Kiersch v. Ogena
| Decision Date | 29 June 1992 |
| Docket Number | No. 4-91-0764,4-91-0764 |
| Citation | 230 Ill.App.3d 57,595 N.E.2d 696,172 Ill.Dec. 335 |
| Parties | , 172 Ill.Dec. 335, 75 Ed. Law Rep. 1149 Deborah KIERSCH, Plaintiff-Appellant, v. Agnes OGENA, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Timothy W. Kelly, Allison & Kelly, Bloomington, for plaintiff-appellant.
Joseph J. Goleash, Jr., University Legal Counsel, Illinois State University, Normal, for defendant-appellee.
In October 1990, plaintiff, Deborah Kiersch, filed a medical malpractice action against defendant, Agnes Ogena, a medical doctor licensed in the State of Illinois. The complaint alleged that defendant was employed by Illinois State University (ISU) as a physician for student health services and that she negligently treated plaintiff, who was an ISU student at the time. In November 1990, defendant filed a motion to dismiss, arguing (1) the case had to be heard in the Illinois Court of Claims, and (2) the circuit court did not have subject-matter jurisdiction because plaintiff's claim was essentially against the State of Illinois. In September 1991, the trial court granted defendant's motion to dismiss. Plaintiff appeals and we reverse.
In her complaint, plaintiff alleged that defendant provided medical treatment to plaintiff by attempting to remove a wart from her right hand through the use of bichlorocetic acid. Plaintiff alleged that while applying the acid to her hand, defendant negligently allowed the acid to drip onto other, healthy portions of plaintiff's hand, thereby causing severe burns. Plaintiff's complaint concluded by alleging that because of defendant's negligent treatment, plaintiff had incurred pain and suffering, had suffered additional medical expenses, had been disfigured, and would incur pain and suffering in the future. Plaintiff prayed for damages against defendant in excess of $15,000.
Defendant moved to dismiss under section 2-619(a)(1) of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(1)), alleging that she was employed by ISU and acted within the scope of her employment at the time of the alleged injury. Therefore, defendant asserted that plaintiff's complaint sounded in tort against the State of Illinois, that the circuit court did not have subject-matter jurisdiction over tort claims against the State, and thus plaintiff's complaint could be brought only in the Court of Claims. In support of defendant's motion to dismiss, she attached an exhibit which indicated that ISU provided legal representation and indemnification for its employees, as follows:
Based upon the above ISU policy, defendant argued at the trial level (and repeats the argument here) that the State of Illinois is the true party at risk in satisfying any monetary judgment that might be rendered against defendant because the State, through ISU policymakers, has elected to indemnify employees such as defendant. The trial court agreed with this argument and dismissed plaintiff's complaint for the following reasons:
"2. That Defendant was at the time of the alleged injury an employee of the State of Illinois, namely, the Board of Regents of the Regency Universities System, a body corporate and politic of the State;
3. That Defendant was acting within the scope of her employment at the time of the alleged negligent act;
4. That employees of the State are not immune from suit for their own negligence merely because they are acting within the scope of their employment;
5. That the State through the Board of Regents has promulgated a policy indemnifying employees sued for negligence, thus rendering the State rather than the Defendant the liable party;
6. That claims sounding in tort against the State of Illinois may only be brought under the waiver of sovereign immunity granted under the provisions of the Court of Claims Act[.]"
Because this case comes before us on an appeal from the trial court's granting defendant's motion to dismiss, we must accept all well-pleaded facts contained in plaintiff's complaint as true. Munizza v. City of Chicago (1991), 222 Ill.App.3d 50, 52, 164 Ill.Dec. 645, 647, 583 N.E.2d 561, 563.
In Currie v. Lao (1992), 148 Ill.2d 151, 170 Ill.Dec. 297, 592 N.E.2d 977, the supreme court recently addressed an argument identical to that made by defendant in the present case (albeit in a different factual context). In Currie, defendant Lao was an Illinois State trooper who responded to a reported disturbance within the City of Joliet. The record did not reveal why defendant did so, considering that Joliet has its own police force. As Lao drove to the location of the disturbance, he got lost and wound up driving the wrong way on a one-way street. Lao's automobile collided with Currie's vehicle, and Currie sued Lao for negligence. A trial was held, and the jury returned a verdict for Currie and awarded him money damages. Currie, 148 Ill.2d at 157, 170 Ill.Dec. at 299, 592 N.E.2d at 979.
As does defendant in the present case, Lao argued on appeal that plaintiff's suit was in reality a claim against the State because Lao was performing his official duties as a State trooper at the time of the accident. Therefore, Lao argued, because sovereign immunity dictates that the State can be sued only in the Court of Claims, that court has exclusive jurisdiction over the matter and the circuit court was without subject-matter jurisdiction to hear the case. (Currie, 148 Ill.2d at 157, 170 Ill.Dec. at 299, 592 N.E.2d at 979.) The supreme court disagreed and wrote the following:
"Article XIII, section 4, of the Illinois Constitution of 1970 abolished sovereign immunity '[e]xcept as the General Assembly may provide by law.' (Ill. Const.1970, art. XIII, § 4.) Pursuant to this grant of authority, the legislature enacted the State Lawsuit Immunity Act, which provides, in pertinent part:
'Except as provided in * * * "AN ACT to create the Court of Claims * * *", * * * the State of Illinois shall not be made a defendant or party in any court.' Ill.Rev.Stat.1987, ch. 127, par. 801.
The Court of Claims Act established the Court of Claims and endowed it with the exclusive jurisdiction to hear certain matters, including the following:
(Ill.Rev.Stat.1987, ch. 37, par. 439.8(d).)
The issue before us is whether plaintiff's claim against Lao, an employee of the State of Illinois, is in reality a claim against the State such that the Court of Claims has exclusive jurisdiction over the action.
The determination of whether an action is in fact a suit against the State turns upon an analysis of the issues involved and the relief sought, rather than the formal designation of the parties. [Citations.] An action brought nominally against a State employee in his individual capacity will be found to be a claim against the State where a judgment for the plaintiff could operate to control the actions of the State or subject it to liability. [Citation.]
* * * [T]he proper inquiry is to analyze the source of the duty the employee is charged with breaching in committing the allegedly negligent act. Where the charged act of negligence arose out of the State employee's breach of a duty that is imposed on him solely by virtue of his State employment, sovereign immunity will bar maintenance of the action in circuit court. [Citations.] Conversely, where the employee is charged with breaching a duty imposed on him independently of his State employment, sovereign immunity will not attach and a negligence claim may be maintained against him in circuit court. [Citations.] In other words, where an employee of the State, although acting within the scope of his employment, is charged with breaching a duty that arose independently of his State employment, a suit against him will not be shielded by sovereign immunity.
This distinction best preserves the spirit of the sovereign immunity doctrine. The legislative grant of sovereign immunity shields the State from being hailed into circuit court; it is not a blanket grant of immunity for all State employees." (Emphasis in original.) Currie, 148 Ill.2d at 158-59, 170 Ill.Dec. at 299-300, 592 N.E.2d at 979-80.
The supreme court concluded that the duty Lao was charged with breaching did not arise as a result of his employment as a State trooper, but rather arose as a result of his status as the driver of an automobile on a public roadway. (Currie, 148 Ill.2d at 161-62, 170 Ill.Dec. at 301, 592 N.E.2d at 981.) The court specifically rejected Lao's sovereign immunity...
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