Loman v. Freeman

• Decision Date: 17 April 2008
• Docket Number: No. 104289.,104289.
• Citation: 229 Ill.2d 104,890 N.E.2d 446
• Parties: Brian LOMAN et al., Appellees, v. David E. FREEMAN, Appellant.
• Court: Illinois Supreme Court

890 N.E.2d 446

229 Ill.2d 104

Brian LOMAN et al., Appellees, v. David E. FREEMAN, Appellant.

No. 104289.

Supreme Court of Illinois.

April 17, 2008.

Rehearing Denied May 27, 2008.

Gary Lietz, of Lietz Banner Ford LLP, Champaign, for appellant.

James G. Fahey, David A. Rolf, of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., Springfield, for appellees.

OPINION

Justice GARMAN delivered the judgment of the court, with opinion:

Plaintiffs are the owners of a race horse, Master David Lee. Defendant David E. Freeman, D.V.M., a member of the faculty of the College of Veterinary Medicine at the University of Illinois, performed surgery on the horse. Plaintiffs allege that one of the surgical procedures performed by Freeman was unauthorized and that it rendered the horse lame and unsuitable for racing. Their claims of negligence and conversion were dismissed by the circuit court of Champaign County and they appealed. The appellate court reversed. 375 Ill.App.3d 445, 314 Ill.Dec. 446, 874 N.E.2d 542. We granted defendant's petition for leave to appeal under Supreme Court Rule 315 (210 Ill.2d R. 315). For the reasons that follow, we affirm the judgment of the appellate court.

BACKGROUND

In 2001, plaintiffs brought their horse, Master David Lee, to the Large Animal Clinic at the University of Illinois College of Veterinary Medicine for evaluation and treatment. Defendant was employed by the College as a professor of equine surgery. As such, he was not required to be licensed as a veterinarian in Illinois. See 225 ILCS 115/4(3) (West 2000). His duties included teaching and training veterinary students in the diagnosis and treatment of horses. In the course of his teaching duties, he examined, treated, and performed surgery on horses.

Plaintiffs allege that they gave defendant permission to perform two procedures on the animal: surgery on the left carpal bone and draining of fluid from the right stifle. (The stifle is the joint in a horse's hind leg analogous to the human knee.) They further allege that they specifically forbade him to perform any other procedures on the right stifle. Notwithstanding this express prohibition, defendant performed surgery on the right stifle. Plaintiffs claim that, as a result, the horse has been ruined for future racing.

Plaintiffs' amended complaint contains two counts. In count I, negligence, plaintiffs allege that defendant owed a duty to them to exercise reasonable care in his treatment of the horse "in compliance with the standards of a qualified veterinarian," and that he performed unauthorized and unnecessary surgery on the animal's right stifle "in violation of the standard of care of a veterinarian." In count II, conversion, plaintiffs allege that the performance of unauthorized surgery by defendant "constitutes an unauthorized assumption of the right to possession or ownership of the horse," causing an "alteration of the condition" of the horse.

In addition to the tort claims filed in the circuit court, plaintiffs filed an action against the University of Illinois Department of Clinical Veterinary Medicine (a department within the College of Veterinary Medicine) in the Court of Claims. That action has been stayed pending the outcome of the circuit court action.

Defendant filed a hybrid motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2004)). In the portion of the motion invoking section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2004) (involuntary dismissal based upon certain defects or defenses)), defendant argued that plaintiffs' negligence claim is barred by Illinois' economic loss, or Moorman, doctrine. See Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 73, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982). In the portion of the motion invoking section 2-615 of the Code (735 ILCS 5/2-615 (West 2004) (motions with respect to the pleadings)), defendant argued that plaintiffs failed to plead a cause of action for conversion because they did not allege that he permanently deprived them of possession of the horse.

The trial court granted defendant's motion and dismissed the amended complaint with prejudice. Plaintiffs appealed. As a threshold matter, the appellate court commented that defendant's motion was not properly designated a hybrid motion pursuant to section 2-619.1 and treated it as a section 2-615 motion. 375 Ill.App.3d at 448, 314 Ill.Dec. 446, 874 N.E.2d 542. No issue is raised on this point, so we shall accept the appellate court's characterization of the procedural posture of the case.

As to the negligence claim, the appellate court found that plaintiffs alleged a breach of duty imposed by the common law, independent of defendant's state employment. 375 Ill.App.3d at 454-55, 314 Ill.Dec. 446, 874 N.E.2d 542. The appellate court further ruled that plaintiffs' negligence claim is not barred by the Moorman doctrine because unauthorized surgery is a sudden and dangerous occurrence. 375 Ill.App.3d at 458, 314 Ill.Dec. 446, 874 N.E.2d 542. As to the conversion claim, the appellate court found that the alleged harm — the permanent incapacitation of the horse for racing — is sufficient, if proven, to state a cause of action for conversion. 375 Ill. App.3d at 458, 314 Ill.Dec. 446, 874 N.E.2d 542.

