                                     2016 IL 120041



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 120041)

                  MELINDA SCHWEIHS, Appellant, v. CHASE HOME
                        FINANCE, LLC, et al., Appellees.



                             Opinion filed December 15, 2016.



        JUSTICE FREEMAN delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, and Theis
     concurred in the judgment and opinion.

        Justice Garman specially concurred, with opinion.



                                        OPINION

¶1      This tort case arose out of foreclosure proceedings involving plaintiff Melinda
     Schweihs’s home. Plaintiff sued defendants Chase Home Finance, LLC (Chase),
     Safeguard Properties, Inc. (Safeguard), Todd Gonsalez, and Edilfonso Centeno for
     numerous torts, including emotional distress, as a result of Gonsalez and Centeno
     entering her home. Her emotional distress claims, which are at issue here, were
     dismissed by the circuit court, and the appellate court affirmed. 2015 IL App (1st)
     140683. This court allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315
     (eff. Jan. 1, 2015). For the following reasons, we affirm the judgment of the
     appellate court.


¶2                                    I. BACKGROUND

¶3      In 1997, plaintiff executed a note secured by a mortgage for a home located in
     Northbrook, Illinois. Chase owned the mortgage. The mortgage contained a
     provision granting Chase the right, in the event of a default by plaintiff, to enter
     onto the property to make repairs. The provision reads as follows:

        “7. Protection of Lender’s Rights in the Property. If Borrower fails to perform
        the covenants and agreements contained in this Security Instrument, or there is
        a legal proceeding that may significantly affect Lender’s rights in the Property
        *** then Lender may do and pay for whatever is necessary to protect the value
        of the Property and Lender’s rights in the Property. Lender’s actions may
        include paying any sums secured by a lien which has priority over this Security
        Instrument, appearing in court, paying reasonable attorney’s fees and entering
        on the Property to make repairs. Although Lender may take action under this
        paragraph 7, Lender does not have to do so.”

¶4       Plaintiff defaulted on the mortgage in 2007. Chase filed a complaint to
     foreclose the mortgage against her and obtained a judgment of foreclosure on May
     25, 2010. Plaintiff had the right to possession of her home until the redemption
     period expired on August 25, 2010.

¶5       To protect its interest in properties, Chase contracts with outside companies to
     provide property inspections and preservation services. Safeguard is one of those
     companies that provide national property monitoring and preservation services for
     residential properties in foreclosure. Safeguard’s employees do not physically
     perform the inspections or render preservation services. Instead, Safeguard
     employs “Client Account Representatives” (CARs) who coordinate with local




                                              -2-
       vendors, with whom Safeguard contracts. These local vendors, in turn, perform the
       inspections and preservation services.

¶6         On June 17, 2010, Safeguard’s inspections department received a report from
       one of its vendors that plaintiff’s property was vacant. Based on the report, a
       Safeguard CAR placed an “initial secure” order with A1 Builders, a local
       contractor that performs the property inspection services for which Safeguard
       contracted. An “initial secure” order may require a vendor to secure access to the
       property by changing one of the locks on the premises and to “winterize” the house
       by turning off the utilities. A1 in turn hires subcontractors, who perform the work
       orders. Gonsalez and Centeno worked as A1 subcontractors.

¶7         On June 22, 2010, Gonsalez and Centeno arrived at plaintiff’s property to carry
       out the “initial secure” order. They were required to determine the occupancy status
       of the property before proceeding with the order. The order instructed them not to
       do any work if the property was occupied.

¶8         Gonsalez testified during his discovery deposition that he and Centeno
       conducted a visual inspection of the property. He observed that the grass on the
       property was uncut and the trees were overgrown. Gonsalez knocked on the front
       door but did not receive an answer. He also checked the gas meter and the water
       spout and determined that both utilities were turned off. He further observed a “for
       sale” sign at the property, along with a dumpster and a car parked in the driveway.

¶9         Gonsalez spoke with a neighbor who lived across the street from plaintiff’s
       home. Gonsalez testified that the neighbor told him that the house was not occupied
       but a woman would come and go on occasion. She also said that there were no
       lights on at plaintiff’s home at night. She did not recognise the car in plaintiff’s
       driveway. She also informed him that there was a school down the street and that
       people from the school would park there knowing it was a vacant property.

¶ 10       Centeno testified during his discovery deposition that he did not talk with any
       neighbors but that he recalled that Gonsalez told him the neighbor stated that “they
       come and go. And sometimes they leave their vehicle there.”

¶ 11      After speaking with the neighbor, Gonsalez again knocked on plaintiff’s front
       door, without a response. Gonsalez and Centeno spent in excess of 45 minutes




                                              -3-
       determining if the house was occupied. They also entered the backyard through a
       latched gate of the home’s six-foot security fence. Gonsalez testified that he saw
       boxes piled on top of each other and garbage and debris on the floor, observing
       these through sliding glass doors. Gonsalez then contacted management at A1
       Builders, relaying the abovementioned information. He was told to proceed with
       the work order.

¶ 12       To secure the premises, Gonsalez had to remove one of the secondary locks on
       the property. He removed the lock to the back door. Because of the boxes and
       debris blocking the entrance, Gonsalez could only open the door about a foot and
       had to climb over them to enter the home. Centeno remained at the back door and
       never entered the home. Once in the home, Gonsalez testified that he was
       confronted by a woman. Both parties were startled, and plaintiff stated that she
       wanted them out of her house and she was calling her lawyer. Gonsalez responded
       he was with the mortgage company and asked her to come to the front door to speak
       with him. Gonsalez then left and went around to the front and knocked on the front
       door, but plaintiff did not answer. Gonsalez and Centeno then waited for the arrival
       of the police.

¶ 13       At the time Gonsalez and Centeno arrived at plaintiff’s home, she was a 58-
       year-old single woman who was living alone. Plaintiff testified during her
       discovery deposition that her home was in foreclosure; however, she anticipated
       selling her home while it was still in the redemption period. Plaintiff testified that
       when she placed the house for sale, she informed the realtor that the realtor was to
       accompany anybody that came to the property. She also testified that she was not
       showing the interior of the house because of the “mess” and “stuff everywhere” in
       piles and in boxes. She described herself as a “packrat” and testified she was in the
       process of packing her belongings which were in disarray.

