HIGH COURT SORTS OUT 'CONTINUING TORT' OF UNFLAGGING EMOTIONAL DISTRESS

November 5, 2003

By Steven P. Garmisa
Hoey &Farina Attorney
garmisa@hoeyfarina.com

Figuring out when the "continuing tort" doctrine applies can be puzzling. But the case of the allegedly abusive husband provides a categorical answer for emotional distress claims involving a pattern of alleged misconduct.

Because the tort of intentional infliction of emotional distress requires proof of extremely outrageous conduct, in cases where a continuing course of alleged misconduct is used to establish the necessary degree of outrageousness, the statute of limitations does not start running until the alleged misconduct ceases. Feltmeier v. Feltmeier, 2003 Ill. LEXIS 1421 (Sept. 18).

Lynn and Robert were married for 11 years. More than a year after the marriage was dissolved, Lynn filed a complaint accusing Robert of intentional or reckless infliction of emotional distress, which she said continued even after the divorce. The list of alleged misconduct included acts that occurred more than two years before the lawsuit was filed.

Accepting the allegations as true, the Illinois Supreme Court decided the complaint states a valid cause of action, and that no special limitations will be imposed for cases involving spouses. Plus, the court decided Lynn can rely on alleged incidents from throughout the 11-year marriage because the complaint was filed within two years of the last alleged act of misconduct.

On the substantive requirements for a distress claim, Justice Philip J. Rarick explained (with various omissions that are not indicated):
"In McGrath v. Fahey, 126 Ill.2d 78 (1988), this court set forth the three elements necessary to state a cause of action for intentional infliction of emotional distress, stating: 'First, the conduct involved must be truly extreme and outrageous. Second, the actor must either intend that his conduct inflict severe emotional distress, or know that there is at least a high probability that his conduct will cause severe emotional distress. Third, the conduct must in fact cause severe emotional distress.' "

Looking at cases from across the country involving emotional distress claims between spouses, Rarick continued:

"Illinois case law makes clear that under no circumstances would mere insults, indignities, threats, annoyances, petty oppressions or other trivialities qualify as outrageous conduct. 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.

"Thus, while we agree that special caution is required in dealing with actions for intentional infliction of emotional distress arising from conduct occurring within the marital setting, our examination of both the law of this state and the most commonly raised policy concerns leads us to conclude that no valid reason exists to restrict such actions or to require a heightened threshold for outrageousness in this context."

Looking at the specific allegations in Lynn's complaint, Rarick continued:

"A pattern, course and accumulation of acts can make an individual's conduct sufficiently extreme to be actionable, whereas one instance of such behavior might not be.

"The issue of whether domestic abuse can be sufficiently outrageous to sustain a cause of action for intentional infliction of emotional distress is apparently one of first impression in Illinois. Other jurisdictions, however, have found similar allegations of recurring cycles of physical and verbal abuse, wherein the conduct went far beyond the trials of everyday life between two cohabiting people, to be sufficiently outrageous to fall within the parameters of section 46 of the Restatement (Second) of Torts.

"In the instant case, we must agree with the Appellate Court that, when the above-summarized allegations of the complaint are viewed in their entirety, they show a type of domestic abuse that is extreme enough to be actionable: 'It combines more than a decade of verbal insults and humiliations with episodes where freedom of movement was deprived and where physical injury was often inflicted. The alleged pattern of abuse, combined with its duration, worked a humiliation and loss of self-esteem. Regardless of the form in which it arrived, violence was certain to erupt, and when seasons of spousal abuse turn to years that span the course of a decade, we are unwilling to dismiss it on grounds that it is unworthy of outrage.'

"Therefore," Rarick continued, "where we find that a reasonable trier of fact could easily conclude that Robert's conduct was so outrageous as to be regarded as intolerable in a civilized community, we reject his contention that the complaint fails to sufficiently allege this element."

The Supreme Court also agreed that the two-year statute of limitations for personal injuries applies to claims for intentional infliction of emotional distress. But two years from what date?
Robert argued that the two-year period started running with each act of alleged misconduct, while Lynn relied on the continuing tort doctrine.

"Generally, a limitations period begins to run when facts exist that authorize one party to maintain an action against another. However, under the 'continuing tort' or 'continuing violation' rule, where a tort involves a continuing or repeated injury, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.

"At this juncture, we believe it important to note what does not constitute a continuing tort. A continuing violation or tort is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation. Thus, where there is a single overt act from which subsequent damages may flow, the statute begins to run on the date the defendant invaded the plaintiff's interest and inflicted injury, and this is so despite the continuing nature of the injury.

"For example, in Bank of Ravenswood [v. City of Chicago, 307 Ill.App.3d 161 (1999)], the Appellate Court rejected the plaintiffs' contention that the defendant city's construction of a subway tunnel under the plaintiff's property constituted a continuing trespass violation.

"The plaintiffs' cause of action arose at the time its interest was invaded, i.e., during the period of the subway's construction, and the fact that the subway was present below ground would be a continual effect from the initial violation, but not a continual violation. See also Hyon [Waste Management Services Inc. v. City of Chicago, 214 Ill.App.3d 757 (1991)] (plaintiff's federal due process claim did not establish a continuing tort, where alleged wrongful sealing of plaintiff's incinerator by defendant city was single, discreet event and any alleged damages resulting from city's act were instead continued ill effects from a single alleged due process violation).

