In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2346

FRED HONAKER,

Plaintiff-Appellant,

v.

GARY SMITH, Mayor, individually
and as Mayor of the Village of
Lovington and as Fire Chief
of the Lovington Fire Department,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 2099--Michael P. McCuskey, Judge.

ARGUED DECEMBER 8, 2000--DECIDED June 26, 2001



  Before FLAUM, Chief Judge, and RIPPLE and
EVANS, Circuit Judges.

  RIPPLE, Circuit Judge. Fred Honaker filed
a complaint against Gary Smith, the Mayor
and Fire Chief of the Village of
Lovington, Illinois ("the Village"),
regarding the events surrounding a fire
that consumed Mr. Honaker’s house in
Lovington. Two counts of the complaint,
as amended, are before us on this appeal.
In Count I, the complaint maintained that
Mr. Smith, in his official capacity and
under color of state law, had violated
Mr. Honaker’s rights under 42 U.S.C. sec.
1983 ("Section 1983") by causing the fire
that burned down Mr. Honaker’s house.
Count I also alleged that Mr. Smith, in
his role as the Village’s Fire
Chief,violated Mr. Honaker’s rights under
Section 1983 by failing to use his best
efforts to extinguish that fire. Count IV
of the complaint consisted of an Illinois
common law claim against Mr. Smith,
alleging the intentional infliction of
emotional distress. At the close of all
of the evidence, the district court
granted Mr. Smith judgment as a matter of
law on the intentional infliction of
emotional distress claim. A jury returned
a verdict for Mr. Honaker in the amount
of $45,000 on the Section 1983 claims;
however, the district court then entered
judgment as a matter of law
notwithstanding the verdict on that count
in favor of Mr. Smith. For the reasons
set forth in the following opinion, we
affirm the judgment of the district court
regarding Mr. Honaker’s claims under
Section 1983. We reverse and remand with
respect to the intentional infliction of
emotional distress claim.

I

BACKGROUND

A.   Facts

  Mr. Honaker owned a house in Lovington
that was not his primary residence, but
where he would occasionally stay
overnight. The utilities were kept on in
the house, though the gas and electricity
were not activated. Mr. Honaker had begun
extensive remodeling on the house
including the removal of an interior
wall. Because of this ongoing
construction, the house was in very poor
condition.

  Mr. Honaker earned a living by
rebuilding pallets/1 on the property
where this house was located. As a
consequence of that business, wood and
other debris were often strewn around the
property. Despite the fact that building
pallets often creates a great deal of
noise, Mr. Honaker kept unusual hours in
his work and would occasionally toil into
the early morning. Residents often
complained about the state of the
property to Lovington’s City Council, and
Mr. Honaker received citations from local
police officers due to the property’s
poor condition. One resident in
particular, Mr. Honaker’s neighbor Ed
Crafton, had a long-running feud with Mr.
Honaker. Crafton made a number of formal
and informal complaints regarding the
noise emanating from Mr. Honaker’s
property and the physical state of that
property to members of the Village
government. Members of the City Council
often discussed these complaints and
expressed their displeasure with the
property’s condition. As mayor, Mr. Smith
was a member of the City Council.

  Mr. Honaker had an acrimonious history
with the Village. He had filed a civil
rights suit against it in 1995, which was
settled the next year. Village personnel
also often made derogatory comments to
him about the state of his property.
Moreover, Mr. Honaker testified that, at
some point near Thanksgiving in 1996, he
had a rancorous encounter with Mr. Smith
outside of a local bar. Mr. Honaker
claimed that, on that occasion, Mr. Smith
approached him and "told [him] to get
[his] stuff and get out of town. . . .
[or Mr. Smith would] burn [him] out."
R.70 at 76. Mr. Honaker asserted that he
told his lawyer about this threat immedi
ately, but did not report it to any law
enforcement agency. Mr. Smith denies that
the conversation ever took place.

  On the night of March 1, 1997, Mr.
Honaker’s house caught fire. The
Village’s volunteer Fire Department
responded to the call regarding the fire,
which came in at 1:51 a.m., within
minutes. In total, four fire trucks and
twenty volunteer firefighters from the
Fire Department arrived at the scene.
Additionally, one fire truck and several
firefighters were called in from the
neighboring Sullivan, Illinois, Fire
Department to help extinguish the blaze.
As the Village’s Fire Chief, Mr. Smith
arrived at the scene soon after the call
and led the fighting of the fire. He
immediately determined that the house’s
structure was already badly damaged and
noticed that a number of floor joists and
beams supporting the second floor were
cracked and bowed. As a result, Mr. Smith
decided that the firefighters should not
enter the house to battle the fire
because the house’s structure was too
unstable to risk such entry./2 After
three hours the fire was extinguished;
however, it rekindled twice during that
day, requiring the firefighters to return
each time to quench the flames.

  Don Tankersly, an investigator from the
Illinois State Fire Marshall’s Office,
arrived at the scene of the fire at 3:30
a.m. He saw the firefighters actively
engaged in attempting to put out the
fire, and he believed that they were
making every effort to extinguish the
blaze. He also noticed that ceiling
joists from the first floor of the house
appeared to be cracking and that the
second floor of the house looked to be
sagging downward. Tankersly later
completed his investigation of the fire
and determined that it was set intention
ally, but found no evidence to
demonstrate that Mr. Smith or anyone else
was specifically responsible for its
origin.

  Mr. Honaker arrived at his property on
the morning of the fire and was visibly
upset and distraught; at one point he
even began to cry. He was also extremely
angry and began yelling and screaming.
However, Mr. Honaker did not seek medical
treatment at any point for emotional
distress that he may have suffered due to
the fire.

  The Honaker fire was not the first time
that dilapidated buildings owned by a
Lovington resident had burned down under
suspicious circumstances. A few
monthsbefore the fire to Mr. Honaker’s
house, buildings in poor condition that
belonged to Lovington resident Tom Brewer
also had caught fire. As in Mr. Honaker’s
case, the poor condition of Brewer’s
property had been discussed in the City
Council before the fire, and the Village
had asked Brewer to tear down those
buildings. Before Brewer took any action,
the buildings burned down, and the cause
of that fire never was determined.

  After the Honaker fire, a great deal of
speculation in the Village focused on its
possible cause. Mr. Honaker initially
suspected that either Crafton or Mr.
Smith was involved in setting the blaze.
Additionally, rumors soon spread that
Doug Thomas, a member of the Village
government and of its Fire Department,
may have had a role in starting the
conflagration, allegations that Thomas
denied. Jokes regarding the fact that Mr.
Honaker’s house had burned down, not long
after many members of the community had
expressed displeasure about the state of
his property, were also prevalent around
the Village and were made by some
residents at City Council meetings. Mr.
Smith denied taking part in those jokes;
he also consistently maintained that he
had nothing to do with starting the fire
and that he made every effort as fire
chief to put the fire out as quickly as
possible.

B.   District Court Proceedings

  On December 16, 1998, Mr. Honaker filed
a First Amended Complaint ("the
complaint") in this matter, which alleged
four causes of action against Mr. Smith.
Count I maintained that Mr. Smith, in his
official capacity as Mayor of Lovington
and Fire Chief of the Lovington Fire
Department, was liable under Section 1983
for setting the fire at Mr. Honaker’s
house and for intentionally failing to
properly extinguish the fire. Count IV
alleged that Mr. Smith was liable under
Illinois law for the intentional
infliction of emotional distress./3 A
jury trial began on February 14, 2000. At
the close of all of the evidence, Mr.
Smith filed a motion for judgment as a
matter of law on all of the claims in the
complaint. With regard to Count I’s
Section 1983 claims, the court took the
motion under advisement, but allowed the
action to be submitted to the jury.
However, the court granted the motion as
to Count IV’s emotional distress claim.
It did so because it found that Mr.
Honaker presented "no evidence of
emotional distress . . . other than the
mere claim that [he] was upset" and "no
evidence of any medical treatment . . .
[or] any follow-up whatsoever with
counseling in any way." R.70 at 418.

