NO. 5-95-0566
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
WILLIAM E. DAVIS and PAMELA DAVIS, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Jackson County.
)
v. ) No. 95-L-19
JAMES TEMPLE and THE CITY OF )
CARBONDALE, ILLINOIS, ) Honorable
) William G. Schwartz,
Defendants-Appellees. ) Judge, presiding.
_________________________________________________________________
JUSTICE GOLDENHERSH delivered the opinion of the court:
Plaintiffs, William E. Davis and Pamela Davis, appeal from the
judgment of the circuit court of Jackson County granting a motion
to dismiss their complaint. The motion to dismiss was filed by
defendants, James Temple, a police officer with the City of Carbon-
dale, and the City of Carbondale.
Plaintiffs brought the present action to recover damages
allegedly caused by Officer Temple while he was acting in his
capacity as a police officer for the city. Plaintiffs filed a
seven-count complaint against defendants. Counts I through V were
brought by William. Count I was against Officer Temple and alleged
malicious prosecution. Count II was against the city under a
theory of respondeat superior and likewise alleged malicious
prosecution. Count III was against Officer Temple and count IV was
against the city; both alleged false arrest. Count V was against
the city and alleged negligent retention of an employee, namely,
Officer Temple. Counts VI and VII were brought by Pamela against
Officer Temple and the city, respectively. Counts VI and VII
alleged invasion of privacy, more specifically, the tort of
unreasonable intrusion upon the seclusion of another. On appeal,
we must determine as to counts I through V whether William alleged
sufficient facts to sustain a cause of action for the alleged
torts. As to counts VI and VII, we must first determine whether a
cause of action exists in Illinois for unreasonable intrusion upon
the seclusion of another, and, if so, whether Pamela sufficiently
alleged such a cause of action in counts VI and VII. We affirm
with one exception. We expressly recognize a cause of action for
unreasonable intrusion upon the seclusion of another. However, we
find the facts alleged in counts VI and VII insufficient to state
that cause of action.
FACTS
Plaintiffs are husband and wife. At the time of the alleged
occurrences, Pamela was employed by Bud's Warehouse. William was
also an employee of Bud's Warehouse but was discharged from that
employment on January 20, 1994. Plaintiffs filed their original
action on February 9, 1995. The trial court granted defendants'
motion to dismiss all seven counts but allowed plaintiffs leave to
amend. On May 18, 1995, plaintiffs filed their first amended
complaint.
Plaintiffs' first amended complaint alleged that on January
20, 1994, Officer Temple, in the course of his duty as a police
officer, was called to Bud's Warehouse to investigate a reported
criminal damage to property. Plaintiffs further alleged that from
January 20, 1994, until February 9, 1994, Officer Temple engaged
"in a course of conduct of hounding and harassing" both William and
Pamela "in an attempt to coerce a confession" from William on the
criminal damage charge. In count I, William alleged a cause of
action against Officer Temple for malicious prosecution, specifi-
cally alleging as follows:
"3. That on February 18, 1994, the Defendant James
Temple, motivated by malice[,] did cause to be filed a
criminal action, namely, Jackson County No. 94-CM-82,
against this Plaintiff, by preparing and submitting to
the Jackson County State's Attorney an `Affidavit of
Probable Cause,' which contained false information.
Defendant failed to obtain a Uniform Complaint form
signed by the alleged victim, and in fact, prepared and
filed said Affidavit of Probable Cause without consulting
with or informing the alleged victims of his intent to
charge the Plaintiff William E. Davis with Assault.
Defendant submitted this `Affidavit of Probable Cause'
although he knew that said charges were unjustified and
that probable cause for the prosecution of this plaintiff
was lacking." (Emphasis in original.)
Count II made the same allegations against the city under a theory
of respondeat superior.
In count III, William alleged a cause of action against
Officer Temple for false arrest, specifically alleging as follows:
"3. That on January 20, 1994, the Defendant James
Temple, in the course of his duty as a Carbondale Police
officer, was called to Bud's Warehouse in Carbondale,
Illinois, to investigate a reported criminal damage to
property.
4. That from January 20, 1994, until February 9,
1994, the Defendant James Temple[] did engage in a course
of conduct of hounding and harassing the Plaintiff,
William Davis, in an attempt to coerce a confession to
the aforesaid criminal damage to property charge.
