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Wilkosz v. Wilkosz





Appeal from the Circuit Court of McHenry County; the Hon. Roland Hermann, Judge, presiding.


This case concerns the doctrine of parent-child tort immunity and raises the question of whether the immunity should bar a negligence claim brought by an 18-year-old against her father. Debra M. Wilkosz, plaintiff, alleged that the negligence of her father, Robert A. Wilkosz, defendant, caused an automobile collision which resulted in her sustaining severe and permanent injury. Defendant moved for summary judgment contending that there was no genuine issue as to any material fact. The circuit court of McHenry County granted summary judgment as to those counts directed against defendant Wilkosz and plaintiff appeals.

Plaintiff raises the following issues on appeal: (1) whether the doctrine of parent-child tort immunity applies only to unemancipated minor children; (2) whether the factual situation in the present case fits within the "beyond the family purpose" exception to the parent-child tort immunity doctrine; (3) whether questions of fact existed which make the imposition of summary judgment inappropriate; (4) whether the doctrine of parent-child tort immunity should be abolished in Illinois; and (5) whether summary judgment was improperly granted because the parent-child tort immunity does not bar actions based on wilful and wanton conduct.

It was a dark and snowy night when defendant drove to pick up his daughter from her part-time job at Kentucky Fried Chicken near Crystal Lake, Illinois. At approximately 8:15 p.m. on January 12, 1982, defendant and his daughter proceeded to McHenry Jr. College to pick up defendant's son, Richard. Because Richard was not ready to leave school, plaintiff and defendant headed back to Crystal Lake. According to plaintiff's deposition, they were going to pick up Richard later, at about 9 p.m. While driving down snow-covered U.S. Route 14 in Crystal Lake, plaintiff and defendant were involved in a collision with another vehicle. Plaintiff does not remember any details of the accident and only remembers waking up in the hospital afterwards. Plaintiff was 18 years of age at the time of the accident.

Plaintiff's suit alleged in counts I and II that her father's negligence caused her to sustain severe and permanent injury. Count III of the complaint was directed against the driver of the other vehicle involved in the collision, Vernon L. Welge, Jr. Plaintiff's claim against Welge has been stayed pending this appeal. Welge brought suit against defendant herein in the related case of Welge v. Wilkosz. Defendant in the instant case filed a motion to dismiss, alleging the family, or parent-child, tort immunity doctrine barred actions for negligence between parents and children when the complained of conduct arises out of a family relationship and is directly connected with family purposes and objectives. Defendant argued that the complaint failed to make any affirmative allegation of facts to show that plaintiff's injury arose from any activity outside of the family relationship. Plaintiff's request for leave to amend was granted.

Plaintiff then amended her complaint to include the following language:

"b. Defendant, ROBERT A. WILKOSZ, prior to the occurrence complained of, had just picked up Plaintiff at her place of employment and was in the process of transporting her to her home; Plaintiff's employment was not family-related and thus was outside the family relationship."

Defendant subsequently moved for summary judgment. In support of the motion he attached excerpts from plaintiff's deposition in this case and his own deposition in Welge v. Wilkosz. Plaintiff had stated that her dad picked her up from work and they went to her brother's school and found he was unable to get out of school early. She stated that she did not know where they were going at the time of the accident — just that they were going to Crystal Lake and were going to return to pick up her brother at 9 p.m. The excerpt from defendant's deposition iterated a similar scenario. After finding out that his son, Richard, did not get out early because of the snow conditions, plaintiff and defendant turned back toward Crystal Lake. Defendant did not know if they were going home or what they were going to do until they picked up Richard.

Plaintiff then filed a second amended complaint, which alleged in count I, inter alia, that defendant was engaged in an activity outside the family relationship in that he was "engaged in a project unrelated to her [plaintiff], namely picking up the brother to take him from school to his residence; * * *." The complaint again alleged that plaintiff's employment was "not family-related and thus was outside the family relationship."

Defendant then amended his motion for summary judgment so as to include complete copies of the depositions of plaintiff and defendant. Plaintiff's deposition revealed that she had no recollection of how the accident occurred except that the rear of the car fishtailed briefly. In the remaining portion of the deposition she detailed the extent of her injuries. Defendant's complete deposition was not made part of the record on appeal. Without comment, the trial court found no genuine issue as to material fact and granted defendant's motion for summary judgment on both counts. Plaintiff's motion to consolidate this cause with Welge v. Wilkosz was denied. The trial court found no just reason to delay enforcement or appeal. 87 Ill.2d R. 304(a).

Plaintiff's first contention on appeal is that the parent-child immunity doctrine applies only to unemancipated minor children. She contends that the tort immunity rule does not apply to her because she is emancipated. However, her argument that she is emancipated turns solely on the fact that she was 18 at the time of the accident. We believe that, for purposes of the parent-child immunity doctrine, age is but one of the factors to be considered in determining whether an individual is emancipated.

Plaintiff argues that Illinois statutory law provides that a "person who has attained the age of 18 years is of legal age for all purposes except as otherwise provided in the Illinois Uniform Gifts to Minors Act." (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 11-1.) Plaintiff urges that because she was 18 at the time of the accident she was an adult and, therefore, the parent-child immunity doctrine does not apply. We disagree. The question presented in this case is not whether plaintiff is an adult or a minor, but whether she is emancipated from her parents. The above-quoted statute is found in the Probate Act of 1975, which is not in issue here.

The main case cited by plaintiff in support of this proposition is Waldron v. Waldron (1973), 13 Ill. App.3d 964, 301 N.E.2d 167. However, Waldron concerned the question of whether a father was required to continue making support payments to his son even though the legislature had reduced the age of majority from 21 to 18 years of age. (Ill. Rev. Stat. 1971, ch. 3, par. 131.) Waldron was merely concerned with whether the son was a "minor," not whether he was emancipated. Waldron does not support plaintiff's contention.

The case law which has considered the issue of what constitutes "emancipation" does not stress the age of the child as a determinative factor. For example, in State Farm Mutual Automobile Insurance Co. v. Differding (1977), 46 Ill. App.3d 15, 360 N.E.2d 522, rev'd on other grounds (1977), 69 Ill.2d 103, 370 N.E.2d 543, the court considered the question of what constitutes "emancipation" without mentioning the age of the party. The Differding court considered the question so as to determine whether a daughter qualified for automobile liability insurance coverage under her family insurance policy. The daughter had subleased an apartment and was in graduate school at Northern Illinois University in DeKalb. Nonetheless, the court held, she was unemancipated and did ...

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