Nichol v. Stass
Annotate this Case
THIRD DIVISION
June 17, 1998
No. 1-97-0583
GREGORY NICHOL and RUBY NICHOL, )
Individually, and as Co-Special )
Administrators of the Estate of )
the Decedent, JONATHAN NICHOL, )
)
Plaintiffs-Appellants, ) Appeal from the Circuit
) Court of Cook County.
v. )
)
JOHN STASS and BONNIE STASS, )
Individually, )
)
Defendants-Appellees, )
)
and ) Honorable Joseph N.
) Casciato, Judge
the HUMAN ENRICHMENT and ) Presiding.
DEVELOPMENT ASSOCIATION (HEDA), )
an Illinois Corporation, )
)
Defendants. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
The Plaintiffs, Gregory Nichol and Ruby Nichol, individually
and as co-special administrators of the estate of the decedent,
Jonathan Nichol, filed a complaint against defendants, John Stass
and Bonnie Stass, the foster parents of the decedent, alleging
negligent supervision, monitoring and care of the decedent who
died of drowning while in the Stasses' care. The count against
the foster parent defendants was dismissed on the basis of
sovereign immunity and lack of subject matter jurisdiction. 735
ILCS 5/2-619(a)(1) (West 1996).
In this appeal, brought pursuant to Supreme Court Rule
304(a) (155 Ill. 2d R. 304(a)),[fn1] the plaintiffs contend that
their action against the defendant foster parents is not a claim
against the State because the defendants are not employees of the
State and because the duty alleged to have been breached by the
foster parents is owed independent of State employment.
Section 1 of the State Lawsuit Immunity Act provides in
pertinent part as follows:
"Except as provided in * * * 'AN ACT to create the
Court of Claims * * *', * * * the State of Illinois
shall not be made a defendant or party in any court."
745 ILCS 5/1 (West 1996).
The Court of Claims Act (705 ILCS 505/1 et seq. (West 1996))
provides that the court shall have exclusive jurisdiction of
"[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) (West
1996).
A party cannot avoid sovereign immunity implications by
filing an action nominally against a servant or agent of the
State when the real claim is against the State of Illinois.
Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247
(1990). For purposes of determining sovereign immunity, the
courts will not look to the formal designation of the parties.
Healy, 133 Ill. 2d 295, 549 N.E.2d 1240. "It is well established
that whether an action is against the State, and therefore one
that must be brought in the Court of Claims, depends on the
issues involved and the relief sought." E.g., Griffin v.
Fluellen, 283 Ill. App. 3d 1078, 1084, 670 N.E.2d 845, 850
(1996).
As stated in Robb v. Sutton, 147 Ill. App. 3d 710, 713, 498 N.E.2d 267, 270 (1986), and adopted by our supreme court in
Healy, 133 Ill. 2d at 309, 549 N.E.2d at 1247, an action is
against the State when three criteria are met: (1) the absence
of an allegation that an agent or employee of the State acted
beyond the scope of his authority; (2) the duty alleged to have
been breached was not owed to the public generally independent of
the fact of State employment; and (3) the alleged actions
involved matters ordinarily within the employee's normal and
official functions of the State. An action is also deemed to be
against the State if judgment for the plaintiff could "'operate
to control the actions of the State or subject it to liability.'"
Management Ass'n of Illinois, Inc. v. Board of Regents of
Northern Illinois University, 248 Ill. App. 3d 599, 607, 618 N.E.2d 694, 699 (1993), quoting Robb v. Sutton, 147 Ill. App. 3d
at 713, 498 N.E.2d at 270.
I. Employee/Agent Issue
Under the criteria set forth in Robb, we must first
determine whether the defendant foster parents are employees or
agents of the State. In their argument to the trial court, the
defendants asserted that they are employees of the State under
the language of the State Employee Indemnification Act (the Act)
(5 ILCS 350/1 et seq. (West 1996)). That Act, which defines
"employee" to include "individuals who serve as foster parents
for the Department of Children and Family Services when caring
for a Department ward" (5 ILCS 350/1(b) (West 1996)), provides
that the State will defend and indemnify any "employee" in any
civil proceeding commenced against the employee arising out of
any act or omission occurring within the scope of the employee's
State employment (5 ILCS 350/2 (West 1996)). The defendants also
argued before the trial court that the provision of indemnity was
in and of itself sufficient to invoke sovereign immunity. On
appeal, the defendants have largely abandoned that latter
argument, and correctly so. See Janes v. Albergo, 254 Ill. App.
3d 951, 626 N.E.2d 1127 (1993); Kiersch v. Ogena, 230 Ill. App.
3d 57, 595 N.E.2d 696 (1992) (State's obligation to indemnify
does not constitute the State's assumption of direct liability).
The defendants continue to argue that the characterization of
foster parents as employees in the Act should control.
The plaintiffs contend that despite being identified as
employees in the Indemnification Act, the defendant foster
parents are not employees of the State and thus cannot satisfy
the first criterion of the three-part Robb test for sovereign
immunity. They argue that the inclusion of foster parents in the
definition of employee in the State Employee Indemnification Act
(5 ILCS 350/1(b) (West 1996)) was for the limited purpose of
indemnity and did not create employee status outside that
statute. They note that the Foster Parent Law (20 ILCS 520/1 et
seq. (West 1996)) does not define a foster parent as an employee
of the State (20 ILCS 520/1-10 (West 1996)) and contains no
reference to foster parents as employees. They also note that
the State does not withhold State or Federal income tax, does not
insure foster parents for unemployment or workers' compensation,
and does not provide foster parents with retirement or pension
benefits or health insurance.
As section 1 of the Indemnification Act begins with limiting
language "[f]or the purpose of this Act" (5 ILCS 350/1 (West
1996)), we agree that the inclusion of foster parents in the
definition of employee in that Act does not conclusively
establish employment status for sovereign immunity purposes. See
Moy v. County of Cook, 159 Ill. 2d 519, 530, 640 N.E.2d 926, 930
(1994) ("statutory definitions have no validity beyond the scope
of the legislation in which they appear"). However, we cannot
agree that the inclusion of foster parents as employees in that
statute has no residual probative value with respect to the issue
of employment status.
