The opinion of the court was delivered by: Justice Burke
Appeal from the Circuit Court of Cook County.
Honorable Kathy M. Flanagan, judge Presiding.
Plaintiff Vita Charleston appeals from an order of the circuit court granting defendant Dr. John Larson's section 2--615 motion to dismiss plaintiff's complaint (735 ILCS 5/2--615 (West 1994)), which alleged that she suffered injuries as a result of the negligence of defendant and Andrew Thain. *fn1 Plaintiff also appeals the court's denial of her motion to amend her complaint. On appeal, plaintiff contends that: (1) the trial court improperly dismissed plaintiff's action because defendant owed plaintiff a duty of care based on the theories of a special relationship between plaintiff and defendant or negligent undertaking to perform services to protect plaintiff or medical/psychological malpractice; and (2) the trial court improperly denied plaintiff's request for leave to file a second amended complaint. For the reasons set forth below, we affirm.
On April 2, 1992, defendant Andrew Thain (Thain) voluntarily admitted himself on an emergency basis to CPC Streamwood Hospital (CPC), a facility providing general duty nursing care in Streamwood, Illinois. Defendant was a duly licensed physician who practiced psychiatry at CPC. Plaintiff was a nurse at CPC. According to plaintiff, on May 3, 1992, Thain attacked and beat her without provocation, after threatening her on the same day that he "would break her neck."
Plaintiff filed a complaint against defendant and Thain on May 2, 1994, alleging claims based on negligence and intentional tort. On November 7, 1994, defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2--622(g) of the Code of Civil Procedure (Code) (735 ILCS 5/2--622(g) (West 1994)), arguing that plaintiff's complaint did not contain a medical provider's affidavit. On September 19, 1995, the trial court denied defendant's motion and granted plaintiff leave to file an affidavit. Plaintiff filed the affidavit of physician/psychiatrist, Dr. Nelson Borelli, which stated that at the time of Thain's admission to CPC, he was a high risk patient who had a history of alcohol, drug and sexual abuse, and engaged in self-mutilation. Dr. Borelli stated that the CPC records did not indicate that an initial complete work up was performed by defendant. Additionally, there was no indication that the staff at CPC was informed of Thain's "dangerous condition." Dr. Borelli claimed that defendant should have prescribed anti-psychotic medication for Thain, and that during Thain's stay at CPC he "was showing increased agitation." In his professional opinion, Dr. Borelli claimed that defendant deviated from the applicable standard of care.
On August 19, 1996, the trial court granted plaintiff's request to file an amended complaint. On September 10, plaintiff filed a four-count amended complaint, alleging claims based on common law negligence (count I) and "medical/psychological negligence" (count II) against defendant. *fn2 More specifically, plaintiff alleged that defendant, as the medical director at CPC, "voluntarily undertook" to render services to Thain, and that Thain was under the care, supervision and control of defendant regarding access to staff, diet, and treatment; Thain informed CPC staff during his admission that "the last time someone messed with him, it took six people to hold [him] down"; defendant ordered plaintiff to observe Thain every 15 minutes, 24 hours a day; and defendant allegedly knew or should have known that Thain's condition deteriorated and that he posed a serious risk of danger to those in close proximity to him. Plaintiff further alleged that defendant failed to follow CPC policy by not ordering a "complete initial work up" of Thain, not following procedures regarding treatment of dangerous persons, and not performing a 30-day assessment of Thain; defendant failed to properly treat Thain, specifically by failing to prescribe anti-psychotic medications and failing to provide restrictions and restraints; and defendant did not warn plaintiff or other CPC employees of Thain's dangerous propensities, nor did he instruct them regarding the proper and safe ways to approach Thain or to protect themselves from Thain.
