McGee v. Heimburger

NO. 4-96-0486

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

MARY McGEE, Individually and as ) Appeal from
personal representative of the ) Circuit Court of
Estate of TRAVIS McGEE, Deceased, ) Champaign County
Plaintiff-Appellant, ) No. 95L975
v. )
JOHN A. HEIMBURGER, )
Defendant, )
and )
JAMES W. HEIMBURGER and JUDY HEIMBURGER,) Honorable
Respondents in Discovery- ) George S. Miller,
Appellees. ) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In June 1995, plaintiff, Mary McGee (McGee), indi-
vidually and as personal representative of the estate of Travis
McGee, sued defendant, John Heimburger, to recover damages for
Travis' injuries and his wrongful death that resulted when John
shot him. McGee also named John's parents, James and Judy
Heimburger, as respondents in discovery, pursuant to section 2-
402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-402 (West
1994)).
In January 1996, McGee filed a motion to convert the
respondents in discovery to defendants. McGee sought to allege a
cause of action against Judy pursuant to section 4(c) of the
Firearm Owners Identification Card Act (Act) (430 ILCS 65/4(c)
(West 1992)) and against both James and Judy pursuant to section
3 of the Parental Responsibility Law (Responsibility Law) (740
ILCS 115/3 (West 1992)). In February 1996, the trial court
conducted a hearing on McGee's motion to convert and denied it.
McGee appeals, arguing that the trial court erred by
denying her motion to convert the respondents in discovery to
defendants because (1) Judy is liable pursuant to section 4(c) of
the Act; and (2) McGee established probable cause that John was
an unemancipated minor pursuant to section 3 of the Responsi-
bility Law.
We affirm in part, reverse in part and remand.
I. BACKGROUND
On October 2, 1992, Judy executed written consent,
pursuant to section 4(a)(2)(i) of the Act (430 ILCS 65/4(a)(2)(i)
(West 1992)), authorizing John (her then-minor son, born June 17,
1975) to possess and acquire firearms and firearm ammunition.
Judy gave her written consent as part of John's application for a
firearm owner's identification (FOID) card. In June 1993, the
Illinois State Police denied John's application because of his
prior misdemeanor conviction for other than a traffic violation.
On July 7, 1993, John shot Travis with a firearm and killed him.
At the February 1996 hearing on McGee's motion to
convert, Champaign police detective Zane Ziegler testified that
he interviewed John shortly after his arrest (a few days after
the shooting). During that interview, John stated that he went
home after the shooting; John further gave his parent's address
when asked where his "home" was located. In her discovery
deposition, Judy testified that John had moved from the family
residence to a shared apartment sometime in early June 1993. She
did not know whether he planned to stay "full[-]time" in the
apartment. She testified that between early June 1993 and July
7, 1993, John did not pay all of his personal living expenses.
However, she also said that she did not give John any living
expenses during that time. She and her husband provided John
with a vehicle for his use on a daily basis. They also main-
tained a furnished bedroom for John, which he frequently used.
John also continued to receive some mail (magazines) at his
parents' residence. During June and July 1993, John worked on
the family farm in exchange for other services, such as car
insurance payments; he was not employed elsewhere at the time of
the shooting.
After considering the evidence and the parties' argu-
ments, the trial court denied McGee's motion to convert respon-
dents in discovery to defendants. The court found that (1)
section 4(c) of the Act--which McGee cited as the basis for her
claims against Judy--"creates liability in the parent upon the
parent's written consent on the application only if the applica-
tion results in an effective [FOID] card being issued"; and (2)
McGee failed to establish probable cause that John was an uneman-
cipated minor residing with his parents at the time of the
shooting pursuant to section 3 of the Responsibility Law.
 II. ANALYSIS
A. Motion To Convert Judy to a Defendant
Pursuant to the Act
McGee first argues that the trial court erred by
denying her motion to convert Judy from a respondent in discovery
to a defendant. McGee contends that once Judy provided written
consent (on John's application for an FOID card) under section
4(c) of the Act for John to acquire and possess firearms and
ammunition, she became liable for any damages resulting from
John's use of firearms, even though the Illinois State Police
subsequently denied John's application. Judy responds that
because the Act governs the issuance of FOID cards, section 4(c)
of the Act imposes liability on a parent only when the State
issues an FOID card to that parent's child as a result of the
parent's consent. We agree with that response.
Section 4(a)(2)(i) of the Act provides that an appli-
cant for an FOID card who is under 21 years of age--as in this
case--must obtain "the written consent of his parent or legal
guardian to possess and acquire firearms and firearm ammunition."
