Hearing Date: No hearing scheduled

Location: <<CourtRoomNumber>>
Judge: Calendar, H
FILED
8/8/2022 12:00 AM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
COUNTY DEPARTMENT, LAW DIVISION CIRCUIT CLERK
COOK COUNTY, IL
ROBERT BRONSTEIN, et al., )
FILED DATE: 8/8/2022 12:00 AM 2022L003763

2022L003763
) Calendar, H
vs. ) Case No. 2022-L-00376318983638
)
LATIN SCHOOL OF CHICAGO, et al. ) Judge Ehrlich
)

DEFENDANTS M.S. AND MARK SOLOVY’S §2-615 MOTION TO DISMISS

Defendants M.S. and Mark Solovy, Father and next friend of M.S., a minor, by and through

their attorneys, Shelly B. Kulwin and Rachel A. Katz, Kulwin, Masciopinto & Kulwin, LLP, and

Daniel J. Nolan and Nicholas G. Kourvetaris, O’Hagan Meyer, LLC, and pursuant to 735 ILCS

5/2-615, respectfully move this Honorable Court to dismiss Counts III-V of Plaintiffs’ Complaint

against them, with prejudice, and in support thereof, state as follows:

INTRODUCTION

A young boy’s suicide is no doubt an incomprehensible tragedy. The cause of such a death

is often equally incomprehensible. But one thing is clear here: neither Mark Solovy, nor his son,

M.S., played any role in, or contributed in any way to, the suicide that happened here. In January

2022, prior to filing their Complaint, and after their son’s death, the Bronsteins sent text messages

to Mark Solovy that left without doubt that they knew that neither M.S. nor Mark Solovy took any

actions that contributed, in any way, to N.B.’s suicide, while their lawyer, in February 2022, wrote

to Mark Solovy and affirmatively stated that M.S. was not involved in any bullying of N.B. Given

this, it is clear that the contrary allegations of the Complaint are falsehoods not alleged in good

faith, and thus cannot be deemed as well pled allegations to which a presumption of truth must be

given by this Court in ruling on this motion. Furthermore, even if this Court were to consider these

falsehoods as true for purposes of this motion, they do not support any cause of action pled here.

Accordingly, the case should be dismissed with prejudice for failure to state a cause of action.
FILED DATE: 8/8/2022 12:00 AM 2022L003763
 conduct, that they now allege led to N.B.’s suicide, back in September/October, 2021. The only

explanation for the invitation, and Mr. Bronstein’s subsequent expression of gratitude to Mark
FILED DATE: 8/8/2022 12:00 AM 2022L003763

Solovy, is that the allegations of M.S.’s bullying, and Mark Solovy’s disregard for it, are

disingenuous falsehoods, which were not plead with a good faith belief of their truthfulness.

But, to the extent there is any doubt on that point, Todd F. Flood, the Bronsteins’ lawyer

in this very case, wrote a letter to Mark Solovy, dated February 5, 2022, telling him that his firm

and the Bronsteins knew M.S. had not been involved in any alleged bullying or cyber bullying of

N.B. See 2/5/22 Letter, attached as Exhibit 2. Specifically, in relevant part, Bronsteins’ lawyer

wrote:

Flood Law…have been retained by Mr. and Mrs. Bronstein to investigate and
prosecute any and all claims surrounding the tragic death of their son, N.B. It has
come to our attention that your son, M.S. was identified on a string of text messages
that include very disturbing communications to N.B. It appears that your son, M.S.
did not participate in the bullying that took place against N.B. However, it is
clear that your son would be able to aid and assist us in our investigation. It is our
hope that you will allow your son to cooperate in our investigation. Id. (emphasis
in original).

From what we have determined through a preliminary IT dump, your son is

identified on several social media platforms. Again, your son appears not to have
participated in any bullying. Id. (emphasis added).

