Midamerica Trust Co. v. Moffatt

• Decision Date: 31 July 1987
• Docket Number: No. 5-86-0054,5-86-0054
• Parties: , 110 Ill.Dec. 787 MIDAMERICA TRUST COMPANY, Guardian of the Estates of Kevin Jones, Jeremy Jones and Jessie Jones, Plaintiff-Appellant, v. Deborah MOFFATT, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 964

511 N.E.2d 964

158 Ill.App.3d 372, 110 Ill.Dec. 787

MIDAMERICA TRUST COMPANY, Guardian of the Estates of Kevin Jones, Jeremy Jones and Jessie Jones, Plaintiff-Appellant, v. Deborah MOFFATT, Defendant-Appellee.

No. 5-86-0054.

Appellate Court of Illinois,

Fifth District.

July 31, 1987.

Judy L. Cates, Kirby Palmer, Carr, Korein, Kunin, Schlichter & Brennan, East St. Louis, for plaintiff-appellant.

Neil F. Hartigan, Atty. Gen., Roma Jones Stewart, Sol. Gen., Chicago (Rosalyn B. Kaplan, Asst. Atty. Gen., Chicago, of counsel), for defendant-appellee.

Justice KASSERMAN delivered the opinion of the court:

Plaintiff, Midamerica Trust Company, guardian of the estates of Kevin Jones, Jeremy Jones and Jessie Jones, appeals from the trial court's refusal to vacate its dismissal of the plaintiff's complaint.

In its three-count complaint, plaintiff states that it had been appointed guardian of the estates of Kevin Jones, Jeremy Jones, and Jessie Jones, three minor children of Virginia Williams. Deborah Moffatt, the defendant, is alleged to have been employed by the Department of Children and Family Services (DCFS) as a social worker and is described in the complaint as the agent of DCFS. According to Counts I and II, on December 2, 1982, DCFS was granted guardianship of Kevin and Jeremy, without the power to consent to their adoption, as a result of the agency's allegations that their natural mother had neglected them. These children were placed in foster care from approximately October 1982 until December 16, 1983, when they were returned by DCFS to the physical custody of their natural mother.

The plaintiff alleges that defendant, in returning the children to their natural mother, knew that their various needs had to be monitored and that "in reckless disregard of her duty to protect [them] from neglect" committed one or more acts characterized as "wilful and wanton misconduct." Specifically, plaintiff contends that defendant knew of certain detrimental conditions and failed to take remedial action "in conscious disregard" of the health, safety and welfare of the children and of her duty to them. Plaintiff alleges that the children had consequently suffered injuries or illnesses and sought damages in an amount in excess of $15,000 for each child.

In Count III, brought on behalf of Jessie Jones, plaintiff alleges that defendant was assigned by DCFS to monitor the home of Jessie's mother; that defendant knew of the mother's neglect of Jessie's siblings, and that defendant, "in her capacity as a social worker for DCFS" visited the mother's home "to check on the welfare" of Jessie. According to this count, defendant "in her capacity as a social worker for DCFS," had a duty to protect Jessie from a neglectful environment and to report such an environment to Child Protective Services; that "in reckless disregard of her duty to protect the minor from neglect" defendant committed one or more acts characterized as wilful and wanton misconduct; and that Jessie consequently suffered pneumonia on two occasions. Plaintiff prayed for judgment on behalf of Jessie in an amount in excess of $15,000.

The defendant filed a motion to dismiss plaintiff's complaint on the grounds of sovereign immunity, public official immunity, judicial immunity, and failure to state a cause of action against the named defendant. By an order dated August 7, 1985, the circuit court allowed defendant's motion to dismiss.

On September 3, 1985, plaintiff filed a motion to reconsider and vacate the order of dismissal. That motion was denied on January 15, 1986. In its notice of appeal, plaintiff sought review of the January 15, 1986, order.

In Illinois, it is well-settled that, pursuant to the doctrine of public official immunity, state officials and employees are fully protected from liability for acts falling within their official discretion. (Larson v. Darnell (3rd Dist.1983), 113 Ill.App.3d 975, 69 Ill.Dec. 789, 448 N.E.2d 249; Mora v. State (1977), 68 Ill.2d 223, 12 Ill.Dec. 161, 369 N.E.2d 868.) The doctrine of public official immunity is "based upon the policy that public officials should be free to exercise their judgment according to their best perception of public needs." (Hanzel Construction, Inc. v. Wehde & Southwick, Inc. (2nd Dist.1985), 130 Ill.App.3d 196, 200, 85 Ill.Dec. 624, 628, 474 N.E.2d 38, 42.) In Lusietto v. Kingan (3rd Dist.1969), 107 Ill.App.2d 239, 246 N.E.2d 24, where the plaintiff sought to impose liability on a maintenance supervisor for failure to repair a large and dangerous hole in the highway, the court illustrated the reasons for public official immunity:

"To hold the defendant liable in this case would be productive of many problems. Who, in the chain of command concerning state highways would be responsible? As orders filter down and reports filter up, would each individual in line be personally responsible? What if budget deficiencies due to insufficient legislative appropriations required a restriction in repair work so that only half the holes in the State's highways could be filled? Moreover, it is common knowledge that no highway is without imperfections. If every rut, hole, or blemish on the highway were to create the possibility of personal liability against one or more employees of the State Highway Department, it would be impossible to find employees willing to serve under such conditions." (107 Ill.App.2d 239, 246, 246 N.E.2d 24, 28.)