430 ILCS 65/4(a)(2)(i) (West 1994). Section 4(c) of the Act pro-
vides as follows:
"(c) Upon such written consent, pursuant
to Section 4, paragraph (a)(2)(i), the parent
or legal guardian giving the consent shall be
liable for any damages resulting from the
applicant's use of firearms or firearm ammu-
nition." 430 ILCS 65/4(c) (West 1994).
When construing a statute, a court must ascertain and
give effect to the legislature's intent in enacting the statute.
Collins v. Board of Trustees of the Firemen's Annuity & Benefit
Fund, 155 Ill. 2d 103, 110, 610 N.E.2d 1250, 1253 (1993). The
legislative intent is best determined by the language of the
statute. People v. Ferrell, 277 Ill. App. 3d 74, 77, 659 N.E.2d 992, 995 (1995). A court construing a statute should read it as
a whole, construing each provision in connection with every other
provision. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397, 634 N.E.2d 712, 714 (1994). A court also must
consider the reason and necessity for the law, as well as the
statute's objective. Collins, 155 Ill. 2d at 111, 610 N.E.2d at
1253. Further, when construing a statute capable of two inter-
pretations, a court should provide that interpretation which is
reasonable and which will not produce absurd, unjust, unreason-
able, or inconvenient results that the legislature could not have
intended. People v. Stanciel, 153 Ill. 2d 218, 233-34, 606 N.E.2d 1201, 1210 (1992).
The legislature enacted the Act to set forth a compre-
hensive scheme for the issuance of FOID cards. Section 1 of the
Act provides that
"in order to promote and protect the health,
safety[,] and welfare of the public, it is
necessary and in the public interest to pro-
vide a system of identifying persons who are
not qualified to acquire or possess firearms
and firearm ammunition *** by the establish-
ment of a system of [FOID] [c]ards." 430
ILCS 65/1 (West 1994).
Construing the statute as a whole and giving the statutory lan-
guage its reasonable meaning in light of the purpose of the Act,
we conclude that section 4(c) of the Act imposes liability upon a
parent or legal guardian (for damages resulting from a minor's
use of a firearm or ammunition) only if and when the Illinois
State Police approve the minor's application and issue the
applicant an FOID card.
In so concluding, we note that parents and guardians
are constantly called upon to grant consent to a minor child to
engage in activities that carry the potential for substantial
harm, such as driving an automobile. See 625 ILCS 5/6-107 (West
1994) (requiring parental consent for unemancipated minors under
18 years of age to obtain a driver's license). One hopes that
consent, when granted, represents the parent's considered judg-
ment that the child possesses the maturity and skill to engage in
the activity in question. But the consent given is not determi-
native and is, at most, advisory. Parental consent is a neces-
sary--but not sufficient--condition for issuance of the FOID card
and may be overridden by the licensing authority, as was the case
here, or even revoked by the parent resulting in cancellation of
the card. See 430 ILCS 65/8(b) (West 1994); see also 625 ILCS
5/6-108(a)(1) (West 1994) (requiring cancellation of a driver's
license or permit upon request of the person who consented to the
application).
To be sure, had the Illinois State Police issued an
FOID card in this case, liability would be clear; the legislature
has determined that parents must bear automatic responsibility
for the ill-advised consent they provide when it results in the
minor legally acquiring a weapon or ammunition with which he then
causes an injury during the period of his minority. However,
once the efficacy of the consent is completely nullified by the
refusal of the State Police to recognize it, the causal connec-
tion between the consent and the injury caused by the minor's
subsequent illegal conduct in acquiring and using firearms is
effectively broken. Accordingly, we hold that the trial court
did not err by denying McGee's motion to convert Judy from a
respondent in discovery to a defendant pursuant to section 4(c)
of the Act.
B. Motion To Convert James and Judy to
Defendants Pursuant to the Responsibility Law
Last, McGee argues that the trial court erred by
denying her motion to convert James and Judy from respondents in
discovery to defendants pursuant to section 3 of the Responsi-
bility Law. McGee contends that she established probable cause
that John was an unemancipated minor residing with his parents at
the time of the shooting. We agree.
A plaintiff may request to add a respondent in discov-
ery as a defendant pursuant to section 2-402 of the Code, which
provides as follows:
"The plaintiff in any civil action may
designate as respondents in discovery in his
or her pleading those individuals or other
entities, other than the named defendants,
believed by the plaintiff to have information
essential to the determination of who should
properly be named as additional defendants in
the action.
Persons or entities so named as respon-
dents in discovery *** may, on motion of the
plaintiff, be added as defendants if the
evidence discloses the existence of probable
cause for such action." 735 ILCS 5/2-402
(West 1994).
