*1 that defendant’s constitu- showing make a substantial did not the court Accordingly, violated. rights tional were evidentiary an dismissing petition without err Peoria the circuit court of judgment hearing. affirmed. County is
Judgment affirmed. (No. 93144. and as Adm’r of the WALLACE,
SHANDOULIA Indiv. Wallace, Deceased, Estate of Roy Appel Waketta lant, al., v. JOHN P. SMYTH et Appellees. 19,
Opinion Rehearing December denied filed 2002. March FREEMAN, J., specially concurring.
Stanley Hill, L. of Chicago, appellant. Jeffrey Edward Kehl and III, Robert C. Yelton of Yel- (John Kehl, Ltd., ton & of Chicago O’Malley C. and Fran- counsel), cis D. of Morrissey, for appellees.
Patrick T. Murphy, Guardian, Cook County Public of (Peter Chicago Schmiedel, J. Charles P. Golbert and Jill Runk, counsel), of for amicus curiae Office of the Cook County Public Guardian. Boyer
Bruce A. Stacey Platt, E. of Chicago, for amicus curiae ChildLaw Center & ChildLaw Clinic of the . Loyola University School of Law Clifford, Robert A. for amicus curiæ Clif Chicago, of ford Law Offices.
James D. Montgomery Marszewski, C. Thomas for amicus curiæ of Chicago, Cochran, Givens, Cherry, Smith & Montgomery, L.L.C. of Chicago, for amicus curiæ Geraghty,
Thomas F. of the Northwestern Center Family & Justice Children of Law. University School Marszewski, C. and Thomas Montgomery D.
James Givens, Montgomery, & Cochran, Cherry, Smith of Illinois for amicus curiæ Pfaff, Chicago, all of Bruce R. Lawyers Trial Association. Burke, Geoly, C. A. and James
James Serritella for amicus Serritella, P.C., Chicago, Warren, MacKay & Care Association. curiae Illinois Child of the opinion delivered the JUSTICE FITZGERALD court: whether, in the wake of our in this case is
The issue
of parental
retain a limited form
decisions to
(1993), and to extend this
Cates,
v.
BACKGROUND 12,1989, the Illinois of Children Department On June (DCFS) wards, 12- placed one of its Family Services Maryville Acad- year-old Roy (Roy), Waketta Wallace assessment emy (Maryville) 90-day diagnostic for is a not-for- his future regarding placement. a licensed residential profit corporation operates 1989, Maryville facility child care for state wards. 500 children. approximately cared for later, July 11, Roy reported A on month office of Maryville program Paul manager Voltz after school. Voltz Roy confronted about sleeping study hall. Roy made threatening gestures, and Voltz him removed to an adjacent hallway. there, Once Voltz summoned as- program sistant manager Laura Angelucci family educator Jill Jacobe to him in assist restraining Roy. Family educator Jim Geidner also participated a short ended, time until his shift when replaced he was fam- ily educator Xavier Collier. Eventually, after a struggle, Roy placed was on his stomach with his arms crossed in front of his abdomen and his wrists held to the floor. The restraint continued for more than four hours and ended in Roy’s death from positional asphyxia.
Roy’s mother, Wallace, Shandoulia filed a four-count complaint the circuit court of Cook County against Maryville, its executive director Reverend Smyth, John Voltz, Angelucci, Collier, Geidner, Jacobe, and nurse Dee LeBel. alleged Wallace negligence, defendants’ and, alternatively, willful misconduct, wanton proximately Roy’s caused death. The defendants filed a motion to claims; dismiss Wallace’s negligence they as- serted the parental doctrine shielded them from liability. The trial court agreed and dismissed these claims, “I stating: am convinced from the cases that me, defendants have tendered to and from the arguments made, and everything that I know about the case that Maryville was acting de facto as parentis loco for this *** child. I do not believe that Maryville can be sued under ordinary theories of negligence.” The pro- case ceeded to trial on Wallace’s willful and wanton miscon- duct claims. After a jury returned a verdict for the defendants, appealed Wallace the dismissal of her negligence claims. Smyth, reversed. Wallace v. appellate (1998).
