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June 5, 1997


Appeal from Circuit Court of McLean County. No. 94L244. Honorable William T. Caisley, Judge Presiding.

Honorable Frederick S. Green, J., Honorable James A. Knecht, J. - Concur, Honorable Robert W. Cook, J. - Dissent. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

This appeal concerns the portion of a suit brought on behalf of the estate of a minor that seeks recovery in tort for negligence against the foster parents of the deceased minor. The foster parents allegedly had custody of the minor by virtue of a placement by Youth Services of Mid-Illinois, Inc. (Youth Services), pursuant to a contract it had with the Illinois Department of Children and Family Services (DCFS) concerning dependent and neglected children. We hold that the Suit against the foster parents was not barred by sovereign immunity but was barred by parental immunity because the negligence charge concerned the foster parents' supervision and discipline of the child.

The suit began on August 21, 1995, when plaintiff, then known as The Peoples Bank but now known as Commerce Bank, acting as administrator of the estate of Louise Osborn, a deceased minor child, brought suit in the circuit court of McLean County against defendants, Matthew Augsburger, Sarah Augsburger, Youth Services, and others not party to this appeal, seeking recovery for injuries to and the death of the deceased minor child. Counts I and II of a second-amended complaint were directed against the Augsburgers. On March 25, 1996, the circuit court allowed the Augsburgers' motion to dismiss those counts in bar of action and subsequently entered an order under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) making that order appealable. Plaintiff has appealed. We affirm.

The second-amended complaint made various allegations applicable to all counts and then, in the various counts, more specific allegations were made. As to counts I and II, the complaint stated: (1) DCFS entered into a contract with Youth Services whereby the latter would obtain foster homes for children in the custody of DCFS; (2) pursuant to that contract, plaintiff's decedent, a three-year-old child and a DCFS ward, was placed with the Augsburgers by Youth Services; (3) the child died in the Augsburgers' home from asphyxiation and hyperthermia when the Augsburgers confined her in an enclosed space described as the "upper half of a divided shelf of a wooden cabinet inside a bedroom closet at [their] home with the door closed"; (4) the Augsburgers placed the child in the confined area; and (5) the Augsburgers "negligently, carelessly, and improperly supervised " the child's activities and failed to "monitor" the child's activities "by providing no direct supervision." (Emphasis added.) Plaintiff sought recovery for wrongful death (740 ILCS 180/1 (West 1994)) under count I and injuries during her lifetime pursuant to the Survival Act (755 ILCS 5/27-6 (West 1994)) under count II.

The Augsburgers' motion to dismiss was made under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), setting forth the affirmative defense that as foster parents the Augsburgers had parental immunity. The circuit court agreed. For the first time, on appeal, the Augsburgers contend the dismissal of counts I and II is supportable because they were agents of the state and, thus, clothed with governmental immunity. Such a late contention is permissible because governmental immunity is treated as depriving the circuit court of jurisdiction under the terms of section 8(d) of the Court of Claims Act (705 ILCS 505/8(d) (West 1994)). See Robb v. Sutton, 147 Ill. App. 3d 710, 498 N.E.2d 267, 101 Ill. Dec. 85 (1986). Lack of subject-matter jurisdiction is an issue that can be raised at any time. Currie v. Lao, 148 Ill. 2d 151, 157, 592 N.E.2d 977, 979, 170 Ill. Dec. 297 (1992).

In any event, we conclude that the Augsburgers did not have governmental immunity. The case they rely most heavily upon is Griffin v. Fluellen, 283 Ill. App. 3d 1078, 670 N.E.2d 845, 219 Ill. Dec. 167 (1996). There, the appellate court affirmed the dismissal of a suit on governmental immunity grounds brought, as here, on behalf of a foster child for alleged tort of the foster mother. There, the foster mother had been hired directly by DCFS and was paid by that governmental entity. Here, the alleged contract between DCFS and Youth Services described Youth Services as an independent contractor, and the agreement between Youth Services and the Augsburgers described the Augsburgers as independent contractors. No case has been called to our attention in which a party so attenuated from the state, as the Augsburgers were here, has been held to have governmental immunity.

In Illinois Nurses Ass'n v. Illinois State Labor Relations Board, 196 Ill. App. 3d 576, 554 N.E.2d 404, 143 Ill. Dec. 469 (1990), the Department of Corrections (DOC) contracted with a private corporation, described in the contract as an independent contractor, to provide health-care services to DOC facilities. The private corporation was determined to be a state agent for the purpose of determining whether it was subject to the Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, par. 1603(o)). The Illinois Nurses Ass'n court noted that the contract gave DOC authority to approve the nurses the corporation sent to the facilities and the power to discharge those nurses. Illinois Nurses Ass'n, 196 Ill. App. 3d at 579, 554 N.E.2d at 406. Here, no provision in the contract between DCFS and Youth Services gives similar authority to DCFS in regard to the foster parents.

