2017 IL App (1st) 160844
No. 1-16-0844
Fifth Division
Modified opinion filed February 3, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
ALANA PILOTTO, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellant, )
) No. 15 L 006611
v. )
) The Honorable
URBAN OUTFITTERS WEST, L.L.C., d/b/a ) William Gomolinski,
ANTHROPOLOGIE, ) Judge Presiding.
)
Defendant-Appellee. )
)
______________________________________________________________________________
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Hall and Reyes concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Alana Pilotto, brought this civil action against defendant, Anthropologie, a retail
store, alleging that she was harmed as a result of defendant’s violation of the Restroom
Access Act (Act) (410 ILCS 39/1 et seq. (West 2014)). Plaintiff is appealing the trial court’s
order granting defendant’s motion to dismiss her first amended complaint, pursuant to
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)), on the basis
that the Act does not provide a private right of action. For the reasons that follow, we reverse.
No. 1-16-0844
¶2 BACKGROUND
¶3 On June 29, 2015, plaintiff filed a two-count complaint against retail stores Walgreens
and Anthropologie, 1 alleging that, on separate occasions, she was denied access to an
employee restroom despite being entitled to such access under the Act. 2 On September 14,
2015, defendant Anthropologie filed a motion to dismiss count II of the complaint pursuant
to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)),
arguing that the Act does not provide a private right of civil action. Defendant’s motion was
based on the text of the Act, which does not expressly indicate whether violations can be
decided in civil suits, but does provide that violations of the Act are petty offenses that may
result in a fine not to exceed $100. The court granted the motion to dismiss without prejudice
on October 29, 2015.
¶4 On November 25, 2015, plaintiff filed an amended complaint against defendant, alleging
the same material facts as the previous complaint, but adding that “410 ILCS 39/5 was
enacted for the purpose of preventing the foregoing incident,” and that “Plaintiff is a member
of the class for whose benefit 410 ILCS 39/5 was enacted. This civil action is consistent with
the underlying purpose of this statute and the only adequate remedy for the Plaintiff and
others similarly situated.”
¶5 According to the amended complaint, plaintiff lawfully entered defendant’s retail store
located in Oak Brook, Illinois, on March 30, 2014. Plaintiff, who suffers from Crohn’s
Disease, requested to use the employee restroom, 3 and was denied access by an employee,
1
Walgreens settled with plaintiff and was subsequently dismissed from the case.
2
The Restroom Access Act provides that a retail store that does not normally make a restroom available to
the public must allow a customer suffering from an eligible medical condition to use the private employee restroom
in times of need. The Act will be detailed further in the analysis section.
3
On appeal, defendant does not claim that it had a public restroom available for customers to use.
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despite showing her Restroom Access card 4 and explaining her need to use the facility. The
employee told plaintiff to go to another retail store across the street in a shopping mall to use
the restroom. On her way to the other retail store, plaintiff lost control of her bowels and
defecated in the presence of customers at the shopping mall. As a result of this occurrence,
plaintiff alleged that she experienced extreme emotional distress, did not leave her house for
days afterwards, and still experiences fear of not having access to a restroom in public places.
¶6 On January 13, 2016, defendant filed a motion to dismiss plaintiff’s amended complaint
pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)), again arguing that
the Act does not provide a private right of civil action. Plaintiff filed a response to the motion
to dismiss on January 22, 2016, arguing that although the text of the Act does not expressly
indicate whether violations can be determined in civil suits, a private right of action should
be implied in order to provide plaintiff with an adequate remedy for her damages. Plaintiff
further argued that the remedy detailed in the text of the Act is not adequate, since it requires
the wronged individual to report the incident to authorities, which is a questionable method
of encouraging compliance. On February 3, 2016, defendant filed a reply to plaintiff’s
response, pointing out that plaintiff’s amended complaint did not add or delete any factual
allegations from the original complaint and that a private right of action is not the only
remedy available for plaintiff, since the statute already provides a remedy, decided upon by
the General Assembly. On February 22, 2016, the court granted defendant’s motion to
dismiss, this time with prejudice. This appeal follows.
4
According to the amended complaint, “[p]ursuant to the Restroom Access Act, plaintiff received a
Restroom Access card which would allow her access to defendant’s employee restroom facility.” We note that there
does not appear to be an official card issued by the State pursuant to the Act, and the Act does not refer to the
showing of a card. However, our research shows that several organizations issue cards explaining that the holder has
a medical condition that requires immediate access to a restroom, which can be used to discreetly communicate the
holder’s issues to others. See, e.g., Crohn’s & Colitis, https://www.crohnsandcolitis.com/sign-up (last visited Sept.
30, 2016); The IBD Life, www.theibdlife.com/access (last visited Sept. 30, 2016).
