Nichol v. Stass

• Decision Date: 10 August 2000
• Docket Number: No. 86065.,86065.
• Citation: 192 Ill.2d 233,248 Ill.Dec. 931,735 N.E.2d 582
• Court: Illinois Supreme Court
• Parties: Gregory NICHOL et al., Appellants, v. John STASS et al., Appellees.

735 N.E.2d 582

192 Ill.2d 233

248 Ill.Dec. 931

Gregory NICHOL et al., Appellants, v. John STASS et al., Appellees.

No. 86065.

Supreme Court of Illinois.

August 10, 2000.

John C. Wunsch, of Chicago, for appellants.

James E. Ryan, Attorney General, of Springfield (Joel D. Bertocchi, Solicitor General, and Diane M. Potts, Assistant Attorney General, of Chicago, of counsel), for appellees.

Justice MILLER delivered the opinion of the court:

The plaintiffs, Gregory Nichol and Ruby Nichol, brought this action in the circuit court of Cook County individually and as cospecial administrators of the estate of the decedent, Jonathan Nichol, against the defendants, John Stass and Bonnie Stass, and the Human Enrichment and Developmental Association (HEDA), an independent child welfare agency. The plaintiffs alleged that Jonathan, their son, died while in the care of the Stasses, who were acting as Jonathan's foster parents at the time of his death and who were allegedly under the supervision of HEDA. The plaintiffs sought recovery from the defendants under several different theories. The trial judge dismissed the plaintiffs' action against the Stasses on the ground that it was barred by sovereign immunity. The appellate court affirmed. 297 Ill.App.3d 557, 232 Ill.Dec. 16, 697 N.E.2d 758. We allowed the plaintiffs' petition for leave to appeal (177 Ill.2d R. 315(a)), and we now reverse the judgments of the appellate and circuit courts and remand the cause to the circuit court for further proceedings.

According to the allegations in the complaint, Jonathan died on June 16, 1995, while at the Stasses' home and in their care, by drowning in a toilet. He was two years old. The plaintiffs sought recovery from each of the defendants under the Wrongful Death Act (740 ILCS 180/1 (West 1996)), the Rights of Married Persons Act (750 ILCS 65/15 (West 1996)), and the Survival Act (755 ILCS 5/27-6 (West 1996)), alleging that the defendants negligently violated various duties imposed by the common law and by administrative regulations, and, further, that liability was established under the doctrine of res ipsa loquitur. The complaint alleged that the Stasses failed to supervise Jonathan, failed to protect him from hazards within the home, failed to provide him with sufficient food and water, and failed to provide him with immediate medical care after the occurrence. The amended complaint described HEDA as an independent licensed child welfare agency that has contracted with the Department of Children and Family Services "to provide supervision, inspections, management, guidance and discipline" to foster parents and foster children. The amended complaint further asserted that HEDA "was in charge of, supervisor of, manager of, and director of" the Stasses. The plaintiffs alleged, among other things, that HEDA negligently failed to supervise the Stasses, failed to ensure that the child was provided with adequate food and water, failed to complete background checks on the Stasses, and failed to place the child in a home "free from observable hazards."

Pursuant to sections 2-619(a)(1) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1), (a)(9) (West 1996)), the Stasses moved to dismiss the counts of the amended complaint that were directed against them, arguing that the claims were barred by the doctrines of sovereign immunity and public officials' immunity. Following a hearing, the trial judge stated that he would deny the Stasses' motion. Counsel for the Stasses then advised the trial judge that a pending case in the appellate court raised a similar issue, and the judge said that he would postpone his ruling on the motion until the outcome of the appeal was known. The appellate court soon filed its opinion in the other case, Griffin v. Fluellen, 283 Ill.App.3d 1078, 219 Ill.Dec. 167, 670 N.E.2d 845 (1996), holding that the foster parent named as a defendant in that action was a state employee and could invoke the protection of the sovereign immunity doctrine. In a later proceeding in the case at bar, the trial judge concluded that he was required to follow Griffin and granted the Stasses' motion to dismiss. The trial judge also entered a finding pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) permitting the plaintiffs to appeal immediately from that ruling; the plaintiffs' separate claims against HEDA remained pending in the circuit court of Cook County, and they are not at issue in this appeal.

