*1 al., al., Plaintiffs-Appellants, et BRIAN A. et v. PAUL BONELL BRANDON
Defendants-Appellees. Second District No. 2 — 05—0802
Opinion filed October
McLAREN,J., specially concurring. Clinite, Chicago, appellants.
Barbara J. for Madigan, General, Attorney Chicago (Gary Feinerman, Lisa S. Solicitor General, Schmidt, Attorney General, counsel), ap- and John E Assistant pellees.
JUSTICE KAPALA opinion delivered the court: Plaintiffs, Jeffrey Miller, July Brian A. appeal Brandon declaring order that the circuit court lacked follow, we af- over claims. For reasons that firm.
I. BACKGROUND 31, 1996, Dixon On December were inmates Cor- (Dixon) assigned to work in the Dixon rectional Center were Defendants, Bonell, Freil, Williams, Marvin kitchen. Paul Jan are Corrections, Department assigned to man- employees of Illinois 31, 1996, dietary age the Dixon kitchen. On December Bonell was kitchen, opera- of kitchen manager supervisor Williams was 10, 1999, tions, supervised and Freil inmate workers. On December court, complaint alleging plaintiffs filed a circuit plaintiffs, pursuant 3—7—3 of had breached their section 7—3(a) (West 1996)), Unified Code Corrections 5/3— provide plaintiffs maintain the kitchen facilities and with reason- breach, a result ably workplace. alleged safe complaint, injured plaintiffs were on December following plaintiffs alleged the facts. Williams, 1996, Freil, plaintiffs were work-
On December date, Prior Bonell had ing together in the Dixon kitchen. grease dispose of hot Freil and Williams have inmates instructed ques- on the date possible. Accordingly, in the kitchen as soon as *3 heavy, 15- to tion, plaintiffs and Freil instructed to remove a Williams grease dump from kitchen and it in an area 20-gallon of hot the vat hot, time, extremely ap- in the grease the vat was outside. At the grease, plaintiffs degrees. dispose to of the proximately 350 order Ap- onto a dock. pulled the on a cart and outside placed vat had dock, there a hose that been 24 feet from the was proximately to time and had caused ice running ground onto the for some water the to the area grease the hot dock plaintiffs form. As carried ice, the hot it, slipped on the and they dump to Brandon where were result, and As a Brandon sustained burns spilled plaintiffs. on grease his hand. injuries, and Miller sustained burns on serious plaintiffs’ to dismiss 2000, defendants filed motion On March Procedure Code Civil section 2—615 the complaint, pursuant to (West 2000)). Code) (735 (the argued Defendants that ILCS 5/2 —615 upon which relief cause of action complaint failed to state a plaintiffs’ barred against defendants were granted, the claims could public sovereign immunity, immunity, principles of absolute by the they part, that because immunity. argued, Defendants officials’ sphere in a employment, scope in the of their state acting were had exclusive control, of Claims the Court under their exclusive was 11, 2000, jurisdiction August hearing after over claims. On Magdich, judge argument parties, Judge from both Tomas M. trial case, assigned to to On denied defendants’ motion dismiss. October 13, 2000, plaintiffs’ complaint, defendants filed their answer they foregoing as affirmative raised the immunities defenses. 18, 2002, judg-
On filed a motion summary October defendants for 1005(b) (c) pursuant ment to sections the Code 2— (West 2000)). (c) 1005(b), motion, again In their 5/2 — argued scope being that because defendants were sued within the kitchen, prison they protected by in a were principles immunity. and absolute Defendants further as- serted that because the suit was employees, Court of Claims had exclusive and the court lacked circuit public Defendants did not raise the defense of of- ficials’ immunity judgment, in their motion had summary they for in their motion to dismiss. Attached to defendants’ motion sum- for mary judgment excerpts were depositions. from defendants’ deposition, 31, 1996,
In his Freil testified that on December he supervising Williams were explained the kitchen. Freil that after the fish were day, cooked that he empty grease told fryers from the into vats and to take the vats to the Freil back door. telling denied ever empty the vats on the dock. Freil agreed that there no procedure was written of the disposing grease, but stated that procedure the normal was let the grease cool in the vat by the door and to check if vat hot emptying was before it. stated, Freil it was understood that to be vats were emptied by the end of the shift. briefly
Bonell also deposition discussed in his events December 1996. Bonell stated that he manager food Dixon kitchen delegated authority and that he to his staff the oversee the inmates who worked in the kitchen. Bonell testified 31, 1996, on December he had staff requested that the maintenance clean off the although dock behind the Bonell said that kitchen. personnel usually facility, maintenance made rounds of the he made a special request weather; dock be cleaned off because of the however, say day. he did like In addi- what the weather was tion discussing specifically events December Bonell explained policy grease policy kitchen removal. The was to grease leave the to cool it out. taking for two to three hours before *4 However, agreed security Bonell there that encour- that were concerns aged grease the quickly. kitchen staff to remove the Bonell stated that grease bartering inmates would steal the use it to cook in their or cells and that danger grease there was a the hot could be used to injure staff members. identify
In differ- depositions, their defendants were asked to the working facility working ences between in a correctional kitchen and many in a testified differ- restaurant kitchen. Freil that there were ences, had to everything facility because the correctional kitchen prevent trafficking. and Freil noted up trading locked and secured street,” fryer the professional deep grease kitchen “on every kitchen, after like in changed facility not use the correctional will facility danger because in a correctional there is a that inmates it or it to harm staff members. In grease steal the and barter with use acknowledged security depositions, their Williams and Bonell also in a Bonell working prison concerns associated kitchen. said that with safety facility, grease because theft and in a correctional concerns outside, Bonell could not be stored a restaurant kitchen. acknowledged nothing facility setting about the also correctional grease allowing kitchen to cool before it prevented workers from was removed. defen- response
On filed their November summary response, In their judgment. dants’ motion for unique argued that because the defendants breached was not protec- not entitled employment, defendants were sovereign immunity, does not have tions Court Claims also claims of disputed exclusive deposition immunity. Attached to defendants’ motion was the absolute Ralph McKenzie. was an inmate at deposition, his McKenzie testified he kitchen working he was Dixon from about 1995 to 1998 and that day, working Dixon On that McKenzie was on December McKen- shift, p.m. ran 11 a.m. to 7 as a cook on the second which from shift and was as- working said also the second zie that Brandon was serving on McKenzie was a cook signed to work in the kitchen. with any way line the front of the kitchen and was involved serving he on the fryers. McKenzie said that while was cleaning line, supervisors he shout Brandon heard one of the kitchen go dump grease or inmates in the kitchen to one two other get everything a rush to fryers. McKenzie noted that there was McKen- end of the shift. night, it was almost the cleaned that emptied, he but grease he taken out zie testified did not see the vat then men holler. He others fall and heard two later heard vat another he that Brandon and of the kitchen and saw ran the back grease that the steps. McKenzie saw spilled grease man had on the coat, rising vapors he hot saw through had soaked Brandon’s body. McKenzie also observed Brandon’s grease from the said McKenzie pads to move the vat. carrying been hot Brandon had *5 Brandon, McKen- else hurt with but that he knew there was someone was hurt. badly zie did not see him or know how he said outside the scene of the accident. He McKenzie described approximately of the dock area that extended kitchen door there was a grease steps. spill six feet about six seven McKenzie said the was steps. ground at of the the lev- steps, the bottom of the At the bottom back of large grease Dumpster eled off. A bin and a were located the explained temperature had dropped this area. McKenzie that the day, but no of the p.m. p.m., between and 7 he saw snow at scene on although accident. McKenzie said that he could not see ice stairs, there, painted got very he knew it concrete was slippery just even there was water on it.
