ATWOOD v. ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES (2009)

ORDER

This cause coming to be heard on the Respondent's Motion to Dismiss the matter having been fully briefed and argued and the Court being fully advised in the premises, the Court finds the following:

The Claimant, Sarah Atwood, Administrator of the Estate of Stephanie Collins, deceased, filed the instant complaint August 24, 2001 and alleges negligence, reckless disregard and willful and wanton misconduct on the part of the Department in connection with its role in the placement of the now deceased minor Stephanie Collins (“Stephanie”), who was killed by her foster parent, Paul Morris, on August 28, 1999. Claimant further alleges that the Georgia Department of Human Resources, and a private adoption company, Adoption Services, Inc., worked in concert with the Department in placing Stephanie in the foster care of Paul Morris.

Claimant filed a wrongful death complaint in the Superior Court of Morgan County, State of Georgia, against the Georgia Department of Human Services, Adoption Services, Inc. and Paul Morris and Sheree Morris. Adoption Services, Inc., located in Georgia, conducted the home study which was relied upon in placing Stephanie in the Georgia foster home with Paul and Sheree Morris, who were residents and licensed foster parents of the State of Georgia. Pursuant to an interstate compact agreement the Department's investigative and monitoring role in the foster placement process was undertaken by the Georgia Department of Human Services which worked with, and relied upon, Adoption Services, Inc. Stephanie was placed in foster care with Paul and Sheree Morris, who resided in Georgia. Stephanie was killed by Paul Morris in their foster home located in Georgia. On May 9, 2002, Claimant voluntarily dismissed her case against the Georgia Department of Human Services, Adoption Services, Inc., Paul Morris and Sheree Morris in the Superior Court of Morgan County, State of Georgia.

DISCUSSION

Claimant may not maintain her claim against the State of Illinois in this forum when she has voluntarily elected to dismiss all claims against other known tortfeasors. The exhaustion of remedies rule is an inescapable requirement for filing an action in this forum. Asbury v. State, 50 Ill.Ct.Cl. 184, 185 (1998).

In Asbury, the claimant brought suit on behalf of his deceased daughter on the basis that the respondent had negligently returned the decedent to her natural mother, who subsequently murdered the child. This Court held that the claimant in Asbury had failed to exhaust his remedies against the deceased child's mother (and another individual who had allegedly participated in the child's murder) and therefore had failed to meet a mandatory requirement for maintaining an action in this forum. Asbury v. State, 50 Ill.Ct.Cl. at 186.

Like the claimant in Asbury, in this case Claimant has failed to exhaust her remedies as against the other known tortfeasors, namely: Paul Morris, who killed Stephanie, his wife Sheree Morris, Georgia's Department of Human Services, and the private adoption company Adoption Services, Inc. Although Claimant initially brought a claim against these other four known tortfeasors, she voluntarily dismissed that suit May 9, 2002. Claimant's voluntary dismissal did not result from settlement of her claims with any of the four other known tortfeasors. Therefore, Claimant's claim in this forum must be dismissed for failure to exhaust remedies against other known tortfeasors. Asbury v. State, 50 Ill.Ct.Cl. at 186.

Additionally, because the Claimant abandoned her claims against the other four known tortfeasors by voluntary dismissal, her complaint here should be dismissed with prejudice. Hughes v. State, 49 Ill.Ct.Cl. 56 (1997). In Hughes, the claimant brought a negligence action against the State on the basis that Scalafani had been killed in an auto accident which the claimant alleged was caused by negligent design of the road and maintenance. Hughes v. State, 49 Ill.Ct.Cl. at 57-58. Claimant initially filed a suit against the municipality, City of Chicago (the “City”) asserting identical theories of liability as asserted against the State in the Court of Claims. Hughes v. State, 49 Ill.Ct.Cl. at 58. The City filed a motion for summary judgment which was granted in part and denied in part. Id at 58. The Court granted the motion with respect to the allegation of negligent design, but denied the motion with respect to negligent maintenance. Id.

The claimant filed a voluntary dismissal of the remaining action against the City and sought to proceed against the State of Illinois in the Court of Claims. Hughes v. State, 49 Ill.Ct.Cl. at 58. This Court dismissed the claimant's claim with prejudice because the claimant chose not to exhaust the remedies as against the other known tortfeasor, the City. Hughes v. State, 49 Ill.Ct.Cl. at 60. In choosing to abandon the claim against the City, the claimant had effectively sought to circumvent the exhaustion of remedies requirement, which was not allowed and required the dismissal of their case. Id at 60.

As in Hughes, the Claimant in the instant case has filed suit against the other known tortfeasors in Georgia and subsequently filed a voluntary dismissal of that Georgia forum case. Like the claimant in Hughes, the Claimant here seeks to proceed in the case against the State of Illinois after abandoning the alternative remedies available from the other four known tortfeasors. “The exhaustion requirement is not an option to be accepted or rejected by the Claimants. It is mandatory.” Hughes v. State, 49 Ill.Ct. Cl. at 60. Because Claimant has abandoned her claim by voluntary dismissal she has failed to exhaust alternative remedies against the four other known tortfeasors. Claimant has effectively sought to circumvent the exhaustion requirement and therefore this case must be dismissed with prejudice.

Claimant also failed to petition the claims advisory board of the State of Georgia. This is an administrative remedy where an individual may petition the claims advisory board and that board will make a recommendation to the state legislature. The state legislature can follow or refuse to follow the recommendation.

IT IS HEREBY ORDERED:

Respondent's motion to dismiss Claimant's complaint for failure to exhaust alternative remedies from other known tortfeasors is granted pursuant to 735 ILCS 5/2-619(a)(9) of the Illinois Code of Civil Procedure and sections 790.60 and 790.90 of the Court of Claims Regulations, 74 Ill.Admin. Code 760, 790.

SPRAGUE, C.J.