and understands the provisions of this paragraph and agrees to comply with its
requirements.” (Ag. Par. 3). Johnson also placed her signature at the bottom of the
Agreement.

Johnson expressly acknowledged by her initials and signatures that she
understood the above provisions of the Agreement. The Agreement language is not
confusing, overly complex, or filled with legal jargon. The Agreement specifically
instructed Johnson under the heading “Use of Premises and Property and
Compliance with Law” that the storage area was not an appropriate area to store
items that are irreplaceable or have sentimental value. (Ag. Par. 3). The Agreement
also explained that Johnson was agreeing, by entering into the Agreement, that PSI’s
“total responsibility for any Loss from any cause whatsoever will not exceed a total
of $5,000.” (Ag. Par. 5)(emphasis added).

Johnson requests that the court find that the above provisions of the
Agreement are unenforceable since they are contrary to Illinois public policy.
Johnson cites White v. Village of Homewood, 628 N.E.2d 616, 619-20 (Ill. App. Ct.
1993), which provides that “[t]he general rule is to enforce exculpatory agreements
unless (1) it would be against settled public policy of the State to do so, or (2) there
is something in the social relationship of the parties militating against upholding the
agreement.” /d. The court in White also explained that the types of exculpatory
agreements that would be contrary to public policy include “those (1) between an

employer and employee; (2) between the public and those charged with a duty of


proposition that a plaintiff must show outrageous conduct to recover punitive
damages. (Mot. In Lim. No. 2, 2). However, a close look at the court’s reference in
Loitz to the term “outrageous” reveals that the court was merely quoting the
Restatement (Second) of Torts as supplemental support in its opinion. /d. at 402.
The court in Loitz did specifically state that “[i]t has long been established in this
State that punitive or exemplary damages may be awarded when torts are committed
with fraud, actual malice, deliberate violence or oppression, or when the defendant
acts willfully, or with such gross negligence as to indicate a wanton disregard of the
rights of others.” /d. (quoting Kelsay v. Motorola, Inc., 384 N.E.2d 353, 359 (III.
1978)). Those requirements for the recovery of punitive damages do not even
include the term outrageous and, thus, PSI is incorrect in its assertion that the
outrageous conduct required to support an ITED claim is the same conduct required
for the recovery of punitive damages under IIlinois law. Therefore, we deny PSI’s
motion to bar Johnson from seeking punitive damages for a violation of the Fraud

Act.

IV. Motion to Exclude References to Other Cases

PSI moves to bar any reference to other lawsuits that have been brought
against PSI or its affiliates. PSI argues that such matters are irrelevant and
prejudicial. Johnson responds by agreeing to refrain from purposefully referring to

the lawsuits in order to confuse or prejudice the jury. Johnson indicates, however,

10


of liability that PSI would incur if something happened to her property. Johnson was
put on notice that, at most, she could recover $5,000 if her items in the storage area
were lost for any reason.

Johnson acknowledges that PSI is technically not a warehouseman, but argues
that PSI performs a “public service analogous to that of a public warehouseman.”
(Ans. Mot. In Lim. No.1, 3). However, Johnson provides no legal support for such
an extension of the law. Neither is her analogy accurate. PSI is engaged in the
business of offering small-scale self-storage facilities to consumers. If such small-
scale storage facilities deem it necessary to provide such exculpatory clauses for
business reasons, they can legally do so. PSI gave fair warning to Johnson that its
facility was for storing items that were not of sentimental value or irreplaceable and
for the storage of no more than $5,000 in goods or Johnson would do so at her own
risk. Johnson argues that “in today’s economy, self storage is an important
consumer service.” (Ans. Mot. In Lim. No.1, 3). If that is true, the service may not
be available to consumers if self-storage facilities such as PSI cannot limit, with fair
warning to the consumers, their potential liability.