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¶7 ANALYSIS
¶8 On appeal, plaintiff claims that the trial court erred in granting defendant’s motion to
dismiss pursuant to section 2-615 of the Code because a private right of action should have
been implied in the Act. We note that there exists no precedential 5 case law regarding the
Act, which renders the issue before us a case of first impression. A motion to dismiss
pursuant to section 2-615 of the Code attacks the legal sufficiency of a complaint by alleging
defects on the face of the complaint. Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004). When ruling
on a section 2-615 motion, the relevant question is whether the allegations in the complaint,
construed in a light most favorable to the plaintiff, are sufficient to state a cause of action
upon which relief may be granted. Canel v. Topinka, 212 Ill. 2d 311, 317 (2004). A motion to
dismiss should not be granted “unless it is clearly apparent that no set of facts can be proved
that would entitle the plaintiff to relief.” Tedrick v. Community Resource Center, Inc., 235 Ill.
2d 155, 161 (2009). Illinois is a fact-pleading state; conclusions of law and conclusory
allegations unsupported by specific facts are not sufficient to survive dismissal. Anderson v.
Vanden Dorpel, 172 Ill. 2d 399, 408 (1996). Appellate review of a dismissal pursuant to
section 2-615 is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112,
116 (1993). De novo consideration means we perform the same analysis that a trial judge
would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
5
There is a federal district court case interpreting the Act, Kindle v. Fifth Third Bank, No. 1:14 CV 6502,
2015 WL 5159890 at *1 (N.D. Ill. Sept. 1, 2015), which we discuss below. However, that case is not precedential
and is not binding on this court. See People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 127 (2001)
(noting that “lower federal court decisions are not binding on Illinois courts, but may be considered persuasive
authority”). Additionally, 12 other states have enacted similar legislation to the Act, but none have any case law
interpreting the Act available on research databases.
4
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¶9 I. Restroom Access Act
¶ 10 The Restroom Access Act mandates that a retail establishment shall allow a customer to
use the employee toilet facilities during normal business hours under certain circumstances.
Section 10 of the Act sets forth the duty imposed by the Act and provides, in full:
“A retail establishment that has a toilet facility for its employees shall allow a
customer to use that facility during normal business hours if the toilet facility is
reasonably safe and all of the following conditions are met:
(1) The customer requesting the use of the employee toilet facility suffers from an
eligible medical condition or utilizes an ostomy device.
(2) Three or more employees of the retail establishment are working at the time
the customer requests use of the employee toilet facility.
(3) The retail establishment does not normally make a restroom available to the
public.
(4) The employee toilet facility is not located in an area where providing access
would create an obvious health or safety risk to the customer or an obvious security
risk to the retail establishment.
(5) A public restroom is not immediately accessible to the customer.” 410 ILCS
39/10 (West 2014).
On appeal, defendant does not argue that the requirements of the statute were not satisfied at
the time that plaintiff requested to use defendant’s employee restroom in the instant case. 6
6
We note that in its petition for rehearing, defendant suggests that it will be challenging whether the
requirements of the Act were satisfied when the case is remanded to the trial court. However, it had not done so
before this court or during the proceedings leading to the instant appeal. Defendant’s potential future challenges to
plaintiff’s complaint do not affect our analysis at this early stage of the proceedings.
5
No. 1-16-0844
¶ 11 The Act also contains two provisions relating to liability and violations of the Act. First,
section 15 is entitled “Liability” and provides, in relevant part:
“(a) A retail establishment or an employee of a retail establishment is not civilly
liable for any act or omission in allowing a customer that has an eligible medical
condition to use an employee toilet facility that is not a public restroom if the act
or omission meets all of the following:
(1) It is not willful or grossly negligent.
(2) It occurs in an area of the retail establishment that is not accessible to the
public.
(3) It results in an injury to or death of the customer or any individual other
than an employee accompanying the customer.” 410 ILCS 39/15(a) (West
2014).
¶ 12 Additionally, section 20 is entitled “Violation” and provides, in full:
“A retail establishment or an employee of a retail establishment that violates
Section 10 is guilty of a petty offense. The penalty is a fine of not more than
$100.” 410 ILCS 39/20 (West 2014).
¶ 13 The Act is otherwise known as “Ally’s Law,” a tribute to the young girl who inspired the
bill. Representative Kathleen Ryg introduced this bill as a response to the needs of thousands
of state citizens suffering from Crohn’s Disease and other irritable bowel conditions. 94th Ill.
Gen. Assem., House Proceedings, Apr. 14, 2005, at 195 (statements of Representative Ryg).
Her aim for the bill was to enable citizens suffering from irritable bowel conditions to have
access to a restroom when they need it. 94th Ill. Gen. Assem., House Proceedings, Apr. 14,
2005, at 196 (statements of Representative Ryg). After passage by the House and Senate, the
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bill was approved by the governor on August 4, 2005, and immediately became effective
law.
