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04/01/97 MARY MCGEE v. JOHN A. HEIMBURGER

April 1, 1997

MARY MCGEE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TRAVIS MCGEE, DECEASED, PLAINTIFF-APPELLANT,
v.
JOHN A. HEIMBURGER, DEFENDANT, AND JAMES W. HEIMBURGER AND JUDY HEIMBURGER, RESPONDENTS IN DISCOVERY-APPELLEES.



Appeal from Circuit Court of Champaign County. No. 95L975. Honorable George S. Miller, Judge Presiding.

As Corrected September 16, 1997.

Honorable Robert J. Steigmann, P.j., Honorable Rita B. Garman, J. - Concur, Honorable James A. Knecht, J. - Concur. Presiding Justice Steigmann delivered the opinion of the court.

The opinion of the court was delivered by: Steigmann

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In June 1995, plaintiff, Mary McGee (McGee), individually and as personal representative of the estate of Travis McGee, sued defendant, John Heimburger, to recover damages for Travis' injuries and his wrongful death that resulted when John shot him. McGee also named John's parents, James and Judy Heimburger, as respondents in discovery, pursuant to section 2-402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-402 (West 1994)).

In January 1996, McGee filed a motion to convert the respondents in discovery to defendants. McGee sought to allege a cause of action against Judy pursuant to section 4(c) of the Firearm Owners Identification Card Act (Act) (430 ILCS 65/4(c) (West 1992)) and against both James and Judy pursuant to section 3 of the Parental Responsibility Law (Responsibility Law) (740 ILCS 115/3 (West 1992)). In February 1996, the trial court conducted a hearing on McGee's motion to convert and denied it.

McGee appeals, arguing that the trial court erred by denying her motion to convert the respondents in discovery to defendants because (1) Judy is liable pursuant to section 4(c) of the Act; and (2) McGee established probable cause that John was an unemancipated minor pursuant to section 3 of the Responsibility Law.

We affirm in part, reverse in part and remand.

I. BACKGROUND

On October 2, 1992, Judy executed written consent, pursuant to section 4(a)(2)(i) of the Act (430 ILCS 65/4(a)(2)(i) (West 1992)), authorizing John (her then-minor son, born June 17, 1975) to possess and acquire firearms and firearm ammunition. Judy gave her written consent as part of John's application for a firearm owner's identification (FOID) card. In June 1993, the Illinois State Police denied John's application because of his prior misdemeanor conviction for other than a traffic violation. On July 7, 1993, John shot Travis with a firearm and killed him.

At the February 1996 hearing on McGee's motion to convert, Champaign police detective Zane Ziegler testified that he interviewed John shortly after his arrest (a few days after the shooting). During that interview, John stated that he went home after the shooting; John further gave his parent's address when asked where his "home" was located. In her discovery deposition, Judy testified that John had moved from the family residence to a shared apartment sometime in early June 1993. She did not know whether he planned to stay "full[-]time" in the apartment. She testified that between early June 1993 and July 7, 1993, John did not pay all of his personal living expenses. However, she also said that she did not give John any living expenses during that time. She and her husband provided John with a vehicle for his use on a daily basis. They also maintained a furnished bedroom for John, which he frequently used. John also continued to receive some mail (magazines) at his parents' residence. During June and July 1993, John worked on the family farm in exchange for other services, such as car insurance payments; he was not employed elsewhere at the time of the shooting.

After considering the evidence and the parties' arguments, the trial court denied McGee's motion to convert respondents in discovery to defendants. The court found that (1) section 4(c) of the Act--which McGee cited as the basis for her claims against Judy--"creates liability in the parent upon the parent's written consent on the application only if the application results in an effective card being issued"; and (2) McGee failed to establish probable cause that John was an unemancipated minor residing with his parents at the time of the shooting pursuant to section 3 of the Responsibility Law.

II. ANALYSIS

A. Motion To Convert Judy to a Defendant ...


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