Commerce Bank v. Augsburger

NO. 4-96-0291

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

COMMERCE BANK, Special Administrator ) Appeal from
of the Estate of Louise Osborn, ) Circuit Court of
Deceased, ) McLean County
Plaintiff-Appellant, ) No. 94L244
v. )
MATTHEW AUGSBURGER and SARAH )
AUGSBURGER, a/k/a CHRIS AUGSBURGER, )
Defendants-Appellees, )
and )
YOUTH SERVICES OF MID-ILLINOIS, INC., )
JAMES SMITH, WILLIAM ROBERTS, JACK )
GIBSON, KIM WILLIAMSON, RYAN MCNEAL, )
PHIL RODGERS, MARI ROBERTS, RONALD )
WEBBER, WILLIAM SHERMAN, MARTHA )
CARLTON, ERIC HARDISON, SUSAN BELLAS, )
LAURA FRANZ, ANDREA TAUBER, BARBARA )
SCHNEIDER, JOY DULING, MARTIN ) Honorable
STREMLAU and BETH DONAHUE, ) William T. Caisley,
Defendants. ) Judge Presiding.


JUSTICE GREEN delivered the opinion of the court:
This appeal concerns the portion of a suit brought on
behalf of the estate of a minor that seeks recovery in tort for
negligence against the foster parents of the deceased minor. The
foster parents allegedly had custody of the minor by virtue of a
placement by Youth Services of Mid-Illinois, Inc. (Youth Services),
pursuant to a contract it had with the Illinois Department of
Children and Family Services (DCFS) concerning dependent and
neglected children. We hold that the suit against the foster
parents was not barred by sovereign immunity but was barred by
parental immunity because the negligence charge concerned the
foster parents' supervision and discipline of the child.
The suit began on August 21, 1995, when plaintiff, then
known as The Peoples Bank but now known as Commerce Bank, acting as
administrator of the estate of Louise Osborn, a deceased minor
child, brought suit in the circuit court of McLean County against
defendants, Matthew Augsburger, Sarah Augsburger, Youth Services,
and others not party to this appeal, seeking recovery for injuries
to and the death of the deceased minor child. Counts I and II of
a second-amended complaint were directed against the Augsburgers.
On March 25, 1996, the circuit court allowed the Augsburgers'
motion to dismiss those counts in bar of action and subsequently
entered an order under Supreme Court Rule 304(a) (155 Ill. 2d R.
304(a)) making that order appealable. Plaintiff has appealed. We
affirm.
The second-amended complaint made various allegations
applicable to all counts and then, in the various counts, more
specific allegations were made. As to counts I and II, the
complaint stated: (1) DCFS entered into a contract with Youth
Services whereby the latter would obtain foster homes for children
in the custody of DCFS; (2) pursuant to that contract, plaintiff's
decedent, a three-year-old child and a DCFS ward, was placed with
the Augsburgers by Youth Services; (3) the child died in the
Augsburgers' home from asphyxiation and hyperthermia when the
Augsburgers confined her in an enclosed space described as the
"upper half of a divided shelf of a wooden cabinet inside a bedroom
closet at [their] home with the door closed"; (4) the Augsburgers
placed the child in the confined area; and (5) the Augsburgers
"negligently, carelessly, and improperly supervised" the child's
activities and failed to "monitor" the child's activities "by
providing no direct supervision." (Emphasis added.) Plaintiff
sought recovery for wrongful death (740 ILCS 180/1 (West 1994))
under count I and injuries during her lifetime pursuant to the
Survival Act (755 ILCS 5/27-6 (West 1994)) under count II.
The Augsburgers' motion to dismiss was made under section
2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West
1994)), setting forth the affirmative defense that as foster
parents the Augsburgers had parental immunity. The circuit court
agreed. For the first time, on appeal, the Augsburgers contend the
dismissal of counts I and II is supportable because they were
agents of the state and, thus, clothed with governmental immunity.