  After its deliberations, the jury
returned a verdict on Count I in favor of
Mr. Honaker in the amount of $45,000. Mr.
Smith then filed a renewed motion for
judgment as a matter of law, and on May
4, 2000, the district court granted that
motion and entered judgment as a matter
of law notwithstanding the verdict on
Count I. The court determined that, as to
the claim that Mr. Smith was involved in
setting fire to Mr. Honaker’s house,
there was no evidence to support that
assertion because Mr. Honaker had put
forward only unsupported speculation and
conjecture on that point. It also ruled
that, even assuming the evidence was
sufficient to support a finding that Mr.
Smith had set the fire, there was no
evidence that he did so "under color of
state law," a requirement of all Section
1983 claims. The court explained that in
no way could Mr. Smith’s action in
setting such a fire relate to the
performance of his official duties as
mayor because any such action "would have
involved sneaking around in the late
night or early morning hours with some
kind of incendiary material." R.61 at 8.
Next, the court determined that no
evidence supported Mr. Honaker’s claim
that Mr. Smith failed to extinguish
properly the fire in his capacity as
Lovington Fire Chief. This was because
"[e]very witness who testified on this
subject at trial . . . stated that the
firefighters did everything they could to
put out the fire." Id. at 9.
Additionally, the court noted that Mr.
Honaker presented no evidence to support
his assertions that alternative methods
should have been used to fight the fire
or that the Fire Department should have
taken far less time than the three hours
it needed to initially extinguish the
blaze. As a result, the district court
determined that no rational jury could
have found in favor of Mr. Honaker on
Count I and granted Mr. Smith’s motion
for judgment as a matter of law on that
cause of action.

II

DISCUSSION

  Mr. Honaker now appeals the district
court’s rulings with regard to Count I
and Count IV. He alleges that, as to
Count I, the district court erred in
granting judgment as a matter of law
notwithstanding the jury’s verdict. He
claims that there was sufficient evidence
for the jury to have found that Mr. Smith
caused Mr. Honaker’s house to be set on
fire and that he did so under color of
state law. He also maintains that he put
forward adequate evidence for a jury to
find that Mr. Smith failed to use his
best efforts to put out the fire in his
capacity as Lovington Fire Chief.
Additionally, Mr. Honaker asserts that
the district court erred in granting
judgment as a matter of law on Count IV’s
intentional infliction of emotional
distress claim because sufficient
evidence existed to prove the elements of
that tort under Illinois law. We shall
address each of these arguments in turn.


A.   Mr. Honaker’s Section 1983 Claims

  With respect to Mr. Honaker’s claims in
Count I, the district court, pursuant to
Federal Rule of Civil Procedure 50 ("Rule
50"), granted Mr. Smith’s motion for
judgment as a matter of law after the
jury had returned a verdict for Mr.
Honaker./4 Pursuant to Rule 50, a
district court may grant judgment as a
matter of law when "there is no legally
sufficient evidentiary basis for a
reasonable jury to find for that party on
that issue." Fed. R. Civ. P. 50(a)(1). We
review a district court’s grant of
judgment as a matter of law de novo. See
Massey v. Blue Cross-Blue Shield of Ill.,
226 F.3d 922, 924 (7th Cir. 2000);
Futrell v. J.I. Case, 38 F.3d 342, 346
(7th Cir. 1994). After a jury has
rendered its verdict, we must engage in
this review not to determine "whether the
jury believed the right people, but only
whether it was presented with a legally
sufficient amount of evidence from which
it could reasonably derive its verdict."
Massey, 226 F.3d at 924. In that regard,
we must judge whether the evidence in
support of the verdict is substantial;
the party opposing the motion must have
put forward more than a "mere scintilla"
of evidence to support that jury verdict.
Willis v. Marion County Auditor’s Office,
118 F.3d 542, 545 (7th Cir. 1997); see
also Futrell, 38 F.3d at 346. In
reviewing the totality of the evidence in
the record, we draw all inferences in the
light most favorable to the party against
whom the motion is directed. See Willis,
118 F.3d at 545; Cygnar v. City of
Chicago, 865 F.2d 827, 834 (7th Cir.
1989). If, after reviewing all of the
evidence in the case, the nonmoving party
did not introduce enough evidence to
support his claim, then judgment as a
matter of law is appropriate. See Massey,
226 F.3d at 924.

1.   Setting the Fire

  Mr. Honaker first contends that there
was sufficient evidence for a jury to
conclude that Mr. Smith played a role in
setting fire to his house. As we have
noted, Mr. Honaker’s claim in this regard
was filed under Section 1983. As a
result, he must demonstrate not only that
Mr. Smith was in fact involved in setting
the fire, but also that Mr. Smith did so
"under color of state law" and deprived
Mr. Honaker of a federally guaranteed
right. See 42 U.S.C. sec. 1983; see also
Pickrel v. City of Springfield, 45 F.3d
1115, 1118 (7th Cir. 1995); Hughes v.
Meyer, 880 F.2d 967, 971 (7th Cir. 1989)
(citing West v. Atkins, 487 U.S. 42
(1988)). We have emphasized that "[n]ot
every action by a state official or
employee is to be deemed as occurring
’under color’ of state law." Hughes, 880
F.2d at 971. Action is taken under color
of state law when it involves a misuse of
power, "’possessed by virtue of state law
and made possible only because the
wrongdoer is clothed with the authority
of state law.’" Walker v. Taylorville
Corr. Ctr., 129 F.3d 410, 413 (7th Cir.
1997) (quoting West, 487 U.S. at 49); see
also Hughes, 880 F.2d at 971. As a
result, acts by a state officer are not
made under color of state law unless they
are related in some way to the
performance of the duties of the state
office. See Gibson v. City of Chicago,
910 F.2d 1510, 1516 (7th Cir. 1990);
Briscoe v. LaHue, 663 F.2d 713, 721 n.4
(7th Cir. 1981).

