, she drove to the hospital because she “didn’t feel

right.” Subsequently, she sought psychological treatment and medications from multiple doctors

for issues with sleeping, anxiety, and depression. Additionally, she alleged that she sought

temporary leave from her employment due to the incident, but that her request was denied and

she was instead terminated.

¶ 13 On October 4, 2010, Schweihs filed a five-count complaint against Chase, Safeguard,

Gonsalez, and Centeno, alleging trespass, negligent trespass, private nuisance, intentional

infliction of emotional distress, and negligence. Extensive discovery ensued, and on October 23,

2013, the case was set for trial on January 22, 2014. On November 13, 2013, Safeguard,

Gonsalez, and Centeno filed a motion for summary judgment with respect to each of plaintiff’s

claims. On December 11, 2014, Chase informed the court that it intended to file its own motion

for summary judgment. The court continued the trial date to February 4, 2014, and on December

18, 2013, Chase filed its motion for summary judgment with respect to each of plaintiff’s claims.

¶ 14 On February 4, 2014, the trial court heard argument on defendants’ motions. During the

hearing, plaintiff’s counsel made clear that plaintiff’s theory of recovery with respect to count V

was that (1) Chase was negligent in the manner in which it hired and supervised Safeguard and

(2) Safeguard was negligent in the manner in which it trained Gonsalez and Centeno to ascertain

whether property was occupied before completing a work order.

¶ 15 The same day, plaintiff filed a motion for leave to amend her complaint. Plaintiff’s

amended complaint altered count V in an effort to state a claim for negligent infliction of

emotional distress. As amended, count V alleged that defendants had a “duty to use reasonable

-6- 1-14-0863

care in the training process of its employees, agents and contractors.” Schweihs alleged that

Chase breached that duty by “failing to properly train its employees, agents and contractors how

to determine whether a property is abandoned and how to proceed when they are uncertain as to

whether a property is abandoned.” In addition, she alleged that defendants had a “duty to use

reasonable care to not interfere with [her] right and interest in the private use and enjoyment of

her home.” Schweihs alleged that defendants breached that duty by, inter alia, determining that

her home was vacant and “negligently carrying out the ‘initial secure’ work order even though it

was clear that the property was neither vacant nor abandoned.”

¶ 16 On February 6, 2014, the trial court granted defendants’ motion for summary judgment

with respect to Schweihs’s claims for private nuisance and intentional infliction of emotional

distress. The court denied defendants’ motions with respect to the claims for trespass and

negligent trespass. The court also granted Schweihs’s motion for leave to amend her complaint.

The court then dismissed count V as amended on the basis that “the relief requested by Plaintiff

is unavailable as a matter of law based on the facts alleged.” Finally, the court made a finding

pursuant to Illinois Supreme Court Rule 304(a) that there was “no just reason for delaying ***

appeal.” Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). On March 5, 2014, Schweihs filed a notice of

appeal. Accordingly, we have jurisdiction over Schweihs’s appeal pursuant to Rule 304(a). See

Toushin v. Ruggiero,

.

¶ 17 On appeal, Schweihs contends that the trial court erred by granting summary judgment in

favor of defendants because there were genuine issues of material fact as to whether: (1)

Gonsalez and Centeno’s entry into her home was an unreasonable and substantial invasion of her

use and enjoyment of her home; and (2) whether Gonsalez and Centeno’s entry into her home

had a high probability of causing severe emotional distress. In addition, Schweihs argues that

-7- 1-14-0863

the trial court erred by dismissing her amended claim for negligent infliction of emotional

distress.

¶ 18 ANALYSIS

¶ 19 We first consider whether the trial court erred by dismissing Schweihs’s claim for

negligent infliction of emotional distress pursuant to section 2-615 of the Code of Civil

Procedure. 735 ILCS 5/2-615 (West 2010). “A section 2-615 motion to dismiss tests the legal

sufficiency of a complaint.” Hadley v. Doe,

. The central issue presented

by 2-615 motion is “whether the allegations of the complaint, when construed in the light most

favorable to the plaintiff, state sufficient facts to establish a cause of action upon which relief

may be granted.”