¶ 14 II. Common-Law Claim
¶ 15 In the case at bar, the parties argue about whether a private right of action is implied
through the Act. However, before considering this argument, we must first consider the
theory under which plaintiff is proceeding in her amended complaint. While defendant in its
motion to dismiss, and the court in granting the motion, focused on the issue of whether the
Act provides for a private cause of action, the language of the amended complaint indicates
that the basis for plaintiff’s complaint was a common-law cause of action. 7 Our supreme
court has noted that it can be error to simply focus on whether the statute implies a private
right of action, because “[t]he four-part Noyola test is the analysis that this court uses when
the plaintiff alleges a cause of action that originates in a statute, but the statute does not set
forth an express right of action. [Citation.] It has no application when the plaintiff is
proceeding on a common law theory.” Cowper v. Nyberg, 2015 IL 117811, ¶ 20. In the case
at bar, plaintiff’s complaint was grounded in the common law, making the analysis of
whether there was an implied private right of action unnecessary or, at the very least,
premature. See Cowper, 2015 IL 117811, ¶ 20 (“Here, plaintiff was proceeding on a common
law negligence theory, under a long-established rule that public officials may be held liable
for breaches of ministerial duties. Plaintiff’s cause of action did not originate in the statute;
the statute merely set forth the particular ministerial duty that was alleged to have been
breached.”).
7
Defendant appears to have recognized this in its motion to dismiss plaintiff’s initial complaint, when it
characterized plaintiff’s complaint as one for intentional infliction of emotional distress. However, the analysis
focused on whether the violation of the Act gave rise to a private cause of action, not whether the violation can serve
as the basis for the common-law claim.
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¶ 16 Plaintiff’s amended complaint appears to be based on either the common-law tort of
intentional infliction of emotional distress or the common-law tort of negligent infliction of
emotional distress, based on her allegations that plaintiff’s conduct caused her “extreme
emotional distress.” As noted, when ruling on a section 2-615 motion, the relevant question
is whether the allegations in the complaint, construed in a light most favorable to the
plaintiff, are sufficient to state a cause of action upon which relief may be granted (Canel,
212 Ill. 2d at 317), and a motion to dismiss should not be granted “unless it is clearly
apparent that no set of facts can be proved that would entitle the plaintiff to relief” (Tedrick,
235 Ill. 2d at 161). Thus, we must consider whether plaintiff has stated a cause of action
under either theory before determining whether dismissal was appropriate.
¶ 17 First, to state a cause of action for intentional infliction of emotional distress, “[t]he
plaintiff must plead facts which indicate: (1) that the defendant’s conduct was extreme and
outrageous; (2) that the defendant knew that there was a high probability that his conduct
would cause severe emotional distress; and (3) that the conduct in fact caused severe
emotional distress.” Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 20 (1992). In
considering whether conduct as pleaded could be considered extreme and outrageous, “of
serious consideration is a defendant’s awareness that the plaintiff is peculiarly susceptible to
emotional distress, by reason of some physical or mental condition or peculiarity. Behavior
which (though rude, abrasive or extremely inconsiderate) may not otherwise be actionable
may be deemed outrageous if the defendant knows that the plaintiff is peculiarly susceptible
to emotional distress.” McGrath v. Fahey, 126 Ill. 2d 78, 89-90 (1988). In the case at bar,
plaintiff’s complaint alleges that “[k]nowing that plaintiff had a problem with bowel control
and seeing her Medical Alert Restroom Access Required Card, defendant still denied her
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access to the store’s facilities,” in violation of defendant’s obligations under the Act. At this
early stage of the proceedings, plaintiff’s allegations are sufficient to constitute extreme and
outrageous conduct, especially given plaintiff’s allegations that she explained her particular
“physical *** condition or peculiarity” (McGrath, 126 Ill. 2d at 90) to defendant’s employee.
Furthermore, plaintiff’s complaint alleges that after defendant’s employee directed her to a
store across the street, plaintiff “explained her need to use the facility immediately” but was
still denied access to defendant’s facilities. Thus, plaintiff’s complaint sufficiently alleges
that defendant’s employee knew the likely results of the denial, namely, public defecation,
and nevertheless refused access. Finally, plaintiff’s complaint alleges severe emotional
distress, including allegations that plaintiff did not leave her house for days and “still
experiences trepidation being in public places for fear she will not be able to use the
restroom.” While such allegations might not be sufficient were this an isolated incident, the
character of plaintiff’s condition results in the repeated need for immediate access to a
restroom. Indeed, as noted, the purpose of the Act is to provide immediate restroom access
for those with medical conditions requiring such access (410 ILCS 39/10 (West 2014)),
which recognizes that these are not isolated incidents. Thus, plaintiff’s complaint alleges that
defendant’s actions in this instance affected her ability to conduct her daily life. Therefore,
we conclude that, at this early stage in the proceedings, plaintiff has sufficiently alleged a
cause of action for intentional infliction of emotional distress.
