FIFTH DIVISION
January 24, 2003

No. 1-01-2407

Plaintiff Paul Valentino, a former employee of Oakton College,brought this action against defendants, the Board of Trustees ofOakton College (Board) and David Hilquist, the vice president ofbusiness and finance of Oakton College, to recover damages foralleged intentional battery, intentional infliction of emotionaldistress and breach of employment contract. Following a jurytrial, judgment was entered in favor of plaintiff against the Boardfor $750,000 and against Hilquist for $600,000.

Defendants appeal from: (1) the trial court's failure to applyapplicable immunities and defenses; (2) the trial court's rulingson pretrial motions, evidentiary rulings and jury instructions; and(3) the judgment, as being against the manifest weight of theevidence. Defendants also appeal the trial court's order denyingdefendants' request to waive presentment of an appeal bond onbehalf of Hilquist. For the following reasons, we reverse in part,affirm in part and remand with directions.

I. BACKGROUND

Plaintiff worked as the director of facilities at Oakton College from February 1992 until June 1998. Oakton College isgoverned by the Board, which consists of seven elected trustees. Plaintiff's direct supervisor at the college was Hilquist, who hadbeen employed with the college since 1972.

Plaintiff's duties as director included the supervision of theday-to-day operations of the college's facilities located on itstwo campuses in Des Plaines and Skokie. Plaintiff was employedwith the college under an employment contract providing for one-year terms (July 1 through June 30), which would be automaticallyrenewed each year unless plaintiff received written notice of non-renewal at least three months prior to expiration of the contract.

Plaintiff filed this action on February 4, 1998. The fifthamended complaint alleged counts in battery as to both Hilquist andthe Board, intentional infliction of emotional distress as to bothHilquist and the Board and breach of contract as to the Board. After filing the action, plaintiff received a letter from MargaretLee, the college's president, informing him that she would notrecommend renewal of plaintiff's employment contract for the year1998-99 to the Board. Plaintiff alleged that he received thatletter on his desk in April of 1998, after the March 31 deadlinefor timely notification of nonrenewal. Plaintiff's employmentcontract was not renewed for the year 1998-99.

At trial, plaintiff testified that from 1992 until 1997, hewas subjected to physical and verbal abuse from Hilquist. Plaintiff testified that during that time period he was the subjectof Hilquist's physical abuse about a hundred times. The abuseconsisted of kicking plaintiff underneath the table duringmeetings, pushing his face against a window, pushing him againstthe wall and grabbing his arm. The abuse occurred in Hilquist'soffice, the conference room, the boardroom, the hallway and in thewoods on campus. Plaintiff testified that during that time period,he was also subjected to verbal abuse from Hilquist daily. Hilquist would "scream" at plaintiff in person, before and aftermeetings, and over both plaintiff's office and home telephones. Plaintiff testified Hilquist would call him at home, often aftermidnight, and "scream" at him. Plaintiff testified Hilquist calledhim profane names and that toward the end of 1997 the abuseintensified.

During the time period from 1992 through 1997, plaintifftestified he reported the abuse to Joan Hall, a Board member, threeto four times per week. Plaintiff testified he reported the abuseto Board members Marvin Walker, about 40 times: Ellen Schrodt, 4 or5 times per year; Jody Wadhwa, about 12 times; Larry Goldberg, 5 or6 times; and Amilda Mader about 4 or 5 times. Plaintiff testifiedthat in response to these reports he was told to "hang in there." Plaintiff also testified he reported the abuse to the chief ofpublic safety at the college and to the chief of the Des Plainespolice department.

Plaintiff additionally testified that he reported the abuse toMargaret Lee, the president of Oakton, on at least 10 occasions. Plaintiff testified that on three different occasions in 1997, Leetold him she not only agreed with Hilquist, but condoned what hewas doing.

