                       Illinois Official Reports

                              Appellate Court



                  Borcia v. Hatyina, 2015 IL App (2d) 140559



Appellate Court   MARGARET BORCIA, as Special Administrator of the Estate of
Caption           Antonio Borcia, Deceased; ERIN BORCIA, a Minor, Through Her
                  Mother and Next Friend, Margaret Borcia; JOSEPH BORCIA, a
                  Minor, Through His Mother and Next Friend, Margaret Borcia;
                  KALEIGH BORCIA; and JAMES BORCIA, Plaintiffs-Appellants, v.
                  DAVID HATYINA, SPRING LAKE MARINA, LTD., and FOX
                  WATERWAY AGENCY, Defendants (Renee Melbourn, Defendant-
                  Appellee).



District & No.    Second District
                  Docket No. 2-14-0559



Filed             April 14, 2015



Decision Under    Appeal from the Circuit Court of Lake County, No. 12-L-961; the
Review            Hon. James R. Murphy, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        J. Matthew Dudley, of Dudley & Lake, LLC, and Mark J. Vogg, of
Appeal            Law Offices of Mark J. Vogg, both of Libertyville, for appellants.

                  Guy M. Conti and Mark B. Ruda, both of Condon & Cook, LLC, of
                  Chicago, for appellee.
     Panel                    JUSTICE HUTCHINSON delivered the judgment of the court, with
                              opinion.
                              Justices Hudson and Birkett concurred in the judgment and opinion.


                                               OPINION

¶1         Plaintiffs, Margaret Borcia, as special administrator of the estate of Antonio Borcia,
       deceased, Erin and Joseph Borcia, minors, through their mother and next friend, Margaret
       Borcia, Kaeleigh Borcia, and James Borcia, filed personal-injury and wrongful-death actions
       against defendants, David Hatyina, Renee Melbourn, Spring Lake Marina, Ltd., and Fox
       Waterway Agency, for damages they sustained in a boating accident, which claimed the life
       of 10-year-old Antonio Borcia. Plaintiffs appeal from the trial court’s dismissal with
       prejudice of their second amended complaint against Melbourn. The trial court found that
       plaintiffs failed to state claims for wrongful death based on an “in-concert” theory of liability
       and the negligent infliction of emotional distress, and it then dismissed the counts against
       Melbourn pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735
       ILCS 5/2-615 (West 2012)). Melbourn is the only defendant involved in this appeal. For the
       following reasons, we reverse and remand for further proceedings.

¶2                                         I. BACKGROUND
¶3         On December 13, 2012, plaintiffs filed a 10-count complaint against Hatyina and
       Melbourn. This appeal concerns counts VI and VII, directed against Melbourn. Count VI
       attempted to allege a claim for wrongful death based on an in-concert theory of liability.
       Count VII attempted to allege a claim for negligent infliction of emotional distress. As
       amended, plaintiffs’ complaint reflected the following allegations, which are taken as true for
       purposes of this appeal (see Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004)).
¶4         On July 28, 2012, Hatyina was operating a 29-foot cigarette boat named “Purple Haze”
       on Petite Lake in Lake Villa; Melbourn was a passenger in the boat. James Borcia was
       operating a pontoon boat, and Antonio and Erin were riding in inflatable tubes being towed
       by the pontoon boat. While being towed, Antonio fell off the tube and was floating on the
       water. Antonio was wearing a red personal floatation device and waving both of his arms
       above his head so others could see him in the water.
¶5         During this time, Hatyina had been consuming alcohol and cocaine. Hatyina was
       impaired by the alcohol and cocaine and was operating the boat at speeds in excess of 40
       miles per hour. Hatyina struck Antonio with the boat. Antonio suffered severe injuries that
       resulted in his death on July 28.
¶6         Melbourn resided with and had a romantic relationship with Hatyina for several years.
       Melbourn knew that Hatyina had a history of drug and alcohol abuse and dependency. On or
       prior to July 28, 2012, Melbourn contributed money to purchase alcohol and cocaine that she
       and Hatyina would consume.
¶7         On July 28, 2012, Melbourn, after contributing money to purchase and purchasing
       cocaine, provided Hatyina with cocaine while they were both occupying the cigarette boat.
       While on the boat, Melbourn consumed cocaine and observed Hatyina consume cocaine.