Finally, Johnson argues that there is a disparity of bargaining power between
her and PSI. Johnson acknowledges that PSI does not have a monopoly over self-
storage services and that there are other self-storage facilities that she could have
chosen to go to instead of PSI. However, Johnson theorizes that “other similar

facilities also impose the same or similar contractual limitations and exculpatory


public service, such as involving a common carrier, an innkeeper, a public
warehouseman or a public utility; and (3) between parties where there is such a
disparity of bargaining power that the agreement does not represent a free choice on
the part of the plaintiff, such as a monopoly or involving a plaintiff without a
reasonable alternative.” /d.

Johnson first argues that the Agreement provisions mentioned above results in
a forfeiture and Johnson refers to the court’s prior ruling where the court stated that
the sale of Johnson’s property would, if proven, constitute a forefeiture which is
disfavored by the law. However, in our prior ruling we merely indicated that the
sale of Johnson’s property without giving her an opportunity to pay her past due rent
would constitute a forfeiture. (8/17/05 OP 18). The court never made any finding
regarding whether the above provisions of the Agreement constitute a forfeiture.
Clearly, the fact that under the above provisions of the Agreement Johnson is able to
recover $5,000 shows that the provisions would not result in a forfeiture of
Johnson’s property without compensation. Johnson may argue that her invaluable
possessions were worth much more to her than $5,000, but the Agreement also
clearly provided that she should not have stored such items in the storage area.

Johnson argues that the above provisions of the Agreement enable PSI to
improperly insulate itself from liability. There is nothing unlawful about PSI
choosing to protect itself financially. There is no evidence that PSI did so in an

underhanded fashion. The Agreement clearly informs Johnson regarding the amount


sentimental value, or for losses in excess of $5,000.

III. Motion to Exclude Evidence of Punitive Damages

PSI requests that the court bar Johnson from seeking punitive damages for a
violation of the Fraud Act. PSI argues that, in order to award punitive damages for a
Fraud Act claim, the plaintiff must show outrageous conduct. PSI argues that
Johnson “has not developed, and would be unable to develop at trial any evidence
demonstrating that [PSI’s] conduct was ‘outrageous’ for the purposes of obtaining
the extraordinary remedy of punitive damages.” (D In Lim. No.2, 2). However,
what Johnson will or will not be able to show at trial cannot be decided at this
juncture. Such an issue could have been addressed by PSI in a motion for summary
judgment, but at this point the issue must be left to the trier of fact to address. The
trier of fact is capable of reviewing the evidence and determining whether the
conduct of PSI warrants an award of punitive damages. PSI also argues that the trier
of fact cannot find conduct sufficient evidence to support an award of punitive
damages because the court granted summary judgment on behalf of PSI on the ITED
claim. Again, as with the motion regarding damages for emotional distress, PSI is
comparing apples and oranges. There has been no statement by IIlinois courts that
the outrageous conduct necessary to support an ITED claim is precisely the same
conduct required for an award of punitive damages. PSI quotes the Supreme Court

of Illinois in Loitz v. Remington Arms Co., Inc., 563 N.E.2d 397 (Ill. 1990) for the


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JONYSE JOHNSON, )
Plaintiff,
v. ) No. 03 C 6517
PS ILLINOIS TRUST,
Defendant. }
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant PS Illinois Trust’s (“PSI”)
motions in limine. For the reasons stated below, we grant in part and deny in part

the motions in limine.

DISCUSSION
1. Motion to Exclude Evidence of Emotional Distress and Related Damages
PSI requests that the court bar evidence of Johnson’s emotional distress or
damages arising from her emotional distress. PSI argues that any evidence of
Johnson’s emotional distress is irrelevant. In a prior ruling in this action, we granted

summary judgment in favor of PSI on Johnson’s intentional infliction of emotional

g


CONCLUSION
Based on the foregoing analysis, we deny PSI’s motion to exclude evidence of
emotional distress and deny PSI’s motion to bar Johnson from seeking punitive
damages. We grant PSI’s motion to exclude evidence of damages in excess of
$5,000 and damages for sentimental and irreplaceable items, grant PSI’s motion to
bar any reference to other lawsuits that have been brought against PSI or its
affiliates, and grant PSI’s motion to exclude non-party fact witnesses when they are

not testifying.