The defendants also argue that foster parents are employees
of the State because the State controls the manner and method in
which their work is to be performed. See Hansen v. Caring
Professionals, 286 Ill. App. 3d 797, 676 N.E.2d 1349 (1997) (the
right to control the manner and method of the work to be done is
critical to a master-servant relationship). See generally
Restatement (Second) of Agency 2(2), at 12 (1958) ("[a] servant
is an agent employed by a master to perform service in his
affairs whose physical conduct in the performance of the service
is controlled or is subject to the right to control by the
master"). It is true that foster parents are required to comply
with various administrative rules promulgated by the Department
of Children and Family Services. See 225 ILCS 10/8 (West 1996).
Those rules regulate such things as the physical accommodations
of the foster home (89 Ill. Admin. Code 402.8 (1996)); sleeping
accommodations (89 Ill. Admin. Code 402.9); dietary requirements
(89 Ill. Admin. Code 402.10); outside employment by the foster
parent (89 ll. Admin. Code 402.11); and discipline (89 Ill.
Admin. Code 402.21). The rules and regulations governing foster
child care are specific and comprehensive. See also Swanigan v.
Smith, Ill. App. 3d , 689 N.E.2d 637 (1998) (foster parent
status as state employee presumed). However, we need not
definitively determine whether foster parents are employees of
the State since, as will be discussed below, regardless of
whether they are employees of the State, they clearly are agents
of the State. See Cnota v. Palatine Area Football Ass'n, 227
Ill. App. 3d 640, 592 N.E.2d 196 (1992) (question of agency
relationship can be determined as a matter of law where the
parties' relationship is clear).
In Griffin v. Fluellen, 283 Ill. App. 3d 1078, 670 N.E.2d 845 (1996), the first district appellate court found that foster
parents are agents of the State because they were appointed by
the Department of Children and Family Services, a State agency.
Griffin, 283 Ill. App. 3d at 1087, 670 N.E.2d at 852. Foster
parents also are agents of the State because they are performing
duties which are statutorily mandated as government duties (20
ILCS 505/5 (West 1996)). See Illinois Nurses Ass'n v. Illinois
State Labor Relations Board, 196 Ill. App. 3d 576, 554 N.E.2d 404
(1990) (any corporation performing duties which are statutorily
mandated as government duties acts on behalf of the State and is
an agent of the State).[fn2] Cf. Commerce Bank v. Augsburger,
288 Ill. App. 3d 510, 680 N.E.2d 822 (1997) (distinguishing
Illinois Nurses Ass'n because control by State over foster
parents too remote).
In addition, even if the foster parents in the case at bar
are considered independent contractors of the State, strong
argument can be made that they were performing the State's non-
delegable duties toward its foster children/wards. If the
State's duty is non-delegable, the conduct of the foster parent
in performing that duty is by definition the conduct of the
State; and the foster parent is an agent of the State for that
purpose. See Restatement (Second) of Agency 214, Comment a, at
464 (1958) stating,
"[O]ne may have a duty to see that due care is used in
the protection of another, a duty which is not
satisfied by using care to delegate its performance to
another but is satisfied if, and only if, the person to
whom the work of protection is delegated is careful in
giving the protection. In this third class, the duty
of care is non-delegable."
See also Restatement (Second) of Agency 251, at 551 (1958)
(principal is liable for negligence of servant or non-servant
agent in performance of an act which the principal is under a
duty to perform with care). Section 424 of the Restatement
(Second) of Torts similarly provides that hiring an independent
contractor to perform a nondelegable duty does not relieve the
principal of liability. That section provides as follows:
"One who by statute or by administrative regulation is
under a duty to provide specified safeguards or
precautions for the safety of others is subject to
liability to the others for whose protection the duty
is imposed for harm caused by the failure of a
contractor employed by him to provide such safeguards
or precautions." Restatement (Second) of Torts 424,
at 411 (1965).
In Medley v. North Carolina Department of Correction, 330
N.C. 837, 412 S.E.2d 654 (1992), the Supreme Court of North
Carolina applied section 424 of the Restatement (Second) of Torts
to find the state liable for the medical care rendered by its
independent contractor/doctor to a state prisoner. In that case,
the court found that the state's duty to provide medical care was
non-delegable. The court cited to the statutory duties of the
state to prescribe standards for health services to prisoners and
the state's constitutional duties to refrain from cruel and
unusual punishment. U.S. Const. amend. VIII; N.C. Const. art. I,
27. See also Henderson v. Harris, 672 F. Supp. 1054 (N.D. Ill.
1987) (federal government constitutional duty to provide
appropriate medical care to inmates is nondelegable).
While there is no single test for determining when a duty is
non-delegable, we believe that persuasive argument could be made
that, as with inmates, the State's duty to provide for the care
of its foster children is non-delegable such that the State was
not relieved of its duty to provide care for the foster
child/ward in the instant case when the defendant foster parents
contracted with the State to assume that duty. See Lipscomb v.
Simmons, 884 F.2d 1242, 1247 (9th Cir. 1989), vacated and
rehearing en banc granted, 907 F.2d 474 (1990), rehearing, 962 F.2d 1374 (1992) (en banc) ("[t]he State's obligation to ensure
that children in its custody are able to exercise their
constitutional rights is even greater than its responsibility
toward prisoners"). See generally Restatement (Second) of Agency
214, at 464 ("one may have a duty to see that due care is used
in the protection of another, a duty which is not satisfied by
using care to delegate its performance to another"). As noted
above, the State is required by statute to provide direct child
welfare services for foster children who are its wards (see 20
ILCS 505/5 (West 1996)) and to establish rules and regulations
concerning foster care (20 ILCS 505/5(g) (West 1996)). See K.H.
v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990)("[o]nce the state
assumes custody of a person, it owes him a rudimentary duty of
safekeeping"); Lipscomb, 884 F.2d at 1246 (by removing children
from their parents' custody, making them wards of the state, and
placing them in foster care programs, the state has assumed
special constitutional obligations and bears the responsibility
of protecting the welfare of children in its care). Cf. Commerce
Bank, 288 Ill. App. 3d 510, 680 N.E.2d 822.[fn3]
Based upon the foregoing, we conclude that the duties of the
State to foster children are in fact non-delegable such that the
breach of those duties would impose vicarious liability upon the
State for the negligence of the foster parents. See Restatement
(Second) of Torts 424. Although the relationship between the
State and the foster parents may not be that of employer-
employee, it is analogous in so far as the State would be
vicariously liable for the acts of the foster parents as if they
were employees. See Restatement (Second) or Torts, Topic 2,
Introductory Note, at 394 (1965) (liability imposed upon the
employer of an independent contractor in sections 416 through 429
is based upon rules of vicarious liability and is closely
analogous to that of a master for the negligence of his servant).