There are only two conclusions that can be drawn from the foregoing letter: (1) the

Bronsteins never told the lawyers they had retained to “investigate and prosecute any and all

claims” relating to N.B.’s suicide about M.S.’s alleged bullying and his father’s disregard of it;

or (2) the Bronsteins’ lawyers did not think that any of M.S.’s conduct, and in turn his father’s

conduct, in the Fall of 2021 was actionable. The first seems inconceivable if the Bronsteins truly

believed that M.S. and/or his father had done anything that contributed to N.B.’s demise. The

second however, makes sense because, as discussed below, neither M.S.’s nor his father’s

conduct, as alleged, is sufficient to support any of the claims made against them.

3
 Given all of the above, this Court should disregard the clearly baseless allegations against

Mark Solovy and M.S. and dismiss the case against them. Failing that, however, as noted below,
FILED DATE: 8/8/2022 12:00 AM 2022L003763

the case should be dismissed with prejudice pursuant to §2-615 for multiple reasons, even looking

at the false allegations against these defendants in the light most favorable to those who wrongly

made them. 1

SUMMARY OF ARGUMENT

Plaintiffs lost their son, N.B., to suicide on January 15, 2022. See Compl., ¶1. Plaintiffs

filed suit against five of N.B.’s classmates, including M.S., a fifteen-year-old minor, alleging a

claim for intentional infliction of emotional distress (“IIED”) (Count III). Plaintiffs also brought

claims against the boys’ fathers, including Mark Solovy, for negligent infliction of emotional

distress (“NIED”) (Count IV), and pursuant to Illinois’ Parental Responsibility Law (Count V). 2

Plaintiffs’ claims against M.S. and Mark Solovy, fail as a matter of law for multiple

reasons. Initially, Plaintiffs’ IIED must be dismissed because the Complaint fails to allege facts

that come anywhere close to establishing the requisite extreme and outrageous conduct necessary

to maintain such a cause of action. Instead, the Complaint alleges that M.S. failed to include N.B.

in his Homecoming dance plans and purportedly told other Latin Students that N.B. was

unvaccinated - isolated incidents that do not rise to the level of what is generally viewed as

bullying, let alone “extreme and outrageous” manifestations of such conduct. Next, even assuming

M.S.’s conduct could be categorized as “extreme and outrageous,” Plaintiffs’ IIED claim still fails

1
One reason why the Bronsteins may have chosen to bring these false claims could lie in the Solovy’s
response to Mr. Flood’s letter, sent via their attorney, which stated that, while they felt deeply saddened by
these events, they thought it best to keep their 15 year old son out of it as he was not involved in any of the
alleged bullying and it would be emotionally difficult for him to discuss it as he and N.B. had been very
close before they went their separate ways for high school. See 2/7/22 Letter, attached as Exhibit 3.
2
In support of this motion, defendants adopt and incorporate arguments raised by the other defendants in
their respective dismissal motions to the extent they are not inconsistent with any arguments made herein.
4
 as the Complaint is bereft of allegations sufficient to establish that M.S. or Mark Solovy, had the

necessary intent to inflict upon N.B. severe emotional distress. Moreover, even assuming the
FILED DATE: 8/8/2022 12:00 AM 2022L003763

allegations of the Complaint are sufficient to establish the foregoing elements, Plaintiffs’ IIED

claim (and NIED claim) still fails, as a matter of law, because N.B.’s suicide, more than three

months later, and after he had already transferred from Latin to Parker, was an unforeseeable,

independent, intervening act that broke the chain of causation.

Separately, Plaintiffs’ NIED claim against Mark Solovy, based apparently on M.S.’s own

negligence, also fails because Plaintiffs have not pled (and cannot plead) the necessary elements

of duty, breach and proximate cause. Finally, for these same reasons and others, Plaintiffs’ Parental

Responsibility Law claim must also be dismissed.

While N.B.’s death is undoubtedly tragic, Plaintiffs’ attempt, through this lawsuit, to assign

any part of the blame for it to M.S. or his father, is radically misplaced, and the Complaint filed to

further such an improper endeavor, fails utterly to fulfill even the most basic pleading requirements

necessary to support the claims alleged within. Thus, the case against M.S. and Mark Solovy

should be dismissed, in its entirety, with prejudice, in accordance with §2-615.

