Lilly v. Cook County

• Decision Date: 16 May 1978
• Docket Number: No. 76-1682,76-1682
• Citation: 377 N.E.2d 136,17 Ill.Dec. 946,60 Ill.App.3d 573
• Parties: , 17 Ill.Dec. 946 Bridget Denise LILLY, a minor, by Barbara Lilly, her mother and next friend, Plaintiff-Appellee, v. COUNTY OF COOK, a body politic, Defendant-Appellant, Bridget Denise LILLY, a minor, by Barbara Lilly, her mother and next friend, Plaintiff-Separate-Appellant, v. COMPREHENSIVE COUNTY HOSPITALS, Health and Allied Medical Programs Governing Commission of Cook County, a statutory administrative agency of the County of Cook, Defendant-Separate-Appellee.
• Court: United States Appellate Court of Illinois

Page 136

377 N.E.2d 136

60 Ill.App.3d 573, 17 Ill.Dec. 946

Bridget Denise LILLY, a minor, by Barbara Lilly, her mother and next friend, Plaintiff-Appellee, v. COUNTY OF COOK, a body politic, Defendant-Appellant, Bridget Denise LILLY, a minor, by Barbara Lilly, her mother and next friend, Plaintiff-Separate-Appellant, v. COMPREHENSIVE COUNTY HOSPITALS, Health and Allied Medical

Programs Governing Commission of Cook County, a

statutory administrative agency of the

County of Cook,

Defendant-Separate-Appellee.

No. 76-1682.

Appellate Court of Illinois, First District, Second Division.

May 16, 1978.

Rehearing Denied June 16, 1978.

[17 Ill.Dec. 947] Bernard Carey, State's Atty., County of Cook, Chicago, for defendant-appellant; Paul P. Biebel, Jr., John Brundage, Asst. State's Attys., Chicago, of counsel

Leonard M. Ring, Chicago, for plaintiff-appellee and plaintiff-separate-appellant.

Winston & Strawn, Chicago, for defendant-separate-appellee; Calvin P. Sawyier, Chicago, of counsel.

BROWN, Justice:

Defendant, County of Cook, appeals from an order of the circuit court of Cook County, vacating, pursuant to plaintiff's Section 72 motion, a final order dismissing the plaintiff's complaint as to this defendant.

[17 Ill.Dec. 948] Plaintiff also appeals, requesting that the circuit court's order dismissing the Health and Hospitals Governing Commission of Cook County as a party defendant be reversed. We reverse both orders.

This action was brought to recover injuries sustained by plaintiff while she was a patient at Cook County Hospital in 1969, and the appeal concerns the powers and duties given to the Commission by the original statute which created it. For a better understanding of the questions presented, it will be helpful to set out the relevant events in chronological order.

In 1969, the Illinois General Assembly enacted, by P.A. 76-32, effective July, 1969, the County Hospitals Governing Commission Act (Ill.Rev.Stat.1969, ch. 34, pars. 5011-5029). For convenience, P.A. 76-32 will hereinafter be referred to as the "original statute." This original statute created the Comprehensive County Hospitals, Health and Allied Medical Programs Governing Commission of Cook County (hereinafter, Commission). Prior to this time, Cook County Hospital had been owned, operated and managed by the County of Cook (hereinafter, County).

The original statute, in Section 10 thereof, provided that:

"The Commission shall have the general responsibility of organizing, operating, maintaining and managing the various hospitals and hospital facilities owned by any such county and the hospital, medical, nursing, health and allied medical programs related thereto. It shall have the power to operate, maintain and manage such hospitals, facilities and programs, to make and enter into contracts therefore, and to establish rules and regulations for the use, operation and management thereof." (Ill.Rev.Stat.1969, ch. 34, par. 5020)

Although this provision would appear to vest the Commission with total operating control over Cook County Hospital, the County (through the Cook County Board) retained control of the hospital's budget through a line-by-line veto power over appropriations (Ill.Rev.Stat.1969, ch. 34, par. 5023).

In November, 1969, plaintiff, then seven months of age, was a patient in Cook County Hospital for treatment of a high fever, diagnosed as acute meningitis. As a consequence of various alleged acts and omissions by the hospital staff, it became necessary to amputate plaintiff's right arm, and she suffered, in addition, irreparable brain damage.

In May, 1970, a group of doctors at Cook County Hospital attempted to wrest control of the "purse strings" from the Cook County Board, claiming that the Board was too remote and could not adequately deal with the problems facing the hospital. On May 29, 1970, following mass resignations by doctors and nurses, the County Board agreed to relinquish direct financial control of the institution.