Plaintiff testified that during October 1997 he was taken tothe hospital from the college by ambulance because of his bloodpressure. Following the hospitalization, on November 1, 1997,plaintiff went to see Lee and again reported the abuse. Plaintifftestified that Lee told him he was an embarrassment to the collegeand that she agreed with Hilquist's conduct. In June 1998, onplaintiff's last day of work, Hilquist called plaintiff's office,swore at him and told him to turn in his keys and leave. Whenplaintiff went to his office, Hilquist blocked him from leaving,yelled at him again in the hallway, and then pushed him into thewall resulting in a cut to plaintiff's hand. Plaintiff was thentaken to the hospital for his blood pressure. Plaintiffadditionally complained of deteriorating health while working forHilquist, including stomach problems, trouble sleeping, headachesand blurred vision. Plaintiff began to see a psychologist, DebraHaley, in the latter part of 1997 and continued seeing her throughthe beginning of 1998.

Anthony Schimel, chief heating, ventilation and air-conditioning engineer for Oakton, testified that in the winter of1997 he saw Hilquist poke plaintiff in the chest and then push himinto the hallway. Schimel also testified that, some months afterthat incident, he was standing with Hilquist and plaintiff in thehallway and requested to raise the water temperature in thebuilding. Hilquist responded, motioning to plaintiff, "Kill him,I'll give you 180 degree water."

Loretta Fivissani, plaintiff's secretary, testified that inthe last two years plaintiff was employed with Oakton, she went tospeak with Lee about the relationship between Hilquist andplaintiff. Fivissani testified that she told Lee that Hilquistharassed plaintiff daily with constant demanding calls and verbalabuse. Lee responded "I probably shouldn't say this, but I have totell you that a decision has been made and I told [Hilquist] tohandle it and it had to be done in the proper order."

Debra Haley, Ph.D., testified that plaintiff came to see herin November 1997. Plaintiff told her that his boss was physicallyand verbally abusing him. Haley testified that plaintiff wassuffering from generalized anxiety disorder. Both Jeff Valentino,plaintiff's son, and June McCubbin, plaintiff's former fiancée,testified as to the deterioration in plaintiff's health during hisemployment with Oakton.

During plaintiff's case in chief, Margaret Lee, president ofthe college, testified that she received a letter on May 31, 1997,from Joan Hall. The letter stated, in relevant part:

"Paul had approached me about his problems with[Hilquist] some time before he gave this book to me[prior to October 1994]. *** The Paul Valentino I knewthen was frustrated beyond belief over what he knew hadto be done and then having to butt his head every time hetried to do it; also, someone who had been treated by[Hilquist] in ways (I documented this) that a lesserperson would have seen [as] an opportunity to file ajuicy lawsuit. *** Also, our track record with ourDirectors of Facilities would seem to call forcuriosity/investigation to learn why we have not beenable to keep people in that job for more than a year ortwo for many years."

Lee admitted she did not question Hilquist or plaintiff about thesubstance of the letter. Lee testified that although plaintiff washaving an "extremely" hard time performing his job, his contractfor the year 1997-98 was renewed, with the provision he was onprobation with no increase in salary. Lee admitted that Hall hadapproached her on "several" occasions about problems betweenHilquist and plaintiff, but that she was only told of generalproblems, not specific allegations of abuse. Lee also admittedthat Fivissani, plaintiff's secretary, came to see her, althoughshe could not recall exactly what Fivissani said, only that she was"concerned" about plaintiff's condition.

On cross-examination, Lee testified that after plaintiffreceived a poor quarterly evaluation from Hilquist, he requested toreport to Lee directly and avoid Hilquist completely becauseplaintiff felt unfair demands were being placed on him. Lee alsotestified on cross-examination that during plaintiff's tenure, alibrary ceiling collapsed at the Skokie campus and pipes burst atthe Des Plaines campus. Lee maintained that she never witnessedHilquist abuse plaintiff. She also maintained that Schimel andHarstein never contacted her to inform her of any abuse.

During defendants' case in chief, Hilquist testified that onOctober 30, 1997, the day plaintiff was transported to thehospital, he had a meeting with plaintiff to review a negativeevaluation. Hilquist also testified as to plaintiff's poorperformance in his duties as director during his tenure, whichincluded, for example, failure to handle snow removal and floodconcerns, general lack of maintenance and failure to clean ductwork. Hilquist testified he never pushed, kicked, or hit plaintiff. Hilquist testified he never screamed at plaintiff, although he mayhave raised his voice on occasion. Hilquist denied telling Schimelhe would raise the temperature of the water if Schimel killedplaintiff.