This holding is consistent with Illinois Nurses Ass'n where the
court stated:
"Without deciding the delegability issue, we must
conclude that any corporation performing duties which
are statutorily (and constitutionally) mandated as
government duties must, at the very least, be acting on
behalf of the State and is, thus, an agent of the
State." 196 Ill. App. 3d at 582, 554 N.E.2d at 408.
We note that while that case purports to avoid the question of
delegability, in fact, the reason given for imposing vicarious
liability is consistent with section 214 of the Restatement
(Second) of Agency which states that one's non-delegable duty to
protect another cannot be satisfied by delegating its
performance. Restatement (Second) of Agency 214, Comment a.
See also Restatement (Second) of Agency 251. It would seem that
the court in Illinois Nurses Ass'n found that the State's duty of
care to inmates at its correctional facilities was non-delegable,
having concluded that the duty was imposed by statute. See
Restatement (Second) of Torts 424 ("one who by statute * * * is
under a duty to provide specified safeguards or precautions for
the safety of others" is subject to liability for breach of duty
by independent contractor).
The plaintiffs argue that the State's sovereign immunity
applies only to State employees and not to non-employee agents of
the State. In support of this argument they cite to the three
criteria set forth in Robb v. Sutton, 147 Ill. App. 3d 710, 498 N.E.2d 267 (1986), adopted in Healy v. Vaupel, 133 Ill. 2d 295,
549 N.E.2d 1240 (1990), considered in the determination of
whether an action is against the State. They argue that an
employment relationship must exist, despite the first criterion's
reference to "agent," because the second and third Robb criteria
refer to "State employment" and "employee" without any parallel
agency language. We disagree with plaintiff's narrow
construction. See Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247 (1990) and Sass v. Kramer, 72 Ill. 2d 485, 491,
381 N.E.2d 975, 977 (1978) (applying sovereign immunity to
"servants or agents of the State"). A review of the Robb
decision shows that the three-part test set forth therein evolved
from a summarization of existing case law. The latter two
criteria evolved from cases in which an employment relationship
existed with the State, such that the holdings therein, which
were repeated in Robb, reflected that relationship. Moreover, as
discussed above, under general principles of agency law, the
State can be is liable for the negligent acts of its non-servant
or non-employee agents. Illinois Nurses Ass'n, 196 Ill. App. 3d
576, 554 N.E.2d 404. See generally Restatement (Second) of
Agency 214, 251-67; Restatement (Second) of Torts 416-29. We
see no reason to bar application of the sovereign immunity
doctrine where the named defendant is a non-servant agent so long
as the State has direct liability for the acts of that agent.
See, e.g., Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977 (1992)
(action brought nominally against an individual will be found to
be claim against the State where judgment for plaintiff would
subject State to liability).
II. Independent Duty Issue
The plaintiffs next argue that the instant action did not
contain an allegation that would satisfy the second criterion for
determining whether an action is against the State. The
plaintiffs argue that they alleged a duty by the defendant foster
parents that was owed independent of the fact of State
employment. See Healy, 133 Ill. 2d at 309, 549 N.E.2d at 1247
citing Robb, 147 Ill. App. 3d at 716, 498 N.E.2d at 272. Two
appellate court districts have rendered conflicting holdings on
this issue. Compare Griffin v. Fluellen, 283 Ill. App. 3d 1078,
670 N.E.2d 845 (1996) with Swanigan v. Smith, Ill. App. 3d ,
689 N.E.2d 637 (1998).
In Griffin v. Fluellen, 283 Ill. App. 3d 1078, 670 N.E.2d 845, a division of this appellate court district affirmed the
trial court's dismissal for lack of subject matter jurisdiction
of an action against a foster parent alleging negligent care of a
foster child. The court found that this action was against the
State because the duty alleged to have been breached was owed
only because of the fact of State employment. In that regard the
court stated:
"We are unpersuaded by plaintiff's argument that
defendant breached a duty to Verna [the foster child]
that is independent of her employment with the State,
thus preventing the attachment of sovereign immunity
and enabling the claim to be maintained in the circuit
court. Any alleged failure of a heating system in the
home or the use of a space heater arose out of
defendant's duty as a foster parent appointed by DCFS
and Verna's status as a foster child. Verna would
never have sustained injuries in the fire at
defendant's house if she had not been in defendant's
legal custody and a resident there." Griffin, 283 Ill.
App. 3d at 1087, 670 N.E.2d at 852.
The recent case of Swanigan v. Smith, Ill. App. 3d ,
689 N.E.2d 637, decided by the Fourth District of the Illinois
Appellate Court, declined to follow Griffin. Instead, the court
found that the negligence action filed against the foster parent
was not an action against the State because the duty of care
alleged to have been breached was a duty owed to the public
generally. In that regard, the Swanigan court stated:
"In this case, we should not look to the reason why
Cortez [the foster child] was in defendant's home, but
to the source of the duties that existed because Cortez
was in defendant's home. Defendant owed Cortez a duty
of care not only by virtue of her state employment as
his foster parent, but also as a homeowner with a minor
in her home. See Cope v. Doe, 102 Ill. 2d 278, 286,
464 N.E.2d 1023, 1027 (1984); Osborne v. Claydon, 266
Ill. App. 3d 434, 436, 640 N.E.2d 684, 686 (1994). It
was from the latter source of defendant's duty of care
that plaintiffs' complaint sought recovery." Swanigan,
Ill. App. 3d at , 389 N.E.2d at 642.
For the reasons discussed below, we find that the duty
alleged to have been breached by the defendant foster parents in
the instant action was not owed independent of State employment
and, instead, was owed only because of the foster parents' agency
relationship with the State. In reaching this conclusion, we
respectfully disagree with the rationales of both Griffin and
Swanigan.
As noted in Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977
(1992), sovereign immunity attaches only when the State employee
(or agent) is charged with breaching a duty imposed on him solely
by virtue of his State employment. The proper inquiry as to when
a State employee's on-the-job negligence is immunized
"is to analyze the source of the duty the employee is
charged with breaching in committing the allegedly
negligent act. Where the charged act of negligence
arose out of the State employee's breach of a duty that
is imposed on him solely by virtue of his State
employment, sovereign immunity will bar maintenance of
the action in circuit court." (Emphasis original.)
