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January 14, 1998


Appeal from Circuit Court of Champaign County. No. 93L1134. Honorable George S. Miller, Judge Presiding.

Honorable James A. Knecht, J., Honorable Rita B. Garman, J. - Concur. Honorable Robert W. Cook, J. - Special Concurrence. Justice Knecht delivered the opinion of the court.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

On September 8, 1993, Albert Swanigan, individually and as next best friend of his son Cortez Swanigan, filed a complaint of negligence against defendant Joeannier Smith in the circuit court of Champaign County. The complaint sought damages for injuries Cortez sustained while in foster care at the home of defendant, who was a licensed foster parent with the Illinois Department of Children and Family Services (DCFS). After a trial, the jury found for defendant. Plaintiffs appeal, contending the trial court erred by (1) failing to enter a directed verdict; (2) failing to grant plaintiffs' motion for a new trial; (3) refusing to admit certain opinion testimony; and (4) refusing to permit plaintiffs to display to the jury both Cortez's actual physical injuries as well as photographs of those injuries. Defendant raises an additional issue on appeal, arguing the circuit court lacked subject-matter jurisdiction over the matter. We affirm.

Plaintiffs alleged in the complaint Cortez was injured while a guest in defendant's home. Plaintiffs sought medical expenses and damages for those injuries. On November 3, 1993, defendant filed a motion to dismiss with prejudice, pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)). Defendant argued the circuit court lacked subject-matter jurisdiction over plaintiffs' complaint, because plaintiffs' claims were essentially against the State of Illinois. After a hearing and without comment, the trial court denied defendant's motion.

At trial, prior to testimony, defendant objected to the admission of a question and answer from deposition testimony to be read to the jury. Defendant objected to the following question and answer from the deposition of Marsha Biggers, a DCFS employee:

"Based on your trained experience, do you have an opinion if it would be reasonable for a child-care provider to leave an 18-month-old child in a room unattended where the child could reach her hot cooking grease?"

Defendant argued the question assumed facts not in evidence and it asked for a legal conclusion that was for the jury to decide. Plaintiffs argued Biggers possessed the training and experience, as an investigator of abuse and neglect cases, to know what a child-care provider should do. The trial court sustained defendant's objection, concluding the question asked an opinion as to the ultimate fact for the jury to decide and that fact was not beyond the ken of the average juror.

During trial, the deposition testimony of three witnesses was read to the jury and two witnesses testified. Defendant testified as to the events leading up to and following the incident. Plaintiff Albert Swanigan testified regarding the extent of Cortez's injuries and the treatment Cortez received for those injuries. Testimony relevant to this appeal follows.

Defendant, 49 years old, had two adult children and four minor children, and had been a foster parent for 14 years. In that time she cared for over 200 children, approximately 75% of whom were between the ages of one and three. At the time of the incident, defendant was licensed to care for children between ages 0 and 12. Defendant attended both required and voluntary classes on the provision of foster care. She worked with children at the Urbana Park District for about 4 1/2 years, and she provided day-care services for 15 years.

The accident at issue occurred in late afternoon on a Friday. Cortez, whom defendant believed was 18 months old, was placed with defendant on the Monday morning earlier that week. Cortez had been slow to explore his new surroundings. Defendant considered him to be a "where you put [him], that's where [he's] staying" type of child, as well as nice, easygoing, and quiet. He was able to walk. Defendant had not yet formed an opinion as to whether Cortez recognized dangers in the home.

On the Friday of the accident, defendant cared for seven children. Those children included her four children, ages 5 through 9, and three foster children, ages 18 months through 6 years. After defendant prepared a meal for the children, the children indicated they were still hungry. Defendant cooked pork chops in a skillet while the children played. Two of her children rode bicycles in the yard, while their older sister watched them. The six-year-old foster child played on the outside steps. The three-year-old foster child was sitting in a chair in the boys' bedroom. Cortez was in defendant's bedroom, adjacent to the kitchen, watching defendant's eight-year-old son play with an electronic toy.

When the pork chops were done, defendant poured the grease into a metal bowl. She placed the bowl on the counter next to the sink, nearer to the counter's edge than to the wall. The counter was waist-high. Defendant usually poured grease into the drain, but at that time she believed too much sediment was present. Instead, she left the grease in the bowl to cool so she could dispose of it in the waste can.

When it was time to eat, defendant looked from the window and noticed some of the children were not where they should be. She walked to the porch to call the children in. While returning to the kitchen, she stopped to talk with the three-year-old foster child. While talking with that child, defendant observed Cortez standing next to the sink. He reached for the bowl, and before defendant could stop him, spilled the grease onto himself.

Defendant acknowledged if she had placed the bowl at the rear of the counter Cortez could not have reached it while standing on the floor. Defendant stated she had no reason to suspect a child would enter the kitchen, because they were playing and she was the only person in the kitchen during the meal preparation. Defendant also stated in her years of child care, no child had entered the kitchen in those circumstances. Defendant testified from the time she went to call the children in until Cortez's accident was less than one minute. There was no gate or obstruction to prevent Cortez from entering the kitchen.

Following the witness testimony, plaintiffs sought the admission of 12 photographs of Cortez and his injuries in evidence. The photographs were taken on January 20, 1996, approximately two months before trial. Cortez's condition had not changed since that time. The trial court ruled either the photographs would be entered, or the ...

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