During defendants' case in chief, Lee again testified that notrustee told her that plaintiff was being physically or verballyabused by Hilquist. Lee testified that plaintiff never reportedphysical or verbal abuse on the part of Hilquist. Lee alsotestified that she never told plaintiff that she approved of orcondoned any physical acts on the part of Hilquist.

At the close of all the evidence, the jury returned verdictsin favor of plaintiff and against the Board on battery, intentionalinfliction of emotional distress, and breach of contract in theamount of $750,000. The jury also returned verdicts in favor ofplaintiff and against Hilquist on battery and intentionalinfliction of emotional distress in the amount of $600,000. OnFebruary 6, 2001, the trial court entered judgment against bothdefendants on these awards. On June 11, 2001, the trial courtdenied defendants' timely postjudgment motions. Defendants nowappeal.

II. ANALYSIS

Defendants first contend that the trial court erred in denyingtheir motion for partial summary judgment. Defendants' arguments inthis section involve the Local Governmental and GovernmentalEmployees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101,2-201, 2-109, 3-108 (West 1996)) and the Workers' Compensation Act(820 ILCS 305/5(a) (West 1996)). Plaintiff maintains that underIllinois law, the denial of a motion for summary judgment is notreviewable on appeal. Klemp v. Hergott Group, Inc., 267 Ill. App.3d 574, 577 (1994); Tripi v. Landon, 140 Ill. App. 3d 230 (1986). It is well settled that a prior order denying a motion forsummary judgment is not reviewable following an evidentiary trial,because the result of any error in such denial is merged by law inthe subsequent trial. Thurmond v. Monroe, 235 Ill. App. 3d 281,285 (1992); Pleasure Driveway & Park District v. Kurek, 27 Ill.App. 3d 60 (1975). However, these cases are inapplicable to thecase at bar because defendants' arguments involving the TortImmunity Act and Workers' Compensation Act were not presented tothe jury. Therefore, any error in the denial of summary judgmentbased on these issues was not merged in the subsequent trial. Inaddition, cases hold that where an appeal is otherwise properlybefore the appellate court from a final judgment, the court mayreview the denial of a motion for summary judgment. See Novak v.Insurance Administration Unlimited, Inc., 91 Ill. App. 3d 148, 152(1980); Cedric Spring & Associates, Inc., v. N.E.I. Corp., 81 Ill.App. 3d 1031, 1034 (1980); Reznick v. Home Insurance Co., 45 Ill.App. 3d 1058, 1059 (1977). The procedural setting of those casesmade the review of the denied motion acceptable. In those cases, ashere, the denied motion was filed by the party taking the appealfrom an otherwise final judgment. Rambert v. Advance ConstructionCo., 134 Ill. App. 3d 155, 165 (1985).

Therefore, we will review defendants' arguments on appeal. The grant or denial of summary judgment is reviewed on appeal denovo. Container Corp. of America v. Wagner, 293 Ill. App. 3d 1089,1091 (1997). The function of the appellate court on review ofsummary judgment is to determine whether the trial court properlydetermined that no genuine issue of material fact had been raised,and if none was raised, whether judgment was proper as a matter oflaw. Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724 (1997).

A. THE BOARD

1. The Tort Immunity Act

We address defendants' arguments in logical order. Defendantsmaintain that section 3-108 of the Tort Immunity Act (745 ILCS10/3-108(a)(West 1996)) immunizes the Board from liability. Weagree.

Plaintiff argues that the Board "did nothing to controlHilquist's conduct." This claim amounts to negligence for failureto supervise. At the time of plaintiff's alleged injuries, section3-108(a) of the Tort Immunity Act stated:

"(a) Except as otherwise provided by this Act ***neither a local public entity nor a public employee isliable for an injury caused by a failure to supervise anactivity on or the use of any public property." 745 ILCS10/3-108(a) (West 1996).

