author: PRESIDING JUSTICE BUCKLEY

text:
      In re MARRIAGE OF JANE R. BRYANT, Petitioner-Appellee, and JOHN H. BRYANT, Respondent-Appellant.
    First District (1st Division)
    No. 1—88—0604
    Opinion filed September 28, 1990.
    Rehearing denied December 13, 1990.

      James R. Truschke & Associates, P.C., of Arlington Heights (James R. Truschke and Kurt A. Richter, of counsel), for appellant.
    llene M. Wolf and Randy G. Black, both of Park Ridge, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

John Bryant (respondent) appeals from the circuit court order denying his petition to terminate an obligation to pay maintenance to his ex-wife, Jane Bryant (petitioner), pursuant to a dissolution of marriage judgment. Respondent contends that the circuit court, in concluding that respondent failed to show a substantial change of circumstances, improperly considered income generated by property awarded to respondent as his portion of the parties’ marital property. Additionally, respondent contends the circuit court abused its discretion in denying his petition. For the reasons stated in this opinion, the order of the circuit court is affirmed.

On January 21, 1982, Judge Robert Cusack of the circuit court of Cook County entered a judgment dissolving the marriage between petitioner and respondent following a full trial on the merits. Under the terms of this judgment, respondent was to pay petitioner permanent maintenance in the amount of $1,500 per month.

On October 11, 1984, petitioner filed a petition alleging an arrearage in maintenance. On January 2, 1985, respondent filed a petition to terminate maintenance predicated upon his loss of employment and salary. On December 1, 1987, after hearing testimony and argument on the petitions, Judge Barbara Disko ordered the payment of the arrearages and denied respondent’s petition to terminate maintenance.

The terms of the January 21, 1982, judgment relevant to this appeal require that respondent pay petitioner $1,500 per month in permanent maintenance, with such payments continuing until petitioner’s death. Upon respondent’s death, the award would remain as a claim against his estate. The judgment further provides that all shares of stock, except shares of Standard (Amoco) Oil of Indiana common stock held jointly, are the sole and exclusive property of respondent.

The judgment also contained a handwritten interlineation regarding what contingencies would affect respondent’s maintenance obligation. A major contention between the parties on appeal concerns the meaning of this handwritten interlineation. This contention is complicated because the parties dispute which of three different versions of the judgment is “the” judgment entered by Judge Cusack.

One version of the judgment was entered with the clerk of the circuit court on January 21, 1982, and appears in the appellate record. This version contains the signature of Judge Cusack and provides:

“This payment shall continue until such time as the petitioner shall die. The sum is non-modifiable even if the petitioner works or remarries but is subject to modification if the petitioner has a substantial change in circumstances.” (Interlineation underlined.)

The second version, also entered January 21, 1982, appears in the appellate record, but does not contain Judge Cusack’s signature. The record indicates that petitioner attached and quoted this version in various petitions and papers submitted to the court. This version provides:

“This payment shall continue until such time as the petitioner shall die. This sum is non-modifiable even if the petitioner works or remarries but would be subject to modification if the respondent has a substantial change in circumstances.” (Interlineation underlined.)

The final version does not appear in the appellate record, but is attached to respondent’s reply brief. According to respondent’s reply brief, the clerk of the circuit court certified on January 25, 1982, that this final version is a true, perfect and complete copy of the judgment. This version contains the same language as the second version, but is in different, more legible handwriting.

At the December 1, 1987, hearing on the parties’ respective petitions, Judge Disko sustained petitioner’s objection to respondent’s attempt to explain the interlineation for the court. The court also refused respondent’s submission to the court of a certified copy of the judgment, explaining that she was bound by the four corners of the judgment, and noted that she had the “original” before her. During her ruling, Judge Disko reiterated that she was bound by the terms of the judgment, but indicated the opportunity for modification certainly existed.

During the hearing, respondent testified concerning his financial circumstances. He testified that he was “layed off” from Amoco Oil on July 1, 1984, and, at the time of trial, was surviving on individual retirement accounts withdrawals, social security, stock dividends, pension income, and fees earned as a consultant. In particular, respondent testified to his financial situation as follows:

Respondent’s salary from Amoco Oil

at the time of judgment......................$69,900/year.

Respondent’s final salary.....................$78,600/year.

Amoco pension income.......................$39,500/year.

Consulting income............................$2,000/year.

Social security...............................$7,824/year.

CD and stock income..........................$6,000/year.

In addition to the above income, respondent testified that upon his termination from Amoco, he received a $78,000 lump sum distribution and $8,000 for vacation pay. Respondent further testified he received 3,300 shares of stock, having a $60-per-share value at the time of distribution. Eventually, respondent rolled these securities over into an IRA, which retains an approximate annual value of between $200,000 and $210,000, despite respondent’s annual average withdrawals of about $20,000.

Besides the income and assets listed above, respondent testified regarding his current expenses. He testified his expenses were approximately $63,260 per year and consisted of his condominium mortgage payment, taxes, education expenses for his children, and support for his mother. On cross-examination, respondent admitted that none of these expenses were mandated by the underlying judgment.

At the close of the evidence, petitioner moved for a directed finding on respondent’s petition to terminate maintenance, arguing that respondent failed to carry his burden of showing a substantial change of circumstances. The court agreed that respondent failed to meet his burden and denied his petition.

The first issue presented on review is whether the underlying judgment, regardless of the version, limited the circuit court’s ability to. consider a substantial change of circumstances in the financial situation of either respondent or petitioner. Petitioner contends that the underlying judgment precludes the circuit court from considering a material change in respondent’s circumstances. On the other hand, respondent contends the underlying order allows such consideration. Of course, each party relies on a different version of the underlying judgment to. support his or her respective contentions. However, in light of the Illinois Supreme Court’s recent decision in In re Marriage of Sutton (1990), 136 Ill. 2d 441, 443, it is not necessary to resolve which version of the underlying judgment is the correct version.

In Sutton, the court interpreted the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.) and explained the circumstances under which a circuit court is precluded from modifying a maintenance award under the Act. There, the wife-petitioner sought an increase in her maintenance award contained in a judgment that incorporated a legal separation agreement previously reached by the parties. The husband-respondent argued the court was prohibited from .modifying the award because the incorporated settlement agreement contained a provision that precluded modification of the award absent the consent of both parties.