RELEVANT ALLEGATIONS

Plaintiffs assert three counts against Mark Solovy: (1) IIED (Count III); (2) NIED (Count

IV); and violation of the Parental Responsibility Law (Count V). Plaintiffs’ IIED claim is also

brought against M.S.

The only conduct attributed to M.S. specifically with regard to his interactions with N.B.,

is as follows: (1) sometime in September of 2021, N.B. asked M.S. what his plans were for Latin’s

Homecoming dance and was told that he was not allowed to join M.S. and his friends (see Compl.,

¶55); and (2) sometime towards the end of September or early October, 2021, M.S. spread rumors

around Latin that N.B. was unvaccinated for COVID-19 (id., ¶56). Regarding Mark Solovy,

5
 Plaintiffs allege that: (1) on or about September 24, 2021, Mrs. Bronstein informed Mark Solovy

about the Homecoming dance interaction between their children and asked him not to tell M.S.
FILED DATE: 8/8/2022 12:00 AM 2022L003763

about their conversation (id., ¶55); and (2) on or about October 2, 2021, following N.B. being

harassed regarding his vaccination status, Mrs. Bronstein approached Mark Solovy to discuss N.B.

being bullied by M.S. through the vaccination rumors (id., ¶¶59-60). Plaintiffs further allege, in

the three plus months following M.S.’s and Mark Solovy’s alleged conduct, N.B. was subjected to

bullying and cyberbullying at the hands of N.B.’s basketball teammates, including via text

messages identifies in the Complaint. Id., ¶¶91-92, 95. M.S. was not alleged to be a member of the

basketball team nor to have been a party to any of the cyberbullying threads or group text messages

identified in the Complaint. Id., ¶¶91-92, 95, 179.

LEGAL STANDARD

Under §2-615, this Court should dismiss Plaintiffs’ claims if they are substantially

insufficient as a matter of law. 735 ILCS 5/2-615. “A complaint fails to state a cause of action if

it does not contain factual allegations in support of each element of the claim that the plaintiff must

prove in order to sustain a judgment.” Grund v. Donegan, 298 Ill.App.3d 1034, 1037 (1st Dist.

1998). Although the Court must view Plaintiffs’ allegations in a light most favorable to them, this

does not mean the Court accepts as true Plaintiffs’ conclusions because “legal conclusions and

factual conclusions…unsupported by allegations of specific facts [are] disregarded in ruling on a

motion to dismiss.” LaSalle Nat’l Bank v. Cty. Suites, Inc., 325 Ill.App.3d 780, 790 (1st Dist.

2001). “Conclusions of fact are insufficient to state a cause of action regardless of whether they

generally inform the [opposing party] of the nature of the claim against [them].” Coghlan v. Beck,

2013 IL App (1st) 120891, ¶22.

6
 ARGUMENT

I. Plaintiffs’ Negligent & Intentional Infliction of Emotional Distress Claims (Counts

III-IV) Are Barred by the “Suicide Rule” For Lack of Causation
FILED DATE: 8/8/2022 12:00 AM 2022L003763

Under well-established Illinois law, a plaintiff generally cannot assert claims for wrongful

death or survival when the death is the result of suicide because suicide is an unforeseeable

intervening act that defeats causation as a matter of law (otherwise known as the “suicide rule”).

Turcios v. DeBruler Co., 2015 IL 117962, ¶¶20, 40 (The “general rule, applicable in negligence

actions, that the injured party’s voluntary act of suicide is an independent intervening act which is

unforeseeable as a matter of law, and which breaks the chain of causation from the tortfeasor’s

negligent conduct.”); accord Doe v. Doe, 2016 IL App (1st) 153272, ¶11; Johnson v. Wal-Mart

Stores, Inc., 588 F.3d 439, 442 (7th Cir. 2009) (applying Illinois law); Crumpton v. Walgreen Co.,

375 Ill.App.3d 73, 79 (1st Dist. 2007); Chalhoub v. Dixon, 338 Ill.App.3d 535, 539-40 (1st Dist.

2003); Cleveland v. Rotman, 297 F.3d 569, 572 (7th Cir. 2002) (applying Illinois law); Kleen v.

