The opinion of the court was delivered by: Justice Miller
The plaintiffs, Gregory Nichol and Ruby Nichol, brought this action in the circuit court of Cook County individually and as cospecial administrators of the estate of the decedent, Jonathan Nichol, against the defendants, John Stass and Bonnie Stass, and the Human Enrichment and Developmental Association (HEDA), an independent child welfare agency. The plaintiffs alleged that Jonathan, their son, died while in the care of the Stasses, who were acting as Jonathan's foster parents at the time of his death and who were allegedly under the supervision of HEDA. The plaintiffs sought recovery from the defendants under several different theories. The trial judge dismissed the plaintiffs' action against the Stasses on the ground that it was barred by sovereign immunity. The appellate court affirmed. 297 Ill. App. 3d 557. We allowed the plaintiffs' petition for leave to appeal (177 Ill. 2d R. 315(a)), and we now reverse the judgments of the appellate and circuit courts and remand the cause to the circuit court for further proceedings.
According to the allegations in the complaint, Jonathan died on June 16, 1995, while at the Stasses' home and in their care, by drowning in a toilet. He was two years old. The plaintiffs sought recovery from each of the defendants under the Wrongful Death Act (740 ILCS 180/1 (West 1996)), the Rights of Married Persons Act (750 ILCS 65/15 (West 1996)), and the Survival Act (755 ILCS 5/27-6 (West 1996)), alleging that the defendants negligently violated various duties imposed by the common law and by administrative regulations, and, further, that liability was established under the doctrine of res ipsa loquitur. The complaint alleged that the Stasses failed to supervise Jonathan, failed to protect him from hazards within the home, failed to provide him with sufficient food and water, and failed to provide him with immediate medical care after the occurrence. The amended complaint described HEDA as an independent licensed child welfare agency that has contracted with the Department of Children and Family Services "to provide supervision, inspections, management, guidance and discipline" to foster parents and foster children. The amended complaint further asserted that HEDA "was in charge of, supervisor of, manager of, and director of" the Stasses. The plaintiffs alleged, among other things, that HEDA negligently failed to supervise the Stasses, failed to ensure that the child was provided with adequate food and water, failed to complete background checks on the Stasses, and failed to place the child in a home "free from observable hazards."
Pursuant to sections 2-619(a)(1) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1), (a)(9) (West 1996)), the Stasses moved to dismiss the counts of the amended complaint that were directed against them, arguing that the claims were barred by the doctrines of sovereign immunity and public officials' immunity. Following a hearing, the trial judge stated that he would deny the Stasses' motion. Counsel for the Stasses then advised the trial judge that a pending case in the appellate court raised a similar issue, and the judge said that he would postpone his ruling on the motion until the outcome of the appeal was known. The appellate court soon filed its opinion in the other case, Griffin v. Fluellen, 283 Ill. App. 3d 1078 (1996), holding that the foster parent named as a defendant in that action was a state employee and could invoke the protection of the sovereign immunity doctrine. In a later proceeding in the case at bar, the trial judge concluded that he was required to follow Griffin and granted the Stasses' motion to dismiss. The trial judge also entered a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) permitting the plaintiffs to appeal immediately from that ruling; the plaintiffs' separate claims against HEDA remained pending in the circuit court of Cook County, and they are not at issue in this appeal.
The appellate court affirmed the circuit court's dismissal order. 297 Ill. App. 3d 557. The appellate court believed that the Stasses should be considered agents of the state and therefore could assert the protection of the sovereign immunity doctrine. The court theorized that the state owed the foster child a non-delegable duty of care and that the state would therefore be vicariously liable for the foster parents' conduct. The court rejected the plaintiffs' contention that the Stasses, even as agents of the state, could still be liable for the Jonathan's death because they owed the child a duty of care that was entirely independent of their status as foster parents. We allowed the plaintiffs' petition for leave to appeal. 177 Ill. 2d R. 315(a).
Before this court, the plaintiffs contend that the defendants are neither employees nor agents of the state and therefore cannot avoid suit through the sovereign immunity doctrine. The Stasses, in response, maintain that the lower courts correctly concluded that they are state employees or agents and that the plaintiffs' action against them is one in substance against the State of Illinois, triggering the sovereign immunity doctrine. The Stasses also argue, as an alternative ground in support of the judgments below, that even if they are not protected from suit by sovereign immunity, they may still assert parental immunity as an affirmative defense to the plaintiffs' action. We will consider these contentions in turn.
Article XIII, section 4, of the Illinois Constitution provides, "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." Ill. Const. 1970, art. XIII, §4. The legislature has reinstated sovereign immunity. Section 1 of the State Lawsuit Immunity Act reads:
"Except as provided in the `Illinois Public Labor Relations Act', enacted by the 83rd General Assembly, or except as provided in `AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named', filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court." 745 ILCS 5/1 (West 1996).
Section 8(d) of the Court of Claims Act grants the court of claims exclusive jurisdiction over, among other matters, "[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).