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       Melbourn provided Hatyina with numerous alcoholic beverages and consumed alcohol with
       Hatyina while they were both on the boat. Prior to the boating accident, Melbourn observed
       Hatyina become obviously impaired by his consumption of alcohol and cocaine, as shown by
       his slurred speech, bloodshot eyes, and erratic behavior. Melbourn continued to provide
       alcohol and cocaine to Hatyina while he was operating the boat. Melbourn knew that
       providing Hatyina with and encouraging his consumption of alcohol and cocaine would
       result in his intoxication and further impair his ability to safely operate the boat.
¶8         Plaintiffs further alleged that Melbourn had a duty to exercise reasonable care so as to not
       proximately cause injury to other persons who were also using the lake.
¶9         Plaintiffs alleged that Melbourn, after providing both alcohol and cocaine to Hatyina in
       amounts that made him obviously impaired, verbally encouraged Hatyina to drive the boat at
       speeds in excess of 40 miles per hour and in an otherwise reckless and dangerous manner
       while on the lake near other boaters, swimmers, and people being pulled on tubes.
¶ 10       With respect to count VI, plaintiffs alleged that Melbourn breached her duty and was
       negligent in one or more of the following respects:
                    “Violated section 5-16(E) [of the Boat Registration and Safety Act (625 ILCS
                45/5-16(E) (West 2012))] in that she verbally encouraged the unsafe operation of the
                boat at speeds in excess of 40 miles per hour by Hatyina while he was under the
                influence of alcohol, cocaine, or a combination;
                    Substantially assisted and/or encouraged *** Hatyina to operate said watercraft
                under the influence of alcohol, cocaine, or a combination thereof, when she knew or
                should have known consumption of alcohol and/or cocaine while operating said
                watercraft was negligent and careless, so as to compromise the safety of other
                occupants of the ‘Chain of Lakes’; and
                    Acted in concert with *** Hatyina in that she actively participated in his
                consumption of alcohol and cocaine which caused him to become intoxicated while
                operating the aforementioned watercraft while impaired so as to compromise the
                safety of others on the ‘Chain of Lakes.’ ”
¶ 11       With respect to count VII, related to Erin, plaintiffs alleged that Antonio and Erin were
       riding on the same inflatable tube. When Antonio fell off of the tube, Erin was in close
       proximity to him. She observed Hatyina strike and kill her brother with the boat. Erin was
       less than 50 feet from the collision and in the direct path of the boat, and she feared that the
       boat was going to hit her too.
¶ 12       Plaintiffs alleged that Melbourn created an unreasonable risk of causing bodily harm or
       emotional trauma to Erin. As a direct and proximate result of Melbourn’s negligence, Erin
       suffered physical injury and emotional distress, which resulted in the need for continued
       medical and psychological treatment and counseling.
¶ 13       On October 3, 2013, Melbourn filed a motion to dismiss counts VI and VII pursuant to
       section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)). The trial court granted the
       motion. The trial court stated, “[t]he common purchase of [cocaine] and alcohol and
       consuming those on the boat and acting in concert, right now there’s insufficient allegations
       of fact to allege that and right now there appears to be no duty to decedent under the cases. I
       think you need to bring those allegations as much as you can within the cases cited ***
       where the encouragement is not just tantamount to encouraging you to go faster by the