McKenzie stated that the kitchen used dock to and staff clean they sanitize the meal carts kitchen. A 50-foot ñre hose used cleaning was used for and carts the dock. The fire hose was con- nected inside the and ran through kitchen hole out to the dock. Ac- McKenzie, cording frequently the fire hose and leaked had multiple fixed on occasions. McKenzie leak as described the a constant drip. hose, stream was than more in the ice Because leak and, therefore, had prior formed the dock area on occasions salt kept put on the dock and the steps. on 1996, said, 31, On December up McKenzie the hose was wound dock, and he noticed leaking, causing that the hose was the dock get used, wet. When the hose was water would run drain into a steps. below the McKenzie estimated that the drain inch was about an from the dock. explained that, McKenzie although the leak from the hose directly stairs, was not on the steps frequently got wet because inmates they up tracked water onto stairs went steps. down the McKenzie steps slippery surmised that were leaked, because the hose leaving had water the bottom of the dock area, which then got tracked onto the stairs and froze when temperature However, dropped. did McKenzie not see ac- Brandon’s cident say and could not what caused Brandon’s did fall. McKenzie not notice salt around the area and did anyone sprinkling not see out salt in particular the area on that day. 24, September 2003,
On Judge Magdich issued memorandum denying decision defendants’ motion summary judgment. his decision, Judge Magdich reasoned that because defendants were officers, responsible correctional custody discipline, for inmate managers defendants’ as kitchen by any was the same owed manager kitchen Judge Magdich in the Illinois. concluded this independently arose defendants’ state that, therefore, protected defendants’ actions were not Judge rejected immunity. Magdich argu- also immunity ment that barred claims. absolute 3, 2003, Judge Magdich The indicates as- record that on December Judge Payne signed Judge David Fritts. John case Judge entered next orders in the case. On November February 2, Payne jury set the case for trial on March 2005. On through filed their first fourteenth motions limine. limine, they In their first the court all claims motion asked to bar defendants, upon based the doctrines of public again argued that the court immunity. officials’ Defendants at issue lacked because the conduct oc- acting scope employ- as a of defendants in the of their curred result different from other prison uniquely ment and that a kitchen is immunity in Defendants did not raise the of absolute kitchen. defense *6 in limine, they first in earlier motion to their motion had their summary judgment. and motion Defendants attached dismiss their for excerpts depositions their to their motions in limine the from summary judgment. had to their for their they attached motion limine, evidence, sought argu- in to bar second motion ment, policies, argu- or that defendants violated Dixon intimation the circuit ing pursuant sovereign immunity, to the doctrine of hear claims court lacked to policy. of a state law or employees upon based violations 17, 2005, their motion February On defendants filed seventeenth limine, any duty defendants asking trial to bar evidence of court Code of the Unified of plaintiffs pursuant owed to section 3—7—3 1996)). (West (730 3—7—3 ILCS Section Corrections 5/3 —7—3 and safety to be established enforced requires standards buildings properly requires all to be Department Corrections and plaintiffs alleged had their noted that maintained. Defendants statute. duty their under this complaint that defendants violated imposes duty on the statute a argued Defendants Corrections, principles sovereign it Department of would violate (West (705 seq. ILCS et immunity and the Court of Claims Act 505/1 2004)) the statute. Defendants to a derived from allow evidence public or officials’ im- immunity raise defenses did not of absolute motion limine. munity their seventeenth defendants’ filed motion to strike February plaintiffs a On Magdich already had Judge Plaintiffs stated that affirmative defenses. considered immunity when he upon defendants’ defenses ruled all of summary judg- for and their motion to dismiss defendants’ motion to have Next, 25, 2005, plaintiffs filed motion February ment. February case. Payne On Judge hear judge another besides motion, Payne again and the Judge granted plaintiffs’ case Judge assigned to Fritts. 9, 2005, motion for to file an plaintiffs
On March filed a leave statute sought amended to refer to different complaint. plaintiffs original to arose. In their under which defendants’ complaint, alleged that defendants breached their plaintiffs 3—7—3 the Unified Code Correc- plaintiffs pursuant section plaintiffs complaint, tions. In motion for to file an leave amended instead, indicated wished to cite and 3 of Health they sections 2004)) (West 225/2, Safety and as the statute to define Act duty. employers, including require Sections Illinois, reasonably protect safety the health and of their employees employees furnish with work environment free recognized are likely hazards that to cause death serious injury. 24, 2005, response On March defendants filed their motion for to file an amended complaint, arguing leave that would unfair prejudicial for to amend their after complaint pointed defendants’ seventeenth motion limine had out the fatal complaint flaw in and after change judges received three 28, 2005, weeks trial. parties appeared before On March Judge Fritts argue plaintiffs’ before motion leave to amend their complaint. Following argument, Judge parties Fritts advised the he would enter a written opinion as to complaint whether amended would be allowed. 25, 2005,
On July parties when appeared before the for a date, Judge status Fritts entered a memorandum decision in the case. decision, Judge In his Fritts found that the doctrine of im- munity that, applied result, as a circuit court lacked *7 jurisdiction matter Judge to hear the case. Fritts reasoned that security because of concerns, the duties of all employees within the Department institution of the unique Corrections are their to state and, therefore, charged defendants were with breaching derived their employment. Judge Fritts in ruling indicated his written that response decision his was in to is- limine-, sues raised however, in defendants’ during first motion in 25, parties’ July appearance, Judge orally Fritts identified defendants’ seventeenth motion limine as the basis of his decision. In response plaintiffs’ attorney’s questions, Judge to noted Fritts he plaintiffs’ had not ruled on motion their complaint, to amend because jurisdiction the circuit court did not have over claims. appeal