Ill. noted,
3d 75
The court
law,
“At common
in loco parentis
belonged
status
to persons
put
who
*4
all
by assuming
in
shoes
parent’s
themselves
through the
going
a child without
obligations toward
at
Wallace,
App.
301 Ill.
3d
adoption.”
of legal
formalities
allegations,
reviewing
negligence
80. After
Wallace’s
Wallace
argument
that
rejected the defendants’
that
by
they
parentis
pleading
stood in loco
conceded
for,
house,
to
care
licenced
the state
Maryville was
at 80. The
Wallace,
App.
301 Ill.
3d
and educate children.
for,
educating a child
housing, caring
and
court held that
Wallace, 301 Ill.
parentis
do
confer in loco
status.
court,
teachers
appellate
at 80.
to
App.
According
students under the
parentis
regard
are in loco
with
Code,
no
exists to
statutory
equivalent
School
but
Maryville against allegations
an
like
entity
insulate
Wallace,
it
a child.
negligently disciplined
App.
Rather,
statutory
Illinois’
conjunction
80-81.
with
scheme,
responsibility
DCFS
ultimate
for traditional
bore
Wallace, 301 Ill.
regard
Roy.
functions with
359.7,
§§
App.
81, citing
3d at
89 Ill. Adm. Code
359.9
(1996). The
al
court concluded
Wallace’s
appellate
legations did
in loco
Maryville
parentis
not show
stood
her
Roy and that
the trial court
dismissed
improperly
Wallace,
claims.
3d at
petition
appeal.
The defendants
filed a
leave
While this
decided Nichol. Ac
petition
pending,
was
we
denied
and
cordingly,
petition
we
the defendant’s
cause to
court for additional
appellate
remanded this
Smyth,
light
consideration
of Nichol. See Wallace
(2000).
On court discussed both Cates appellate Nichol stated: parents similarities “The between foster and defendants are obvious. wards that foster facilities Maryville provide such as care for both under Further, legal and of DCFS. both ultimate financial control physical custody of assume day-to-day They provide in their the minors care. both *5 care, attention, housing, supervision, medical and to in pursuant those their care to regula extensive DCFS exactly types tions. Those are responsibili the of duties and ties in found Cates and Nichol to be parent- inherent to the ***** child relationship. Both Cates Nichol make clear that what matters most for of im purposes extending munity party being is whether the to it whom is extended a exercises substantial amount discretion in *** discipline, supervision, [W]e and care of minors. cannot say meaningful there is difference between foster parents and residential child care institutions such as preclude so as the limited form of im munity applying discussed Cates Nichol from such App. institutions and those who there.” 327 work Ill. 411, 3d 419-20.
The court its previous opinion vacated and remanded to allow Wallace to amend her complaint allege facts which would preclude parental App. 3d dissent, Justice Cahill stated: *** opinion [citation] “The in Nichol ais narrow one. Ni immunity
chol a of parental extends limited form to foster parents. parent of a parent role natural and a foster supreme the life of a is child so often similar our reject that would concluded it be anomalous to a limited personal parents. form of The im munity person in her relationship shields one his or with one child. To now broaden limited include corporation, dedicated, work, however however essential its public policy legislature.” strikes me as a decision for the App. (Cahill, J., 327 422 dissenting). Ill. 3d at We allowed petition appeal. Wallace’s for leave to See 177 Ill. 2d R. 315.1 granted County guardian; public
1We the leave Cook University Family Children Justice Center Northwestern Law; School of the the ChildLaw Center and ChildLaw Clinic of Law; Loyola University Chicago School of the Illinois Trial Cochran, Givens, Lawyers Association; Cherry, Smith and
447 ANALYSIS 615(a) of the under section A to dismiss motion 2— (West 2000)) 615(a) (735 Law Civil Practice ILCS 5/2 — sufficiency plaintiffs legal claim, while a of the tests 619(a) (735 ILCS to dismiss under section motion 2— (West 2000)) 619(a) sufficiency legal admits 5/2— plaintiff’s claim, certain defects or but asserts pleading See defeat the claim. which defenses outside (2001); App. 869, Forister, 318 Ill. Provenzale v. Authority, Chicago Joseph Transit (1999). designation Consistently with gave dismiss, trial court motion to defendants their 2—615. This mo the motion under section considered brought however, under section tion, should have been 619(a)(9) argued that because the defendants 2— *6 plaintiffs negligence by “other claim was barred affirma namely, parental matter,” 735 ILCS tive 5/2— 619(a)(2) (West 2000); Nichol, Ill. 2d 235. see 192 at despite appeal, will the merits of this address error, has suffered no defendants’ because Wallace designation. prejudice improper from the See defendants’ App. Associates, Cuculich, 298 Storm & Ltd. v. Ill. 3d (1998); 1040, First 1047 see also Janes v. Federal Sav Berwyn, ings 398, 57 2d & Loan Ass’n Ill. 406-07 (1974) hybrid (expressly disapproving dismissal/ summary judgment refusing motions, but to waste judicial remanding by for the defendants to resources motion). section, our standard correct their Under either Currency de See Kedzie & 103rd of review is novo. (1993). Exchange, Hodge, 112, 116 Inc. v. Ill. 156 appeal, parental In that the this Wallace contends child doctrine does not extend residential parent- such entities do not have a care facilities because By relationship in care. child with the state wards their L.L.C.; Montgomery, to file a brief as and the Clifford Law Offices amici curiae in support 155 Ill. 2d R. of Wallace. See 448
