Paterson v. Lauchner

No. 2--97--0431
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

MARCIA PATERSON, as Parent and ) Appeal from the Circuit Court
Next Friend of Jonathan ) of Kane County.
Lauchner, a Minor, )
)
Plaintiff-Appellant, )
)
v. ) No. 96--L--87
)
)
MARK LAUCHNER, Individually and )
as Agent and/or Employee of )
Dukane Farms, Inc., )
) Honorable
) Timothy Q. Sheldon,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Marcia Paterson, as parent and next friend of
Jonathan Lauchner, appeals from the April 4, 1997, order of the
circuit court of Kane County granting summary judgment in favor of
Jonathan s father, defendant Mark Lauchner. Jonathan was struck
and injured by a tractor being driven by the defendant in the
course of his employment with Dukane Farms, Inc. (Dukane). The
trial court entered summary judgment on behalf of the defendant,
ruling that he was immune from liability pursuant to the parent-
child tort immunity doctrine. On appeal, the plaintiff argues that
(1) the defendant was not immunized from liability because the
negligent operation of a tractor is not inherent to the parent-
child relationship; (2) regardless of the defendant s individual
liability, Dukane is liable for Jonathan s injuries as the
defendant s employer; and (3) the trial court committed reversible
error by failing to consider the impact of liability insurance. We
affirm in part, reverse in part, and remand for further
proceedings.
On February 22, 1996, the plaintiff filed her complaint in the
circuit court of Kane County. The complaint alleged that, on
August 18, 1995, Jonathan Lauchner was injured by the left front
wheel of a tractor that was being driven by the defendant. As
noted above, the defendant was allegedly operating the tractor in
the course of his employment with Dukane. Specifically, paragraph
6 of the complaint alleged that the defendant committed the
following negligent acts:
(a) operated and controlled [the] tractor at an unreasonable
and unlawful speed ***;
(b) negligently and carelessly failed to keep a proper
lookout;
(c) failed to keep the tractor under proper and sufficient, or
any, control, so that it could be readily stopped;
(d) failed to properly supervise Jonathan Lauchner, of whom he
had temporary custody, by allowing him to be in the vicinity
of a dangerous vehicle;
(e) otherwise negligently and carelessly maintained, operated,
and controlled [the] tractor.
On November 15, 1996, the defendant filed a motion for summary
judgment, arguing that (1) there was no evidence that he had
negligently maintained or operated the tractor; and (2) he was not
liable for Jonathan s injuries under the parent-child tort immunity
doctrine. In support of his motion, the defendant provided the
transcript of his own deposition testimony as well as the
transcript of the deposition testimony of his son Jonathan.
At the defendant s deposition, he testified that on the date
in question he had visitation rights with Jonathan and Aaron, his
two sons, pursuant to a prior divorce decree. He testified that he
owned 50% of Dukane at the time of the accident. On the day of the
accident, he was hired to spray weeds with a tractor on Indian
Trail Road and had brought Jonathan and Aaron to work with him.
At approximately 2 p.m. on that date, the defendant had to
move the tractor in reverse in order to complete the spraying
procedure. Prior to moving the tractor, he and his two sons got
out of the tractor. He took the two boys about 50 feet southeast
of the tractor and told them to stay there. Then, he began to back
up in the tractor. After 15 seconds, the defendant looked and saw
that the two boys were in the same place. He testified that, as he
continued backing up, the left front tire of the tractor ran over
Jonathan s leg. The tractor was traveling at a rate of speed under
three miles per hour.
Jonathan testified that on the date in question he and his
brother, Aaron, accompanied their father on a tractor to spray
chemicals on some weeds on the side of a road. At the time of the
accident, Jonathan was 10 years old. At one point, the defendant
told Jonathan and Aaron that he was going to take the tractor to
the other side of the road. He told his sons to walk to the shade
on the other side of the road and to stay out of the way. Jonathan
did not say anything to Aaron as the defendant moved the tractor.