Currie, 148 Ill. 2d at 159, 592 N.E.2d at 980.
Applying this rationale, the Currie court found that a state
trooper was not immunized by sovereign immunity for acts of
negligence in driving a State-owned automobile because that
negligence arose from the ordinary operation of a motor vehicle
and involved the breach of duties every driver owes to every
other driver. See also Bartholomew v. Crockett, 131 Ill. App. 3d
456, 475 N.E.2d 1035 (1985); Gocheff v. State Community College,
69 Ill. App. 3d 178, 386 N.E.2d 1141 (1979). Under this same
rationale, the courts have held that State-employed physicians
are not immunized by sovereign immunity for acts of negligence in
rendering medical treatment to their patients, finding that the
duties allegedly breached -- the duties to properly diagnose and
treat -- were duties "every physician owes his patient, rather
than obligations incurred solely by virtue of holding a public
office." Madden v. Kuehn, 56 Ill. App. 3d 997, 1001, 372 N.E.2d 1131, 1133-34 (1978). Accord Janes v. Albergo, 254 Ill. App. 3d
951, 626 N.E.2d 1127 (1993); Kiersch v. Ogena, 230 Ill. App. 3d
57, 595 N.E.2d 696 (1992); Watson v. St. Annes Hospital, 68 Ill.
App. 3d 1048, 386 N.E.2d 885 (1979).
A duty dependent on State employment was found to be owed by
a State employee in Healy v. Vaupel, 133 Ill. 2d 295, 549 N.E.2d 1240 (1990). In that case, the plaintiff, a student gymnast at a
State university, sued two athletic directors, a gymnastics coach
and a trainer employed by the university alleging negligence. In
finding that the action was against the State, the court in Healy
stated:
"The relationship between the plaintiff and the
defendants would not have had a source outside the
employment status of the defendants. Whatever duty was
owed by the defendants to the plaintiff existed because
of the plaintiff's status as a student and her
participation in university-sponsored activities."
Healy, 133 Ill. 2d at 313, 549 N.E.2d at 1249.
Here, as in Healy, the duties alleged to have been breached
by the defendant foster parents were duties that existed because
of the foster child's status as a foster child. In reaching this
conclusion, we respectfully reject the but/for analysis used by
our court in Griffin. The analysis should not turn on whether
the injured plaintiff would have sustained the injuries if he had
not been in the defendants' legal custody and care. Rather, the
analysis must look to the source of the duty breached and whether
that duty existed solely because of the plaintiff's status.
Currie, 148 Ill. 2d at 159, 592 N.E.2d at 980; Healy, 133 Ill. 2d
at 313, 549 N.E.2d at 1249. Here, the duties alleged to have
breached were the failure to exercise ordinary care in the
supervision and care of the deceased foster child and the failure
to comply with various standards, rules and regulations and
guidelines established by the Department of Children and Family
Services. These duties do not have a source independent of the
foster care relationship. Clearly, the duty to comply with
Department of Children and Family Service rules and regulations
would not exist outside of the relationship between the State and
the foster parents. The former breach also is dependent on that
relationship because without that relationship the foster parent
would have no duty to exercise ordinary care in the supervision
and monitoring of the foster child. That legal duty, which
ultimately rests with the State, is only undertaken by the foster
parent pursuant to agreement with the State.
The court in Swanigan, Ill. App. 3d , 689 N.E.2d 637,
found that the foster parent's duty to care and supervise the
foster child was derived from the foster parent's status as a
homeowner. We disagree. Under premises liability law, a
homeowner's duty to non-trespassing persons who come upon the
property is to exercise reasonable care under the circumstances
regarding the state of the premises. 740 ILCS 130/2 (West 1996).
Premises liability concerns conditions on the premises. Here,
there is no allegation that the foster parents were negligent in
failing to exercise reasonable care with respect to a condition
on the premises. Such an allegation would encompass a duty
independent of the foster parent's employment by the State and,
as in Currie and Madden and their progeny, would defeat any
sovereign immunity claim. Since the duty of foster care parents
to exercise ordinary care in the supervision and care of their
foster children is not derived from a source independent of the
foster parent's relationship with the State, the second Robb
criterion is met and supports a finding that the action is in
fact against the State. As a result, the State's sovereign
immunity operates to defeat subject matter jurisdiction in the
circuit court.
For the foregoing reasons, the order of the Circuit Court of
Cook County dismissing the instant action for lack of subject
matter jurisdiction is affirmed.[fn4]
Affirmed.
LEAVITT, P.J. and CAHILL, J., concur.
[fn1]The count against the Human Enrichment and
Developmental Association, an independent child welfare agency
that allegedly contracted with the Illinois Department of
Children and Family Services to provide supervision, management,
guidance and discipline to foster parents, remained pending in
the trial court.
[fn2]We note that Illinois Nurses Ass'n v. Illinois State
Labor Relations Board, 196 Ill. App. 3d 576, 554 N.E.2d 404
(1990) was vacated for reasons other than its agency analysis,
based upon an issue of federal preemption first raised in the
appeal of that case to the United States Supreme Court. Illinois
Nurses Ass'n v. Illinois State Labor Relations Board, 244 Ill.
App. 3d 1, 614 N.E.2d 13 (1991). However, notwithstanding that
vacatur, the agency discussion in that case has since been cited
in Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 680 N.E.2d 822 (1997).
[fn3]In Commerce Bank v. Augsburger, 288 Ill. App. 3d 510,
680 N.E.2d 822 (1997), the appellate court for the fourth
district found a lack of control by the State over the actions of
the foster parents. In that case a private corporation had
contracted with the State to obtain foster homes for children in
the custody of the Illinois Department of Children and Family
Services, and the defendant foster parents had contracted with
the private corporation to provide those services. The court
found that the relationship between the foster parents and the
State, which had been contractually designated as an independent
contractor relationship, too remote to give the foster parents
governmental immunity. While the ultimate holding in this case
is inconsistent with the proposition that the duties of the State
are non-delegable (see Restatement (Second) of Torts 424
(1965)), the Commerce Bank opinion never raised or discussed that
issue.
[fn4]Since we have affirmed the dismissal of the instant
action on the basis of sovereign immunity, we need not rule on
appellant's motion to strike part II of appellee's brief which
discussed the doctrine of parental tort immunity as an
alternative theory to support the dismissal of the instant
action.