5. That on February 9, 1994, the harassment by the
Defendant James Temple reached such an extent that the
Plaintiff filed a complaint with both the Carbondale
Police Department and the Jackson County State's At-
torney's office, alleging police misconduct.
6. That on February 10, 1994, the Defendant, James
Temple, in retaliation for Plaintiff's filing of the
police misconduct complaint, did prepare and submit to
and did cause a warrant to issue for the arrest of the
Plaintiff upon the charge of Assault.
7. That Defendant James Temple filed the `Affidavit
of Probable Cause' without any probable cause, and did so
out of malice, and that the arrest of the Plaintiff was
wholly without cause.
8. That as a result of the actions of the Defendant
James Temple, Plaintiff was caused to be arrested,
fingerprinted and booked, and was detained against his
will for a period of time.
9. That upon trial of said charges, the Court
entered a directed verdict in favor of this Plaintiff[]
and thereby acquitted this Plaintiff, [and] that judgment
was entered in favor of Plaintiff and is now final.
10. That Defendant James Temple caused said
criminal charges to be lodged against Plaintiff and
caused Plaintiff to be arrested with the intent to bring
this Plaintiff into disrepute and to cause, if possible,
great shame and humiliation to Plaintiff, in which
objective the Defendant was successful; and that in
addition to the actual financial losses caused by such
conduct, including the expenses incident to the defense
of such case, the Plaintiff was subjected to great stress
and anxiety which adversely affected his health, peace of
mind and physical condition." (Emphasis in original.)
In count IV, William made the same allegations against the city,
again under a theory of respondeat superior.
In count V, William alleged a cause of action against the city
for negligent retention of Officer Temple as a police officer.
William alleged that previous complaints were made against Officer
Temple but the city failed to take appropriate measures to correct
the conduct of Officer Temple.
In counts VI and VII, Pamela alleged a cause of action for
invasion of privacy, specifically, unreasonable intrusion on the
seclusion of another, against both Officer Temple and the city,
respectively. Pamela specifically alleged:
"5. That from January 20, 1994, until February 9,
of conduct of hounding and harassing Plaintiff Pamela
Davis, in an attempt to coerce her husband to confess to
the criminal damage to property charge, to-wit:
(a) On February 2, 1994, the Defendant James
Temple did call Plaintiff Pamela Davis at her
place of employment, and demanded that she
appear at the Carbondale Police Department to
discuss his investigation of damage to Plain-
tiff's [coworker's] automobile. Upon her
arrival, the Defendant James Temple secluded
himself in a room with Plaintiff, and verbally
abused her, calling her a `fucking liar,' and
threatening to `make (her) life a living hell'
until her husband confessed to damaging Plain-
tiff's co[]worker's automobile.
(b) On February 8, 1994, the Defendant James
Temple did come to the place of employment of
the Plaintiff Pamela Davis, namely, Bud's
Warehouse, unannounced and demanding to speak
to the Plaintiff, in the clear view of her
friends and co[]workers, thus invading the
privacy of the Plaintiff among her friends and
co[]workers.
(c) That on February 8, 1994, in an attempt to get
away from the Defendant James Temple, the
Plaintiff Pamela Davis walked to the stockroom
of her employer's place of business, a place
not open to the public, and was talking to her
manager, when Defendant James Temple forceful-
ly entered the storeroom, informed Plaintiff
Pamela Davis she was `in custody' and again
demanded that she talk to him, all in the
presence of and clear view and hearing of the
store manager of Plaintiff's employment, thus
invading the privacy of the plaintiff and
causing a loss of confidence and reputation of
the Plaintiff among her friends and co[]work-
ers." (Emphasis in original.)
Plaintiffs allege that as a result of the action of defendants,
they suffered great shame and humiliation, financial loss, and
great stress and anxiety, which adversely affected their health,
peace of mind, and physical condition.
On June 14, 1995, defendants filed a motion for involuntary
dismissal of plaintiffs' first amended complaint, pursuant to
section 2-619.1 of the Code of Civil Procedure (the Code). 735
ILCS 5/2-619.1 (West 1994). The trial court dismissed plaintiffs'
first amended complaint with prejudice. Plaintiffs filed a timely
notice of appeal. Plaintiffs did not file a motion for leave to
file a second amended complaint, nor have they sought that relief
from this court. Plaintiffs stand on their first amended com-
plaint.