Plaintiffs now Judge July Fritts’ decision that the circuit subject court lacks matter
DISCUSSION plaintiffs argue the circuit erred it appeal, On that court when subject jurisdiction plaintiffs’ it over declared that did not have matter that, addressing than the circuit claims. Plaintiffs contend rather subject jurisdiction, Judge Fritts have denied court’s matter should defenses, in limine immunity raised because defendants’ motions that Judge Magdich already the merits of the issue of had considered sovereign immunity twice and ruled defendants both times. Also, subject plaintiffs the circuit court has matter contend jurisdiction sovereign immunity does bar claims, plaintiffs independently because defendants’ arose Finally, contend that the circuit employment. plaintiffs their state plaintiffs opportunity erred it did not amend because allow analyze complaint. each of the three contentions their We will separately. Matter Jurisdiction Propriety Addressing Subject
A. ways that the trial court erred in several when contend subject it in the course of its addressed issue of matter limine. First, plaintiffs argue of defendants’ motions consideration defenses, jurisdiction, matter cannot subject that affirmative such as has by party any already later motion once trial court be raised to motion to response considered the issue on its merits dismiss Second, argue pursuant 2—619 of to section the Code.1 lack of disposed it of the case for the trial court erred when Fritts considered the merits of jurisdiction, Judge because Judge when affirmative defense of ruling merits in on Magdich already had considered the issue judgment. summary to dismiss and motion defendants’ motion that, Judge Fritts’ action could be construed Finally, plaintiffs argue erred, Judge rulings, the court Magdich’s as a reconsideration limine in their motions defendants failed include Judge Mag the court’s review of facts or law that would merit new previous rulings. dich’s in limine normally reviewed ruling
A on motion trial court’s Chapman v. Hubbard Woods discretion standard. under an abuse of Motors, Inc., argue raise and then the court erred when allowed jurisdiction embedded issue of considered may an issue that in limine. Whether consider trial court motions pursuant section filed their motion dismiss note that defendants 1We (West 2004)), 2—619 of the not section the Code 2—615 of 5/2 —615 (West 2004)). (735 ILCS Code 5/2 —619 *8 by judicial previously in a limine but resolved raised motion in was law, review de case is an which we novo. determination issue (1999). 875, Comm’n, App. 3d v. Industrial 304 Ill. AC&S above, bases of outlined Although plaintiffs assert the three error if properly initial we these issues are as an matter must consider requires question ap of a for before court. Preservation review below, object propriate objection in the court and failure to constitutes Corp., App. Bachman General 3d waiver. Motors (2002). Accordingly, may issues not the trial court not be raised App. on 3d appeal. Conley, raised the first time Hamilton v. (2005). 1048, 1052 In in limine in the challenging defendants’ motions court, any grounds failed of the plaintiffs procedural trial to raise in their brief. appellant raised brief, plaintiffs hearing
In out on point their that at a March 28, 2005, plaintiffs’ Judge had argued Magdich previously counsel ruling subject made on the issue of matter 2005, hearing fail to note that the March concerned amend
plaintiffs’ complaint. motion to their Plaintiffs’ counsel cited Judge Magdich’s rulings to show that defendants would not be harmed by plaintiffs’ proposed to their complaint, argue amendment not to court could not entertain the issues raised in defendants’ mo fact, responded tions limine. In never to defendants’ limine, seventeenth response motion in and their to defendants’ first motion limine limited to their contention that the court had subject jurisdiction matter complaint. over Plaintiffs never argued that defendants were from raising barred their affirmative defenses in limine, their motions in the court was barred from considering following Judge Magdich’s rulings, those issues or that there was no any new evidence to support Judge reconsideration of Magdich’s rulings. addition, plaintiffs never filed a motion to result, reconsider Judge or vacate decision. plaintiffs’ Fritts’ As a arguments the court should not have addressed the issue of subject jurisdiction matter raised in defendants’ motions in limine they were waived when failed object propriety to the of defendants raising the propriety judge taking issue or the action on it. aside, however, regarding
Waiver all arguments three of procedural aspects Judge ruling identify Fritts’ fail to a revers by First, ible improperly error the trial court. raised even jurisdiction limine, the issue of matter in their motions power jurisdiction trial had the to rule its matter any absent Barrington Community motion defendants. See Unit Special District, School District 220 v. No. Education Subject can raised sua sponte time, any jurisdic the trial lack of subject court at since the deprives except power tion the trial court dismiss the action. Barrington Community Unit No. School District Therefore, considering at 247. error defendants’ affirmative *9 defenses their motions limine was harmless because the trial did proper not need a motion from defendants to confront the is subject sue of Unit Barrington Community matter School 220, No. Ill. 3d App. District 245 at 247.
Second, a
cases
long
authority
line of
has condoned
of a suc
judge
rulings
judge.
of
change
interlocutory
predecessor
cessor
Lombard,
203,
(1988);
v. State
Ill. 2d
Rowe
Bank
125
213-14
Towns
113,
(1978);
Co.,
Bailey
Cab
Ill. 2d
Develop
v. Yellow
73
121
v. Allstate
(2000);
Corp.,
App.
County
ment
Ill.
3d
Lake
Riverboat
316
956
(2000).
Board,
A
App.
v. Illinois
Ill.
3d
suc
Gaming
L.E
313
950
interlocutory
power modify
cessor court has the
or revise
order
956;
prior
judgment. Bailey,
App.
time
final
3d at
at
see
Rowe,
213-14; Towns,
also
In this
in his memorandum decision
sovereign immunity prohibited
the issue of whether the doctrine of
court,
subject
circuit
an issue
was
jurisdiction
matter
Judge Magdich found that
already
by Judge Magdich.
considered
against
did not bar
claims
plaintiffs’
dismiss and defendants’ motion
he denied defendants’ motion to
when
a motion
dismiss and the
summary
Both
denial of
judgment.
for
summary
interlocutory
are
orders
judgment
of a
denial
motion
3d
Bailey,
App.
Ill.
may
prior
judgment.
to final
revised
(1991). Moreover,
181-82
956;
Partee,
App.