"A continuing tort therefore does not involve tolling the statute of limitations because of delayed or continuing injuries, but instead involves viewing the defendant's conduct as a continuous whole for prescriptive purposes. Thus, in City of Rock Falls [v. Chicago Title & Trust Co., 13 Ill.App.3d 359 (1973)], where the defendant city and its mayor had continuously engaged in various acts of tortious interference with the utilization of the plaintiff's property over a period of three years, the Appellate Court held that the violation of the plaintiff's rights was a continuing tort that did not cease until the date of the last injury or when the tortious acts ceased. See also Field [v. First National Bank of Harrisburg, 249 Ill.App.3d 822 (1993)] (continuing tort found where numerous acts of improperly cashing checks over four-year period constituted an ongoing scheme amounting to one transaction, so that statute of limitations did not begin to run until date on which last check was cashed).

"This court recently examined the issue of whether a continuing violation existed in Belleville Toyota Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325 (2002). There it was held that the continuing violation rule did not apply where the defendants' misconduct in the allocation of vehicles to the plaintiff did not constitute 'one, continuing, unbroken, decade-long violation' of the Motor Vehicle Franchise Act. Rather, each individual allocation, made 2- 4 times per month, was a separate violation of the Franchise Act supporting a separate cause of action, because each allocation was the result of a discrete decision by the defendants 'regarding the numerous adjustable parameters that drove the computerized allocation system.'

"Further, this court rejected the notion that Cunningham v. Huffman, 154 Ill.2d 398 (1993), had adopted 'a continuing violation rule of general applicability in all tort cases.' In Cunningham, this court held that a medical malpractice claim is not barred by the statute of repose where the plaintiff demonstrates that there was a continuous and unbroken course of negligent treatment so related as to constitute one continuing wrong.

"The Belleville Toyota court distinguished Cunningham, explaining that the result in that case was based on interpretation of the language contained in the medical malpractice statute of repose, and added: '[W]e discern no "unjust results" in the present case, like those we sought to avoid in Cunningham, which would militate in favor of applying a continuing violation rule.'

"In the instant case, Robert cites Belleville Toyota and maintains that 'each of the alleged acts of abuse inflicted by Robert upon Lynn over a 12-year period are separate and distinct incidents which give rise to separate and distinct causes of action, rather than one single, continuous, unbroken, violation or wrong which continued over the entire period of 12 years.'

"We must disagree," Rarick and his colleagues concluded. "While it is true that the conduct set forth in Lynn's complaint could be considered separate acts constituting separate offenses of, inter alia, assault, defamation and battery, Lynn has alleged, and we have found, that Robert's conduct as a whole states a cause of action for intentional infliction of emotional distress. Further, unlike Belleville Toyota, there are 'unjust results' in the present case, like those we sought to avoid in Cunningham, which would militate in favor of applying the continuing tort rule in an action for intentional infliction of emotional distress.

"As did the Appellate Court below, we find the case of Pavlik v. Kornhaber, 326 Ill.App.3d 731 (2001), to be instructive. In Pavlik, the court first found that plaintiff's complaint stated a cause of action for intentional infliction of emotional distress, where the defendant's persistent notes, sexually explicit comments, insistence on meetings to discuss his desire for sexual contact and lewd behavior in their employer-employee relationship were such that a reasonable person would perceive them to be sufficiently offensive and sinister to rise to the level of extreme and outrageous behavior.

"The court in Pavlik then found that the trial court had erred in dismissing the plaintiff's claim as untimely. While the defendant argued that his sexual advances took place outside the two-year statute of limitations for personal injury, the plaintiff had alleged an ongoing campaign of offensive and outrageous sexual pursuit that established a continuing series of tortious behavior, by the same actor, and of a similar nature, such that the limitations period did not commence until the last act occurred or the conduct abated.
"We find the following passage, wherein the Pavlik court explains its reasons for applying the continuing tort rule to the plaintiff's action for intentional infliction of emotional distress, to be particularly cogent:

" 'Illinois courts have said that in many contexts, including employment, repetition of the behavior may be a critical factor in raising offensive acts to actionably outrageous ones. It may be the pattern, course and accumulation of acts that make the conduct sufficiently extreme to be actionable, whereas one instance of such behavior might not be.

" 'It would be logically inconsistent to say that each act must be independently actionable while at the same time asserting that often it is the cumulative nature of the acts that give rise to the intentional infliction of emotional distress. Likewise, we cannot say that cumulative continuous acts may be required to constitute the tort but that prescription runs from the date of the first act.

"'Because it is impossible to pinpoint the specific moment when enough conduct has occurred to become actionable, the termination of the conduct provides the most sensible place to begin the running of the prescriptive period.'"

Applying this analysis, Rarick said he agreed with the Appellate Court here, the court in Pavlik "and with the growing number of jurisdictions that have found that the continuing tort rule should be extended to apply in cases of intentional infliction of emotional distress.

"We note, however, that embracing the concept of a continuing tort in the area of intentional infliction of emotional distress does not throw open the doors to permit filing these actions at any time. As with any continuing tort, the statute of limitations is only held in abeyance until the date of the last injury suffered or when the tortious acts cease.

"Thus, we find that the two-year statute of limitations for this action began to run in August 1999, because Lynn's complaint includes allegations of tortious behavior by Robert occurring as late as that month. Applying the continuing tort rule to the instant case, Lynn's complaint, filed Aug. 25, 1999, was clearly timely and her claims based on conduct prior to Aug. 25, 1997, are not barred by the applicable statute of limitations."

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