ISSUES
The first issue we are asked to address is whether plaintiffs'
first amended complaint alleged sufficient facts to sustain the
various causes of action stated in counts I through V. We
initially note that the standard of review on appeal from a motion
to dismiss under section 2-615 of the Code is whether the complaint
sufficiently states a cause of action. 735 ILCS 5/2-615 (West
1994); McCormick v. Kruk, 220 Ill. App. 3d 449, 451, 581 N.E.2d 73,
75 (1991). Generally, a motion brought under section 2-619 of the
Code is properly allowed only if it raises an affirmative matter
which negates the plaintiff's cause of action completely or when it
refutes crucial conclusions of law or conclusions of material fact
that are unsupported by allegations of specific facts. 735 ILCS
5/2-619 (West 1994); Health Employees Labor Program of Metropolitan
Chicago v. County of Cook, 236 Ill. App. 3d 93, 97, 603 N.E.2d 591,
593 (1992). On review of an order dismissing a complaint for
failure to state a cause of action, all well-pleaded facts and
inferences are accepted as true (Fellhauer v. City of Geneva, 142
Ill. 2d 495, 499, 568 N.E.2d 870, 872 (1991)), but not conclusions
of law or conclusions of fact unsupported by specific facts.
Groenings v. City of St. Charles, 215 Ill. App. 3d 295, 299, 574
N.E.2d 1316, 1319 (1991). Disputed questions of law are reviewed
de novo. In re Marriage of Skinner, 149 Ill. App. 3d 788, 791, 501
N.E.2d 311, 313 (1986). A motion to dismiss a complaint for
failure to state a cause of action should not be granted unless it
clearly appears that no set of facts could be proven under the
pleadings which would entitle the plaintiff to relief. Krautstrunk
v. Chicago Housing Authority, 95 Ill. App. 3d 529, 420 N.E.2d 429
(1981).
COUNTS I AND II
The necessary elements for malicious prosecution are:
"(1) the commencement or continuance of an original
criminal or civil judicial proceeding, (2) its legal
causation by the present defendant against plaintiff who
was the defendant in the original proceeding, (3) its
bona fide termination in favor of the present plaintiff,
(4) the absence of probable cause for such proceedings,
(5) the presence of malice, and (6) damages resulting to
plaintiff." Freides v. Sani-Mode Manufacturing Co., 33
Ill. 2d 291, 295, 211 N.E.2d 286, 288 (1965).
William maintains that he alleged that Officer Temple caused
criminal charges to be filed against him and that is sufficient to
reasonably inform Officer Temple of the nature of the claim against
him. Further, William maintains that because he alleged that the
affidavit contained "false" information, the pleadings meet the
required elements of malicious prosecution. Defendants respond
that plaintiff failed to allege that Officer Temple pressured the
State's Attorney into prosecuting William and that there are
insufficient allegations that Officer Temple knowingly supplied
"false" information to the State's Attorney on which the State's
Attorney relied in deciding to prosecute William. We agree with
defendants.
In the present case, there is no allegation in count I that
Officer Temple in any way pressured or coerced the State's Attorney
to file charges against defendant. The first amended complaint
merely contends that Officer Temple "motivated by malice" caused
charges to be filed against plaintiff by preparing and submitting
to the State's Attorney an affidavit of probable cause which
contained false information. William did not specify which
information in the affidavit was false, but he only alleged that
defendant did not obtain a uniform complaint form signed by the
alleged victim and that defendant prepared and filed the said
affidavit without consulting or informing the alleged victim.
However, in conjunction with this case, the State's Attorney filed
an affidavit in which he stated that there is no statutory
requirement for filing a uniform complaint when an officer files an
affidavit of probable cause and that there is no duty or statutory
requirement for a police officer to contact the victim before
filing the affidavit of probable cause. The State's Attorney
explained that it is his decision whether to file an information.
