Appeal from the Circuit Court of Cook County 00 L 11207 Honorable Kathy M. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McBRIDE
This appeal arises from the trial court's dismissal of count II of the first amended complaint (the complaint), which was filed by plaintiff-appellant, Eva Collins, special administrator of Laura Collins' Estate, *fn1 against defendant-appellee, Superior Air-Ground Ambulance Service, Inc., (Superior), under section 2-615 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615 (West 2000). Count I of the complaint alleged statutory nursing home violations against defendant Alden Wentworth Rehabilitation and Health Care Center, Inc. (Alden), as a result of injuries sustained by plaintiff's decedent while in Alden's care. Count II of the complaint alleged negligence under the doctrine of res ipsa loquitur against both defendants. Specifically, plaintiff alleged that her mother's injuries occurred during the period of time when she was under Superior "and/or" Alden's control and that these injuries "would not have occurred if defendants had used a reasonable standard of care while Collins was under defendant(s)['] control and management." Further, plaintiff alleged that as a direct and proximate result of defendants' negligence, Collins suffered severe and permanent disabling injuries to her body, pain and suffering, and mental anguish. The defendants moved to dismiss count II of the complaint on the ground that it failed to state a cause of action for res ipsa loquitur.
Superior also claimed that plaintiff's claim against it was barred based on the immunity provision set forth in the Emergency Medical Services (EMS) Systems Act (EMS Act) (210 ILCS 50/3.150 (West 2000)). On September 17, 2001, the trial court granted Superior and Alden's motion to dismiss count II on the ground that the complaint failed to state a cause of action under the doctrine of res ipsa loquitur. In its order, the trial court found that because the defendants were in control of different instrumentalities at different times, res ipsa loquitur could not apply. The trial court never reached Superior's immunity argument. The trial court's finding pursuant to Supreme Court Rule 304(a) making the dismissal order final and appealable was made only to Superior. 155 Ill. 2d 304(a). Alden remains a defendant in the trial court and is not a party to this appeal.
We first consider whether a plaintiff's complaint is factually sufficient under the doctrine of res ipsa loquitur where each defendant that allegedly caused her injuries has been named in that complaint but did not jointly control the instrumentality that caused the injuries.
Laura Collins (Collins) was born May 8, 1916. In June of 1999, she was 83 years old and lived with plaintiff, her daughter Eva Collins, at 5113 South Marshfield Avenue, Chicago, Illinois. At the time, Collins was bedridden, her left leg had been amputated due to diabetes, and she was unable to speak as a result of a stroke. According to the record, she was fed through a "G-tube."
On June 7, 1999, plaintiff admitted her mother to Alden, located at 201 West 69th Street, Chicago, Illinois. On the same day, Collins was transported to Alden by Superior. Plaintiff then went to Minnesota and returned to Chicago on June 12, 1999. Collins was returned home by Superior on June 12, 1999.
Upon her mother's return, plaintiff noticed that Collins was in pain when her right leg was moved. She also observed that her mother was dehydrated. Plaintiff denied that her mother was injured before her admission to Alden and transport thereto.
After noticing her mother's condition, plaintiff called the Chicago fire department and paramedics transported Collins to Holy Cross Hospital. At the hospital, Collins was diagnosed with a fractured right distal tibia and fibula, commonly known as a broken right leg, and dehydration.
Attached to plaintiff's complaint was a supplemental physician's report filed pursuant to section 2-622 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-622 (West 2000). In the report, the reviewing physician opined that the dehydration and fracture to Collins' right leg would not have occurred in the absence of negligence. He further found that, during the period of June 7, 1999, to June 12, 1999, Collins was under the control of Superior and Alden and that Superior and Alden controlled any agency or instrumentation which caused Collins' dehydration and fractured right leg. According to the physician, in the normal course of events, the injuries to Collins would not have occurred if the defendants had used a reasonable standard of care while Collins was under the defendants' control and management. The physician further found that either Superior and/or Alden negligently moved or handled Collins and caused injury to her right leg, failed to diagnose the injury to her right leg, and thereafter failed to properly treat her injury by referring her to a properly qualified physician.
As noted above, Superior and Alden filed motions to dismiss count II of plaintiff's complaint under section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)), and, in an order dated September 17, 2001, the trial court granted both Superior and Alden's motions to dismiss on the basis that res ipsa loquitur was inapplicable because the element of concurrent control with regard to both defendants could not be established. Plaintiff appeals from that order.
