Wallace v. Smyth

• Citation: 703 N.E.2d 416,301 Ill.App.3d 75
• Decision Date: 21 October 1998
• Docket Number: No. 1-97-0467,1-97-0467
• Parties: , 234 Ill.Dec. 555 Shandoulia WALLACE, individually and as administrator of the estate of Waketta Roy Wallace, deceased, Plaintiff-Appellant, v. John P. SMYTH, Paul Voltz, Laura Angelucci, Xavier Collier, individually and as agents and employees of Maryville Academy, and Maryville Academy, a not-for-profit corporation; Jill Jacobe, Jim Geidner, Dee Le Bel, R.N., individually and as employees of Maryville Academy, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 416

703 N.E.2d 416

301 Ill.App.3d 75, 234 Ill.Dec. 555

Shandoulia WALLACE, individually and as administrator of the estate of Waketta Roy Wallace, deceased, Plaintiff-Appellant, v. John P. SMYTH, Paul Voltz, Laura Angelucci, Xavier Collier individually and as agents and employees of Maryville Academy, and Maryville Academy, a not-for-profit corporation; Jill Jacobe, Jim Geidner, Dee Le Bel, R.N individually and as employees of Maryville Academy Defendants-Appellees.

No. 1-97-0467.

Appellate Court of Illinois,

First District, Third Division.

Oct. 21, 1998.

Rehearing Denied Dec. 4, 1998.

Stanley L. Hill & Associates, Chicago, for Plaintiff-Appellant.

Robert C. Yelton, III and Jeffrey Edward Kehl from Dowd & Dowd, Ltd., Chicago, for Defendants-Appellees.

Presiding Justice LEAVITT delivered the opinion of the court:

On July 16, 1996, Shandoulia Wallace filed her Second Amended Complaint alleging the defendants acted negligently, willfully, and wantonly with regard to Waketta Wallace (Waketta). The judge subsequently granted the defendants' motion to dismiss the negligence claims. She held Illinois' parental immunity doctrine shielded the defendants from liability for negligence because they stood in loco parentis to Waketta. We reverse and remand.

Twelve-year-old Waketta, a ward of Illinois', was, on July 11, 1989, temporarily residing at Maryville Academy (Maryville) for a 90-day diagnostic assessment which would yield recommendations for his future placement. Maryville was an independent contractor providing services to Illinois' Department of Children and Family Services (DCFS) for money. DCFS at all times remained the legal guardian of the children it placed at Maryville, including Waketta, and Maryville was required to consult DCFS staff members regarding important decisions affecting the children DCFS placed there. For instance, on June 13, 1989, Maryville obtained permission from Waketta's guardian at DCFS to administer psychotropic medications to Waketta. Also, on July 5, 1989, assistant Maryville program director Laura Angelucci obtained permission from Waketta's guardian at DCFS to take Waketta on a field trip to Wisconsin.

While at Maryville, Waketta stayed in the home of Paul Voltz who was the Maryville program manager. Waketta typically left the Voltz home to attend school for eight hours per day, then returned to the Voltz home. On July 11, 1989, at approximately 12:50 p.m., Waketta returned from school early. He reported to Voltz's office, and showed Voltz and Angelucci a note from his teacher stating Waketta had a "good day" at school.

At around 1:45 p.m., Jill Jacobe, a family educator at Maryville, came to Voltz's office and told him Waketta was in study hall where he was supposed to be reading, but instead closed his eyes and pretended to sleep. Angelucci called nurse Dee Le Bel and inquired whether Waketta's sleep could have resulted from his medication. Le Bel said she believed Waketta was feigning sleep, although she never personally saw Waketta. Voltz told Jacobe to send Waketta to his office.

Waketta reported to Voltz's office where Voltz confronted Waketta about his behavior. Waketta threatened to leave the home, then Voltz followed Waketta out of his office to the back door of the Voltz home. Voltz told Waketta because of his bad behavior he could not leave the home. The two returned to Voltz's office.

In Voltz's office, Waketta took a pick out of his pocket and began to pick his hair. Voltz asked him to put the pick away. After asking Waketta to put the pick down, Voltz said Waketta made threatening gestures toward him, but never touched Voltz or even stood up. Voltz walked over to Waketta and held Waketta's hands at the wrists crossed on Waketta's lap. According to Angelucci, who witnessed these events, Voltz had an awkward position with regard to Waketta and asked Waketta to stand up, which he did, and the two walked to the hallway.

Once they reached the hallway, Voltz called for assistance. Angelucci responded. When Angelucci reached the hallway, Waketta was on the floor, on his back with his arms crossed in front of him. Voltz held Waketta's wrists. Angelucci testified she "laid across [Waketta's legs] and he began to struggle * * *." Angelucci called for Jacobe to help her. Jacobe held Waketta's ankles while Angelucci remained on his legs. Waketta struggled, and the three counselors switched positions.