Such a late contention is permissible because governmental immunity
is treated as depriving the circuit court of jurisdiction under the
terms of section 8(d) of the Court of Claims Act (705 ILCS 505/8(d)
(West 1994)). See Robb v. Sutton, 147 Ill. App. 3d 710, 498 N.E.2d 267 (1986). Lack of subject-matter jurisdiction is an issue that
can be raised at any time. Currie v. Leo, 148 Ill. 2d 151, 157,
592 N.E.2d 977, 979 (1992).
In any event, we conclude that the Augsburgers did not
have governmental immunity. The case they rely most heavily upon
is Griffen v. Fluellen, 283 Ill. App. 3d 1078, 670 N.E.2d 845
(1996). There, the appellate court affirmed the dismissal of a
suit on governmental immunity grounds brought, as here, on behalf
of a foster child for alleged tort of the foster mother. There,
the foster mother had been hired directly by DCFS and was paid by
that governmental entity. Here, the alleged contract between DCFS
and Youth Services described Youth Services as an independent
contractor, and the agreement between Youth Services and the
Augsburgers described the Augsburgers as independent contractors.
No case has been called to our attention in which a party so
attenuated from the state, as the Augsburgers were here, has been
held to have governmental immunity.
In Illinois Nurses Ass'n v. Illinois State Labor
Relations Board, 196 Ill. App. 3d 576, 554 N.E.2d 404 (1990), the
Department of Corrections (DOC) contracted with a private
corporation, described in the contract as an independent
contractor, to provide health-care services to DOC facilities. The
private corporation was determined to be a state agent for the
purpose of determining whether it was subject to the Public Labor
Relations Act (Ill. Rev. Stat. 1985, ch. 48, par. 1603(o)). The
Illinois Nurses Ass'n court noted that the contract gave DOC
authority to approve the nurses the corporation sent to the
facilities and the power to discharge those nurses. Illinois
Nurses Ass'n, 196 Ill. App. 3d at 579, 554 N.E.2d at 406. Here, no
provision in the contract between DCFS and Youth Services gives
similar authority to DCFS in regard to the foster parents.
The relationship between the state and the Augsburgers,
who had contracted with Youth Services, which had contracted with
the state, is too remote to give the Augsburgers governmental
immunity. This is particularly true where the state had so little
control over the Augsburgers. The doctrine of sovereign immunity
did not justify the dismissal of counts I and II.
Accordingly, we turn to the more complicated and
difficult decision as to whether the Augsburgers had parental
immunity because, as foster parents of the deceased child, they
stood in loco parentis to the child. This brings into play the
dual questions of the extent of parental immunity even in regard to
natural parents and whether that immunity exists as to foster
parents of the type here, where the children were state wards and
had been placed, for what could be a short time, with foster
parents being paid for the care of the children.
The binding Illinois case on the subject of parental
immunity is the comparatively recent case of Cates v. Cates, 156 Ill. 2d 76, 619 N.E.2d 715 (1993). There, a suit was brought on
behalf of a daughter against her father for injuries she received
in a collision while riding as a passenger in a motor vehicle
driven by him. Negligence was charged and the father claimed
parental immunity. The circuit court granted the father's motion
to dismiss on parental immunity grounds, the appellate court
affirmed, but the supreme court reversed. That court held that no
parental immunity existed when the duty to drive carefully was owed
by the father, not merely to the daughter, but to the public
generally. Thus, the Cates court concluded that the negligence of
the father did not involve the supervision or discipline of the
child and did not bring into play the doctrine of parental
immunity. Cates, 156 Ill. 2d at 106, 619 N.E.2d at 729. The Cates
opinion discussed in detail the parental immunity rule. It
explained that the doctrine did not exist in the English common law
but arose from Hewellette v. George, 68 Miss. 703, 9 So. 885
(1891), McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903),
and Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905). The Cates
opinion further explained:
"Illinois courts have relied consistently
on three major public policy considerations
for the parent-child tort immunity doctrine:
(1) the preservation of family harmony, (2)
the discouragement of fraud and collusion, and
(3) the preservation of parental authority and
discipline. (See Ross, The Parental Tort
Immunity Doctrine Applied to Wrongful Death
Actions: A Rule Without Reason. Chamness v.
Fairtrace, 158 Ill. App. 3d 325, 511 N.E.2d 839 (5th Dist. 1987), 13 So. Ill. U. L.J. 175,
177-78 (1988).) Illinois courts have more
consistently espoused the preservation of
family harmony rationale. See McArdle,
Stallman v. Youngquist: Parent-Child Tort
Immunity: Will Illinois Ever Give This
Doctrine the Examination and Analysis it
Deserves?, 19 J. Marshall L. Rev. 807, 814-15
(1986); Nudd[ v. Matsoukas], 7 Ill. 2d [608,]
619[, 131 N.E.2d 525, 531 (1956)] ('only'
policy which might justify doctrine in area of
negligence is 'reluctance to create litigation
and strife between members of the family
unit'); Illinois National Bank & Trust Co.[v.
