Cates v. Cates

• Decision Date: 07 February 1992
• Docket Number: No. 5-89-0615,5-89-0615
• Citation: 588 N.E.2d 330,225 Ill.App.3d 509,167 Ill.Dec. 689
• Parties: , 167 Ill.Dec. 689 Heather CATES, a Minor, by her Mother and Next Friend, Nancy Cates, now known as Nancy Cates Schmittling, Plaintiff-Appellant, v. Timothy CATES, Defendant-Appellee (Nancy Cates Schmittling, Plaintiff; Robert Stookey, as Public Administrator of the Estate of Phillip Darwin, Deceased; and Keeley and Sons, Inc., Defendants).
• Court: United States Appellate Court of Illinois

Page 330

588 N.E.2d 330

225 Ill.App.3d 509, 167 Ill.Dec. 689

Heather CATES, a Minor, by her Mother and Next Friend, Nancy Cates, now known as Nancy Cates Schmittling Plaintiff-Appellant, v. Timothy CATES, Defendant-Appellee (Nancy Cates Schmittling Plaintiff; Robert Stookey, as Public Administrator of the Estate of Phillip Darwin, Deceased; and Keeley and Sons, Inc., Defendants).

No. 5-89-0615.

Appellate Court of Illinois Fifth District.

Feb. 7, 1992.

Rehearing Denied March 30, 1992.

Rhonda D. Fiss, Neubauer & Meyer, Fairview Heights, for Heather and Nancy Cates.

Theodore J. MacDonald, Jr., J. Todd Hayes, Burroughs, Simpson, Hepler, Broom & MacDonald, Edwardsville, for Robert Stookey.

Justice HOWERTON delivered the opinion of the court:

Plaintiff was riding in a car driven by her father, who was divorced from her mother, who had custody. She and her father were on their way to a circus, but when it began to rain, they decided to drive to her father's home, instead. On the way, her father drove from Illinois Route 15 onto Illinois Route 157. Keeley and Sons, Inc., was repairing the intersection under a contract with the State. As plaintiff's father drove onto Route 157, another driver, Phillip Darwin, ran a stop sign and crashed into plaintiff's father's car. Plaintiff was seriously injured.

Plaintiff, by her mother and next friend, Nancy Cates Schmittling, sued Phillip Darwin's estate, Keeley and Sons, Inc., and her father, Timothy Cates, for her injuries. Her father filed a motion for summary judgment claiming that his daughter's suit against him was barred by the doctrine of parental immunity. The circuit court granted him summary judgment. Plaintiff appealed, and only plaintiff and her father are parties to this appeal.

We reverse and remand.

Plaintiff asks this court to abolish the doctrine of parental immunity to permit her to sue her father for negligence.

Defendant argues that parental immunity was adopted by the Illinois Supreme Court and, therefore, only the Illinois Supreme Court has the power to abolish it. See Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525; Stallman v. Youngquist (1988), 125 Ill.2d 267, 126 Ill.Dec. 60, 531 N.E.2d 355; Ackley v. Ackley (1988), 165 Ill.App.3d 231, 116 Ill.Dec. 235, 518 N.E.2d 1056.

Parental immunity is a creature of the common law and was judicially created by the Mississippi Supreme Court in 1891. (See Hewellette v. George (1891), 68 Miss. 703, 9 So. 885.) Four years later, in 1895, the Illinois Appellate Court, citing no authority, said that "it is doubtless the law, that a child can not maintain an action for damages on account of maltreatment against a parent * * *." (Foley v. Foley (1895), 61 Ill.App. 577, 580.) Sixty-one years later, the Illinois Supreme Court addressed the issue for the first time. Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525.

In Nudd, a child sued his father for willful and wanton misconduct. His father argued that parental immunity barred the action and that the supreme court was bound by stare decisis to rule accordingly. The court disagreed stating:

"We consider the question before us a novel one in Illinois. The Appellate Court decisions cited to us do not determine the question of parental immunity in case of willful and wanton misconduct. Any justification for the rule of parental immunity can be found only in a reluctance to create litigation and strife between members of the family unit. While this policy might be such justification to prevent suits for mere negligence within the scope of the parental relationship we do not conceive that public policy should prevent a minor from obtaining redress for willful and wanton misconduct on the part of a parent." (Nudd, 7 Ill.2d at 618-19, 131 N.E.2d at 531.) (Emphasis added.)

The supreme court's holding is clear: a child may sue his parents for willful and wanton misconduct; it did not hold that a parent is immune from suits brought in negligence. We are not free to impute an adoption of parental immunity to Nudd, for appellate courts must read cases only in light of the issues brought before the court for determination (Nix v. Smith (1965), 32 Ill.2d 465, 207 N.E.2d 460), and the only issue in Nudd was whether "public policy should prevent a minor from obtaining redress for willful and wanton misconduct on the part of a parent." (Nudd, 7 Ill.2d at 616, 131 N.E.2d at 531.) Nudd's holding, furthermore, should not be read to imply tacit approval of parental immunity for negligence for two cogent reasons: (1) the question of immunity from suits for negligence was not presented and, therefore, not argued to the court, and the competing policies presented by that question might or could differ from the policies involved in consideration of the question of immunity from suits brought for willful and wanton misconduct, rendering it unfair to impute tacit approval of a doctrine not argued; and (2) the very language used by the court is precatory: "[w]hile this policy might be justification to prevent suits for mere negligence * * * ", words chosen to alert the reader that the issue has purposely been left open.