It should be noted that section 3-108(b) was amended, effectiveDecember 2, 1998, to include a willful and wanton exception;however, that amendment is not to be applied retroactively. SeeHenrich v. Libertyville High School, 186 Ill. 2d 381 (1998). Therefore, at the time pertinent to this case, section 3-108provided full blanket immunity for government entities acting in asupervisory capacity. As this court noted in Gusich v. MetropolitanPier & Exposition Authority, 326 Ill. App. 3d 1030, 1033 (2001),quoting Webster's Third International Dictionary 2296 (1980)

"[t]he plain and ordinary meaning of 'supervise' is to 'overseewith the powers of direction and decision the implementation ofone's own or another's intentions.' " Similarly, in Moorehead v.Metropolitan Water Reclamation District of Greater Chicago, 322Ill. App. 3d 635 (2001), we noted that for purposes of section 3-108, the term " 'supervision' includes coordination, direction,oversight, implementation, management, superintendence, andregulation." Moorehead, 322 Ill. App. 3d at 639.

The facts in Guisch and Moorehead demonstrate that theimmunity granted under section 3-108(a) has been interpreted quitebroadly. In Guisch, the Pier Authority had ordered a maintenancecontractor not to clean the area of the facility where theplaintiff was injured later that same day. This court held thatthis cleaning directive fell directly under "[t]he plain andordinary meaning of [the term] 'supervise' " and, therefore, thePier Authority was entitled to the protection of section 3-108 as a matter of law. Guisch, 326 Ill. App. 3d at 1033. In Moorehead,this court applied section 3-108 immunity to a plaintiff'sconstruction-related injury where the Water Reclamation Districtoversaw a contractor's work in order to assure itself that theplans and specifications of a construction contract were beingfollowed. Moorehead, 322 Ill. App. 3d at 638-40.

In In re Chicago Flood Litigation, 176 Ill. 2d 179, 193(1997), our supreme court held that given the unambiguous languageof section 3-108(a), the City of Chicago was absolutely immune fromliability in connection with allegations that it failed to provideproper supervision of the actions of a company that installedpilings in the Chicago River, resulting in the flooding of thecity's underground tunnel system. See Steven M. Puiszis, IllinoisMunicipal Tort Liability, (2d ed. 2001 & Supp. 2002)(for anexcellent discussion of section 3-108(a) of the Tort Immunity Act(745 ILCS 10/3-108(a)(West 1996))).

In the case at bar, the amount of control retained by theBoard is the essence of a supervisory relationship. Accordingly,section 3-108 applies, barring plaintiff's cause of action againstthe Board. Public policy considerations also support thisconclusion. "The purpose of the Tort Immunity Act is to protectlocal governments and their employees from liability arising out ofthe operation of government." Board of Trustees of CommunityCollege, District No. 508 v. Coopers & Lybrand, L.L.P., 296 Ill.App. 3d 538, 548 (1998); citing DiMarco v. City of Chicago, 278Ill. App. 3d 318, 322 (1996). The court in Board of Trusteescontinued:

"The Board members in the instant case are publicservants who serve without compensation. [Citation.] Thepossibility of incurring multimillion dollar liabilitycould chill their willingness and deter them fromproviding such a service." Board of Trustees of CommunityCollege, 296 Ill. App. 3d at 548.

Defendants additionally argue that section 2-109 of the TortImmunity Act (745 ILCS 10/2-109 (West 1996)) is also available toimmunize the Board in this case. As we have determined thatsection 3-108 immunizes the Board, we need not address thisargument. Similarly, we need not reach the Board's alternativeclaim for relief based on the exclusivity provision in the Worker'sCompensation Act (820 ILCS 305/5(a)(West 1996)).

2. Breach of Contract

Defendant Board argues that the evidence failed to establisha breach of contract claim. Specifically, the Board maintains thatplaintiff received timely notification of the cancellation of hisemployment contract when the letter of nonrenewal was mailed, whichwas within the designated three-month period. Plaintiff respondsthat he did not receive the mailed letter and only learned of thecancellation of his contract when a hand-delivered letter was foundon his desk some time in April 1998. Therefore, plaintiffmaintains that the Board breached the employment contract.

Plaintiff's employment contract provided that "administratorswill receive a three-month notice for nonrenewal." Plaintiff doesnot dispute that the envelope containing his notice of nonrenewalwas postmarked March 31, 1998. Plaintiff merely maintains that,per the contract, he must actually receive the letter fornotification to occur. We disagree.