In rejecting the respondent’s contention, the court construed sections 502 and 510 of the Act. The court noted that under section 510(a) of the Act, the provisions of any judgment respecting maintenance or support are generally modifiable, except as otherwise provided in paragraph (f) of section 502. (Ill. Rev. Stat. 1987, ch. 40, par. 510(a).) Under the latter paragraph, a judgment attendant upon the dissolution of marriage that incorporates the terms of a settlement agreement may expressly preclude or limit modification of the terms of the judgment if the agreement so provides. (Ill. Rev. Stat. 1987, ch. 40, par. 502(f).) The court stated that unless section 502(f) is applicable, the court’s power to modify the terms of an agreement is clear. (Sutton, 136 Ill. 2d at 445.) Thus, because the terms of the judgment in this case do not incorporate the terms of a settlement agreement pursuant to section 502(f), the court had power to modify the maintenance award.

The second issue presented on appeal is whether the circuit court erred in considering respondent’s pension and stock income in determining whether there existed a substantial change of circumstances. Respondent contends that since he was awarded the underlying stock and pension as part of a property award, the court is precluded from considering the income from this property in determining whether modification is proper. This court finds respondent’s contention to be without merit.

In determining whether and to what extent a maintenance award can be modified, a circuit court may consider the same factors which, under the statute, are to be assessed in making the initial award. (In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 482, 426 N.E.2d 237, 240.) These factors are set forth under section 504(b) of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) One of the factors the court may consider includes “the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)(6).) The plain language of this section makes clear that the circuit court properly considered respondent’s pension and stock dividend income in ruling on his petition to modify. This income bears directly on respondent’s ability to meet his needs while also meeting the needs of petitioner.

The final issue presented on review is whether the trial court abused its discretion in denying respondent’s petition to terminate maintenance. In denying respondent’s petition, the court, after hearing all the evidence, concluded that respondent failed to meet his burden in proving that the maintenance award should be terminated or modified.

A circuit court’s denial of a petition to terminate maintenance will not be reversed unless such denial was an abuse of discretion. (In re Marriage of Chalkley, 99 Ill. App. 3d at 482, 426 N.E.2d at 241.) At the time of the divorce decree, respondent earned $69,000 a year. At the hearing of the petition, the evidence showed respondent receiving $39,500 a year in pension, $2,000 annually in consulting income, $7,825 annually in social security, $6,000 annually in certificate of deposit and stock income, and annual withdrawals approximating $20,000 from an IRA retaining an approximate value of $200,000. No evidence was presented regarding petitioner’s financial circumstances. Based on the above evidence, no abuse of discretion has been shown.

For the foregoing reasons, we affirm the order of the trial court denying respondent's petition to terminate maintenance.

Affirmed.

CAMPBELL and MANNING, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES J. ALLEN et al, Plaintiffs-Appellees, v. OTIS ELEVATOR COMPANY, Defendant-Appellant (John Hancock Mutual Life Insurance Company, Defendant).
    First District (1st Division)
    No. 1—88—2630
    Opinion filed September 28, 1990.
    Rehearing denied December 19, 1990.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Perry C. Rocco, and Christine L. Olson, of counsel), for appellant.
    Cantwell & Balonick, of Chicago (Peter A. Cantwell and Stephen F. Boulton, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Otis Elevator Company (defendant) appeals from a $5,000 jury award to each of the plaintiffs James Allen, his wife, Helen, and their daughter, Mary, in their action alleging negligent infliction of emotional distress. Defendant requests that a judgment notwithstanding the verdict be entered on the ground that plaintiffs have failed to prove a negligent infliction of emotional distress cause of action as a matter of law. Defendant alternatively requests that a new trial be granted due to prejudicial rulings on the submission of jury instructions and the admission of certain testimony, or that a new trial be granted on the issue of damages alone on the ground that the jury award is excessive and against the manifest weight of the evidence. We need not address the issue raised on defendant’s new trial request because we find a judgment notwithstanding the verdict must be entered.

The evidence adduced at trial reveals the following. At approximately 11 p.m. on January 22, 1977, plaintiffs, who were heavily clothed, entered the John Hancock Center in Chicago, Illinois, where they boarded an elevator with 15 or 20 other passengers destined for the 95th and 96th floors. Prior to reaching the 95th floor, the elevator “stopped and dropped” “four to six to eight feet,” causing James to be thrown against fellow passengers and Helen and Mary to be thrown against the walls of the elevator. When the elevator came to a halt, James pushed the elevator’s emergency alarm bell button. A voice answered and informed the passengers that their needs would be attended to.

Plaintiffs described the conditions in the elevator at the time. Air circulation in the car was poor because of a closed circulation fan. The passengers could not move or sit down due to the limited amount of space in the elevator. The elevator became so hot that people were soaked in perspiration and began removing their clothing.

After approximately 15 minutes without any outside contact, James rang the alarm bell again. A voice replied that “someone was coming over from Water Tower” to free the passengers. James requested that the person on the intercom keep in contact with them, but a long period of time lapsed without any outside contact. In response to an “S.O.S.” signal that James rang out on the alarm bell, an impatient voice informed the passengers as to the futility of ringing the alarm bell. Outside communication was thereafter cut off. The passengers unsuccessfully attempted to open the escape hatch on top of the elevator and the doors of the elevator. A gun that one passenger carried in a holster was exposed during these actions, causing the plaintiffs to fear that the man might panic and start shooting.

William Valleau, the second mechanic for the Hancock building, and Jerome Camp, a Hancock building engineer, located the stalled elevator and rescued the passengers at approximately 1 a.m. by opening the escape hatch and lowering a ladder into the elevator. The passengers climbed onto the top of the elevator and slid along the elevator’s roof to an open hallway door leading to one of the building’s floors. The passengers could observe the black “abyss” of the empty adjoining elevator shaft. Valleau subsequently replaced an “open” F4C 3k fuse and returned the elevator to service.

Witnesses explained the following regarding malfunctioned elevators. When incidents of elevator malfunction occur, a time ticket is prepared by the repair mechanic and a report is submitted to him. If a mechanic is needed on weekends, the “first” mechanic is contacted, and if he does not respond, the “second” mechanic is notified. The elevator car could not actually drop. When the fuse “opened,” power to the brake of the elevator would have been lost, but the elevator car “would have had a controlled stop, regenerative power through the circuit,” and the elevator would have stopped approximately 30 to 40 seconds, or three to four floors, later following the opening of the fuse.

