extent the Complaint relies on the failure of the Defendants to install fences or other security devices, it is dismissed.
The Defendants argue that the negligence counts must be dismissed because the sole proximate cause of Ms. Wilson's injury was the assault upon her by a person or persons unknown rather than any negligence on their part. Again, we must disagree.
In a negligence claim, the Plaintiffs must show duty, breach and causation. See, e.g., American Nat'l Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14, 594 N.E.2d 313, 318, 171 Ill. Dec. 461 (Ill. 1992); Schultz v. Hennessy Indus., Inc., 222 ILL. APP. 3d 532, 165 ILL. Dec. 56, 584 N.E.2d 235 (Ill. App. Ct. 1991). Causation is an amalgam of two sub-elements, cause in fact and legal or proximate
cause. Cause in fact simply presents the familiar sine qua non test: but for the defendants' conduct, would the injury to plaintiff had occurred? See, e.g., W. Page Keeton, Prosser and Keeton on Torts § 41 at 266 (5th ed. 1984). Defendants do not argue that cause in fact is lacking here.
Once the question of cause in fact has been dealt with, we must inquire into the issue of proximate cause. Benner v. Bell, 236 Ill. App. 3d 761, 602 N.E.2d 896, 899, 177 Ill. Dec. 1 (Ill. App. Ct. 1992), appeal denied, 148 ILL. 2d 639, 183 Ill. Dec. 15, 610 N.E.2d 1259 (Ill. 1993). Proximate cause has been analyzed in endless variation by the courts, but is essentially a policy tool that allows courts to shield from liability those wrongdoers whose conduct is extremely remote from the injury to the plaintiff. Benner, 602 N.E.2d at 899. Defendants seek to use that policy tool to bar the Plaintiffs from recovery.
Of course, there can be more than one act which creates the proximate cause of an injury. Long v. Friesland, 178 Ill. App. 3d 42, 532 N.E.2d 914, 922, 127 Ill. Dec. 85 (Ill. App. Ct. 1988) (citation omitted). Where the injury is caused by the concurrent negligence of two parties and the accident would not have occurred without the negligence of both, both negligent acts are the proximate cause of the injury.
Defendants argue that any wrong that they are accused of did not cause the Plaintiffs' injuries. Rather, they assert that any their conduct merely created a condition that allowed the Plaintiff to be injured through her own actions and the actions of others. See, e.g., Gilbertson v. Rolscreen Co., 150 Ill. App. 3d 192, 501 N.E.2d 954, 957, 103 Ill. Dec. 637 (Ill. App. Ct. 1986) (window manufacturer not liable to mental patient who kicked window out and was injured in jump to the ground). Indeed, it is a well-established tenet of Illinois law that the proximate cause of an injury is distinct from a condition that merely makes the injury to the plaintiff possible. Lane v. Harvey, 178 Ill. App. 3d 270, 533 N.E.2d 75, 79, 127 Ill. Dec. 457 (Ill. App. Ct. 1988). This long-standing rule, which we refer to as the "cause/condition dichotomy," has been applied by numerous Illinois courts,
and it is this rule that the Defendants argue mandates dismissal of Counts III, IV and V. Once again, we must disagree.
Though recent courts have expressed confusion as to the proper analysis under the cause/condition dichotomy,
the analysis is simply a function of the intervening cause analysis:
The test in determining whether both acts constitute concurrent proximate cause is whether the first wrongdoer might have reasonably anticipated or foreseen the intervening cause as a natural and probable result of the first wrongdoer's negligence.
Long, 532 N.E.2d at 922 (citing Merlo, 45 N.E.2d at 675). Where an intervening action is not the natural or probable result of the first wrongdoer's negligence, the causal chain is broken and the original negligence is merely a condition to which no liability attaches. Id. (test is whether first wrongdoer could have anticipated intervening act). See also Benner, 602 N.E.2d at 900-01 (recognizing that, with the adoption of comparative fault, a case may arise where plaintiff's own actions are an intervening cause).