On October 11, 1996, defendant filed a motion to dismiss counts I and II of plaintiff's amended complaint pursuant to section 2--615 of the Code. (735 ILCS 5/2--615 (West 1994)). On December 27, the trial court issued a memorandum opinion granting defendant's motion to dismiss and denying plaintiff leave to amend. On January 2, 1997, the trial court issued an amended memorandum of opinion. In its amended memorandum opinion, the court stated that plaintiff's amended complaint did not allege facts giving rise to a special relationship between plaintiff and defendant or showing that Thain's attack was reasonably foreseeable in order to impose liability on defendant. The court further stated that there were "absolutely no facts" to support plaintiff's "conclusory" allegation that defendant knew or should have known that his services to Thain were necessary for the protection of persons in close proximity to Thain. The court also found that plaintiff's amended complaint lacked allegations that defendant voluntarily undertook to perform services for plaintiff sufficient to create a legal duty owed by defendant to plaintiff. The court specifically stated that it was "unwilling to accept outside authority [relied on by plaintiff] on an issue which has been clearly defined by Illinois law." With regard to plaintiff's argument of "medical/psychological negligence," in support of which plaintiff cited to Eckhardt v. Kirtz, 179 Ill. App. 863, 534 N.E.2d 1339 (1989), the trial court stated that defendant was liable under the standards set forth in Eckhardt. This appeal followed. *fn3
Plaintiff contends that defendant's "unique position" as a physician and medical director, "combined with his knowledge, the foreseeability of injury, and the minimal burden of guarding against certain injury to the plaintiff, warrant the application of a duty by [defendant] to act reasonably to the plaintiff related to [defendant]'s involvement with Mr. Thain" under recognized Illinois law. Plaintiff argues that, as a psychiatrist, defendant had specific knowledge in recognizing, treating and managing Thain's dangerous condition, and that he alone possessed the means to control and restrict Thain's activities, and warn or "simply inform" plaintiff of the danger posed by Thain. Plaintiff further argues that defendant knew Thain was a "ticking bomb" and it was "more than" reasonably foreseeable that he would explode, and "virtually certain" that he would attack a staff nurse such as plaintiff. Plaintiff also asserts that she was professionally and ethically obligated to follow defendant's instructions, and that she relied on his instructions in interacting with dangerous persons such as Thain.
Defendant contends that he owed no duty to protect plaintiff against criminal attacks by a third person under any theory recognized by Illinois law. Specifically, defendant argues that under common law negligence defendant owed plaintiff no duty to act with reasonable care to protect plaintiff from Thain, and plaintiff failed to allege facts establishing that Thain's attack upon plaintiff was reasonably foreseeable--a prerequisite to the application of any of the exceptions to the general rule of duty. Defendant therefore maintains that, in the absence of a duty, the trial court properly dismissed plaintiff's amended complaint.
When reviewing the dismissal of a complaint pursuant to section 2--615, this court must determine whether the complaint, when considered in a light most favorable to the plaintiff, alleged facts sufficient to state a cause of action. Ziemba v. Mierzwa, 142 Ill. 2d 42, 46, 566 N.E.2d 1365 (1991). In assessing the sufficiency of a complaint, we must take as true all well-pleaded facts and reasonable inferences drawn from those facts. Our review is de novo. Doe v. McKay, 286 Ill. App. 3d 1020, 1023, 678 N.E.2d 50 (1997).
In order to prevail in a negligence action, a plaintiff's complaint must set forth facts establishing the existence of a duty owed by defendant to plaintiff, a breach of that duty and an injury proximately caused by the breach. The determination of duty, or whether the defendant and the plaintiff stood in such a relationship to one another that the law imposes an obligation of reasonable conduct upon the defendant for the benefit of the plaintiff, is a question of law. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 503, 520 N.E.2d 37 (1988). However, the legal determination of whether a duty exists is dependent upon the factual circumstances giving rise to the litigation. Hernandez v. Rapid Bus Co., 267 Ill. App. 3d 519, 522, 641 N.E.2d 886 (1994). In determining whether a legal duty exists, Illinois courts consider whether the harm was reasonably foreseeable, the likelihood of injury, the magnitude of the burden of guarding against harm and the consequences of placing that burden on the defendant. Ziemba, 142 Ill. 2d at 47.
Generally, Illinois law does not impose a duty to protect another from a criminal attack by a third person unless the attack was reasonably foreseeable and the parties stand in one of the following "special relationships": (1) common carrier and passenger; (2) innkeeper and guest; (3) business invitor and invitee; and (4) voluntary custodian and protectee. Hernandez, 267 Ill. App. 3d at 524. A second exception exists where there is negligence in the performance of a voluntary undertaking. Restatement (Second) of Torts §324A (1965). Section 324A of the Restatement (Second) of Torts (Restatement), states:
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his ...