Plaintiffs described the injuries they incurred as a result of the incident. When James walks into an elevator he gets excited and a “little clammy,” “wondering if [the] elevator is going to go up or *** down.” He has exited elevators prior to their departure where he believes malfunctions are likely, such as when there is a delay in the closing of the elevator doors. James admitted that he has never received any medical treatment as a result of the incident, including treatment from a psychiatrist or counselor. He has not been prevented from attending work as a result of the incident. Subsequent to the elevator incident, he and his wife purchased a condominium on the fifth floor of a building and used the elevator regularly.

Helen was unable to sleep the night of the incident. She had never feared the use of elevators prior to the incident, but now sometimes exits a crowded elevator. Her palms now start to get moist and she has a feeling of distress when she is in an elevator. She exits an elevator if the elevator doors do not immediately close correctly or if she feels the elevator is not operating properly. On occasion, she has exited the elevator in her building and has instead walked up to her residence.

Helen dislikes flying in airplanes, but admitted that she did not care to fly before the incident. She admitted that she has not received medical treatment or psychological counselling. She observed no change in James as a result of the incident, but her daughter, Mary, is “extremely nervous” “[w]hen she gets on a plane.”

Mary now has a fear of flying, fear of crowds, and fear of heights. She avoids the use of elevators whenever possible, especially when an elevator is crowded or malfunctioning. Mary admitted she took elevators at work after the incident. She is afraid to travel in an airplane because “[i]t reminds [her] of when [she] was in the elevator, basically of being closed in and having people around [her], close by, being up high.” While on airplanes, her stomach churns, her palms become sweaty and she becomes very nervous. Immediately following the incident, she cried every time she was on an airplane and avoided flying whenever possible. She is unable to enjoy trips or vacations which require air travel and has avoided using airplanes as a means of transportation.

Crowds cause Mary to feel frightened and her eating and sleeping habits and her choice of housing and employment have been affected. A factor in her job selection in California was that the office was on a first floor, and she will not live in a building requiring the use of an elevator. Mary admitted that she has not received any medleal or psychological treatment as a consequence of the elevator incident, nor has the incident prevented her from attending work.

Addressing the defendant’s contention on appeal that a judgment notwithstanding the verdict should have been entered in its favor, defendant contends that plaintiffs have failed to meet the legal predicate to recovery for injuries incurred as a result of a negligently inflicted emotional distress. The legal standard applicable to this issue and its requirements are the subject of the dispute on appeal, as well as the subject of much confusion among Illinois courts.

Historically, Illinois courts adhered to the rule announced in Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657, to limit recovery for negligently inflicted emotional distress to situations where the plaintiff suffered a contemporaneous physical impact as the result of defendant’s negligence. (E.g., Cutright v. City National Bank (1980), 88 Ill. App. 3d 742, 410 N.E .2d 1142; Carlinville National Bank v. Rhoads (1978), 63 Ill. App. 3d 502, 380 N.E.2d 63; Owens v. Chicago Telephone Co. (1910), 159 Ill. App. 80.) In Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1, the Illinois Supreme Court adopted a standard enabling a victim of a negligent act or omission who had not suffered a contemporaneous physical impact to plead a cause of action for negligent infliction of emotional distress. This standard, known as the zone-of-physical-danger rule, allows the plaintiff to recover for physical injury or illness as a result of the emotional distress caused by the defendant’s negligence when the plaintiff is in such proximity to the impact to have reasonable fear for his own safety. Rickey, 98 Ill. 2d at 555, 457 N.E .2d at 5.

Since Rickey, courts have disputed whether the zone-of-physical-danger rule has replaced the impact rule as the standard to be applied in all negligent infliction of emotional distress causes of action, or whether the rule acts conjunctively with the impact rule to be applied solely in bystander situations. (Compare Siemieniec v. Lutheran General Hospital (1985), 134 Ill. App. 3d 823, 480 N.E.2d 1227, aff’d in part, rev’d in part (1987), 117 Ill. 2d 230, 512 N.E.2d 691; Corgan v. Muehling (1988), 167 Ill. App. 3d 1093, 522 N.E.2d 153, appeal allowed (1988), 122 Ill. 2d 572, 530 N.E.2d 242; McAdams v. Eli Lilly & Co. (N.D. Ill. 1986), 638 E Supp. 1173, 1178 (courts finding zone-of-physical-danger rule to apply only to bystander situations), with Hammond v. Lane (1987), 162 Ill. App. 3d 17, 515 N.E.2d 828; Lewis v. Westinghouse Electric Corp. (1985), 139 Ill. App. 3d 634, 487 N.E.2d 1071; Robbins v. Kass (1987), 163 Ill. App. 3d 927, 516 N.E.2d 1023; Goldberg v. Ruskin (1984), 128 Ill. App. 3d 1029, 471 N.E.2d 530, affd in part (1986), 113 Ill. 2d 482, 499 N.E.2d 406 (courts finding Rickey to have abolished the impact rule); see also Note, Rickey v. Chicago Transit Authority: Consistent Limitation on Recovery for Negligent Infliction of Emotional Distress in Illinois, 17 J. Mar. L. Rev. 563 (1984)) (interpreting Rickey as allowing a direct victim to recover emotional distress under both the impact rule and the zone-of-physical-danger rule).

The controversy in Illinois appellate courts has arisen due to the absence in the Rickey opinion of any indication as to whether the court was adopting a conjunctive test or abolishing the impact rule. Rickey’s language suggests that the court was substituting a test to be applied solely in bystander situations. Throughout the opinion, the court refers to the bystander and limits its discussion to the bystander. The court framed the issue before it as “whether a bystander *** may recover damages for emotional distress,” and it announced its new standard as one “which has been adopted in the majority of jurisdictions where this question of recovery by a bystander for emotional distress has been examined.” (Emphasis added.) Rickey, 98 Ill. 2d at 549, 555, 457 N.E.2d at 2, 5.