The appellate court affirmed the circuit court's dismissal order. 297 Ill.App.3d 557, 232 Ill.Dec. 16, 697 N.E.2d 758. The appellate court believed that the Stasses should be considered agents of the state and therefore could assert the protection of the sovereign immunity doctrine. The court theorized that the state owed the foster child a nondelegable duty of care and that the state would therefore be vicariously liable for the foster parents' conduct. The court rejected the plaintiffs' contention that the Stasses, even as agents of the state, could still be liable for Jonathan's death because they owed the child a duty of care that was entirely independent of their status as foster parents. We allowed the plaintiffs' petition for leave to appeal. 177 Ill.2d R. 315(a).

Before this court, the plaintiffs contend that the defendants are neither employees nor agents of the state and therefore cannot avoid suit through the sovereign immunity doctrine. The Stasses, in response, maintain that the lower courts correctly concluded that they are state employees or agents and that the plaintiffs' action against them is one in substance against the State of Illinois, triggering the sovereign immunity doctrine. The Stasses also argue, as an alternative ground in support of the judgments below, that even if they are not protected from suit by sovereign immunity, they may still assert parental immunity as an affirmative defense to the plaintiffs' action. We will consider these contentions in turn.

Article XIII, section 4, of the Illinois Constitution provides, "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." Ill. Const.1970, art. XIII, § 4. The legislature has reinstated sovereign immunity. Section 1 of the State Lawsuit Immunity Act reads:

"Except as provided in the `Illinois Public Labor Relations Act', enacted by the 83rd General Assembly, or except as provided in `AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named', filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court." 745 ILCS 5/1 (West 1996).

Section 8(d) of the Court of Claims Act grants the court of claims exclusive jurisdiction over, among other matters, "[a]ll claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit." 705 ILCS 505/8(d) (West 1996). In Healy v. Vaupel, 133 Ill.2d 295, 308, 140 Ill.Dec. 368, 549 N.E.2d 1240 (1990), this court summarized the scope and effect of the preceding provisions:

"Whether an action is in fact one against the State, and hence one that must be brought in the Court of Claims, depends not on the formal identification of the parties but rather on the issues involved and the relief sought. (Herget National Bank v. Kenney (1985), 105 Ill.2d 405, 408 [86 Ill.Dec. 484, 475 N.E.2d 863]; Hudgens v. Dean (1979), 75 Ill.2d 353, 355-56 [27 Ill.Dec. 193, 388 N.E.2d 1242]; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37 .) Thus, the prohibition `against making the State of Illinois a party to a suit cannot be evaded by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested.' (Sass v. Kramer (1978), 72 Ill.2d 485, 491 [21 Ill.Dec. 528, 381 N.E.2d 975].) Sovereign immunity affords no protection, however, when it is alleged that the State's agent acted in violation of statutory or constitutional law or in excess of his authority, and in those instances an action may be brought in circuit court. Senn Park Nursing Center v. Miller (1984), 104 Ill.2d 169, 188-89 [83 Ill.Dec. 609, 470 N.E.2d 1029]; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 548 [12 Ill.Dec. 600, 370 N.E.2d 223]; Moline Tool Co., 410 Ill. [35] at 37 ; Schwing v. Miles (1937), 367 Ill. 436, 441-42 ."

A threshold question in the present appeal is whether the defendants are in fact state employees or agents. If they are neither, then the doctrine of sovereign immunity can have no application here. The appellate court has reached conflicting results on the question whether foster parents are either agents or employees of the state. In the present case and in Griffin v. Fluellen, 283 Ill.App.3d 1078, 219 Ill. Dec. 167, 670 N.E.2d 845 (1996), cited by the trial judge below, the appellate court concluded that foster parents are state agents or employees and therefore are protected from suit by the doctrine of sovereign immunity. The appellate court reached the opposite result in Commerce Bank v. Augsburger, 288 Ill.App.3d 510, 223 Ill.Dec. 872, 680 N.E.2d 822 (1997), and in Swanigan v. Smith, 294 Ill.App.3d 263, 228 Ill.Dec. 578, 689 N.E.2d 637 (1998), holding in those cases that foster parents are not state agents or employees and therefore cannot assert immunity from suit under the doctrine of sovereign immunity. We conclude in the present case that the defendants have failed to establish that they are state employees or agents.

The Foster Parent Law does not describe foster parents as either employees or agents. 20 ILCS 520/1-10, 1-15, 1-20 (West 1996). Nor are foster parents deemed state employees in any of a variety of statutes relating to state employment. See, e.g., 5 ILCS 375/3 (West 1996) (State Employees Group Insurance Act of 1971); 5...