contrast, the defendants contend that the doctrine any or protects person entity charged day-to- with day care, supervision, wards, state regardless of any familial relationship between the child and the or In person entity. view, the defendants’ “the immunity doctrine follows the child.”
The parental immunity doctrine, which blocks mere negligence claims, but willful and wanton misconduct (see v. Gerrity Beatty, claims (1978), 71 Ill. 2d 49 cit v. Matsoukas, Nudd ing 7 Ill. (1956)), 2d 608 was in Illinois in Foley Foley, recognized (1895). later, Nearly years this court first discussed Cates, at length Cates. doctrine in four-year-old girl seriously injured was in an automobile accident involving vehicles driven her noncustodial father and another driver. girl, by mother, her filed a negligence complaint against driver; the other she subsequently amended her complaint to add her father as a defendant. The father filed motion, a summary judgment asserting the parental immunity doctrine blocked the girl’s claim against him. granted The trial court summary judgment the father. The appellate reversed and partially abrogated doctrine automo bile negligence cases. Cates,
We affirmed the appellate court.
449 supporting impacted, policies the lose doctrine the is not strength.” persuasive Cates, Ill. 2d 98-99. 156 at We their family justification had become assets also noted that liability proliferation of insurance. irrelevant with today, that, Cates, 156 2d at 101-02. observed Ill. by supported policy other doctrine is concerns: deciding matters between
“Courts should not be involved those parent and child which concern decisions which equipped to make because persons uniquely are of unnecessarily relationship-, otherwise would allow they obtrusively inject family courts into matters which matters, definition, ill-equipped decide. Such discipline, supervision discretion in involve *** [Tjhose ought underlying policies care. to determine added.) Cates, scope immunity.” (Emphases 156 of the Ill. 2d at 103-04. short, of the we focused on both nature relationship. Cates, conduct and the nature alleg inquiry, thus, 103. The central whether the at is negligent intimately edly conduct is conduct associated parent-child relationship care, with the as the —such supervision, Cates, of a child. observed, 104. As we “These limited areas of conduct knowledge, require intuition, affection, skills, background, experi perspective, wisdom, faith, humor, only parent ence, a and his or her culture which bring legal system situation-, our is ill- child can equipped to decide the of such matters.” reasonableness added.) (Emphasis Cates, Ill. 2d 105. concluded at We operating conduct; a vehicle is such ac motor girl’s cordingly, parental immunity did not block the against Cates, Ill. 2d at claim her father. recently, Nichol, we addressed the issue More may biologicalparents, this im- who, in claim addition biological two-year-old munity. a There, the negligencecomplaint filed a child who drowned in toilet *8 450
against parents, the child’s foster whose home ac- the parents cident occurred. The foster filed a motion to asserting they enjoyed sovereign immunity dismiss, that employees. granted as motion, state The trial court the biological parents appealed. appellate and biological parents appealed affirmed, and the to this again parents us, court. Before the foster claimed sovereign immunity, support ap- and, as further for the pellate judgment, parental immunity. court’s claimed rejected sovereign immunity argument,
We but accepted parental immunity argument:
“[Although
relationship
parents
between foster
and
foster children
relationship
is
identical with the
biological parents
children,
between
and their
we believe
it
reject
would be anomalous to
some form of the
[parental
immunity] defense in these circumstances. The
rationale identified
justifying
Cates court as
portion
preservation
retention of some
of the doctrine —the
authority and discipline
ap
[citation]
also—is
plicable
parent
in the
setting. Although
foster
foster
parents
compensation
role, they
receive
their
for
exercise a
substantial
in discipline, supervision,
amount of discretion
care,
ap
areas in
found
which Cates
to be
propriate.” Nichol,
Accord Bank (1997) (“Foster parents nearly 510, 517 are as much in leeway regard supervision [in need of care] of those children under their as natural parents”). compared enjoy statutory immunity teachers,
We
who
parents.