Turner] (1980), 83 Ill. App. 3d 234, 238[, 403 N.E.2d 1256, 1260] (doctrine should not be
abolished in toto because of contemporary need
for family harmony); Wilkosz v. Wilkosz
(1984), 124 Ill. App. 3d 904, 909[, 464 N.E.2d 1232, 1236] (same); see also Gerrity v. Beatty
(1978), 71 Ill. 2d 47, 49[, 373 N.E.2d 1323,
1324].
Yet, Illinois courts have narrowed the
doctrine, by creating exceptions to it, where
the doctrine's public policy purposes do not
appear to be served. In Nudd, this court
'modif[ied]' the immunity doctrine by
recognizing an exception in an automobile
accident case where willful and wanton
misconduct was alleged. (Nudd, 7 Ill. 2d at
619[, 131 N.E.2d at 531].) Nudd implicitly
viewed the defendant father's conduct,
speeding on wet pavement and running a red
light, as beyond 'the scope of the parental
relationship.' (Nudd, 7 Ill. 2d at 619[, 131 N.E.2d at 531].) Nudd considered that the
'only' policy justifying parental immunity, a
reluctance to create litigation and family
strife, was not served by upholding the
immunity where the conduct was of that nature.
(Nudd, 7 Ill. 2d at 619[, 131 N.E.2d at 531].)
Nudd reasoned that barring a suit for conduct
which was not parental in nature did not
foster family harmony, but only deprived the
child of redress for his injuries. Nudd
accordingly allowed intrafamily litigation.
Following Nudd, however, the parent-child tort
immunity doctrine remained as a bar to
negligence actions.
Illinois courts, however, have carved out
additional exceptions to the immunity in the
area of negligence. An exception to the
immunity rule is now recognized where a child
sues a deceased parent. (Johnson v. Myers
(1972), 2 Ill. App. 3d 844[, 846, 277 N.E.2d 778, 779] (when the family relationship is
dissolved by death, the policy basis for the
immunity doctrine ceases to exist as well);
but see Marsh v. McNeill (1985), 136 Ill. App.
3d 616, 622[, 483 N.E.2d 595, 599] (parent-
child tort immunity barred wrongful death
action by representative of deceased parents'
estates against living daughter tortfeasor);
see also Edgington v. Edgington (1990), 193
Ill. App. 3d 104[, 549 N.E.2d 942].) Another
exception allows children to sue grandparents.
Gulledge v. Gulledge (1977), 51 Ill. App. 3d
972[, 367 N.E.2d 429] (rationale behind
immunity loses persuasive force when family
relations more distant than parent-child are
involved); see also Busillo v. Hetzel (1978),
58 Ill. App. 3d 682[, 374 N.E.2d 1090]."
(Emphasis added.) Cates, 156 Ill. 2d at 92-
93, 619 N.E.2d at 723.
The Cates majority opinion considered other inroads upon
the parental immunity doctrine and concluded that the "preservation
of family harmony" and the discouragement of fraud and collusion
considerations for the doctrine were no longer viable, but the
preservation of authority and discipline aspects of the doctrine
made sense and should be preserved. The Cates court indicated that
guidance can be gained from the opinion of this court in Schenk v.
Schenk, 100 Ill. App. 2d 199, 241 N.E.2d 12 (1968), and even more
from Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).
Cates, 156 Ill. 2d at 103-04, 619 N.E.2d at 728.
In Schenk, a father was permitted to bring an action
against his 17-year-old daughter for negligently driving an
automobile in such a way that the vehicle hit and injured him.
This court concluded that the suit would not necessarily severely
injure the family harmony and should be allowed. However, this
court also concluded that the family immunity rules should not be
disregarded in respect to:
"[the] conduct of either parent or child
arising out of the family relationship and
directly connected with the family purposes
and objectives in those cases where it may be
said that the carelessness, inadvertence or
negligence is but the product of the hazards
incident to inter-family living and common to
every family." Schenk, 100 Ill. App. 2d at
206, 241 N.E.2d at 15.
In Goller, a foster son brought suit against his foster
father for injuries he received while riding on the drawbar of a
tractor that was going from one field to another, both of which
were farmed by the foster father. Negligence was charged. The
Supreme Court of Wisconsin ultimately held that the foster father
did not have parental immunity because that immunity only existed
"where the alleged negligent act involves an exercise of ordinary
parental discretion with respect to the provision of food,
clothing, housing, medical and dental services, and other care."
