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Worley v. Barger

March 31, 2004

[5] KELLI WORLEY, PLAINTIFF-APPELLANT,
v.
KARA BARGER, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Pope County. No. 01-L-1 Honorable Bruce D. Stewart, Judge, presiding.

[9] The opinion of the court was delivered by: Justice Donovan

[10]   As amended April 6, 2004

[11]   Plaintiff, Kelli Worley, appeals the order of the circuit court of Pope County dismissing her complaint to recover for lost wages she claimed to have suffered in order to provide care for her minor child, Kelly Barger, who was injured in a car accident as the result of defendant's negligence. For the following reasons, we find that the parent is entitled to recover the reasonable value of the services rendered in caring for her minor child who was injured as a result of defendant's negligence. We reverse and remand for further proceedings.

[12]   BACKGROUND

[13]   The plaintiff in this case, Kelli Worley, is the mother and custodial parent of the minor child, Kelly Barger. On June 28, 1999, while Kelly was a passenger in an automobile operated by defendant, Kara Barger, the automobile left the road and overturned, resulting in injuries to Kelly. A settlement was reached on behalf of Kelly against defendant. After the settlement, plaintiff filed a complaint attempting to recover for lost wages she claimed to have sustained in order to provide care for Kelly as a direct result of the negligence of defendant. Defendant filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)), claiming that defendant owed no legal duty to plaintiff that would allow her to collect the claimed lost wages. The court heard arguments from counsel and dismissed the complaint with leave to amend. Plaintiff filed her first amended complaint and realleged the allegations from the original complaint. Defendant filed a motion to dismiss plaintiff's first amended complaint, pursuant to section 2-619. On September 9, 2002, the trial court entered an order finding that plaintiff's complaint did not state a cause of action. It is from this order that plaintiff appeals.

[14]   ANALYSIS

[15]   Although the motion was filed as a section 2-619 motion to dismiss, we will analyze it as a motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)), because the motion challenges the legal sufficiency of the complaint. See Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d 724, 733 (2003). "A section 2-615 motion attacks only a complaint's legal sufficiency; its purpose is not to raise affirmative factual defenses but rather to allege defects apparent on the face of the pleadings." Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 712, 722 N.E.2d 1167, 1170 (1999). In reviewing a section 2-615 dismissal, a reviewing court must decide whether the allegations, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted. A cause of action should be dismissed only if it is clearly apparent from the pleadings that no set of facts can be proven which will entitle the plaintiff to recovery. Chandler, 207 Ill. 2d at 349, 798 N.E.2d at 733. The review of a section 2-615 dismissal is conducted de novo. Chandler, 207 Ill. 2d at 349, 798 N.E.2d at 733; see also Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 804 N.E.2d 519 (2004).

[16]   To recover in a negligence action, a plaintiff must allege facts from which a court will find a duty of care owed by the defendant to the plaintiff, a breach of the duty, and an injury proximately caused by the breach. Chandler, 207 Ill. 2d at 340, 798 N.E.2d at 728. To determine whether a duty exists, a court must consider the following factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of guarding against the injury, and (4) the consequences of placing that burden on the defendant. Bajwa, 208 Ill. 2d at 427, 804 N.E.2d at 529; Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 303, 730 N.E.2d 1119, 1134 (2000); Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 456, 665 N.E.2d 826, 836 (1996).

[17]   We are presented with the issue of whether a parent has a right to recover the wages lost while caring for a child who was injured as a result of a defendant's negligence. Surprisingly, there is little case law regarding this issue in Illinois. However, it is well established that a parent is allowed to recover the child's loss of earnings and medical and caretaking expenses during the child's minority. The Comment to instruction number 30.08 of the Illinois Pattern Jury Instructions provides as follows:

[18]   "In actions for damages arising out of an injury to an unemancipated minor, the loss of earnings [and] medical and caretaking expense during the child's minority are recoverable by the parents. The child, therefore, is limited to the loss of earnings [and] medical or caretaking expense he would have incurred after reaching his majority. Wolczek v. Public Service Co. of N. Ill., 342 Ill. 482, 496, 174 N.E. 577, 583 (1930). The usual practice in Illinois, however, is to sue for all damages in the minor's action. This is accomplished by alleging an assignment[] or waiver or relinquishment by the parents of their right to recover these damages. Curtis v. Lowe, 338 Ill. App. 463, 87 N.E.2d 865 (2d Dist. 1949)." (Emphasis added.) Illinois Pattern Jury Instructions, Civil, No. 30.08, Comment, at 141 (1995).

[19]   In the case at bar, the issue of plaintiff's lost wages was brought in a separate cause of action because the minor's cause of action had been settled and plaintiff's claim of lost wages had not been addressed in the minor's settlement documents.

[20]   Historically, there is some support for plaintiff's position. In Seltzer v. Saxton, 71 Ill. App. 229 (1897), a father brought a negligence cause of action against a store owner. The father sought damages for the care he provided to his son after his son had been blinded in one eye as a result of the store owner's actions. According to the syllabus of the opinion, the father argued that "[i]n a suit by a parent for loss of services, the parent may recover for time spent in caring for and nursing the child. Connell v. Putnam, 58 New Hampshire, 534." Seltzer, 71 Ill. App. at 232. In affirming a jury verdict in the amount of $2,900 for the father, the court held: "The plaintiff was entitled to recover a reasonable sum for actual loss sustained and to be sustained by reason of the defendant's act. This actual loss would be made up of expense and trouble in caring for the child and the deprivation of his services during minority." Seltzer, 71 Ill. App. at 233. Similarly, in Baltimore & O. S.-W. Ry. Co. v. Keck, 89 Ill. App. 72 (1899), the court allowed a parent to recover for medical bills and for necessary care in nursing the boy until his recovery, because it was the parent's duty to care for his boy. Keck, 89 Ill. App. at 78.

[21]   More recently, in Doe v. Montessori School of Lake Forest, 287 Ill. App. 3d 289, 678 N.E.2d 1082 (1997), a private preschool student, by her father and next friend, and her parents, on their own behalf, sued the school and its employees. The plaintiffs sought damages for negligence, intentional torts, negligent or intentional infliction of emotional distress, fraudulent concealment, and conspiracy to conceal, in connection with alleged sexual contact committed against the student. The circuit court dismissed the cause of action. The plaintiffs argued that the trial court had erred when it found that the parents, John and Mary Doe, could not maintain an independent cause of action for the intentional infliction of emotional distress, civil conspiracy, or fraudulent concealment because their claims derived from plaintiff Jane Doe's claims against defendants.

[22]   In reversing the trial court, the appellate court determined that although parents do not have a primary cause of action against a defendant for injuries received by their child, "it is universally recognized that parents may maintain an action in their own right for any impairment of parental rights caused by the injuries, particularly for any pecuniary losses suffered as a result of the injuries." (Emphasis added.) Doe, 287 Ill. App. 3d at 301-02, 678 N.E.2d at 1092. The court reasoned, "[T]he parent's right of action, although distinct from the child's ...


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