Strickland v. Kotecki

• Decision Date: 15 July 2009
• Docket Number: No. 3-07-0831.,3-07-0831.
• Citation: Strickland v. Kotecki, 913 N.E.2d 80, 392 Ill. App. 3d 1099, 332 Ill.Dec. 485 (Ill. App. 2009)
• Parties: Kevin STRICKLAND and Carrie Strickland, Plaintiffs-Appellants, v. Kevin KOTECKI and Janet Kotecki, Defendants-Appellees.
• Court: Appellate Court of Illinois

913 N.E.2d 80

392 Ill. App. 3d 1099

Kevin STRICKLAND and Carrie Strickland, Plaintiffs-Appellants, v.Kevin KOTECKI and Janet Kotecki, Defendants-Appellees.

No. 3-07-0831.

Appellate Court of Illinois, Third District.

July 15, 2009.

Melinda Rowe(argued), Schweickert & Ganassin, Peru, IL, for Appellant.

Matthew K. Krueger(argued), Erik E. Carlson, Brassfield, Krueger & Ramlow, Ltd., Streator, IL, for Appellee.

Justice LYTTONdelivered the opinion of the court:

Plaintiffs, Carrie and Kevin Strickland(Kevin S.), filed a three-count complaint against defendants, Janet and Kevin Kotecki(Kevin K.), for injuries Kevin S. sustained when he jumped over a fence to stop Kevin K. from committing suicide.Defendants filed a motion to dismiss, pursuant to section 2-615 of the Illinois Code of Civil Procedure(Code)(735 ILCS 2-615(West 2006)).The trial court granted the motion.On appeal, plaintiffs argue that the trial court should have applied the rescue doctrine to sustain their complaint.We affirm in part and reverse in part.

BACKGROUND

On January 8, 2006, Janet could not find her husband, Kevin K., and feared that he was going to attempt suicide.As a result, Janet called Carrie, her sister, and requested that she and her husband, Kevin S., help her find Kevin K.The three of them inspected a fenced-in business property and saw Kevin K.'s vehicle behind a locked gate.The vehicle had a hose running from its exhaust pipe to the passenger window.When Kevin S. jumped over the fence to rescue Kevin K., he injured his right foot.

Carrie and Kevin S. filed a complaint against Janet and Kevin K.The complaint alleged negligence against both Janet and Kevin K. and a loss of consortium claim against only Kevin K. Plaintiffs filed a motion to dismiss pursuant to section 2-615 of the Code, (735 ILCS 5/2-615(West 2006)).The trial court granted the motion, without prejudice, with leave to file an amended complaint.

Plaintiffs' first and second amended complaints were also dismissed without prejudice.In count I of plaintiffs' third amended complaint, they alleged that Kevin K.:

"a.Placed himself in a situation where he knew others might or could attempt rescue;

b. Placed himself in a situation where he knew others might or could attempt rescue, and so placed himself in an area behind a locked gate;

c. Knew or should have known that others would place themselves in danger to attempt preventing a suicide;

d. Placed himself in a situation where he knew, or should have known, that an individual like PlaintiffKEVIN STRICKLAND—untrained in the provision of rescue services—would attempt to render assistance; [and]

e. Placed himself in a situation where he knew, or should have known, that PlaintiffKEVIN STRICKLAND, a relative by marriage, would attempt to prevent him from committing suicide."

Count I further alleged that Kevin K. owed a "reasonable duty of care to others, including PlaintiffsKEVIN STRICKLAND and CARRIE STRICKLAND," and that Kevin K.'s negligent acts caused Kevin S. injuries, lost wages, pain, discomfort, disability and loss of normal life.

Count II of the third amended complaint alleged that Janet "requested and/or demanded that PlaintiffKEVIN STRICKLAND attempt to rescue KEVIN KOTECKI" and claimed that Janet (1) placed Kevin S. in a situation where she knew or should have known that he would attempt to rescue Kevin K., (2) failed to advise Kevin S. that he did not have to climb over the fence to reach Kevin K., and (3) failed to contact professional rescue personnel.Count II also alleged that Janet "owed a reasonable duty of care to * * * PlaintiffsKEVIN STRICKLAND and CARRIE STRICKLAND" and that Kevin S. was injured as a result of Janet's acts or omissions.

Count III contained the same allegations as count I but instead of alleging that Kevin S. was injured, alleged that Carrie suffered loss of consortium as a result of the injuries her husband sustained when he attempted to rescue Kevin K. Defendants again filed a section 2-615 motion to dismiss.The trial court granted the motion, stating: "I don't believe there's any cause of action for negligence when someone attempts to rescue someone in peril in this particular situation under these set of facts * * *."The trial court dismissed plaintiffs' third amended complaint with prejudice.

ANALYSIS

We review the granting of a section 2-615 motion to dismiss de novo.Behrens v. Harrah's Illinois Corp.,366 Ill.App.3d 1154, 1156, 304 Ill.Dec. 303, 852 N.E.2d 553, 555(2006).A section 2-615 motion should not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the plaintiffs to recover.Behrens,366 Ill. App.3d at 1156, 304 Ill.Dec. 303, 852 N.E.2d at 555.When reviewing an order granting a section 2-615 motion, a court must take as true all well-pled facts and all reasonable inferences taken from them.Behrens,366 Ill.App.3d at 1156, 304 Ill. Dec. 303, 852 N.E.2d at 555.