  In Hughes v. Meyer, 880 F.2d 967, 972
(7th Cir. 1989), for example, we
determined that a warden of the Wisconsin
Department of Natural Resources did not
act under color of state law when he
provided local sheriffs with information
regarding an alleged criminal act
undertaken by the defendants. The
warden’s authority as an official who en
forced the state’s game laws did not
extend to the general enforcement of
state law. See id. Thus, when he provided
information regarding the alleged
criminal act, he was not doing so by
virtue of the authority granted to him by
his state employment. See id. In
contrast, in Pickrel v. City of
Springfield, 45 F.3d 1115, 1116-18 (7th
Cir. 1995), we held, in the context of
reviewing a motion for dismissal under
Federal Rule of Civil Procedure 12(b)(6),
that an off-duty police officer could
have been acting under color of state law
when he arrested the plaintiff after an
altercation between the two at a
restaurant. We made this
determinationbecause the officer,
although off-duty, was attired in his
police uniform which displayed his badge,
was wearing his gun and had his marked
squad car parked just outside the
restaurant. See id. at 1118. We
determined that these facts demonstrated
that the officer was acting while
displaying signs of state authority and
advertising the presence of a state actor
to those around him. See id. But see
Latuszkin v. City of Chicago, 250 F.3d
502, 505-06 (7th Cir. 2001) (off-duty
police officer had not acted under color
of state law where disputed action
occurred while officer was driving his
own car outside of his police
jurisdiction and where there was "no
allegation that [the officer] was engaged
in police activity, that he displayed any
police power, or that he possessed any
indicia of his office at the time of the
accident").
  We agree with the district court’s
conclusion that, on this record, any
action taken by Mr. Smith to cause Mr.
Honaker’s house to burn to the ground was
not effectuated under color of state law.
Mr. Honaker does not explain how such an
act was related to any official duty or
activity of Mr. Smith as Mayor of
Lovington or as its Fire Chief./5
Moreover, Mr. Honaker makes no
substantive contention that Mr. Smith
used the cloak of his authority as mayor
or fire chief or any indicia of his
office to set such a fire. In one of his
briefs, Mr. Honaker appears to suggest
that Mr. Smith may have paid Thomas to
set the fire. See Appellant’s Reply Br.
at 4. This allegation is not well-formed
and, more importantly, Mr. Honaker again
does not explain how such an act would be
related in any way to the performance of
Mr. Smith’s duties as a state
officer./6 Under these circum-stances,
we agree with the district court that
there was no basis upon which a
reasonable jury could conclude that Mr.
Smith violated Section 1983 by causing
Mr. Honaker’s house to be set afire.

2.   Extinguishing the Fire

  Mr. Honaker also asserts that the
district court erred when it ruled that
no reasonable jury could have found that
Mr. Smith, in his role as fire chief,
failed to extinguish properly the fire at
Mr. Honaker’s house. After extensively
reviewing the evidence in the record, we
must agree with the district court’s
conclusion. The record does not contain a
legally sufficient amount of evidence
from which a jury reasonably could have
inferred that Mr. Smith and the
firefighters on the scene used anything
less than their best efforts to
extinguish the fire.

  As an initial matter, the evidence
overwhelmingly demonstrated that, after
receiving the call informing them of the
fire on March 1, 1997, the Lovington Fire
Department arrived at Mr. Honaker’s house
within minutes. Fire Department records
show that the call was received at 1:51
a.m. and that the first Lovington fire
truck arrived at 1:56 a.m., two more
trucks arrived at 1:57 a.m., and a fourth
arrived at 2:09 a.m. See Def. Ex.7.
Additionally, a number of firefighters
corroborated the swift arrival time of
the Fire Department./7 Moreover, despite
the fact that the fire occurred in the
early morning hours, the Fire Department
responded with four fire trucks and
twenty volunteer firefighters. Pursuant
to a "mutual aid" agreement with the
neighboring Sullivan Fire Department,
which employs paid personnel, the
Lovington firefighters also called for
assistance from Sullivan. Lovington
firefighter Steven Fleming testified that
Sullivan would not have responded
automatically to a fire in Lovington;
instead, the Lovington Fire Department
must affirmatively have requested their
help. As a result of this call for
assistance, Sullivan dispatched, in
addition to several firefighters, an
aerial fire truck which enables
firefighters to direct ladders and water
to the upper floors of homes. Lovington’s
Fire Department did not own this type of
truck.

  Additionally, all of the testimony at
trial suggested that, upon arriving at
Mr. Honaker’s house, the
firefightersconsistently and vigorously
fought the fire to the best of their
ability. Particularly on point was the
testimony of Tankersly, the investigator
from the Illinois State Fire Marshall’s
Office, who was called to the scene to
determine the cause of the fire.
Tankersly, who had 15 years of experience
and who had investigated over 1,000 fires
in his career, testified that when he
arrived at 3:30 a.m., "[f]irefighters
were actively engaged in putting out hot
spot fires within the structure." R.70 at
275. He also said that the firefighters
had made every effort to put out the fire
and that they could not have done
anything more than what they did. He also
corroborated Mr. Smith’s view that
structural problems had rendered the
house unsafe for entry by firefighters. A
number of the firefighters themselves
corroborated that the fire had been
fought vigorously. They explained that,
when they arrived at the scene, they
immediately put water on the fire and
began actively combating the blaze. See,
e.g., id. at 217-20 (testimony of Doug
Thomas); id. at 294-98 (testimony of
Harold White); id. at 404-08 (testimony
of Mr. Smith). Even James Webb, a
neighbor and friend of Mr. Honaker’s,
testified that, when he first noticed the
fire at 2:10 a.m., he saw at least twenty
members of the Lovington Fire Department
fighting the flames. Mr. Webb’s testimony
bore witness to the significant scope of
firefighters’ response when he explained
that "I walked outside, and I saw the
fire trucks. They were halfway down the
block on Railroad Street [the street on
which Mr. Honaker’s house was located]
and almost all the way down the block on
Middle Street." Id. at 304.

  Mr. Honaker points to three facts to
support his assertion that Mr. Smith and
the firefighters did not use their best
efforts in combating the fire. First, he
notes that it initially took the
firefighters three hours to conquer the
flames, a length of time that he suggests
was far too great. Next, he submits that
the fact that the firefighters did not
enter his house to combat the fire
suggests that they did not perform their
duties properly. Lastly, he cites a piece
of trial testimony in which Mr. Smith
made the assertion that he did not let
the firefighters enter the house because
"that house wasn’t worth getting hurt
for." Id. at 167. Mr. Honaker claims that
this statement demonstrates that Mr.
Smith’s animus towards him was the reason
why the firefighters did not enter the
structure.

  As to the amount of time that it took to
combat the fire, we have already noted
that substantial testimony supported the
conclusion that the firefighters made
every effort to control the blaze and
that Tankersly, an experienced fire
investigator, testified that there was
nothing more that could have been done.
On the other hand, as the district court
noted, Mr. Honaker presented "no evidence
that three hours was too long a time to
put out this type of fire." R.61 at 9
(emphasis in original). Mr. Smith had
explained that the fire raged for that
period of time because the firefighters
had difficulty in identifying the proper
heat source on which to train their hoses
and because the great amount of debris in
and around the house made it difficult to
quickly develop an entryway through which
the water could attack the fire. Mr.
Honaker did nothing to contest this
explanation or to suggest that the
firefighters lingered unnecessarily at
the fire scene. A jury would have no
evidentiary basis from which to infer
reasonably that the Fire Department took
an unreasonable amount of time to
extinguish the fire.

  Additionally, as to the claim that the
firefighters should have entered the
house, Mr. Smith explained that he did
not allow them to do so due to the
precarious nature of the house’s
structure. Every witness who testified on
the subject confirmed that, during and
after the fire, the floor joists
supporting the second floor of the house
were cracked and that the second floor
itself was sagging--presenting the
serious threat that, if the firefighters
had entered the burning building, the
house might have collapsed around them.
For example, Tankersly noted that, after
the fire was extinguished, "the floor
joists or the ceiling joists from the
first floor were actually starting to
crack or sag inward" and agreed that it
appeared that the second floor itself was
actually sagging. R.70 at 276./8 Even
Mr. Honaker agreed that, after the fire,
one floor joist was broken and that the
second floor was sagging downward.
Additionally, overwhelming evidence
established that the dwelling was in
great disrepair because Mr. Honaker had
been in the process of "gutting the
inside of the house." Id. at 307. Since
he had purchased the house, Mr. Honaker
had removed a non-load-bearing wall, had
torn the kitchen ceiling out and even had
experienced part of the chimney falling
down on top of him. Lastly, witnesses
with experience in investigating and
fighting fires testified that, under the
circumstances, it was not improper for
the firefighters to combat the flames
from outside the building. Tankersly
explained that during his investigation,
he saw that the collapse of the second
floor "shows major cracks beginning to
show in the floor joists" and that these
cracks "made the structure pretty much
unsafe to even be in." Id. at 278. Mr.
Smith explained that the classes in which
he and the other firefighters were
trained taught that a fire should be
fought "from the outside in" and that if
the structure is in danger of collapse,
they should not enter the building. Id.
at 407.