Pearson
party
No
judge shopping
defendants.
there is no evidence
case,
explain
Magdich reassign
requested
Judge
reassigned
Judge
because of
originally
the case was
in their brief that
Judge Payne
reassigned from
The case then was
Magdich’s retirement.
request
plaintiffs,
Fritts
defendants.
Judge
at the
defendants,
shopping by
judge
no evidence of
Because there is
Judge Fritts had the right
already
to rule on the
addressed by
issues
(1)
Judge Magdich’s interlocutory
previous rulings
orders
either
(2)
discretionary
reconsideration,
were
justified
new matters
the previous rulings were erroneous as a matter
Bailey,
of law. See
956-57;
316 Ill. App.
Riverboat,
3d at
Lake County
3d at
950. Subject
jurisdiction
matter
discretionary,
is not
but a matter of
law.
Riverboat,
Gassman v. RGB
As a
result, Judge Fritts’
subject
reconsideration of the issue of
matter
jurisdiction
proper
even
County
without new evidence. Lake
River
boat,
B. Whether Subject Matter Jurisdiction Exists Plaintiffs contend that the trial court erred when it dismissed plaintiffs’ claims for lack of jurisdiction, because the doctrine immunity does not bar claims defendants as individual employees Department of Corrections. *10 argue that the circuit subject court has jurisdiction matter over plaintiffs’ claims because the defendants allegedly breached was one that arose independently of their state employment. respond Defendants they protected are by sovereign immunity plaintiffs’ because truly claims are against and, the State of Illinois therefore, the circuit court does not subject have jurisdiction. matter Subject jurisdiction matter law, is an issue of which we review de novo. Gassman, 3d at 226. XIII, 4,
Article section of the Illinois Constitution of 1970 abolishes sovereign immunity in this state except as the General Assembly provides by 1970, law. Ill. XIII, §4. Const. 1972, art. legislature the (745 (West enacted the State Lawsuit Immunity 2004)), Act ILCS 5/1 which states that the State of Illinois shall not be made a party or court, defendant in any except provided by the Illinois Public Labor (West 2004)) Relations Act seq. et or the Court of Claims 315/1 Act. The Court of gives Claims Act the Court of Claims exclusive jurisdiction 505/8(d) over all tort against claims the State. 705 ILCS (West 2004). Therefore, us, the case before if defendants are insulated from liability by sovereign immunity, jurisdiction exclusive rests in Claims, the Court of and the circuit court subject has no mat jurisdiction. (1992). ter Lao, 151, See Currie v. Ill. 2d 148 157-58 pause
We must here to clarify how the Court of Claims Act and the State Lawsuit Immunity Act regulate jurisdiction can
504 the circuit court has held that because supreme circuit court. Our matters derives jurisdiction justiciable over courts’ Constitution, legislative enactments cannot the Illinois solely Belleville jurisdiction. create or limit the circuit courts’ U.S.A., 325, Sales, Inc., Ill. 2d Toyota, Toyota Inc. v. Motor (2002). Immunity Act recognize allowing the State Lawsuit We jurisdiction the circuit courts’ of Claims Act to control Court State, merely creating affirmative against claims instead over State, may seem to conflict with against to claims defenses Ill. 2d Healy holdings Vaupel, of Belleville. did not
(1990),
the Court of Claims Act
supreme court held that
our
courts
giving
provision
constitution
conflict with
supreme court stated:
justiciable
matters. Our
jurisdiction over
abolishes
XIII,
the Illinois Constitution
“Article
section
Assemblymay provide
immunity ‘[e]xceptas the General
sovereign
authority,
legislature
grant
express
to that
law.’Pursuant
Claims,
hear
the forum for
to serve as
has established the Court
no conflict
determining
against the State. Wediscern
ing and
claims
immunity
[abolishingsovereign
provisions
the two constitutional
between
§4)
XIII,
granting
the circuit
(I
art.
Const.
ll.
(Ill.
1970,art.
justiciable matters
Const.
jurisdiction over all
courts
§9)]
Healy,
The determination party. is named as the State necessarily depend on whether does not ac Whether Gainer, Kawaguchi v. *11 and the the issues raised depends on the State against tion is one An action Lee, 2d 209 Ill. Jinkins v. sought. relief capac in his individual employee against a state brought nominally is or of the State the actions operate to control ity but “could Currie, 148 Ill. against the State. an action liability” is considered against as employees against state Treating such actions 2d at 158. immunity by state sidestepping plaintiffs from prevents the State Kawaguchi, as defendants. employees naming only individual Accordingly, Ill. at 243. defendants are cloaked with 3d is sovereign immunity only against the suit them protections Currie, truly against the State. See at 158-59. Jinkins, supreme three-part reiterated the test it our Healy against employee
established in
to determine if an action
a state
truly
against
against
employee
is
one
the State. An action
a state
is
(1)
allegations
considered one
the State when
there are no
employee
agent
beyond
scope
that an
of the State acted
of his
(2)
acts;
authority through wrongful
duty
have
alleged
been
by
independently
breached was not
of his state
employee
owed
(3)
employment; and
the complained-of actions involve matters
ordinarily
employee’s
within that
normal and official functions.
Jinkins,
case,
working
The determination
employee
of whether an
has breached a
duty
independently
employment
guided
owed
of his
by the “source
duty”
by
Jinkins,
test established
our
supreme court Currie.
According
test,
2d at 159.
employee
duty imposed
when an
breaches a
independently of
state employment,
his
he is entitled to no more im
munity
private
than is a
individual who breaches that same
the mere fact of his
heightened
will not endow him with
Currie,
protection.
Thus,
employee
2d at 160.
even if an
is act
ing in
scope
employment,
protected by
his
he will not be
breaching
separately
that arises
Currie,
his state employment.
"Whenapplying duty” the “source of courts have found that independent duty is a imposed employee’s status Jinkins, Currie, something employee. 333; other than an Ill. 2d at *12 506 160; 244; Kawaguchi, App.
In the is a one owes to oth way, same to drive regardless employment, it arises from one’s status ers of one’s roadway person on a state and not as a person operating as a a vehicle result, Currie, 2d at As a when a employed as a driver. 148 Ill. driving duty safely, her even she is employee state breaches drive duty has breached a scope employment, within the of her state she sovereign employment protected by and is not imposed solely by her Currie, 2d immunity. 148 Ill. at 160.