¶ 18 With respect to negligent infliction of emotional distress, “[a] plaintiff claiming to be a
direct victim of negligently inflicted emotional distress must establish the traditional
elements of negligence: duty, breach, causation and injury.” Cooney v. Chicago Public
Schools, 407 Ill. App. 3d 358, 363 (2010) (citing Corgan v. Muehling, 143 Ill. 2d 296, 306
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(1991)). “Duty is defined as ‘a legal obligation to conform one’s conduct to a certain
standard for the benefit or protection of another.’ ” Kotarba v. Jamrozik, 283 Ill. App. 3d
595, 597 (1996) (quoting Rabel v. Illinois Wesleyan University, 161 Ill. App. 3d 348, 356
(1987)). “A tort duty can derive either from the common law or from statute.” People ex rel.
Department of Labor v. Valdivia, 2011 IL App (2d) 100998, ¶ 12 (citing Harnischfeger
Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App. 3d 444, 452 (1991)). “A statute may
create a duty expressly, or it may do so impliedly where it is ‘designed to protect human life
or property.’ ” Rommell v. Illinois State Toll Highway Authority, 405 Ill. App. 3d 1124, 1128
(2010) (quoting Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434 (1991)).
¶ 19 In the case at bar, the Act expressly imposes a duty on retail establishments that have
employee toilet facilities to permit customers to use those employee facilities in certain
circumstances, as we have detailed above. See 410 ILCS 39/10 (West 2014). Furthermore,
we note that the language of the Act expressly contemplates civil liability for violations of
the Act through section 15, which provides limited immunity for injury caused by a retailer’s
compliance with the Act. See 410 ILCS 39/15(a) (West 2014). There would be no need for
immunity if there was no civil liability for a retailer’s conduct under the Act. Thus, section
10 of the Act imposes a duty on a retailer such as defendant to provide restroom access to an
individual such as plaintiff.
¶ 20 In the instant case, plaintiff has set forth all of the necessary elements for a negligence
action in her amended complaint. First, plaintiff’s complaint alleges that defendant is a retail
establishment subject to the Act and that she was entitled to use the employee restroom
pursuant to the statute. Accordingly, plaintiff alleged that defendant owed her a duty under
the Act. Plaintiff also alleged that defendant breached that duty by refusing to permit her
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access to an employee restroom, instead directing her to another store across the street, which
resulted in her defecating in the presence of customers of the shopping mall. Plaintiff further
alleged that defendant’s actions caused her “extreme emotional distress.” Thus, plaintiff has
stated a cause of action for negligent infliction of emotional distress and the trial court erred
in dismissing her complaint under section 2-615 of the Code.
¶ 21 III. Implied Private Right of Action
¶ 22 Furthermore, even if there was no applicable common-law cause of action, we agree with
plaintiff that a private right of action can be implied from the statute. A court may determine
that a private right of action is implied in a statute that lacks explicit language regarding
whether a private right of action shall be allowed. Fisher v. Lexington Health Care, Inc., 188
Ill. 2d 455, 460 (1999). In order to find an implied private right of action, a court must find
that (1) the plaintiff is a member of the class for whose benefit the statute was enacted, (2)
the plaintiff’s injury is one the statute was designed to prevent, (3) a private right of action is
consistent with the underlying purpose of the statute, and (4) implying a private right of
action is necessary to provide an adequate remedy for violations of the statute. Fisher, 188
Ill. 2d at 460.
¶ 23 A. First and Second Elements
¶ 24 The first two elements, that plaintiff is a member of the class for whose benefit the statute
was enacted and the injury is one the statute was designed to prevent, are factually satisfied
and uncontested by defendant. The Act was created for the benefit of a class of citizens who
suffer from an eligible medical condition. 410 ILCS 39/10 (West 2014). Plaintiff suffers
from Crohn’s Disease, which is one of the eligible medical conditions covered by the Act.
410 ILCS 39/5 (West 2014) (listing eligible medical conditions as “Crohn’s disease,
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No. 1-16-0844
ulcerative colitis, any other inflammatory bowel disease, irritable bowel syndrome, or any
other medical condition that requires immediate access to a toilet facility”). Therefore, it is
clear that plaintiff is a member of the class that the Act is designed to benefit. The Act is also
designed to prevent uncontrollable defecation or urination from occurring in public by
allowing immediate private restroom access to those who suffer from an eligible medical
condition. 410 ILCS 39/10 (West 2014). Here, after plaintiff was denied access to
defendant’s employee restroom, she uncontrollably defecated in public view while trying to
reach another retail store to use the restroom. It is clear from these facts that plaintiff suffered
an injury that the Act was designed to prevent. Therefore, the first two elements for imposing
a private right of action are satisfied.
¶ 25 B. Third Element
¶ 26 Unlike the first and second elements, the parties dispute whether the third and fourth
elements are satisfied. The third element is satisfied if it is determined that a private right of
action is consistent with the underlying purpose of the statute. Fisher v. Lexington Health
Care, Inc., 188 Ill. 2d 455, 460 (1999). We note that other courts do not necessarily discuss
this factor in detail, instead discussing it together with the fourth element. However, in this
case, we find a separate discussion helpful to our analysis of the issue.