¶ 20 In Illinois, there are two types of plaintiffs who may bring claims for negligent infliction

of emotional distress: (1) bystanders and (2) direct victims. A bystander is someone who

observes an accident which results in an injury to a direct victim. See Lewis v. Westinghouse

Electric Corp.,

(1985) (Linn, J., dissenting). A direct victim, by

contrast, is someone who suffers harm as a direct consequence of someone’s negligence. See

(“The direct victim *** is the driver of the car involved in a collision; the pedestrian hit by a

passing vehicle; the product user in whose hands the product explodes, or, as in the present case,

the person trapped inside the malfunctioning elevator. The direct victim, in other words, is an

actual participant in the accident itself.”). 2 Illinois courts have consistently held that, in order to

be considered a direct victim, the victim must come into actual physical contact with the

defendant and suffer a physical injury as a result. See Corgan v. Muehling,

(1991) (preserving “impact rule” with respect to direct victim plaintiffs); Hayes v. Illinois Power

2 The Corgan court cited portions of Justice Linn’s dissenting opinion with approval. See Corgan v. Muehling,

(1991).

-8- 1-14-0863

Co.,

(1992) (holding that plaintiff was direct victim where he

touched his grandfather’s body as it was being electrocuted, resulting in severe burns and shock

to the nervous system); Leonard v. Kurtz,

(1992) (plaintiff’s whose

deceased husband was negligently cremated was not a direct victim because “[t]here was no

direct contact between the plaintiff and defendants”). A plaintiff who meets neither of these

definitions cannot, as a threshold matter, state a claim for negligent infliction of emotional

distress.

¶ 21 For claims brought by a bystander, to survive a motion to dismiss, the plaintiff must

allege that (1) she was a bystander in the “zone of physical danger,” i.e., that she was in such

close proximity to an accident which injured the direct victim that there was a high risk of injury

to the plaintiff and (2) she suffered physical injury or illness as a result of the mental distress

experienced due to the defendant’s negligence. See Rickey v. Chicago Transit Authority,

(1983). On the other hand, for claims brought by direct victims, to survive a motion

to dismiss the plaintiff must allege facts showing that the defendant (1) owed the plaintiff a duty

of care; (2) breached that duty; (3) caused an injury to the plaintiff which was proximately

caused by the breach. Corgan,

.

¶ 22 In the present case, plaintiff concedes that she was not a bystander. Therefore, plaintiff’s

claim can survive dismissal only if she has alleges facts showing that she was a direct victim of

defendants’ alleged negligence. As we have explained, in order to do that, plaintiff must allege,

at a minimum, that there was some physical contact between her and defendants. Far from

alleging any such contact, however, Schweihs’s amended complaint alleges only that Gonsalez

and Centeno entered her home and, upon discovering her, asked her to step outside. Because

Schweihs’s amended complaint does not allege that defendants made physical contact with her,

-9- 1-14-0863

she has failed to plead facts sufficient to establish that she was a direct victim. And, because

Schweihs failed to allege facts establishing that she was either a bystander or direct victim, her

claim for negligent infliction of emotional distress necessarily fails.

¶ 23 In an effort to salvage her claim, plaintiff argues that the supreme court in Corgan

abandoned the impact rule for both bystander and direct victim plaintiffs alike. In fact, the court

held precisely the opposite. In Corgan, the defendant argued that the supreme court “abandoned

the impact rule in Rickey and adopted the zone-of-physical-danger rule as the standard under

which all plaintiffs can recover for negligent infliction of emotional distress.” 3

The court

flatly rejected that argument:

“Defendant’s contentions are, however, misplaced.

Although use of the word ‘substitute’ implies replacement of the

impact rule with the zone-of-physical-danger rule, a closer reading

of Rickey reveals that such a substitution was intended only in

bystander cases. As one court explained: ‘The facts of Rickey are

those of a typical bystander case and the court uses the word

“bystander” throughout the opinion. In particular, the court

expressly puts the issue and the holding in the context of bystander

recovery.’ (McAdams v. Eli Lilly & Co. (N.D. Ill. 1986),

.) Rickey, therefore, abandoned the impact rule as

it applied to bystanders and adopted the zone-of-physical-danger

rule as the standard under which they can recover damages for

3 The court was referring to Rickey v. Chicago Transit Authority,

(1983). In that case, the Illinois Supreme Court abrogated the impact rule in negligent infliction of emotional distress cases involving bystander plaintiffs and replaced it with the zone-of-physical-danger rule. Rickey,

.

