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Toth v. England

April 27, 2004

ALEXANDER TOTH, PLAINTIFF-APPELLEE,
v.
MARSHA ENGLAND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 01-SC-400534 Honorable Ellar Duff, Judge, presiding.

The opinion of the court was delivered by: Justice Maag

Rule 23 order filed March 17, 2004; Motion to publish granted April 27, 2004.

The plaintiff, Alexander Toth Jr., filed a small claims complaint against the defendants, Marsha England and the Southwestern Illinois Visiting Nurses Association (Association), England's employer, for defamation, abuse of process, and malicious prosecution. The defendants filed a motion to dismiss, and the circuit court denied the motion. The defendants filed a motion to reconsider. The record does not reflect any ruling on that motion. Subsequent to the trial, the circuit court entered an order that dismissed the Association as a defendant, and the court entered a judgment in favor of the plaintiff and against England in the amount of $5,000 plus costs. England filed a timely notice of appeal.

The relevant facts are as follows. The plaintiff filed a small claims complaint against the defendants on July 23, 2001, alleging defamation, abuse of process, and malicious prosecution. The plaintiff did not state what actions the defendants had taken that supported his claim. For that reason, the defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2000)), contending that they were entitled to sovereign immunity, to public official immunity, and to immunity pursuant to the Elder Abuse and Neglect Act (Elder Act) (320 ILCS 20/1 et seq. (West 2000)). The circuit court denied the motion on September 24, 2001. A few weeks later, the defendants filed a motion to reconsider the denial of their motion to dismiss. In that motion, the defendants argued that England was a State of Illinois employee pursuant to the Elder Act and that she was acting in the course of her employment. The defendants alleged that the plaintiff's cause of action was barred by sovereign immunity and that England was protected by public official immunity. A review of the record shows no ruling on the motion to reconsider. The case proceeded to a trial.

The testimony at the trial revealed that the Association became involved with the Toth family because Florence Toth, who was 81 years old with a history of Alzheimer's dementia, was living at home with her husband, Alexander Toth Sr. (Toth Sr.), who was approximately the same age as Mrs. Toth and serving as her primary caregiver. The plaintiff is the Toths' only child. For various reasons, the Association intervened to provide assistance to the family.

Peggy Riley, Mrs. Toth's senior companion, testified in her evidence deposition that she worked for the Toth family for six months in 2000. She stated that she noticed bruising on Mrs. Toth's body during that period of time. Riley said that one day while sitting with Mrs. Toth she noticed a "humongous" bruise on Mrs. Toth's breastbone when Toth Sr. was changing her blouse. Riley claimed that there were always "fingerprint bruises" on Mrs. Toth's arms, as if someone were "squeezing [her] too hard." She also noticed a bruise on Mrs. Toth's lip. She was concerned when she noticed the bruises, and she asked Toth Sr. about them. Toth Sr. claimed that Mrs. Toth fell a lot. Riley thought that was strange because she and Mrs. Toth went outside, down the steps, on the patio, and down the driveway when she visited with her twice a week, and she had never seen Mrs. Toth fall. Riley stated that she did not hold onto Mrs. Toth or help her.

On October 2, 2000, Riley noticed that Mrs. Toth was not sitting at the kitchen table as she normally did. When she entered the Toth home, she could hear Toth Sr. "hollering" at Mrs. Toth. They were in the bathroom. Riley thought that Toth Sr. had shoved Mrs. Toth, because when Mrs. Toth exited the bathroom she was "almost at the point of running." Mrs. Toth then "plopped down in the chair." Mrs. Toth's eyes were glazed and she had a "very blank look on her face." She was "trembling." Mrs. Toth was unable to communicate with Riley. Riley said that this was unusual for Mrs. Toth. Toth Sr. told Riley that Mrs. Toth had "messed" on herself. Toth Sr. exited the bathroom and threw some crackers on the table. Toth Sr. told Mrs. Toth that the crackers would be the only thing that she would get to eat that day. Riley picked up the cracker and Mrs. Toth "ignored it." Riley suggested to Toth Sr. that they call an ambulance to take Mrs. Toth to the hospital. Toth Sr. told Riley that it was "too expensive." The telephone rang, and it was the plaintiff. Riley told the plaintiff about the incident between Toth Sr. and Mrs. Toth. The plaintiff responded, "[W]ell, [D]ad does that sometimes." She told the plaintiff that she was concerned about getting Mrs. Toth to the hospital and that Toth Sr. did not want to call an ambulance. The plaintiff talked to Toth Sr. for a few seconds on the telephone, and Toth Sr. then called an ambulance. Riley stated that Toth Sr. made no effort to do anything for Mrs. Toth while they were waiting for the ambulance to arrive.

