Miller v. Hecox

• Decision Date: 10 May 2012
• Docket Number: Docket No. 2-11-0546
• Parties: TINA MILLER, Individually and as Special Administrator of the Estate of Kyle Christian, Deceased, Plaintiff-Appellant, v. KARAC L. HECOX and CHRISTIE J. MOORS, Defendants (Kallen Szell, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 110546

TINA MILLER, Individually and as
Special Administrator of the Estate of Kyle Christian, Deceased, Plaintiff-Appellant,
v.
KARAC L. HECOX and CHRISTIE J. MOORS, Defendants
(Kallen Szell, Defendant-Appellee).

Docket No. 2-11-0546

Illinois Official Reports Appellate Court Second District

May 10, 2012

Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Summary judgment was properly entered for defendant in an action
alleging that defendant was negligent after voluntarily undertaking to help
plaintiff's son after he overdosed on heroin and later died or that he was
part of a civil conspiracy to purchase and use heroin or a conspiracy to
care for plaintiff's son, since defendant did not engage in any activity that
would rise to the level of a voluntary undertaking such that he owed a
duty of care to plaintiff's son and there was no issue of material fact as to
the question of reliance, plaintiff's arguments based on the alleged
conspiracy to purchase and use heroin were speculative and unsupported
by authority, plaintiff's son did not die as a result of a conspiracy
involving defendant, and there could have been no conspiracy to render
care negligently.

Decision Under Review Appeal from the Circuit Court of Winnebago County, No. 08-L-55; the
Hon. Eugene G. Doherty, Judge, presiding.

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Judgment Affirmed.

Counsel on Appeal Rodney W. Kimes, of Bolgrien, Koepke & Kimes, S.C., of Beloit,
Wisconsin, for appellant.

Raymond P. Fabricius, of Fabricius, Koening & Lindig, of Ottawa, for
appellee.

Panel JUSTICE HUDSON delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice McLaren concurred in the
judgment and opinion.

OPINION
¶ 1 I. INTRODUCTION

¶ 2 Plaintiff, Tina Miller (individually and as special administrator of the estate of Kyle Christian), filed a multicount complaint in the circuit court of Winnebago County. Plaintiff is the mother of Kyle Christian, who is deceased. The complaint was directed against defendant, Kallen Szell, and two other individuals (Karac L. Hecox and Christie J. Moors) who are not parties to this appeal. Plaintiff claimed that defendant was negligent in rendering aid to Kyle after undertaking a duty to do so and that Kyle's death was the result of a civil conspiracy of which defendant was a part. The trial court granted defendant summary judgment on both claims. Plaintiff now appeals. We agree with the trial court and affirm.

¶ 3 II. BACKGROUND

¶ 4 The following is taken from the depositions of the three defendants in the action below. We will begin with the testimony of Karac Hecox. He testified that he met Kyle in the summer of 2006. They met through Christie Moors, whom Hecox was dating. Hecox started using heroin in April 2006, and by the end of the summer that year, he was using the drug multiple times every day. Hecox, Moors, and two other individuals financed their drug use by stealing copper out of new-construction homes and stealing from stores.

¶ 5 On the day Kyle died, Hecox and Moors woke up experiencing withdrawal symptoms. They had not stolen anything the previous evening, so they did not have anything to sell at the scrap yard. Kyle called and said there was some copper in his garage he was willing to sell. Kyle picked up Hecox and Moors. They then went to a scrap yard and sold the copper for $60. Hecox contacted a heroin dealer with whom he often dealt. As they were going to

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buy the heroin, Hecox and Moors told Kyle, "[J]ust because you're getting two bags doesn't mean you need to do two bags." They purchased six bags. Hecox stated that he had never had a problem with this dealer's heroin before. Hecox testified that the heroin he got that day was "perfectly fine."

¶ 6 Kyle usually took only one bag of heroin. Hecox believed that Kyle did not have a high tolerance for the drug. One bag would make him "really, really, really high, like almost incoherent high." When a person is high, Hecox explained, the person is "extremely tired" and "struggling to stay conscious." Hecox and Moors were no longer using heroin to get high; rather, they were simply trying to avoid withdrawal symptoms. Hecox testified that Kyle was "always kind of an emotional character."