- 10 - 1-14-0863

negligent infliction of emotional distress. Rickey did not, however,

define the scope of negligent infliction of emotional distress as it

applies to direct victims. The court in Rickey was solely concerned

with defining the parameters of bystander recovery.” (Emphasis in

original.) Id. at 304.

As the quoted passage indicates, the court in Rickey abrogated the impact rule only with respect

to bystander plaintiffs. Accordingly, we reject plaintiff’s reading of Corgan.

¶ 24 Plaintiff also cites Pasquale v. Speed Products Engineering,

(1995) in

support of her position. True, in that case, the court stated that Corgan “eliminated the

contemporaneous injury or impact requirement for a direct victim's recovery for emotional

distress on a theory of negligence.”

. But for three reasons, we seriously doubt that

this isolated statement from Pasquale has any controlling effect on this case. First, Pasquale

was a bystander case, not a direct victim case, as reflected by the court’s issue statement: “we

confine our inquiry to whether the elimination of the contemporaneous injury or impact

requirement for bystander recovery for emotional distress in the area of negligence meaningfully

translates into an elimination of the element of physical harm for a bystander's recovery for

emotional distress under strict liability theory.”

.

¶ 25 Second, the quoted language is obiter dictum because it is was not essential to the court’s

decision (Id. at 346 (“The rule plaintiff challenges is the requirement of a ‘physical harm’ for

recovery under strict liability [citation]; his status as either a direct victim or bystander is

immaterial to that broad challenge.”)), and obiter dictum is not binding authority (People v.

Coleman,

). Third, the court’s statement in Pasquale is so

inconsistent with Corgan that it can be considered nothing less than an overruling of Corgan.

- 11 - 1-14-0863

Yet, the court’s discussion of Corgan did not include any reference to stare decisis or any other

acknowledgment that the court was departing from settled precedent. That silence is noteworthy,

for in at least one other case nominally involving the same tort at issue here in which the

supreme court overruled a prior decision, the court discussed principles of stare decisis and

expressly acknowledged that it was reversing a prior precedent. See Clark v. Children’s

Memorial Hospital,

(overruling Siemieniec v. Lutheran General

Hospital,

(1987)). We thus decline to find Pasquale controlling here and affirm

the dismissal of Schweihs’s claim for negligent infliction of emotional distress.

¶ 26 We next consider whether the trial court properly entered summary judgment in favor of

defendants on plaintiff’s claims for intentional infliction of emotional distress and private

nuisance. Summary judgment is appropriate “if the pleadings, depositions, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)

(West 2010). Summary judgment is a drastic measure and should only be granted when the

moving party's right to judgment is “clear and free from doubt.” Outboard Marine Corp. v.

Liberty Mutual Insurance Co.,

(1992). “In determining whether a genuine

issue as to any material fact exists, a court must construe the pleadings, depositions, admissions,

and affidavits strictly against the movant and liberally in favor of the opponent.” Williams v.

Manchester,

(2008). “Where a reasonable person could draw divergent

inferences from undisputed facts, summary judgment should be denied.” Outboard Marine

Corp.,

. We review a trial court’s entry of summary judgment de novo.

Virginia Surety Co. v. Northern Insurance Co. of New York,

(2007).

- 12 - 1-14-0863

¶ 27 To state a claim for intentional infliction of emotional distress, a plaintiff must allege that

(1) the defendant engaged in conduct that was “extreme and outrageous”; (2) the defendant

intended to inflict severe emotional distress or knew that there was a “high probability” that his

conduct would cause the plaintiff to experience severe emotional distress; and (3) the

defendant’s “conduct must in fact cause severe emotional distress.” (Emphasis in original.)

McGrath v. Fahey,

(1988). “[T]he tort does not extend to ‘mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities.’ ”

(quoting

Restatement (Second) of Torts § 46, cmt. d, at 73 (1965)). Rather, the nature of the defendant’s

conduct must be so extreme as to go beyond all possible bounds of decency, and to be regarded

as intolerable in a civilized community. Id.

¶ 28 Schweihs argues that summary judgment was not proper because a reasonable juror could

have found that Gonsalez and Centeno knew that entry into her home created a high probability

that she would suffer severe emotional distress. She additionally contends that Chase engaged in

reckless conduct by allegedly circumventing the Illinois foreclosure law by failing to obtain a

court order before hiring Safeguard, which in turn hired A1 Builders to perform inspection

services on her property. Schweihs argues that it was plain to Gonsalez and Centeno that she

was inside of her home, and that they disregarded a high probability that entry into her home

would cause severe emotional distress.