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       purchase of drugs and alcohol and co-consuming those with the defendant *** but there has
       to be something additional. I think that’s what those cases say ***.”
¶ 14       On January 29, 2014, plaintiffs filed a second amended complaint, and, in count VI,
       attempted to assert a claim under the Wrongful Death Act (740 ILCS 180/1 et seq. (West
       2012)), based on a duty imposed by section 876 of the Restatement (Second) of Torts
       (Restatement (Second) of Torts § 876 (1979)). In count VII, plaintiffs attempted to renew the
       claim for negligent infliction of emotional distress, based on Erin’s presence in the zone of
       physical danger.
¶ 15       On February 19, 2014, Melbourn filed a motion to dismiss pursuant to section 2-615 of
       the Code. The parties fully briefed the issue, and the trial court conducted a hearing on April
       25, 2014.
¶ 16       On May 8, 2014, the trial court granted Melbourn’s motion to dismiss, with prejudice. As
       to count VI, the court found that plaintiffs had “alleged insufficient facts to establish
       ‘substantial assistance or encouragement’ for establishing a duty by Melbourn to attach under
       section 876 of the Restatement (Second) of Torts.” The trial court further found that the only
       facts plaintiffs alleged were that “defendant Melbourn provided and consumed alcohol and
       drugs with defendant Hatyina.” The trial court determined that there was no section 876
       liability on the facts alleged.
¶ 17       The trial court also dismissed count VII on the basis that, “[i]f there is no duty on Count
       VI, there is also no duty on Count VII.” The trial court did not address Melbourn’s other
       argument, that plaintiffs did not plead sufficient facts to place Erin in the “zone of physical
       danger.”
¶ 18       Plaintiffs filed a timely notice of appeal.

¶ 19                                            II. ANALYSIS
¶ 20        As noted above, the trial court granted Melbourn’s section 2-615 motion to dismiss and
       dismissed counts VI and VII of plaintiffs’ complaint with prejudice. A motion to dismiss
       brought pursuant to section 2-615 attacks the legal sufficiency of the complaint. Vitro v.
       Mihelcic, 209 Ill. 2d 76, 81 (2004). When ruling on such a motion, the court must accept as
       true all well-pleaded facts in the complaint, as well as any reasonable inferences that may
       arise from them. Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004). The merits of
       the case, at this point, are not yet considered. See Kilburg v. Mohiuddin, 2013 IL App (1st)
       113408, ¶ 19. However, a court cannot accept as true mere conclusions unsupported by
       specific facts. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). The
       court is to construe the complaint liberally and should not dismiss it unless it is clearly
       apparent from the pleadings that “no set of facts can be proved which would entitle ***
       plaintiff[s] to recover.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305 (2008). The
       critical inquiry is whether the allegations of the complaint, when construed in the light most
       favorable to the plaintiff, are sufficient to establish a cause of action on which relief may be
       granted. Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 61. We review de novo an
       order granting a section 2-615 motion to dismiss. Solaia Technology, LLC v. Specialty
       Publishing Co., 221 Ill. 2d 558, 579 (2006).
¶ 21        Illinois is a fact-pleading state. Time Savers, Inc. v. LaSalle Bank, N.A., 371 Ill. App. 3d
       759, 767 (2007). This means that, although pleadings are to be liberally construed and formal