However, exceptions. Cur duty” test is not without “source rie, employee’s 2d conduct related to a state at 160. When the that a suit independent unique to his state such ac policies affect or control its challenging this conduct could state tions, bar a suit the state then will 160; Currie, Kawaguchi, Ill. 2d at employee. 148 to an police responding a officer was example, 244. For where traffic, this manner driving south across westbound emergency call employment, to her state driving unique considered was independent duty her to drive sovereign immunity applied despite at 244. Kawaguchi, with reasonable care. opera and duties as a motor vehicle professional
Like duties as a independent tor, normally considered imposed by duties statute are requirements on impose specific statutes duties because most Johnston, Ill. 2d Fritz v. 209 regardless employment. their people (2004). his in the course of example, employee an 314 For when Code of by the Illinois Criminal duty imposed a employment breaches (West 2004)), he has breached seq. et ILCS 5/1—1 Fritz, immunity. by sovereign protected and is not independent duty court clari supreme in Fritz our recently Ill. 2d at 314. employees, imposes duty only upon fied that where a statute Fritz, employment. solely arises statutory resulting employee’s from a state result, 2d at an action 314. As only to state pertaining solely by a statute duty imposed breach of Ill. 2d at Fritz, 209 immunity. See sovereign employees protected the Board of Governors sued professor example, 314. For where they had Illinois, alleging and Universities Colleges State act, governors the hoard of a section of discharged her in violation of control of management, and operation, to the applied which applied System, the court Colleges and Universities State immunity despite of Governors argument that the Board plaintiff’s Ellis v. Board Fritz, citing Ill. 2d at violated a statute. See Universities, 102 Ill. 2d Colleges & Governors of defendants, the trial court all case, plaintiffs, In this analyses focused their on whether *13 aspects of distinguishing the employment by
unique to their state argue that because private from kitchens. Plaintiffs prison kitchens duty employees their and owe managers supervisors kitchen environment, independent is maintain a safe work safety that the concerns argue Defendants employment. their state prison and a private kitchen and nutritional differences between a safe kitchen environ make defendants’ to maintain kitchen argue also unique employment. to their state Defendants ment disposal change grease in the State’s plaintiffs’ suit could result policies. trial held that because light arguments,
In of these is suf grease facility a correctional procedure dispose of hot within enterprise, ficiently private that of a different employment. solely by reason of their state defendants breached arose Therefore, sovereign immunity barred the trial court concluded that It subject jurisdiction. matter the suit and that the court lacked asserting authority its the court did not err noting worth here that jurisdic its in order to determine over issue of obligation to consider their authority tion. Trial courts have the and (2001); K.C., Reyes v. App. In re 3d own (1998). Therefore, Claims, 1097, 1101 even App. Court 3d power has the to determine jurisdiction, it a court lacks case on that and dismiss the that it lacks 499, 505 Claims, App. Ill. 3d ground. Klopfer See v. Court of 220, 245 Ill. District No. (1997); Community Unit School Barrington Revenue, 247; Pedigo Department App. 3d (1982). 762-63 differences outlined the and the trial court Although parties kitchens, facility private kitchens and correctional supervising between light misplaced on these differences we believe the focus trial court However, may affirm the complaint. we alleged facts trial record, regardless of whether by any ground on called court relied ground. on that Thomson Learning, Inc. v. Olympia LLC, Properties, complaint, their plaintiffs allege that defendants breached specific duty under section 3—7—3 of the Unified Code of Corrections to properly maintain the kitchen adjacent facilities and grounds provide and to plaintiffs with a reasonably workplace. safe Section 3—2—1 of the Unified Code of Corrections states that the Unified Code of Correc tions consolidates one “powers statute the and Depart duties of the (West 1996). ment of Corrections.” 730 ILCS Section 5/3 —2—1 3—7—3 of the Unified Code of Corrections states: Sanitation, (a) Safety “Institutional Standards of sanitation safety for all institutions and facilities shall be established and
enforced
Department.
buildings
All
and facilities shall be
regularly
cleaned
properly
maintained. Ventilation of air and
heat adequate to the climate and
provided.”
season shall be
7—3(a)(West1996).
ILCS 5/3—
As noted
the language, this
applies only
statute
Department
to the
of Corrections. Consequently,
imposes
the statute
duty solely
on the
Department
Corrections,
thus,
any duty
imposes
Depart
ment of
employees
Corrections
solely by
arises
virtue of their employ
Further,
ment.
any
court cannot find
duty,
common-law
akin to
lawyers,
that of
doctors and
professionals,
other health
and motor
operators,
vehicle
that kitchen supervisors
keep
have to
kitchen staff
Fritz,
Therefore,
members safe. See
Because
allege
do not
showing
facts
that defendants
*14
breached
independently
arose
of defendants’
state employment,
the action is
against
considered one
the State.
Jinkins,
addition,
exclusive against employees over claims of the Depart- 8(d) ment of argue Corrections. Plaintiffs that because the section of Court of Claims Act fails to specifically Department mention the of agency Corrections as an over which the Court of Claims has exclusive jurisdiction, legislature the did not intend for the Court of Claims to jurisdiction against have sole employees over tort actions of the 8(d) Act of Court of Claims the of Section Department Corrections. jurisdiction Claims has exclusive states, part, the Court of over: sounding damages in cases against the
“All State claims private or tort, against person lie if a cause of action would like sounding in tort suit, all like claims corporation in a civil of of Commission, Board Trustees Center the against the Medical Illinois Illinois, of Southern University of Board of Trustees University, the Chicago of of University, the Board Trustees of University, Illinois the Board Board of Eastern of Trustees Il- University, of of Trustees the Board Trustees of Governors State Il- University, of of Northeastern linois State the Board Trustees University, the of of Illinois linois Board Trustees Northern University, of of Illinois University, Board Trustees Western Trustees Illinois and Science the Board of Mathematics 505/8(d)(West2004). Academy.” “and” to legislature Plaintiffs assert that because the used the word 8(d) like of precede the words “all claims” section of the Court 8(d), Act, in section such agencies specifically Claims state not listed Department Corrections, from as the were intended to excluded result, the exclusive the Court of Claims. As only nominally contend that is defendants must show the action against against them and in effect an action the State. explain Department
Plaintiffs why never absence of 8(d) Act specifically Corrections from section of the Court of Claims precludes asserting immunity a defense of (West pursuant 2004)). Immunity Act the State Lawsuit ILCS 5/1 works, Regardless of the agency employee which a state Immunity neither the State Act nor Act Lawsuit the Court Claims protects expressly employee individually against a state from a lawsuit (West 505/8(d) (West 2004); him or her. See 745 ILCS 705 ILCS 5/1 2004). against employee by sovereign An im action state is barred Currie, munity only truly against when it is an the State. action result, earlier, Ill. 2d at 159. As a in order for discussed Act, must employee Immunity invoke the State Lawsuit only nominally against employee find that the and is action Healy, effect an action the State. 133 Ill. 2d explain Department do how absence of Corrections 8(d) changes Act application section of the Court Claims sovereign immunity to defendants.