Jonathan turned and watched the defendant as he backed the
tractor. Then, Aaron walked over to the tractor, and Jonathan
followed, walking slowly. Aaron never asked Jonathan to follow
him. Jonathan did not know that the tractor was beginning to turn
towards him; he thought that the tractor was moving in a straight
line. As the tractor turned, it ran over his leg. The defendant
called for help, and Jonathan was taken to a hospital by ambulance.
He was placed in a body cast.
On January 21, 1997, the plaintiff filed a response to the
defendant s motion for summary judgment, arguing that (1) there was
sufficient evidence in the record to conclude that the defendant s
negligent operation of the tractor was the proximate cause of
Jonathan s injuries; and (2) the defendant was not immune from
liability under the parent-child tort immunity doctrine because
operating a tractor cannot be considered conduct inherent to the
parent-child relationship.
On April 4, 1997, following oral argument, the trial court
granted summary judgment in favor of the defendant. The trial
court explained its ruling as follows:
In the case at bar, the court finds that *** [the
defendant] was *** exercising his non-custodial visitation
privileges with his child. He took his child with him for a
scheduled parent-child visitation. During his visitation with
his child, there existed the parental responsibility to
exercise supervision over his child. In exercising his
supervision over his child during his visitation, the child
violated the father s instructions and left the father s field
of view and was injured.
This court finds that the [p]arent[-][c]hild [t]ort
[i]mmunity [d]octrine applies under the situation in the case
at bar ***. This situation is inherent to the parent-child
relationship of supervision of the child during a visitation
time. It constitutes an exercise of parental authority and
supervision over the child.
On April 14, 1997, the plaintiff filed a notice of appeal.
The plaintiff first argues that, in light of our supreme
court s holding in Cates v. Cates, 156 Ill. 2d 76 (1993), the trial
court erred in granting summary judgment based upon the parent-
child tort immunity doctrine. She argues that the negligent
operation of a tractor cannot be considered inherent to the parent-
child relationship.
At the outset, we note that summary judgment is appropriate
when the pleadings, depositions, and affidavits show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. 735 ILCS 5/2--
1005(c) (West 1996). The disposition of a summary judgment motion
is not discretionary, and the standard of review is de novo.
Quinton v. Kuffer, 221 Ill. App. 3d 466, 471 (1991). As the
plaintiff herein does not allege that a genuine issue of material
fact exists, our sole function is to determine whether judgment for
the defendant was properly entered as a matter of law. Cates, 156 Ill. 2d at 78.
Pursuant to the doctrine of parent-child tort immunity, a
parent is immune from liability in negligence tort actions brought
against him by his minor children. Davis v. Grinspoon, 212 Ill.
App. 3d 282, 284-85 (1991). Illinois courts have generally relied
upon the following 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. Cates, 156 Ill. 2d at 92.
The continuing viability of the parent-child tort immunity
doctrine was last considered by our supreme court in Cates v.
Cates, 156 Ill. 2d 76 (1993). In Cates, a suit was brought on
behalf of a daughter against her father for injuries she received
in an automobile collision. Cates, 156 Ill. 2d at 77. At the time
of the accident, the daughter was riding as a passenger in an
automobile driven by her father. Cates, 156 Ill. 2d at 77. After
an examination of the evolution of the parent-child tort immunity
doctrine in Illinois and other jurisdictions, the supreme court
partially abrogated the doctrine. The supreme court held that a
child may recover against a parent for negligence, except in
instances where the parent s conduct is inherent to the parent-
child relationship. Cates, 156 Ill. 2d at 104. The supreme court
concluded that the test for determining whether immunity applies is
whether the alleged conduct concerns parental discretion in
discipline, supervision and care of the child. Cates, 156 Ill. 2d
at 104. The supreme court explained its holding as follows:
[W]e conclude that the immunity should afford protection to
the parent-child relationship; such conduct constitutes an
exercise of parental authority and supervision over the child
or an exercise of discretion in the provision of care to the
child. These limited areas of conduct require the skills,
knowledge, intuition, affection, wisdom, faith, humor,
perspective, background, experience, and culture which only a
parent and his or her child can bring to the situation; our
legal system is ill-equipped to decide the reasonableness of
such matters.