Our standard of review on reviewing a motion to dismiss under section 2-615 is de novo. Neade v. Portes, 193 Ill. 2d 433, 439, 739 N.E.2d 496 (2000).
We begin our discussion with a statement concerning the doctrine of res ipsa loquitur and its purpose. Our supreme court said in Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446, 448-49, 207 N.E.2d 305 (1965):
"When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. [Citations.] This in essence is the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant."
The appellate court also observed the following:
"Because Illinois requires fact pleading [citation] res ipsa loquitur is often pleaded as a separate claim [citation] and, therefore, has sometimes been referred to as a cause of action. [Citation.] Nevertheless, res ipsa loquitur is 'simply a rule of evidence relating to the sufficiency of plaintiff's proof.' [Citation.]" Darrough v. Glendale Heights Community Hospital, 234 Ill. App. 3d 1055, 1060, 600 N.E.2d 1248 (1992).
" ' The res ipsa loquitur doctrine is a species of circumstantial evidence permitting the trier of fact to draw an inference of negligence if plaintiff demonstrates that he or she was injured "(1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant's exclusive control ***." [Citations.] ' "
The supreme court has also stated, "[w]hen res ipsa loquitur is invoked the plaintiff bears the burden of proving all of its elements." Dyback v. Weber, 114 Ill. 2d 232, 242, 500 N.E.2d 8 (1986).
In the instant case, plaintiff claims that the trial court erred in dismissing count II when it held that res ipsa loquitur was not applicable to the instant suit. Plaintiff claims that the facts set forth in the complaint and accompanying physician's report were sufficient to satisfy the requisite pleading elements for the inference of negligence which arises under the doctrine of res ipsa loquitur. Gatlin, 137 Ill. 2d at 295.
Superior responds that where the occurrence speaks, not of Superior's negligence, but of negligence imputable to someone else, res ipsa loquitur is not applicable. According to Superior, plaintiff's conclusions in count II that Collins' injuries occurred at some point between the time she left home on June 7, 1999, and the time she returned home on June 12, 1999, do not speak to Superior's negligence. During the time at issue, Superior suggests that Collins was treated by two different entities, Superior and Alden. For most of the six days complained of, Superior had no contact with Collins. Thus, Superior claims that the alleged injuring instrumentality could have been controlled by Superior, Alden, or a third party. Because it could not be inferred that Collins was injured during her transport by Superior or by an instrumentality controlled by Superior, Superior contends that count II did not support an inference of res ipsa loquitur negligence against it.
When reviewing a section 2-615 motion to dismiss, we take as true all well-pled facts and reasonable inferences therefrom and consider only those facts in the pleading and included in the attached exhibits. Safeway Insurance Co. v. Daddono, 334 Ill. App. 3d 215, 218, 777 N.E.2d 693 (2002). Further, when an exhibit is attached to a complaint it becomes part of the complaint. Bianchi v. Savino Del Bene International Freight Forwarders, Inc., 329 Ill. App. 3d 908, 921, 770 N.E.2d 684 (2002). As a result, the facts alleged in the physician's affidavit attached to the complaint pursuant to section 2-622 of the Illinois Code of Civil Procedure are part of the complaint. 735 ILCS 5/2-622 (West 2000). In the supplemental physician's report filed pursuant to section 2-622, the reviewing physician, among other things, stated: "[I]t is my opinion, to a reasonable degree of medical certainty, that either [Superior] and/or [Alden], negligently moved or handled Laura Collins and thereby caused injury to her right distal tibia and fibula, failed to diagnose the injury to her right distal tibia and fibula, and thereafter failed to properly treat her injury by referring her to a properly qualified physician."
In Gatlin v. Ruder, cited above, the plaintiff-mother filed a negligence action on behalf of her infant child against two defendants, Bernard Ruder, an obstetrician, and Riverside Medical Center (Riverside), in connection with injuries sustained by the child during or immediately after his birth. The facts revealed that Ruder was directly involved in delivering the child. After the delivery, the child was immediately admitted to the nursery at Riverside. Three hours after delivery, a notation was made on the child's medical chart that he had several large scratches and a bruise on the top of his head. ...