¶ 27 In the case at bar, we find that implying a private right of action is consistent with the
underlying purpose of the Act and also note that such a private right would not adversely
affect any other provision within it. For instance, in Metzger v. DaRosa, 209 Ill. 2d 30, 39
(2004), our supreme court found that an implied private right of action for a government
whistleblower reprimanded after reporting statutory violations was inconsistent with the
Illinois Personnel Code (20 ILCS 415/1 et seq. (West 2002)). In that case, the court found
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that the underlying purpose of the statute was to ensure government employee competency,
and in doing so, the statute protected employees who report such violations from unjust
retaliation. Metzger, 209 Ill. 2d at 37. In order to carry out this purpose, the statute outlined
procedures for the State to review whether an employee who was reprimanded after reporting
a violation was unjustly disciplined. Metzger, 209 Ill. 2d at 39. The court found that implying
a private right of action would have been inconsistent with the express procedures for
carrying out the underlying purpose of the statute, since it would have stripped the State of its
independent authority to determine whether the reprimand was retaliation or appropriate
management and would have, instead, given that authority to the courts. Metzger, 209 Ill. 2d
at 39.
¶ 28 By contrast, in King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 266-67
(2003), an implied private right of action under the Elder Abuse and Neglect Act (Elder Act)
(320 ILCS 20/1 et seq. (West 2000)) was upheld by the appellate court. In that case, the
plaintiff alleged that she was terminated from her employment at Senior Services Associates
(SSA) because she reported another SSA employee for abusing and financially exploiting a
senior citizen. The plaintiff’s argument was premised on the Elder Act, which provides that
the Illinois Department of Aging can fund private agencies—such as SSA—to implement the
policies of the Elder Act, and that those agencies’ employees who report cases of elder abuse
are protected from retaliatory discharge. King, 341 Ill. App. 3d at 269. However, the Elder
Act says nothing about available remedies for those employees alleging retaliatory discharge
after reporting elder abuse. King, 341 Ill. App. 3d at 270. The court found that an implied
private right of action for employees of these agencies alleging retaliatory discharge was
appropriate under the Elder Act. King, 341 Ill. App. 3d at 270. The majority opinion did not
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engage in an express analysis of whether implying a private right of action was consistent
with the underlying purpose of the statute, but the ultimate holding that a private right of
action was available to the plaintiff necessarily implied that the majority concluded that
implying a private right of action was indeed consistent. However, an analysis of this element
was conducted by Justice Kapala in his special concurrence. 8 In his special concurrence,
Justice Kapala reasoned that an implied private right of action would be consistent with the
underlying purpose of the statute because it would discourage these agencies from
reprimanding employees who report elder abuse, which would serve to promote the
discovery and prevention of elder abuse. King, 341 Ill. App. 3d at 273 (Kapala, J., specially
concurring).
¶ 29 In the matter before us, as noted, the underlying purpose of the Act is to ensure that
citizens suffering from irritable bowel conditions have immediate restroom access when they
need it. 94th Ill. Gen. Assem., House Proceedings, Apr. 14, 2005, at 196 (statements of
Representative Ryg). The only process expressly set forth in the Act to remedy violations of
the Act is the imposition of a petty offense fine of not more than $100. 410 ILCS 39/20
(West 2014). The procedures outlined in the statute in Metzger were important for serving
the underlying purpose of the statute, and would have been rendered ineffective by implying
a private right of action. In the present case, it cannot be said that the express petty offense
remedy would be rendered ineffective by implying a private right of action. Even if we find a
private right of action, the State can still pursue the petty offense penalty against a retailer
who violated the Act, and the penalty would retain the same amount of value in terms of
8
Justice Kapala concurred with the majority for every issue discussed in the majority opinion, except for the
finding that an implied private right of action was appropriate under the Elder Act because, although he found that
the third element was satisfied, he disagreed with the majority’s finding that the fourth element was satisfied. King,
341 Ill. App. 3d at 272-73 (Kapala, J., specially concurring).
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ensuring compliance with the Act as it had without the implied private right of action.
Without express language in the Act prohibiting a private right of action or an established
procedure that would be impeded, there is nothing that an implied private right of action
would be at odds with. Moreover, in accordance with Justice Kapala’s special concurrence in
King, finding an implied private right of action in this case would discourage retailers from
refusing to comply with the Act, which would serve to ensure that citizens suffering from
irritable bowel conditions have immediate access to a restroom when they need it.