Moreover, provides Act that Immunity it is the State Lawsuit immunity gives power Court Act its State with of Claims *15 (West 2004). immunity. the 745 ILCS exceptions outline 5/1 510
Therefore, Immunity Act, the State Lawsuit not Court of Claims Act, is sovereign determinative of whether immunity applies ato State entity. See Association Mid-Continent Universities v. Board of of 950, Trustees Northeastern University, App. Illinois 308 Ill. 3d 953 of (1999). earlier, As Immunity discussed the State Lawsuit provides Act may court, that the any State be sued in it provided unless is for (West 2004). specified in the acts. 745 ILCS For purposes of 5/1 Act, the State Immunity Lawsuit of the State includes immunity present against claims arms the State. Williams Comm’n, . 389, (1975); v Medical Center 60 Ill. 2d 393 Williams Davet, App. 595, (2003); v. 345 Ill. 3d Department 599 Gordon v. Transportation, 109 Ill. App. Generally, 3d agency of the itself, State considered an arm of State which is immune Davet, from suit the circuit court. Ill. App. 3d Accordingly, plaintiff attempts when a a present enforce claim (see against a agency Hospital Memorial Department v. Rockford (1995)), Rights, Human 272 Ill. App. provided 3d such agency authority does not its (Hadley Depart exceed under the law v. Corrections, (2005)), ment App. judgment 3d against State, it effectively judgment against would is subject sovereign immunity (Foley therefore the claim American State, County, Municipal App. Federation & Employees, 199 (1990)). Department separate in way The of Corrections no entity. legal Foley, Department at 14. Correc The State, such, is an of the agency indisputably tions and as it is arman Accordingly, of the State. 3d at 13. suits Foley, against subject Thus, State liability. would because the Lawsuit State Immunity against except Act bars claims the State in court acts, provided application fail to see of sec specified we how 8(d) tion of Claims Act would allow the court Court circuit against Department over claims of Correc employees only against nominally tions who show that the claims are them. find against plaintiffs’ nominally
Because we claims are State, truly defendants and are claims the claims are asserted in principles immunity barred (West 2004). Therefore, find Immunity Act Lawsuit we 5/1 held that properly circuit court it lacked plaintiffs’ circuit jurisdiction to hear suit. We now turn whether the declining upon plaintiffs’ erred in motion to amend to act complaint. Complaint Plaintiffs’ to Amend
C. Motion on court erred when it ruled argue Plaintiffs the trial ruling granting in limine without first motions complaint. an amended leave file *16 motion complaint to their for leave amend their motion contend that impos- reference to the statute change them to their to allow intended the Unified 3—7—3 of duty from section plaintiffs defendants’ ing 1996)) (730 7—3(a) (West 2 to sections ILCS of Corrections Code 5/3— 2004)) (West 225/2, Safety 3 Health Act and 3 and circuit court contention that the dispute defendants’ thereby and the court determined respond that once lacked Defendants any jurisdiction, it could not take action it lacked and, moreover, that even plaintiffs’ than to dismiss claims other still have complaint, their claims would plaintiffs had amended by sovereign immunity. been barred complaint at Code amendment of a
Section 2—616 of the allows final plaintiff in to enable sustain any judgment, time before order 616(a) (West 2004). The the claim that was intended. 735 ILCS 5/2 — complaint an of a is a matter within permit decision amendment court, and we will not disturb the sound discretion trial Manage an R.J. trial court’s decision absent abuse that discretion. (2004). 957, 969 Development App. ment Co. SRLB 3d Corp., v. liberally The trial exercise in favor of allow court should its discretion amendment, al ing and doubts should be resolved favor of lowing justice if the furthered al amendment ends of will be Co., lowing App. it. Hartshorn State Farm Insurance v. 3d (2005). However, to amend a request 735 the denial of a complaint appropriate amendment, if even after the no cause of ac Terry Exposition Authority, tion can stated. v. Pier & Metropolitan be (1995). 456 Assuming, the trial court erred it deciding, without when ruled on limine prior the issues raised defendants’ motions in ruling complaint, for leave to file an amended plaintiffs’ motion complaint this error amended would plaintiffs’ was harmless because sovereign immunity. City also have been barred doctrine See Cook, (1995); Elgin County Ill. 2d 71-72 Firestone v. 169 Fritz, argue merely amended have corrected the statu proposed complaint would duty plaintiffs as tory complaint reference in the to conform with litigation and, thus, independent asserted an throughout serted duty of trial court defendants that would allow the disagree. over claims. We alleges proposed complaint that was Plaintiffs’ amended Safety duty of defendants under sections and 3 of Health adjacent grounds properly Act to maintain the kitchen facilities provide a reasonably workplace. with safe 820 ILCS (West 2004). 225/2, Section of Health Safety states, Act part:
“This shall apply employers Act engaged any occupation, State, enterprise business or employees,including and their the State employees political of Illinois and its and all subdivisions (West2004). employees and its ***.”820 ILCS 225/2 3 of Safety states, part: Section the Health and Act “(a) It every employer shall under this Act to provide protection lives, reasonable safety to the health and and to employeesemployment furnish to each of place his and a of employ- ment which are from recognized causing free hazards that are likely physical are to cause death or harm employees. serious to his (b) employer It shall be the of each Act to comply under this occupational safety with promulgated health and standards under (West2004). this Act.” 820 ILCS 225/3 In order to determine if under this statute is an *17 independent we duty, duty, any, must first determine what imposes statute on defendants. argument throughout Plaintiffs’ supervisors case was that defendants were kitchen and kitchen supervisors independent have an duty to maintain a safe environ- work ment. Plaintiffs contend that sections 2 and 3 and Safety of the Health impose duty upon Act defendants. Plaintiffs do not discuss what 2 imposes section on defendants. Section 2 does not appear ad- but, any rather, parts dress duties states that Health and Safety of the (West apply Act employers employees. will 820 ILCS 225/2 2004). specify part Plaintiffs do not which of 3 a imposes duty section 3(a) 3(b) on defendants. only parts sections are the of 3 that general duty provide workplace section refer to a a safe (b) (West 2004). 3(a) 3(b) 225/3(a), employees. 820 Sections (b) (West 2004). a impose employers. 225/3(a), 820 ILCS Neither section 2 nor 3 supervi- section mentions the duties of kitchen (West 2004). 225/2, sors to kitchen workers. 820 ILCS Safety give The Health and Act does not a definition for the term statute, “employer” any as used nor do we find case has “employer” confronted definition of as used that statute. pertaining Although employment different statutes define “em- (West 2005) (820 ployer” ways Supp. different (“[A]ny ILCS 5/1.3 individual, association, trust, partnership, corporation, business any governmental body, person group or quasi-governmental or or labor, persons work, or employs any person to exercise skill vocation, business, operation industry, connection with the or (West 2004) partner- operation”); (“[A]ny person, 820 ILCS 215/2.2 a or furnishes entity or other who which ship, corporation, association shoes, shining or materials for for sale or distribution minor articles parent a or organization or not-for-profit other not charitable or but employed”); 820 ILCS only minor child or ward is the guardian whose (West 2004) which has or had (“[A]ny employing unit 405/205 ***”)), day of a portion or on some eight more individuals comprehénsive definition of reflect a none these definitions specific statute. unaffected the content “employer,” term person “[a] who controls Dictionary employer defines as Black’s Law of hire and implied an or contract express under and directs worker Dictionary 544 salary wages.” Black’s Law pays the worker’s who (7th 1999). ed. distinguished employers duties and liabilities of