The relationship between the state and the Augsburgers, who had contracted with Youth Services, which had contracted with the state, is too remote to give the Augsburgers governmental immunity. This is particularly true where the state had so little control over the Augsburgers. The doctrine of sovereign immunity did not justify the dismissal of counts I and II.

Accordingly, we turn to the more complicated and difficult decision as to whether the Augsburgers had parental immunity because, as foster parents of the deceased child, they stood in loco parentis to the child. This brings into play the dual questions of the extent of parental immunity even in regard to natural parents and whether that immunity exists as to foster parents of the type here, where the children were state wards and had been placed, for what could be a short time, with foster parents being paid for the care of the children.

The binding Illinois case on the subject of parental immunity is the comparatively recent case of Cates v. Cates, 156 Ill. 2d 76, 619 N.E.2d 715, 189 Ill. Dec. 14 (1993). There, a suit was brought on behalf of a daughter against her father for injuries she received in a collision while riding as a passenger in a motor vehicle driven by him. Negligence was charged and the father claimed parental immunity. The circuit court granted the father's motion to dismiss on parental immunity grounds, the appellate court affirmed, but the supreme court reversed. That court held that no parental immunity existed when the duty to drive carefully was owed by the father, not merely to the daughter, but to the public generally. Thus, the Cates court concluded that the negligence of the father did not involve the supervision or discipline of the child and did not bring into play the doctrine of parental immunity. Cates, 156 Ill. 2d at 106, 619 N.E.2d at 729. The Cates opinion discussed in detail the parental immunity rule. It explained that the doctrine did not exist in the English common law but arose from Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), and Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905). The Cates opinion further explained:

"Illinois courts have relied consistently on three major public policy considerations for the parent-child tort immunity doctrine: (1) the preservation of family harmony, (2) the discouragement of fraud and collusion, and (3) the preservation of parental authority and discipline. (See Ross, The Parental Tort Immunity Doctrine Applied to Wrongful Death Actions: A Rule Without Reason. Chamness v. Fairtrace, 158 Ill. App. 3d 325, 511 N.E.2d 839, 110 Ill. Dec. 662 (5th Dist. 1987), 13 So. Ill. U. L.J. 175, 177-78 (1988).) Illinois courts have more consistently espoused the preservation of family harmony rationale. See McArdle, Stallman v. Youngquist: Parent-Child Tort Immunity: Will Illinois Ever Give This Doctrine the Examination and Analysis it Deserves?, 19 J. Marshall L. Rev. 807, 814-15 (1986); Nudd[ v. Matsoukas], 7 Ill. 2d [608,] 619[, 131 N.E.2d 525, 531 (1956)] ('only' policy which might justify doctrine in area of negligence is 'reluctance to create litigation and strife between members of the family unit'); Illinois National Bank & Trust Co. [v. Turner] (1980), 83 Ill. App. 3d 234, 238[, 403 N.E.2d 1256, 1260, 38 Ill. Dec. 652] (doctrine should not be abolished in toto because of contemporary need for family harmony); Wilkosz v. Wilkosz (1984), 124 Ill. App. 3d 904, 909[, 464 N.E.2d 1232, 1236, 80 Ill. Dec. 249] (same); see also Gerrity v. Beatty (1978), 71 Ill. 2d 47, 49[, 373 N.E.2d 1323, 1324, 15 Ill. Dec. 639].

Yet, Illinois courts have narrowed the doctrine, by creating exceptions to it, where the doctrine's public policy purposes do not appear to be served. In Nudd, this court 'modified' the immunity doctrine by recognizing an exception in an automobile accident case where willful and wanton misconduct was alleged. ( Nudd, 7 Ill. 2d at 619[, 131 N.E.2d at 531].) Nudd implicitly viewed the defendant father's conduct, speeding on wet pavement and running a red light, as beyond 'the scope of the parental relationship.' ( Nudd, 7 Ill. 2d at 619[, 131 N.E.2d at 531].) Nudd considered that the 'only' policy justifying parental immunity, a reluctance to create litigation and family strife, was not served by upholding the immunity where the conduct was of that nature. ( Nudd, 7 Ill. 2d at 619[, 131 N.E.2d at 531].) Nudd reasoned that barring a suit for conduct which was not parental in nature did not foster ...

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