AMERICAN FAMILY MUTUAL INSURANCE COMPANY v. STATE OF ILLINOIS (2018)

ORDER

THIS MATTER coming to be heard on Respondent's Motion to Dismiss, and the Court being fully advised in the premises,

THE COURT FINDS:

BACKGROUND

On December 25, 2011, a fire occurred on the property of Lisa and Joseph Morris at 16787 Hazelwood Drive in Plainfield, Illinois. Complaint, at ¶ 7. The Complaint alleges that this fire was ultimately attributed to H.G., a minor and ward of the State of Illinois who resided with his foster parents in Plainfield. Id. at ¶¶ 3, 9. As a result of this fire at the Morris property, American Family Mutual Insurance (American Family) paid over $50,000.00 to its insureds as a result of various insurance policies held by the Morrises. Id. at ¶¶ 16-26.

At the time of the incident, Richard Calica was the director of the Illinois Department of Children and Family Services (DCFS) and Jean Ortega-Pirone was an employee of DCFS.⁴ Id. at ¶ 5. DCFS is a State agency that was created to “provide social services to children and their families, to operate children's institutions, and to provide certain other rehabilitative and residential services as enumerated in [the Children and Family Services Act].” 20 ILCS 505/1.

On December 17, 2013, American Family Mutual Insurance, as subrogee of Lisa and Joseph Morris, filed a Complaint in the Court of Claims seeking to recover for the amounts paid on behalf of its insureds as a result of an arson allegedly caused by H.G., a minor and ward of the State. Complaint, ¶¶ 3, 9, 16, 17-26. In its Complaint, American Family alleged multiple causes of action against an array of respondents, including the director of DCFS at the time, Richard Calica, an employee of DCFS, Jean Ortega-Pirone, and the Minor's Parents.⁵ Claimant based its only claims against DCFS upon a theory of respondeat superior.

STANDARD OF REVIEW

A § 2-615 motion tests the legal sufficiency of the complaint. 735 ILCS 5/2-615; Cowper v. Nyberg, 2015 IL 117811, ¶ 12. A § 2-615 motion to dismiss “alleges only defects on the face of the complaint” and asks “whether the allegations of the complaint, when taken as true and viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted.” Turner v. Memorial Medical Center, 233 Ill. 2d 494, 499 (2009).

A § 2-619 motion, on the other hand, functions to “dispose of issues of law and easily proved issues of fact at the outset of litigation.” Van Meter v. Darien Park Dist., 207 Ill. 2d 359, 367 (2003). When considering a motion to dismiss brought under § 2-619, the court must accept all well-pleaded facts as true as well as reasonable inferences that may arise from those facts. Patrick Engraving, Inc. v. City of Naperville, 2012 IL 113148, ¶ 32. All pleadings and supporting documents must be viewed in the light most favorable to the nonmoving party when a court rules on the motion. Van Meter, 207 Ill. 2d at 367.

A motion with respect to the pleadings brought pursuant to § 2-615 may be filed in conjunction with a motion for involuntary dismissal or other relief under § 2-619. 735 ILCS 5/2-619.1. A combined motion under § 2-619.1 shall be brought in specific parts, with each part limited to either §§ 2-615 or 2-619. 735 ILCS 5/2-619.1.

OPINION

1. This Court lacks jurisdiction over the minor's parents and Counts V and VI of the Complaint.

For the Court of Claims “to have subject matter jurisdiction over a claim, such jurisdiction must be granted…by statute.” Bingaman v. Ill. Dept. of Human Services, 61 Ill. Ct. Cl. 238, 241 (2009). As a statutory court, the Court has “only those remedial powers and only that adjudicatory jurisdiction that is granted to [it] by the General Assembly.” Wulf v. Illinois, 51 Ill. Ct. Cl. 383, 388 (1999). The Court has exclusive jurisdiction to hear and determine “[a]ll claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit.” 705 ILCS 505/8(d). In order for the Court to maintain jurisdiction over a claim, it is imperative to establish that the claim is in fact against the State.