June 17, 1998
No. 1-97-0583
GREGORY NICHOL and RUBY NICHOL, )
Individually, and as Co-Special )
Administrators of the Estate of )
the Decedent, JONATHAN NICHOL, )
)
Plaintiffs-Appellants, ) Appeal from the Circuit
) Court of Cook County.
v. )
)
JOHN STASS and BONNIE STASS, )
Individually, )
)
Defendants-Appellees, )
)
and ) Honorable Joseph N.
) Casciato, Judge
the HUMAN ENRICHMENT and ) Presiding.
DEVELOPMENT ASSOCIATION (HEDA), )
an Illinois Corporation, )
)
Defendants. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
The Plaintiffs, Gregory Nichol and Ruby Nichol, individually
and as co-special administrators of the estate of the decedent,
Jonathan Nichol, filed a complaint against defendants, John Stass
and Bonnie Stass, the foster parents of the decedent, alleging
negligent supervision, monitoring and care of the decedent who
died of drowning while in the Stasses' care. The count against
the foster parent defendants was dismissed on the basis of
sovereign immunity and lack of subject matter jurisdiction. 735
ILCS 5/2-619(a)(1) (West 1996).
In this appeal, brought pursuant to Supreme Court Rule
304(a) (155 Ill. 2d R. 304(a)),[fn1] the plaintiffs contend that
their action against the defendant foster parents is not a claim
against the State because the defendants are not employees of the
State and because the duty alleged to have been breached by the
foster parents is owed independent of State employment.
Section 1 of the State Lawsuit Immunity Act provides in
pertinent part as follows:
"Except as provided in * * * 'AN ACT to create the
Court of Claims * * *', * * * the State of Illinois
shall not be made a defendant or party in any court."
745 ILCS 5/1 (West 1996).
The Court of Claims Act (705 ILCS 505/1 et seq. (West 1996))
provides that the court shall have exclusive jurisdiction of
"[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) (West
1996).
A party cannot avoid sovereign immunity implications by
filing an action nominally against a servant or agent of the
State when the real claim is against the State of Illinois.
Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247
(1990). For purposes of determining sovereign immunity, the
courts will not look to the formal designation of the parties.
Healy, 133 Ill. 2d 295, 549 N.E.2d 1240. "It is well established
that whether an action is against the State, and therefore one
that must be brought in the Court of Claims, depends on the
issues involved and the relief sought." E.g., Griffin v.
Fluellen, 283 Ill. App. 3d 1078, 1084, 670 N.E.2d 845, 850
(1996).
As stated in Robb v. Sutton, 147 Ill. App. 3d 710, 713, 498 N.E.2d 267, 270 (1986), and adopted by our supreme court in
Healy, 133 Ill. 2d at 309, 549 N.E.2d at 1247, an action is
against the State when three criteria are met: (1) the absence
of an allegation that an agent or employee of the State acted
beyond the scope of his authority; (2) the duty alleged to have
been breached was not owed to the public generally independent of
the fact of State employment; and (3) the alleged actions
involved matters ordinarily within the employee's normal and
official functions of the State. An action is also deemed to be
against the State if judgment for the plaintiff could "'operate
to control the actions of the State or subject it to liability.'"
Management Ass'n of Illinois, Inc. v. Board of Regents of
Northern Illinois University, 248 Ill. App. 3d 599, 607, 618 N.E.2d 694, 699 (1993), quoting Robb v. Sutton, 147 Ill. App. 3d
at 713, 498 N.E.2d at 270.
I. Employee/Agent Issue
Under the criteria set forth in Robb, we must first
determine whether the defendant foster parents are employees or
agents of the State. In their argument to the trial court, the
defendants asserted that they are employees of the State under
the language of the State Employee Indemnification Act (the Act)
(5 ILCS 350/1 et seq. (West 1996)). That Act, which defines
"employee" to include "individuals who serve as foster parents
for the Department of Children and Family Services when caring
for a Department ward" (5 ILCS 350/1(b) (West 1996)), provides
that the State will defend and indemnify any "employee" in any
civil proceeding commenced against the employee arising out of
any act or omission occurring within the scope of the employee's
State employment (5 ILCS 350/2 (West 1996)). The defendants also
argued before the trial court that the provision of indemnity was
in and of itself sufficient to invoke sovereign immunity. On
appeal, the defendants have largely abandoned that latter
argument, and correctly so. See Janes v. Albergo, 254 Ill. App.
3d 951, 626 N.E.2d 1127 (1993); Kiersch v. Ogena, 230 Ill. App.
3d 57, 595 N.E.2d 696 (1992) (State's obligation to indemnify
does not constitute the State's assumption of direct liability).
The defendants continue to argue that the characterization of
foster parents as employees in the Act should control.
The plaintiffs contend that despite being identified as
employees in the Indemnification Act, the defendant foster
parents are not employees of the State and thus cannot satisfy
the first criterion of the three-part Robb test for sovereign
immunity. They argue that the inclusion of foster parents in the
definition of employee in the State Employee Indemnification Act
(5 ILCS 350/1(b) (West 1996)) was for the limited purpose of
indemnity and did not create employee status outside that
statute. They note that the Foster Parent Law (20 ILCS 520/1 et
seq. (West 1996)) does not define a foster parent as an employee
of the State (20 ILCS 520/1-10 (West 1996)) and contains no
reference to foster parents as employees. They also note that
the State does not withhold State or Federal income tax, does not
insure foster parents for unemployment or workers' compensation,
and does not provide foster parents with retirement or pension
benefits or health insurance.
As section 1 of the Indemnification Act begins with limiting
language "[f]or the purpose of this Act" (5 ILCS 350/1 (West
1996)), we agree that the inclusion of foster parents in the
definition of employee in that Act does not conclusively
establish employment status for sovereign immunity purposes. See
Moy v. County of Cook, 159 Ill. 2d 519, 530, 640 N.E.2d 926, 930
(1994) ("statutory definitions have no validity beyond the scope
of the legislation in which they appear"). However, we cannot
agree that the inclusion of foster parents as employees in that
statute has no residual probative value with respect to the issue
of employment status.