¶ 14       Plaintiff heard knocking on the front door while she was in the basement;
       however, she was on the phone and did not respond. After the phone call, plaintiff
       went to the second floor of her home to continue packing. She stated that she heard
       the flap drop on the metal mailbox attached to her house, at which time she looked
       out a second-floor window. Plaintiff testified that she saw two men standing in her
       driveway, along with a green truck facing the street, without any markings except




                                               -4-
       for a “Harley” decal on the back window. Plaintiff thought that they may have been
       potential buyers looking at the house, and she decided to continue to pack.

¶ 15       A short time later, plaintiff heard noises coming from the back of the house. She
       went downstairs to identify the noise and encountered Gonsalez in the family room.
       She testified that Gonsalez was not wearing a uniform but was in street clothes with
       tattoos exposed. Centeno was in the open back doorway. Plaintiff testified that she
       spoke first and asked, “Who are you and what are you doing in my home.” Plaintiff
       testified that one of them told her in a “forceful way” that Chase had sent them to
       secure and winterize the house and that she needed to come outside to talk with
       them. She told them to leave and immediately called her attorney and the police.
       She stayed on the phone with the police dispatcher until the police arrived. The
       police investigated, speaking with plaintiff, Gonsalez, Centeno, and the neighbor
       with whom Gonsalez had spoken. No arrests were made. Gonsalez offered to
       replace the back-door lock with a new lock and key, but plaintiff declined.

¶ 16       Plaintiff testified that after the incident she was afraid while in her home and
       fearful that she may be attacked. On the same day of the incident, plaintiff went to
       the hospital because she “didn’t feel right.” Subsequently, she sought treatment,
       therapy, and medication from multiple doctors for issues with sleeping,
       post-traumatic stress, anxiety, and depression. Plaintiff stated that she felt anxiety
       when approaching her home and that at times she stayed in hotels because of her
       fear of subsequent break-ins. She was inhibited from packing and preparing her
       home for sale because of this fear. Additionally, she alleged that she sought
       temporary leave from her employment due to the incident but that her request was
       denied and she was instead terminated.

¶ 17       In October 2010, plaintiff filed a five-count complaint against defendants
       alleging trespass, negligent trespass, private nuisance, intentional infliction of
       emotional distress, and negligence. Extensive discovery and motion practice
       ensued. Defendants filed motions for summary judgment as to each of plaintiff’s
       counts. On February 4, 2014, the circuit court heard argument on the motions, and
       plaintiff filed a motion for leave to amend the negligence count to negligent
       infliction of emotional distress.

¶ 18      On February 6, 2014, the court granted defendants’ motions for summary
       judgment with respect to plaintiff’s claims for private nuisance and intentional



                                               -5-
       infliction of emotional distress. It denied defendants’ motions with respect to the
       claims for trespass and negligent trespass, and those claims are still pending in the
       circuit court. The court also granted plaintiff’s motion for leave to amend. It then
       dismissed the negligent infliction of emotional distress claim, as amended, pursuant
       to section 2-615 of the Code of Civil Procedure (Code). 735 ILCS 5/2-615 (West
       2014). Finally, the court made a finding pursuant to Illinois Supreme Court Rule
       304(a) (eff. Feb. 26, 2010) that there was “no just reason for delaying either
       enforcement or appeal or both.” Thereafter, plaintiff filed a timely notice of appeal.

¶ 19       A divided appellate court affirmed, first addressing the negligent infliction of
       emotional distress claim. The court noted the two types of victims in emotional
       distress cases: bystanders and direct victims. It determined that plaintiff was a
       direct victim and must allege “some physical impact” from defendants’ conduct.
       The court found that because she did not plead any physical contact, she could not
       establish a claim for negligent infliction of emotional distress and that count was
       properly dismissed. It further noted that its conclusion was consistent with this
       court’s holdings in Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 555 (1983);
       Corgan v. Muehling, 143 Ill. 2d 296, 304 (1991); and Pasquale v. Speed Products
       Engineering, 166 Ill. 2d 337, 346-47 (1995). The court did acknowledge however,
       that certain language in Pasquale mischaracterized the holding in Corgan, which
       has led to some confusion in the courts. It concluded that the language in Pasquale
       was obiter dictum and not binding. 2015 IL App (1st) 140683.

¶ 20       The appellate court next addressed plaintiff’s intentional infliction of emotional
       distress claim, finding that summary judgment was proper as a matter of law
       because plaintiff could not establish that defendants’ conduct was “extreme and
       outrageous.”

¶ 21       Justice Harris dissented regarding the negligent infliction of emotional distress
       claim, stating that the majority was wrong in continuing to require physical impact
       in claims for negligent infliction of emotional distress for direct victims. 2015 IL
       App (1st) 140683, ¶ 49 (Harris, J., dissenting).

¶ 22      We granted plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1,
       2015). We also granted the Illinois Association of Defense Trial Counsel leave to
       submit an amicus curiae brief in support of defendants. Ill. S. Ct. R. 345 (eff. Sept.




                                                -6-
       20, 2010). We affirm the judgment of the appellate court.


¶ 23                                      II. ANALYSIS

¶ 24       On appeal, plaintiff argues that her claims for negligent infliction of emotional
       distress and intentional infliction of emotional distress should not have been
       dismissed. We first address plaintiff’s claim for negligent infliction of emotional
       distress.


¶ 25                      A. Negligent Infliction of Emotional Distress

¶ 26      Plaintiff contends that her claim for negligent infliction of emotional distress
       should not have been dismissed pursuant to section 2-615 of the Code because the
       controlling precedent of this court establishes that physical impact is not a required
       element of a claim for negligent infliction of emotional distress by a direct victim.

¶ 27        A motion to dismiss under section 2-615 of the Code challenges only the legal
       sufficiency of the complaint. Bonhomme v. St. James, 2012 IL 112393, ¶ 34. The
       critical inquiry is whether the allegations of the complaint, when considered in a
       light favorable to the plaintiff, are sufficient to state a cause of action upon which
       relief may be granted. Id. All well-pled facts in the complaint must be taken as true,
       but conclusions of law will not be taken as true unless supported by specific factual
       allegations. Id. Review of the dismissal of a complaint under section 2-615 of the
       Code is de novo. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 47.