Homak, 321 Ill.App.3d 639, 642 (1st Dist. 2001). The suicide rule, as made clear by the Illinois

Supreme Court, applies equally to both negligence claims and intentional tort claims. Turcios,

2015 IL 117962, ¶41 (“Because an intentional tortfeasor’s liability is limited by the concept of

foreseeability embodied in the doctrine of proximate causation, a cause of action for wrongful

death predicted on a suicide allegedly brought about by the intentional infliction of emotional

distress is subject to the general rule that suicide is unforeseeable as a matter of law.”); Doe, 2016

IL App (1st) 153272, ¶7 (“The ‘suicide rule,’ as it has come to be known, is based on principles

of proximate cause. In actions for negligence and intentional torts alike, the injury suffered by a

plaintiff must be the natural consequence, not merely a remote consequence, of the defendant’s act

before there can be a recovery in tort.”) (citation omitted).

The strong presumption that suicide is unforeseeable as a matter of law such that

negligence claims and intentional tort claims cannot stand when suicide results, can only be
7
 overcome in the rarest of cases. Turcios, 2015 IL 117962, ¶41. As acknowledged by the Illinois

Supreme Court, “suicide may result from a complex combination of psychological, psychiatric,
FILED DATE: 8/8/2022 12:00 AM 2022L003763

chemical, emotional and environmental factors,” such that “it is the rare case in which a decedent’s

suicide would not break the chain of causation and bar a cause of action for wrongful death, even

where the plaintiff alleges the defendant inflicted severe emotional distress.” Id.

Accordingly, to overcome the suicide rule’s strong presumption, Plaintiffs must not only

plead facts which, if proven, would establish that M.S.’s and Mark Solovy’s conduct was a cause

in fact of N.B.’s suicide, but they also must plead facts which, if proven, would overcome

application of the general rule that N.B.’s suicide is deemed unforeseeable as a matter of law. In

other words, “[Plaintiffs] must plead facts demonstrating that the suicide was foreseeable, i.e., that

it was a likely result of the [M.S.’s and Mark Solovy’s] conduct.” Id., ¶40. Here, however,

Plaintiffs have failed to plead that M.S.’s or Mark Solovy’s actions were either the cause in fact or

legal cause of N.B.’s suicide such that both the NIED and IIED claims must be dismissed.

A. Insufficient Allegations of Cause in Fact

Cause in fact exists where there is a reasonable certainty that a defendant’s acts caused the

plaintiff’s injury.” Krywin v. Chi. Transit Auth., 238 Ill.2d 215, 226 (2010). Illinois courts employ

either the “but for” test or the “substantial factor” test when evaluating cause in fact. Turcios, 2015

IL 117962, ¶23. A defendant’s conduct under the “but for” test, “is not the cause of an event if the

event would have occurred without it.” Id. Under the “substantial factor” test, a defendant’s

conduct is a “cause in fact” of the plaintiff’s injury only if that conduct is a material element and

a substantial factor in bringing about the injury. Abrams v. City of Chi., 211 Ill.2d 251, 258 (2004).

A defendant’s conduct is a material element and substantial factor in bringing about the injury if,

absent that conduct, the injury would not have occurred. Id. Plaintiffs’ claim fails under either test.

8
 On their face, M.S.’s failure to include N.B. in his Homecoming dance plans in September

2021 and questioning of N.B.’s vaccination status, can in no way be said, to a reasonable certainty,
FILED DATE: 8/8/2022 12:00 AM 2022L003763

to have caused N.B.’s suicide on January 13, 2022, more than three months later and/or that but

for the absent September, 2021 Homecoming dance invitation or questioning of N.B.’s vaccination

status, no death would have occurred. Cf. Murillo v. U.S., 504 F.Supp.3d 875, 893 (N.D. Ill. 2020)

(applying Illinois law) (no cause in fact in part because of 14-day gap between alleged tortious

conduct and decedent’s suicide). This conclusion is bolstered by the Complaint allegations that

N.B., in the intervening three months, was allegedly subjected to bullying and cyberbullying at the

hands of other Latin students, not M.S., which included a series of text messages, in which M.S.

is not alleged to have participated, culminating in a December 2021 group text event, to which