ISSUES PRESENTED

Defendant raises three issues before this court: (1) whether plaintiffs' negligence claim is barred by the Moorman doctrine; (2) whether the Court of Claims has exclusive jurisdiction over plaintiffs' claims because the University of Illinois is the real party in interest; and (3) whether defendant is immune from any liability in connection with his treatment of the horse because he is exempt from all terms of the Veterinary Medicine and Surgery Practice Act of 1994 (Practice Act) (225 ILCS 115/1 et seq. (West 2000)).

STANDARD OF REVIEW

A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2004)) challenges only the legal sufficiency of the complaint. Jarvis v. South Oak Dodge, Inc., 201 Ill.2d 81, 85, 265 Ill.Dec. 877, 773 N.E.2d 641 (2002). As such, an appeal from an order granting such a motion presents a question of law, which we review de novo. Wakulich v. Mraz, 203 Ill.2d 223, 228, 271 Ill.Dec. 649, 785 N.E.2d 843 (2003). The proper inquiry is whether the well-pleaded facts of the complaint, taken as true and construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Jarvis, 201 Ill.2d at 86, 265 Ill.Dec. 877, 773 N.E.2d 641.

ANALYSIS

(1) Whether Plaintiffs' Tort Claims Are Barred by the Moorman Doctrine

In Moorman Manufacturing Co. v. National Tank Co., this court held the purchaser of a defective product may not sue the manufacturer in tort to recover solely economic losses caused by the defect. Moorman, 91 Ill.2d at 88, 61 Ill.Dec. 746, 435 N.E.2d 443 ("When the defect is of a qualitative nature and the harm relates to the consumer's expectation that a product is of a particular quality so that it is fit for ordinary use, contract, rather than tort, law provides the appropriate set of rules for recovery").

In Anderson Electric, Inc. v. Ledbetter Erection Corp., 115 Ill.2d 146, 104 Ill.Dec. 689, 503 N.E.2d 246 (1986), this court extended the Moorman doctrine to contracts for services, which would seem to include the veterinary care at issue in the present case.

The exception to the doctrine upon which plaintiffs rely was articulated in Moorman itself. This court noted that "[t]ort theory is appropriately suited for personal injury or property damage resulting from a sudden or dangerous occurrence * * *. The remedy for economic loss, loss relating to a purchaser's disappointed expectations due to deterioration, internal breakdown or nonaccidental cause, on the other hand, lies in contract." Moorman, 91 Ill.2d at 86, 61 Ill.Dec. 746, 435 N.E.2d 443. This court had in mind fires, explosions, or other calamitous occurrences due to the failure of a product and the resulting risk of harm to persons or property. Moorman, 91 Ill.2d at 84-86, 61 Ill.Dec. 746, 435 N.E.2d 443.

The circuit court concluded that count I of the amended complaint, negligence, was barred by the Moorman doctrine. The appellate court reversed.

With respect to the negligence count, the appellate court found that laceration with a scalpel is "sudden," as compared to the gradual deterioration of the grain storage tank that was at issue in Moorman. 375 Ill.App.3d at 458, 314 Ill.Dec. 446, 874 N.E.2d 542. The appellate court also reasoned that the occurrence was "dangerous," because surgery is inherently dangerous and because plaintiffs allege that this particular procedure was "very risky." 375 Ill.App.3d at 458, 314 Ill.Dec. 446, 874 N.E.2d 542.

We note that application of the "sudden and dangerous" exception to the Moorman doctrine to the conduct of one who has contracted to provide a service, as opposed to the failure of a product, is awkward at best. We also observe that the appellate court's reasoning could lead to inconsistent results in similar cases. If veterinary surgery is "sudden and dangerous," the owner of an animal could seek a remedy in tort if he alleged malpractice in the performance of veterinary surgery, but he would be limited by Moorman to a contractual remedy if he alleged that the veterinarian misdiagnosed a disease or condition or failed to render the proper nonsurgical treatment. Nevertheless, we find it unnecessary to review the appellate court's reasoning on this issue.

Defendant's petition for leave to appeal lists "Moorman Doctrine" as one of the points relied upon for reversal. However, the doctrine is only briefly referred to in the remainder of the petition. Defendant wonders how, if veterinary surgery is sudden and dangerous, it can be expected to be performed in a professional manner. He concludes that he "firmly believes that the Moorman Doctrine applies to this set of...