¶ 28       Plaintiff first argues that decisions of this court make clear that Illinois, like
       other jurisdictions, has abandoned the impact rule. Plaintiff relies on this court’s
       decision in Corgan, which she claims established that a direct victim need only
       properly allege the accepted elements of a negligence claim, including an
       emotional or psychological injury, but without the necessity of also proving a
       secondary physical impact or injury. Plaintiff further claims that this court
       reaffirmed that principle in Pasquale.

¶ 29       Plaintiff also argues that the appellate court majority misinterpreted Corgan
       and Pasquale and should not have disregarded language in Pasquale as obiter
       dictum. The language stated that Corgan had “eliminated the contemporaneous




                                               -7-
       injury or impact requirement for a direct victim’s recovery for emotional distress
       based on a theory of negligence.” Pasquale, 166 Ill. 2d at 346. This court reiterated
       similar statements two more times in Pasquale. Id. at 348-49. Plaintiff maintains
       that this court’s statements in Pasquale were entirely consistent with its decision in
       Corgan. Plaintiff argues that, in accordance with our prior decisions, we should not
       depart from settled precedent, which eliminated the contemporaneous physical
       impact or injury requirement for direct victims.

¶ 30      Defendants and amicus contend that the impact rule is still the law in Illinois
       when a direct victim pleads negligent infliction of emotional distress.

¶ 31       To address plaintiff’s claim, we set forth this court’s history of the impact rule
       and claims for negligent infliction of emotional distress. Generally, to state a claim
       for negligent infliction of emotional distress, a plaintiff must allege the traditional
       elements of negligence: duty, breach, causation, and damages. Corgan, 143 Ill. 2d
       at 306. And until this court’s decision in Rickey, all plaintiffs were also required to
       allege a contemporaneous physical injury or impact. Braun v. Craven, 175 Ill. 401,
       419-20 (1898). This was known as the “impact rule.” Under the impact rule, a
       plaintiff could recover damages if he suffered (1) emotional distress and (2) “ ‘a
       contemporaneous physical injury or impact.’ ” Corgan, 143 Ill. 2d at 303 (quoting
       Rickey, 98 Ill. 2d at 553). Prior to Rickey, there was no distinction between a direct
       victim and a bystander in negligent infliction of emotional distress cases.
       Subsequently, in Rickey, this court drew such a distinction.

¶ 32       In Rickey, an eight-year-old boy witnessed his five-year-old brother’s clothing
       become entangled in a subway escalator mechanism, resulting in the younger
       brother being choked and unable to breathe for a substantial period of time. Rickey,
       98 Ill. 2d at 549. The eight-year-old boy brought an action through his mother
       against numerous defendants, alleging that as a result of witnessing the accident to
       his brother, he sustained severe mental and emotional distress and psychiatric
       trauma. Id. The complaint alleged that the emotional distress manifested in physical
       injury, including “definite functional, emotional, psychiatric and behavioral
       disorders, extreme depression, prolonged and continuing mental disturbances,
       [and] inability to attend school.” Id. at 550. This court adopted the
       “zone-of-physical-danger rule” for bystanders who allege negligent infliction of
       emotional distress. Id. at 555. Under the zone-of-physical-danger rule, “a bystander




                                                -8-
       who is in a zone of physical danger and who, because of the defendant’s
       negligence, has reasonable fear for his own safety is given a right of action for
       physical injury or illness resulting from emotional distress.” Id. The rule does not
       require that the bystander suffer a physical impact or injury at the time of the
       negligent act, but it does require that he must have been in “such proximity to the
       accident in which the direct victim was physically injured that there was a high risk
       to him of physical impact.” Id. Therefore, this court held that a bystander must
       show physical injury or illness as a result of the emotional distress, caused by the
       defendant’s negligence and not a contemporaneous physical injury or impact. Id.

¶ 33       Subsequently, in Corgan, the plaintiff, who was a patient of a man who held
       himself out to be a licensed psychologist, sued the man for emotional damages
       because, under the guise of therapy, he sexually exploited her. Corgan, 143 Ill. 2d
       at 300. The plaintiff alleged that the defendant’s conduct caused and still caused her
       to experience fear, shame, humiliation, and guilt. Id. She also alleged that the
       defendant’s conduct compelled her to undergo more intensive and extensive
       psychotherapeutic care and counseling. Id. The circuit court certified questions for
       the appellate court, and the precise issue in Corgan was whether “as a direct victim
       of defendant’s psychological malpractice, a question remains as to whether the
       complaint should be dismissed because the plaintiff did not allege that she suffered
       a physical injury or illness as a result of her emotional distress.” Id. at 308. This
       court held that the requirement that the plaintiff allege a physical symptom as a
       result of the emotional distress caused by the defendant’s negligence did not apply
       to direct victim cases. Id. at 312.

¶ 34       Also, in Corgan, this court made it clear that Rickey did not define the scope of
       negligent infliction of emotional distress as it applies to direct victims. Id. at 304.
       Corgan was a direct victim case, and the patient satisfied the impact rule; on
       multiple occasions, the psychologist had sexual relations with her. Id. at 300. Thus,
       Corgan is an example of the continued application of the impact rule in direct
       victim cases.

¶ 35       Moreover, in Corgan, the special concurrence clarified “that the only question
       before us, and the only one resolved by today’s decision, is the question certified by
       the trial judge: whether this court’s earlier opinion in Rickey v. Chicago Transit
       Authority (1983), 98 Ill. 2d 546, bars recovery of damages for emotional distress in




                                                -9-
       the limited set of circumstances alleged here. We have, in the present case,
       answered that question in the negative.” Corgan, 143 Ill. 2d at 316 (Miller, C.J.,
       specially concurring).

