Stallman by Stallman v. Youngquist, 86-0315

• Decision Date: 11 February 1987
• Docket Number: No. 86-0315,86-0315
• Citation: 504 N.E.2d 920,152 Ill.App.3d 683,105 Ill.Dec. 635
• Parties: , 105 Ill.Dec. 635 Lindsay STALLMAN, by her father and next friend, Mark STALLMAN, Plaintiff-Appellant, v. Clarence R. YOUNGQUIST and Bari Stallman, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 920

504 N.E.2d 920

152 Ill.App.3d 683, 105 Ill.Dec. 635

Lindsay STALLMAN, by her father and next friend, Mark STALLMAN, Plaintiff-Appellant, v. Clarence R. YOUNGQUIST and Bari Stallman, Defendants-Appellees.

No. 86-0315.

Appellate Court of Illinois First District, First Division.

Feb. 11, 1987.

George B. Collins, Christopher Bargione, Collins & Uscian, Chicago, for plaintiff-appellant.

Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, Timothy V. Hoffman, John D. Daniels, Lloyd E. Williams, Jr., of counsel), for defendant-appellee.

Justice JOHNSON delivered the opinion of the court:

Plaintiff, Lindsay Stallman, by her father and next friend, Mark Stallman, brought an action in the circuit court of Cook County against defendants, Clarence Youngquist and Bari Stallman. Bari is plaintiff's mother. Plaintiff sought damages for prenatal injuries that she allegedly sustained in an automobile collision that defendants caused. The trial court granted Bari's motion for summary judgment on count II of the three-count complaint. Plaintiff now appeals, contending that the trial court erred in granting summary judgment for Bari.

We reverse and remand.

Plaintiff's second amended complaint alleged that she was born on January 25, 1982. On October 7, 1981, her mother, Bari, was involved in an automobile collision with Youngquist. In count I, plaintiff alleged that Youngquist was negligent in driving his automobile and that as a result of his negligence she suffered, in utero, serious injuries that became apparent at her birth. She sought $25,000 in damages.

In count II, plaintiff alleged that Bari was negligent in driving her automobile. Plaintiff further alleged that at the time of the accident she was not a person; therefore, she was not a member of Bari's family and her injuries were outside of the family relationship. Plaintiff sought $25,000 in damages. In count III, plaintiff alleged that Bari's acts were willful and wanton.

Bari moved to dismiss count II, pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-615), invoking the parent-child tort immunity doctrine. On August 4, 1983, the trial court dismissed count II with prejudice, finding that plaintiff was a member of Bari's family at the time of the accident and, therefore, that the parent-child tort immunity rule applied.

Plaintiff then appealed the trial court's dismissal of count II of her second amended complaint. In Stallman v. Youngquist (1984), 129 Ill.App.3d 859, 85 Ill.Dec. 32, 473 N.E.2d 400 (hereinafter Stallman I ), we first rejected plaintiff's argument that parent-child tort immunity did not apply to her because she was not a person, and thus not a member of Bari's family, at the time of the accident. We held that she was a legal person for the purposes of maintaining a lawsuit after her birth and, therefore, was a member of Bari's family. (129 Ill.App.3d 859, 862, 85 Ill.Dec. 32, 34, 473 N.E.2d 400, 402.) We next reversed the trial court's dismissal order, holding that plaintiff stated a cause of action in negligence against Bari. (129 Ill.App.3d 859, 865, 85 Ill.Dec. 32, 36, 473 N.E.2d 400, 404.) Since the appeal involved solely the sufficiency of plaintiff's complaint, we remanded the cause to the trial court to determine the facts and then to determine whether those facts fell into any exceptions to the parent-child tort immunity rule. We believed that "plaintiff should [have been] given the opportunity to prove whether defendant Stallman's act of driving to a restaurant was not an act arising out of the family relationship and directly connected with family purposes and objectives." 129 Ill.App.3d 859, 864, 85 Ill.Dec. 32, 35, 473 N.E.2d 400, 403.

The sole issue in Stallman I was whether count II of plaintiff's complaint stated a cause of action. We held that it did. We also reviewed the parent-child tort immunity doctrine and its exceptions. We held that the applicability of the immunity rule was a question of fact. We, therefore, could not decide, and the trial court should not have decided, the applicability of the immunity rule on a motion to dismiss, since the motion attacks the legal sufficiency of a complaint and not its factual sufficiency. Holland v. Arthur Andersen & Co. (1984), 127 Ill.App.3d 854, 862, 82 Ill.Dec. 885, 890, 469 N.E.2d 419, 424. The record shows that upon remand, Bari filed a motion for summary judgment, to which she attached her affidavit and excerpts from her deposition. Plaintiff filed no counteraffidavits or any other factual material in response; she filed only a memorandum of law. On January 31, 1986, the trial court found that parent-child tort immunity did apply to the facts and granted Bari's motion for summary judgment. Plaintiff appeals, pursuant to Supreme Court Rule 304(a). Ill.Rev.Stat.1985, ch. 110A, par. 304(a).

