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07/31/87 Mid-America Trust Company, v. Deborah Moffatt

July 31, 1987

JONES ET AL., PLAINTIFF-APPELLANT

v.

DEBORAH MOFFATT, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

MID-AMERICA TRUST COMPANY, Guardian of the Estates of Kevin

511 N.E.2d 964, 158 Ill. App. 3d 372, 110 Ill. Dec. 787 1987.IL.1103

Appeal from the Circuit Court of St. Clair County; the Hon. John J. Hoban, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and LEWIS,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Plaintiff, Midamerica Trust Company, guardian of the estates of Kevin Jones, Jeremy Jones and Jessie Jones, appeals from the trial court's refusal to vacate its dismissal of the plaintiff's complaint.

In its three-count complaint, plaintiff states that it had been appointed guardian of the estates of Kevin Jones, Jeremy Jones, and Jessie Jones, three minor children of Virginia Williams. Deborah Moffatt, the defendant, is alleged to have been employed by the Department of Children and Family Services as a social worker and is described in the complaint as the agent of DCFS. According to counts I and II, on December 2, 1982, DCFS was granted guardianship of Kevin and Jeremy, without the power to consent to their adoption, as a result of the agency's allegations that their natural mother had neglected them. These children were placed in foster care from approximately October 1982 until December 16, 1983, when they were returned by DCFS to the physical custody of their natural mother.

The plaintiff alleges that defendant, in returning the children to their natural mother, knew that their various needs had to be monitored and that "in reckless disregard of her duty to protect [them] from neglect" committed one or more acts characterized as "wilful and wanton misconduct." Specifically, plaintiff contends that defendant knew of certain detrimental conditions and failed to take remedial action "in conscious disregard" of the health, safety and welfare of the children and of her duty to them. Plaintiff alleges that the children had consequently suffered injuries or illnesses and sought damages in an amount in excess of $15,000 for each child.

In count III, brought on behalf of Jessie Jones, plaintiff alleges that defendant was assigned by DCFS to monitor the home of Jessie's mother, that defendant knew of the mother's neglect of Jessie's siblings, and that defendant, "in her capacity as a social worker for DCFS" visited the mother's home "to check on the welfare" of Jessie. According to this count, defendant, "in her capacity as a social worker for DCFS," had a duty to protect Jessie from a neglectful environment and to report such an environment to Child Protective Services; that "in reckless disregard of her duty to protect the minor from neglect" defendant committed one or more acts characterized as wilful and wanton misconduct; and that Jessie consequently suffered pneumonia on two occasions. Plaintiff prayed for judgment on behalf of Jessie in an amount in excess of $15,000.

The defendant filed a motion to dismiss plaintiff's complaint on the grounds of sovereign immunity, public official immunity, judicial immunity, and failure to state a cause of action against the named defendant. By an order dated August 7, 1985, the circuit court allowed defendant's motion to dismiss.

On September 3, 1985, plaintiff filed a motion to reconsider and vacate the order of dismissal. That motion was denied on January 15, 1986. In its notice of appeal, plaintiff sought review of the January 15, 1986, order.

In Illinois, it is well settled that, pursuant to the doctrine of public official immunity, State officials and employees are fully protected from liability for acts falling within their official discretion. (Mora v. State (1977), 68 Ill. 2d 223, 369 N.E.2d 868; Larson v. Darnell (1983), 113 Ill. App. 3d 975, 448 N.E.2d 249.) The doctrine of public official immunity is "based upon the policy that public officials should be free to exercise their judgment according to their best perception of public needs." (Hanzel Construction, Inc. v. Wehde & Southwick, Inc. (1985), 130 Ill. App. 3d 196, 200, 474 N.E.2d 38, 42.) In Lusietto v. Kingan (1969), 107 Ill. App. 2d 239, 246 N.E.2d 24, where the plaintiff sought to impose liability on a maintenance supervisor for failure to repair a large and dangerous hole in the highway, the court illustrated the reasons for public official immunity:

"To hold the defendant liable in this case would be productive of many problems. Who, in the chain of command concerning state highways would be responsible? As orders filter down and reports filter up, would each individual in line be personally responsible? What if budget deficiencies due to insufficient legislative appropriations required a restriction in repair work so that only half the holes in the State's highways could be filled? Moreover, it is common knowledge that no highway is without imperfections. If every rut, hole, or blemish on the highway were to create the possibility of personal liability against one or more ...


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