M.S. is also not alleged to have participated. Id., ¶¶91-92, 95 179. See Rockett v. Chevrolet Motor

Div., Gen. Motors Corp., 31 Ill.App.3d 217, 222 (1st Dist. 1975) (affirming directed verdict

because existence of numerous equally possible causes of injury would require jury to engage in

“gross guesswork.”). This is especially true given that, as of December 1, 2021, N.B. was aware

that he would be transferring to Parker, and, by January 2022, N.B. had been away from Latin for

a month. See Compl., ¶¶130-32. Likewise, and for the same reasons, Mark Solovy’s alleged failure

to act in response to Mrs. Bronstein alerting him to M.S.’s purported bullying of N.B. in

October/September, 2021, can hardly be said to be a “but for” cause of, or a “substantial factor”

in bringing about, N.B.’s suicide.

B. No Legal Cause

Legal cause, is a question of foreseeability. “The relevant inquiry is whether the injury is

the type that a reasonable person would see as a likely result of his or her conduct.” Abrams, 211

Ill.2d at 258. Applying this framework, it is clear that the Complaint does not allege sufficient facts

to establish that N.B.’s suicide was a foreseeable result of M.S. not including N.B. in his

9
 Homecoming dance plans and/or M.S. spreading rumors that N.B. was unvaccinated. There are no

allegations in the Complaint that N.B. or the Plaintiffs ever communicated to M.S. (or Mark
FILED DATE: 8/8/2022 12:00 AM 2022L003763

Solovy) that N.B. was suffering from any anxiety, depression or suicidal thoughts such that either

of them would think that not including N.B. in M.S.’s Homecoming dance plans and/or

questioning N.B.’s vaccination status would cause N.B. to commit suicide more than three months

later, or for that matter, ever. Indeed, the only allegations relative to foreseeability are the

conclusory allegations, that as a result of the minors’ conduct and/or the parents’ conduct, N.B.

committed suicide. See e.g., Compl., ¶¶228-231, 240-242 (alleging as a result of Minor

Defendants’ and/or Named Parents’ conduct, N.B. suffered severe emotional distress that resulted

in N.B. taking his own life). Plaintiffs’ conclusory foreseeability allegations, however, are legally

insufficient to overcome the strong presumption that N.B.’s suicide was unforeseeable as a matter

of law. Coghlan v. Beck, supra; Cf. Doe v. Doe, 2016 IL App (1st) 153272, ¶¶11-12 (affirming

dismissal pursuant to §2-615, finding allegations that defendant knew that decedent was suicidal

and made deliberate attempts to encourage decedent to take her own life was not enough, even if

proven, to establish that decedent’s suicide was foreseeable). As such, the NIED and IIED claims

must be dismissed.

II. Alternatively Plaintiffs’ NIED Claim Against Mark Solovy (Count IV) Must Be
Dismissed for Failure to Allege Duty and Breach

In Count IV, Plaintiffs bring a direct victim claim on behalf of N.B. against Mark Solovy

only (not M.S.), for NIED. To bring a claim for NIED, Plaintiffs must establish the traditional

elements of negligence: duty, breach, causation and injury. Corgan v. Muehling, 143 Ill.2d 296,

306 (1991). The allegations contained in Count IV, however, relate to M.S. only, not to Mark

Solovy. See Compl., ¶237 (“Minor Defendants, as Latin Students, were required to follow and

abide by the Handbook, including but not limited to the anti-bullying policies.”); ¶239 (“Minor

Defendants’ actions and/or omissions to act…were careless and negligent and constitute violations
10
 of the Handbook, including but not limited to the anti-bullying policies, and a breach of duty of

care owed to N.B. by Minor Defendants.”); ¶240 (“As a direct and proximate cause of Minor
FILED DATE: 8/8/2022 12:00 AM 2022L003763

Defendants’ breach of his/her duty of care…”). Stated otherwise, nowhere in Count IV do

Plaintiffs allege that Mark Solovy owed any duty of care to N.B., or that Mark Solovy breached

his duty of care, such that Plaintiffs’ NIED claim must be dismissed. 3 See Cooney v. Chicago Pub.

