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09/20/96 JOYCE GRIFFIN v. ETHEL FLUELLEN

September 20, 1996

JOYCE GRIFFIN, INDIV., AND AS MOTHER AND NEXT FRIEND OF VERNA GRIFFIN, A MINOR, PLAINTIFF-APPELLANT,
v.
ETHEL FLUELLEN, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JENNIFER DUNCAN-BRICE, JUDGE PRESIDING.

Released for Publication October 22, 1996.

The Honorable Justice McNAMARA delivered the opinion of the court: Zwick, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff Joyce Griffin appeals from the order of the circuit court of Cook County granting defendant Ethel Fluellen's motion to dismiss plaintiff's action for damages against defendant pursuant to section 2-619 of the Code of Civil Procedure (Code)(735 ILCS 5/2-619 (West Supp. 1993)). The central issue on appeal is whether the circuit court has subject matter jurisdiction over plaintiff's claims. We affirm the circuit court's order of dismissal on the ground that the Illinois Court of Claims has exclusive subject matter jurisdiction over this case. The relevant facts are as follows.

On March 8, 1994, plaintiff filed a complaint, seeking damages for the severe burn injuries sustained by her daughter, Verna Griffin, the minor plaintiff in this case, as the result of a fire at defendant's home on January 16, 1994. The complaint alleged in a single count that prior to the date of the fire, Verna had been placed in the legal custody of the Illinois Department of Children and Family Services (DCFS) and that thereafter DCFS placed her in the legal custody of Fluellen, a foster parent. As a result of their relationship, Fluellen allegedly had a duty to protect Verna, to provide her with food and shelter and to use a reasonable degree of care for her safety. The complaint further alleged that notwithstanding said duty, defendant was negligent in one of more of the following ways: (1) allowed other foster children in her care to gain access to the means to start a fire; (2) failed to take reasonably necessary steps to prevent foster children in her legal custody from starting a fire; and (3) failed to properly supervise her foster children when she knew, or should have known, that close supervision was necessary to prevent harm from befalling Verna. The complaint further alleged that as a direct and proximate cause of one or more of said acts, an unsupervised foster child set fire to the house, causing Verna to be severely burned.

On April 7, 1994, the law firm of Querrey & Harrow filed an appearance and jury demand on defendant's behalf, while on April 15, 1994, the Attorney General of the State of Illinois also filed an appearance and jury demand on defendant's behalf. On April 19, 1994, the Attorney General filed a motion to dismiss the complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West Supp. 1993)) for lack of subject matter jurisdiction. In that motion, the Attorney General asserted that DCFS had licensed defendant as a foster parent "for the past twenty five years," that any duty she owed to Verna arose by virtue of her employment by the State as a foster parent only and that defendant was entitled to sovereign immunity such that this case could be maintained only in the Illinois Court of Claims.

On April 26, 1994, plaintiff filed a request for production. This request sought the following:

"(a) Any contract between the Defendant and the State of Illinois or any department or agency thereof;

(b) Any letters, booklets, pamphlets or writings of any kind that set out, refer, or make reference in any way to the terms of employment of the Defendant with the State of Illinois, or any department or agency thereof;

(c) The complete personnel file of the Defendant;

(d) Any report, memo, note or other writing of any kind concerning Verna Griffin;

(e) Any report, memo, note or other writing of any kind concerning the fire at Defendant's house on January 16, 1994."

On May 12, 1994, defendant, by and through Querrey & Harrow, filed a combined motion to strike the complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West Supp. 1993)) for failure to state a cause of action and to dismiss the complaint pursuant to section 2-619 based on the assertion that the complaint was barred by the doctrine of parent-child tort immunity and that the Court of Claims has exclusive jurisdiction over this matter, since defendant ...


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