"It is established that when no method of service has beenprovided by statute, the decision of an administrative agency willbe deemed served when mailed." Board of Education of St. CharlesCommunity Unit School District, No. 303 v. Adelman, 137 Ill. App.3d 965, 968 (1985), citing Cox v. Board of Fire & PoliceCommissioners, 96 Ill. 2d 399, 403 (1983). This court has recentlyreaffirmed this rule in Nudell v. Forest Preserve District, 333Ill. App. 3d 518 (2002), appeal allowed No. 94679. There, we notedthat section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 1998)) provides:

"Every action to review a final administrative decisionshall be commenced by the filing of a complaint and theissuance of summons within 35 days from the date that acopy of the decision sought to be reviewed was servedupon the party affected by the decision ***." 735 ILCS5/3-103 (West 1998).

"A decision is considered served when it is deposited in the UnitedStates mail." Nudell, 333 Ill. App. 3d at 522, citing LutheranGeneral Health Care System v. Department of Revenue, 231 Ill. App.3d 652, 659 (1992).

If the mailbox rule is applicable to the statutory language"the date that a copy *** was served upon the party affected," itmust logically be applicable to the instant contract provision"administrators will receive a three-month notice for nonrenewal." Therefore, plaintiff's termination letter will be deemed receivedwhen mailed. Consequently, plaintiff did receive notice of thenonrenewal within the three-month period, and hence, no breach ofcontract occurred. Plaintiff, relying on Liquorama, Inc. v.American National Bank & Trust Co. of Chicago, 86 Ill. App. 3d 974(1980), argues that a presumption arises that mail is received byan addressee if the mail is properly addressed and has properpostage, but that presumption is rebutted if the addressee deniesreceipt of the mail. This argument misinterprets Liquorama. Therethe court stated that the lessee's letter did not bear the lessor'scorrect address. "This fact also bars use of the presumptionrendering the question of receipt an issue for the trier of fact." Liquorama, 86 Ill. App. 3d at 978. Here, there is no allegationthat the letter was incorrectly addressed, and therefore, thepresumption that plaintiff received the letter stands. See OrrwayMotor Service, Inc. v. Illinois Commerce Comm'n., 40 Ill. App. 3d869 (1976) (a party is presumed to have received a properly mailedorder).

For all of the above reasons, we reverse the judgments againstthe Board.

B. HILQUIST

1. Statute of Limitations and Manifest Weight of the Evidence

Hilquist argues that he is entitled to summary judgment onplaintiff's battery claims where plaintiff failed to provide proofof any timely claims. We disagree.

Pursuant to section 8-101 of the Tort Immunity Act (745 ILCS10/8-101 (West 1996)), any civil action against a localgovernmental agency or employee must be commenced within one yearfrom the date the cause of action accrued. Greb v. Forest PreserveDistrict, 323 Ill. App. 3d 461, 465 (2001). Plaintiff concedes asmuch in his brief, and therefore, the only alleged batteries which were actionable in this case must have occurred within one year ofFebruary 4, 1998, the date the complaint was filed.

Plaintiff testified that after February of 1997, after theweekly staff meetings, Hilquist would push his face against awindow. Plaintiff testified Hilquist would grab and twist his armon these occasions as well. Plaintiff testified that from Februaryof 1997 through June of 1998, Hilquist physically abused himweekly, including pushing him on the chest, back and back of thehead. Plaintiff testified that from February 1997 through June1998, Hilquist would kick him under the table at staff meetings.

Defendants point out that plaintiff never even alleged that hewas battered until his third amended complaint. Defendants alsostrenuously argue that plaintiff never produced any evidence thathe complained to medical personnel of any injuries from beingbattered. Defendants further maintain that because the only witnesswho corroborated Hilquist's physical touching of plaintiff,Schimel, testified that the incident occurred in the "winter 1997"and he was unable to give the exact date, plaintiff is unable toestablish the touching occurred within the statute of limitations. In support of their argument, defendants merely cite to generalizedrules of law regarding justification for the narrow one yearstatute of limitations for claims arising under section 8-101 ofthe Tort Immunity Act. Indeed the only case cited by defendantswhich supports their allegation that the date of the battery mustbe specific is quoted in text in Wolf v. Black Hawk College, No. 3-94-0187 (1995)(unpublished order was under Supreme Court Rule 23). Supreme Court Rule 23(e) (166 Ill. 2d R. 23(e)), prohibits thecitation of unpublished dispositions as precedential authority. Med+Plus Neck & Back Pain Center, S.C. v. Noffsinger, 311 Ill. App.3d 853, 858 (2000).