The Legislature's purpose in creating the Court was to “hear claims and demands against the State for which no other forum had been provided.” Bingaman, 61 Ill. Ct. Cl. at 241. The Court was never intended to “take jurisdiction of matters the determination of which had been developed upon other agencies.” Id. (citing Michigan Central v. Illinois, 7 Ill. Ct. Cl. 133 (1933)). Indeed, the Court's historical purpose is to “hear and determine” claims against the State that are barred in the constitutional courts by sovereign immunity. Garde v. Bd. of Governors of Southern Ill. Univ., 53 Ill. Ct. Cl. 245 (2001).

In Count V of the Complaint, American Family brings a failure to supervise claim against the Minor's Parents and alleges that “Defendants [sic] MINOR'S PARENTS were aware of specific instances of similar conduct by H.G. sufficient to put them on notice that H.G. was likely to cause the property damage at the heart of the instant matter.” Complaint, ¶ 9 [sic]. American Family further alleges that “Defendant's MINOR PARENTS had the opportunity to control H.G. to prevent him from causing the property damage at the heart of the instant matter, but they failed to do so.” Id. at ¶ 21. Count V expressly seeks that a judgment be entered against the Minor's Parents. Id. Similarly, Count VI seeks a judgment against the Minor's Parents for violation of the Parental Responsibility Law. There is no request that a judgment be entered against the State of Illinois with respect to either of these counts.

Claimant's causes of action against the Minor Parent's must be dismissed, as this Court has no jurisdiction over individuals. Smith v. Illinois, 60 Ill. Ct. Cl. 294, 295 (2007). Moreover, Respondent cannot be subject to liability based upon the acts or omissions of the Minor's Parents, as the Complaint is devoid of any allegation showing that the Minor's Parents were either employees or agents of the State. Simply being a foster parent, without more, is insufficient to establish either an employee or agency relationship with the State. See Nichol v. Stass, 192 Ill. 2d 233, 238-40 (2000).

For these reasons, Counts V and VI of Claimant's Complaint are dismissed with prejudice for lack of subject matter jurisdiction.

2. Counts I – IV of Claimant's Complaint are barred by public official immunity.

Claimant's Complaint brings no independent claim against the State of Illinois. Instead, Claimant purports to sue individual respondents in the Court of Claims, advancing only a respondeat superior theory of liability against the Department of Children and Family Services. Claimant's causes of action against Respondent premised upon respondeat superior are barred by public official immunity.

According to the Complaint, Calica and Ortega-Pirone were both bound by the same duties to exercise a reasonable degree of care and caution in placing H.G. in a suitable foster home under the care of competent foster parents and to exercise a reasonable degree of care and caution in notifying H.G.'s foster parents of any of his destructive or violent tendencies so H.G.'s foster parents could prevent such tendencies from resulting in property damage or personal injuries. Complaint, ¶¶ 10-11, 9-10 [sic]. The Complaint further alleges that Calica and Ortega-Pirone carelessly and negligently placed H.G. in a foster home where he was often left unsupervised, was within reach of dangerous instrumentalities, and was able to start the fire complained of on December 25, 2011. Id. at ¶¶ 12, 11. According to Claimant, Calica and Ortega-Pirone were negligent in failing to warn H.G.'s foster parents of his violent and destructive tendencies; in placing H.G. in the care of foster parents that were incapable of monitoring and supervising him; in failing to adequately investigate H.G.'s foster parents to see if they were fit and competent; in placing H.G. in the care of foster parents that let him go in and out of the foster home as he pleased; and failing to supervise H.G. to make sure his foster living arrangement was adequate. Id. at ¶¶ 14, 13.

Based upon these allegations, any negligence on the part of Calica and Ortega-Pirone stems out of acts within their official discretion as State employees or officials – acts protected by public official immunity.