Code,
under the School
to foster
Like teachers
parents,
biological
responsible
foster
remain
range
affecting
“a
broad
of decisions
the vital
Nichol,
interests
the children
involved.”
Ill. 2d at
parental immunity
noted, however,
We
246.
in this
peculiar
context is tailored to the
circumstances of
parent-child relationship.
Nichol,
The defendants assert trial, At are different. care facilities no residential child very Maryville Smyth “a as even characterized Father dependent large are foster home for the children who According neglected [and abused].” to the defen- Maryville parents dants, like foster and facilities day-to-day provide wards, and care for state trained immunity. The defendants contend both receive should immunity parental doctrine to that we have refined the perform parental persons func- shield and entities who parental regard functions, without tions and exercise relationship.” pseudo-filial a or the existence of “filial primarily disagree. The Cates standard “focuses We relationship” parent-child on inherent to the conduct added.) Clearly, (Emphasis Cates, Ill. 2d at 105. relationship the neither the conduct nor the is sole determining important remain consideration. Both application is, who cloaked with That of the is depends upon performance more the doctrine than so- “parental” responsibilities; called we also consider whose Gulledge performance Gulledge, at is issue. See (1977) (“the 972, 974 rationale behind immunity] persuasive [parental rule its force as one loses par involving other than the actual considers situations (“where family ent”); Cates, see 156 Ill. 2d also relationship relationship has or is dissolved where respect giving conduct rise ceased to exist with injury, applied”). will not be Consequently, that, while the we conclude doctrine foster logically parents, reaches it cannot stretch a corporate cover entity its employees. The of a employees residential child care facil ity like exercise their professional duties in handling wards; they state are not parents, however Cates, similar their responsibilities. See 156 Ill. 2d at brief, As Wallace notes in her a biological parent or foster parent does not a discipline by child means of a restraint, four-hour pinning the child to the floor with the assistance of three additional adults. The fact that Maryville employees were ordered to in the participate restraint program manager, replaced and later each during other the restraint, underscores institu tional nature Maryville’s response. recognize the parental immunity doctrine is (see Nudd, judicial 619; creation 7 Ill. 2d at accord
Cates, 108), 156 Ill. 2d at but we only note that legislature has provided immunity to individu (see als who are or 105 ILCS (West (“In 2000) 24, 34—84a all matters relating 5/24 — and conduct and the schools *10 children, school [educators] stand in the relation of and to the pupils”); Arteman v. Clin parents guardians ton Unit Community 15, School District No. Ill. 198 (2002) (sections 475, 480 24—24 and 34—84a of the School grant Code educational employees the im same Gerrity, munity enjoyed by parents); 51; 71 Ill. 2d at Kobylanski Education, v. Chicago Board 165, 63 Ill. 2d O’Donnell, (1976); see also Possekel v. 173 51 (1977) (holding 319 immunity that under centers, day-care School Code does not extend to private schools, and nursery kindergartens governed by the Child Act)). Care decline extend the to a corporate entity, even one whose and purpose history demonstrate The corporation-child noblest motives. relationship simply does not mirror the parent-child enjoy Consequently, relationship. do the defendants parental
CONCLUSION
discussed,
we reverse
have
For the reasons we
judgment
appellate
judgment
court, reverse the
of the
trial court for further
court,
and remand
the trial
proceedings.