¶ 36       Also of note is the case of Pasquale, 166 Ill. 2d at 339-40, where the husband of
       a spectator at a drag race, who was killed when she was struck by flying debris
       resulting from the failure of a clutch mechanism on a race car, brought an action
       against the race track, the manufacturer of the engine housing, and the distributor of
       the engine parts. When the mechanism failed, the plaintiff’s wife was struck by the
       flying debris, and the plaintiff was then struck by his wife’s body parts. Id. at 343.
       The complaint alleged a cause of action for a wrongful death sounding in strict
       liability. Id. Although the plaintiff maintained that he was both a bystander and a
       direct victim, this court found that the plaintiff was a bystander because his
       emotional distress was not caused by being struck with flying debris. Id. at 347.

¶ 37       Therefore, in Pasquale, this court confined its inquiry to “whether the
       elimination of the contemporaneous injury or impact requirement for bystander
       recovery for emotional distress in the area of negligence meaningfully translate[d]
       into an elimination of the element of physical harm for a bystander’s recovery for
       emotional distress under strict liability theory.” Id. This court determined that it did
       not and declined to reexamine the established rule that physical harm is required to
       state a bystander’s cause of action and recovery based on strict liability. Id. at
       349-50.

¶ 38       This precedent makes clear that a direct victim’s claims for negligent infliction
       of emotional distress must include an allegation of contemporaneous physical
       injury or impact. To the extent plaintiff argues that Corgan eliminated the impact
       rule for direct victims, a careful reading of Rickey, Corgan, and Pasquale indicates
       that this court did not eliminate the impact rule for negligent infliction of emotional
       distress claims brought by direct victims.

¶ 39       Additionally, defendants have brought to our attention numerous appellate
       court decisions that have analyzed the elements necessary for a direct victim to
       plead negligent infliction of emotional distress and have correctly applied this
       precedent. See Borcia v. Hatyina, 2015 IL App (2d) 140559, ¶¶ 43-44 (observing
       that a cause of action for negligent infliction of emotional distress requires a
       plaintiff to allege facts establishing that she suffered a direct impact that caused



                                                - 10 -
       emotional distress or that she was a bystander in a zone of physical danger that
       caused her to fear for her own safety and that she suffered physical injury or illness
       as a result of her emotional distress); see also Doe v. Northwestern University, 289
       Ill. App. 3d 39, 47 (1997) (stating that Illinois courts permit a “plaintiff who has
       suffered a physical impact and injury due to a defendant’s negligence [to] recover
       for emotional distress that the injury directly causes”); Majca v. Beekil, 289 Ill.
       App. 3d 760, 762-63 (1997) (same); Doe v. Surgicare of Joliet, Inc., 268 Ill. App.
       3d 793, 796 (1994) (holding that the plaintiff qualified as a direct victim due to the
       physical impact he suffered and acknowledging the requirement that the physical
       impact be contemporaneous with the occurrence); Hayes v. Illinois Power Co., 225
       Ill. App. 3d 819, 825 (1992) (holding that the plaintiff was a direct victim because
       he was electrocuted as a result of coming into contact with decedent who had been
       electrocuted); Leonard v. Kurtz, 234 Ill. App. 3d 553, 555-56 (1992) (finding there
       was no contemporaneous physical injury to the plaintiff sufficient to make her a
       direct victim).

¶ 40       Furthermore, consistent with our understanding of Rickey, Corgan, Pasquale,
       and Illinois tort law, federal district courts applying Illinois law have held on
       several occasions that the impact rule applies to direct victims. See Lewis v. CITGO
       Petroleum Corp., 561 F.3d 698, 703 (7th Cir. 2009) (observing that a direct victim
       of alleged negligent infliction of emotional distress must satisfy the “impact” rule);
       Cleveland v. Rotman, 297 F.3d 569, 574 (7th Cir. 2002) (stating that Illinois
       follows the “impact rule,” which allows a plaintiff to recover for negligent
       infliction of emotional distress only if the distress is directly and causally related to
       a physical injury); Kapoulas v. Williams Insurance Agency, Inc., 11 F.3d 1380,
       1382 (7th Cir. 1993) (recognizing that when a direct victim claims emotional
       distress, the impact rule still applies).

¶ 41        Moreover, we agree with the appellate court’s characterization of certain
       language referring to Corgan, in Pasquale, as obiter dictum. We note that to
       evaluate the precedential effect of this court’s pronouncements concerning the
       impact rule, we must preliminarily examine general rules governing judicial
       statements. Cates v. Cates, 156 Ill. 2d 76, 79-80 (1993). The term “dictum” is
       generally used as an abbreviation of obiter dictum, which means a remark or
       opinion uttered by the way. Id. at 80; Exelon Corp. v. Department of Revenue, 234
       Ill. 2d 266, 277-78 (2009). Such an expression or opinion as a general rule is not




                                                - 11 -
       binding as authority or precedent within the stare decisis rule. Cates, 156 Ill. 2d at
       80. On the other hand, an expression of opinion upon a point in a case argued by
       counsel and deliberately passed upon by the court, though not essential to the
       disposition of the cause, if dictum, is a judicial dictum. People v. Palmer, 104 Ill. 2d
       340, 345-46 (1984) (indicating that precedential scope of decision is limited to facts
       before the court); see Scovill Manufacturing Co. v. Cassidy, 275 Ill. 462, 470
       (1916); Rhoads v. Chicago & Alton R.R. Co., 227 Ill. 328, 337 (1907); Law v.
       Grommes, 158 Ill. 492, 494 (1895); Cohens v. Virginia, 19 U.S. 264, 399 (1821)
       (stating that “[i]t is a maxim not to be disregarded, that general expressions, in
       every opinion, are to be taken in connection with the case in which those
       expressions are used. If they go beyond the case, they may be respected, but ought
       not to control the judgment in a subsequent suit when the very point is presented for
       decision”).