At some point before 3:00 p.m., the counselors flipped Waketta onto his stomach. Jim Geidner, another family counselor, said when he arrived sometime before 3:00, Waketta was on his stomach in a baskethold with his arms crossed at the abdomen and his wrists held firmly to the floor. Voltz was straddling Waketta's lower back and Angelucci was lying on Waketta's legs. Geidner replaced Angelucci on Waketta's legs. At 3:00, Xavier Collier came on duty and aided in the restraint.

This continued for approximately four hours in the middle of the hallway floor while other children walked past. Waketta struggled mainly when other children were present. In the course of his restraint, Waketta warned the counselors he had to urinate and that he might urinate upon himself. They continued to restrain him. Even after Waketta urinated upon himself, the counselors continued to restrain him.

According to Angelucci, after Waketta was flipped to his stomach, "he began to calm down again and was lying quietly." At approximately 6:00 p.m., Voltz instructed Angelucci to "get off [Waketta's] legs." Angelucci said she did so and immediately noticed Voltz checking Waketta's pulse and breathing. The counselors flipped Waketta onto his back and Voltz unsuccessfully attempted to resuscitate Waketta. Angelucci called an ambulance. Waketta was dead.

Dr. Robert J. Stein, chief forensic pathologist at the Cook County Medical Examiner's Office, performed Waketta's autopsy. He testified the cause of Waketta's death was asphyxia, a lack of oxygen. According to Dr. Stein, that finding is consistent with the scenario of Waketta lying face down with his arms crossed in front of his neck, and a 120-pound man on his back. Also, the autopsy revealed an abrasion on Waketta's elbow consistent with the scenario of Waketta lying face down struggling with his arms crossed at his chest.

Dr. Stein said with Waketta's arms crossed in front of his chest, and one person holding each arm, there was compression of Waketta's carotid, his vagus nerve, and internal jugular. Dr. Stein also found evidence of petechial hemorrhages, a larger hemorrhage, pulmonary edema, and pulmonary congestion. He explained petechial hemorrhages are small hemorrhages of capillaries almost always caused by strangulation. However, he noted no evidence of intentional strangulation existed here.

Waketta's death certificate indicated the cause of his death was positional asphyxiation and stress due to restraint. Dr. Kirschner, another doctor at the Cook County Medical Examiner's office, testified positional asphyxiation "is a condition where an individual requires a large intake of air usually because they are excited or in an emotional state, and they are breathing rapidly, and they are in a position that does not allow them to breathe rapidly or deeply enough to get sufficient air into their lungs to maintain respirations."

Denise Kane, Inspector General for DCFS, testified she preliminarily investigated Waketta's death. She learned Waketta was diagnosed as hyperactive, emotionally disturbed, and possibly suffering from attention deficit disorder while at the Old Orchard Hospital just prior to his arrival at Maryville. These psychological problems left Waketta unable to stay on task for very long, and made him easily distractible. Ms. Kane also testified Waketta was going through a tremendous growth spurt at the time of his death, causing him to tire easily. This resulted from his internal organs, including his heart, growing rapidly, which caused him to expend massive amounts of energy. Ms. Kane said this certainly should have been considered by Nurse Le Bel and the other counselors who assessed Waketta's condition on July 11, 1989.

Finally, Ms. Kane said, in her expert opinion, the situation was not an emergency, and, the restraint used on Waketta was not effective, was not proportionate to his behavior, was not temporary, and was inappropriate because it occurred in a public hallway with other children watching. She further said alternatives to physical restraint were never explored by the counselors.

After hearing this testimony, the jury found for the defendants on the willful and wanton counts. The only issue Ms. Wallace raises for our review is whether the judge erred as a matter of law in granting the defendants' motion to dismiss her negligence counts pursuant to 735 ILCS 5/2-615 (West 1996).

A cause of action should not be dismissed on the pleadings unless it clearly appears no set of facts can be proved which would entitle the plaintiff to relief. Fitzgerald v. Chicago Title & Trust Co., 72 Ill.2d 179, 187, 20 Ill.Dec. 581, 380 N.E.2d 790 (1978). We review orders granting motions to dismiss de novo. Lawson v. City of Chicago, 278 Ill.App.3d 628, 634, 215 Ill.Dec. 237, 662 N.E.2d 1377 (1996). Because we find Ms. Wallace's complaint alleged facts which tended to establish Maryville was not in loco parentis regarding Waketta, we reverse the judge's order dismissing Ms. Wallace's negligence counts, and remand.

The term in loco parentis implies "a standing in the place of a parent; one charged fictitiously with parents' rights, duties, and responsibilities." Bland v. Department of Children & Family Services, 141 Ill.App.3d 818, 822, 96 Ill.Dec. 122, 490 N.E.2d 1327 (1986). At common law, in loco parentis status belonged to persons who put themselves in a parent's shoes by assuming all parental obligations toward a child without going through the formalities of legal adoption. See Hawkey v. United States, 108...