Courts have v. Atlantic supervisors in numerous circumstances. Buckner Maintenance, (1998); Inc., 12, 21 Northrop Lopatka, 182 Ill. 2d Plant (7th (1993); Banning, Williams v. 72 F.3d App. 3d 1995). has retaliatory discharge, supreme In suits for our Cir. therefore, said, only sued, supervisor can employer may an be Buckner, individually firing employee. for not be found liable an Ill. 2d at 21. The Circuit held that under Appeals Seventh Court has (42 §2000(e) provisions Rights of the federal Civil Act of 1964 U.S.C. (2000)) in the definition employers, supervisors directed at do not fall (Williams, employers and 72 F.3d at individually cannot sued 555), supervisors criminally and that be held liable cannot under (2000)), Occupational §666 Safety Health and Act (United U.S.C. applies employers Doig, which States v. 950 F.2d (7th 1991)). way, supervisor 412-13 neither an Cir. the same employer liability employee’s for ac purposes vicarious an Northrop, (holding although tions. 3d at 5 employer through could be liable for the actions of a dental assistant dentist, not agency, supervisor, the doctrine of her was account able, because, supervisor, he a coworker and not an her employer). Additionally, plaintiffs allege do that defendants were *18 plaintiffs’ employers duty employers. or had a as their that pled Neither do the facts lead to reasonable conclusion employees plaintiffs were defendants.
Certainly,
may
employers,
some kitchen
but not
supervisors
Safety
employers.
of the Health and
supervisors
kitchen
are
Section 3
duty
supervisors,
kitchen
who
independent
Act does not create an
workplace
free from hazards.
employers,
are not
to maintain
were kitchen
allege
Plaintiffs
facts that show
that defendants
alleged
that
supervisors
employers.
and not
The facts
do
show
or that defendants
defendants had
contract
hire with
individually paid plaintiffs’ wages. Consequently, if defendants had a
duty
protect plaintiffs
from injury, related to
sections
and 3 of the
Act,
and Safety
Health
duty
solely
arose
because defendants were
agents of plaintiffs’ employer, to which
and Safety
the Health
Act ap
plies. Thus,
duty
defendants had to plaintiffs
solely
derives
employment,
their
not from
Act
Healy,
itself. See
Ill.
2d at
articulating
Instead of
2 and
how sections
the Health and
Safety
duty
Act impose a
independent
defendants that is
of their
employment, plaintiffs argue
duty
that defendants’
supervi
as kitchen
an independent duty
sors is
supervisors
because all kitchen
have a
duty to
argue
maintain
safe kitchen.
many
Plaintiffs
that because
public
employers,
private,
both
require
supervisors
their kitchen
to maintain a safe kitchen
workers,
environment for kitchen
this duty
is not unique
employment.
to state
plaintiffs’ argument is
by
undercut
supreme
our
Healy,
court’s decision in
predated duty” the “source of outlined in Currie test 159) rejected argument at and because the Jinkins court sovereign immunity applies merely defendants would not plaintiff have encountered the “but for” their with the 333). However, (Jinkins, 209 the Currie court stated entirely Healy, pointed that its decision was consistent with out Healy that the court also examined the source of the defendants’
515 by gymnastics coaches duty the the that breached and determined Currie, at 148 Ill. 2d 165- solely employment. from their state derived Healy was Jinkins, also found that Moreover, supreme our court in 66. independent an finding doctors had with cases that not inconsistent Jinkins, Ill. 2d at 209 332-33. duty patients. to their clarified the distinction between Jinkins, supreme our court Healy. it identified duty a independent duty and derivative analysis, the Jinkins at In its Jinkins, Ill. 2d 333. 209 may present even duty be where acknowledged independent that an except for the would not exist parties contact the the between Instead, at the Jinkins, Ill. 2d 333. employment. defendant’s 209 of the contact clarified that it is not the derivation Jinkins court rather the derivation of paramount, the that is but parties between Jinkins, Ill. 2d at See 209 duty plaintiff. the defendant has to the the beyond employment of and the 333-34. Certain duties extend above defendant, employment may the defendant’s although out, duty may itself must be carried setting duty which source, or safe- professional derive from an such standards outside 334; Currie, Ill. requirements. Jinkins, See Ill. 2d at driving overlap Additionally, employment 2d at 160. duties can with both However, statutory duty subject professional and duties. test of duty solely is sovereign immunity to derives from state whether Therefore, Currie, duty if the employment. at 159. derives employment, from source other than or in addition to it is an independent duty party’s employ it arose in the context even Jinkins, 2d at ment. See 333-34. was an duty
Plaintiffs insist that defendants’ independent duty supervisors duty kitchen have a private duty plaintiffs. to defendants’ We private kitchen workers similar disagree. parties’ confusion lies We believe “[wjhere the interpretation of the Currie court’s statement charged negligence employee’s act arose out of the State breach of employment, is on him his imposed solely virtue of State sovereign immunity will maintenance of the action in circuit bar Currie, court.” (Emphasis original.) that,
interpret this statement to mean in order only must have breached a that arises apply, employee a state private employees exist for state does not sovereign im premise sector. this is inconsistent with Fritz, (“sovereign immunity designed Ill. 2d at munity. See funds”). preserve protect autonomy state’s of action in the provides provided The services similar to those many State sector, employees private private public and therefore both engaged in acquire the same work identical duties associated with positions. Despite duties, these often identical the State Lawsuit Immunity Act and the Court of Act require Claims still that all actions Claims, the State be just heard in the Court those involv (West ing performs. actions 2004); See 745 ILCS 5/1 505/8(d) (West 2004). 705 ILCS Consequently, even a state when employee’s position requires the same duty required private employee, employee’s the state protected breach of such a *20 duty solely derives from the employment position, and not professional statutory from standards or require apply ments that to all Healy, citizens. 133 Ill. 2d at other words, duty” sovereign the “source of immunity test favors when a employee state duty imposed solely sued a breach of a on him employment. his Kawaguchi, App. Therefore, See 3d at 243. it is not an employee performs uniquely functions, whether state like regulating prison inmates, but whether the state employee’s duty to a plaintiff solely employment, arises from his that determines whether duty solely employment. derives from his state Healy, 133 Ill. 2d (1998).2 312; Smith, at Swanigan see also 294 Ill. App. case, plaintiffs’ In this alleged the facts proposed amended complaint do not show that defendants breached an independent duty plaintiffs, duty but a that arose as a result of their employ ment in the kitchen at Dixon. employer Defendants’ is the Depart Corrections, ment of is an Foley, which arm of the State of Illinois. See App. Therefore, 199 Ill. 3d at 14. their duty solely derives from their employment. NIU, Like the it employees if were not for Dixon, supervisors defendants’ status as kitchen at defendants would duty plaintiffs Healy, have had no protect harm. See 133 Ill. 2d at 312. earlier,
2As
performing
discussed
the issue of whether a defendant
a
uniquely governmental
function becomes relevant once the court determines
solely
employ
at issue does not arise
as a
result
one’s state
Currie,
circumstances,
ment.