The jury heard the conflicting evidence regarding the date ofthe incident witnessed by Schimel. The jury heard the testimony ofplaintiff, Hilquist and many other witnesses. The jury heard theevidence, weighed it, and made its decision. We cannot usurp thejury's function and substitute our judgment for questions of factthat were fairly submitted, tried, and determined from the evidencepresented. Kamp v. Preis, 332 Ill. App. 3d 1115, 1124 (2002).

2. Tort Immunity Act

Hilquist next asserts that section 2-201 of the Tort ImmunityAct (745 ILCS 10/2-201 (West 1996)) immunizes his conduct. Specifically, Hilquist asserts that his criticism of plaintiff waspart of a "discretionary policy determination" to evaluateplaintiff on four occasions as opposed to once during the 1997-98fiscal year.

Section 2-201 of the Tort Immunity Act provides:

"Except as otherwise provided by Statute, a publicemployee serving in a position involving thedetermination of policy or the exercise of discretion isnot liable for an injury resulting from his act oromission in determining policy when acting in theexercise of discretion even though abused." 745 ILCS10/2-201 (West 1996).

Section 2-201 is premised "upon the idea that [public] officialsshould be allowed to exercise their judgment in rendering decisionswithout fear that a good-faith mistake might subject them toliability." Harrison v. Hardin County Community Unit SchoolDistrict No. 1, 197 Ill. 2d 466, 472 (2001). For section 2-102immunity to apply, the act or omission must be both a determinationof policy and an exercise of discretion. Harrison, 197 Ill. 2d at472. Discretionary acts are those that are unique to a particularpublic office. Harrison, 197 Ill. 2d at 472. Public policydecisions are those that require the governmental entity oremployee to "balance competing interests and to make a judgmentcall as to what solutions will best serve each of those interests." Harrison, 197 Ill. 2d at 472.

Hilquist creatively attempts to frame his conduct as"criticisms" in the course of discretionary evaluations ofplaintiff. That is clearly not the case here. Plaintiff'scomplaint does not allege "criticisms"; it alleges battery. Plaintiff's complaint alleges that Hilquist verbally and physicallyabused him on numerous occasions, not just during discretionaryevaluations. This conduct certainly does not amount to either anexercise of discretion or determination of policy. As plaintiffasserts, "this case has never been about Hilquist's reviews ofplaintiff's job performance or about defendant's hiring andretention decisions." Therefore, section 2-201 does not immunizeHilquist's conduct in this case.

3. Workers' Compensation Act

Hilquist next claims that the exclusivity provision in theWorkers' Compensation Act (820 ILCS 305/5(a)(West 1996)) barsplaintiff's tort claims for intentional infliction of emotionaldistress. We disagree.

Section 5 of the Act states:

"No common law or statutory right to recover damagesfrom the employer *** or the agents or employees of ***[the employer] for injury or death sustained by anyemployee while engaged in the line of his duty as suchemployee, other than the compensation herein provided, isavailable to any employee who is covered by theprovisions of this Act ***." 820 ILCS 305/5(a) (West1996).

Therefore, "where the negligence of a co-employee arising out ofand in the course of employment results in injuries to a fellowworker, the former may plead the act as a bar to a suit for damagesby the injured employee." Jablonski v. Multack, 63 Ill. App. 3d908, 914 (1978).

However, courts have held that workers' compensation laws donot immunize an employee from suits for intentional torts against a fellow employee. Meerbrey v. Marshall Field & Co., 139 Ill. 2d455, 464 (1990); Johnson v. Federal Reserve Bank of Chicago, 199Ill. App. 3d 427, 433-34 (1990). The exclusive remedy of section5(a) was not intended to be used as a shield against liability byan employee who commits an intentional tort against a fellowworker. Jablonski, 63 Ill. App. 3d at 914. Therefore, Hilquist,as an employee who committed an intentional tort, may not raise theAct as a bar to plaintiff's action for damages.