Sch., 407 Ill.App.3d 358, 363 (1st Dist. 2010).

III. Plaintiffs’ IIED Claim Against M.S. & Mark Solovy (Count III) Must Also Be
Dismissed for Failure to Allege Extreme & Outrageous Conduct & Requisite Intent

In order to maintain a cause of action for IIED, Plaintiffs must plead sufficient facts to

establish, inter alia, that: M.S.’s and Mark Solovy’s conduct was extreme and outrageous; and

M.S. and Mark Solovy either intended to inflict severe emotional distress or knew that there was

a high probability that their conduct would do so. Welsh v. Commonwealth Edison Co., 306

Ill.App.3d 148, 154 (1st Dist. 1999). Plaintiffs’ claim fails in both respects.

A. M.S.’s Conduct was Not Extreme and Outrageous

Whether conduct is extreme and outrageous is judged on an objective standard. Welsh, 306

Ill.App.3d at 154. Liability, however, does not extend to “mere insults, indignities, threats,

annoyances, petty oppressions or trivialities.” Pub. Fin. Corp. v. Davis, 66 Ill.2d 85, 90 (1976);

3
To the extent that Count IV can be viewed as a claim against M.S., as opposed to Mark Solovy, it must
still be dismissed because the Latin Handbook does not create a duty among students so as to establish a
duty running from M.S. to N.B. The Latin Handbook is, at best, a contract between Latin and the individual
families. Such a contract, however, does not create contractual obligations among student or the assumption
of any duty on the part of M.S. to N.B. See Collins Co. v. Carboline Co., 125 Ill.2d 498, 511 (1988)
(Generally, “[p]rivity requires that the party suing has some contractual relationship with the one sued”);
Mulvey v. Carl Sandburg H.S., 2016 IL App (1st) 151615, ¶¶29, 32 (school handbook, particularly its
bullying provisions, does not even form a contract where there is lack of offer, acceptance, or
consideration); Rabel v. Ill. Wesleyan Univ., 161 Ill.App.3d 348, 357 (4th Dist. 1987) (rejecting negligence
claim, in part, because handbook, regulations and/or policies did not create a “duty”); accord Harris v.
Adler Sch. of Prof. Psych., 309 Ill.App.3d 856, 861 (1st Dist. 1999). In the absence of a duty, there can be
no cause of action for negligence against M.S. See Washington v. City of Chi., 188 Ill.2d 235 (1999).
11
 see also Lewis v. Sch. Dist. #70, 523 F.3d 730, 747 (7th Cir. 2008) (“This standard is quite high”).

Indeed, as stated by the Illinois Supreme Court:

FILED DATE: 8/8/2022 12:00 AM 2022L003763

It has not been enough that the defendant has acted with an intent which is tortious
or even criminal, or that he has intended to inflict emotional distress, or even that
his conduct has been characterized by “malice,” or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort. Liability has been
found only where the conduct has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency.

Id. (citation omitted); see also Rudis v. Nat’l Coll. of Educ., 191 Ill.App.3d 1009, 1013 (1st Dist.

1989) (Illinois courts have “essentially restricted” IIED to cases in which a defendant’s conduct is

so abusive “that it would cause severe emotional distress to a person of ordinary sensibilities.”).

To determine whether plaintiffs meet this high bar, courts consider whether: (1) the character of

the conduct itself is extreme and outrageous; (2) the conduct arises out of an abuse of a position

or relationship in which the defendant has authority over the plaintiff; or (3) the defendant knew

of some peculiar susceptibility of the plaintiff to emotional distress. Id. at 1012. Courts may also

consider the intensity and the duration of the distress as a factor in determining severity. Id.

Whether behavior is “extreme and outrageous” is a matter of law for the court to decide. Ulm v.

Mem’l Med. Ctr., 2012 IL App (4th) 110421, ¶39.