In Ingle v. Hospital Sisters Health System, 141 Ill. App. 3d
1057, 1064-65, 491 N.E.2d 139, 144 (1986), this court discussed
the showing necessary to establish such "probable cause" and
wrote the following:
"We have no reason to believe that the
legislature intended that the probable cause
issue under section 2-402 was to be decided
upon the basis of considerations that would
be present in ruling on a motion for summary
judgment for the respondents-in-discovery.
Nor do we believe that the plaintiff is re-
quired to show a prima facie case in order to
require that respondents be made defendants.
*** Rather, the question [here] is ***
whether there exists 'honest and strong
suspicion' that the respondents-in-discovery
are liable." (Emphasis added.)
In determining whether a respondent in discovery may be
added as a defendant, the trial court's role is that of gate-
keeper--to simply assess whether it is fair to let the plaintiff
proceed further against the respondents in discovery and subject
them to the fact-finding process. When resolving motions to
convert respondents in discovery to defendants under section
2-402 of the Code, trial courts should bear in mind the following
cautionary remarks this court wrote in Ingle--which we now
reaffirm:
"The purpose of encouraging plaintiffs
to name medical providers as respondents-in-
discovery rather than defendants will not be
served if a high degree of likelihood of
success is necessary to be shown before such
respondents can be named defendants. If that
is required, plaintiffs will continue the
practice of naming as defendants most [of]
those who [plaintiffs might otherwise have
designated only as respondents-in-discov-
ery]." Ingle, 141 Ill. App. 3d at 1062, 491 N.E.2d at 142.
A trial court's ruling on a motion to add a respondent
in discovery as a defendant is entitled to deference in circum-
stances in which the court has heard testimony and resolved con-
flicting evidence, and a reviewing court will not overturn the
trial court's ruling unless it is against the manifest weight of
the evidence. See People v. Enis, 163 Ill. 2d 367, 393, 645 N.E.2d 856, 867 (1994) (a trial court's determination that
probable cause was established will not be disturbed unless
against the manifest weight of the evidence).
However, where (1) the facts are undisputed, (2) the
credibility of witnesses is not an issue, and (3) in-court
testimony has not been presented, a question of law is presented,
and a reviewing court may consider the question de novo. People
v. Besser, 273 Ill. App. 3d 164, 167, 652 N.E.2d 454, 456 (1995).
Because in this case the trial court considered in-court testimo-
ny as part of its decision, we will not overturn the trial
court's ruling unless it is against the manifest weight of the
evidence.
In the present case, McGee sought leave to add respon-
dents in discovery as defendants pursuant to section 3 of the
Responsibility Law. That section provides as follows:
"The parent or legal guardian of an
unemancipated minor who resides with such
parent or legal guardian is liable for actual
damages for the wilful or malicious acts of
such minor which cause injury to a person or
property." 740 ILCS 115/3 (West 1992).
Thus, McGee was required to establish that a person of ordinary
caution and prudence would entertain an honest and strong suspi-
cion that John was an unemancipated minor residing with his
parents pursuant to section 3 of the Responsibility Law. (It is
undisputed that John was a minor under section 2 of the Responsi-
bility Law (740 ILCS 115/2 (West 1992)) at the time of the shoot-
ing.)
Judy's deposition testimony showed that James and Judy
maintained a furnished bedroom for John, which he frequently used
during the short time period between early June 1993 (when he
moved to a shared apartment) and July 7, 1993 (the date of the
shooting). In addition, the Heimburgers provided John with a
vehicle that he used on a daily basis. John also continued to
receive some mail at his parents' residence. Further, at the
time of the shooting, he worked on the family farm in exchange
for other consideration, such as car insurance payments.
Viewing the record before us in accordance with the
appropriate standard of review and consistent with the low
threshold plaintiff needs to cross of demonstrating the existence
of only "probable cause," we conclude that the trial court's
determination that McGee failed to establish that a person of
ordinary caution and prudence would entertain an "honest and
strong suspicion" that John was an unemancipated minor residing
with his parents at the time of the shooting was against the
manifest weight of the evidence. Accordingly, we hold that the
trial court erred by denying McGee's motion to convert James and
Judy from respondents in discovery to defendants pursuant to
section 3 of the Responsibility Law.
We note in passing the following remarks from the trial
court in this case that were directed to defense counsel at the
hearing on plaintiff's motion to convert:
"[Counsel, your opposing counsel] cites
some factors that would raise a question
about emancipation; whereas, you raise other
factors that seem to indicate that the boy
was not emancipated.
With that presentation, isn't it a mat-
ter of fact that the jury has to decide rath-
er than myself?"
The trial court was correct in this assessment; unfortunately,
defense counsel subsequently persuaded the court to hold other-
wise.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment in part and reverse in part, and remand for further
proceedings consistent with the views expressed herein.
Affirmed in part and reversed in part; cause remanded
with directions.
GARMAN and KNECHT, JJ., concur.