¶ 30 Plaintiff also argues that it would be inconsistent for the legislature to provide that a
private right of civil action is available against retailers’ willful acts or omissions when
complying with the Act, but not available in cases where retailers refuse to comply with the
Act. For support, she emphasizes the liability provision in the Act, but mischaracterizes the
language of the provision by asserting that it expressly provides a civil remedy to customers
injured by retailers’ willful acts or omissions while in compliance with the statute. The plain
language of the liability provision expressly immunizes retailers from civil liability for any
act or omission in complying with the Act, if the act or omission (1) is not willful or grossly
negligent, (2) occurs in a nonpublic area of the store, and (3) results in injury or death to the
customer. 410 ILCS 39/15 (West 2014). The provision expressly covers the situation in
which complying retailers are excluded from civil liability, but, contrary to plaintiff’s
assertion, has no language expressly granting a private right of action to customers when the
complying retailer’s acts constitute willful or gross negligence. Nevertheless, the essence of
plaintiff’s argument is that since a complying retailer is shielded from civil liability as long
as the expressed requirements are satisfied, it is implied that a complying retailer is subject to
civil liability if at least one of the requirements is not satisfied. Therefore, it appears that
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plaintiff’s argument is that since the legislature intended for an implied private right of action
to be available to customers injured as a result of a retailer’s willful or grossly negligent acts
or omissions while complying with the Act, finding an implied private right of action for
situations where a retailer refuses to comply with the Act is logically consistent with the
underlying purpose of the Act.
¶ 31 We find plaintiff’s argument to be persuasive. It would make no sense for the statute to
be read in such a way that a retailer can be held civilly liable for its actions when complying
with the Act, but could not be held civilly liable for not complying with the Act at all. “In
construing a statute, we presume that the legislature did not intend absurd, inconvenient, or
unjust results [citation], and we will not, absent the clearest reasons, interpret a law in a way
that would yield such results [citation].” Nelson v. Artley, 2015 IL 118058, ¶ 27. Assuming
arguendo that we found an implied private right of action to be inconsistent with the Act, the
only way a retailer could possibly be exposed to civil liability would be through compliance
with the Act. With this in mind, it is not hard to imagine a retailer deciding to never comply
with the Act in order to avoid any possibility of civil liability, instead opting to take the
chance of being fined no more than $100 for noncompliance. This would directly
compromise the underlying purpose of the Act, which, as previously stated, is to ensure that
citizens suffering from irritable bowel conditions have immediate restroom access when they
need it. 94th Ill. Gen. Assem., House Proceedings, Apr. 14, 2005, at 196 (statements of
Representative Ryg). Plaintiff’s argument, together with the cited case law, convinces us that
an implied private right of action is consistent with the underlying purpose of the Act.
¶ 32 While defendant does not expressly argue that this element weighs in its favor, defendant
does emphasize the text of the violation provision in the Act, which expressly states that a
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violation is considered a petty offense. However, as noted, there is no express language that
prohibits a private right of action, nor is there any expressed violation procedure that a
private right of action would obstruct. The State would still be able to pursue the express
petty offense remedy against retailers who violate the Act. In addition, defendant’s argument
does nothing to assert that implying a private right of action would undermine the underlying
purpose of the Act. Therefore, we find that defendant’s argument is unpersuasive and
conclude that implying a private right of action is not inconsistent with the underlying
purpose of the Act.
¶ 33 C. Fourth Element
¶ 34 Finally, the fourth element is satisfied if it is shown that a private right of action is
necessary to provide an adequate remedy to individuals injured as a result of violations of the
statute. Fisher, 188 Ill. 2d at 460. A private right of action has only been implied in cases
where a statute would be ineffective without the implication. Abbasi v. Paraskevoulakos, 187
Ill. 2d 386, 395 (1999).
¶ 35 In the case at bar, the Act expressly provides that a violation is a petty crime, punishable
by a fine not to exceed $100. 410 ILCS 39/20 (West 2014). However, plaintiff argues that a
fine capped at $100 is not adequate to encourage compliance with the Act among retail
stores. In addition, plaintiff points out that the only way to enforce a violation would be for
the wronged individual to report the incident to the police department. The crux of plaintiff’s
reasoning is that the wronged individual is unlikely to report such an embarrassing incident
to the authorities, and requiring the individual to testify about the embarrassing incident in
court in order to secure a small fine for the State is not palatable.
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¶ 36 At the outset, we find that plaintiff’s reasoning that a wronged individual is unlikely to
pursue the expressed remedy out of fear of having to testify about the incident is
unpersuasive. If this court were to imply a private right of action, there is no doubt that the
plaintiff would still be required to testify about the embarrassing incident and could
potentially be obligated to reveal even more embarrassing information throughout the
discovery process. The wronged individual cannot pursue any claim regarding a violation of
the Act without divulging embarrassing information. It is inevitable that plaintiff would have
to talk about the embarrassing incident in order to pursue any type of remedy.
¶ 37 However, we agree with plaintiff that an individual harmed by a violation of the Act
would be reluctant to divulge embarrassing information to local authorities in order to pursue
the expressed petty offense remedy and add that the petty offense remedy does nothing to
redress the injuries that plaintiff has already sustained. Such was the case in Corgan v.