Because defendants complaint amended proposed employment, plaintiffs’ of their state truly against defendants and only nominally against presented a claim immunity. State, by principles be barred and would made an error in refus if the trial court result, As conclude that we prior complaint motion to amend ing plaintiffs’ to rule on such error jurisdiction, lack of dismissing case for 72; Firestone, City Elgin, was harmless. See App. 3d at 690.
CONCLUSION hold that arguments appeal, we reviewing plaintiffs’ After all of for lack err dismissed claims the trial court did not when it may have existed and that error that to amend plaintiffs’ motion in the court’s decision not to address trial affirm decision of the trial court. Accordingly, harmless. we Affirmed.
BOWMAN,J., concurs. McLAREN, specially concurring: JUSTICE majority I rendered decisions that believe that this has now two analyze sundry *21 the merits of the counts contained the incorrectly that, spite I I in complaints. specially concur here because believe correct result in this analysis, majority its incorrect the reaches the case. (2006), part I in Hruby, 3d 695 dissented App. Felzak jurisdiction extant. The majority subject found matter
because the statutory claim with a majority determined that an unconstitutional statutory subject did confer matter theory distinctive relief not alleged then the facts majority reviewed alleged statutory those facts a claim and determined by reinterpreting did justiciable majority common-law claim. The so determining theory existed an alternative the facts and that there relief, elements, relating grandparent visitation. See with different Felzak, majority I that the allowed App. 3d at 705-12. noted merely subject jurisdiction existed plaintiff to assert that matter law, requiring the common without on the basis that a claim existed at I out separate alleging pointed such a claim. plaintiff to file a count law, still assuming, arguendo, a claim existed common such 613(a) count, by required as section pled separate should be as a 2— (West 2004)). 613(a) Civil Procedure Code of 5/2— By through ferreting the counts of complaint in the case before us in an relief, effort find alternative theories of the majority again subverts the rule of procedure requires parties plead many “as *** causes they have, of action may and each shall be separately 613(a) designated (West 2004). and numbered.” 735 ILCS 5/2 — Analogically, the has majority determined apple that the is an apple, but it so by separate did three reviews apple, same when only Felzak, one review appropriate necessary. See 367 Ill. App. 3d (McLaren, J., at 722 dissenting part concurring part).
I emphasize wish to that I did not and do not declare that the properly claim must a cause of action that would withstand a dismiss; however, motion to actually claim must a allege common- law action.
“Thus, jurisdiction order invoke the court, case, circuit a complaint peti as framed tion, present justiciable People must matter. rel. See ex Scott v. (1974) (if Janson, Ill. 2d complaint states a case belonging general to a authority class over which the court attaches).” extends, subject Toyota, Belleville Sales, U.S.A.,Inc., v. Toyota Inc. Motor 199 Ill. 2d Felzak, (McLaren, See also J., at 723 dissenting part specially concurring in part). The court in Belleville reviewed the complaint and did parse words or find a claim at common law integrated statutory into a void in a jurisdic claim or count tion the Court of Claims.
I two-step analysis submit majority that the utilized in Fel majority zak and this case is erroneously incorrect. The here continues a count to if integrated review determine there is an second or third underlying of action it. majority cause contained within The deter allege mines that no count contains facts that outside the supervisors’ employment. The majority also reviews the counts to if independent duty determine exists that is common to kitchen supervisors.3 Again, 3d at majority 507-08. fails to that, comprehend alleging there is no count such an alternative theory relief, court should not further consider what the exist policy grease
3I submit that was violated when the was ordered to be *22 prior cooling. I moved see little difference between the violation of this policy policy relating responding call and the violation of the to a that was Lao, trooper’s jurisdiction not within the in Currie v. Also, pled, though may allege it would seem that facts wilful and part supervisors. digress. behavior But I wanton relief, theory of in contain, stated other than the ing might counts jurisdiction exists. if order to determine pled of relief must simple separate The fact is that theories simple comply with this The failure of the separate counts. erroneously held it must majority of its belief fact absolves additional sundry counts for amongst search words justiciable is a matter. interpolations addressing whether or not there again properly has failed to follow majority The this case my Felzak and has ventured partial set dissent admonitions forth parties nor the looking Neither beyond glass. into the land decipher position trying count placed courts should be and, of relief in the count theory than one determine if there more so, wrong analysis many. majority again The has followed the how failure, but, despite has it created and utilized Felzak Iwhy specially concur. come to the correct conclusion. That COMPANY, SURETY as Successor to TRAVELERS CASUALTY AND Company, Company Reliance and United Pacific Insurance Insurance (James CARLSON,INC., Plaintiff-Appellant, Defendant A. Bowman et v. A.G. al., Defendants-Appellees). 2 — 05—1041
Second District No.
Opinion filed October