Here, it is clear from the allegations of the Complaint that M.S.’s actions, over, at most, a

two-week period of time, do not rise to the level of extreme and outrageous conduct necessary to

maintain a cause of action for IIED. Indeed, not including N.B. in his Homecoming dance plans

or telling people that N.B. was unvaccinated, whether true or not, is not the type of conduct that

goes “beyond all possible bounds of decency” or is regarded as “intolerable in a civilized

community.” Feltmeier v. Feltmeier, 207 Ill.2d 263, 270 (2003); see also Benton v. Little League

Baseball, Inc., 2020 IL App (1st) 190549, ¶64 (“liability only attaches ‘where the conduct has

been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ and
12
 where the distress, when measured by its intensity and duration, is so severe that no reasonable

man could be expected to endure it.”); Knierim v. Izzo, 22 Ill.2d 73, 85 (1961) (drawing distinction
FILED DATE: 8/8/2022 12:00 AM 2022L003763

between unactionable “slight hurts which are the price of a complex society” and actionable

“intentional actions wholly lacking in social utility.”). Courts have found conduct far more

egregious than that alleged by Plaintiffs to be insufficient to state a claim. E.g., Khan v. Am.

Airlines, 266 Ill.App.3d 726 (1st Dist. 1994) (affirming dismissal on allegations that defendants

knowingly sold a stolen airline ticket to plaintiff, causing him to be arrested and charged with theft,

despite being aware that plaintiff was en route to his father’s funeral), abrogated on other grounds

by, 308 Ill.App.3d 923, 928 (1st Dist. 1999); Tabora v. Gottlieb Mem. Hosp., 279 Ill.App.3d 108,

120, (1st Dist. 1996) (affirming dismissal even where defendants engaged in “five year campaign

of harassment and intimidation” by falsely claiming plaintiff was incompetent, revoking his

privileges, and constantly berating him in front of hospital staff); Rudis, 191 Ill.App.3d at 1013-

14 (“While the defendants’ remarks may have been insulting, or untrue, we do not believe that

they rise to a level of intensity or duration that no reasonable man could be expected to endure.”).

To find otherwise here would be to hold that the ubiquitous conduct of middle and high

schoolers picking and choosing who gets invited to what and gossiping about each other is so

extreme and outrageous that it creates potential liability for every child who does so and every

parent who does not feel it is their place to govern such activities on a daily basis.

B. No Allegations of Extreme and Outrageous Conduct by Mark Solovy

While unclear, it appears Plaintiffs are also attempting to assert an IIED claim against Mark

Solovy for his own conduct. 4 See Compl., ¶225 (“The acts and/or omissions to act by all Named

Parents…constitute violations of the Handbook, including but not limited to the anti-bullying

policies, and a breach of each Named Parents…duty of care owed to N.B.”); ¶¶229-30 (“As a

4
In contrast, Plaintiffs’ NIED claim is brought against the parents only.
13
 direct and proximate result of the actions and/or omissions by Named Parents…”); ¶231 (“N.B.’s

emotion harm from the Named Parents…acts or omissions were so severe that is resulted in N.B.
FILED DATE: 8/8/2022 12:00 AM 2022L003763

taking his own life.”). Plaintiffs however do not allege, even in conclusory form, any specific “acts

and/or omissions” on the part of Mark Solovy, let alone ones that that were extreme and

outrageous. For this reason too, Plaintiffs’ IIED claim against Mark Solovy must be dismissed.

C. Insufficient Allegations of Intent

In addition to pleading extreme and outrageous conduct, Plaintiffs must also plead

sufficient facts to establish either that M.S. and Mark Solovy intended that their conduct inflict

N.B. with severe emotional distress or knew that there was a high probability that their conduct

would cause N.B. severe emotional distress. Welsh, 306 Ill.App.3d at 154. The requisite intent is

established when the defendant’s actions “by their very nature…were likely to cause severe

distress or when the defendant knew that a plaintiff was particularly susceptible to such distress.”

Molina v. Latronico, 430 F.Supp.3d 420, 441 (N.D. Ill. 2019) (applying Illinois law). Here,

however, there are insufficient factual allegations to make either such inference.

As to M.S., the nature of his conduct, i.e., not including N.B. in his Homecoming dance

plans and telling other students that N.B. was unvaccinated, is not the type of conduct, in it of

itself, that is “likely to cause” severe distress. Further, the Complaint contains no allegations

whatsoever that would suggest that M.S. or Mark Solovy knew, or had any reason to know, that

N.B. was particularly susceptible to severe emotional distress.