¶ 42       This court wrote in Pasquale that Corgan had “eliminated the
       contemporaneous injury or impact requirement for a direct victim’s recovery for
       emotional distress on a theory of negligence.” Pasquale, 166 Ill. 2d at 346. In fact,
       as previously stated, in Corgan, this court addressed whether a direct victim of
       negligent infliction of emotional distress had to allege that she suffered a physical
       symptom of her emotional distress. Corgan, 143 Ill. 2d at 308; see Brogan v.
       Mitchell International, Inc., 181 Ill. 2d 178, 184-85 (1998). This court held that she
       did not. Corgan, 143 Ill. 2d at 312. Corgan did not address the impact rule, and in
       fact there was no question in that case that the plaintiff had suffered a physical
       impact, as her claim rested on allegations of sexual relations with her therapist. Id.
       at 300. Thus, Corgan did not eliminate the need for a direct victim to allege and
       prove a contemporaneous physical injury or impact. Id. at 304, 312; Braun, 175 Ill.
       at 420; Kapoulas, 11 F.3d at 1382. Further, Pasquale concerned a cause of action
       based on strict liability, and its mischaracterization of Corgan’s holding was not a
       factor in the issue on appeal in Pasquale. Therefore, we find that this court’s
       statements in Pasquale that Corgan eliminated the contemporaneous injury or
       impact requirement for a direct victim’s recovery for emotional distress are obiter
       dictum and thus are not binding authority or precedent.

¶ 43      Now we turn to the allegations in plaintiff’s amended complaint to determine
       whether they are sufficient to state a cause of action for negligent infliction of
       emotional distress and thus survive a motion to dismiss under section 2-615 of the




                                                - 12 -
       Code. Plaintiff alleges that Chase and Safeguard had a duty to use reasonable care
       in training their employees, agents, and contractors and that Chase breached its
       duty by failing to properly train and supervise its employees, agents, and
       contractors regarding how to determine whether a property is abandoned and how
       to proceed when they are uncertain as to whether a property is abandoned. Also, it
       is alleged that defendants had a duty to use reasonable care not to interfere with
       plaintiff’s right and interest in the private use and enjoyment of her home and that
       defendants breached this duty of care by “(a) negligently determining that the
       property was ‘vacant,’ ” “(b) negligently entering a report that labeled the property
       as ‘first time vacancy,’ ” “(c) negligently employing a system that permits an
       ‘initial secure’ work order to be placed and carried out without first obtaining a
       court order finding that [p]laintiff had ‘abandoned’ the property as required by both
       735 ILCS 5/15-1603 1 and the Judgment of Foreclosure order,” “(d) negligently
       instructing *** Gonsalez and Centeno to carry out the ‘initial secure’ work order
       when it was clear that the property was neither vacant nor abandoned” and
       “(e) negligently carrying out the ‘initial secure’ work order even though it was clear
       that the property was neither vacant nor abandoned.” Finally, plaintiff sought
       damages for the injuries sustained by her as a direct and proximate result of
       defendants’ actions.

¶ 44       As previously determined, the pleading requirements for a direct victim’s
       recovery for negligently inflicted emotional distress include an allegation of a
       contemporaneous physical injury or impact. Therefore, since plaintiff did not
       include an allegation of a physical impact, as a direct victim, she failed to allege a
       cause of action for negligent infliction of emotional distress. Thus, we conclude
       that the negligent infliction of emotional distress count of her complaint was
       properly dismissed.


¶ 45                      B. Intentional Infliction of Emotional Distress

¶ 46       Initially, we respond to defendants’ argument that plaintiff has forfeited review
       of her intentional infliction of emotional distress claim. Defendants point out that

          1
            Section 15-1603 of the Code allows a court to shorten the redemption period if the
       court finds that the property has been abandoned. 735 ILCS 5/15-1603 (West 2014).




                                               - 13 -
       plaintiff’s November 4, 2015, petition for leave to appeal sought review of both her
       negligent infliction of emotional distress claim and intentional infliction of
       emotional distress claim. However, this court denied the petition in its entirety, and
       plaintiff filed a motion to reconsider on February 1, 2016. Defendants maintain
       that, because plaintiff solely referenced her negligent infliction of emotional
       distress claim and so limited her motion, she has forfeited further review of her
       intentional infliction of emotional distress claim. We disagree. In this court’s order
       dated February 23, 2016, plaintiff’s motion for reconsideration was allowed. The
       order of January 20, 2016, denying the petition for leave to appeal was vacated, and
       the petition for leave to appeal was allowed. Thus, the court allowed the petition in
       its entirety, and plaintiff has not forfeited review of her claim for intentional
       infliction of emotional distress. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015); Central Illinois
       Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 152 (2004).

¶ 47       We now address plaintiff’s contention that it was improper to grant summary
       judgment on her intentional infliction of emotional distress claim because there was
       a question of fact as to whether Gonsalez and Centeno’s conduct was extreme and
       outrageous.

¶ 48        Summary judgment is appropriate when there are no genuine issues of material
       fact and the moving party is entitled to judgment as a matter of law. 735 ILCS
       5/2-1005(c) (West 2014). Summary judgment is a drastic measure and should only
       be granted if the movant’s right to judgment is clear and free from doubt. Adams v.
       Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Where a reasonable person
       could draw divergent inferences from undisputed facts, summary judgment should
       be denied. Id. In determining the existence of a genuine issue of material fact,
       courts must consider the pleadings, depositions, admissions, exhibits, and
       affidavits on file in the case and must construe them strictly against the movant and
       liberally in favor of the opponent. Id. In appeals from summary judgment rulings,
       we conduct a de novo review. Standard Mutual Insurance Co. v. Lay, 2013 IL
       114617, ¶ 15 (citing Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154
       Ill. 2d 90, 102 (1992)).

¶ 49       In Illinois, the tort of intentional infliction of emotional distress was first
       recognized in Knierim v. Izzo, 22 Ill. 2d 73, 87 (1961), in which a widow was
       permitted to maintain such an action against the person who had killed her husband.




                                                 - 14 -
       It was not until 1976, however, that this court (relying on Restatement (Second) of
       Torts § 46 (1965)) outlined the requirements for the tort. Public Finance Corp. v.
       Davis, 66 Ill. 2d 85, 90 (1976).

¶ 50       First, the conduct involved must be truly extreme and outrageous. Second, the
       actor must either intend that his conduct inflict severe emotional distress or know
       that there is at least a high probability that his conduct will cause severe emotional
       distress. Third, the conduct must in fact cause severe emotional distress. McGrath
       v. Fahey, 126 Ill. 2d 78, 86 (1988) (citing Public Finance, 66 Ill. 2d at 90).

