Wallace v. Smyth

• Decision Date: 19 December 2002
• Docket Number: No. 93144.,93144.
• Citation: 786 N.E.2d 980,203 Ill.2d 441,272 Ill.Dec. 146
• Parties: Shandoulia WALLACE, Indiv. and as Adm'r of the Estate of Waketta Roy Wallace, Deceased, Appellant, v. John P. SMYTH et al., Appellees.
• Court: Illinois Supreme Court

786 N.E.2d 980

203 Ill.2d 441

272 Ill.Dec. 146

Shandoulia WALLACE, Indiv. and as Adm'r of the Estate of Waketta Roy Wallace, Deceased, Appellant, v. John P. SMYTH et al., Appellees.

No. 93144.

Supreme Court of Illinois.

December 19, 2002.

Rehearing Denied March 31, 2003.

Stanley L. Hill, Chicago, for appellant.

Jeffrey Edward Kehl and Robert C. Yelton III, of Yelton & Kehl, Ltd., Chicago (John C. O'Malley and Francis D. Morrissey, of counsel), for appellees.

Patrick T. Murphy, Cook County Public Guardian, Chicago (Peter J. Schmiedel, Charles P. Golbert and Jill Runk, of counsel), for amicus curiae Office of the Cook County Public Guardian.

Bruce A. Boyer and Stacey E. Platt, Chicago, for amicus curiae ChildLaw Center & ChildLaw Clinic of the Loyola University School of Law.

Robert A. Clifford, Chicago, for amicus curiae Clifford Law Offices.

James D. Montgomery and Thomas C. Marszewski, Chicago, for amicus curiae Cochran, Cherry, Givens, Smith & Montgomery, L.L.C.

Thomas F. Geraghty, Chicago, for amicus curiae Children & Family Justice Center of the Northwestern University School of Law.

James D. Montgomery and Thomas C. Marszewski, of Cochran, Cherry, Givens, Smith & Montgomery, and Bruce R. Pfaff, Chicago, for amicus curiae Illinois Trial Lawyers Association.

James A. Serritella and James C. Geoly, of Burke, Warren, MacKay & Serritella, P.C., Chicago, for amicus curiae Illinois Child Care Association.

Justice FITZGERALD delivered the opinion of the court:

The issue in this case is whether, in the wake of our decisions to retain a limited form of parental immunity in Cates v. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 619 N.E.2d 715 (1993), and to extend this immunity to foster parents in Nichol v. Stass, 192 Ill.2d 233, 248 Ill.Dec. 931, 735 N.E.2d 582 (2000), the defendants, a residential child care facility and seven of its employees, enjoyed a similar immunity from the plaintiff's negligence claims after her son died in their care. We conclude that because the corporation-child relationship does not mirror the parent-child relationship, the defendants do not have parental immunity. We reverse the appellate court and the circuit court, and we remand for further proceedings.

BACKGROUND

On June 12, 1989, the Illinois Department of Children and Family Services (DCFS) placed one of its wards, 12-year-old Waketta Roy Wallace (Roy), at Maryville Academy (Maryville) for a 90-day diagnostic assessment regarding his future placement. Maryville is a not-for-profit corporation that operates a licensed residential child care facility for state wards. In 1989, Maryville cared for approximately 500 children.

A month later, on July 11, 1989, Roy reported to the office of Maryville program manager Paul Voltz after school. Voltz confronted Roy about sleeping in study hall. Roy made threatening gestures, and Voltz removed him to an adjacent hallway. Once there, Voltz summoned assistant program manager Laura Angelucci and family educator Jill Jacobe to assist him in restraining Roy. Family educator Jim Geidner also participated for a short time until his shift ended, when he was replaced by family educator Xavier Collier. Eventually, after a struggle, Roy was placed on his stomach with his arms crossed in front of his abdomen and his wrists held to the floor. The restraint continued for more than four hours and ended in Roy's death from positional asphyxia.

Roy's mother, Shandoulia Wallace, filed a four-count complaint in the circuit court of Cook County against Maryville, its executive director Reverend John Smyth, Voltz, Angelucci, Collier, Geidner, Jacobe, and nurse Dee LeBel. Wallace alleged that the defendants' negligence, and, alternatively, willful and wanton misconduct, proximately caused Roy's death. The defendants filed a motion to dismiss Wallace's negligence claims; they asserted the parental immunity doctrine shielded them from liability. The trial court agreed and dismissed these claims, stating: "I am convinced from the cases that the defendants have tendered to me, and from the arguments made, and everything that I know about the case that Maryville was acting de facto as loco parentis for this child. * * * I do not believe that Maryville can be sued under theories of ordinary negligence." The case proceeded to trial on Wallace's willful and wanton misconduct claims. After a jury returned a verdict for the defendants, Wallace appealed the dismissal of her negligence claims.