In Healy v. Vaupel, 133 Ill. 2d 295, 308 (1990), this court summarized the scope and effect of the preceding provisions:
"Whether an action is in fact one against the State, and hence one that must be brought in the Court of Claims, depends not on the formal identification of the parties but rather on the issues involved and the relief sought. (Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 408; Hudgens v. Dean (1979), 75 Ill. 2d 353, 355-56; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37.) Thus, the prohibition `against making the State of Illinois a party to a suit cannot be evaded by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested.' (Sass v. Kramer (1978), 72 Ill. 2d 485, 491.) Sovereign immunity affords no protection, however, when it is alleged that the State's agent acted in violation of statutory or constitutional law or in excess of his authority, and in those instances an action may be brought in circuit court. Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 188-89; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548; Moline Tool Co., 410 Ill. at 37; Schwing v. Miles (1937), 367 Ill. 436, 441-42."
A threshold question in the present appeal is whether the defendants are in fact state employees or agents. If they are neither, then the doctrine of sovereign immunity can have no application here. The appellate court has reached conflicting results on the question whether foster parents are either agents or employees of the state. In the present case and in Griffin v. Fluellen, 283 Ill. App. 3d 1078 (1996), cited by the trial judge below, the appellate court concluded that foster parents are state agents or employees and therefore are protected from suit by the doctrine of sovereign immunity. The appellate court reached the opposite result in Commerce Bank v. Augsburger, 288 Ill. App. 3d 510 (1997), and in Swanigan v. Smith, 294 Ill. App. 3d 263 (1998), holding in those cases that foster parents are not state agents or employees and therefore cannot assert immunity from suit under the doctrine of sovereign immunity. We conclude in the present case that the defendants have failed to establish that they are state employees or agents.
The Foster Parent Law does not describe foster parents as either employees or agents. 20 ILCS 520/1-10, 1-15, 1-20 (West 1996). Nor are foster parents deemed state employees in any of a variety of statutes relating to state employment. See, e.g., 5 ILCS 375/3 (West 1996) (State Employees Group Insurance Act of 1971); 5 ILCS 340/3 (West 1996) (Voluntary Payroll Deductions Act of 1983); 5 ILCS 410/10 (West 1996) (State Employment Records Act); 5 ILCS 365/2 (West 1996) (State Salary and Annuity Withholding Act); 40 ILCS 5/14-103.05 (West 1996) (State Employees Retirement System of Illinois). The record in the present case is not entirely clear concerning the relationship among the Stasses, HEDA, and the Department of Children and Family Services. According to the allegations in the complaint, HEDA, an independent child welfare organization, was "in charge of, supervisor of, manager of, and director of" the Stasses as foster parents. Neither side appended to any of their pleadings copies of the contracts between the Department and HEDA and between HEDA and the Stasses. To be sure, it was the defendants' motion to dismiss, and therefore it was their duty to supply a record in support of their motion. In the absence of those documents, and in light of the relevant statutes and the allegations in the plaintiffs' amended complaint, we must conclude that the Stasses were independent contractors rather than employees or agents of the state.
The Stasses argue, however, that, as foster parents, they were subject to a diverse and comprehensive set of requirements concerning their care for foster children. For example, the Department regulates the cleanliness, temperature, and lighting of a foster home. 89 Ill. Adm. Code §402.8(a) (1996). Pets in the home must be inoculated against rabies. 89 Ill. Adm. Code §402.8(e) (1996). Foster parents must develop and rehearse fire evacuation plans. 89 Ill. Adm. Code §402.8(g) (1996). Foster parents must provide a child with closet and dresser space (89 Ill. Adm. Code §402.8(h) (1996)) and adequate bedding (89 Ill. Adm. Code §402.9 (1996)). Meals and discipline are also subject to extensive regulation. 89 Ill. Adm. Code §§402.11, 402.21 (1996).
We do not believe that the preceding measures are anything more than licensing requirements or that they serve to establish the defendants' role as state employees or agents. The state licenses a broad range of activities and professions, often in regulations as detailed and encyclopedic as those involved here. See, e.g., Pre-School Owners Ass'n of Illinois, Inc. v. Department of Children & Family Services, 119 Ill. 2d 268 (1988) (licensing requirements for day-care centers). The existence of those administrative requirements, however, does not mean that the persons subject to them are state employees or agents.
Nor is state employment established, for purposes of sovereign immunity, through the State Employee Indemnification Act. Section 1(b) of the Indemnification Act provides, "For the purpose of this Act," in pertinent part:
"The term `employee' means *** individuals who serve as foster parents for the Department of Children and Family Services when caring for a Department ward, *** but does not mean an independent contractor except as provided in this Section." 5 ILCS 350/1(b) (West 1996).
"Employees" under the Indemnification Act are entitled to representation by the Attorney General in civil proceedings stemming from "any act or omission occurring within the scope of the employee's State employment." 5 ILCS 350/2(a) (West 1996). "Employees" also are entitled to indemnification under the Act for any adverse judgment unless "the conduct or inaction which gave rise to the claim or cause of action was intentional, wilful or wanton misconduct and was not intended to serve or benefit interests of the State." 5 ILCS 350/2(d) (West 1996). We note that the Attorney General's office has represented the Stasses throughout these proceedings.