The defendants also argue that foster parents are employees
of the State because the State controls the manner and method in
which their work is to be performed. See Hansen v. Caring
Professionals, 286 Ill. App. 3d 797, 676 N.E.2d 1349 (1997) (the
right to control the manner and method of the work to be done is
critical to a master-servant relationship). See generally
Restatement (Second) of Agency 2(2), at 12 (1958) ("[a] servant
is an agent employed by a master to perform service in his
affairs whose physical conduct in the performance of the service
is controlled or is subject to the right to control by the
master"). It is true that foster parents are required to comply
with various administrative rules promulgated by the Department
of Children and Family Services. See 225 ILCS 10/8 (West 1996).
Those rules regulate such things as the physical accommodations
of the foster home (89 Ill. Admin. Code 402.8 (1996)); sleeping
accommodations (89 Ill. Admin. Code 402.9); dietary requirements
(89 Ill. Admin. Code 402.10); outside employment by the foster
parent (89 ll. Admin. Code 402.11); and discipline (89 Ill.
Admin. Code 402.21). The rules and regulations governing foster
child care are specific and comprehensive. See also Swanigan v.
Smith, Ill. App. 3d , 689 N.E.2d 637 (1998) (foster parent
status as state employee presumed). However, we need not
definitively determine whether foster parents are employees of
the State since, as will be discussed below, regardless of
whether they are employees of the State, they clearly are agents
of the State. See Cnota v. Palatine Area Football Ass'n, 227
Ill. App. 3d 640, 592 N.E.2d 196 (1992) (question of agency
relationship can be determined as a matter of law where the
parties' relationship is clear).
In Griffin v. Fluellen, 283 Ill. App. 3d 1078, 670 N.E.2d 845 (1996), the first district appellate court found that foster
parents are agents of the State because they were appointed by
the Department of Children and Family Services, a State agency.
Griffin, 283 Ill. App. 3d at 1087, 670 N.E.2d at 852. Foster
parents also are agents of the State because they are performing
duties which are statutorily mandated as government duties (20
ILCS 505/5 (West 1996)). See Illinois Nurses Ass'n v. Illinois
State Labor Relations Board, 196 Ill. App. 3d 576, 554 N.E.2d 404
(1990) (any corporation performing duties which are statutorily
mandated as government duties acts on behalf of the State and is
an agent of the State).[fn2] Cf. Commerce Bank v. Augsburger,
288 Ill. App. 3d 510, 680 N.E.2d 822 (1997) (distinguishing
Illinois Nurses Ass'n because control by State over foster
parents too remote).
In addition, even if the foster parents in the case at bar
are considered independent contractors of the State, strong
argument can be made that they were performing the State's non-
delegable duties toward its foster children/wards. If the
State's duty is non-delegable, the conduct of the foster parent
in performing that duty is by definition the conduct of the
State; and the foster parent is an agent of the State for that
purpose. See Restatement (Second) of Agency 214, Comment a, at
464 (1958) stating,
"[O]ne may have a duty to see that due care is used in
the protection of another, a duty which is not
satisfied by using care to delegate its performance to
another but is satisfied if, and only if, the person to
whom the work of protection is delegated is careful in
giving the protection. In this third class, the duty
of care is non-delegable."
See also Restatement (Second) of Agency 251, at 551 (1958)
(principal is liable for negligence of servant or non-servant
agent in performance of an act which the principal is under a
duty to perform with care). Section 424 of the Restatement
(Second) of Torts similarly provides that hiring an independent
contractor to perform a nondelegable duty does not relieve the
principal of liability. That section provides as follows:
"One who by statute or by administrative regulation is
under a duty to provide specified safeguards or
precautions for the safety of others is subject to
liability to the others for whose protection the duty
is imposed for harm caused by the failure of a
contractor employed by him to provide such safeguards
or precautions." Restatement (Second) of Torts 424,
at 411 (1965).
In Medley v. North Carolina Department of Correction, 330
N.C. 837, 412 S.E.2d 654 (1992), the Supreme Court of North
Carolina applied section 424 of the Restatement (Second) of Torts
to find the state liable for the medical care rendered by its
independent contractor/doctor to a state prisoner. In that case,
the court found that the state's duty to provide medical care was
non-delegable. The court cited to the statutory duties of the
state to prescribe standards for health services to prisoners and
the state's constitutional duties to refrain from cruel and
unusual punishment. U.S. Const. amend. VIII; N.C. Const. art. I,
27. See also Henderson v. Harris, 672 F. Supp. 1054 (N.D. Ill.
1987) (federal government constitutional duty to provide
appropriate medical care to inmates is nondelegable).
While there is no single test for determining when a duty is
non-delegable, we believe that persuasive argument could be made
that, as with inmates, the State's duty to provide for the care
of its foster children is non-delegable such that the State was
not relieved of its duty to provide care for the foster
child/ward in the instant case when the defendant foster parents
contracted with the State to assume that duty. See Lipscomb v.
Simmons, 884 F.2d 1242, 1247 (9th Cir. 1989), vacated and
rehearing en banc granted, 907 F.2d 474 (1990), rehearing, 962 F.2d 1374 (1992) (en banc) ("[t]he State's obligation to ensure
that children in its custody are able to exercise their
constitutional rights is even greater than its responsibility
toward prisoners"). See generally Restatement (Second) of Agency
214, at 464 ("one may have a duty to see that due care is used
in the protection of another, a duty which is not satisfied by
using care to delegate its performance to another"). As noted
above, the State is required by statute to provide direct child
welfare services for foster children who are its wards (see 20
ILCS 505/5 (West 1996)) and to establish rules and regulations
concerning foster care (20 ILCS 505/5(g) (West 1996)). See K.H.
v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990)("[o]nce the state
assumes custody of a person, it owes him a rudimentary duty of
safekeeping"); Lipscomb, 884 F.2d at 1246 (by removing children
from their parents' custody, making them wards of the state, and
placing them in foster care programs, the state has assumed
special constitutional obligations and bears the responsibility
of protecting the welfare of children in its care). Cf. Commerce
Bank, 288 Ill. App. 3d 510, 680 N.E.2d 822.[fn3]
Based upon the foregoing, we conclude that the duties of the
State to foster children are in fact non-delegable such that the
breach of those duties would impose vicarious liability upon the
State for the negligence of the foster parents. See Restatement
(Second) of Torts 424. Although the relationship between the
State and the foster parents may not be that of employer-
employee, it is analogous in so far as the State would be
vicariously liable for the acts of the foster parents as if they
were employees. See Restatement (Second) or Torts, Topic 2,
Introductory Note, at 394 (1965) (liability imposed upon the
employer of an independent contractor in sections 416 through 429
is based upon rules of vicarious liability and is closely
analogous to that of a master for the negligence of his servant).