The above language, together .with the historical context of the case, leads us to conclude that the impact rule remains a viable test in Illinois. Before the announcement of the impact rule in Braun, Illinois courts had long restricted recovery for emotional distress or emotional pain in simple negligence cases to that traceable to, or directly flowing from, a bodily injury immediately inflicted by the defendant’s negligence. (Indianapolis & St. Louis R.R. Co. v. Stables (1872), 62 Ill. 313; Hannibal & St. Joseph R.R. Co. v. Martin (1884), 111 Ill. 219; City of Chicago v. McLean (1890), 133 Ill. 148, 24 N.E. 527; Chicago, Burlington & Quincy R.R. Co. v. Hines (1892), 45 Ill. App. 299.) The Braun court followed this restrictive view of recovery for negligently inflicted emotional distress when it limited recovery for a physical injury resulting from mental anguish or fright due to the defendant’s verbal assault upon the plaintiff. The court focused on a proximate cause analysis and concluded that such injuries were unforeseeable absent a contemporaneous physical impact. Braun, 175 Ill. 401, 51 N.E. 657.

The Rickey decision followed years of adherence by Illinois courts to Braun, which had resulted in the elimination of claims by persons who were direct victims of negligence but did not suffer an impact and by bystanders who witnessed the consequences of defendant’s negligence to another. (E.g., McCullough v. Orcutt (1957), 14 Ill. App. 2d 513, 145 N.E.2d 109 (recovery denied for miscarriage suffered when witnessing husband’s injuries sustained in an automobile accident); Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235 (recovery denied to driver of car who suffered mental injury when a truck driver drove within two feet of vehicle for a long span of time at speeds up to 80 miles per hour).) Because of the harsh consequences of the rule, the rule was subject to much criticism among commentators. See Reidy, Negligent Infliction of Emotion Distress in Illinois: Living in the Past, Suffering in the Present, 30 De Paul L. Rev. 295 (1980).

When viewing Rickey in this historical context, it is logical to conclude that, by prefacing its holding on the “bystander” situation, the court intended to expand a defendant’s duty resulting from Braun's proximate cause analysis to injuries suffered by bystanders in specified circumstances. Thus, where bystanders are involved, the zone-of-physical-danger rule is substituted for the impact rule, whereas, where a plaintiff is a direct victim of a negligent act — one personally involved in the mishap — the impact rule remains.

The strained results produced by courts applying the zone-of-physical-danger test to direct victims render support for our conclusion that the test was intended to apply solely to bystander situations. As many courts have realized, the rule’s proximity requirements are fashioned for bystander cases and cannot be applied to direct victims without distortions. (McAdams, 638 F. Supp. 1173; Corgan, 167 Ill. App. 3d 1093, 522 N.E.2d 153; Lewis, 139 Ill. App. 3d at 638 (Linn, J., dissenting).) In Hammond v. Lane (1987), 162 Ill. App. 3d 17, 515 N.E.2d 828, for example, the court concluded that plaintiff, who alleged that the doctor who had been treating her for psychiatric disorders was professionally negligent in having sexual contact with her, did not state a cause of action because she did not allege that she was in the zone of danger and had reasonable fear for her safety. In Lewis (139 Ill. App. 3d 634, 487 N.E.2d 107), the court concluded that plaintiff, who herself was trapped inside the malfunctioned elevator, had not proven that she was in the zone of danger. The proximity test is not logically applied to victims who are directly involved in the very accident or mishap producing the risk.

Accordingly, the appropriate rule to apply in the case at bar is the impact rule. Plaintiffs, by being trapped inside the malfunctioned elevator, were direct victims of defendant’s negligence. In applying the impact rule to the instant circumstances, it is evident that plaintiff’s presence within the vehicle producing the accident obviates any plausible argument of the absence of a contemporaneous physical impact. Nonetheless, more perplexing questions arise regarding the injuries compensable once a contemporaneous physical impact is shown.

Plaintiffs argue that the impact requirement is a minor evidentiary hurdle that need not have a causal link to the emotional injuries. Plaintiffs, however, do not further expound upon what emotional injuries may be recovered under the rule. Defendant, relying on its position that the zone-of-physical-danger standard applies, has not addressed the requirements of the impact rule.

The court in Braun, when it denied the plaintiff recovery for her alleged physical injuries due to the absence of a contemporaneous physical impact, did not specifically address the question of what emotional injuries are compensable once a physical impact is shown. Few Illinois appellate courts since Braun have addressed the issue. After reviewing Braun and its progeny, we conclude that the impact rule allows a plaintiff who has suffered a contemporaneous physical injury or impact to recover for physical injuries resulting from emotional distress caused by defendant’s negligence.

In Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 962, 370 N.E.2d 1235, 1238, where the plaintiffs alleged that a truck driver caused them emotional distress by driving within a few feet of their vehicle at speeds up to 80 miles per hour, the court recognized two requirements of the impact rule when it found that plaintiffs failed to state a cause of action under Braun “since they failed to allege any bodily injury and since there was no physical impact between the vehicle or upon the plaintiffs’ persons.” (Emphasis added.) (55 Ill. App. 3d at 962, 370 N.E.2d at 1238.) It is noteworthy that other courts since Braun which have denied recovery based upon the absence of a physical impact have emphasized that the plaintiffs had alleged physical injuries as a result of emotional distress. E.g., Benza v. Shulman Air Freight (1977), 46 Ill. App. 3d 521, 361 N.E.2d 91; Carlinville, 63 Ill. App. 3d 502, 380 N.E.2d 63.

The court in Cutright v. City National Bank, (1980), 88 Ill. App. 3d 742, 410 N.E.2d 1142, suggests a further requirement that the mental disturbance be causally connected to a physical injury. In a factual situation somewhat similar to the case at bar, the court denied the plaintiff recovery for her claims of psychological disorders on the ground that the mental disturbance did not “arise from” or was not “directly connected with some contemporaneous physical injury.” (Cutright, 88 Ill. App. 3d at 743, 410 N.E.2d at 1143.) The court relied on Carlinville National Bank v. Rhoads (1978), 63 Ill. App. 3d 502, 380 N.E.2d 63, a case decided before Rickey involving the court’s application of the impact rule to a bystander situation. The plaintiff there sought to recover for physical manifestations of emotional injuries resulting from witnessing her husband’s death in an automobile accident. The court’s referral to a connection to a contemporaneous physical injury could be viewed as an attempt to explain the then existing law denying causes of action for mental distress arising “solely as the result of witnessing peril or harm to another.” (Carlinville, 63 Ill. App. 3d at 505, 380 N.E.2d at 66.) In setting forth Illinois case law in the area, the court treated as separate scenarios the negligent acts alleged in Braun and those involving a negligent infliction of an immediate physical injury, where courts have specifically restricted recovery to the mental anguish directly connected to bodily injury. Carlinville, 63 Ill. App. 3d at 503, 380 N.E.2d at 65.