Thus, our inquiry is whether the Defendants could have reasonably foreseen that Ms. Wilson would attempt to escape Madden if given the opportunity and that, if she did so, she would be in danger of harm. At this early stage of this proceeding, the record shows that such an incident was clearly foreseeable given Wilson's documented penchant for unsupervised forays, her blind trust of strangers, and her warning to a staff member that the "voices" were telling her to flee again. Further, unless the facts are undisputed and are such that there can be no difference in the judgment of reasonable persons as to the inferences to be drawn from them, foreseeability is a question of fact for the jury to decide. Benner, 602 N.E.2d at 899-900; Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 493 N.E.2d 1022, 1028, 98 Ill. Dec. 1 (Ill. 1986). Therefor, we decline to dismiss this case on causation grounds.
C. Social Worker Malpractice
In their Reply Brief, Defendants suggest that the Illinois courts have refused to recognize a cause of action for social worker malpractice. In support of this proposition, they cite cases from the Fourth District Appellate Court. See e.g., Petrowsky v. Family Serv. of Decatur, Inc., 165 Ill. App. 3d 32, 518 N.E.2d 664, 116 Ill. Dec. 42 (Ill. App. Ct. 1987); Martino v. Family Serv. Agency, 112 Ill. App. 3d 593, 445 N.E.2d 6, 67 Ill. Dec. 714 (Ill. App. Ct. 1982).
Though the Defendants cite cases in their favor, the cases that they fail to cite show that this issue is not nearly as clear as they would lead us to believe. Other Appellate Districts have rejected Martino and allowed plaintiffs to proceed on claims of social worker malpractice. See, e.g., Roe v. Catholic Charities, 225 Ill. App. 3d 519, 588 N.E.2d 354, 167 Ill. Dec. 713 (Ill. App. Ct. 5th Dist. 1992), appeal denied, 225 Ill. App. 3d 519, 602 N.E.2d 475 (Ill. 1992)); Wogelius v. Dallas, 152 Ill. App. 3d 614, 504 N.E.2d 791, 796, 105 Ill. Dec. 506 (Ill. App. Ct. 1st Dist. 1987) (listing elements of cause of action); Horak v. Biris, 130 Ill. App. 3d 140, 474 N.E.2d 13, 17, 85 Ill. Dec. 599 (Ill. App. Ct. 2nd Dist. 1985) ("contrary to the reasoning set forth in the Martino decision, we believe that the facts alleged and admitted in the instant case are sufficient to establish a cause of action for social worker malpractice.") We are not free to simply ignore these cases as the Defendants have, and we reject the Defendants' argument that social worker malpractice is not recognized by the Illinois courts.
D. State Law Immunity
Defendants finally argue that the negligence claims in this case are barred by various state law immunities including public officials' immunity and absolute immunity. However, the Defendants have made no showing that these doctrines apply here: these theories are only lightly touched upon in short paragraphs at the conclusion of the Defendants' briefing. Apparently, it is up to this court to discern on its own what the scope of these immunities is and whether or not they apply in the present case. Unfortunately, we have neither the time nor the inclination to make the Defendants' arguments for them and we decline their invitation to do so. Hence, we deny the motion to the extent it relies on state law immunities without prejudice. We note, however, that any attempt to make these arguments in the future should be supported by principled analysis.
For the reasons stated above, the Defendants' Motion to Dismiss is granted in part and denied in part. Count I, the substantive due process claim, is dismiss as barred by qualified immunity. Count III, to the extent it relies on Defendant Formigoni's failure to install a fence or other security equipment at Madden, (See Compl. P 65(a), (b)), is also dismissed pursuant to the doctrine of sovereign immunity. The remainder of the Complaint shall stand.
PAUL E. PLUNKETT
UNITED STATES DISTRICT JUDGE
DATED: August 6, 1993