                                                   -4-
       or technical allegations are not necessary, a complaint must, nevertheless, contain facts to
       state a cause of action. Purmal v. Robert N. Wadington & Associates, 354 Ill. App. 3d 715,
       720 (2004). The complaint is deficient when it fails to allege the facts necessary for a
       plaintiff to recover. See Doe v. Chicago Board of Education, 339 Ill. App. 3d 848, 853
       (2003). “But it is a rule of pleading long established, that a pleader is not required to set out
       his evidence. To the contrary, only the ultimate facts to be proved should be alleged and not
       the evidentiary facts tending to prove such ultimate facts.” Board of Education of the
       Kankakee School District No. III v. Kankakee Federation of Teachers Local No. 886, 46 Ill. 2d
       439, 446-47 (1970).
¶ 22        With these principles in mind, we will review the trial court’s section 2-615 dismissal of
       count VI and count VII of plaintiffs’ second amended complaint.
¶ 23        Count VI of plaintiffs’ complaint sought relief based on an in-concert theory of liability.
       Section 876 of the Restatement (Second) of Torts provides a basis upon which a party, who
       is injured from the tortious conduct of a second party, may seek relief in the event that a duty
       from a third party is found to exist. See Restatement (Second) of Torts § 876 cmt. d (1979).
       This is a recognized cause of action in Illinois. See Simmons v. Homatas, 236 Ill. 2d 459
       (2010); Sanke v. Bechina, 216 Ill. App. 3d 962 (1991).
¶ 24        The ultimate facts required to be pleaded for a general cause of action based on
       common-law negligence are the existence of a duty owed by the defendant to the plaintiff,
       the breach of that duty, and the injury proximately caused by that breach. Ward v. K mart
       Corp., 136 Ill. 2d 132, 140 (1990). Unless a duty is owed, there can be no recovery in tort for
       negligence. American National Bank & Trust Co. of Chicago v. National Advertising Co., 149
       Ill. 2d 14, 26 (1992). Whether a duty exists is a question of law for the court to decide and is
       reviewed de novo. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010).
¶ 25        For a cause of action based on an in-concert theory of liability, section 876 of the
       Restatement (Second) of Torts provides in pertinent part:
                    “For harm resulting to a third person from the tortious conduct of another, one is
                subject to liability if he
                    ***
                    (b) knows that the other’s conduct constitutes a breach of duty and gives
                substantial assistance or encouragement to the other so to conduct himself[.]”
                Restatement (Second) of Torts § 876 (1979).
¶ 26        Section 876 of the Restatement (Second) of Torts becomes operative when “harm
       result[s] *** from the tortious conduct of another.” See Restatement (Second) of Torts § 876
       cmt. d (1979). Comment d states:
                “Advice or encouragement to act operates as a moral support to a tortfeasor and if the
                act encouraged is known to be tortious it has the same effect upon the liability of the
                adviser as participation or physical assistance. If the encouragement or assistance is a
                substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor
                and is responsible for the consequences of the other’s act. *** [The rule] likewise
                applies to a person who knowingly gives substantial aid to another who, as he knows,
                intends to do a tortious act.”
¶ 27        In the present case, plaintiffs contend that the trial court erred when it dismissed count VI
       after finding that they had not alleged sufficient facts to trigger liability under section 876 of

                                                    -5-
       the Restatement (Second) of Torts. Plaintiffs’ complaint alleged that Melbourn assisted and
       encouraged Hatyina in operating his boat while intoxicated. Plaintiffs argue that this
       allegation alone was sufficient to withstand a dismissal motion; however, plaintiffs argue that
       they presented additional allegations to ensure that their pleadings were sufficient. Plaintiffs
       further alleged that Melbourn bought the alcohol and cocaine used by Hatyina, consumed
       alcohol and cocaine with Hatyina on the boat and while Hatyina was driving the boat, and
       encouraged Hatyina to continue to operate the boat, at an unsafe speed, despite his overt
       signs of impairment, including slurred speech and bloodshot eyes.
¶ 28       Melbourn counters that the only well-pleaded fact plaintiffs alleged in their attempt to
       impose a duty was that she provided intoxicating substances to Hatyina, which cannot serve
       as a basis of liability. Melbourn asserts that the other allegations are either surplusage or
       conclusions, which cannot be considered, and that plaintiffs thus failed to allege any specific
       facts that trigger liability under section 876 of the Restatement (Second) of Torts.
¶ 29       Both parties discuss a number of cases dealing with in-concert liability under section 876
       of the Restatement (Second) of Torts, but two are particularly instructive: one from our
       supreme court, Simmons v. Homatas, 236 Ill. 2d 459 (2010), and one from our appellate
       district, Sanke v. Bechina, 216 Ill. App. 3d 962 (1991).
¶ 30       In Simmons, the decedents were fatally injured due to intoxicated driving by Homatas,
       who had been a patron at a strip club that was not a dramshop but allowed customers to
       consume alcohol while on the premises. Simmons, 236 Ill. 2d at 461. The plaintiffs filed a
       cause of action alleging that the operator of the club, On Stage, negligently encouraged
       Homatas to consume alcoholic beverages until he became intoxicated and then required him
       to drive off the premises, causing the collision that killed the plaintiffs’ decedents. Id. The
       plaintiffs further alleged that the club “knew or should have known” that Homatas was
       intoxicated and leaving the premises by driving a vehicle in that inebriated state. Id. at 465.
¶ 31       The supreme court determined that On Stage could be held liable to the plaintiffs, not as a
       result of any provision of alcohol, but as a result of the encouragement of or assistance in
       tortious conduct. A duty toward the plaintiffs’ decedents arose because On Stage “took on
       the burden of determining whether Homatas was dangerously intoxicated when club
       employees discovered him vomiting in the restroom, a likely result of his intoxication. On
       Stage, on its own initiative, made this determination and expelled Homatas from the club.”
       Id. at 475. The employees had told the valet service to bring Homatas’s car to the front door.
       When the car arrived, the employees opened the door and told Homatas to leave. Our
       supreme court found that the plaintiffs’ complaint sufficiently stated a cause of action for
       common-law negligence under section 876 of the Restatement (Second) of Torts. Id. at 478.
       The court stated that “On Stage acquired a duty not to encourage and assist Homatas in the
       tortious conduct of driving while intoxicated” and “that the Dramshop Act does not preempt
       plaintiffs’ common law claims in this case, and does not preclude imposing a duty of care on
       On Stage.” Id. at 475.
¶ 32       In Sanke, the parents of a passenger killed in a car accident sued the driver and another
       passenger under negligent-driving and concert-of-action theories respectively. Sanke, 216 Ill.
       App. 3d at 963. In the front seat were the driver and a passenger; in the backseat were the
       decedent and another passenger. The plaintiffs asserted that the defendant (front seat)
       passenger was a contributing tortfeasor whose encouragement of the negligent driving
       constituted substantial assistance and was a proximate cause of their daughter’s death. The