While the Braun opinion also sets forth case law regarding emotional injuries in simple negligence cases, Braun confronted a somewhat different situation where permanent bodily harm was alleged, but it was the secondary result of defendant’s negligence in that it resulted from emotional distress caused by the defendant’s negligence. In concluding on policy grounds that recovery in such circumstances could not be had absent a contemporaneous physical impact, the court’s proximate cause analysis focused on foreseeable and fraudulent claims. The landmark decision on which the court relied, Victorian Rys. Commissioners v. Coultas (Eng. 1888), 13 App. Cas. 222, did not embrace a requirement that the emotional consequences result from a physical injury. Thus, Braun provided a cut-off point for liability for physical injuries resulting from emotional distress inflicted by defendant’s negligence rather than articulating a requirement that the emotional disturbances constituting physical injury be causally linked to a bodily injury or impact.

The supreme court’s discussion of the impact rule in Rickey lends support for this conclusion since it lacks any mention of a requirement of a causal connection between physical injuries and the impact. Furthermore, it would be illogical for the court to allow a bystander to an accident to recover physical injuries resulting from emotional distress under the zone-of-physical-danger rule, but deny a person directly involved in the mishap recovery for the same injuries because of the absence of a causal connection to a bodily injury.

Finally, we address whether plaintiffs have presented sufficient evidence to show physical injury or illness as a result of the emotional distress they suffered. Relying on the language in Rickey, plaintiffs argue that they have demonstrated permanent behavioral disorders which are sufficient physical manifestations of emotional distress to entitle them to recovery.

The plaintiff in Rickey alleged that his emotional distress became manifest in physical injury, including “definite functional, emotional, psychiatric and behavioral disorders, extreme depression, prolonged and continuing mental disturbances, inability to attend school and engage in gainful employment and to engage in his usual and customary affairs.” (Rickey, 98 Ill. 2d at 550, 457 N.E.2d at 2.) While the court indicated that the physical injury requirement may be satisfied by physical manifestations of emotional distress, it did not rule that the alleged conditions satisfied the requirement. (See Robbins, 163 Ill. App. 3d at 933, 516 N.E.2d at 1027; 17 J. Marshall L. Rev. at 574 n.42 (stating that the court’s reliance on the Restatement (Second) of Torts in Rickey suggests that the physical manifestations alleged in Rickey may not be recoverable).) The court stated that the facts of the case could not be precisely determined since the complaint was drawn with the wrong standard in mind. It also noted that the appellate court had improperly treated the case as one involving solely emotional distress where the complaint alleged physical manifestations. (Rickey, 98 Ill. 2d at 554-56, 457 N.E.2d at 4-5.) The court remanded the case for further proceedings without further comment on the sufficiency of the allegations.

We note that many jurisdictions have struggled with the determination of what conditions or symptoms qualify as the requisite injury, illness or other physical consequence to recover in negligent infliction of emotional distress cases. (See W. Keeton, Prosser & Keeton on Torts §54, at 364 (5th ed. 1984); see also William v. Baker (D.C. 1990), 572 A.2d 1062 (and cases cited therein).) The Restatement (Second) of Torts suggests no liability for transitory, nonrecurring physical phenomena where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm, but that long-continued physical phenomena, such as nausea or headaches, or long-continued mental disturbance, such as repeated hysterical attacks or mental aberration, may amount to physical illness. Restatement (Second) of Torts, §436A, comment c (1965).

It is evident from the few cases cited to us by the parties that the physical manifestation requirement has been relatively unexplored by Illinois courts. In Robbins (163 Ill. App. 3d 927, 516 N.E.2d 1023), the court concluded that the physical illness or injury requirement indicates a desire to permit compensation only in cases involving serious emotional distress. It found the manifestations suffered by the plaintiff for which she did not receive medical treatment-including crying, sleeplessness, increased migraine headaches and becoming upset when viewing pregnant women — to be insufficient to satisfy the physical consequences requirement. The court, in Rahn v. Gerdts (1983), 119 Ill. App. 3d 781, 455 N.E.2d 807, did not directly address the issue, but stated that the Rickey standard supported the plaintiff’s cause of action where the complaint alleged that the plaintiff had been admitted to the hospital and treated for severe depression, anxiety and nervousness.

We need not examine further into what conditions or symptoms qualify as the requisite physical manifestations to amount to physical injury or illness because we are convinced that the manifestations to which plaintiffs have testified are not the substantial mental disturbance intended to satisfy the physical consequences requirement. Plaintiffs here suffer continued distress, nervousness and sweaty palms when on elevators, have fears of heights or crowds, and, although they have taken elevators and airplanes since the incident, they have taken some actions to avoid taking elevators or using airplanes as a means of transportation. None of the plaintiffs sought medical or psychological treatment as a result of the incident. We agree with the Robbins court that the physical illness or injury requirement indicates a desire to permit compensation only in cases involving serious emotional disturbance.

To allow recovery for the manifestations shown here would be inconsistent with Illinois’ historical reluctance to allow recovery for emotional injuries in negligent infliction of emotional distress cases. Moreover, as recognized in Robbins, it would be anomalous to refuse recovery in intentional infliction of emotional distress actions for injuries such as continued nervousness, sleeplessness and fear of nightmares due to a lack of severity of the injuries (see Swanson v. Swanson (1970), 121 Ill. App. 2d 182, 257 N.E.2d 194), but to allow recovery in negligent infliction of emotional distress actions for the similar conditions suffered by plaintiffs here.

Accordingly, because the physical manifestations suffered by plaintiffs are insufficient to satisfy the impact rule’s physical injury requirement, a judgment notwithstanding the verdict should have been entered.

Reversed.

O’CONNOR and MANNING, JJ., concur.