¶ 51       It is clear that the tort “does not extend to mere insults, indignities, threats,
       annoyances, petty oppressions, or other trivialities.” Restatement (Second) of Torts
       § 46 cmt. d, at 73 (1965); McGrath, 126 Ill. 2d at 86. “It has not been enough that
       the defendant has acted with an intent which is tortious or even criminal, or that he
       has intended to inflict emotional distress, or even that his conduct has been
       characterized by ‘malice,’ or a degree of aggravation which would entitle the
       plaintiff to punitive damages for another tort. Liability has been found only where
       the conduct has been so outrageous in character, and so extreme in degree, as to go
       beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
       intolerable in a civilized community.” Restatement (Second) of Torts § 46 cmt. d,
       at 73 (1965); Public Finance, 66 Ill. 2d at 90. “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 the severity.” Restatement (Second) of Torts § 46 cmt. j, at 77-78
       (1965); McGrath, 126 Ill. 2d at 86; Public Finance, 66 Ill. 2d at 90.

¶ 52       Several factors have been identified that should be considered in determining
       whether a defendant’s conduct may be deemed outrageous. Kolegas v. Heftel
       Broadcasting Corp., 154 Ill. 2d 1, 21 (1992). The extreme and outrageous nature of
       the conduct may arise from the defendant’s abuse of some position that gives him
       authority over the plaintiff or the power to affect the plaintiff’s interests. Id. (citing
       McGrath, 126 Ill. 2d at 86-87). A factor to be considered is also the reasonableness
       of a defendant’s belief that his objective is legitimate. McGrath, 126 Ill. 2d at 89.
       Another factor to be considered is the defendant’s awareness that the plaintiff is
       particularly susceptible to emotional distress. Kolegas, 154 Ill. 2d at 21 (citing
       McGrath, 126 Ill. 2d at 89-90). Those factors are to be considered in light of all of




                                                 - 15 -
       the facts and circumstances in a particular case, and the presence or absence of any
       of these factors is not necessarily critical to a cause of action for intentional
       infliction of emotional distress. McGrath, 126 Ill. 2d at 90. The outrageousness of a
       defendant’s conduct must be determined in view of all the facts and circumstances
       pled and proved in a particular case. Id.

¶ 53       Specifically, plaintiff argues that the conduct of Gonsalez and Centeno was
       extreme and outrageous because (a) breaking into someone’s locked home
       constitutes extreme and outrageous conduct and (b) there was no justification for
       the forcible break-in by those defendants.

¶ 54       Here, we find that the conduct of Gonsalez and Centeno did not rise to the level
       of extreme and outrageous. We observe that the record reveals that Gonsalez and
       Centeno conducted an investigation to determine whether the house was occupied.
       While there were signs that the house was not abandoned, such as the presence of
       the dumpster and a vehicle, Gonsalez inquired into the nature of the vehicle and
       was told that different people were parking there. Gonsalez did indeed find that the
       gas was turned off, boxes were piled on top of each other haphazardly and blocked
       the back door entrance to the property, and debris and garbage littered the interior.
       After 45 minutes of inspection, which included knocking on the door, observing the
       property, and talking with neighbors, Gonsalez received permission to proceed
       with the “initial secure” order. By removing one secondary lock on the premises,
       defendants were securing the property for entrance for repairs, not taking
       possession of the property for residential purposes.

¶ 55       We acknowledge that under Illinois law, the sanctity of the home and the
       inherent right to be free from intrusion are important principles of law. See, e.g., Ill.
       Const. 1970, art. I, § 6. However, we note that plaintiff was aware that her property
       was in foreclosure and was in the redemption period. Moreover, knowing the legal
       status of her right to possession, she ignored the knocking on her door after
       observing two men and a van in her driveway. Her actions prevented Gonsalez and
       Centeno from introducing themselves and explaining their presence on the
       property. Further, once Gonsalez and Centeno found the property was occupied,
       they left the home and waited for the police. The interaction was not extreme or
       outrageous, and therefore, we decline to accept plaintiff’s argument that




                                                - 16 -
       defendants’ entry into her home was sufficient, in and of itself, to be extreme and
       outrageous conduct.

¶ 56       We are not persuaded by plaintiff’s contentions to the contrary. Plaintiff
       contends that by entering her home, defendants were taking possession. Plaintiff
       claims that, absent a court order finding that she had abandoned her home,
       defendants had no right to break in and seek to take possession. Plaintiff argues
       that, under Illinois mortgage foreclosure law, “the redemption period shall end on
       the date 30 days after the date the judgment of foreclosure is entered if the court
       finds that the mortgaged real estate has been abandoned.” 735 ILCS
       5/15-1603(b)(4) (West 2014). She further argues that foreclosure law regarding the
       “right to possession” establishes that a mortgagee is not entitled to possession of a
       mortgagor’s home without a court order. 735 ILCS 5/15-1701 (West 2014). She
       maintains that, absent a court order granting Chase the right to enter the property,
       defendants had no right to enter her home.

¶ 57       We find plaintiff’s reliance on foreclosure law unconvincing. As noted by the
       appellate court, there is a substantial difference between the right to possession for
       residential purposes, which these statutes address, and the contractual right to enter
       to make repairs. Contrary to plaintiff’s argument that defendants had no legal
       justification for their entry into the property, plaintiff signed a note with the
       mortgage that contained a provision designated “protection of lender’s rights in the
       property,” which allowed Chase to enter the property to make repairs if plaintiff fell
       into default. “It is a rule universally recognized that a written contract is the highest
       evidence of the terms of an agreement between the parties to it, and it is the duty of
       every contracting party to learn and know its contents before he signs it.” Vargas v.
       Esquire, Inc., 166 F.2d 651, 654 (7th Cir. 1948). In the absence of fraud, which
       must be proved by clear and convincing evidence (Bundesen v. Lewis, 368 Ill. 623,
       636-37 (1938)), a man in possession of all his faculties who signs a contract cannot
       relieve himself from the obligations of the contract by saying he did not know or
       understand what it contained (Upton v. Tribilcock, 91 U.S. 45, 50 (1875)). A person
       is presumed to know those things that reasonable diligence on his part would bring
       to his attention. Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716, ¶ 14
       (recognizing that the act of signing legally signifies that the individual had an
       opportunity to become familiar with and comprehend the terms of the document he
       or she signed); Asset Exchange II, LLC v. First Choice Bank, 2011 IL App (1st)




                                                - 17 -
       103718, ¶ 43 (“One is under a duty to learn, or know, the contents of a written
       contract before he signs it, and is under a duty to determine the obligations which
       he undertakes by the execution of a written agreement.” (Internal quotation marks
       omitted.)); Vargas, 166 F.2d at 654.

