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Dawn T. v. Hudelson Baptist Children's Home

August 20, 2002


Appeal from the Circuit Court of Marion County. No. 00-L-39 Honorable David L. Sauer, Judge, presiding.

Justices: Honorable Melissa A. Chapman, J., Honorable Gordon E. Maag, P.J., and Honorable Philip J. Rarick, J., Concur

The opinion of the court was delivered by: Justice Melissa Chapman

This is an appeal from the circuit court's grant of a motion to dismiss filed by Hudelson Baptist Children's Home (Hudelson) pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2000)). Dawn T. (plaintiff), as mother and next friend of D.D., brought this action for negligence and willful and wanton misconduct. She alleged that Hudelson caused her son to be the victim of sexual abuse while in its care and custody. The circuit court held that Hudelson was immune from suit pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2000)). The primary issue for review is whether Hudelson, a not-for-profit charitable institution providing residential treatment to disturbed children, is a "local public entity" within the meaning of section 1-206 of the Act (745 ILCS 10/1-206 (West 2000)). We reverse and remand.


On April 27, 1997, D.D., a minor, entered Hudelson's residential treatment program. On September 10, 1997, one of Hudelson's employees filed a report indicating that D.D. had been the victim of repeated sexual abuse while in Hudelson's care. The report indicated that two other male children (minors A and B), also in Hudelson's care, had perpetrated the abuse.

Hudelson is a residential treatment facility providing counseling and education to children exhibiting emotional and behavioral disorders. The children receiving treatment at Hudelson are all referrals from the Department and Children Family Services (DCFS), and each child either is a ward of DCFS or is in the custody of DCFS. The referrals are made pursuant to a fees-for-services contract with DCFS, which sets out a per diem rate per child and additional rates for a schedule of services.

Hudelson was founded in 1903 as a private facility for orphaned and needy children and has operated in affiliation with the Baptist Church since 1911. It is a not-for-profit corporation, as well as a charitable organization and a tax-exempt entity under section 501(c)(3) of the Internal Revenue Code (26 U.S.C. §501(c)(3) (1994)). Hudelson's 1973 amended articles of incorporation state that it is "organized exclusively for charitable, religious, educational[,] and scientific purposes." Further, Hudelson's mission statement explains that its purpose is to "promote, in Christian love, the physical, social, emotional, intellectual[,] and spiritual development of children and their families in need through a variety of exemplary family-focused child welfare services." Hudelson's contract states that the program is designed to serve "females between the ages of 10 and 18 years who have at some point in their history been victims of sexual abuse and for whom the abuse experience has not been successfully resolved and males between the ages of 6 and 12 years who display behavioral or emotional problems which prevent them from residing in a less restrictive setting[,] therefore requiring residential treatment." Hudelson receives its revenue through a contract with DCFS, along with supplemental charitable contributions from the Baptist Church. The management and control of Hudelson is through a Baptist Church board of directors.

On July 18, 2000, plaintiff filed a two-count amended complaint alleging that Hudelson's conduct was negligent and willful and wanton. The complaint alleged that prior to the placement of minors A and B with Hudelson, DCFS had identified these minors as sexually aggressive children and at a high risk to offend sexually. Further, plaintiff alleged that Hudelson knew that an evaluation of minors A and B had recommended that they be placed in a well-supervised environment. Plaintiff further claimed that, despite Hudelson's knowledge of the propensities of minors A and B, Hudelson failed to protect D.D. from these sexually aggressive children. Plaintiff claimed that because of Hudelson's negligence, D.D. was sexually attacked, sodomized, and forced to engage in oral sex with minors A and B on a repeated basis from July 7, 1997, through September 10, 1997.

Relying on the Act, Hudelson asserted the affirmative defense of immunity. On August 23, 2000, Hudelson filed a motion to dismiss pursuant to section 2-619 of the Code. In its motion to dismiss, Hudelson claimed that it has immunity under the Act because it is a "local public entity" "organized for the purpose of conducting public business" under section 1-206. Hudelson further argued that section 4-102 of the Act (745 ILCS 10/4-102 (West 2000)) prevents it from being found negligent for failing to protect D.D. and that section 4-102 of the Act and section 34-84(a) of the School Code (105 ILCS 5/34-84(a) (West 2000)) forbid plaintiff's action for willful and wanton misconduct. Lastly, Hudelson argued that it was also shielded from liability under section 2-201 of the Act (745 ILCS 10/2-201 (West 2000)) because the placement of D.D. with minors A and B was an exercise of policy and discretion under the Act.

The trial court granted Hudelson's motion, finding that it was a "local public entity" within the meaning of the Act. Plaintiff appealed.


Plaintiff argues that the trial court erred when it found that Hudelson was a public entity under the Act and dismissed her complaint. She contends that Hudelson is not organized for the purpose of conducting public business but that, rather, it is a not-for-profit corporation organized for charitable purposes. Plaintiff further maintains that Hudelson is not funded by or controlled by local government and does not offer its services to the general public. Alternatively, plaintiff argues that if this court agrees with the circuit court's finding-that Hudelson is a local public entity-then section 6-106 of the Act (745 ILCS 10/6-106 (West 2000)) should apply to Hudelson's conduct and not sections 2-201 and 4-102 of the Act or section 34-84(a) of the School Code, as Hudelson contends.

Hudelson maintains that it was organized for the purpose of conducting public business as shown by its corporate history. In further support of its position, Hudelson argues that it engages in the "business of government," offers its services to the public at large, receives nearly all of its funding from government sources, and is heavily regulated by the State.

We review de novo the court's granting of a section 2-619 motion to dismiss. Johnson v. Du Page Airport Authority, 268 Ill. App. 3d ...

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