2015 IL App (2d) 140559 

No. 2-14-0559 

Opinion filed April 14, 2015 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

MARGARET BORCIA, as Special ) Appeal from the Circuit Court 

Administrator of the Estate of Antonio ) of Lake County. 

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. ) No. 12-L-961 

) 

DAVID HATYINA, SPRING LAKE ) 

MARINA, LTD., and FOX WATERWAY ) 

AGENCY, ) 

) 

Defendants ) Honorable 

) James R. Murphy, 

(Renee Melbourn, Defendant-Appellee). ) Judge, Presiding. 

______________________________________________________________________________ 

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 
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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 
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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. 

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. 
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¶ 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 
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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 purchase of drugs and alcohol and coconsuming 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 
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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. PoohBah 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 
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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 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 commonlaw negligence are the existence of a duty owed by the defendant to the plaintiff, the breach of 
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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.” 
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¶ 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 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 
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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 trial court 
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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 
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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 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 
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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 
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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 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. 
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¶ 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 
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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 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. 
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¶ 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.