¶ 29 In support of her argument, Schweihs contends that sections 15-1603 and 15-1701 of the

Illinois Mortgage Foreclosure Law, (735 ILCS 5/15-1603, 15-1701 (West 2010)), which relate to

redemption and right to possession, prohibited defendants from taking possession of her home

during the redemption period without a specific court order finding that Schweihs had abandoned

- 13 - 1-14-0863

the property. She asserts that because defendants had no such court order, their execution of the

initial secure order was improper.

¶ 30 A proper understanding of the foreclosure law illustrates why this argument is incorrect.

The first cited provision simply allows a court to shorten the redemption period if the court finds

that the property has been abandoned. See 735 ILCS 5/15-1603(b)(4) (West 2010). The second

does not mention abandoned property at all. It establishes a timeline along which different

standards and presumptions apply as to a mortgagee’s right to possession vis-à-vis the borrower,

an issue which is particularly relevant in cases of receivership. 735 ILCS 5/15-1701 (West

2010).

¶ 31 “A common idiom describes property as a ‘bundle of sticks’– a collection of individual

rights which, in certain combinations, constitute property. [Citations.] State law determines

only which sticks are in a person’s bundle.” United States v. Craft,

(2002).

There is a huge difference between the right to possession for residential purposes which these

statutes address, and the right to merely enter to make repairs. The former involves a lion’s

share of the “bundle of sticks,” and the latter, only a tiny portion. The cited sections of the

foreclosure law merely move a few of the sticks around from one party to another; neither

absolutely prohibits any lender entry to secure the property or make repairs during the

redemption period as Schweihs contends.

¶ 32 In fact, the judgment of foreclosure and sale order stated that “[i]n order to protect and

preserve the mortgaged real estate, it has or may also become necessary for [Chase] to pay fire

and other hazard insurance premiums on the real estate or to make such repairs to the real estate

as may reasonably be deemed necessary for the proper preservation thereof.” Even if the

foreclosure law sections somehow did apply, the order itself gave Chase the right to enter onto

- 14 - 1-14-0863

the property to make reasonable repairs for the preservation of the property. And in any event,

Schweihs, by signing the mortgage, had presumptive knowledge of the clause which expressly

stated that Chase could enter onto her property to make repairs if she fell into default. See Asset

Exchange II, LLC v. First Choice Bank,

(“ ‘One is under a duty

to learn, or know, the contents of a written contract before he signs it, and is under a duty to

determine the obligations which he undertakes by the execution of a written agreement.

[Citation.] And the law is that a party who signs an instrument relying upon representations as to

its contents when he has had an opportunity to ascertain the truth by reading the instrument and

has not availed himself of the opportunity, cannot be heard to say that he was deceived by

misrepresentations.’ ” (quoting Leon v. Max E. Miller & Sons, Inc.,

(1974))).

¶ 33 Even if we were to find some merit in the foreclosure law argument, we do not believe

that, based on these facts, that a reasonable juror could find that defendants’ conduct was

“extreme and outrageous.” Schweihs saw Gonsalez and Centeno in her driveway. She was

packing her belongings while Gonsalez was knocking on the door. Crucially, Schweihs testified

that she thought she heard knocking on the door, as well as the sound of her mailbox flapping,

but that she continued talking on the telephone. Moreover, Schweihs was aware that she was in

the redemption period, and even testified that she thought Gonsalez and Centeno could have

been potential buyers, because she was trying to sell the house.

¶ 34 Despite these facts, Schweihs argues that the mere entry into her alone was in and of

itself extreme and outrageous. Besides that entry, the only other evidence that she relies on to

demonstrate that Gonsalez’s and Centeno’s conduct was extreme and outrageous is that Gonsalez

was “forceful” when he asked that she come to the front door to speak with him. In the absence

- 15 - 1-14-0863

of authoritative precedents so holding, we must decline to accept Schweihs’s invitation to find

that the entering of her home under these facts was extreme and outrageous per se.