¶ 58       Moreover, the judgment of foreclosure obtained by Chase stated that “[i]n order
       to protect and preserve the mortgaged real estate, it has or may also become
       necessary for [Chase] to pay fire and other hazard insurance premiums on the real
       estate or to make such repairs to the real estate as may reasonably be deemed
       necessary for the proper preservation thereof.” Therefore, we find that Chase had
       the right to enter the property to make reasonable repairs for the preservation of the
       property. Although plaintiff argues that the house was not in need of repairs, she
       does not explain how defendants were to know or determine that.

¶ 59       In addition, we note that Safeguard’s order instructed the subcontractors not to
       enter if the property was occupied and Gonsalez and Centeno undertook efforts
       attempting to determine the occupancy of the house for over 45 minutes.
       Furthermore, the evidence reveals that Gonsalez and Centeno were only instructed
       to change one secondary lock, which they attempted to do. We fail to see how
       removing one secondary lock to allow access to Chase for preservation services
       equates to taking possession of the property for residential purposes.

¶ 60       In sum, we cannot disagree with the appellate court that there may have been a
       better and more commonsense way to determine if the property was occupied.
       However, based upon this record in the context of mortgage foreclosure
       proceedings, it cannot be said that the entry, after which defendants left and never
       returned, is conduct so extreme and outrageous that it goes beyond all possible
       bounds of decency.

¶ 61      Therefore, since there is no question of fact as to whether the conduct of
       Gonsalez and Centeno could be deemed extreme and outrageous, summary
       judgment against plaintiff on her intentional infliction of emotional distress claim
       was proper. Our disposition renders unnecessary any discussion of the agency
       arguments raised by the parties. See, e.g., Standard Mutual Insurance, 2013 IL
       114617, ¶ 35.




                                               - 18 -
¶ 62                                   III. CONCLUSION

¶ 63       We conclude that the appellate court’s holding that plaintiff has no cause of
       action for negligent infliction of emotional distress is affirmed. The appellate
       court’s granting of summary judgment in favor of defendants with regard to
       plaintiff’s intentional infliction of emotional distress claim is also affirmed.


¶ 64      Appellate court judgment affirmed.

¶ 65      Cause remanded to the circuit court for further proceedings consistent with this
       opinion.


¶ 66      JUSTICE GARMAN, specially concurring:

¶ 67        I agree that under our long-standing precedents, the impact rule continues to
       apply to claims of negligent infliction of emotional distress (NIED). I write
       separately to note that the basis for this court’s holding in Corgan v. Muehling, 143
       Ill. 2d 296 (1991), upon which our opinion relies, was rejected, at least in part, by
       our decision in Clark v. Children’s Memorial Hospital, 2011 IL 108656, and to
       make a clear distinction between a claim of NIED and a claim of liability for
       negligence or other personal tort in which the act or omission of the defendant
       caused emotional distress for which damages may be recovered.

¶ 68       In Corgan, a former patient sued an unregistered psychologist for what she
       characterized in her count I as “PSYCHOLOGICAL MALPRACTICE” after he
       engaged in sexual intercourse with her “under the guise of therapy,” causing her
       severe psychological symptoms requiring extensive treatment. Corgan, 143 Ill. 2d
       at 300. Her count III alleged that defendant breached his duty to her by his
       “ ‘conscious indifference and reckless disregard’ ” for her well-being by repeatedly
       engaging in “ ‘sexual intercourse with her under the guise of therapy.’ ” Id. at 301.
       Thus, both counts I and III sounded in negligence, specifically, professional
       malpractice.

¶ 69       In his motion to dismiss, the defendant inaccurately characterized count I as a
       claim of NIED and count III as a claim of intentional infliction of emotional
       distress (IIED). Id. She responded that count III stated a claim for negligence, not




                                              - 19 -
       IIED. In response to defendant’s motion to dismiss both counts, the circuit court
       certified the two questions for interlocutory review, asking whether this court’s
       holding in Rickey v. Chicago Transit Authority, 98 Ill. 2d 546 (1983), barred her
       claims of emotional distress. Corgan, 143 Ill. 2d at 301-02.

¶ 70       Although the appellate court stated that count I was “ ‘in essence for
       negligence’ ” and that count II “was ‘basically an action for negligence’ ” (id. at
       302), the appellate court nevertheless treated both counts as claims of NIED. The
       appellate court concluded that Rickey was not applicable to her claims of NIED
       because she was a “direct victim” of the defendant’s alleged negligent conduct
       rather than a bystander. Id.

¶ 71       After allowing the defendant’s petition for leave to appeal, this court
       formulated the issue as whether “direct victims must set forth the pleading
       requirements established in Rickey when stating a cause of action for negligent
       infliction of emotional distress.” Id. It answered the question in the negative,
       distinguishing between direct victim NIED cases and bystander NIED cases, which
       require that the plaintiff be in the zone of danger. Id. at 304. After observing that
       “the zone-of-physical-danger rule is patently inapplicable to direct victims” (id. at
       305), this court also rejected any additional requirement that the NIED plaintiff
       plead and prove that the emotional distress caused by the defendant’s negligence
       caused physical symptoms (id. at 312).