In June, 1970, by P.A. 76-2015, effective July 1, 1970, the General Assembly amended the original statute. For convenience, P.A. 76-2015 will hereinafter be referred to as the "amending statute." The amending statute gave the Commission full management power by eliminating the line veto control of the County Board and substituting in its place the use of a consolidated budget, and lump-sum appropriations (Ill.Rev.Stat.1971, ch. 34, par. 5023). The amending statute also statutorily enlarged the authority of the Commission over medical personnel at the Cook County Hospital below the level of Superintendent of the Hospital.

In 1974, the plaintiff commenced suit solely against the County.

In March, 1976, the County filed an Amended Answer which asserted as an affirmative defense that the responsibility and power to operate, maintain and manage Cook County Hospital at the time of the occurrence, had been placed in the Commission by the provisions of Section 10 of the original statute. In May, 1976, the County filed a motion for summary judgment and memorandum in support thereof, which again asserted that at the time of the occurrence the hospital was operated, maintained On June 8, 1976, plaintiff filed an Amended Complaint, adding the Commission as a party defendant.

[17 Ill.Dec. 949] and managed by the Commission pursuant to Section 10 of the original statute. Plaintiff filed a memorandum in opposition to the County's motion on June 7, 1976.

On June 15, 1976, the trial court entered an order dismissing the Amended Complaint as to the County. This order contained a Rule 304 finding that it was final and that there was no just reason for delaying enforcement or appeal. (Ill.Rev.Stat.1975, ch. 110A, par. 304(a).)

On July 21, 1976, the Commission filed its Answer, asserting as an affirmative defense that it was not subject to suit and was not responsible for the actions of medical personnel at Cook County Hospital taking place before July 1, 1970, the effective date of the amending statute.

On August 6, 1976, the plaintiff moved to vacate the summary judgment of June 15, 1976, in favor of the County, and to strike the affirmative defenses alleged in the Answer of the Commission. This motion was supplemented, on August 24, 1976, by a motion to vacate the summary judgment specifically predicated upon Section 72 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 72), and supported by the affidavit of one of plaintiff's counsel. Both parties filed memorandums in support of their positions.

Subsequently, the Commission filed a motion that it be dismissed as a party defendant, and a memorandum in support thereof. Essentially, its position was that "although the Commission in 1969 had paper power to operate and manage Cook County Hospital, this power was meaningless in light of the County Board's line veto fiscal control of every budgetary item and job. This was changed by the amendments to the Act which became effective July 1, 1970."

On September 13, 1976, the trial court granted the plaintiff's motion to vacate the summary judgment order of June 15, 1976, and reinstated the County as a defendant. In the same order, the court granted the defendant Commission's motion to dismiss. This order is the basis for both the appeal by the defendant, County, and the cross-appeal by the plaintiff.

OPINION

The purpose of a Section 72 motion is to enable a party to bring before the court rendering judgment matters of fact not appearing in the record, which, if known to the court at the time judgment was entered, would have prevented its rendition. McKnelly v. McKnelly (5th Dist. 1976), 38 Ill.App.3d 637, 348 N.E.2d 500. The burden is on the petitioner seeking relief from judgment to allege and prove facts justifying relief. Fennema v. Vander (1969), 42 Ill.2d 309, 247 N.E.2d 409.

The defendant County contends that plaintiff's Section 72 motion was deficient as it was not based on any errors of fact which caused the trial court to enter its final order. An examination of plaintiff's Section 72 motion and affidavit support the County's argument. The only error of fact on which plaintiff bases her request for relief is the following conclusory statement contained in the affidavit: "That there was a material misrepresentation of fact in this matter to the Court and to the counsel for the plaintiff." There is no supporting allegation of fact as to what this alleged misrepresentation was. There are no allegations as to who made the misrepresentation. Furthermore, there is no allegation that the court relied on or even considered this misrepresentation when it dismissed the County as a defendant. In the absence of any pleaded facts which constitute the alleged misrepresentation, the allegation is a conclusion and the Section 72 motion is insufficient on its face. Smythe v. Smythe (2nd Dist. 1961), 28 Ill.App.2d 422, 171 N.E.2d 649.

In addition to its technical deficiencies, the motion does not actually raise any new factual matters. The issue upon which plaintiff bases her purported "misrepresentation of fact," to wit, who was in control of Cook County Hospital in November, 1969, for the purpose of being liable for negligent acts of the hospital staff, was argued and decided in the trial court as a legal issue. There is no evidence in the record that the County misrepresented its function at Cook County Hospital. The sole basis of the County's motion for summary judgment in the trial court was the County's contention that, based on the provisions of the original and amending statutes, the County was no longer liable for acts of negligence occurring after 1969, the date the Commission was created. Plaintiff filed a memorandum in opposition to the County's motion and the trial court heard arguments from both parties prior to entering its dismissal order on June 15, 1976. For the trial court to have dismissed the County, it must have found that the County was not liable, as a matter of law, for acts...