IV. Parental Responsibility Claim Must Be Dismissed (Count V)

To state a claim for violation of the Parental Responsibility Law, a derivative claim, against

Mark Solovy, Plaintiffs must allege facts showing that M.S.’s actions were “willful and

malicious.” 740 ILCS 115/3. Plaintiffs, however, do not allege facts to support such a conclusion.

14
 To sufficiently plead willful or malicious misconduct (as opposed to negligent conduct

which is not actionable), Plaintiffs must allege facts to establish either a deliberate intention to
FILED DATE: 8/8/2022 12:00 AM 2022L003763

harm or an utter indifference to or conscious disregard for the welfare of N.B. Adkins v. Sarah

Bush Lincoln Health Ctr., 129 Ill.2d 497, 518 (1989). Simply characterizing M.S.’s conduct as

willful and malicious, as Plaintiffs do here (see Compl., ¶232), however, is insufficient to plead

the requisite intent. Id. at 519 (allegations that a party acted maliciously to describe the act and

intentions of a defendant are “meaningless and add nothing to the complaint without some further

allegations of specific fact.”) (internal citation omitted). In other words, M.S.’s conduct cannot be

deemed an actionable wrong merely because Plaintiffs have characterized M.S.’s actions as having

been done with willful and malicious intent. As such, the Parental Responsibility Law claim

against Mark Solovy for M.S.’s intentional conduct must be dismissed. See Sklan v. Smolla, 95

Ill.App.3d 658, 665 (1st Dist. 1981) (affirming summary judgment on parental responsibility claim

to parents of minor whose actions did not support plaintiffs’ claim for the intentional tort alleged).

Additionally, even assuming M.S.’s conduct (no Homecoming invite and vaccination

rumors) was willful and malicious, Plaintiffs’ Parental Responsibility Law claim still fails. A

Parental Responsibility Law claim withstands a motion to dismiss “only if the complaint alleges

specific instances of prior conduct sufficient to put the parent on notice that the act complained of

was likely to occur.” Allstate Ins. Co. v. Pruitt By Pruitt, 177 Ill.App.3d 407, 412 (1st Dist.1988).

To hold Mark Solovy liable for M.S.’s alleged intentional acts, Plaintiffs must allege that he had

knowledge of specific instances of prior conduct sufficient to put him on notice that the M.S.

would likely not include N.B. in his Homecoming plans or that M.S. would likely tell other Latin

students that N.B. was unvaccinated. See Kosrow For Use & Benefit of Hoffman v. Smith, 162

Ill.App.3d 120, 124 (2d Dist. 1987). Plaintiffs make no such allegations here. For this reason, too,

Count V should be dismissed.

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 CONCLUSION

Based on the foregoing, Defendants M.S. and Mark Solovy, Father and next friend of M.S.,
FILED DATE: 8/8/2022 12:00 AM 2022L003763

a minor, respectfully move this Honorable Court to enter an order dismissing Counts III-V of

Plaintiffs’ Complaint against them, with prejudice, and for any other relief this Honorable Court

deems appropriate.

Respectfully Submitted, Respectfully Submitted,

KULWIN, MASCIOPINTO & KULWIN, LLP O’HAGAN MEYER LLC

By: /s/ Shelly B. Kulwin By: /s/ Daniel J. Nolan

Shelly B. Kulwin Daniel J. Nolan
Rachel A. Katz Nicholas G. Kourvetaris
Kulwin, Masciopinto & Kulwin, LLP O’Hagan Meyer LLC
161 N. Clark Street, Suite 2500 One E. Wacker Drive, Suite 3400
Chicago, Illinois 60601 Chicago, Illinois 60602
(o): 312.641.0300; (f) 312.855.0350 (o): 312.422.6100; (f): 312.422.6110
skulwin@kmklawllp.com dnolan@ohaganmeyer.com
rkatz@kmklawllp.com nkourvetaris@ohaganmeyer.com
Atty. No. 43136 Atty. No. 60938

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