This holding is consistent with Illinois Nurses Ass'n where the
court stated:
"Without deciding the delegability issue, we must
conclude that any corporation performing duties which
are statutorily (and constitutionally) mandated as
government duties must, at the very least, be acting on
behalf of the State and is, thus, an agent of the
State." 196 Ill. App. 3d at 582, 554 N.E.2d at 408.
We note that while that case purports to avoid the question of
delegability, in fact, the reason given for imposing vicarious
liability is consistent with section 214 of the Restatement
(Second) of Agency which states that one's non-delegable duty to
protect another cannot be satisfied by delegating its
performance. Restatement (Second) of Agency 214, Comment a.
See also Restatement (Second) of Agency 251. It would seem that
the court in Illinois Nurses Ass'n found that the State's duty of
care to inmates at its correctional facilities was non-delegable,
having concluded that the duty was imposed by statute. See
Restatement (Second) of Torts 424 ("one who by statute * * * is
under a duty to provide specified safeguards or precautions for
the safety of others" is subject to liability for breach of duty
by independent contractor).
The plaintiffs argue that the State's sovereign immunity
applies only to State employees and not to non-employee agents of
the State. In support of this argument they cite to the three
criteria set forth in Robb v. Sutton, 147 Ill. App. 3d 710, 498 N.E.2d 267 (1986), adopted in Healy v. Vaupel, 133 Ill. 2d 295,
549 N.E.2d 1240 (1990), considered in the determination of
whether an action is against the State. They argue that an
employment relationship must exist, despite the first criterion's
reference to "agent," because the second and third Robb criteria
refer to "State employment" and "employee" without any parallel
agency language. We disagree with plaintiff's narrow
construction. See Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247 (1990) and Sass v. Kramer, 72 Ill. 2d 485, 491,
381 N.E.2d 975, 977 (1978) (applying sovereign immunity to
"servants or agents of the State"). A review of the Robb
decision shows that the three-part test set forth therein evolved
from a summarization of existing case law. The latter two
criteria evolved from cases in which an employment relationship
existed with the State, such that the holdings therein, which
were repeated in Robb, reflected that relationship. Moreover, as
discussed above, under general principles of agency law, the
State can be is liable for the negligent acts of its non-servant
or non-employee agents. Illinois Nurses Ass'n, 196 Ill. App. 3d
576, 554 N.E.2d 404. See generally Restatement (Second) of
Agency 214, 251-67; Restatement (Second) of Torts 416-29. We
see no reason to bar application of the sovereign immunity
doctrine where the named defendant is a non-servant agent so long
as the State has direct liability for the acts of that agent.
See, e.g., Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977 (1992)
(action brought nominally against an individual will be found to
be claim against the State where judgment for plaintiff would
subject State to liability).
II. Independent Duty Issue
The plaintiffs next argue that the instant action did not
contain an allegation that would satisfy the second criterion for
determining whether an action is against the State. The
plaintiffs argue that they alleged a duty by the defendant foster
parents that was owed independent of the fact of State
employment. See Healy, 133 Ill. 2d at 309, 549 N.E.2d at 1247
citing Robb, 147 Ill. App. 3d at 716, 498 N.E.2d at 272. Two
appellate court districts have rendered conflicting holdings on
this issue. Compare Griffin v. Fluellen, 283 Ill. App. 3d 1078,
670 N.E.2d 845 (1996) with Swanigan v. Smith, Ill. App. 3d ,
689 N.E.2d 637 (1998).
In Griffin v. Fluellen, 283 Ill. App. 3d 1078, 670 N.E.2d 845, a division of this appellate court district affirmed the
trial court's dismissal for lack of subject matter jurisdiction
of an action against a foster parent alleging negligent care of a
foster child. The court found that this action was against the
State because the duty alleged to have been breached was owed
only because of the fact of State employment. In that regard the
court stated:
"We are unpersuaded by plaintiff's argument that
defendant breached a duty to Verna [the foster child]
that is independent of her employment with the State,
thus preventing the attachment of sovereign immunity
and enabling the claim to be maintained in the circuit
court. Any alleged failure of a heating system in the
home or the use of a space heater arose out of
defendant's duty as a foster parent appointed by DCFS
and Verna's status as a foster child. Verna would
never have sustained injuries in the fire at
defendant's house if she had not been in defendant's
legal custody and a resident there." Griffin, 283 Ill.
App. 3d at 1087, 670 N.E.2d at 852.
The recent case of Swanigan v. Smith, Ill. App. 3d ,
689 N.E.2d 637, decided by the Fourth District of the Illinois
Appellate Court, declined to follow Griffin. Instead, the court
found that the negligence action filed against the foster parent
was not an action against the State because the duty of care
alleged to have been breached was a duty owed to the public
generally. In that regard, the Swanigan court stated:
"In this case, we should not look to the reason why
Cortez [the foster child] was in defendant's home, but
to the source of the duties that existed because Cortez
was in defendant's home. Defendant owed Cortez a duty
of care not only by virtue of her state employment as
his foster parent, but also as a homeowner with a minor
in her home. See Cope v. Doe, 102 Ill. 2d 278, 286,
464 N.E.2d 1023, 1027 (1984); Osborne v. Claydon, 266
Ill. App. 3d 434, 436, 640 N.E.2d 684, 686 (1994). It
was from the latter source of defendant's duty of care
that plaintiffs' complaint sought recovery." Swanigan,
Ill. App. 3d at , 389 N.E.2d at 642.
For the reasons discussed below, we find that the duty
alleged to have been breached by the defendant foster parents in
the instant action was not owed independent of State employment
and, instead, was owed only because of the foster parents' agency
relationship with the State. In reaching this conclusion, we
respectfully disagree with the rationales of both Griffin and
Swanigan.
As noted in Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977
(1992), sovereign immunity attaches only when the State employee
(or agent) is charged with breaching a duty imposed on him solely
by virtue of his State employment. The proper inquiry as to when
a State employee's on-the-job negligence is immunized
"is to analyze the source of the duty the employee is
charged with breaching in committing the allegedly
negligent act. Where the charged act of negligence
arose out of the State employee's breach of a duty that
is imposed on him solely by virtue of his State
employment, sovereign immunity will bar maintenance of
the action in circuit court." (Emphasis original.)