A close examination of the first amended complaint reveals that
plaintiff makes conclusory allegations that the information
supplied by Officer Temple was "false," without specifying what was
false. Moreover, we agree with defendants that plaintiff's
allegations of malice and lack of probable cause found in the
complaint are also mere conclusions and, therefore, are insuffi-
cient to state a cause of action for malicious prosecution. We
find that plaintiff did not allege sufficient facts to sustain a
cause of action for malicious prosecution as pleaded in counts I
and II.
COUNTS III AND IV
To sustain an action for false arrest, the plaintiff has the
burden of proving a restraint or an arrest caused or procured by
the defendants without their having reasonable grounds to believe
that an offense was committed by the plaintiff. Karow v. Student
Inns, Inc., 43 Ill. App. 3d 878, 881, 357 N.E.2d 682, 686 (1976).
William submits that he alleged facts sufficient to constitute
false arrest. He claims that the trial court incorrectly dismissed
counts III and IV because it overlooked that the alleged facts in
counts III and IV included the statement that the warrant of arrest
was based upon Officer Temple's affidavit of probable cause which
contained false information. Defendants respond that there are no
facts alleged which, if proven, would show that Officer Temple
acted without probable cause or that he knew that there was no
probable cause but proceeded anyway. Defendants maintain that
there were insufficient factual allegations pleaded in counts III
and IV to establish a lack of probable cause and malice on the part
of Officer Temple in arresting William. We agree with defendants.
The trial court correctly found that a "cause of action for
false arrest cannot be based upon a valid Warrant of Arrest issued
by a Court," as the law is well settled that if an arrest is made
under a judicially issued arrest warrant, the arrest itself cannot
give rise to a claim of false imprisonment. Wiemann v. County of
Kane, 150 Ill. App. 3d 962, 968, 502 N.E.2d 373, 376 (1986);
Jacobson v. Rolley, 29 Ill. App. 3d 265, 267, 330 N.E.2d 256, 258
(1975). The fact that William alleged that the affidavit of
probable cause contained "false" information does not mean that
this trial court's determination was incorrect. William's
pleadings on this matter are conclusory and do not give us any
indication what, if anything, was false. It is not enough to plead
false arrest; it is necessary to plead sufficient factual allega-
tions of an unlawful arrest. See Wilson v. Hunk, 51 Ill. App. 3d
1030, 1032-33, 367 N.E.2d 478, 480-81 (1977). Moreover, the other
allegations made by William, namely, that Officer Temple failed to
obtain a uniform complaint signed by the alleged victim and that
Officer Temple filed an affidavit of probable cause without
consulting the alleged victim, do not support William's claim of
false imprisonment since, as previously discussed, it was not
necessary for Officer Temple to have taken either action. Accord-
ingly, we find the complaint insufficient to state a cause of
action for malicious prosecution.
COUNTS VI AND VII
In count VI, Pamela presented a cause of action against
Officer Temple for invasion of privacy, specifically, unreasonable
intrusion into the seclusion of another. In count VII, Pamela
presented the same cause of action against the city under a theory
of respondeat superior. Pamela asks us to expressly recognize this
tort and argues that the allegations found in counts VI and VII are
sufficient to plead the elements of this cause of action.
Defendants respond that neither the supreme court nor the Fifth
District Appellate Court has expressly recognized this cause of
action and, thus, counts VI and VII of plaintiffs' first amended
complaint were properly dismissed for failure to state a cause of
action. Assuming, arguendo, that we recognize a cause of action
based upon the unreasonable intrusion on the seclusion of another,
defendants argue that the facts alleged in counts VI and VII were
insufficient to state a cause of action.
Professor William Prosser delineated four distinct types of
invasion of privacy, and his approach has been explicitly adopted
by the Restatement (Second) of Torts. The four types are: (1)
intrusion upon the seclusion of another (Restatement (Second) of
Torts §652B, at 378 (1977)); (2) appropriation of another's name or
likeness (Restatement (Second) of Torts §652C, at 380 (1977)); (3)
publicity given to private life (Restatement (Second) of Torts
§652D, at 383 (1977)); and (4) publicity placing a person in a
false light (Restatement (Second) of Torts §652E, at 394 (1977)).
The Restatement (Second) of Torts describes the tort of intrusion
upon the seclusion of another in the following manner: "One who
intentionally intrudes physically or otherwise, upon the solitude
or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if
the intrusion would be highly offensive to a reasonable person."