“The doctrine of public official immunity is ‘based upon the policy that public officials should be free to exercise their judgment according to their best perception of public needs.”’ Midamerica Trust Co. v. Moffat, 158 Ill. App. 3d 372, 375 (5th Dist. 1987) (citing Hanzel Construction, Inc. v. Wehde & Southwick, Inc., 130 Ill. App. 3d 196, 200 (2nd Dist. 1985)). Public official immunity is invoked when an official's act is discretionary and governmental in character. Id. at 376.

In Midamerica Trust Co. v. Moffat, 158 Ill. App. 3d 372 (5th Dist. 1987), the defendant was employed by DCFS as a social worker. Defendant's employer was granted guardianship of two children following the agency's allegations that the children were neglected by their natural mother. Id. at 374. Plaintiff alleged that the defendant knew that the children's various needs had to be monitored and that she committed one or more willful and wanton acts in returning the children to their natural mother and recklessly disregarded her duty to protect the children from neglect. Id. Plaintiff specifically complained that the defendant knew of certain detrimental conditions yet did nothing to take remedial action, consciously disregarding the health, safety, and welfare of the children and her duty to those children. Id.

The court in Midamerica Trust ultimately determined that the defendant was entitled to the protections of public official immunity. Id. at 378. Defendant “was at all relevant times acting for an agency charged by statute to provide certain welfare services and charged by the juvenile court to undertake the guardianship of [the children].” Id. at 377 (internal citations omitted). As noted by the court, any duty that the defendant had arose solely out of her governmental employment. Id. The court expressly found that “the defendant's actions as complained of in plaintiff's complaint involved an exercise of discretion in connection with responsibilities flowing from her status as a government employee.” Id. at 378. There was no allegation that the defendant was a certified social worker, that she was licensed by the State in any capacity, or that she held herself out as a State-licensee, and the court was unconvinced by any argument that defendant had an individual duty; instead, it was determined that “[a]ny obligations of the defendant can only be inferred by virtue of her employment with the State.” Id.

As reasoned in Midamerica Trust and based on the allegations before the Court, the decision to place H.G. in this particular foster home was a discretionary decision – and essentially a governmental decision – made by DCFS administrators. This decision was inherently related to DCFS' mission “to provide social services to children and their families, to operate children's institutions, and to provide certain other rehabilitative and residential services as enumerated in this Act.” 20 ILCS 505/1.

Similarly, the allegations in the Complaint at bar do not establish that the acts or omissions of either State employee stemmed from anything but their State employment. As such, they are entitled to public official immunity and this suit against the State based upon the actions of its employees should be dismissed. See Rosenbaum v. Illinois, 30 Ill. Ct. Cl. 560, 564 (1975) (recognizing public official immunity in the Court of Claims and applying the doctrine to the discretionary action of various judges).

Therefore, Counts I – IV are dismissed. The actions of Director Calica and Ortega-Pirone complained of here were protected by public official immunity.

3. Claimant's Complaint must be dismissed as Claimant has failed to allege any duty running from Respondent to Claimant.

“[I]n order to maintain a cause of action for negligence, a claimant must allege facts establishing the existence of a duty, a breach of that duty, and an injury which proximately resulted from the breach.” Gillepsie v. Illinois, 63 Ill. Ct. Cl. 240 (2011). Specific facts are required “to bring a claim within a legally recognized cause of action” and mere conclusions of law or fact are insufficient. Simpkins v. CSX Transp., Inc., 2012 IL 110662, ¶ 26.

The crux of the duty analysis is to determine “whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 436 (2006). That “relationship” is typically determined by the consideration of four factors: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of the placing that burden on the defendant. Simpkins, 2012 IL 110662, ¶ 18.

Thus, every duty analysis starts “with the threshold questions of whether the defendant, by his act or omission, contributed to a risk of harm to this particular plaintiff.” Id., ¶ 21. If so, the aforementioned factors must be weighed to determine whether defendant owed a duty to the plaintiff. If the defendant did not contribute to a risk of harm, a plaintiff may still establish a duty by showing a “special relationship” existed between plaintiff and defendant. Id. In the absence of a special relationship, no affirmative duty to protect or rescue a stranger typically exists. Id. ¶ 19.