Currie, 148 Ill. 2d at 159, 592 N.E.2d at 980.
Applying this rationale, the Currie court found that a state
trooper was not immunized by sovereign immunity for acts of
negligence in driving a State-owned automobile because that
negligence arose from the ordinary operation of a motor vehicle
and involved the breach of duties every driver owes to every
other driver. See also Bartholomew v. Crockett, 131 Ill. App. 3d
456, 475 N.E.2d 1035 (1985); Gocheff v. State Community College,
69 Ill. App. 3d 178, 386 N.E.2d 1141 (1979). Under this same
rationale, the courts have held that State-employed physicians
are not immunized by sovereign immunity for acts of negligence in
rendering medical treatment to their patients, finding that the
duties allegedly breached -- the duties to properly diagnose and
treat -- were duties "every physician owes his patient, rather
than obligations incurred solely by virtue of holding a public
office." Madden v. Kuehn, 56 Ill. App. 3d 997, 1001, 372 N.E.2d 1131, 1133-34 (1978). Accord Janes v. Albergo, 254 Ill. App. 3d
951, 626 N.E.2d 1127 (1993); Kiersch v. Ogena, 230 Ill. App. 3d
57, 595 N.E.2d 696 (1992); Watson v. St. Annes Hospital, 68 Ill.
App. 3d 1048, 386 N.E.2d 885 (1979).
A duty dependent on State employment was found to be owed by
a State employee in Healy v. Vaupel, 133 Ill. 2d 295, 549 N.E.2d 1240 (1990). In that case, the plaintiff, a student gymnast at a
State university, sued two athletic directors, a gymnastics coach
and a trainer employed by the university alleging negligence. In
finding that the action was against the State, the court in Healy
stated:
"The relationship between the plaintiff and the
defendants would not have had a source outside the
employment status of the defendants. Whatever duty was
owed by the defendants to the plaintiff existed because
of the plaintiff's status as a student and her
participation in university-sponsored activities."
Healy, 133 Ill. 2d at 313, 549 N.E.2d at 1249.
Here, as in Healy, the duties alleged to have been breached
by the defendant foster parents were duties that existed because
of the foster child's status as a foster child. In reaching this
conclusion, we respectfully reject the but/for analysis used by
our court in Griffin. The analysis should not turn on whether
the injured plaintiff would have sustained the injuries if he had
not been in the defendants' legal custody and care. Rather, the
analysis must look to the source of the duty breached and whether
that duty existed solely because of the plaintiff's status.
Currie, 148 Ill. 2d at 159, 592 N.E.2d at 980; Healy, 133 Ill. 2d
at 313, 549 N.E.2d at 1249. Here, the duties alleged to have
breached were the failure to exercise ordinary care in the
supervision and care of the deceased foster child and the failure
to comply with various standards, rules and regulations and
guidelines established by the Department of Children and Family
Services. These duties do not have a source independent of the
foster care relationship. Clearly, the duty to comply with
Department of Children and Family Service rules and regulations
would not exist outside of the relationship between the State and
the foster parents. The former breach also is dependent on that
relationship because without that relationship the foster parent
would have no duty to exercise ordinary care in the supervision
and monitoring of the foster child. That legal duty, which
ultimately rests with the State, is only undertaken by the foster
parent pursuant to agreement with the State.
The court in Swanigan, Ill. App. 3d , 689 N.E.2d 637,
found that the foster parent's duty to care and supervise the
foster child was derived from the foster parent's status as a
homeowner. We disagree. Under premises liability law, a
homeowner's duty to non-trespassing persons who come upon the
property is to exercise reasonable care under the circumstances
regarding the state of the premises. 740 ILCS 130/2 (West 1996).
Premises liability concerns conditions on the premises. Here,
there is no allegation that the foster parents were negligent in
failing to exercise reasonable care with respect to a condition
on the premises. Such an allegation would encompass a duty
independent of the foster parent's employment by the State and,
as in Currie and Madden and their progeny, would defeat any
sovereign immunity claim. Since the duty of foster care parents
to exercise ordinary care in the supervision and care of their
foster children is not derived from a source independent of the
foster parent's relationship with the State, the second Robb
criterion is met and supports a finding that the action is in
fact against the State. As a result, the State's sovereign
immunity operates to defeat subject matter jurisdiction in the
circuit court.
For the foregoing reasons, the order of the Circuit Court of
Cook County dismissing the instant action for lack of subject
matter jurisdiction is affirmed.[fn4]
Affirmed.
LEAVITT, P.J. and CAHILL, J., concur.
[fn1]The count against the Human Enrichment and
Developmental Association, an independent child welfare agency
that allegedly contracted with the Illinois Department of
Children and Family Services to provide supervision, management,
guidance and discipline to foster parents, remained pending in
the trial court.
[fn2]We note that Illinois Nurses Ass'n v. Illinois State
Labor Relations Board, 196 Ill. App. 3d 576, 554 N.E.2d 404
(1990) was vacated for reasons other than its agency analysis,
based upon an issue of federal preemption first raised in the
appeal of that case to the United States Supreme Court. Illinois
Nurses Ass'n v. Illinois State Labor Relations Board, 244 Ill.
App. 3d 1, 614 N.E.2d 13 (1991). However, notwithstanding that
vacatur, the agency discussion in that case has since been cited
in Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 680 N.E.2d 822 (1997).
[fn3]In Commerce Bank v. Augsburger, 288 Ill. App. 3d 510,
680 N.E.2d 822 (1997), the appellate court for the fourth
district found a lack of control by the State over the actions of
the foster parents. In that case a private corporation had
contracted with the State to obtain foster homes for children in
the custody of the Illinois Department of Children and Family
Services, and the defendant foster parents had contracted with
the private corporation to provide those services. The court
found that the relationship between the foster parents and the
State, which had been contractually designated as an independent
contractor relationship, too remote to give the foster parents
governmental immunity. While the ultimate holding in this case
is inconsistent with the proposition that the duties of the State
are non-delegable (see Restatement (Second) of Torts 424
(1965)), the Commerce Bank opinion never raised or discussed that
issue.
[fn4]Since we have affirmed the dismissal of the instant
action on the basis of sovereign immunity, we need not rule on
appellant's motion to strike part II of appellee's brief which
discussed the doctrine of parental tort immunity as an
alternative theory to support the dismissal of the instant
action.
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