Restatement (Second) of Torts §652B, at 378 (1977).
In Lovgren v. Citizens First National Bank, 126 Ill. 2d 411,
534 N.E.2d 987 (1989), our supreme court considered whether the
facts in that case constituted an unreasonable intrusion upon the
seclusion of another and found that the facts of that case did not
satisfy the elements of that tort as defined by Prosser. In
Lovgren, the debtor-plaintiff brought an action against the bank
for invasion of privacy. One theory was intrusion upon seclusion
based upon the bank's attempt to collect a debt by running an
advertisement that the debtor was selling his farm at a public
auction. No such sale had been scheduled, however, and the plain-
tiff had not consented to such a sale. The ad did not mention the
bank's mortgage on the property or the fact that the sale was being
held to satisfy the plaintiff's financial obligations. The ad was
placed without the bank instituting mortgage foreclosure proceed-
ings. Lovgren, 126 Ill. 2d at 415, 534 N.E.2d at 988. The Lovgren
court determined that the alleged offensive conduct and subsequent
harm pleaded by the plaintiff resulted from the bank's act of
publication, not from an act of prying. The Lovgren court
specifically cited to the Restatement (Second) of Torts §652B,
previously set forth in this opinion, and added the following
discussion about the comments to this Restatement section:
"The comments to this section of the Restatement
indicate that the nature of this tort depends upon some
type of highly offensive prying into the physical
boundaries or affairs of another person. The basis of
the tort is not publication or publicity. Rather, the
core of this tort is the offensive prying into the
private domain of another. (Restatement (Second) of
Torts §652B, comments a, b, at 378-79 (1977).) Prosser
and Keeton's treatise on torts echoes the Restatement
approach. (See W. Prosser & W. Keeton, Torts §117, at
854-56 (5th ed. 1984).) The examples provided as forming
the basis for the tort of intrusion into the seclusion of
another include the following acts: invading someone's
home; an illegal search of someone's shopping bag in a
store; eavesdropping by wiretapping; peering into the
windows of a private home; and persistent and unwanted
telephone calls. (W. Prosser & W. Keeton, Torts §117, at
854-55 (5th ed. 1984).) Although we recognize that the
contours of the tort of unreasonable intrusion into the
seclusion of another are intuitive to a degree, we
conclude that the defendants' alleged actions in the
present case do not constitute unreasonable intrusion
into the seclusion of another." Lovgren, 126 Ill. 2d at
416-17, 534 N.E.2d at 989.
Our supreme court went on to note that its discussion of the tort
of unreasonable intrusion on seclusion should not be interpreted to
imply its recognition of such a cause of action, and the court
noted that a conflict existed between the districts of the appel-
late court. Lovgren, 126 Ill. 2d at 417-18, 534 N.E.2d at 989.
Our supreme court declined to resolve the conflict in Lovgren, and
a split remains between the districts.
In Bank of Indiana v. Teremunde, 50 Ill. App. 3d 480, 365
N.E.2d 295 (1977), this district stated that although it found no
reported cases from Illinois recognizing a cause of action for
unreasonable intrusion upon seclusion, it assumed, based on
Leopold v. Levin, 45 Ill. 2d 434, 259 N.E.2d 250 (1970), that the
supreme court would recognize that such an action was appropriate.
In Leopold, our supreme court stated:
"Privacy is one of the sensitive and necessary human
values and undeniably there are circumstances under which
it should enjoy the protection of the law." Leopold, 45
Ill. 2d at 440-41, 259 N.E.2d at 254.
The Leopold court referred to the right of privacy as one recog-
nized many years ago and "described in a limited fashion by Judge
Cooley with utter simplicity as the right `to be let alone.'"
Leopold, 45 Ill. 2d at 440, 259 N.E.2d at 254. The Bank of Indiana
court, relying on Leopold, however, held only that a cause of
action in that case was not proved, and the court did not go so far
as to expressly hold that a cause of action for intrusion upon
seclusion exists.
The Third District Appellate Court recognized the intrusion on
seclusion tort in Melvin v. Burling, 141 Ill. App. 3d 786, 490
N.E.2d 1011 (1986). The Melvin court set forth four elements which
must be alleged in order to state the cause of action: (1) an
unauthorized intrusion or prying into the plaintiff's seclusion,
(2) an intrusion which is offensive or objectionable to a reason-
able man, (3) the matter upon which the intrusion occurs is
private, and (4) the intrusion causes anguish and suffering.