Since Nudd, the supreme court's treatment of parental immunity has been confined to six cases: (1) Mroczynski v. McGrath (1966), 34 Ill.2d 451, 216 N.E.2d 137; (2) Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705; (3) Tanari v. School Directors of District No. 502 (1977), 69 Ill.2d 630, 14 Ill.Dec. 874, 373 N.E.2d 5; (4) Gerrity v. Beatty (1978), 71 Ill.2d 47, 15 Ill.Dec. 639, 373 N.E.2d 1323; (5) Thomas v. Chicago Board of Education (1979), 77 Ill.2d 165, 32 Ill.Dec. 308, 395 N.E.2d 538; and (6) Stallman v. Youngquist (1988), 125 Ill.2d 267, 126 Ill.Dec. 60, 531 N.E.2d 355. We examine these cases to determine if parental immunity was ever adopted by the Illinois Supreme Court.

In Mroczynski, a son sued his father for, among other things, abandoning him and his mother. The father, having been served summons in Minnesota, where he resided, moved to quash service and dismiss the case. His motions were granted. Plaintiff appealed directly to the supreme court, where the case turned on whether Illinois' long-arm statute conferred jurisdiction over the defendant. It held it did not. In doing so, the court examined whether abandonment of mother and child gave rise to a cause of action. In that analysis, the court reiterated the holding in Nudd, i.e., that "public policy in a case of willful misconduct did not prevent redress of a minor from his parent." The court went no further.. This reiteration, however, is not law, for it is not a holding; it is dictum or obiter dictum.

In Kobylanski, the court reviewed two cases consolidated for the purpose of deciding whether teachers were immune from suit pursuant to the School Code (Ill.Rev.Stat.1967, ch. 122, pars. 24-24 and 34-84a). The court held that sections 24-24 and 34-84a of the Code conferred upon teachers immunity from suits in negligence arising out of matters relating to the discipline in, and conduct of, the schools and the school children. The court stated: "None of the parties * * * disputes the fact that a parent is not liable for injuries to his child absent willful and wanton misconduct." (Kobylanski, 63 Ill.2d at 170, 347 N.E.2d at 709.) Since the parties did not raise the issue whether a parent was immune from suits in negligence brought by their children, the court did not address it. Concerned, however, that the Kobylanski majority seemed to accept that a parent is not liable for injuries to his child absent willful and wanton misconduct, Justice Goldenhersh, with two justices joining, stated in dissent that the "court has never decided [the] question [of parental immunity]." Kobylanski, 63 Ill.2d at 172, 347 N.E.2d at 712 (Goldenhersh, J., dissenting).

In Tanari, the court reversed the lower court, and held that a school district is not immune from suit by a spectator injured by students at a football game. In discussing Kobylanski, the supreme court stated: "Since the forgoing statute [section 24-24 of the School Code] specifically confers upon educators the status of parent or guardian to the students, and since a parent is not liable for injuries to his child absent willful and wanton misconduct (Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525), it therefore follows that the same standard applies as between educator and student." (Tanari, 69 Ill.2d at 636, 14 Ill.Dec. at 876, 373 N.E.2d at 7.) Here too, Justice Goldenhersh was compelled to comment on what he termed was "the repetitive misreading of Nudd v. Matsoukas." He stated in his concurrence: "The majority, and apparently the parties, appear to accept as settled law 'that a parent is not liable for injuries to his child absent willful and wanton misconduct.' [Citation.] On the contrary, this court has never decided that question." Tanari, 69 Ill.2d at 640, 14 Ill.Dec. at 878, 373 N.E.2d at 9 (Goldenhersh, J., concurring).

That "repetitive misreading of Nudd v. Matsoukas " occurred twice more: once in Gerrity and once in Thomas. In Gerrity, the court stated that "it has been recognized as a general rule in this State that children may not maintain actions against their parents for mere negligence but may do so only in cases of willful and wanton misconduct." (Gerrity, 71 Ill.2d at 49, 15 Ill.Dec. at 640, 373 N.E.2d at 1324.) In Thomas, the court stated that "children may not maintain actions for negligence against their parents." (Thomas, 77 Ill.2d at 171, 32 Ill.Dec. at 311, 395 N.E.2d at 541.) Both cases, while not holding themselves that a parent is immune from suit absent willful and wanton misconduct, impute to Nudd an adoption of the doctrine. But, the fact is, the supreme court has never adopted parental immunity.

The only other supreme court case mentioning parental immunity was Stallman v. Youngquist (1988), 125 Ill.2d 267, 126 Ill.Dec. 60, 531 N.E.2d 355, a case that held that...