Tamuel Saverck Yu Sun Loffoag—

United States District Court Judge

Dated: November 14, 2005


that she objects to a broad bar regarding such a topic because it might “impede [her]
ability to pursue legitimate cross-examination” of Timothy Hatch (“Hatch”), a
former PSI District Manager, who may be called to testify by PSI. Johnson claims
that Hatch is involved in at least one other lawsuit with facts similar to the instant
action. Johnson states that she intends to at least question Hatch on cross
examination about the other case. Johnson may desire to do so, but has not provided
any valid basis to explain why such testimony would be relevant. Whether or not
PSI is involved in other actions with different plaintiffs and different facts has no
bearing on the facts at issue in the instant action. Also, PSI is moving to bar any
reference to other lawsuits and thus presumably will not be raising the topic on
direct with Hatch. Thus, Johnson will not be able to touch on the lawsuits within the
scope of cross examination. We also agree with PSI that facts involving other
lawsuits in which Johnson has no involvement are too far afield, irrelevant, and
unduly prejudicial to PSI. Therefore, we grant PSI’s motion to bar reference to other

lawsuits that have been brought against PSI or its affiliates.

V. Motion to Exclude Non-Party Fact Witnesses When Not Testifying

PSI requests that the court exclude non-party fact witnesses when not
testifying. Johnson has not filed any response to the motion, thus indicating that she
has no objection. The request is appropriate and we grant PSI’s motion to exclude

non-party fact witnesses from the courtroom when they are not testifying.


provisions in their rental agreements.” (Ans. Mot. In Lim. No. 1, 4). First,
Johnson’s argument is deficient because she provides no support for her conclusions
regarding other self-storage facilities. Second, even if other facilities impose such
restrictions, there is no evidence of a conspiracy by the facilities to unjustifiably
impose such exculpatory provisions. It may be, as is indicated above, that the
exculpatory clauses are necessary to make the facilities financially stable. In any
case, Johnson has failed to provide any support for her speculation regarding other
self-storage facilities.

Johnson now turns away from the terms of her agreement and attempts to have
the court render unenforceable the above provisions of the Agreement as a matter of
public policy. Public policy supports requiring a party to a contract to honor the
terms of the contract. There is no evidence, for example, that Johnson was coerced
into signing the Agreement. Under Illinois law, “[t]he rights of parties to a contract
are limited by the terms expressed in the contract . . . [and a] court will not rewrite a
contract to suit one of the parties, but will enforce the terms as written.” Klemp v.
Hergott Group, Inc., 641 N.E.2d 957, 962 (Ill. App. Ct. 1994). Johnson is bound by
the Agreement that she entered into and the court will not rewrite the Agreement to
allow her to avoid the terms of the Agreement. If the court were to do so at this
point, the contract entered into by Johnson and PSI would have little legal
significance. Therefore, we grant PSI’s motion in limine to bar Johnson from

introducing evidence of damages for the loss of irreplacable items of personal and


evidence of Johnson’s emotional distress.

IL. Motion to Exclude Evidence of Damages in Excess of $5,000

PSI requests that the court bar Plaintiff Jonyse Johnson (“Johnson”) from
introducing evidence of damages for the loss of irreplaceable items of personal and
sentimental value, or evidence of losses in excess of $5,000. PSI argues that
Johnson cannot recover in excess of $5,000 because the storage agreement signed by
Johnson (“Agreement”) provides that PSI’s “total responsibility for any Loss from
any cause whatsoever will not exceed a total of $5,000.” (Ag. Par. 5). Johnson
placed her initials on the Agreement next to the above paragraphs beside a caption
that states: “Occupant acknowledges that he understands and agrees to the provisions
of this paragraph.” (Ag. Par. 5). The Agreement also provided that Johnson
acknowledges that “under no circumstances with the aggregate value of all personal
property stored in the Premises exceed, or be deemed to exceed $5,000, and may be
worth substantially less than $5,000” and that the “Premises and Property are not
suitable for the storage of heirlooms or precious, invaluable or irreplaceable property
such as (but not limited to) books, records, writings, works of art, objects for which
no immediate resale market value exists, objects which are claimed to have special
or emotional value to Occupant and records or receipts relating to the stored goods.”
(Ag. Par. 3). Johnson placed her initials on the Agreement next to the above