To properly plead an action based on negligence, plaintiff must allege facts sufficient to establish that defendant owed a duty of care to plaintiff, that defendant breached that duty, and that the breach was the proximate cause of plaintiff's injuries.Behrens,366 Ill.App.3d at 1156, 304 Ill.Dec. 303, 852 N.E.2d at 555.Whether a duty of care exists is a question of law, which must be resolved by the court.Behrens,366 Ill.App.3d at 1156, 304 Ill.Dec. 303, 852 N.E.2d at 555.When considering whether a duty exists, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant.Behrens,366 Ill.App.3d at 1157, 304 Ill.Dec. 303, 852 N.E.2d at 556.

I

Plaintiffs argue that the allegations in counts I and III of their complaint were sufficient to establish that Kevin K. was negligent and that the rescue doctrine was applicable.Defendants respond that plaintiffs did not sufficiently plead negligence because counts I and III fail to allege the existence of a duty.

Illinois has long recognized the rescue doctrine.SeeSeibutis v. Smith,83 Ill.App.3d 1010, 1015-16, 39 Ill.Dec. 359, 404 N.E.2d 950, 954(1980), citingDevine v. Pfaelzer,277 Ill. 255, 115 N.E. 126(1917), andWest Chicago Street R. Co. v. Liderman,187 Ill. 463, 58 N.E. 367(1900).The rescue doctrine arises when a plaintiff brings a negligence action against a defendant whose negligence has placed a third party in a position of peril.Seibutis,83 Ill.App.3d at 1015-16, 39 Ill.Dec. 359, 404 N.E.2d at 954;McGinty v. Nissen,127 Ill.App.3d 618, 620, 82 Ill.Dec. 911, 469 N.E.2d 445, 447(1984).If the plaintiff is injured in the attempted rescue, he is allowed to negate a presumption that (1) his intentional act of rescue is the superseding cause of his injuries, thereby allowing him to prove that defendant's negligence is the proximate cause of his injuries, and (2)he is guilty of contributory negligence by the mere act of voluntarily assuming a known risk of harm unless he acts rashly or recklessly Seibutis,83 Ill.App.3d at 1016, 39 Ill.Dec. 359, 404 N.E.2d at 954;McGinty,127 Ill.App.3d at 620, 82 Ill.Dec. 911, 469 N.E.2d at 447.

"Essentially, the [rescue] doctrine provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position and that the rescuer may incur injuries in doing so."Williams v. Foster,281 Ill.App.3d 203, 208, 217 Ill.Dec. 9, 666 N.E.2d 678, 681(1996).Whether the rescue doctrine applies is generally a question for the jury.SeeWilliams,281 Ill.App.3d at 208, 217 Ill.Dec. 9, 666 N.E.2d at 681;Seibutis,83 Ill.App.3d at 1016-17, 39 Ill.Dec. 359, 404 N.E.2d at 954-55.

Illinois courts have not decided whether the rescue doctrine allows a rescuer to bring a negligence action against a defendant who places himself in danger when the rescuer is injured in the attempted rescue.Seibutis,83 Ill.App.3d at 1015-16, 39 Ill.Dec. 359, 404 N.E.2d at 954.Thus, we look to decisions and authorities from outside this state.SeeIn re Marriage of Minix,344 Ill.App.3d 801, 805, 280 Ill.Dec. 256, 801 N.E.2d 1201, 1204(2003)(where there is an absence of Illinois authority, it is appropriate to look to the law of other states).

Every court reaching the issue has held that the rescue doctrine allows a rescuer to recover from defendants who place themselves in danger.SeeGanno v. Lanoga Corp.,119 Wash.App. 310, 80 P.3d 180(2003);Sears v. Morrison,76 Cal. App.4th 577, 90 Cal.Rptr.2d 528(1999);Saltsman v. Corazo,317 N.J.Super. 237, 721 A.2d 1000(1998);Hollingsworth v. Schminkey,553 N.W.2d 591(Iowa1996);Ouellette v. Carde,612 A.2d 687(R.I.1992);Lassiter v. Warinner,235 Va. 274, 368 S.E.2d 258(1988);Lowrey v. Horvath,689 S.W.2d 625(Mo.1985);Provenzo v. Sam,23 N.Y.2d 256, 296 N.Y.S.2d 322, 244 N.E.2d 26(1968);Henneman v. McCalla,260 Iowa 60, 148 N.W.2d 447(1967);Britt v. Mangum,261 N.C. 250, 134 S.E.2d 235(1964);Ruth v. Ruth,213 Tenn. 82, 372 S.W.2d 285(1963);Talbert v. Talbert,22 Misc.2d 782, 199 N.Y.S.2d 212(1960);Longacre v. Reddick,215 S.W.2d 404(Tex. Civ.App.1948);Lynch v. Fisher,34 So.2d 513(La.App.1948);Carney v. Buyea,271 A.D. 338, 65 N.Y.S.2d 902(1946);Brugh v. Bigelow,310 Mich. 74, 16 N.W.2d 668(1944).The Missouri Supreme Court explained:

"There is no logical basis for distinguishing between the situation in which recovery is sought against a defendant whose negligence imperiled some third party, and the situation in which recovery is sought against a defendant who negligently imperiled himself."Lowrey,689 S.W.2d at 628.

Commentators agree that the rescue doctrine can be used by rescuers to recover for damages they sustain while assisting rescued people who placed themselves in danger.See1 D. Dobbs, Torts§ 184, at 456(2001)("Even when the defendant puts only himself in danger, courts have...