The appellate court reversed. Wallace v. Smyth, 301 Ill.App.3d 75, 234 Ill.Dec. 555, 703 N.E.2d 416 (1998). The court noted, "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." Wallace, 301 Ill.App.3d at 80, 234 Ill.Dec. 555, 703 N.E.2d 416. After reviewing Wallace's negligence allegations, the court rejected the defendants' argument that Wallace conceded they stood in loco parentis by pleading that Maryville was licensed by the state to house, care for, and educate children. Wallace, 301 Ill.App.3d at 80, 234 Ill.Dec. 555, 703 N.E.2d 416. The court held that housing, caring for, and educating a child do not confer in loco parentis status. Wallace, 301 Ill.App.3d at 80, 234 Ill.Dec. 555, 703 N.E.2d 416. According to the appellate court, teachers are in loco parentis with regard to students under the School Code, but no statutory equivalent exists to insulate an entity like Maryville against allegations that it negligently disciplined a child. Wallace, 301 Ill.App.3d at 80-81, 234 Ill. Dec. 555, 703 N.E.2d 416. Rather, in conjunction with Illinois' statutory scheme, DCFS bore ultimate responsibility for traditional parental functions with regard to Roy. Wallace, 301 Ill.App.3d at 81, 234 Ill.Dec. 555, 703 N.E.2d 416, citing 89 Ill. Adm.Code §§ 359.7, 359.9 (1996). The appellate court concluded that Wallace's allegations did not show Maryville stood in loco parentis to Roy and that the trial court improperly dismissed her negligence claims. Wallace, 301 Ill.App.3d at 81, 234 Ill.Dec. 555, 703 N.E.2d 416.

The defendants filed a petition for leave to appeal. While this petition was pending, we decided Nichol. Accordingly, we denied the defendant's petition and remanded this cause to the appellate court for additional consideration in light of Nichol. See Wallace v. Smyth, 191 Ill.2d 562, 249 Ill.Dec. 176, 735 N.E.2d 1001 (2000).

On remand, the appellate court discussed both Cates and Nichol and stated:

"The similarities between foster parents and defendants are obvious. The wards that foster parents and facilities such as Maryville provide care for are both under the ultimate legal and financial control of DCFS. Further, both foster parents and Maryville assume physical custody of the minors in their care. They both provide day-to-day housing, care, medical attention, supervision, and discipline to those in their care pursuant to extensive DCFS regulations. Those are exactly the types of duties and responsibilities found in Cates and Nichol to be inherent to the parent-child relationship. * * * Both Cates and Nichol make clear that what matters most for purposes of extending immunity is whether the party to whom it is being extended exercises a substantial amount of parental discretion in discipline, supervision, and care of minors. * * * [W]e cannot say that there is meaningful difference between foster parents and residential child care institutions such as Maryville so as to preclude the limited form of parental immunity discussed in Cates and Nichol from applying to such institutions and those who work there." 327 Ill.App.3d 411, 419-20, 260 Ill.Dec. 817, 762 N.E.2d 83.

The court vacated its previous opinion and remanded to allow Wallace to amend her complaint and allege facts which would preclude parental immunity. 327 Ill. App.3d at 421, 260 Ill.Dec. 817, 762 N.E.2d 83.

In dissent, Justice Cahill stated:

"The opinion in Nichol [citation] is a narrow one. * * * Nichol extends a limited form of parental immunity to foster parents. The role of a natural parent and a foster parent in the life of a child is so often similar our supreme court concluded that it would be anomalous to reject a limited form of personal immunity for foster parents. The immunity shields one person in his or her relationship with one child. To now broaden limited immunity to include a corporation, however dedicated, however essential its work, strikes me as a public policy decision for the legislature." 327 Ill.App.3d at 422, 260 Ill.Dec. 817, 762 N.E.2d 83 (Cahill, J., dissenting).

We allowed Wallace's petition for leave to appeal. See 177 Ill.2d R. 315.¹

ANALYSIS

A motion to dismiss under section 2-615(a) of the Civil Practice Law (735 ILCS 5/2-615(a) (West 2000)) tests the legal sufficiency of the plaintiff's claim, while a motion to dismiss under section 2-619(a) (735 ILCS 5/2-619(a) (West 2000)) admits the legal sufficiency of the plaintiff's claim, but asserts certain defects or defenses outside the pleading which defeat the claim. See Provenzale v. Forister, 318 Ill.App.3d 869, 878, 252 Ill.Dec. 808, 743 N.E.2d 676 (2001); Joseph v. Chicago Transit Authority, 306 Ill.App.3d 927, 930, 240 Ill.Dec. 46, 715 N.E.2d 733 (1999). Consistently with the designation the defendants gave to their motion to dismiss, the trial court considered the motion under section 2-615. This motion, however, should have been brought under section 2-619(a)(9) because the defendants argued that the plaintiff's negligence claim was barred by "other affirmative matter," namely, parental immunity. 735 ILCS 5/2-619(a)(2) (West 2000); see Nichol, 192 Ill.2d at 235, 248 Ill.Dec. 931, 735 N.E.2d 582. We will address the merits of this appeal, despite the defendants' error, because Wallace has suffered no prejudice from the defendants' improper designation. See Storm & Associates, Ltd. v. Cuculich, 298 Ill.App.3d...