  In contrast, no witness, with or without
firefighting experience, testified that
the Lovington Fire Department should have
entered the house under such
circumstances. Mr. Honaker argues that,
because the frame of the house continued
to stand after the fire and because the
firefighters later entered the building
to hose down fire that had rekindled, the
house was not in such precarious
condition that the Fire Department could
not have entered it when they first
arrived. We do not believe that these
facts, without more, are sufficient for a
reasonable jury to conclude that the
firefighters should have entered a
burning building that, by all accounts,
appeared to be in serious jeopardy of
collapsing./9

  Ultimately, Lovington’s volunteer Fire
Department responded to a substantial
fire in the early morning hours with four
trucks, twenty firefighters and
significant assistance from a neighboring
fire department. Moreover, not only was
substantial evidence presented that the
firefighters actively fought the flames
with their best efforts, but Mr. Honaker
offered no testimony from any witness to
demonstrate that the firefighters should
have or could have done anything
differently. As a result, we must agree
with the district court’s ruling that
there was insufficient evidence for a
jury to find that Mr. Smith, in his
capacity as Lovington’s Fire Chief,
failed to fight the fire with his best
efforts. Therefore, the district court
properly granted judgment as a matter of
law on Count I.

B. Intentional Infliction of Emotional
Distress

  Mr. Honaker’s final contention is that
the district court erred when it entered
judgment as a matter of law at the close
of all of the evidence on Count IV, which
alleged an Illinois state law claim of
intentional infliction of emotional
distress. In ruling, the court explained:

[T]here is no evidence of emotional
distress that has been presented in this
case other than the mere claim that Mr.
Honaker was upset. There is no evidence
of any medical treatment, any, any
follow-up whatsoever with counseling in
any way. So, as to the argument relative
to emotional distress, the Court finds no
evidence presented and on that issue will
be entering judgment in favor of the
defendant.

R.70 at 418. Later, the court reiterated
that, although Mr. Honaker produced "some
evidence" that he was upset and
distraught on the day of the fire, it did
not believe that "mere emotional distress
[on] the day . . . of the fire with
nothing more is sufficient [to sustain a
cause of action on this claim]." Id. at
422. Additionally, in its Order after the
jury’s verdict, the court explained that
although Mr. Honaker "testified that he
was very upset about the fire . . . he
did not seek any treatment for emotional
distress." R.61 at 3. For these reasons,
the court ruled that "the evidence was
insufficient to show that Plaintiff
suffered severe emotional distress," and
it did not allow the claim to be heard by
the jury. Id. at 4. Mr. Honaker asserts
that the district court’s conclusion in
this regard was in error.

  We review de novo the district court’s
decision to grant judgment as a matter of
law at the close of all the evidence. See
Canedy v. Boardman, 91 F.3d 30, 33 (7th
Cir. 1996). The district court may grant
judgment as a matter of law in such a
circumstance when "a party has been fully
heard on an issue and there is no legally
sufficient evidentiary basis for a
reasonable jury to find for that party on
that issue." Fed. R. Civ. P. 50(a)(1);
see also Lane v. Hardee’s Food Sys.,
Inc., 184 F.3d 705, 706 (7th Cir. 1999).
The district court may not resolve any
conflicts in the testimony nor weigh the
evidence, except to the extent of
determining whether substantial evidence
could support a jury verdict--a
merescintilla of evidence will not
suffice. See Von Zuckerstein v. Argonne
Nat’l Lab., 984 F.2d 1467, 1471 (7th Cir.
1993). We shall reverse the district
court’s judgment "’only if enough
evidence exists that might sustain a
verdict for the nonmoving party.’" Lane,
184 F.3d at 707 (quoting Continental Bank
N.A. v. Modansky, 997 F.2d 309, 312 (7th
Cir. 1993)).

  The tort of intentional infliction of
emotional distress has been recognized in
Illinois since 1961, when the
IllinoisSupreme Court explained that
persons could be liable under the tort
only for acts truly "outrageous," that
is, an "’unwarranted intrusion . . .
calculated to cause severe emotional
distress to a person of ordinary sensibilities.’"
Knierim v. Izzo, 174 N.E.2d 157, 164
(Ill. 1961) (quoting Slocum v. Food Fair
Stores of Fla., 100 So.2d 396 (Fla.
1958)). More recently, in McGrath v.
Fahey, 533 N.E.2d 806, 809 (Ill. 1988),
the Illinois Supreme Court set forth
three requirements necessary to
demonstrate the intentional infliction of
emotional distress: (1) the conduct
involved must be truly extreme and
outrageous; (2) 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 and (3) the conduct must in fact
cause severe emotional distress. See id.
at 809 (emphasis in original). This tort
does not require a contemporaneous
physical impact or injury. See Corgan v.
Muehling, 574 N.E.2d 602, 609 (Ill.
1991). It is clear, however, that "the
tort does not extend to ’mere insults,
indignities, threats, annoyances, petty
oppressions, or other trivialities.’"
McGrath, 533 N.E.2d at 809 (quoting
Restatement (Second) of Torts sec. 46,
cmt. d (1965)). Instead, the conduct must
go beyond all bounds of decency and be
considered intolerable in a civilized
community. See Kolegas v. Heftel Broad.
Corp., 607 N.E.2d 201, 211 (Ill. 1992);
Campbell v. A.C. Equip. Servs. Corp.,
Inc., 610 N.E.2d 745, 749 (Ill. App. Ct.
1993). Thus, to serve as a basis for
recovery, the defendant’s conduct must be
such that the "’recitation of the facts
to an average member of the community
would arouse his resentment against the
actor, and lead him to exclaim[:] Outrageous!’"
Doe v. Calumet City, 641 N.E.2d 498, 507
(Ill. 1994) (quoting Restatement (Second)
of Torts sec. 46 cmt. d (1965)) (internal
quotation marks omitted). Whether conduct
is extreme and outrageous is judged on an
objective standard, based on the facts of
the particular case. See id.

1.   Extreme and Outrageous Conduct

  With regard to the first prong of this
tort, whether the conduct alleged is
extreme and outrageous, the Supreme Court
of Illinois in McGrath described a number
of non-exclusive factors that can inform
this analysis. First, "the degree of
power or authority which a defendant has
over a plaintiff can impact . . . whether
that defendant’s conduct is outrageous,"
and the "more control which a defendant
has over the plaintiff, the more likely
that defendant’s conduct will be deemed
outrageous, particularly when the alleged
conduct involves either a veiled or
explicit threat to exercise such
authority or power to plaintiff’s
detriment." McGrath, 533 N.E.2d at 809-
10. In examining this factor, courts have
noted that it is appropriate to consider
not only the power and influence wielded
by the harassing party, see Lopacich v.
Falk, 5 F.3d 210, 212 (7th Cir. 1993);
Milton v. Illinois Bell Tel. Co., 427
N.E.2d 829, 832 (Ill. App. Ct. 1981), but
also the likelihood that the threatened
action could be carried out, see
Lopacich, 5 F.3d at 212; Plocar v.
Dunkin’ Donuts of Am., Inc., 431 N.E.2d
1175, 1180 (Ill. App. Ct. 1981). In doing
so, courts have found extreme and
outrageous behavior to exist in the
employer/employee context where the
employer clearly abuses the power it
holds over an employee in a manner far
more severe than the typical
disagreements or job-related stress
caused by the average work
environment./10 Such an abuse of power
also has been found where defendants
exercised great economic leverage over a
plaintiff and attempted to defraud that
plaintiff out of millions of dollars, see
McGrath, 533 N.E.2d at 812; where disc
jockeys used the medium of radio to
belittle plaintiffs suffering from a
disfiguring disease, see Kolegas, 607
N.E.2d at 212; or where a police officer
abused his position of power by berating
a sexual assault victim and refusing to
save her children from attack for fear of
personal liability for property damage,
see Doe, 641 N.E.2d at 507-08.