                                                  -6-
       trial court dismissed the complaint against the passenger for failure to state a cause of action,
       holding that liability for the negligent act of a driver did not attach against a person other
       than the driver, unless that person was the vehicle’s owner or had the right to control the
       vehicle. In reversing and remanding, this court held that the passenger could be held liable,
       not under a duty to control the driver’s actions, but under a duty to control his own behavior.
       We found that the facts of the case fell squarely within the definition of joint concerted
       tortious activity as defined under section 876 of the Restatement (Second) of Torts. We
       concluded that the determination of whether the passenger’s conduct constituted substantial
       encouragement was a jury question. Id. at 971-72.
¶ 33        In both Simmons and Sanke, the pleadings alleged affirmative conduct on the defendant’s
       part that amounted to an assertion of undetermined “substantial assistance or encouragement”
       of another person, which increased the risk of harm to that person and to others. In the
       present case, therefore, we consider whether, taken as true, plaintiffs’ allegations, as well as
       any reasonable inferences that arise from them (Doe, 213 Ill. 2d at 28), construed in the light
       most favorable to plaintiffs (Sheffler, 2011 IL 110166, ¶ 61), are sufficient to establish a
       cause of action for in-concert liability under section 876 of the Restatement (Second) of
       Torts.
¶ 34        We conclude that plaintiffs have sufficiently pleaded a cause of action for in-concert
       liability under section 876 of the Restatement (Second) of Torts. Plaintiffs’ complaint alleged
       that Hatyina and Melbourn were in Hatyina’s boat on July 28, 2012; we may infer that no
       others were present in the boat to report on the specific interactions between them. Plaintiffs’
       complaint alleged that Hatyina and Melbourn were consuming alcoholic beverages and
       cocaine and that Hatyina became obviously impaired. Plaintiffs’ complaint alleged that
       Hatyina and Melbourn went for a boat ride, and Hatyina was operating the craft. Pursuant to
       section 2-615 of the Code, we may reasonably infer that, in addition to Hatyina’s boat, there
       were other watercraft on the lake, including a pontoon boat that James was operating. The
       pleadings reflect, and we may infer, that other watercraft, swimmers, and people using
       equipment were occupying and using the lake for their enjoyment. Hatyina’s boat reached
       speeds in excess of 40 miles per hour. Given Hatyina’s degree of intoxication and
       impairment, we may infer that the speed and conditions under which he was operating the
       boat were unsafe for them and any other individual on the lake at that time. Plaintiffs alleged
       that Melbourn encouraged Hatyina’s continued conduct of operating the boat at an unsafe
       speed in his significantly impaired state. We may infer that Melbourn’s encouragement
       served as an affirmative act, leading Hatyina to continue operating the boat in an unsafe
       manner. Plaintiffs pleaded that Melbourn owed them a duty to protect them at the lake from
       Hatyina’s actions when she knew or should have known of his impairment and of his
       decision to operate the boat at an unsafe speed. Through the pleadings and the reasonable
       inferences therefrom, plaintiffs have sufficiently pleaded allegations reflecting that Melbourn
       was a contributing tortfeasor whose encouragement of Hatyina’s negligent conduct in
       operating the boat constituted substantial assistance and was a proximate cause of Antonio’s
       death. Accordingly, the trial court erred when it found otherwise.
¶ 35        Melbourn relies on Charles v. Seigfried, 165 Ill. 2d 482 (1995), in support of her
       argument that liability should be precluded for injuries arising from another’s intoxication.
       Melbourn’s reliance on Charles is misplaced; we need not present a discussion of its
       inapplicability, as the Simmons court has previously done so. See Simmons, 236 Ill. 2d at