Goller, 20 Wis. 2d at 413, 122 N.W.2d at 198. The Cates opinion
described the Goller decision in these words:
"Under the Goll[e]r standard, a child may
sue his parent for negligent conduct except
where the conduct involves 'an exercise of
parental authority *** [or] an exercise of
ordinary parental discretion with respect to
the provision of food, clothing, housing,
medical and dental services, and other care.'
[Citation.] The first limitation embraces the
area of parental discipline; and the second
has been interpreted as concerning only the
performance of legal duties and not moral
duties, such as a duty to supervise.
(Thoreson v. Milwaukee & Suburban Transport
Co. (1972), 56 Wis. 2d 231, 246-47, 201 N.W.2d 745, 753.) Arguably, under the Goll[e]r
standard, a child could not sue his parent for
a failure to maintain the family residence in
some manner (for instance, a failure to secure
carpeting)." Cates, 156 Ill. 2d at 90-91, 619 N.E.2d at 722.
While upholding the right of the daughter to sue her
father for negligent driving, the Cates court emphasized that
parental immunity still existed in a less structured area than
Goller would suggest to offer "protection to conduct inherent to
the parent-child relationship" (Cates, 156 Ill. 2d at 104, 619
N.E.2d at 729) and further stated:
"The standard we have thus developed
focuses primarily on conduct inherent to the
parent-child relationship, which conduct we
describe by approximating the Goll[e]r
standard without its enumerated duties. Such
a standard is consistent with other
jurisdictions which have abrogated the
immunity in order to achieve greater clarity
in the area of parent-child negligence. The
standard we have created is not, however, as
extreme because we do not fully abrogate the
immunity, but rely on an exception. Our
standard also allows a broader area of
negligent conduct to remain immunized. Thus,
under our standard, parental discretion in the
provision of care includes maintenance of the
family home, medical treatment, and
supervision of the child. A child may attempt
to sue a parent alleging that the child fell
on a wet, freshly mopped floor in the home,
but the immunity would bar such an action
because the parent was exercising his
discretion in providing and maintaining
housing for the child." (Emphasis added.)
Cates, 156 Ill. 2d at 105, 619 N.E.2d at 729.
The conduct with which the Augsburgers are charged is
severe, but plaintiff did not see fit to allege that conduct was
willful and wanton. If it was willful and wanton, parental
immunity would not be a defense. Cates, 156 Ill. 2d at 83, 619 N.E.2d at 718; Nudd, 7 Ill. 2d at 619, 131 N.E.2d at 531. The
second-amended complaint describes the Augsburgers' conduct as a
failure to supervise and monitor the child and the negligent
placement of the child in a closet. This is the very type of
conduct for which the Cates opinion would still provide for the
defense of parental immunity. Clearly, if the Augsburgers were the
natural parents of the deceased child, parental immunity would be
an affirmative defense to counts I and II of the second-amended
complaint.
We finally come to the question of whether foster parents
of the type the Augsburgers were are entitled to parental immunity.
No Illinois decision is directly on point. In Rourk v. State, 170
Ariz. 6, 821 P.2d 273 (1991), Mayberry v. Pryor, 422 Mich. 579, 374 N.W.2d 683 (1985), and Andrews v. County of Otsego, 112 Misc. 2d
37, 446 N.Y.S.2d 169 (1982), similar types of foster parents have
been denied parental immunity for torts upon foster children. On
the other hand, in Brown v. Phillips, 178 Ga. App. 316, 342 S.E.2d 786 (1986), and Mitchell v. Davis, 598 So. 2d 801 (Ala. 1992),
parental immunity has been granted such types of foster parents.
In Goller, the foster father had custody of the injured
minor under circumstances similar to those here. A specially
concurring justice would have decided the case on the basis that
the foster father could have no parental immunity because foster
parents do not have such an immunity. The majority impliedly
rejected that theory because they spoke of the foster father as
being a father, as did the Cates opinion (Cates, 156 Ill. 2d at
90, 619 N.E.2d at 722). Had the Goller majority deemed that foster
parents could not have parental immunity, it would have been
unlikely to struggle with the question of whether the particular
circumstances of the child's injuries triggered the doctrine of
parental immunity. Had the Cates majority not thought that the
father in Goller would, under the circumstances, have had parental
immunity, the Cates court would have been unable to tie into Goller
as a significant case in regard to parental immunity.