Appellate
judgment reversed;
judgment reversed;
circuit court
cause remanded.
concurring:
specially
FREEMAN,
JUSTICE
employees
Academy
Maryville
agree
and its
I
that
(hereinafter
Academy)
may
Maryville
not invoke
plaintiffs
Thus, I
action.
concur
as a defense
disagree
by majority. However,I
in the result reached
majority
arriving
analysis
deci
uses in
its
with the
opinion,
my
Stass,
Ill. 2d
Nichol
sion.
(2000),
im
a limited form of
which extended
munity
parents
actions, is
in
control
to foster
ling.
parents
institutions, such as
Foster
and
provide
Academy,
care to wards
the state should
parents, these institu
be treated the same. Like foster
custody
provide
physical
of the ward and
tions assume
housing,
care to the ward. The institu
food
medical
supervise
ward,
do foster
as
tions
parents.
Also,
and the institutions
both foster
regulation
subject
supervision
DCFS.
Lastly,
institutions
receive
and the
they provide.
the services
financial reimbursement for
wrongly
believe, however,
I
Nichol was
also
(Free
Nichol,
I
“By holding today, majority its has eliminated the requirement that one who stands in parentis loco must as responsibility sume financial majority for the child. The parentis. implication has redefined the term in loco present may case is that the Stasses invoke the doctrine parental immunity to bar an action for negligent supervi sion majority opinion, however, of Jonathan Nichol. The may consequences. have unintended As appel noted Smyth], [75], 80, [v. late court in Wallace housing, provided by care and education are also summer centers, camps, day-care psychological medical and treat facilities, grandparents ment and other of a child. relatives persons Do these or parentis entities also stand in loco ato child? Should the Wallace court have held that Academy] [Maryville parentis and counselors stood in loco placed Moreover, child in their care? use the term parentis in loco is not restricted to the area of foster care (820 or education. Compensation Under the Workers’ Act (West 1998)) ILCS et seq. payable death benefits are 305/1 a child to employee whom the deceased stood in loco parentis. A parent, or one who parentis stands loco to a child, may guilty be contributing of the offense of (West dependency neglect or of the child. 720 ILCS 130/2 *12 majority 1998). parentis, in By redefining the term loco the law.” areas of impact an on diverse may have opinion (Freeman, J., dissenting). Nichol, 192 Ill. 2d 272-73 providers anticipated my I that other dissent, Thus, in filed actions in claim care would providers strongly against I that these them. felt parental to are not entitled foster opportunity present this court an case offered The holding have To do so would in Nichol. reconsider persons bringing helpful on behalf of actions been provid- by providers care, these whether hurt children such as foster or institutions ers be Academy. providers able to claim be These would against parental immunity actions filed as a defense in safeguarded have Further, reconsideration would them. precious judicial not be since our courts would resources immunity by other care claims of faced with majority grasp opportunity, providers. this The fails to majority on an artificial Maryville Instead, relies however. parents and Acad- between foster distinction emy. majority apparently this distinction on bases disciplining in of additional adults assistance parent that a child. Can this court then assume foster help of other adults in foster could not enlist the home) (or in the foster in home even other children my disciplining particular opinion, this court minor? do so. cannot majority has refused to reconsider
Because inevitably holding faced Nichol, our courts will be immunity by provid- care with claims of other leading delay recovery wrongs perpetrated ers, for precious against this and a waste-of minor wards of state judicial one, that Nich- I, resources. continue believe present wrongly I believe the case is ol was decided. also This should reconsider the controlled Nichol. holding distinction rather than create an unreal in Nichol parents Maryville Academy.For these between reasons, I join cannot in the I majority opinion, although concur in the result reached.
(No. 92215. GOLDEN RULE INSURANCE COMPANY, Appellee,
v. MARK SCHWARTZ, Appellant.
Opinion January Rehearing denied filed *13 March