  Another factor considered by the courts
is whether the defendant reasonably
believed that his objective was
legitimate; greater latitude is given to
a defendant pursuing a reasonable
objective even if that pursuit results in
some amount of distress for a plaintiff.
See McGrath, 533 N.E.2d at 810. For
example, courts have recognized that
employers will often take actions that
may cause their employees serious upset,
but such actions have not been classified
as "extreme and outrageous" when they did
not go well beyond the parameters of the
typical workplace dispute./11
Additionally, in cases involving the
actions of creditors who aggressively
request payment, see Public Fin. Corp. v.
Davis, 360 N.E.2d 765, 768 (Ill. 1976);
Sutherland v. Illinois Bell, 627 N.E.2d
145, 153 (Ill. App. Ct. 1993), or legal
authorities who assertively carry out
their enforcement duties, see Khan v.
American Airlines, 639 N.E.2d 210, 215
(Ill. App. Ct. 1994), abrogation on other
grounds recognized by Velez v. Avis Rent
A Car Sys., Inc., 721 N.E.2d 652 (Ill.
App. Ct. 1999); Anderson v. Village of
Forest Park, 606 N.E.2d 205, 214 (Ill.
App. Ct. 1992), courts often have not
found extreme and outrageous behavior to
exist, as such actions were undertaken
with legitimate objectives in mind.

  An additional consideration in
determining whether extreme and
outrageous behavior exists is whether the
plaintiff is particularly susceptible to
emotional distress because of some
physical or mental condition or
peculiarity; behavior that otherwise
might be considered merely rude, abrasive
or inconsiderate may be deemed outrageous
if the defendant knows that the plaintiff
is particularly susceptible to emotional
turmoil. See McGrath, 533 N.E.2d at 811-
12 (defendants knew plaintiff was
suffering from heart disease); Pavilon v.
Kaferly, 561 N.E.2d 1245, 1252 (Ill. App.
Ct. 1990) (defendant knew plaintiff was
undergoing psychotherapy); Wall v.
Pecaro, 561 N.E.2d 1084, 1088 (Ill. App.
Ct. 1990) (defendant knew plaintiff was
pregnant).

  Mr. Honaker claims that Mr. Smith’s
actions in allegedly setting fire to his
house and failing to properly extinguish
that blaze suffice to demonstrate extreme
and outrageous conduct under Illinois
law. As we have previously explained in
this opinion, there is insufficient
evidence to suggest that Mr. Smith or the
Lovington Fire Department were deficient
in any way in putting out the fire at Mr.
Honaker’s house. However, Mr. Honaker’s
claim that Mr. Smith played a role in
setting the fire deserves further
analysis. As an initial matter, setting
fire to a person’s house because one
believes the house’s physical appearance
is unsightly is similar in character to
acts that have been deemed extreme and
outrageous under Illinois law. Illinois
courts have found actions to be extreme
and outrageous in situ-ations such as
when a financial institution attempted to
defraud a plaintiff suffering from heart
disease out of millions of dollars, see
McGrath, 533 N.E.2d at 812; when radio
disc jockeys denigrated the physical
appearance of a plaintiff’s relatives who
were afflicted with a disfiguring
disease, see Kolegas, 607 N.E.2d at 212;
when an employer pressured an employee
for dates, offered her money in return
for sexual favors, and threatened to kill
and rape her, see Pavilon, 561 N.E.2d at
1251-52; when a police officer berated a
sexual assault victim and refused to save
her children for fear of personal
liability for property damage, see Doe,
641 N.E.2d at 507-08; and when a
defendant conspired to murder his
estranged wife, see Vance v. Chandler,
597 N.E.2d 233, 236-37 (Ill. App. Ct.
1992). We believe that, like the
circumstances in these cases,
intentionally causing a person’s house to
be set on fire in an effort to force him
to leave town also would be deemed to "go
beyond all possible bounds of decency . .
. and be regarded as intolerable in a
civilized community." Kolegas, 607 N.E.2d
at 211.

  Additionally, the factors listed above,
which provide Illinois courts with
guidance in determining whether extreme
and outrageous behavior exists, also
provide some assistance in evaluating Mr.
Honaker’s claim. Mr. Smith, as Mayor of
the Village, obviously had a certain
standing in the community. Moreover, if
Mr. Smith actually did cause the fire to
be set, that action would not be one in
which Mr. Smith had a plausible belief
that his conduct was legitimate./12 We
therefore conclude that having a house
burned under the circumstances described
in this record is the sort of extreme and
outrageous conduct that the Supreme Court
of Illinois would consider actionable.

  Mr. Honaker also must have demonstrated
a sufficient evidentiary basis for a jury
to find that Mr. Smith did in fact engage
in such conduct. No physical evidence was
found to link Mr. Smith to the fire’s
origin and no witnesses testified that
they knew Mr. Smith to be connected in
any way with the blaze. Both Tankersly
and an investigator from the Illinois
State Police, Rodney Miller, examined the
fire’s origin and found no evidence
linking Mr. Smith to the start of the
conflagration. However, Mr. Honaker
claims that a few months prior to the
fire, Mr. Smith approached him and "told
me to get my stuff and get out of town.
He’d burn me out." R.70 at 76./13

  Moreover, the fire was set under
suspicious circumstances. Indeed, the
fire inspector concluded that the
conflagration was set intentionally. Mr.
Honaker clearly had a longstanding
history of acrimonious relations with the
Village and with Mr. Smith personally.
Mr. Honaker had engaged in contentious
litigation with the Village in the past
and also had been issued citations by
local authorities a number of times due
to the poor condition of his property. He
testified that, at least once a week,
Village personnel would walk by his
property and make derogatory comments
about its physical appearance. A number
of Village residents also complained
frequently about the property at City
Council meetings, meetings at which Mr.
Smith and the other members of the City
Council discussed what they could do to
address those complaints. Jokes were made
by some residents and City Council
members at these meetings, while Mr.
Smith was in attendance, to the effect
that, if a fire were to occur at Mr.
Honaker’s house, it would not be a bad
thing for the Village./14 At one
meeting prior to the fire, when Crafton
raised a number of complaints about the
property’s condition, Mr. Smith told
Crafton that he would look at the
property and do whatever he could to
resolve the problem under the law.
Lastly, a number of witnesses testified
that, due to the problems with the
Honaker property, general feelings of
animosity existed between Mr. Smith and
Mr. Honaker.

  In addition, Mr. Honaker’s house was not
the first troublesome property for the
Village that had burned down. Prior to
Mr. Honaker’s fire, Lovington resident
Tom Brewer saw buildings that he had
owned catch fire under what even Mr.
Smith agreed were suspicious
circumstances. Just a few weeks prior to
that fire, the Village had requested that
Brewer tear those buildings down, as
there had been complaints about their
condition at City Council meetings. The
parallels between the fire at the Brewer
property and that at Mr. Honaker’s house
are difficult to ignore.