                                                   -7-
       467-73. As the Simmons court expressed, “[a]lthough one does not have a duty to prevent the
       criminal acts of a third party, one does have a duty to refrain from assisting and encouraging
       such tortious conduct.” Id. at 476. We decline to depart from the rationale and holding of
       Simmons.
¶ 36       Melbourn argues that plaintiffs failed to allege any specific facts to trigger liability.
       However, unlike a complaint for common-law fraud, which “must allege, with specificity
       and particularity, facts from which fraud is the necessary or probable inference, including
       what misrepresentations were made, when they were made, who made the misrepresentations
       and to whom they were made” (Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496-97 (1996)),
       there is no such specificity requirement for the cause of action presented here.
¶ 37       Rather, the purpose of pleadings is to present, define, and narrow the issues and limit the
       proof needed at trial. People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 307
       (1981). Pleadings are intended not to erect barriers to a trial on the merits but instead to
       remove them and facilitate the trial. Id. The object of pleadings is to produce an issue
       asserted by one side and denied by the other so that a trial can determine the actual truth. Id.
       at 307-08 (citing Fleshner v. Copeland, 13 Ill. 2d 72, 77 (1958)). In determining whether a
       cause of action has been stated, we must consider the whole complaint, rather than taking a
       myopic view of a disconnected part. Stenwall v. Bergstrom, 398 Ill. 377, 383 (1947).
¶ 38       The degree of specificity required to sufficiently plead a cause of action in any case is
       difficult to determine and is dependent upon the individual circumstances of each case. For
       example, in Simmons, there were a number of employees at the club who observed
       Homatas’s state of impairment, and then a number of employees who assisted Homatas in
       retrieving his vehicle, placing him in the driver’s seat, and directing him to drive. See
       Simmons, 236 Ill. 2d at 475-78. In Sanke, there were four individuals in one vehicle: Sanke
       (in the backseat), Schwartz (driving), Bechina (in the front passenger seat), and another
       individual (in the backseat with Sanke). In both Simmons and Sanke, there were various
       witnesses who observed, heard, or were otherwise present when the defendants were
       allegedly acting in concert with the tortfeasors. In the present case, there were only two
       individuals in the boat that killed Antonio Borcia: Melbourn and Hatyina, and no other
       known sensory witness during the relevant time period. Because in Simmons and Sanke there
       were more individuals who witnessed, participated in, or survived the accidents, there were
       more opportunities to obtain more specific factual allegations than in the present case.
       Plaintiffs in the present case should not be foreclosed from bringing a cause of action based
       on an in-concert theory of liability against Melbourn due to a lack of sensory witnesses other
       than the two individuals in the boat that killed Antonio. To hold otherwise would be contrary
       to justice and the purpose of section 2-615 of the Code. See Fahner, 88 Ill. 2d at 307.
¶ 39       Although Melbourn characterizes plaintiffs’ allegations as “conclusions,” it is clear that
       most are presented as inferences from the pleaded facts. Black’s Law Dictionary defines
       “inference” as “[a] conclusion reached by considering other facts and deducing a logical
       consequence from them.” Black’s Law Dictionary 793 (8th ed. 2004). Black’s Law
       Dictionary defines a “legal conclusion” as “[a] statement that expresses a legal duty or result
       but omits the facts creating or supporting the duty or result.” Id. at 912. Therefore, despite
       Melbourn’s assertion that the only well-pleaded fact was that she provided intoxicating
       substances to Hatyina, plaintiffs presented allegations with proper inferences sufficient to
       survive a section 2-615 dismissal motion. Plaintiffs will still bear the burden of proof with