       Defendant argues that the supreme court’s recent decision in Siemieniec v. Lutheran Hospital (1987), 117 Ill. 2d 230, 512 N.E .2d 691, establishes that Rickey abandoned the impact rule in all negligent infliction of emotional distress cases. The opinion, however, has no express language to this effect, and its language suggests that the court viewed the case before it as a bystander situation. Moreover, the court did not refute the appellate court's position in that case that Rickey is a “limited exception” to the impact rule. See Siemieniec, 134 Ill. App. 3d at 830, 480 N.E.2d at 1232; see also Siemieniec, 117 Ill. 2d at 268, 512 N.E.2d at 711 (Simon, J., specially concurring) (disputing Rickey’s application on the ground that the plaintiffs were actual victims not bystanders); Corgan v. Muehling (1988), 167 Ill. App. 3d 1093. 522 N.E .2d 153.

      We acknowledge that direct victims of negligence who do not suffer a contemporaneous physical impact still may not recover under the impact rule. (But see Corgan, 167 Ill. App. 3d at 1102, 522 N.E .2d at 159, appeal allowed (1988), 122 Ill. 2d 572, 530 N.E.2d 242.) We do not address the policy considerations of this issue, however, because we are without authority to overrule or modify the supreme court’s decision in Braun. See Rickey, 98 Ill. 2d at 551-52, 457 N.E.2d at 3.


text:
    GILLIS ASSOCIATED INDUSTRIES, INC., Plaintiff-Appellee, v. CARI-ALL, INC., et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—90—0164
    Opinion filed September 28, 1990.
    Rehearing denied December 21, 1990.
    Modified opinion filed December 31, 1990.

      Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd., of Chicago (David S. Heller, Daniel P. Shapiro, and Mindy B. Gordon, of counsel), for appellants.
    Johnson, Cusack & Bell, Ltd., of Chicago (William V.. Johnson, Joseph R. Marconi, and Kevin G. Owens, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Gillis Associated Industries, Inc. (plaintiff), is the. former exclusive distributor for Cari-All, Inc. (defendant), a manufacturer of wire shelving for the food, health, and industrial markets in the United States and Canada. This action for preliminary injunctive relief, as part of a larger, multicount suit, arose after plaintiff’s national sales manager, Mark Oleska, left plaintiff’s employ and began working as defendant’s regional sales manager. Plaintiff alleges that upon leaving, Oleksa misappropriated plaintiff’s confidential customer list in violation of the Illinois Trade Secrets Act (Ill. Rev. Stat. 1987, ch. 140, par. 351 et seq.) and tendered it to defendant, which then began using it in competition with plaintiff. Plaintiff further alleges that Oleska misappropriated a second list containing detailed information concerning plaintiff’s sales representatives; each of whom defendant later contacted despite knowing that the representatives were forbidden by a restrictive covenant from working for defendant.

On December 18, 1989, the circuit court of Cook County ordered that defendant be preliminarily enjoined from (1) using plaintiff’s customer and sales representative lists and ordered their return to plaintiff, (2) contacting, soliciting, interfering, or otherwise doing business with plaintiff’s independent sales representatives currently under contract with plaintiff, and (3) doing business with any customer on plaintiff’s customer list unless defendant learned of the identity of such customer through means independent of the list.

Defendant appeals from this order, contending the trial court erroneously concluded that plaintiff’s customer list constitutes a trade secret. Additionally, defendant contends that plaintiff was under a contractual duty arising from the parties’ distributorship agreement to provide defendant with the information contained on the list. Defendant further contends that the distributors named on the second list are being held to an invalid restrictive covenant and that the covenants are inconsistent with its right to terminate plaintiff under the parties’ distributorship agreement. Finally, defendant alternatively claims plaintiff is not entitled to relief due to unclean hands. For the reasons that follow, this court reverses the order granting preliminary injunctive relief as to plaintiff’s customer list, and reverses and remands for modification the order regarding plaintiff’s independent sales representatives.

Defendant is a Canadian corporation that manufactures a wire shelving system that is. designed and marketed to consumers on its suitability for easy expansion and with the hope of repeat customer purchases. The wire shelving industry is very competitive, with defendant having about 4% of a $120 to $150 million market.

Prior to 1984, distribution of defendant’s product within the United States was limited to distribution within the health care industry. During this time, defendant’s wholly owned subsidiary and United States affiliate, Cari-All, Ltd., acted as defendant’s sale and distribution arm for its products within the United States market.

In 1983, in order to expand its operations in the United States, defendant approached plaintiff, an Illinois corporation then representing a competing wire manufacturer, and requested that plaintiff become its exclusive distributor of its products within the United States’ food service and industrial markets. Under a letter agreement dated April 7, 1983, plaintiff and defendant agreed that plaintiff would become defendant’s exclusive distributor for those markets.

The parties operated under this letter agreement until September 26, 1984, when a formalized distribution agreement was signed. Under the formalized distribution agreement, plaintiff was to continue acting as defendant’s exclusive distributor for a period of three years, ending December 31, 1987. Subject to the agreement’s default provisions, the agreement would automatically renew for successive 12-month terms, unless expressly terminated by either party upon proper notice.

Under the agreement, the distribution of defendant’s product operated as follows. Plaintiff would purchase the product directly from defendant and store it in its warehouses. Later, the product would be shipped directly from plaintiff’s warehouses to its customers. Plaintiff had four classes of customers: fast-food service chains, equipment manufacturers, catalog houses and food service dealers. In order to service these customers, plaintiff marketed defendant’s product through sales representatives who were assigned various sales regions within the United States. Plaintiff had 30 such representatives under contract during the existence of the agreement.

Except for defendant’s direct delivery of its product to one customer, defendant had no contact with the downstream purchasers of its product. Additionally, except for defendant’s obligation under the agreement to pay one-half of the costs associated with trade shows, promotional literature, and advertisement, defendant contributed no money towards the sale, marketing, or distribution of its product.

In late June 1989, plaintiff and defendant met to discuss a change in the parties’ relationship. Basically, defendant proposed to reduce plaintiff’s territory within the United States from a national to a regional scope. No agreement, however, could be reached.