paragraphs beside a caption that states: “Occupant acknowledges that he has read


not synonymous requirements such as a showing of severe emotional distress and
outrageous conduct for damages under Section 505/10a. The Supreme Court of
Illinois has instructed that in order to recover damages under Section 505/10a, a
plaintiff must show that her “injury is a direct and proximate result of an alleged
violation of the Act.” Martin v. Heinold Commodities, Inc., 643 N.E.2d 734, 751
(Ill. 1994). Therefore, simply because the court granted summary judgment in favor
of PSI on Johnson’s ITED claim does not mean that Johnson is barred from any
recovery for emotional distress under the Fraud Act.

PSI also argues that Johnson will not be able to point to evidence of emotional
distress at trial. PSI quotes Fogle v. William Chevrolet/GEO, Inc. in its reply, a case
in which the court commented on the evidence of emotional distress and stated that:
“plaintiffs have not presented a shred of evidence to establish a genuine issue of
material fact on damages such that a trial is required.” 2000 WL 1129983, at *6
(N.D.III. 2000). PSI argues that Johnson likewise has failed to point to sufficient
evidence of emotional distress, arguing that if the facts in this case “were insufficient
to support a claim for intentional infliction of emotional distress, . . . they are equally
inadequate to support a claim for emotional distress damages under the” Fraud Act.
(Mot. In Lim. No. 3, 3). However, PSI could have moved for such a finding as a
matter of law in its motion for summary judgment. PSI chose not to do so and
cannot now seek such a ruling in a motion in limine. Such factual inquires are for

the trier of fact at this juncture. Therefore, we deny PSI’s motion to exclude


distress (“ITED”) claim. PSI argues that we have “ruled that there are no facts under
which [Johnson] can recover damages for emotional distress allegedly caused by
(PSI’s] conduct.” (Reply Mot. In Lim. No. 3, 1). We made no such ruling and
merely held that Johnson had not pointed to sufficient evidence to support the
elements of her ITED claim.

Johnson may not be able to recover damages for emotional distress under 815
ILCS 505/10a(a) and (c) of the Illinois Consumer Fraud and Deceptive Business
Practices Act, Act, 815 ILCS 505/1 et seq. ("Fraud Act") (“Section 505/10a”). 815
ILCS 505/10a(a) and (c); Fogle v. William Chevrolet/GEO, Inc., 2000 WL 1129983,
at *6 (N.D.III. 2000)(stating that a “plaintiff can recover for intangible actual
damages resulting from mental suffering, such as aggravation”). PSI argues that
Johnson is barred from such a recovery because of the court’s ruling on the ITED
claim. The Supreme Court of Illinois has recognized “the intentional causing of
severe emotional distress as a separate and additional tort... .” Public Finance
Corp. v. Davis, 360 N.E.2d 765, 766-67 (Ill. 1976). For an ITED claim under Illinois
law, a plaintiff must establish that: "(1) the defendant's conduct was extreme and
outrageous; (2) the defendant either intended that his conduct should inflict severe
emotional distress, or knew that there was a high probability that his conduct would
cause severe emotional distress; (3) the defendant's conduct in fact caused severe
emotional distress." Dunn v. City of Elgin, Ilinois, 347 F.3d 641, 651 (7th

Cir.2003)(quoting Doe v. Calumet City, 641 N.E.2d 498, 506 (1994)). There are