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07/18/97 BRISSY ABRAHAM v. WAYSIDE CROSS RESCUE

July 18, 1997

BRISSY ABRAHAM, PLAINTIFF-APPELLANT,
v.
WAYSIDE CROSS RESCUE MISSION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 95--L--485. Honorable Hollis L. Webster, Judge, Presiding.

Released for Publication August 20, 1997.

The Honorable Justice Thomas delivered the opinion of the court. Colwell and Rathje, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

Plaintiff, Brissy Abraham, appeals the entry of summary judgment for defendant, Wayside Cross Rescue Mission, in plaintiff's negligence action. The issue for review is whether defendant had a duty to plaintiff to supervise one of its residents and to report any unauthorized absences.

The complaint alleged that defendant operated an inpatient rehabilitation center and "halfway house" in Aurora. Plaintiff's estranged husband, Abraham Abraham, was violent and abusive and had been sentenced to the Du Page County jail, for violating a juvenile court order of protection. On March 18, 1994, pursuant to a court order, Abraham was transferred from the jail and accepted as a resident at defendant's facility. Defendant allegedly knew or should have known of Abraham's history of and propensity for violence directed towards his family and plaintiff. On April 4, 1994, defendant permitted Abraham to leave the facility unsupervised. Abraham travelled to the family home in Elmhurst and stabbed plaintiff numerous times.

The complaint further alleged that defendant should have been aware that Abraham's prolonged, unauthorized absence was likely to enable him to inflict harm on others, specifically plaintiff. Defendant allegedly had a duty to monitor Abraham's comings and goings and to report any unexplained or unauthorized absences. Defendant breached this alleged duty by negligently supervising Abraham's activities; by failing to monitor his whereabouts when he was absent from the premises for extended periods; by failing to notify timely a law enforcement agency; and by allowing Abraham to absent himself freely from the premises so as to create a danger to others including plaintiff.

Defendant moved for summary judgment arguing that it had no duty to plaintiff. It submitted the affidavit of Rick Thomas, the chaplain at defendant's facility. Thomas averred that he oversaw Abraham's treatment while he was at the shelter. Abraham was enrolled pursuant to his own request. Defendant does not accept referrals from the court system, nor does it provide care pursuant to a court order. Defendant is privately funded and is not affiliated with any court system or governmental body. Abraham was not transferred from the Du Page County court pursuant to a court order. Defendant agreed only to provide Abraham rehabilitative assistance for alcoholism; it did not provide any psychological evaluation. While Abraham was at the shelter, he did not exhibit violent tendencies and made no threats of violence. Because defendant's program accepts only those who request to be there, Abraham was free to leave any time during his enrollment at defendant's facility.

Plaintiff responded with the discovery deposition of Evelyn Pharms, the Department of Children and Family Services (DCFS) caseworker assigned to the Abrahams. The department had been involved with the family since November 1992. Pharms testified that Abraham had a history of drug abuse and violence towards plaintiff. He had threatened to physically harm the family "to the point where the police were involved." On March 4, 1994, a juvenile order of protection was entered prohibiting Abraham from having contact with plaintiff or their children. Abraham violated the order of protection and was sentenced to 30 days in jail. However, Abraham was allowed to be released from jail if he entered a halfway house for alcoholism treatment. A jail social worker gave Pharms and Abraham the names of facilities, including defendant. The criteria for an acceptable halfway house were that it be willing to inform the court about Abraham's progress, have an alcohol treatment program where he could go for Alcoholics Anonymous (AA), and provide housing.

Pharms further testified that, when she called defendant's facility, she spoke to George Patterson, who told her the length of the program and "that it was run like a dormitory and that their clients are allowed to go out on furloughs." Pharms' understanding of the furlough system was that Abraham would be given approval to go specific places at times authorized by DCFS and the court. However, leaving the premises for a short time within the community would not be considered a furlough. She also understood that Abraham would not be allowed to leave the premises without prior approval from his counselor at defendant's facility.

Pharms went to juvenile court and got an order to release Abraham to go to defendant's facility. Pharms took Abraham to the facility, where she met with Thomas. She informed him of the juvenile court's involvement, the concerns about Abraham's drinking, and that the court wanted him to be in an alcoholism treatment program. Pharms also discussed Abraham's domestic violence problems and police contacts and the order conditioning Abraham's release on enrollment in the halfway house. Pharms also stated that she told Thomas she needed to be contacted for, and DCFS needed to approve, furloughs because Abraham could not have contact with plaintiff. Between Abraham's entry into defendant's program and April 4, 1994, he was conforming to the program, was working, and denied that he was having any problems.

Pharms also testified that Abraham had a court date on April 4 and that someone at defendant's facility advised her that Abraham would be transported to the court hearing. Pharms admitted that she was aware of defendant's policy that clients were allowed free time in the evening until 9:30 p.m. This meant that Abraham was free to come and go during that time. She also admitted that, as defendant's was not a locked facility, she was aware that Abraham could walk away at any time.

Pharms related that, prior to the April 4 incident, defendant informed her that there were no suspicions that Abraham was using alcohol nor did he smell of alcohol. According to Pharms, Abraham was perceived as a risk "primarily when he was drinking."

The trial court granted defendant summary judgment, finding that defendant did not have a duty to be responsible for Abraham's whereabouts. The court used the test set forth in Reynolds v. National R.R. Passenger Corp., 216 Ill. App. 3d 334, 160 Ill. Dec. 87, 576 N.E.2d 1041 (1991). The court also noted that Abraham did not make any threats against plaintiff while he was at defendant's facility. The court emphasized that, in considering the foreseeability of the injury and the magnitude of guarding against it, the prevailing public policies concerning alcoholism treatment militated against imposing a duty. In the absence of specific threats against a specific third party, imposing a duty on alcohol treatment centers and shelters would be unreasonable. As the court explained, "such a ...


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