                                                  -8-
       respect to the elements of their claim (see 740 ILCS 180/0.01 et seq. (West 2012)); our
       holding today recognizes only the sufficiency of plaintiffs’ allegations vis-à-vis the
       in-concert theory of liability under section 876 of the Restatement (Second) of Torts.
¶ 40       In so holding, we recognize, as our supreme court did in Simmons, that the provision of
       intoxicating substances to another does not, in and of itself, establish in-concert liability. See
       Simmons, 236 Ill. 2d at 471-73. We also recognize, as we did in Sanke, that the assistance or
       participation by a defendant might be so slight that the defendant is not ultimately liable for
       the act of the other. See Sanke, 216 Ill. App. 3d at 965-66. However, a section 2-615 motion
       does not require plaintiffs to prove their case at this juncture, and plaintiffs’ allegations are
       sufficient to show that liability might attach. Thus, we need not, and should not, decide at this
       stage of the litigation whether any inaction (such as failing to warn Hatyina or plaintiffs) or
       action (such as telling Hatyina to stay parked in the marina) breached a duty.
¶ 41       With respect to count VII, plaintiffs contend that the trial court erred when it granted
       Melbourn’s motion to dismiss. Plaintiffs argue that they pleaded sufficient facts regarding
       Erin’s presence in the zone of danger to survive dismissal. We agree.
¶ 42       Having determined that plaintiffs’ complaint sufficiently alleged that liability might
       attach to Melbourn, we need review only whether the remaining allegations of count VII
       state a cause of action for negligent infliction of emotional distress pertaining to Erin.
¶ 43       Negligent infliction of emotional distress is a recognized cause of action in Illinois. See
       Seitz v. Vogler, 289 Ill. App. 3d 1029 (1997). To state a cause of action for negligent
       infliction of emotional distress, a plaintiff must allege facts establishing that she suffered a
       direct impact that caused emotional distress (see Corgan v. Muehling, 143 Ill. 2d 296, 312
       (1991)) 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 Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 555 (1983)). To have been
       within the “zone of physical danger,” the plaintiff 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.
¶ 44       “Basically, under [the zone-of-physical-danger rule] a bystander 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. This 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. The bystander, [in addition], must show physical injury or illness as a result
       of the emotional distress caused by the defendant’s negligence.” Id.; see also Seitz, 289 Ill.
       App. 3d at 1042 (holding that the plaintiff sufficiently pleaded a cause of action for negligent
       infliction of emotional distress; in a boating accident she was both a direct victim (who was
       physically injured) and a bystander (with respect to the death of her husband and the injury
       and threat of injury to her children)).
¶ 45       The pleadings allege that Erin was a bystander to, not a direct victim of, Melbourn’s
       alleged negligence. Plaintiffs’ complaint alleged that Melbourn’s conduct of encouraging
       Hatyina to operate the boat at unsafe speeds while in a severely intoxicated state caused Erin
       to be in a zone of physical danger during the accident wherein she reasonably feared for her
       own safety, given the proximity to her brother on the lake and right after witnessing

                                                   -9-
       Hatyina’s boat strike and kill her brother. Plaintiffs’ complaint also alleged that, by being in
       the zone of physical danger, Erin suffered physical injury and emotional distress, which
       resulted in the need for continued medical and psychological treatment and counseling.
¶ 46       Again, the question is whether plaintiffs adequately pleaded a cause of action for
       negligent infliction of emotional distress as a bystander. Under the above principles, we find
       that they did. Accordingly, we hold that the trial court erred when it dismissed count VII of
       plaintiffs’ complaint.

¶ 47                                     III. CONCLUSION
¶ 48      For the reasons stated, we reverse the judgment of the circuit court of Lake County and
       remand for further proceedings consistent with this opinion.

¶ 49      Reversed and remanded.




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