C. JURY INSTRUCTIONS

We first address defendants argument that the jury shouldhave been instructed on the definitions of "severe emotionaldistress," "extreme and outrageous conduct" and "intent." Ourreview of the record indicates that defendants never tenderedinstructions defining these terms. Supreme Court Rule 366(b)(2)(i)provides: "No party may raise on appeal the failure to give aninstruction unless he shall have tendered it." 134 Ill. 2d R.366(b)(2)(i). See Fakhoury v. Vapor Corp., 218 Ill. App. 3d 20, 26(1991); Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A.,Inc., 316 Ill. App. 3d 227, 234 (2000). We reject this portion ofdefendants argument. We do find that the trial court improperlyinstructed the jury regarding plaintiff's counts for intentionalinfliction of emotional distress, although not for the reasonssuggested by defendants. As to count III, intentional inflictionof emotional distress as to Hilquist, the judge instructed thejury:

"[Y]ou must decide the following issues: One, whetherdefendant Hilquist's actions were extreme and outrageousand two, whether defendant Hilquist either intended thathis conduct should inflict severe emotional distress orknew that there was a high probability that his conductwould cause severe emotional distress and three, whetherdefendant Hilquist's conduct, in fact caused plaintiffPaul Valentino severe emotional distress."

In the absence of an alternative instruction tendered bydefendants, this instruction was proper.

However, as to count IV, intentional infliction of emotionaldistress as to the Board, the judge instructed the jury:

"[Y]ou must decide the following issues: One, theplaintiff claims that one or more of the followingactions by Hilquist was extreme and outrageous ***."

The instruction then enumerated a list of 11 separate actions forthe jury to determine whether they were "extreme and outrageous." The list included:

"B: Defendant Hilquist pushed plaintiff.*** G: DefendantHilquist screamed at plaintiff in front of certaincommittees, wrongly accusing him of improperly handlingthe stream bank project and others. H: DefendantHilquist called plaintiff into his office, falselyaccused him of not performing his responsibilities andsaid he had convinced the president that he (plaintiff)would not succeed regardless of performance."

This instruction was improper. Essentially, the instructions tothe jury regarding count IV, namely, the language "one or more,"made it possible for the jury to return a verdict against the Boardif it found even one of the incidents occurred. After reviewingthe jury instructions and the applicable parts of the record, theinstructions on count III and count IV are not consistent. While instruction III requires the jury to decide whether Hilquist'sconduct was "extreme and outrageous," count IV allows the jury tofind that only one of the enumerated actions, even a push, couldconstitute "extreme and outrageous" conduct. This is contrary toIllinois law.

In McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988), the supremecourt stated with respect to the tort of intentional infliction ofemotional distress: "First, the conduct involved must be trulyextreme and outrageous. Second, the actor must either intend thathis conduct inflict severe emotional distress, or know that thereis at least a high probability that his conduct will cause severeemotional distress. Third, the conduct must in fact cause severeemotional distress." (Emphasis omitted.) "Liability only attachesin circumstances where the defendant's conduct is ' "so outrageousin character, and so extreme in degree, as to go beyond allpossible bounds of decency. ***" ' [Citation.] Welsh v.Commonwealth Edison Co., 306 Ill. App. 3d 148, 154 (1999). The tortdoes not arise from threats, insults, indignities, annoyances, orpetty oppressions, but from coercion, abuse of power or authority,and harassment. McGrath, 126 Ill. 2d at 86-89. The conduct must gobeyond all bounds of decency and be considered intolerable in acivilized community. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 21 (1992).