¶ 72        In reaching this holding, this court discussed Siemieniec v. Lutheran General
       Hospital, 117 Ill. 2d 230 (1987), in which the parents of a child born with
       hemophilia sued for wrongful birth and sought damages, including compensation
       for their resulting emotional distress. In that case, this court’s analysis treated the
       parents as if they were “bystanders who were witnessing the effects of hemophilia”
       (Corgan, 143 Ill. 2d at 305) and said that they failed to state a claim for NIED
       because they failed to allege that they were in the zone of danger. Siemieniec, 117
       Ill. 2d at 261-62. Thus, “the Siemieniec majority’s mere failure to address the
       direct-victim/bystander distinction [did] not amount to expansion of the
       zone-of-physical-danger rule to include direct victims.” Corgan, 143 Ill. 2d at 305.

¶ 73       In Clark, this court expressly overruled Siemieniec, not on the basis of the
       distinction between a direct victim and a bystander, but on the basis of a distinction




                                               - 20 -
       between the tort of NIED and the tort of negligence where the plaintiff seeks
       damages for emotional distress.

¶ 74       The parents in Clark claimed wrongful birth due to negligent genetic testing
       and counseling, alleging that they would not have conceived another child had the
       defendants provided them with accurate information about the risk of giving birth
       to a second child with a serious genetic abnormality. Clark, 2011 IL 108656, ¶ 5.
       The damages sought in the wrongful birth count included “the extraordinary costs
       of caring for [the child] during his minority” (id. ¶ 16) but not damages for the
       emotional distress they experienced as a result of the burden of raising a second
       severely disabled child. To recover damages for the emotional distress caused by
       the conduct of the defendants, they pleaded a separate count of NIED. Id. ¶ 17.

¶ 75        The appellate court reversed the circuit court’s dismissal of the parents’ NIED
       count, stating that “[i]n contrast to Siemieniec, plaintiffs in the present case have
       pleaded they are subject to physical pain, exhaustion, and emotional distress from
       caring for their son ***; they are subject to ‘hitting, biting, and physical trauma’
       while caring for [him]; and they are thus within the zone-of-physical-danger caused
       by defendants’ alleged negligence.” Clark v. Children’s Memorial Hospital, 391
       Ill. App. 3d 321, 332 (2009). Thus, the appellate court held, the parents “adequately
       pleaded that they fall within the zone-of-physical-danger rule and therefore have
       stated a cause of action for negligent infliction of emotional distress.” Id.

¶ 76        The defendants argued before this court that the appellate court’s ruling was in
       conflict with Siemieniec. Clark, 2011 IL 108656, ¶ 96. We distinguished between a
       claim of NIED and a claim of professional negligence in which compensatory
       damages include compensation for emotional distress, explaining that “[w]here the
       claim of emotional distress is freestanding and not anchored to any other tort
       against the plaintiff, courts have applied special restrictions *** because of
       concerns regarding the possibility of fraudulent claims or frivolous litigation.” Id.
       ¶ 106 (citing Rickey, 98 Ill. 2d at 555). Such special restrictions include the
       requirement of a contemporaneous physical impact or injury when the plaintiff
       claims to be a direct victim of NIED (supra ¶¶ 31, 38) and the requirement that the
       plaintiff be in the zone of physical danger in a bystander NIED claim (Rickey, 98
       Ill. 2d at 550).




                                              - 21 -
¶ 77       We acknowledged contributing to this misunderstanding in Siemieniec when
       we viewed damages sought for emotional distress in a professional negligence
       claim as a claim of NIED. Clark, 2011 IL 108656, ¶ 109. Further, we noted that:

              “[t]he nature of the error [of denying recovery of damages for emotional
          distress] is evident when one considers that damages for emotional distress are
          available to prevailing plaintiffs in cases involving other personal torts such as
          defamation (see, e.g., Slovinski v. Elliott, 237 Ill. 2d 51 (2010)); conversion
          (see, e.g., Cruthis v. Firstar Bank, N.A., 354 Ill. App. 3d 1122 (2004)); and
          misappropriation of identity (see, e.g., Petty v. Chrysler Corp., 343 Ill. App. 3d
          815 (2003)). See also 2 Dan B. Dobbs, Law of Remedies § 8.2, at 413-14 (2d
          ed. 1993) (“When it comes to mental or emotional distress, the usual rule allows
          free recovery of emotional distress damages to any victim of a personal tort.”).
          Id. ¶ 111.

¶ 78       Thus, we expressly overruled Siemieniec, stating that the zone-of-danger rule
       “applies only in cases where the plaintiff’s theory of liability is the negligent
       infliction of emotional distress. It does not apply where *** a tort has already been
       committed against the plaintiffs and they assert emotional distress as an element of
       damages for that tort.” Id. ¶ 113.

¶ 79       Like Siemieniec, Corgan was not really an NIED case. The plaintiff pleaded
       negligence, specifically professional malpractice, which resulted in emotional
       distress. Corgan, 143 Ill. 2d at 300. Indeed, Chief Justice Miller specially
       concurred in Corgan, making just this point. Id. at 315 (Miller, C.J., specially
       concurring). He would have treated the case as an ordinary negligence/malpractice
       case, which is where the court eventually arrived in Clark, 20 years later. He noted
       that the duty at issue was the duty imposed by the therapist-patient relationship. Id.
       at 316. Notably, the majority in Corgan also concluded that the defendant, as a
       treating psychologist, owed a duty to the plaintiff and that he breached that duty by
       having sexual relations with her during the course of treatment. Id. at 307 (majority
       opinion). Such a breach of such a duty is grounds for finding negligence—even if
       damages are claimed for emotional distress.

¶ 80      In light of our reasoning in Clark and the majority opinion in the present case, it
       should be clear that when a plaintiff claims NIED, she must allege a
       contemporaneous physical impact or injury as a direct result of the defendant’s



                                               - 22 -
       conduct or else that she was a bystander in the zone of physical danger. If, however,
       she states a claim for a tort other than NIED, no such additional pleading
       requirement applies.

¶ 81       In the present case, while the plaintiff cannot state a claim for NIED in the
       absence of a contemporaneous physical impact or injury directly resulting from the
       defendants’ entry into her home, her other claims are still pending in the circuit
       court. Whether any of these claims succeeds, whether damages for emotional
       distress are available for the particular claim, and whether she proves her
       entitlement to such damages remain to be seen.




                                              - 23 -