After this June 1989 meeting, the parties’ relationship began to deteriorate. On August 17, 1989, defendant gave notice to plaintiff of its intent not to renew the agreement after December 31, 1989. Before December 31 could arrive, however, the relationship between the parties disintegrated. This disintegration was attributable to both plaintiff and defendant taking actions in order to position themselves within the market as of the first of the upcoming new year. These actions created friction in the parties’ relationship because their new respective positions would be as competitors, rather than parties cooperating under a contractual relationship. Additional friction was created when plaintiff’s sales manager, Mark Oleska, left plaintiff's employ in late September and began working for defendant. On November 6, 1989, after a continued breakdown between the parties, defendant terminated plaintiff effective immediately. Finally, on November 14,1989, plaintiff filed this action.

Preliminarily, we note that a party seeking a preliminary injunction must establish by a preponderance of the evidence that (1) it has a clearly ascertained right which must be protected, (2) it will be irreparably injured in the absence of that protection, (3) it has no adequate remedy at law, and (4) it is likely to be successful on the merits. (Rotary Club v. Harry F. Shea & Co. (1983), 120 Ill. App. 3d 988, 458 N.E.2d 1002.) We further note that the sole role of an appellate court in addressing the grant or refusal of an interlocutory judgment is restricted to a determination of whether the trial judge correctly exercised his broad discretionary powers. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1002.) Moreover, as it is not the purpose of the preliminary injunction to determine controverted rights or decide the merits of the case, a court of review looks to the sufficiency of the evidence only for the limited purpose of ascertaining whether the trial court’s discretion has been abused. ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 682, 379 N.E.2d 1228, 1236.

Turning to the merits of this appeal, we first address the issue of whether plaintiff’s customer list constitutes a protectable trade secret under the Illinois Trade Secrets Act (Ill. Rev. Stat. 1987, ch. 140, par. 351 et seq. (effective January 1, 1988) (the Act)). According to the principal draftsman of the Act, the Act was derived from the Uniform Trade Secrets Act and constitutes the Illinois legislature’s resolve to adopt the uniform act and to correct aberrations appearing within Illinois trade secret case law. (Jager, Illinois Returns to the Mainstream of Trade-Secret Protection, CBA Record 18, (October 1988) (hereinafter Illinois Returns).) Because the Act is relatively new, very few cases have interpreted it. In relevant part, the Act provides:

“ ‘Trade secret’ means information, including but not limited to, technical or non-technical data, a *** compilation, *** or list of actual or potential customers or suppliers, that:
(1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” Ill. Rev. Stat. 1987, ch. 140, pars. 352(d)(1), (d)(2).

The definition of “trade secret” under the Act codifies two distinct requirements present under the Illinois common law. First, under section 2(d)(1), the information for which trade secret protection is sought must be sufficiently secret and derive economic value both to its owner and to competitors because of the information’s relative secrecy. (Carbonic Fire Extinguishers, Inc. v. Heath (1989), 190 Ill. App. 3d 948, 953, 547 N.E.2d 675, 677-78; Service Centers of Chicago, Inc. v. Minogue (1989), 180 Ill. App. 3d 447, 454, 535 N.E.2d 1132, 1136; Illinois Returns, CBA Record at 20; Schuman, Protecting Customer Information Under Illinois Trade Secret Law, 70 Ill. B.J. 548, 552 (May 1982) (hereinafter Protecting Customer Information)l.) Second, under section 2(d)(2), the information must be the subject of reasonable efforts to maintain its secrecy. Illinois Returns, CBA Record at 20.

Before addressing whether plaintiff established the two requirements of the Act, we note initially that plaintiff’s customer list constitutes the type of information the Act intended to protect. (Carbonic Fire Extinguishers, 190 Ill. App. 3d at 952, 547 N.E.2d at 677; Illinois Returns, CBA Record at 19.) The record reflects that plaintiff’s customer list contains the names and phone numbers of over 3,000 customers located across the United States who have either purchased from plaintiff the wire shelving products manufactured by defendant or purchased other goods sold by plaintiff. This type of customer information is expressly eligible for coverage under the Act. Consequently, our analysis focuses on the Act’s two requirements.

Regarding section 2(d)(1) of the Act, the record reflects that plaintiff satisfied this paragraph. During the hearings, defendant attempted to establish that plaintiff’s lists could be easily duplicated by reference to trade journals and the yellow pages or by driving down the street. Mark Oleska and Robert Koch, president of Cari-All, Ltd., both testified to this effect. These witnesses both admitted, however, that no one source would contain a list of names indicating who had purchased products from plaintiff. Rather, both testified that once a general list of names was found, further refinement would be required. Such refinement would include targeted mailings or telephone calls to the various classes of customers to determine whether they were in the market to purchase wire shelving products. Even after this process was completed, only a list of potential customers would exist; more efforts would still be required to sell the customer on the product. Thus, the evidence demonstrated that the customers on plaintiff’s list were not readily ascertainable, but could only be produced after significant time, effort, and expense. Accordingly, we conclude plaintiff proved that its customer list was “sufficiently secret” as required under the Act and the case law proceeding it. Carbonic Fire Extinguishers, 190 Ill. App. 3d at 953, 547 N.E.2d at 678; see Protecting Customer Information, 70 Ill. B. J. at 548-53.

From the above discussion, it is also clear that plaintiff’s list would have economic value, both actual and potential, to plaintiff as well as its competitors. The evidence demonstrated that plaintiff’s customer list contains over 3,000 names and telephone numbers of customers who conduct business across the nation and who have been sold on their respective need for wire shelving. A party possessing such a list would be at a competitive advantage just based alone upon the effort required to assimilate an equivalent list. (Cf. Carbonic Fire Extinguishers, 190 Ill. App. 3d at 953, 547 N.E.2d at 677-78.) Accordingly, we conclude that plaintiff satisfied section 2(d)(1) of the Act.

Turning to section 2(d)(2) of the Act, in an effort to show that its lists were the subject of reasonable security measures, plaintiff presented testimony to show that its lists were kept under lock and key. In this regard, Donald Gillis, plaintiff’s president, testified that its customer list was only available on computers and only three key employees had access to this computer. While this testimony may be true, no evidence was presented to contradict other testimony to the effect that no restrictions existed upon the hard copies the computer generated. The copies were neither kept under lock and key, nor marked “confidential” or “do not copy.” Indeed, the lists introduced into evidence bore no such markings. Moreover, past generations of plaintiff’s lists were produced on demand.