  Ultimately, no direct evidence was
presented linking Mr. Smith to the fire
at Mr. Honaker’s house. Mr. Smith was
certainly not the only Village resident
who was angered by the condition of the
Honaker property./15 The only piece of
evidence that concretely suggests that
Mr. Smith set the fire was the alleged
conversation between the two men, in
which Mr. Honaker claims that Mr. Smith
asserted that he would burn Mr. Honaker
out of town. However, there is also
little question that the house burned
under questionable circumstances and that
many members of the City Council,
including Mr. Smith, were upset about the
condition of the property and had
complained about it for quite a while.
Many witnesses testified that there was
also longstanding animosity between Mr.
Honaker and Mr. Smith. We believe that
these facts, viewed in the light most
favorable to Mr. Honaker, provide a
legally sufficient amount of evidence to
suggest that Mr. Smith might have
beenresponsible for setting the fire,
such that he could be said to have
engaged in "extreme and outrageous"
conduct under Illinois law.

2. Intent to Cause or the High
Probability of Distress

  The tort’s second element inquires as to
whether the actor either intended that
his conduct inflict severe emotional
distress or knew that there was at least
a high probability that his conduct would
cause such distress. Courts have
generally found this element to be
satisfied either when a defendant’s
actions, by their very nature, were
likely to cause severe distress or when
the defendant knew that a plaintiff was
particularly susceptible to such distress
and that, because of this susceptibility,
the defendant’s actions were likely to
cause it to occur./16 In this case, a
jury might well conclude that the burning
of Mr. Honaker’s house would bring with
it the high probability of causing severe
emotional distress to Mr. Honaker. Having
the mayor of one’s town suggest that you
leave or be burned out, followed by a
fire that all but completely destroys
your house, is likely to cause
significant emotional trauma./17

3.   Severity of the Distress

  The third element of the tort focuses on
the severity of the emotional distress;
it was regarding this element that the
district court specifically found that
Mr. Honaker had not put forward
sufficient facts to sustain his claim.

  Illinois courts have explained that:

The emotional distress must be severe.
Although fright, horror, grief, shame,
humiliation, worry, etc. may fall within
the ambit of the term "emotional
distress," these mental conditions alone
are not actionable. "The law intervenes
only where the distress inflicted is so
severe that no reasonable man could be
expected to endure it. The intensity and
the duration of the distress are factors
to be considered in determining its
severity."

Welsh v. Commonwealth Edison Co., 713
N.E.2d 679, 684 (Ill. App. Ct.) (emphasis
in original) (quoting Public Fin. Corp.,
360 N.E.2d at 768), appeal denied, 720
N.E.2d 1107 (Ill. 1999). Indeed, over
time, Illinois courts have delineated
with some precision the type of emotional
distress that is sufficiently severe to
meet the law’s requirements. More
specifically, when plaintiffs have
complained that a defendant’s actions
caused them simply to become annoyed,
frustrated, stressful, distressed,
embarrassed, humiliated or nervous, those
plaintiffs have been found not to have
stated a claim under Illinois law./18
In contrast, when the distress has
manifested itself either through physical
symptoms or has necessitated medical
treatment, Illinois courts have been more
inclined to characterize the emotional
distress as severe./19 Yet neither
physical injury nor the need for medical
treatment is a necessary prerequisite to
establishing severe emotional distress.
See Bristow v. Drake St. Inc., 41 F.3d
345, 349-50 (7th Cir. 1995); Corgan, 574
N.E.2d at 609; Clark v. Owens-Brockway
Glass Container, Inc., 697 N.E.2d 743,
748 (Ill. App. Ct. 1998). In some
instances, when no physical manifestation
of the emotional distress existed and
where no medical treatment was sought,
Illinois courts have still found that a
plaintiff could establish severe
emotional distress. See, e.g., Amato v.
Greenquist, 679 N.E.2d 446, 455 (Ill.
App. Ct. 1997) (plaintiff satisfactorily
alleged that minister’s actions caused
him distress, when minister abused
counseling relationship with plaintiff’s
wife by engaging in affair with her,
causing "depression, despair, insomnia,
anxiety, nervousness and emotional
trauma" in plaintiff); Vance, 597 N.E.2d
at 237 (plaintiff could survive motion to
dismiss when her estranged husband
allegedly conspired to have her murdered,
which caused her to become "extremely
fearful for her life, safety, health and
welfare" and to suffer "great emotional
distress").

  Additionally, some Illinois cases have
noted the principle, stated in the Second
Restatement of Torts, that "[s]evere
distress must be proved; but in many
cases the extreme and outrageous
character of the defendant’s conduct is
in itself important evidence that the
distress has existed." Wall, 561 N.E.2d
at 1088; see also Kolegas, 607 N.E.2d at
213. These cases have acknowledged that,
even when significant evidence was not
presented as to the severity of distress,
the very nature of the conduct involved
may be evidence of its impact on the
victim. See Kolegas, 607 N.E.2d at 213
(when radio station knew plaintiffs had
neurofibromatosis and nevertheless made
false and highly offensive comments
regarding the effects of the disease upon
their personal appearance, severe
distress presumed); Wall, 561 N.E.2d at
1088 (when plaintiff alleged that
physician harassed her to have surgery
removing part of her head’s internal
structures and tissues and to abort her
fetus, all to cover up previous medical
malpractice on his part, severe distress
presumed). In Bristow v. Drake Street
Inc., 41 F.3d 345 (7th Cir. 1994), we
extensively discussed when emotional
distress is sufficiently severe under
Illinois law. In the course of that
discussion, we also took note that
Illinois courts, following the
Restatement, have "tend[ed] to merge the
issue of the outrageousness of the
defendant’s conduct with the issue of the
severity of the plaintiff’s emotional
distress, in effect requiring more
evidence of outrageousness the weaker the
evidence of distress." Id. (internal
citation omitted).

  In this case, Mr. Honaker testified that
when he saw his house burning on the
morning of the fire, he was upset and
"got mad and started yelling at
everybody." R.70 at 96. Additionally, he
points to the testimony of two witnesses
to confirm the severity of the emotional
distress he suffered. His ex-wife,
Virginia Honaker, explained that on the
day of the fire, Mr. Honaker was "pissed"
and that he was "cussing, raising all
kinds of cain, hollering at the
neighbors, everybody else, screaming to
the top of his lungs because his house
was burned." Id. at 380. However, she
also qualified some of her answers
regarding the seriousness of Mr.
Honaker’s mental state. For example,
Virginia Honaker explained that at one
point, Mr. Honaker was "bawling," though
when asked if that was unusual for him,
she replied "Depends." Id. When asked if
it took Mr. Honaker a while to get over
his house being burned down, she answered
"[a]ccording to him, yes." Id. at 381.
Additionally, James Webb, a neighbor of
Mr. Honaker’s, testified that on the day
of the fire, Mr. Honaker was "visibly
upset" and "very distraught, nervous."
Id. at 308. Webb also observed that he
had only seen Mr. Honaker in that
emotional state once before, upon his
divorce from Virginia Honaker. Aside from
the testimony of these two witnesses, Mr.
Honaker points to no other evidence to
establish severe emotional distress.