When a plaintiff appeals from a trial court's order of summary judgment for a defendant, the only issue on appeal is whether "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill.Rev.Stat.1985, ch. 110, par. 2-1005.) If the documents that the trial court considers show that there is a material issue as to any material fact, summary judgment should not be granted. In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions, and affidavits in the light most favorable to the non-moving party. Conversely, when the evidence shows that no material issue of fact has been raised, the moving party is entitled to judgment as a matter of law. (Artis v. Fibre Metal Products (1983), 115 Ill.App.3d 228, 231-32, 71 Ill.Dec. 68, 450 N.E.2d 756, 758.) Further, a trial court must take as true well-alleged facts in an affidavit, where uncontradicted by a counteraffidavit, despite any contrary averments in an adverse party's pleadings that merely purport to establish issues of fact. Fooden v. Board of Governors of State Colleges & Universities of Illinois (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497, 500-01.

On remand, Bari submitted evidence that substantiated her pleadings, which plaintiff did not contradict. Faced with uncontested facts, the trial court could rule, as a matter of law, that Bari's acts did not fall into any exception to the parent-child tort immunity rule and, therefore, the rule applied to the facts, shielding Bari from suit by plaintiff.

In the present appeal, plaintiff presents two alternate arguments. She first contends that although we must take Bari's well-pleaded and uncontradicted allegations as true, more than one inference or conclusion flows from those facts; therefore, we should deny summary judgment. Plaintiff secondly asks us to reevaluate the efficacy of the parent-child tort immunity doctrine itself. We address the second contention first.

The parent-child tort immunity doctrine bars a child from maintaining an action for damages against his or her parent. Illinois first recognized the doctrine in Foley v. Foley (1895), 61 Ill.App. 577. In Foley, plaintiff, a child, alleged that defendant, his parent, severely beat him on several occasions; that defendant wrongfully required him, as defendant's servant, to drive a vicious horse, which kicked and permanently injured him; and that defendant did not provide him with any medical aid. The appellate court held that plaintiff could not maintain an action for damages against his parent for maltreatment. The court based the rule on the public policy that a child should not contest with the parent the parent's right to govern the child. 61 Ill.App. 577, 578-80.

We reviewed the immunity rule in Stallman I and concluded that the rule was still the law in Illinois, but eroded by Schenk v. Schenk (1968), 100 Ill.App.2d 199, 241 N.E.2d 12. In Schenk, the appellate court limited the parent-child tort immunity rule to acts arising out of the family relationship and directly connected with family purposes and objectives. (Stallman v. Youngquist (1984), 129 Ill.App.3d 859, 863, 85 Ill.Dec. 32, 35, 473 N.E.2d 400, 403, quoting Schenk v. Schenk (1968), 100 Ill.App.2d 199, 204-06, 241 N.E.2d 12, 14-15.) We further noted that Illinois courts, relying on Schenk, have tended to restrict rather than expand the application of the rule. 129 Ill.App.3d 859, 864, 473 N.E.2d 400, 403-04.

I-A.

We must address two preliminary issues before we can reevaluate the efficacy of the parent-child tort immunity rule. We must first determine whether the Illinois Supreme Court has addressed this exact issue, because, where our supreme court has declared Illinois law on any point, that court alone can overrule and modify its previous opinion; such a decision binds all other judicial tribunals in this State, and it is the duty of those tribunals to follow such a decision in similar cases. Agricultural Transportation Association v. Carpentier (1953), 2 Ill.2d 19, 27, 116 N.E.2d 863, 867; Stopka v. Lesser (1980), 82 Ill.App.3d 323, 326, 37 Ill.Dec. 779, 781, 402 N.E.2d 781, 783.

In Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525, our supreme court held that the parent-child tort immunity rule does not apply to allegations of willful and wanton misconduct. (7 Ill.2d 608, 619, 131 N.E.2d 525, 531.) The court in Nudd did not hold that the doctrine bars an action based on negligence. In Mroczynski v. McGrath (1966), 34 Ill.2d 451, 216 N.E.2d 137, the court only reacknowledged its holding in Nudd. (34 Ill.2d 451, 454-55, 216 N.E.2d 137, 139.) In several subsequent cases involving the tort immunity of teachers, the supreme court merely noted the parent-child tort immunity doctrine to analogize the rule to teacher immunity under the school code. Thomas v. Chicago Board of Education (1979), 77 Ill.2d 165, 171, 32 Ill.Dec. 308, 311, 395 N.E.2d 538, 541; Gerrity v. Beatty (1978), 71 Ill.2d 47,...