Riley also testified that Toth Sr. did not give Mrs. Toth enough food. Mrs. Toth was losing weight. Riley stated that she brought it to Toth Sr.'s attention and nothing changed. Toth Sr. complained if Riley turned a light on to read to Mrs. Toth; he said it made his electric bill more expensive. Riley also claimed that one day she played a radio for Mrs. Toth and that Toth Sr. told her to turn it off because she was running the batteries down. Riley basically stated that these incidents were examples of how Toth Sr. generally conducted himself.

Eileen Brewer, the elder abuse trainer and coordinator for the Illinois Department on Aging (Department), testified that the purpose of the elder abuse program is to receive reports of any type of abuse, neglect, or financial exploitation of a senior citizen who lives in a domestic setting. Brewer stated that the Department then intervenes in substantiated cases. According to Brewer, her employer, the Association, is the designated elder abuse agency for the seven counties in southwestern Illinois, pursuant to the Elder Act. See 320 ILCS 20/1 et seq. (West 2000). Additionally, the State of Illinois provides the Association's training. The caseworkers must attend caseworker certification training, supervisor training, community care training, documentation training, and in-service training throughout the year. Brewer stated that England received such training. She also said that England is listed on the registry for caseworker and supervisor. Brewer agreed that England had received intervention training, which included seeking orders freezing the assets of elderly clients who were believed to be financially exploited. Agencies such as the Association use attorneys to prepare the petitions to freeze assets, but no specific directions are given to caseworkers on how to serve orders freezing assets. Brewer stated that caseworkers must act quickly in situations where an order has been entered freezing assets, in order to prevent the depletion of assets. Brewer testified that an agency employee should seek the advice of an attorney if she does not know the particular banks where the alleged victim has assets.

England testified that she is a social worker for the Association. She had worked for the Association for about 11 years. England earned a bachelor's degree in social work from "Southwestern Illinois University of Edwardsville [sic]" in 1990. England testified that she had received training from the Department. England described her job as an elder abuse/neglect/exploitation caseworker. She explained that she gets involved in cases where someone has made allegations of abuse, exploitation, or neglect of a senior citizen.

On August 25, 2000, England was assigned to a case involving Mrs. Toth. At that time, Mrs. Toth's primary caregiver was Toth Sr. During the course of England's investigation, she interviewed the plaintiff, Toth Sr., several medical personnel who provided care for Mrs. Toth, Riley, and Mary, who was Mrs. Toth's aide and cared for her during the week. England stated that she spoke with the plaintiff approximately seven times.

On November 15, 2000, England, on behalf of the Association, filed a petition for the guardianship of a disabled adult and a motion to freeze assets pursuant to the Elder Act. England explained that the purpose of filing the motion was to ensure that Mrs. Toth would receive the type of care that she needed. England stated that her primary concern was Mrs. Toth's safety and well-being. In the motion, England stated in part as follows:

"3. The undersigned reasonably believes that the client, Florence Toth[,] is the subject of financial exploitation based upon the work of myself and other members of my agency, including, but not limited to the following:
a. When our agency *** began work[ing] with Mrs. Toth in July or August 2000 she was ambulatory. She had dementia and could not speak properly. She was unable to reside in her home by herself. Her spouse[] Alexander Toth[] Sr. and her [son] Alexander Toth[] Jr. were unwilling or unable to pay for the necessary home health care. The ...

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