Melvin, 141 Ill. App. 3d at 789, 490 N.E.2d at 1013-14. In Kelly
v. Franco, 72 Ill. App. 3d 642, 391 N.E.2d 54 (1979), the First
District Appellate Court declined to entertain a cause of action
for intrusion into the seclusion of another. However, since the
Melvin decision, the First District has applied the four elements
set forth in Melvin but has never specifically held that the cause
of action exists in this State. In Mucklow v. John Marshall Law
School, 176 Ill. App. 3d 886, 531 N.E.2d 941 (1988), and Miller v.
Motorola, Inc., 202 Ill. App. 3d 976, 560 N.E.2d 900 (1990), as
well as Dwyer v. American Express Co., 273 Ill. App. 3d 742, 652
N.E.2d 1351 (1995), the First District held that the plaintiff's
allegations did not satisfy the first element of Melvin, but the
court did not go so far as to say that the cause of action for
intrusion on seclusion actually exists in Illinois. The Fourth
District Appellate Court, in Bureau of Credit Control v. Scott, 36
Ill. App. 3d 1006, 345 N.E.2d 37 (1976), refused to recognize
intrusion on seclusion, finding that because the plaintiff already
stated a cause of action for intentional infliction of severe
emotional distress, there was no need to grant her a remedy of
invasion of privacy based upon intrusion upon seclusion.
A review of this area of law leads us to adopt the four-
pronged test set forth in Melvin for determining whether a cause of
action has been properly alleged for intrusion upon seclusion.
Nothing written by our supreme court on this area of the law leads
us to believe that such a cause of action should not be recognized
in Illinois. Therefore, after careful consideration, we expressly
recognize a cause of action for unreasonable intrusion into the
seclusion of another. After review of plaintiffs' first amended
complaint, however, we conclude that Officer Temple's actions in
the instant case do not constitute unreasonable intrusion into the
seclusion of another. Our decision is based upon the fact that the
alleged offensive conduct occurred during the course of a criminal
investigation concerning William. A criminal investigation is a
public matter, not a private matter, and, thus, does not meet the
third required element, namely, that the matter upon which the
intrusion occurs is private.
Pamela's complaint alleges that due to Officer Temple's
investigation, she suffered injury to her right to privacy.
However, from what we can garner from the record before us, Officer
Temple was investigating a reported crime, namely, criminal damage
to property, which allegedly occurred at both plaintiffs' place of
employment, Bud's Warehouse. Pamela alleges that on February 2,
1994, Officer Temple called her and demanded that she appear at the
police station in conjunction with this investigation. Likewise,
on February 8, 1994, Officer Temple appeared at Bud's Warehouse in
the course of the public investigation. Officer Temple's investi-
gative techniques are indeed questionable if what plaintiffs have
alleged in their complaint is true. They do not, however,
constitute an unreasonable intrusion into the seclusion of another,
due to the public nature of the investigation of a crime allegedly
committed at both plaintiffs' place of employment.
COUNT V
Finally, with regard to count V, negligent retention of an
employee, we agree with the trial court that this count cannot
stand since it is based on the pending cause of action against
Officer Temple.
For the foregoing reasons, the judgment of the circuit court
of Jackson County is affirmed, except that we expressly recognize
a cause of action for unreasonable intrusion upon the seclusion of
another. However, as previously discussed, the facts of the
instant case do not give rise to such a cause of action.
Affirmed.
RARICK and KUEHN, JJ., concur.
___________________________________________________________________________
___________________________________________________________________________
Opinion Filed: November 26, 1996
___________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Philip J. Rarick, J.
Honorable Clyde L. Kuehn, J.
Concur
___________________________________________________________________________
Attorneys Atkins Law Office, Mark A. Atkins, 104 West Main Street,
for Benton, IL 62812
Appellant
___________________________________________________________________________
Attorneys Gary B. Nelson, Feirich/Mager/Green/Ryan, 2001 West Main
for Street, P. O. Box 1570, Carbondale, IL 62903
Appellee
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