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Wallace v. Smyth

October 21, 1998


The opinion of the court was delivered by: Presiding Justice Leavitt

Appeal from the Circuit Court of Cook County

Honorable Barbara Disko, Judge Presiding.

On July 16, 1996, Shandoulia Wallace filed her Second Amended Complaint alleging the defendants acted negligently, willfully, and wantonly with regard to Waketta Wallace (Waketta). The Judge subsequently granted the defendants' motion to dismiss the negligence claims. She held Illinois' parental immunity doctrine shielded the defendants from liability for negligence because they stood in loco parentis to Waketta. We reverse and remand.

Twelve-year-old Waketta, a ward of Illinois', was, on July 11, 1989, temporarily residing at Maryville Academy (Maryville) for a 90-day diagnostic assessment which would yield recommendations for his future placement. Maryville was an independent contractor providing services to Illinois' Department of Children and Family Services (DCFS) for money. DCFS at all times remained the legal guardian of the children it placed at Maryville, including Waketta, and Maryville was required to consult DCFS staff members regarding important decisions affecting the children DCFS placed there. For instance, on June 13, 1989, Maryville obtained permission from Waketta's guardian at DCFS to administer psychotropic medications to Waketta. Also, on July 5, 1989, assistant Maryville program director Laura Angelucci obtained permission from Waketta's guardian at DCFS to take Waketta on a field trip to Wisconsin. While at Maryville, Waketta stayed in the home of Paul Voltz who was the Maryville program manager. Waketta typically left the Voltz home to attend school for eight hours per day, then returned to the Voltz home. On July 11, 1989, at approximately 12:50 p.m., Waketta returned from school early. He reported to Voltz's office, and showed Voltz and Angelucci a note from his teacher stating Waketta had a "good day" at school.

At around 1:45 p.m., Jill Jacobe, a family educator at Maryville, came to Voltz's office and told him Waketta was in study hall where he was supposed to be reading, but instead closed his eyes and pretended to sleep. Angelucci called nurse Dee Le Bel and inquired whether Waketta's sleep could have resulted from his medication. Le Bel said she believed Waketta was feigning sleep, although she never personally saw Waketta. Voltz told Jacobe to send Waketta to his office.

Waketta reported to Voltz's office where Voltz confronted Waketta about his behavior. Waketta threatened to leave the home, then Voltz followed Waketta out of his office to the back door of the Voltz home. Voltz told Waketta because of his bad behavior he could not leave the home. The two returned to Voltz's office.

In Voltz's office, Waketta took a pick out of his pocket and began to pick his hair. Voltz asked him to put the pick away. After asking Waketta to put the pick down, Voltz said Waketta made threatening gestures toward him, but never touched Voltz or even stood up. Voltz walked over to Waketta and held Waketta's hands at the wrists crossed on Waketta's lap. According to Angelucci, who witnessed these events, Voltz had an awkward position with regard to Waketta and asked Waketta to stand up, which he did, and the two walked to the hallway.

Once they reached the hallway, Voltz called for assistance. Angelucci responded. When Angelucci reached the hallway, Waketta was on the floor, on his back with his arms crossed in front of him. Voltz held Waketta's wrists. Angelucci testified she "laid across [Waketta's legs] and he began to struggle ***." Angelucci called for Jacobe to help her. Jacobe held Waketta's ankles while Angelucci remained on his legs. Waketta struggled, and the three counselors switched positions.

At some point before 3:00 p.m., the counselors flipped Waketta onto his stomach. Jim Geidner, another family counselor, said when he arrived sometime before 3:00, Waketta was on his stomach in a baskethold with his arms crossed at the abdomen and his wrists held firmly to the floor. Voltz was straddling Waketta's lower back and Angelucci was lying on Waketta's legs. Geidner replaced Angelucci on Waketta's legs. At 3:00, Xavier Collier came on duty and aided in the restraint.

This continued for approximately four hours in the middle of the hallway floor while other children walked past. Waketta struggled mainly when other children were present. In the course of his restraint, Waketta warned the counselors he had to urinate and that he might urinate upon himself. They continued to restrain him. Even after Waketta urinated upon himself, the counselors continued to restrain him.

According to Angelucci, after Waketta was flipped to his stomach, "he began to calm down again and was lying quietly." At approximately 6:00 p.m., Voltz instructed Angelucci to "get off [Waketta's] legs." Angelucci said she did so and immediately noticed Voltz checking Waketta's pulse and breathing. The counselors flipped Waketta onto his back and Voltz unsuccessfully attempted to resuscitate Waketta. Angelucci called an ambulance. Waketta was dead.

Dr. Robert J. Stein, chief forensic pathologist at the Cook County Medical Examiner's Office, performed Waketta's autopsy. He testified the cause of Waketta's death was asphyxia, a lack of oxygen. According to Dr. Stein, that finding is consistent with the scenario of Waketta lying face down with his arms crossed in front of his neck, and a 120-pound man on his back. Also, the autopsy revealed an abrasion on Waketta's elbow consistent with the scenario of Waketta lying face down struggling with his arms crossed at his chest.

Dr. Stein said with Waketta's arms crossed in front of his chest, and one person holding each arm, there was compression of Waketta's carotid, his vagus nerve, and internal jugular. Dr. Stein also found evidence of petechial hemorrhages, a larger hemorrhage, pulmonary edema, and pulmonary congestion. He explained petechial hemorrhages are small hemorrhages of capillaries almost always caused by strangulation. However, he noted no evidence of intentional strangulation existed here.

Waketta's death certificate indicated the cause of his death was positional asphyxiation and stress due to restraint. Dr. Kirschner, another doctor at the Cook County Medical Examiner's office, testified positional asphyxiation "is a condition where an individual requires a large intake of air usually because they are excited or in an emotional state, and they are breathing rapidly, and they are in a position that does not ...

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