The opinion of the court was delivered by: Justice McBRIDE
Appeal from the Circuit Court of Cook County Honorable Barbara J. Disko, Judge Presiding.
This court has previously rendered an opinion in the instant case. Wallace v. Smyth, 301 Ill. App. 3d 75, 703 N.E.2d 416 (1998). The supreme court, in the exercise of its supervisory authority, has now remanded the case to us for additional consideration in light of its decision in Nichol v. Stass, 192 Ill. 2d 233, 735 N.E.2d 582 (2000). Wallace v. Smyth, 191 Ill. 2d 562, 735 N.E.2d 1001 (2000) (denying defendants' petition for leave to appeal and remanding case to the appellate court).
Waketta Wallace (Waketta), a minor, died while a ward of the State of Illinois. Following his death, plaintiff Shandoulia Wallace, individually and as administrator of Waketta's estate, brought an action against defendants Maryville Academy (Maryville) and John P. Smyth, Paul Voltz, Laura Angelucci, Xavier Collier, Jill Jacobe, Jim Geidner, and Dee Le Bel, individually and as agents and/or employees of Maryville.
The facts, briefly, are as follows. On July 11, 1989, Waketta was a 12-year-old ward of the State who was residing at Maryville during the course of a 90-day diagnostic assessment which would yield recommendations for his future placement. According to the second amended complaint, Maryville was a not-for-profit corporation licensed by the state of Illinois to house, care for, and educate children, including children who have been made wards of the State or of the Illinois Department of Children and Family Services (DCFS). Maryville contracted with DCFS to provide such services for money. DCFS remained the legal guardian of Waketta and all other children it placed at Maryville. Maryville was required to consult DCFS staff regarding certain decisions affecting the children DCFS placed there. Examples, in Waketta's case, included obtaining permission from his DCFS guardian to administer psychotropic medications and permission to take him on a two-week-long field trip to Wisconsin.
On July 11, 1989, Waketta died after being restrained by various Maryville staff members in a prone position for over four hours. The cause of death was listed on the death certificate as positional asphyxiation and stress due to restraint.
Plaintiff brought an action against defendants alleging that the defendants had acted willfully and wantonly in causing Waketta's death. After the case was set for trial, plaintiff filed a second amended complaint which added claims of negligence against the defendants. Defendants made a motion to dismiss the negligence claims, arguing that the Illinois parental immunity doctrine shielded them from liability for negligent conduct because they stood in loco parentis with regard to Waketta.
The trial judge granted defendants' motion to dismiss and indicated the following:
"Well, I am satisfied that Maryville was responsible for the day-to-day care and supervision of this child, since the child was living in their facility.
It's clear to me that they certainly had to consult with DCFS on certain matters but not on the day-to-day responsibilities. One of those responsibilities that Maryville had was to discipline this child when necessary.
I am convinced from the cases that the defendants have tendered to me, and from the arguments made, and everything that I know about the case that Maryville was acting de facto as loco parentis for this child.
Therefore, the motion to strike Counts I and III for ordinary negligence - that are based on ordinary negligence, that motion will be granted. I do not believe Maryville can be sued under theories of ordinary negligence."
Following a subsequent jury verdict in favor of defendants on plaintiff's willful and wanton counts, plaintiff appealed the trial court's dismissal of the negligence counts. This court, in a split opinion, reversed the trial court, finding that the trial court had improperly granted defendants' motion to dismiss. Wallace v. Smyth, 301 Ill. App. 3d 75, 81, 703 N.E.2d 416 (1998). The defendants appealed to the Illinois Supreme Court. In an October 4, 2000, order, the supreme court denied defendants' petition for leave to appeal and, exercising its supervisory authority, remanded the case back to this court for additional consideration in light of Nichol v. Stass, 192 Ill. 2d 233, 735 N.E.2d 582 (2000). Wallace v. Smyth, 191 Ill. 2d 562, 735 N.E.2d 1001 (2000).
On remand, the parties have filed briefs addressing the impact of Nichol on our previous opinion. In addition, a joint amici curiae brief in support of plaintiff has been filed by the Cook County public guardian, the Children and Family Justice Center of the Northwestern University School of Law, the CIVITAS Childlaw Center of the Loyola University Chicago School of Law, the Illinois Trial Lawyer's Association, and the law firms of Cochran, Cherry, Givens, Smith & Montgomery, L.L.C., ...