  The district court took the view that
the evidence was, as a matter of law,
insufficient to permit a jury to
determine that the emotional distress was
sufficiently severe to be actionable. In
reaching this determination, the court
placed great, and perhaps controlling,
weight on the fact that this testimony
focused on the manifestations of Mr.
Honaker’s distress on the day of the
fire. Although duration is certainly a
factor to be weighed in determining the
severity of the plaintiff’s distress, see
Welsh, 713 N.E.2d at 684, it is not the
only factor that ought to be considered.
Here, the district court apparently gave
no consideration as to whether the
severity of the alleged conduct--being
told by the mayor to get out of town or
be burned out followed by the burning of
the house--permitted the reasonable
inference that Mr. Honaker’s distress was
not only severe but of significant
duration. We believe that the magnitude
of that conduct, in conjunction with the
evidence of emotional distress that Mr.
Honaker did put forward, could allow a
jury to find that he suffered severe
emotional distress in this case.

  Accordingly, although we express no view
on the ultimate outcome of the case, we
cannot sustain the dismissal of this
count alleging a cause of action for the
intentional infliction of emotional
distress under the law of Illinois.

Conclusion

  The district court properly determined
that insufficient evidence existed for a
jury to find that, under color of state
law, Mr. Smith played a role in setting
fire to Mr. Honaker’s house. The court
was also correct in its determination
that Mr. Honaker did not put forward
enough evidence to demonstrate that Mr.
Smith, in his role as Lovington’s Fire
Chief, used less than his best efforts to
extinguish that fire. Accordingly, we
affirm the district court’s grant of
judgment as a matter of law in favor of
Mr. Smith on the Section 1983 claims.

  With respect to the state law-based
claim for the intentional infliction of
emotional distress, we reverse the
judgment of the district court and remand
for further proceedings consistent with
this opinion.

AFFIRMED in part,
REVERSED and REMANDED in part.

FOOTNOTES

/1 Pallets are portable wooden platforms used for
storing or moving cargo or freight. Mr. Honaker
either bought lumber to build his pallets or,
more commonly, hauled away previously made pal-
lets from local businesses and rebuilt them. This
rebuilding process would entail tearing the
pallet apart by hand, cutting it down to size,
rebuilding it and sending it out for sale.

/2 After the fire, the frame of the house continued
to stand, but the house was not habitable. Mr.
Honaker made repeated efforts to rebuild the
house, all of which failed due to the weakness of
the structure’s frame. As a result, Mr. Honaker
eventually sold the property and left Lovington.

/3 Counts II and III of the complaint maintained
that Mr. Smith conspired with Doug Thomas and
other unnamed individuals to set fire to Mr.
Honaker’s house and to fail to extinguish proper-
ly that fire, in violation of 42 U.S.C. sec.sec.
1983 and 1985, respectively. The district court
granted Mr. Smith’s motion for judgment as a
matter of law at the close of all of the evidence
on these claims, based upon its finding that the
evidence presented was insufficient to demon-
strate a conspiracy. Mr. Smith does not challenge
these rulings on appeal.

/4 Rule 50 states, in pertinent part:

(b) Renewing Motion for Judgment After Trial;
Alternative Motion for New Trial. If, for any
reason, the court does not grant a motion for
judgment as a matter of law made at the close of
all the evidence, the court is considered to have
submitted the action to the jury subject to the
court’s later deciding the legal questions raised
by the motion. The movant may renew its request
for judgment as a matter of law by filing a
motion no later than 10 days after entry of
judgment . . . . In ruling on a renewed motion,
the court may:

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

(C) direct entry of judgment as a matter of
law[.]

Fed. R. Civ. P. 50(b).

/5 This claim is much different from others in
which, for example, a mayor has been found to be
acting under color of state law. See, e.g., Pleva
v. Norquist, 195 F.3d 905, 911 (7th Cir. 1999)
(appellees did not contest that mayor was acting
under color of state law when mayor made decision
not to reappoint member of Board of Zoning Ap-
peals to that position); Esmail v. Macrane, 53
F.3d 176, 177-80 (7th Cir. 1995) (plaintiff’s
Section 1983 suit against mayor was cognizable
where mayor was also city’s liquor commissioner,
and plaintiff accused mayor of improperly denying
plaintiff’s request for liquor license in viola-
tion of plaintiff’s equal protection rights).

/6 Mr. Honaker’s conspiracy claim seems to be based
on the following facts: (1) Thomas gave conflict-
ing accounts of where he was on the night of the
fire and why he did not respond to the scene, (2)
rumors circulating around Lovington after the
fire hinted that Thomas might have been involved
in it in some way and (3) Mr. Smith and Thomas
knew each other from their work on the City
Council and at the Fire Department. The district
court determined that Mr. Honaker had produced no
evidence of a conspiracy to violate his civil
rights that included Mr. Smith, Thomas or anyone
else. See R.70 at 418. As a result, it directed
a verdict for Mr. Smith on the conspiracy claims
in the complaint. Mr. Honaker did not appeal the
court’s ruling in that respect.

/7 See R.70 at 143 (testimony of Mr. Smith that,
after receiving the call regarding the fire just
before 2:00 a.m., he went directly to the scene,
where firefighters were already present); id. at
209-11 (testimony of firefighter Steven Fleming
that, after receiving the fire call, he ran from
his home to the fire station next door and drove
for one minute from the station to Mr. Honaker’s
house in a fire truck); id. at 294 (testimony of
firefighter Harold White that, after receiving
the fire call, he arrived at the scene "within
three to five minutes").

  The district court noted that a neighbor of Mr.
Honaker’s, Gary Newberry, testified that the fire
had been burning for a lengthy period before the
firefighters responded to the scene. However, the
court found that, because Newberry, a schizo-
phrenic who was on disability, testified based
upon "at best . . . a very unclear recollection,"
and because all other evidence demonstrated that
the firefighters responded immediately to the
call reporting the fire, his testimony "would not
support a conclusion that the fire was burning
for a lengthy period of time before the fire-
fighters arrived." R.61 at 9 n.3. In fact, New-
berry’s testimony on this point was very unclear.
When asked how much time had elapsed between when
he saw the house burning and when firefighters
arrived, Newberry replied "And I don’t--I’ll just
say about 15, 30 minutes. I don’t know. It’s
probably--I don’t know." R.70 at 261. Newberry
was then reminded by Mr. Honaker’s lawyer that at
a deposition a year earlier he had agreed with a
statement suggesting that fire trucks did not
arrive at the fire until an hour after it began.
Newberry was then asked if "maybe your memory was
better a year ago than it is now?" Id. He re-
plied, "No." Id. Moreover, as stated earlier, all
of the evidence on the point suggested that,
immediately upon being notified of the fire, the
Lovington Fire Department responded to the scene
within minutes.
/8 Additionally, Illinois State Police investigator
Rodney Miller confirmed that, immediately after
the fire, Mr. Smith explained that he did not
allow firefighters to enter the house due to its
poor structural makeup. Mr. Smith himself also
testified that during the fire "[y]ou could see
the floor joists from above which was sagging,
and one was completely broken in two." R.70 at
406.

/9 Mr. Honaker also continually emphasized, in his
briefs and at oral argument, that Mr. Smith told
the firefighters that Mr. Honaker’s house "isn’t
worth getting hurt for." Appellant’s Reply Br.
at 4. The relevant portion of trial testimony on
this point reads as follows:

Q [Mr. Honaker’s attorney] But you made the
decision that that house wasn’t worth getting
hurt for?

A [Mr. Smith]Me and the assistance.

Q So, it was more than you. You made that
decision in concert with someone else?

A We knew the wall, the beams was leaning, and
I didn’t think it was safe to go in myself
either.

Q You made that decision in concert with
someone else?

A I can say I probably made that decision on my
own. I told them about it. I didn’t want anybody
to go in, and they [agreed]--"Yes, we’d seen it."