Even though the Indemnification Act terms foster parents "employees," we do not believe that the provision must be construed as establishing foster parents' position as state employees for purposes of sovereign immunity. Rather, the preceding definition simply affirms the entitlement of foster parents to indemnification, without also establishing, for other purposes, their status as government employees or agents. As noted, the provision in the Indemnification Act begins with the restrictive phrase "For the purposes of this Act," limiting the scope of the ensuing definition. Moreover, section 1 of the Act expressly recognizes that some independent contractors might be considered "state employees" for purposes of indemnification, but the provision does not purport to alter their status as independent contractors for all other purposes.
The appellate court also believed that sovereign immunity could be invoked in the present case because, whether or not the defendants are deemed state agents or employees, the state owed Jonathan, a ward of the court, a continuing, non-delegable duty of care. The appellate court further believed that the state would be vicariously liable for conduct of the foster parents in violation of that duty.
We do not disagree with the broad proposition that the state owes certain duties to persons whom it places in state-run institutions (see Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982)) or even in private care (K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990); Doe v. New York City Department of Social Services, 649 F.2d 134 (2d Cir. 1981)). Those cases are not applicable here, however. In general, they involve actions under section 1983 (42 U.S.C. §1983 (1994)) against the state or state officers, and they concern what degree of misconduct must be shown to give rise to public liability for injuries occurring to a state ward while in private custody. Notably, state liability in those circumstances does not extend to state misconduct that is "merely negligent [citation] or even grossly negligent." K.H., 914 F.2d at 852. The court in K.H. thus framed the issue before it as follows:
"We emphasize that the issue is not whether the state's duty follows the child into the private home in which he is placed. We may assume, without having to decide, that it does not, that the foster parents, even if paid by the state, are not state agents for constitutional purposes. *** The only right in question in this case is the right of a child in state custody not to be handed over by state officers to a foster parent or other custodian, private or public, whom the state knows or suspects to be a child abuser." K.H., 914 F.2d at 852.
The issues raised in the present case are far different from those involved in the cases cited previously. The plaintiffs in this action are not attempting to recover from the state for its decision to place Jonathan with the Stasses, and we do not believe that the state must be considered the real party in interest in this proceeding.
The appellate court below cited section 424 of the Restatement (Second) of Torts in support of its non-delegable duty analysis. Section 424 provides:
"One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions." Restatement (Second) of Torts §424, at 411 (1965).
We do not believe that section 424 is applicable here. Under the circumstances envisioned by section 424, it is the principal in the first instance, and not the independent contractor, who must be required by statute or regulation to provide specified safeguards. In the present case, however, it is the principal-the state-who has imposed these duties on the independent contractor; the administrative regulations pertinent to this case are imposed by the state on foster parents.
The appellate court also cited sections 214 and 251 of the Restatement (Second) of Agency in support of its discussion of this question. Restatement (Second) of Agency §§214, 251 (1958). Section 214 provides:
"A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to such others for harm caused to them by the failure of such agent to perform the duty." Restatement (Second) of Agency §214 (1958).
Under section 251, a principal may be liable for physical harm caused by the negligence of a "servant or a non-servant agent: (a) in the performance of an act which the principal is under a duty to have performed with care." Restatement (Second) of Agency §251 (1958). Again, although foster parents are required to comply with numerous administrative regulations, we do not find anything that imposes on the state an independent duty to guarantee compliance by foster parents with those provisions. In addition, the hallmark of a non-delegable duty is the right of the principal "to control physical details as to the manner of performance" by the actor. Restatement (Second) of Agency §250, Comment a (1958). The administrative regulations cited in this case, however, do not go so far.
We agree with the plaintiffs that whatever duty there is to provide placement, to institute procedures, or even to exercise general authority over foster children is not the same as a continuing, non-delegable duty to provide for the care of children placed in foster homes. Moreover, even if a continuing duty can be said to exist, we agree with the plaintiffs' observations that it would pertain to the relationship between the state and the foster children and not to the relationship between the state and foster parents, and that it would not operate to confer sovereign immunity on foster parents.
The Stasses do not renew before this court their contention, raised in the circuit court, that they are protected from liability under the doctrine of public officials' immunity. As a separate ground in support of the judgment below, however, the defendants now contend, for the first time in these proceedings, that they are shielded from liability by the doctrine of parental immunity. They argue that they stand in loco parentis in relation to the foster child and that they must therefore enjoy the same protection from liability that a child's biological parents could assert, if the latter had retained custody of the child.
In Cates v. Cates, 156 Ill. 2d 76 (1993), this court reevaluated the doctrine of parental immunity, abrogating its application in a limited number of circumstances. The child in that case was injured in an automobile collision that occurred as she was riding in a car being driven by her father, and the court concluded that the father was not immune from suit. The court distinguished the child's action in that case from conduct inherent to the ...