In addition to concerns over personal financial liability, it has been recognized that "[e]qually important are public liability and an officer's legitimate fear of defending his many policy choices in court." (Kelly v. Ogilvie (1st Dist.1965), 64 Ill.App.2d 144, 148, 212 N.E.2d 279, 281.) Public official immunity is granted because a good-faith mistake in judgment ought not to subject a public decision-maker to a lawsuit. The courts reason that any other rule would be a great hardship on public officials and would discourage citizens from seeking public positions. McCormick v. Burt (1880), 95 Ill. 263, 266.

When application of the doctrine of public official immunity is urged, the critical question is whether the employee's conduct was "discretionary" or merely "ministerial," with the employee or state official incurring liability only where his actions were not "discretionary." (Madden v. Kuehn (2nd Dist.1978), 56 Ill.App.3d 997, 1001, 14 Ill.Dec. 852, 855, 372 N.E.2d 1131, 1134.) In Madden, the appellate court compared cases where the doctrine was found applicable to cases where the state employee was held personally liable and reasoned that:

"[t]he underlying public policy that public officials ought to be free to exercise their judgment based upon 'their best perception of public needs' (citation omitted), does not apply when the action of the public official does not involve a 'governmental' decision. Thus, an act is held to be 'discretionary' not merely because it involves the exercise of judgment and skill * * *, but because the act is essentially 'governmental in character'. (Citations omitted.)" 56 Ill.App.3d 997, 1002, 14 Ill.Dec. 852, 855, 372 N.E.2d 1131, 1134.

In Madden, the court recognized that "cases holding public officials to have acted within their official discretion have generally involved actions and duties unique to a particular public office." (56 Ill.App.3d 997, 1001, 14 Ill.Dec. 852, 855, 372 N.E.2d 1131, 1134.) Other reported decisions involving the same rationale are: Anderberg v. Newman (1st Dist.1972) (Abs.), 5 Ill.App.3d 736, 283 N.E.2d 904, in which the decision of State employed doctors to release plaintiff's mother from state mental institution knowing of her suicidal tendencies was held to be in exercise of their official discretion, and in exercise thereof defendants would be protected from individual civil liability for death of mother; Lusietto v. Kingan (3rd Dist.1969), 107 Ill.App.2d 239, 246 N.E.2d 24, where the duty of highway maintenance supervisor to supervise maintenance of portion of state highway where fatal automobile accident occurred was determined to be a duty owed to public generally and not to an individual, so that supervisor could not be held individually liable for having failed to either fill particular hole that caused injury or to have posted a barricade in some way; Kelly v. Ogilvie (1st Dist.1965), 64 Ill.App.2d 144, 212 N.E.2d 279, aff'd. (1966) 35 Ill.2d 297, 220 N.E.2d 174, in which a sheriff and warden were held not to be personally liable for results of administrative decision to use the "barn boss" system for policing the county jail; People ex rel. Scott v. Briceland (1976), 65 Ill.2d 485, 3 Ill.Dec. 739, 359 N.E.2d 149, a case in which the EPA director and deputy director were held to have acted within their official discretion in incurring litigation costs for proceedings brought by EPA before the Pollution Control Board; and Mora v. State (1977), 68 Ill.2d 223, 12 Ill.Dec. 161, 369 N.E.2d 868, where it was determined that the District Head of State Department of Transportation, who was sued by automobile passengers for injuries sustained in automobile accident, could not be charged with individual liability for failure to establish no-passing zone, in that to do so was a discretionary activity.

The distinction between "discretionary" and "ministerial" acts becomes apparent when the cases above are contrasted with cases such as Pree v. Hymbaugh (3rd Dist.1959), 23 Ill.App.2d 211, 162 N.E.2d 297 (township highway commissioner held personally liable for injuries occasioned by his negligent operation of a township truck); Madden v. Kuehn (2nd Dist.1978), 56 Ill.App.3d 997, 14 Ill.Dec. 852, 372 N.E.2d 1131 (suit could be maintained against the estate of a state-employed physician whose alleged negligence in attending an inmate of a state correctional facility caused the latter's death, inasmuch as the duties allegedly breached by the physician were those which every doctor owes his...