The opinion of the court was delivered by: Justice Gordon
Individually, and as Co-Special
Appeal from the Circuit Court of Cook County.
Honorable Joseph N. Casciato, Judge Presiding.
The Plaintiffs, Gregory Nichol and Ruby Nichol, individually and as co-special administrators of the estate of the decedent, Jonathan Nichol, filed a complaint against defendants, John Stass and Bonnie Stass, the foster parents of the decedent, alleging negligent supervision, monitoring and care of the decedent who died of drowning while in the Stasses' care. The count against the foster parent defendants was dismissed on the basis of sovereign immunity and lack of subject matter jurisdiction. 735 ILCS 5/2-619(a)(1) (West 1996).
In this appeal, brought pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), *fn1 the plaintiffs contend that their action against the defendant foster parents is not a claim against the State because the defendants are not employees of the State and because the duty alleged to have been breached by the foster parents is owed independent of State employment.
Section 1 of the State Lawsuit Immunity Act provides in pertinent part as follows:
"Except as provided in * * * 'AN ACT to create the Court of Claims * * *', * * * the State of Illinois shall not be made a defendant or party in any court." 745 ILCS 5/1 (West 1996). The Court of Claims Act (705 ILCS 505/1 et seq. (West 1996)) provides that the court shall have exclusive jurisdiction of "[a]ll claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit." 705 ILCS 505/8(d) (West 1996).
A party cannot avoid sovereign immunity implications by filing an action nominally against a servant or agent of the State when the real claim is against the State of Illinois. Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247 (1990). For purposes of determining sovereign immunity, the courts will not look to the formal designation of the parties. Healy, 133 Ill. 2d 295, 549 N.E.2d 1240. "It is well established that whether an action is against the State, and therefore one that must be brought in the Court of Claims, depends on the issues involved and the relief sought." E.g., Griffin v. Fluellen, 283 Ill. App. 3d 1078, 1084, 670 N.E.2d 845, 850 (1996).
As stated in Robb v. Sutton, 147 Ill. App. 3d 710, 713, 498 N.E.2d 267, 270 (1986), and adopted by our supreme court in Healy, 133 Ill. 2d at 309, 549 N.E.2d at 1247, an action is against the State when three criteria are met: (1) the absence of an allegation that an agent or employee of the State acted beyond the scope of his authority; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) the alleged actions involved matters ordinarily within the employee's normal and official functions of the State. An action is also deemed to be against the State if judgment for the plaintiff could "'operate to control the actions of the State or subject it to liability.'" Management Ass'n of Illinois, Inc. v. Board of Regents of Northern Illinois University, 248 Ill. App. 3d 599, 607, 618 N.E.2d 694, 699 (1993), quoting Robb v. Sutton, 147 Ill. App. 3d at 713, 498 N.E.2d at 270.
Under the criteria set forth in Robb, we must first determine whether the defendant foster parents are employees or agents of the State. In their argument to the trial court, the defendants asserted that they are employees of the State under the language of the State Employee Indemnification Act (the Act) (5 ILCS 350/1 et seq. (West 1996)). That Act, which defines "employee" to include "individuals who serve as foster parents for the Department of Children and Family Services when caring for a Department ward" (5 ILCS 350/1(b) (West 1996)), provides that the State will defend and indemnify any "employee" in any civil proceeding commenced against the employee arising out of any act or omission occurring within the scope of the employee's State employment (5 ILCS 350/2 (West 1996)). The defendants also argued before the trial court that the provision of indemnity was in and of itself sufficient to invoke sovereign immunity. On appeal, the defendants have largely abandoned that latter argument, and correctly so. See Janes v. Albergo, 254 Ill. App. 3d 951, 626 N.E.2d 1127 (1993); Kiersch v. Ogena, 230 Ill. App. 3d 57, 595 N.E.2d 696 (1992) (State's obligation to indemnify does not constitute the State's assumption of direct liability). The defendants continue to argue that the characterization of foster parents as employees in the Act should control.
The plaintiffs contend that despite being identified as employees in the Indemnification Act, the defendant foster parents are not employees of the State and thus cannot satisfy the first criterion of the three-part Robb test for sovereign immunity. They argue that the inclusion of foster parents in the definition of employee in the State Employee Indemnification Act (5 ILCS 350/1(b) (West 1996)) was for the limited purpose of indemnity and did not create employee status outside that statute. They note that the Foster Parent Law (20 ILCS 520/1 et seq. (West 1996)) does not define a foster parent as an employee of the State (20 ILCS 520/1-10 (West 1996)) and contains no reference to foster parents as employees. They also note that the State does not withhold State or Federal income tax, does not insure foster parents for unemployment or workers' compensation, and does not provide foster parents with retirement or pension benefits or health insurance.
As section 1 of the Indemnification Act begins with limiting language "[f]or the purpose of this Act" (5 ILCS 350/1 (West 1996)), we agree that the inclusion of foster parents in the definition of employee in that Act does not conclusively establish employment status for sovereign immunity purposes. See Moy v. County of Cook, 159 Ill. 2d 519, 530, 640 N.E.2d 926, 930 (1994) ("statutory definitions have no validity beyond the scope of the legislation in which they appear"). However, we cannot agree that the inclusion of foster parents as employees in that statute has no residual probative value with respect to the issue of employment status.
The defendants also argue that foster parents are employees of the State because the State controls the manner and method in which their work is to be performed. See Hansen v. Caring Professionals, 286 Ill. App. 3d 797, 676 N.E.2d 1349 (1997) (the right to control the manner and method of the work to be done is critical to a master-servant relationship). See generally Restatement (Second) of Agency §2(2), at 12 (1958) ("[a] servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master"). It is true that foster parents are required to comply with various administrative rules promulgated by the Department of Children and Family Services. See 225 ILCS 10/8 (West 1996). Those rules regulate such things as the physical accommodations of the foster home (89 Ill. Admin. Code § 402.8 (1996)); sleeping accommodations (89 Ill. Admin. Code §402.9); dietary requirements (89 Ill. Admin. Code §402.10); outside employment by the foster parent (89 ll. Admin. Code §402.11); and discipline (89 Ill. Admin. Code §402.21). The rules and regulations governing foster child care are specific and comprehensive. See also Swanigan v. Smith, Ill. App. 3d , 689 N.E.2d 637 (1998) (foster parent status as state employee presumed). However, we need not definitively determine whether foster ...