To further support its argument that its lists were kept confidential, plaintiff claims that all employees received an employee manual that notified them that plaintiff considered its lists confidential. This manual provided:

“GAI is a private company, however, in the interest of employee communications, a great deal of GAI information is distributed for internal use. This information is confidential and not to be revealed to any person outside of our company.”

Noticeably absent from this paragraph, however, is what “information” plaintiff deemed confidential. Another provision of the employee manual stated that plaintiff’s employees were required to sign a confidentiality agreement. No evidence in the record exists, however, that any of plaintiff’s employees ever signed a confidentiality agreement. Moreover, if such agreements did exist, none were produced. Given the testimony that copies of plaintiff’s lists were available for use in the accounting and customer services department, it was incumbent upon plaintiff to show its employees understood that lists were to be kept confidential. (I.L.G. Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 94, 273 N.E.2d 393, 396; Televation Telecommunication Systems, Inc. v. Saindon (1988), 169 Ill. App. 3d 8, 17, 522 N.E.2d 1359, 1365; Protecting Customer Information, 70 Ill. B.J. at 551.) Plaintiff made no such showing.

In addition to the lack of internal security measures, external security measures were lacking. When sales reports were issued to plaintiff’s sales representatives, the reports contained customer information for those regions of even a more detailed character than contained on plaintiff’s customer list. The reports, however, were not accompanied by any instructions that the information was to be kept confidential. Moreover, none of the sales representative agreements contained nondisclosure covenants, and no evidence was produced to show that the representatives understood the reports to be confidential. As stated previously, a showing of such an understanding was essential.

In summary, no evidence exists to show that plaintiff took any affirmative measures to keep its lists secret. No evidence was presented regarding internal or external physical security; that confidentiality agreements or understandings existed among those having access to plaintiff’s lists; that plaintiff’s lists contained confidentiality stamps or were kept under lock and key; or that employees received entrance and exit interviews imparting the importance of confidentiality. Consequently, we conclude that plaintiff failed to produce sufficient evidence to prove that under section 2(d)(2) of the Act, its customer list was the subject of reasonable efforts designed to protect its secrecy. In the absence of such proof at this stage of the proceedings, the circuit court abused its discretion in granting plaintiff preliminary injunctive relief. See Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 387, 483 N.E.2d 1271, 1278; Carbonic Fire Extinguishers, 190 Ill. App. 3d at 951; 547 N.E.2d at 676.

The second issue presented for our review is whether the trial court properly granted preliminary injunctive relief preventing defendant from contacting, interfering, or otherwise doing business with the independent sales representatives under contract with plaintiff.

The record reflects that prior to the breakdown in the parties’ relationship, plaintiff had entered into 30 agreements with sales representatives across the country. Contained within 28 of the agreements is a restrictive covenant of which two versions exist amongst the sales representatives. The first version precludes the sales representatives upon termination of their agreement with plaintiff from “represent[ing] the Cari-All or competitive wire line for a period of one year from the date of such termination.” The other version of the covenant has the same language as the first with the exception that the underlined portion is absent.

Of the 30 sales representative agreements noted above, the record indicates that 19 of the sales representatives have terminated their relationship with plaintiff and' have contracted to act as sales representatives for a new national distributor named Union United Wire, Inc. (Union United). Union United is one-half owned by Donald Gillis, plaintiff’s president, and was formed as a consequence of the breakdown in the relationship between plaintiff and defendant. Under an agreement dated September 19, 1989, and effective January 1, 1990, Union United agreed to act as the exclusive United States distributor for United Wire, Inc. (United Wire), a manufacturer of wire products that competes with defendant.

Under the terms of the sales representatives’ new agreement with Union United, the sales representatives agree to exclusively represent Union United in their appointed territories. Significantly, the sales representatives further agree that in consideration of their new appointment, they will not represent defendant during the duration of the new agreement or for a one-year period commencing upon the expiration or termination of the new agreement.

As for plaintiff’s role in the Union United-United Wire relationship, the record shows that plaintiff is no longer acting as an exclusive, national distributor as it had previously acted for defendant. Rather, its new role is that of sales representative of Union United. In other words, plaintiff’s place in the chain of distribution has dropped from that of national distributor to regional sales representative.

The ramification of plaintiff’s new role in the market is that it no longer has the same protectable interest that it once had. Proof of a protectable interest is essential to the grant of preliminary injunctive relief. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 387, 483 N.E.2d 1271, 1278.) During the hearings, Donald Gillis testified that the purpose of the initial restrictive covenants was to prevent defendant from terminating plaintiff and taking over plaintiff’s sales network, a network which plaintiff spent great time, effort, and money to develop. It is clear from the record, however, that if plaintiff is indeed only a regional sales representative, it no longer needs a national sales network. Plaintiff’s need for a sales network only extends to the particular geographic region as to which it acts as a sales representative for Union United. Consequently, plaintiff’s protectable interest supports preliminary injunctive relief only as to those sales representatives who presently share plaintiff’s geographic territory. Only those sales representatives who marketed defendant’s product in the same territory in which plaintiff now works can potentially harm the plaintiff. In summary, of the original 28 representatives bound under a restrictive covenant, plaintiff is only entitled to preliminary injunctive relief as to those representalives whose territory coincides with plaintiff’s existing territory. This is the extent of plaintiff’s protectable interest. Because our review of the record does not reveal what geographic territory Union United has assigned plaintiff, this case must be remanded for further proceedings.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.

      This court expresses no opinion as to the parties’ respective rights under the distribution agreement. In particular, we express no opinion on the issue of whether plaintiff was required to provide defendant with customer information under paragraph 6 of the distribution agreement. Our review of the record indicates that the parties agreed that the laws of the province of Quebec would be used to govern and interpret the distribution agreement.
      Additionally, this court expresses no opinion as to the validity of the restrictive covenants in which plaintiff has a protectable interest. The record shows that the agreements containing the covenants were sent from plaintiff’s home office in Illinois to the various sales representatives across the United States. The sales representatives then signed the agreements and returned them to plaintiff. Performance of the agreements occurred in the representatives’ various regions. Consequently, the validity of the covenants raises a potential conflicts of law issue that the parties have not briefed. Moreover, because this court does not know in which geographic region plaintiff works, we are unable to supply a conflicts of law analysis.