Muehling, 143 Ill. 2d 296, 300 (1991), where the plaintiff brought an action under the
Psychologist Registration Act (Ill. Rev. Stat. 1981, ch. 111, ¶ 5301 et seq.), alleging that the
defendant, who lied about being a registered psychologist, began a sexual relationship with
her “under the guise of therapy.” The Psychologist Registration Act provides that a violation
of the statute is a public nuisance. Corgan, 143 Ill. 2d at 312. The Director of the Department
of Professional Regulation or the State’s Attorney in the county where the nuisance occurs
may file a complaint in the name of the People of the State of Illinois requesting an
injunction against the person unlawfully acting as a psychologist to stop performing such
unlawful acts. Corgan, 143 Ill. 2d at 312. Despite the absence of express language regarding
a private right of action, our supreme court held that an implied private right of action was
the only way the statute could be enforced because it was unlikely that an injured patient
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would pursue claims through the administrative or criminal justice system without the
opportunity for a tangible award in order to be made whole. Corgan, 143 Ill. 2d at 315. We
find the present case to align with Corgan, in that the petty offense remedy in the Act does
nothing to make the plaintiff whole again for the harm that she has already sustained. The
lack of opportunity for redress, as well as the reluctance to divulge embarrassing information,
lessens the likelihood that an individual harmed by a violation of the Act would be motivated
to pursue the express remedy. This lack of motivation would render the statute unenforceable
as a practical matter.
¶ 38 In addition, we note that the petty offense remedy in the present case is even more
inadequate than the injunction available to the plaintiff in Corgan. An injunction would at
least serve to ensure that defendant would be obligated by a court order to comply with the
Act, making it more likely that, should plaintiff desire to visit the store in the future, she
would feel comfortable knowing that a court has specifically addressed defendant’s
noncompliance and that she is much more likely to be granted access to the employee
restroom in the event that she requires it. However, the imposition of the petty offense fine is
unlikely to make the plaintiff feel comfortable in visiting the store in the future, since should
defendant again deny plaintiff access to the employee restroom when she needs it, defendant
would not be subjected to an increased penalty, and would still only risk the imposition of a
small fine. In sum, the express remedy does nothing to make plaintiff whole again after
sustaining harm, nor to ensure that plaintiff can feel comfortable visiting defendant’s retail
store in the future.
¶ 39 We also recognize the inadequacy of the petty offense remedy by distinguishing it from
case law where the expressed remedies in a statute were deemed adequate. In Rekosh v.
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No. 1-16-0844
Parks, 316 Ill. App. 3d 58, 61-62 (2000), the plaintiffs brought an action under the Funeral
Directors and Embalmers Licensing Code (225 ILCS 41/1-1 et seq. (West 1998)) alleging,
inter alia, that they suffered severe emotional distress as a result of the defendants’ violations
of the statute. The statute expressly provided that a funeral home that violated any provision
may be punished by fines and suspension or revocation of its license, and also that funeral
homes may be subjected to regular inspections in order to verify compliance with the statute
and may be investigated for any suspicion of a violation. Rekosh, 316 Ill. App. 3d at 74. The
court concluded that it could not say that the expressed remedies in the statute were so
deficient that implying a private right of action was necessary. Rekosh, 316 Ill. App. 3d at 74.
See also Kagan v. Waldheim Cemetery Co., 2016 IL App (1st) 131274 ¶¶ 44-46 (revocation
of the cemetery’s license, felony criminal penalties, and fines for violations of the Cemetery
Care Act (760 ILCS 100/1 et seq. (West 2012)) were adequate and did not necessitate
implying a private right of action).
¶ 40 We are aware of the differences in the issues between the statute involved in Rekosh and
the Restroom Access Act, but the lack of relevant case law forces us to draw comparisons
between inherently different statutes. The statute in Rekosh went far beyond providing one
simple remedy, instead providing several different remedies in order to ensure compliance
among funeral homes. In the case at bar, the Act only expressly provides one remedy, a fine
not to exceed $100. There is nothing regarding investigations or any other sanctions that
would seek to ensure that the Act is not repeatedly violated. Defendant, a nationwide retail
store, certainly has the financial capability to simply refuse to comply with the Act each time
it is approached by a customer with an irritable bowel condition, since the maximum penalty
that can be assessed for each violation is $100. While a funeral home that violates the statute
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at issue in Rekosh may be subjected to sanctions that could impact its ability to continue
operation as a business, a retail store that refuses to comply with the Act would not even
notice the impact of the petty offense penalty, especially one such as defendant, who has a
nationwide presence on the retail market. It is this distinction that persuades us that the
expressed remedy in the Act is inadequate to effectuate the purpose of the statute.