Unquestionably, foster parents under the circumstances of
the Augsburgers have responsibility in regard to the supervision
and discipline of those children under their care. Negligence in
that regard is what is charged here. Foster parents are nearly as
much in need of leeway in this regard as are natural parents.
Often animosity can exist between natural parents and foster
parents. Exposure to suit for negligence in supervising and
disciplining the children in their custody would be a deterrent to
the best performance by the foster parents in this regard. We find
no precedent for denying parental immunity here and deem the
granting of it consistent with the theory of Cates.
Plaintiff maintains that the fact that the injured child
is now deceased is an appropriate reason for denying immunity.
That logic would be most appropriate if the purpose of immunity was
to preserve family harmony or to avoid collusion. However, those
factors are no longer grounds for imposing immunity. The
subsequent death of the child does not bear upon the freedom the
natural parent or foster parent needs to deal with the child in his
or her lifetime.
As we conclude that the Augsburgers were clothed under
parental immunity from suit for negligence in regard to their
supervision and discipline of the deceased minor, we affirm the
judgment of the circuit court dismissing counts I and II of the
second amended complaint.
Affirmed.
KNECHT, J., concurs.
COOK, J., dissents.
 JUSTICE COOK, dissenting:
I respectfully dissent and would reverse and remand the
decision of the trial court.
The doctrine of parental immunity has been significantly
narrowed in recent years. The majority decision runs contrary to
that trend by applying the doctrine, for the first time, to foster
parents. See W. Keeton, Prosser & Keeton on Torts 122, at 905
n.43 (5th ed. 1984).
The majority concludes the foster parents here should be
granted immunity because of the policy consideration favoring "'the
preservation of parental authority and discipline.'" Slip op. at
6, quoting Cates, 156 Ill. 2d at 92, 619 N.E.2d at 723. In my
view, there is a significant difference between (many) foster
parents on the one hand, and natural parents, adoptive parents, and
stepparents on the other. As I argued in my dissent when this case
first came before this court, that difference is permanency of
relationship. Country Mutual Insurance Co. v. Peoples Bank, 286
Ill. App. 3d 356, 362-66, 675 N.E.2d 1031, 1035-37 (1997) (Cook,
J., dissenting). A foster parent is often only "a temporary way
station on the road of a child's life until the difficulties at
home can be straightened out." Johnson v. Burnett, 182 Ill. App.
3d 574, 582, 538 N.E.2d 892, 897 (1989).
To some extent children are stuck with their natural
parents, and perhaps it is best to bar some tort actions in the
interest of the "preservation of parental authority and disci-
pline." Children are not stuck with their foster parents, however.
If problems arise, new foster parents may be appointed. If Louise
had survived this incident, would we really expect her to be
returned to the care of the Augsburgers? The Augsburgers also had
temporary custody of Louise's brother, Sean, and that custody was
terminated immediately after the incident. Preservation of
parental authority and discipline is not a realistic concern in
this case.
Perhaps the majority's concern is not with the particular
parent-child relationship in this case, but with the effect of this
case on future relationships. Will there be a "chilling effect" on
future foster parents who attempt to discipline children placed in
their care? The fact of the matter is that foster parents do not
decide for themselves how parental authority should be exercised or
discipline imposed. The discipline of foster children is already
closely regulated by the DCFS. See 89 Ill. Adm. Code 402.21
(1996) ("Discipline of Children").
The majority indicates that "the discouragement of fraud
and collusion" (slip op. at 9) is no longer recognized as a valid
reason for a parental immunity rule. See slip op. at 14-15. To
the extent that reason has any lingering validity, I would note
there is no possibility of fraud or collusion in this case. Unlike
natural parents, adoptive parents, or stepparents, there is no way
that foster parents will receive any pecuniary benefit in a case
like this. Louise was a ward of the court, and her financial
affairs are under the control of the court, not the Augsburgers.
The majority finds it significant that plaintiff did not
allege willful and wanton misconduct, where parental immunity would
not be a defense. Slip op. at 12. There may be reasons why
plaintiff did not allege the conduct was willful and wanton.
Plaintiff has also filed an action regarding this incident in the
Court of Claims against DCFS (95 Ill. Ct. Cl. 3757) and may be
concerned that an allegation of willful and wanton misconduct in
this case would hinder the prosecution of that case.
I agree with the majority that this action is not barred
by sovereign immunity.