R.70 at 167. This testimony makes clear that Mr.
Smith himself did not use the phrase "that house
wasn’t worth getting hurt for"--those words were
provided by Mr. Honaker’s attorney. Additionally,
the context of Mr. Smith’s agreement with that
statement demonstrates that the "decision" not to
enter was made not because Mr. Smith believed
that Mr. Honaker’s house in particular was not
worth saving, but because the house’s deteriorat-
ing physical structure would have made any possi-
ble entry a dangerous proposition, regardless of
who owned the structure. As a result, we cannot
agree with Mr. Honaker that this statement is a
significant piece of evidence demonstrating that
Mr. Smith’s desire was to see Mr. Honaker’s house
burn to the ground.

/10 See, e.g., Patterson v. Xerox Corp., 901 F. Supp.
274, 279 (N.D. Ill. 1995) (persistent harassment
of pregnant employee by supervisor, including the
berating of the employee for absence from work
while employee was hospitalized for premature
labor); Pavilon v. Kaferly, 561 N.E.2d 1245, 1251
(Ill. App. Ct. 1990) (employer pressured employee
for dates, offered her money in return for sexual
favors, and threatened to kill and rape her);
Milton v. Illinois Bell Tel. Co., 427 N.E.2d 829,
832 (Ill. App. Ct. 1981) (employer allegedly
engaged in an extensive course of disciplinary
and harassing conduct to coerce the plaintiff to
falsify illegally work reports).

/11 See, e.g., Van Stan v. Fancy Colours & Co., 125
F.3d 563, 568-69 (7th Cir. 1997); Harriston v.
Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.
1993); Brackett v. Galesburg Clinic Ass’n, 689
N.E.2d 406, 409 (Ill. App. Ct. 1997); Lundy v.
Calumet City, 567 N.E.2d 1101, 1103 (Ill. App.
Ct. 1991); Harris v. First Fed. Sav. & Loan Ass’n
of Chicago, 473 N.E.2d 457, 458-60 (Ill. App. Ct.
1984).

/12 As to the third indicator that the McGrath court
set forth to assist in determining extreme and
outrageous conduct, whether a plaintiff was
particularly susceptible to distress, Mr. Honaker
does not cite any physical or mental condition
that might suggest such susceptibility.

/13 Again, Mr. Smith has emphatically denied that
this conversation ever took place, that he ever
threatened Mr. Honaker or that he had anything to
do with the start of the fire.

/14 Mr. Smith has denied taking part in these jokes.

/15 Additionally, there was some evidence that Mr.
Honaker had threatened to resort to the use of
fire to resolve situations in the past. More
specifically, Virginia Honaker, Mr. Honaker’s ex-
wife, testified that Mr. Honaker had lived previ-
ously in a house in Sullivan that also burned to
the ground. Additionally, she claimed that Mr.
Honaker had blown up the trailer that his previ-
ous ex-wife had lived in, in order to "get her
out of it." R.70 at 366. She also maintained that
at numerous times during her marriage to Mr.
Honaker, he threatened to burn her out of their
home. For his part, Mr. Honaker testified that he
did not blow up his ex-wife’s trailer and that
the trailer still sat on land in nearby Shelby-
ville, Illinois. Mr. Honaker also denied that he
threatened to destroy the home he shared with
Virginia Honaker.

/16 See, e.g., Doe v. Calumet City, 641 N.E.2d 498,
508 (Ill. 1994) (when plaintiff had been victim
of past assault and had summoned officer to
protect her and her children from present attack,
officer’s conduct in making derogatory comments
toward plaintiff and failing to protect children
demonstrated disregard of the high probability
that his actions would cause severe distress);
Vance v. Chandler, 597 N.E.2d 233, 237 (Ill. App.
Ct. 1992) (defendant’s numerous dealings with
third parties regarding a conspiracy to murder
plaintiff showed reckless disregard that the
plans would become known to plaintiff and would
cause severe distress); Pavilon, 561 N.E.2d at
1252 (defendant’s close relationship with plain-
tiff, the knowledge that defendant derived from
that relationship that plaintiff was undergoing
psychotherapy and the fact that defendant was a
trained psychotherapist demonstrated that he
intended his sexually harassing conduct to in-
flict severe distress).

/17 Here, we view, as we must, the evidence in the
light most favorable to the non-moving party.

/18 See, e.g., Karkomi v. American Airlines, Inc.,
717 F. Supp. 1340, 1345 (N.D. Ill. 1989) (airline
passengers, whose tickets were confiscated by
airline, sustained at worst brief "public humili-
ation and embarrassment" and perhaps fleeting
fear of being unable to return home); Johnson v.
K Mart Corp., 723 N.E.2d 1192, 1198 (Ill. App.
Ct.) (plaintiffs merely noted "feelings of stress
or distrust" when employer placed private detec-
tives in workplace to uncover personal informa-
tion), appeal allowed, 729 N.E.2d 496 (Ill.
2000); Welsh v. Commonwealth Edison Co., 713
N.E.2d 679, 684 (Ill. App. Ct.) (employees of
nuclear power station who suffered "anxiety,
humiliation and extreme and severe emotional
distress" could not demonstrate sufficient sever-
ity due to demotions that allegedly arose from
their voicing of safety concerns), appeal denied,
720 N.E.2d 1107 (Ill. 1999); Adams v. Sussman &
Hertzberg, Ltd., 684 N.E.2d 935, 942 (Ill. App.
Ct. 1997) (fear and embarrassment for reputation
regarding arrest for traffic violations, reducing
plaintiff to tears, insufficient to show emotion-
al distress); Knysak v. Shelter Life Ins. Co.,
652 N.E.2d 832 (Ill. App. Ct. 1995) (depression
and distress suffered as a result of insurer’s
failure to pay insured spouse’s medical bills not
sufficient); Khan v. American Airlines, 639
N.E.2d 210, 215 (Ill. App. Ct. 1994) (recurring
nightmares, problems with sleeping and fear of
re-arrest were not severe distress for passenger
wrongly charged with theft of ticket by airline);
Sutherland v. Illinois Bell, 627 N.E.2d 145, 154
(Ill. App. Ct. 1993) (where customer was "frus-
trated, annoyed and disgusted" with her phone
service and was pressured by phone company to pay
bills, insufficient distress shown); Lundy v.
Calumet City, 567 N.E.2d 1101, 1104 (Ill. App.
Ct. 1991) (embarrassment or distress suffered by
plaintiff police officers when they were stripped
of badges and guns and relieved of duty until
they could undergo a psychological reevaluation
did not support claim); Miller v. Equitable Life
Assurance Soc’y, 537 N.E.2d 887, 889-90 (Ill.
App. Ct. 1989) (plaintiff-employee’s "stress" was
not severe enough to establish cause of action
where she alleged that her coworkers were incon-
siderate, uncooperative, unprofessional and
unfair).

/19 See, e.g., Doe, 641 N.E.2d at 508 (severe dis-
tress established where plaintiff required psy-
chological care after the incident); McGrath v.
Fahey, 533 N.E.2d 806, 808 (Ill. 1988) (where
plaintiff alleged that defendant engaged in
pattern of extortion to defraud plaintiff out of
millions of dollars, and where plaintiff experi
enced anxiety, became physically ill when dis-
cussing the situation and later suffered a heart
attack, severe distress shown); Pavilon, 561
N.E.2d at 1252 (severe distress established where
employer’s threatening conduct forced employee to
continue her psychotherapy treatment for long
duration and where therapist’s testimony de-
scribed employee as being "scared, angry, and
unable to cope with her child, her work and her
relationship with men generally as a result of
these problems").