¶ 41 We find defendant’s arguments to the contrary to be unpersuasive. Defendant argues that
an implied private right of action is not necessary to provide an adequate remedy, since the
Act already expresses a different remedy, and this expressed remedy is the extent of what the
legislature intended to be adequate for enforcement. While the plain language of the Act is
evidence that it is the only remedy intended by the legislature, it is not dispositive as to that
issue, especially since the Act does appear to contemplate some form of civil liability in
certain circumstances, as discussed above. There have been several instances where an
Illinois court has determined that the remedies expressed by the legislature in a statute are not
adequate to enforce compliance, necessitating the implication of a private right of action. See
Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 185 (1978) (implying a private right of action under
the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, ¶ 138.1 et seq.) is necessary
to effectuate the purpose of the statute in part because it is conceivable that employers would
risk the threat of the expressed small fine in order to escape their responsibility under the
statute); Rodgers v. St. Mary’s Hospital of Decatur, 149 Ill. 2d 302, 309 (1992) (implied
private right of action is appropriate under the X-Ray Retention Act (Ill. Rev. Stat. 1987, ch.
111½, ¶ 157-11), since no administrative remedies were specified and requiring the Public
Health Department to hire an inspector to monitor hospital compliance is not efficient). In
Corgan, 143 Ill. 2d at 314, our supreme court, finding that an implied private right of action
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was appropriate, noted that “nothing in the statute suggests that the legislature intended to
limit the available remedies to those administrative or criminal measures specifically
enumerated within the [Psychologist Registration] Act.” If the Act in the case at bar had
language limiting the available remedies to what is expressed in its violation provision,
defendant’s plain language argument would be dispositive to the issue. However, in the
absence of such language, the plain language argument is not as persuasive as defendant
asserts.
¶ 42 Furthermore, defendant argues it is not up to this court to determine whether the
legislature’s intent is different than what is expressed by the language of the statute.
However, defendant’s argument would mean that there could never be an implied private
right of action, since such an implied right necessarily means that there is no express
language granting such a right. Such an argument is inconsistent with the numerous cases
finding an implied private right of action in statutes that already have express remedies
incorporated within the text, some of which have been discussed in this analysis. Defendant’s
argument directly contrasts with judicial precedent regarding an implied private right of
action. In addition, we must note that this court is not invalidating the expressed remedy in
the Act. Instead, we are simply determining that the expressed remedy is not adequate to
enforce the Act.
¶ 43 Defendant cites federal case law from the northern district of Illinois in order to support
the textual argument, which happens to be the only case to date that has ruled on whether an
implied private right of action is appropriate for the Act. In Kindle v. Fifth Third Bank, No.
1:14 CV 6502, 2015 WL 5159890 at *1 (N.D. Ill. Sept. 1, 2015), the plaintiff was a customer
in the defendant’s bank and requested to use the employee restroom, although it is not clear
22
No. 1-16-0844
from what kind of medical condition he suffered. After the plaintiff was denied access to the
employee restroom, he soiled his clothing while leaving the premises. Kindle, No. 1:14 CV
6502, WL 5159890 at *1. The district court ruled that the plaintiff’s claim failed as a matter
of law since the Act does not have language providing a private right of action. Kindle, No.
1:14 CV 6502, WL 5159890 at *4.
¶ 44 We find defendant’s case law to be unpersuasive. At the forefront, it is a federal district
court case, thus having no precedential influence over our decision. Ryan, 198 Ill. 2d at 127.
In addition, it is important to note, as plaintiff points out in her brief, that the plaintiff in
Kindle was representing himself pro se and does not appear to have argued for an implied
private right of action. As a result, the court did not address any of the four elements for
finding an implied private right of action. Thus, despite the factual similarities to the present
case, Kindle offers no material guidance for us to follow.
¶ 45 As a final matter, we must also consider whether there would be any other adequate
remedy available to the plaintiff in this situation. Illinois courts have found that an implied
private right of action is not appropriate in situations where a common law cause of action
can also be brought by the plaintiff. See Abbasi, 187 Ill. 2d at 393 (the plaintiff’s complaint
under the Lead Poisoning Prevention Act (410 ILCS 45/1 et seq. (West 1996)) would be
identical to the plaintiff’s pending common law negligence claim); Helping Others Maintain
Environmental Standards v. Bos, 406 Ill. App. 3d 669, 687 (2010) (the plaintiff could pursue
a common law cause of action such as nuisance that would have the same effect as implying
a private right of action under the Livestock Management Facilities Act (510 ILCS 77/1 et
seq. (West 2008))). In the case before us, the only common law cause of action that could
potentially be feasible for plaintiff would be for either intentional or negligent infliction of
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No. 1-16-0844
emotional distress, as discussed in the first part of our analysis. However, as noted at the
beginning of our analysis of the issue, our analysis on the implied private right of action is
based on the premise that a common-law cause of action is unavailable. In that situation,
therefore, we conclude that no other adequate cause of action is available for plaintiff to be
made whole.
¶ 46 CONCLUSION
¶ 47 For the foregoing reasons, we find that the trial court erred in granting defendant’s
motion to dismiss on the basis that plaintiff did not have a private right of civil action under
the Restroom Access Act.
¶ 48 Reversed.
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