dissenting:
I disagree with the majority opinion, but before detailing my disagreement, it is necessary to set forth the facts as alleged in the pleading, which the majority has not done with sufficient specificity.
From the first amended complaint, we learn that on March 17,1975, Wagner was a corporation in the business of making various castings at its plant in Decatur; that William Stogner (Stogner) was employed by Wagner as a licensed practical nurse; and that Vern Collier (Collier) was employed by Wagner. According to the complaint, Collier was stricken at approximately 4:30 p.m., on March 17,1975, with an illness while engaged in his duties at Wagner’s plant. Stogner was notified by phone of Collier’s condition and was advised that Collier was lying on the floor and complaining of chest pains. Stogner directed that Collier be brought to the aid station. However, when it became apparent that this was impossible, Stogner went to the location where Collier was stricken. The complaint alleges that Stogner rendered no immediate medical assistance, but waited for a period of approximately 15 minutes and then advised Collier that he was suffering from indigestion. Another employee suggested that Collier might be having a heart attack. Collier was then placed on a stretcher and carried to the first aid station. For a period of approximately three hours thereafter, Collier remained in the aid station. Stogner refused Collier’s requests for further medical attention. During this period of time Collier crawled to a sink and vomited. Stogner subsequently directed Collier to return to work, and, upon doing so, Collier collapsed and had to be carried back to the aid station. Collier’s wife was finally summoned by a co-employee, and Collier was taken to a hospital where he suffered three episodes of cardiac arrest.
In ruling on the defendants’ motion to dismiss, the court was bound to accept the plaintiffs’ allegations as set forth in the complaint as true. As noted above, those allegations reveal that Stogner failed to administer aid to Collier after he had apparently suffered heart problems and exhibited symptoms typical of a heart attack. In addition, Stogner continuously refused Collier’s request for attention by a doctor or hospital, and the refusal continued for a period of over three hours, even though Stogner had observed Collier crawl to a sink and vomit.
In interpreting the tort of outrage, the majority sets forth the criteria in the Restatement (Second) Torts §46 (1965), for testing such a complaint and then incorrectly applies that criteria. As noted in the opinion, comment (i) to section 46 defines intention and recklessness and makes the rule of section 46 applicable “where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct.”
In comparing the outrageous conduct in this case with the criteria set forth in section 46 and the definition in comment (i), it is obvious that a more clear case of actual intent to inflict emotional distress would indeed be difficult to imagine. Clearly, the plaintiffs’ complaint, when tested with the criteria of section 46, reveals that a sufficient intent was present in order to make the defendants’ conduct an actionable wrong. In fact, counts I and IV of the complaint specifically alleged that the defendants knew, or should have known, that their conduct was extreme and outrageous, and that their conduct could, with a high degree of probability, cause severe emotional stress. Thus, the majority’s reliánce on Larson and the dicta in Mier v. Staley (1975), 28 Ill. App. 3d 373, 329 N.E.2d 1, that section 5(a) of the Workmen’s Compensation Act bars this suit unless actual intent is alleged, is misplaced. Actual intent is alleged in the complaint, and the conduct is so wanton as to be equated with intent.
The conduct alleged to have caused the plaintiffs’ emotional distress was primarily that of defendant Stogner. However, Stogner individually had no duty, other than that perhaps dictated by professional ethics, to aid or treat the plaintiff. Consequently, Stogner was improperly joined as a defendant in this cause. However, Stogner, as an employee and agent of defendant Wagner, did breach Wagner’s duty to provide medical services to the plaintiff as required by section 8(a) of the Act. The majority’s conclusion that the plaintiff could have filed a claim under section 19 of the Act for medical services and relief under section 8(a) is obviously absurd in view of the urgency of treatment required for a heart attack victim.
Finally, the result reached by the majority offends the public policy of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138 et seq.), as expressed in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, and Leach v. Lauhoff Grain Co. (1977), 51 Ill. App. 3d 1022, 366 N.E.2d 1145. Those cases dictate that there be a remedy when the conduct of an employer is outrageous and contrary to public policy. This case clearly demonstrates that the conduct was contrary to public policy since the necessary first aid and medical services were withheld from the plaintiff for a period of approximately three hours after he exhibited symptoms of a heart attack. Conduct such as this is contrary to the standards of a civilized society and constitutes an actionable wrong which should have been submitted to the trier of fact for resolution.
In summary, I find that neither section 5(a) nor section 11 of the Act bars this action. Accordingly, I would reverse and remand this cause with directions that the complaint be reinstated.