The Complaint before the Court alleges no special relationship or affirmative duty to protect and therefore requires the consideration of the four factors above to determine if a duty existed. Yet, the Complaint does nothing to illustrate that Claimant (or Claimant's subrogors) and the Respondent had such a relationship that Respondent owed Claimant a duty of reasonable conduct. As this Court has recognized, “[i]t is not sufficient that there has been a breach of some duty or obligation unless such duty or obligation was one owing to the person injured.” Dingledine v. Illinois, 31 Ill. Ct. Cl. 41 (1976).

Furthermore, “in a negligence action, knowledge of the facts out of which the duty to act arises is essential.” Adams v. Northern Ill. Gas Co., 211 Ill. 2d 32, 48 (2004). For an act or omission to “be regarded as negligent, the defendant must have knowledge, or ought to have known from the circumstances that the allegedly negligent act or omission endangered another.” Id. This question is fundamental to the “reasonably foreseeable” requirement imposed by the duty analysis, as it currently exists. See Simpkins, 2012 IL 110662, ¶ 25.

In this case, the existence of any duty would be predicated on DCFS' knowledge that H.G. had committed arson prior to December 25, 2011, or, at the very least, that H.G. had a propensity to commit arson. See Simpkins, 2012 IL 110662, ¶ 25 (existence of a duty depended on defendant's knowledge of the nature of asbestos decades ago). The Complaint alleges nothing that would suffice to impute knowledge of such to DCFS.

The only allegations dealing with H.G.'s unexplained and unestablished “dangerous propensities” are conclusory and devoid of any “facts specific enough to analyze whether, if those facts were proven true, defendant would have been able to reasonably foresee plaintiffs injury.” Id. at ¶ 27; see also Id. at ¶ 28. Indeed, as a basis for the State employees' supposed negligence, Claimant simply alleges that they had a duty to warn H.G.'s foster parents of any of his destructive or violent tendencies, without in fact alleging that those tendencies existed -much less that Respondent knew of those proclivities. Complaint, at ¶¶ 11, 10. The Complaint certainly says nothing about H.G.'s propensity to commit arson.

Thus, there is not a single allegation that would lead one to conclude that Claimant's injury was reasonably foreseeable; rather, Claimant relies on conclusory and insufficient allegations in an attempt to show as much. Claimant has failed to demonstrate that Respondent owed it (or its subrogors) any duty.

Also relevant to the duty inquiry are the policy considerations enumerated in the parts three and four of four-part test detailed above; these policy considerations compel a finding of no duty in the case at bar. What Claimant fundamentally seeks is to place liability on the State for injuries to unknown third parties caused by foster children in the care of foster parents. Not only could this severely hamper the State's already difficult task in placing vulnerable children in homes that can provide more focused care, it essentially opens the State up to endless liability. The State simply does not have the resources to monitor the everyday actions of every foster child and certainly cannot prevent every injury caused by a foster child, especially when those foster children are under the immediate care of other adults. It is apparent from Claimant's allegations that the foster parents' acts and omissions are in fact being attacked (though, again, there are no specific factual allegations showing their purported inabilities and negligence). The magnitude of guarding against the potential criminal acts of every foster child would be crippling, requiring the State to take on either significant manpower to constantly monitor its wards or be subject to damages suffered by individuals with no relation to the foster children.

Finding a duty to unknown third parties with no apparent relationship to the foster child complained of creates limitless vulnerabilities for the State in a situation where it already faces significant difficulties. Simply put, Claimant has failed to establish a legal duty running from Respondent to Claimant; Counts I - IV of Claimant's Complaint are dismissed.

IT IS HEREBY ORDERED:

The motion of Respondent, STATE OF ILLINOIS, is GRANTED. Claimant's claim is DISMISSED with prejudice.

FOOTNOTES

4.  American Family alleges that Jean Ortega-Pirone was an employee of DCFS and the legal guardian of H.G., but also alleges that H.G. was a ward of the State during the relevant time.

5.  “Minor's Parents” appears to refer to H.G.'s foster parents.

BIRNBAUM, CJ.