In Welsh, employees at a nuclear power station sued theiremployer on a theory of intentional infliction of emotionaldistress. The trial court dismissed the count as lacking sufficientfactual allegations. On appeal we affirmed. We noted that accordingto the plaintiffs they were demoted, transferred, forced to performdemeaning and humiliating tasks, including assignments to manuallyclean manholes " 'infested with bacteria, human waste, and otherdisgusting matter' and denied permission to use equipmentspecifically designed for such purposes." Welsh, 306 Ill. App. 3dat 150. We held that although the plaintiffs generally allegedanxiety, humiliation, and extreme emotional distress, the complaintcontained no factual allegations that rose to the requisite levelof severity of emotional distress. "It is the degree of emotionaldistress actually suffered by a plaintiff which separates theactionable from the nonactionable." Welsh, 306 Ill. App. 3d at155.

The Welsh case, although involving a dismissal at the pleadingstage, is directive on the type of evidence required to maintain aclaim for intentional infliction of emotional distress. Inanalogizing Welsh, certainly one act of pushing, or one act ofyelling, would not be sufficiently severe as to establish emotionaldistress under the facts of the case at bar. The standard fordetermining the adequacy of jury instructions is whether they weresufficiently clear to avoid misleading the jury, while at the sametime, fairly and correctly stating the law. O'Neil v. ContinentalBank, N.A., 278 Ill. App. 3d 327, 341 (1996); Schultz v. NortheastIllinois Regional Commuter R.R. Corp., 201 Ill. 2d 260 (2002). Wefind that the totality of the jury instructions did not accuratelystate the law. Kritzen v. Flender Corp., 226 Ill. App. 3d 541, 553(1992). While we have found the instruction given on count III tobe proper, it is clear to this court that the jury could haverelied on the factors enumerated in the instruction relating tocount IV in deciding the verdict on count III. Consequently, wereverse the verdict for plaintiff on count III, intentionalinfliction of emotional distress as to Hilquist, and remand thatcount for further proceedings consistent with this order.

We note that in Sale v. Allstate Insurance Co., 126 Ill. App.3d 905, 924 (1984), a case not cited by either party, this courtconsidered the plaintiff's objection to the following instructionon the elements of the tort of intentional infliction of emotionaldistress:

" 'The emotional distress suffered must be severe.  Although such things as fright, horror, grief, shame, humiliation and worry may fall within the ambit of the term "emotional distress," these mental conditions alone are not sufficient. In order to be "severe," the distress must be of such intensity and duration that noreasonable person could be expected to endure it.' "

This court rejected plaintiff's argument, holding:

"The language in this last instruction was taken from our supreme court's opinion, Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, 360 N.E.2d 765, 767, which quoted comment j to the Restatement (Second) of Torts, section 46 (1965). We hold that the instruction is neither misleading nor confusing." Sale v. Allstate Insurance Co., 126 Ill. App. 3d at 924.

The following portion of this opinion is non-publishable under Supreme Court Rule 23.

[NONPUBLISHABLE MATERIAL REMOVED HERE]

The material in this section is nonpublished under SupremeCourt Rule 23.

[NONPUBLISHABLE MATERIAL REMOVED HERE]

E. INFLAMMATORY, INADMISSIBLE AND PREJUDICIAL TESTIMONY

The material in this section is nonpublishable under SupremeCourt Rule 23.

[NONPUBLISHABLE MATERIAL REMOVED HERE]

F. EXCESSIVE DAMAGES

The material in this section is nonpublishable under SupremeCourt Rule 23.

[NONPUBLISHABLE MATERIAL REMOVED HERE]

G. APPEAL BOND

Lastly, defendant Hilquist argues that the trial courtimproperly denied his request to waive the appeal bond. We agree.

On June 6, 2001, the trial court granted the Board's requestto waive the appeal bond but denied Hilquist's request. Pursuantto the Public Community College Act (110 ILCS 805/1-1 (West 2000)),the Board has a duty to indemnify and protect employees againstcivil damages claims and suits, when damages are sought for actsperformed within the scope of employment. Accordingly, the Boardhas a duty to indemnify Hilquist, and the funding of Hilquist'sappeal bond has been supplied by the Board. Therefore, Hilquistshould be afforded the same waiver of the bond requirement as theBoard.

For the foregoing reasons, we affirm in part, reverse in part,and remand for further proceedings consistent with this opinion. Affirmed in part and reversed in part; cause remanded.

CAMPBELL, P.J. and REID, J., concur.