*** 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. Cates, 156 Ill. 2d at 104-05.
Applying this test, the supreme court in Cates concluded that
the negligent operation of an automobile is not conduct inherent
to the parent-child relationship. Cates, 156 Ill. 2d at 106. In
so ruling, the supreme court explained that the operation of an
automobile does not represent a parent s decision-making in
disciplining, supervising or caring for his child. Cates, 156 Ill. 2d at 106. Rather, the court noted that the father in Cates owed
a duty to drive carefully not only to his daughter, but to the
public generally. Cates, 156 Ill. 2d at 106.
The plaintiff in the case at bar similarly argues that the
negligent operation of a tractor does not constitute conduct
inherent to the parent-child relationship. We agree. Under the
Cates analysis, we believe that the negligent operation of any
vehicle, whether it is an automobile or a tractor, is not conduct
inherent to the parent-child relationship. See Cates, 156 Ill. 2d
at 106. Such conduct does not involve a parent s decision-making
role in disciplining, supervising, or caring for his child. See
Cates, 156 Ill. 2d at 106. Rather, as in Cates, the defendant owed
a duty not only to his son but to the general public to drive the
tractor in a careful manner. See Cates, 156 Ill. 2d at 106. Even
though the defendant in the instant case may have been engaged, in
addition to the operation of the tractor, in parental conduct at
the time of the accident, we do not believe that this fact should
absolve him of liability. We therefore conclude that the parent-
child tort immunity doctrine does not immunize the defendant from
liability for his alleged negligent operation of the tractor.
In so ruling, we note that this court s holding in Davis v.
Grinspoon, 212 Ill. App. 3d 282 (1991), is inconsistent with Cates
and therefore must be overruled. In Davis, this court held that a
father s employer was immunized from liability based upon the
applicability of the parent-child tort immunity doctrine to the
father. Davis, 212 Ill. App. 3d at 286. In that case, a girl was
struck and killed by a motor vehicle being driven by her father in
the course of his employment. Davis, 212 Ill. App. 3d at 284. The
injury occurred when, while driving from one work site to another,
the father saw his family walking along a sidewalk. Davis, 212
Ill. App. 3d at 283. As the father pulled over to greet his
family, he struck his daughter. Davis, 212 Ill. App. 3d at 283.
This court held that the parent-child tort immunity doctrine was
properly applied in such a context, as the entire circumstance
which culminated in the daughter s death was within the family
relationship. Davis, 212 Ill. App. 3d at 286. This holding is
irreconcilable with the supreme court s determination that the
negligent operation of an automobile is not conduct inherent to the
parent-child relationship. See Cates, 156 Ill. 2d at 106.
Although we conclude that the defendant s negligent operation
of a tractor was not inherent to the parent-child relationship, we
find that it was proper for the trial court to grant summary
judgment on behalf of the defendant as to paragraph 6(d) of the
complaint. As mentioned above, paragraph 6(d) alleged that the
defendant failed to properly supervise Jonathan by allowing him to
be in the vicinity of a dangerous vehicle. The supreme court in
Cates expressly stated that the parent-child tort immunity doctrine
continues to immunize the exercise of parental supervision over a
child. Cates, 156 Ill. 2d at 104-05. As the conduct alleged in
paragraph 6(d) concerns the defendant s parental discretion in
supervising Jonathan, we conclude that the trial court properly
granted summary judgment to the defendant as to this particular
allegation. As our resolution of these issues is dispositive, we
need not address the plaintiff s remaining contention that the
trial court committed reversible error by failing to consider the
impact of liability insurance.
For the foregoing reasons, the judgment of the circuit court
of Kane County granting summary judgment on behalf of the defendant
as to paragraph 6(d) of the plaintiff s complaint is affirmed. The
remainder of the trial court s April 4, 1997, order granting
summary judgment as to the remaining allegations of the plaintiff s
complaint is reversed, and the cause is remanded for further
proceedings consistent with this opinion.
Affirmed in part and reversed in part; cause remanded.
BOWMAN and RATHJE, JJ., concur.