¶ 35 The record shows that Gonsalez and Centeno conducted an investigation to determine

whether the home was occupied. Gonsalez checked the utilities, spoke with neighbors, and

looked inside the home to see if it was occupied. While there were signs that the house was not

fully abandoned, such as the presence of the dumpster and a vehicle, Gonsalez inquired as to the

nature of the vehicle and was told that many different people were parking in the driveway.

¶ 36 Next, Schweihs fails to cite any authority for her argument that the entry of her home

alone was sufficient by itself to amount to extreme and outrageous behavior. The interaction

between Gonsalez, Centeno, and Schweihs was hardly extreme or outrageous. Gonsalez stated

his purpose for being at Schweihs’s home, retreated back outside when he was surprised to see

Schweihs, and then asked Schweihs to come to the door and speak to him. And as noted above,

Schweihs’s own behavior does not support her claim. She testified that she knew she was in the

redemption period, that she heard knocking on her door and the sound of her mailbox flapping

and called her foreclosure lawyer before calling the police.

¶ 37 While we acknowledge that sanctity of the home and inherent right to be free from

intrusion are bedrock principles of the law, the facts do not support Schweihs’s argument that she

was completely unaware that a third party might enter her property at the time in question. In

fact, the record strongly suggests that she may have facilitated her own victimization. Examples

of this are that she refused to answer incessant knocking on her door and that rather than call the

police first, she called her foreclosure attorney.

¶ 38 In so holding, we do not intend in any way to comment on whether defendants’ conduct

amounted to a trespass. Trespass is a different tort with different elements, and that claim is still

- 16 - 1-14-0863

pending in the trial court, which found there were issues of material fact preventing judgment on

it. We merely conclude that based upon the facts adduced in this record, no reasonable juror

could find that defendants’ conduct was extreme or outrageous. Thus, summary judgment in

favor of defendants on Schweihs’s claim for intentional infliction of emotional distress was

proper.

¶ 39 Finally, Schweihs argues that the trial court erred in granting summary judgment in favor

of defendants on her claim for private nuisance. Schweihs challenges the trial court’s

determination that she could not demonstrate a substantial invasion of her property, and that

Gonsalez and Centeno’s entry into her home was not the type of invasion that the tort to which

private nuisance relates.

¶ 40 “To constitute a private nuisance, it must be shown that the act complained of invaded

another's interest in the use and enjoyment of his land. The invasion must be substantial, be

either intentional or negligent, and be unreasonable.” Statler v. Catalano,

(1988). “The standard for determining if particular conduct is unreasonable is determined

by the effect it would have on a normal person of ordinary habits and sensibilities.”

The

Illinois Supreme Court has “repeatedly described a nuisance as ‘something that is offensive,

physically, to the senses and by such offensiveness makes life uncomfortable.’ ” In re Chicago

Flood Litigation,

(1997) (quoting Rosehill Cemetery Co. v. City of Chicago,

(1933)). Typical examples of invasions which have been held to constitute a

private nuisance include noise, smoke, vibration, dust, fumes, and odors produced on the

defendant’s land and impairing the use and enjoyment of neighboring land. Id. at 205-06.

Whether the complained-of activity constitutes a nuisance is generally a question of fact. City of

- 17 - 1-14-0863

Chicago v. Festival Theatre Corp.,

(1982); Dobbs v. Wiggins,

(2010).

¶ 41 Schweihs argues that defendants’ one-time entry onto her property was a private nuisance

because an objectively reasonable person would find defendants’ “unlawful break-in” of her

home as an unreasonable and substantial invasion of the use and enjoyment of her home. Stated

another way, she argues that an alleged trespass on her property is sufficient to be a private

nuisance.

¶ 42 We cannot accept Schweihs’s premise because it would elevate any alleged trespass to

the status of a private nuisance. The conduct here is wholly unrelated to the tort of private

nuisance, because the crux of the tort of private nuisance is to remedy wrongful behavior that

substantially interferes with the use and enjoyment of one’s property. The conduct here is far

removed from that presented in classic nuisance cases, such as pollution or noise of a perpetual

or ongoing nature. Schweihs’s argument not only distorts the meaning of a private nuisance, but

equates any singular de minimis encroachment or trespass into a private nuisance. Accordingly,

the trial court properly granted summary judgment in favor of defendants on Schweihs’s claim

for private nuisance.

¶ 43 We need not address Schweihs’s argument regarding an agency relationship between

Chase, Safeguard, Gonsalez, and Centeno, because regardless of the existence or lack of the

existence of an agency relationship, her claims would still fail as to all defendants.