¶ 7 After they acquired the heroin, they used it in Kyle's car. Each of them ingested two bags. At some point, Moors looked at Kyle and noted that he was pale. Hecox checked his pulse, which was faint, and noted that his breathing was abnormal. Hecox had never seen anyone overdose before. He performed CPR. Moors suggested that they go to Brian Hoshaw's house, because Kyle had overdosed in Hoshaw's presence in the past. Hoshaw examined Kyle and checked his pulse. He stated that Kyle had "done this a handful of times with him before." Hoshaw told Hecox and Moors to stay with Kyle for a few hours. If nothing changed, Hoshaw continued, Kyle would be fine; however, if something changed-such as if Kyle stopped breathing-they should take him to the hospital.

¶ 8 The three left Hoshaw's house. They then got a call from defendant and defendant's girlfriend. Defendant wanted to buy heroin. They met at the Spring Garden restaurant. Defendant gave Hecox money. Hecox and Moors, with Kyle still in the car, went to get more heroin. After returning to the restaurant, Hecox, Moors, defendant, and his girlfriend all did heroin in defendant's car. Hecox and Moors explained what was happening with Kyle. Defendant and his girlfriend went to look at Kyle. When asked whether defendant or his girlfriend had entered Kyle's vehicle, Hecox replied, "I want to say yes." Defendant and his girlfriend asked whether Hecox thought Kyle would be all right. Hecox testified that defendant and his girlfriend spoke with Kyle. The group discussed Kyle's condition, and Hecox called Mike Monge, who was "experienced in overdosing." Monge did not "want to be any part of anybody overdosing." Hecox could not recall if the others were within earshot when he called Monge.

¶ 9 After Hecox got off the phone with Monge, the group went inside the restaurant to have coffee. Hecox told the group that Monge did not offer any advice. The group was nervous and had "a little air of wariness." Kyle was extremely pale. Hecox knew that if anyone saw him the police would be called. Hecox testified that, before they entered the restaurant, he had placed a jacket in the window of Kyle's car so that if anyone pulled up next to the car they would not see how bad Kyle looked. The others were present when Hecox did this. Hecox responded negatively when asked whether "everybody was out there trying to help the situation, trying to figure out ideas to help." The group remained in the restaurant for two hours. Every 15 to 20 minutes, Hecox would go out to the car to check on Kyle "to make sure he was still breathing [and] still had a pulse." Kyle "was actually seeming to go get [sic] a little better." His breathing was becoming somewhat more regular. At some point, defendant's girlfriend said "something along the line of you should think about calling an

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ambulance." Defendant did not say anything.

¶ 10 Subsequently, "it came time to leave." Hecox went to Kyle's car and sat with him for 5 or 10 minutes. Kyle "actually started to respond at this point." Hecox told him that the group was leaving. Hecox asked whether he should call an ambulance or Kyle's mother, and Kyle responded in the negative. Defendant then drove everyone home. The next day, Hecox was arrested for stealing copper. A few days later, detectives told him that they had found Kyle dead in his car.

¶ 11 On further questioning, Hecox explained that he did not want to make the situation a concern of defendant and his girlfriend. He believed that Hoshaw "knew what he was talking about" as "he had experienced Kyle overdosing several times." Hecox testified that he believed that Kyle would be fine. He explained: "I had sold [defendant and his girlfriend] heroin, they were friends, and I didn't want to say this guy overdosed with us, what are we going to do about it. It's not-it wasn't their problem." Hecox did not feel that Kyle's condition was "a discussion that [the group] was having at the table [in the restaurant]."

¶ 12 During cross-examination by defendant's attorney, Hecox stated that it took him and Moors about 50 minutes to obtain the heroin for defendant. Also, when Hecox performed CPR on Kyle, defendant was not present. While the group had coffee in the restaurant, Hecox periodically checked on Kyle. When he returned from doing so, members of the group asked how Kyle was doing and Hecox reported what he observed. Outside of this, there was no conversation about Kyle in the restaurant. When Hecox checked Kyle before the group left the restaurant, Hecox asked Kyle if he was going to be all right and "Kyle mumbled 'Ah-Ha.' When they left, Hecox believed that Kyle would be fine. Hecox agreed that, contrary to his earlier testimony, he did not place the jacket in the window until the group was leaving.

¶ 13 Moors' attorney also cross-examined Hecox. Hecox stated that Kyle had overdosed at Hoshaw's house on several occasions as well as a "couple of times" with a girl named Amanda. Both he and Moors were aware of this. However, he and Moors had never previously been present during one of Kyle's...