¶ 44 Our conclusion is by no means an endorsement of how Chase and/or its hired contractors

conducted themselves with regard to Schweihs’s property. We recognize that many foreclosure

defendants destroy the interior of their homes before leaving merely to spite their lenders, so it is

not surprising that a major lender like Chase would have procedures in place to secure properties

- 18 - 1-14-0863

against such conduct. See, e.g., Michael M. Phillips, Buyers’ Revenge: Trash the House After

Foreclosure, Wall St. J., at A1 (Mar. 28, 2008), available at

http://www.wsj.com/articles/SB12966558667656988. However, Schweihs was hardly someone

who walked away from her property. She had appeared in her pending foreclosure case through

counsel and was defending it. That alone suggests that the property was not so definitively

abandoned as to require a break-in. It also supports our feeling that a simple old-fashioned

telephone call between the attorneys representing the two sides was in order before anyone

directed a work crew to break into plaintiff’s home, if merely to verify the current status of her

residency.

¶ 45 CONCLUSION

¶ 46 Accordingly, we affirm the judgment of the Circuit Court of Cook County.

¶ 47 Affirmed.

¶ 48 JUSTICE HARRIS, dissenting.

¶ 49 I respectfully dissent.

¶ 50 The majority erroneously interprets the Corgan case to conclude, “we continue to

recognize the necessity of a physical impact for a direct victim of negligent infliction of

emotional distress.” This is contrary to Corgan, which makes clear that the Rickey zone of

danger test, or the necessity of a physical impact, does not apply where the plaintiff is a direct

victim as we have here.

¶ 51 In Corgan, the plaintiff was a direct victim who filed an action for negligent infliction of

emotional distress against her psychologist for allegedly engaging in sexual relations with her as

part of or during her course of treatment. Corgan,

. Our supreme court

specifically found that Rickey did not “define the scope of negligent infliction of emotional

- 19 - 1-14-0863

distress as it applies to direct victims.”

. It held that the Rickey zone of danger test

“does not apply to the instant case, as the plaintiff was a direct victim and not a bystander.”

. Our supreme court found that it “ha[d] yet to determine the pleading requirements for a

plaintiff who has directly suffered emotional distress due to” negligence.

It concluded that

the relevant question in a direct victim case “is whether the plaintiff properly alleged negligence

on the part of the defendant.”

¶ 52 Our supreme court then addressed whether the complaint should be dismissed because

the plaintiff did not allege she suffered a physical injury or illness as a result of her emotional

distress. It acknowledged the difficulties of proving emotional distress without bodily harm, and

the concerns about a plaintiff’s trustworthiness in making such claims.

. However, the

court concluded that “lack of precision is not a justifiable reason to preclude recovery, as expert

witnesses such as psychiatrists, psychologists and social workers are fully capable of providing

the jury with an analysis of a plaintiff’s emotional injuries. The emotional distress of the

primary response is no less real than the distress that is coupled with the physical manifestation

of the secondary response and should not be distinguishable at law.”

. The majority is

wrong in continuing to require physical impact in claims for negligent infliction of emotional

distress where plaintiff is a direct victim.

¶ 53 As our supreme court held in Corgan, “[t]he essential question [in a direct victim case] is

whether the plaintiff properly alleged negligence on the part of the defendant.”

. A

complaint for negligence must allege facts that establish the existence of a duty owed by

defendant, a breach of that duty, and an injury suffered by plaintiff as a result of the breach.

In ruling on a section 2-615 motion to dismiss, all well-pled facts in plaintiff’s complaint must be

taken as true, as well as all reasonable inferences that can be drawn therefrom. Neppl v. Murphy,

- 20 - 1-14-0863

(2000). Here, plaintiff alleged in her complaint that defendant had a

duty to use reasonable care in the hiring process, it breached this duty by hiring individuals who

unlawfully entered her home, and plaintiff suffered injuries such as “lingering trauma, anxiety,

depression and severe sleep impairment” as a proximate result of defendant’s breach. The facts

alleged, if proved, sufficiently establish the elements of plaintiff’s negligent infliction of

emotional distress claim.

¶ 54 The authority of our supreme court’s Corgan opinion requires a reversal of the trial

court’s dismissal of plaintiff’s claim for negligent infliction of emotional distress.

- 21 -