Appeal from the Circuit Court for the 13th Judicial Circuit, LaSalle County, Illinois. No. 01-L-85 consolidated with 01-L-222. Honorable William R. Banich, Judge, Presiding.
The opinion of the court was delivered by: Justice McDADE
In this consolidated case from the circuit court of LaSalle County, the plaintiffs appeal from the dismissal, pursuant to Section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2002)), of all claims against the defendant North Central Behavioral Health Systems, Inc.
The plaintiffs are four children who were sexually abused by David H., also a minor. The parents of the abused children brought suit against David H. and his parents, Kathy and Kenneth H., as well as against North Central Behavioral Health Systems (the Clinic), a psychological clinic that saw David as a patient. With respect to the Clinic, the suit alleged that while he was a patient at the clinic, David H. told his therapist that he was sexually abusing children in his apartment complex and that the Clinic failed to report the abuse to the Illinois Department of Children and Family Services (DCFS). The plaintiffs claimed that the Clinic owed a duty of care to the abused children under the reporting provision of the Abused and Neglected Child Reporting Act (Reporting Act or Act) (325 ILCS 5/4 (West 2002)), which required it to inform the State of the abuse and to take steps to see that the abuse was stopped. The plaintiffs also asserted in the alternative that the Clinic owed a common law duty to the abused children and that it was negligent in not reporting or attempting to stop the abuse.
In its motion to dismiss, the Clinic asserted that the Reporting Act does not impose a duty to report the abuse of children with whom the Clinic has no direct contact or professional relationship. The Clinic also argued that no common law duty to protect could be imposed on the Clinic. The court granted the motion and dismissed the claims against the Clinic with prejudice. Because we agree that no cause of action lies against the Clinic, we affirm.
The plaintiffs argue on appeal that the trial court erred in dismissing all claims for damages under both the Reporting Act and the common law. The defendant asserts that the Act does not authorize a private cause of action and the claim must be dismissed, and also, asserts that it does not owe any common law duty to the abused children. The dismissal of the plaintiffs' claims under section 2-615 for failure to state a cause of action is reviewed de novo. Bea v. Bethany Home, Inc., 333 Ill. App. 3d 410, 413, 775 N.E.2d 621, 623 (2002). In reviewing the complaint, the court must accept all well pleaded facts as true, the pleadings are to be liberally construed with a view to doing substantial justice between the parties, and the allegations of the complaint should be liberally construed in favor of the plaintiffs. Bea, 333 Ill. App. 3d at 413, 775 N.E.2d at 623.
A. Private Right of Action
The Reporting Act does not expressly provide for a private cause of action in the event of a violation. The plaintiffs assert, however, that the case of Doe v. Dimovski, 336 Ill. App. 3d 292, 783 N.E.2d 193 (2003), supports the argument that a private action may be maintained. In that case, a student and parent sued the school district that employed a teacher who had sexually abused the student. The plaintiffs sued on a negligence theory, claiming that the school district had a duty to investigate the abuse and report it to the DCFS. The case did not directly address whether a private cause of action may be maintained under the Act. The court found that the plaintiff's claim could not be dismissed on the basis of section 2--201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201 (West 2000)), since the Reporting Act did not allow the school district discretion in deciding whether to report suspected child abuse. Dimovski, 336 Ill. App. 3d at 297, 783 N.E.2d at 198. The fact that the case does not address the issue contested here, whether there exists a private right of action, limits its precedential value.
The law is clear regarding a private cause of action arising from a statute that does not explicitly provide one. A statute implies a private cause of action if: (1) the plaintiff is a member of the class for whose benefit the statute was enacted; (2) the plaintiff's injuries are those the statute was designed to prevent; (3) a private cause of action is consistent with the underlying purpose of the statute; and (4) implying a private cause of action is necessary to provide an adequate remedy for violations of the statute. Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 460, 722 N.E.2d 1115, 1117-18 (1999).
In a general sense, the plaintiffs are members of the class for whose benefit the Reporting Act was enacted. The statute has as one of its purposes the protection of abused children. Bea, 333 Ill. App. 3d at 414, 775 N.E.2d at 624. Similarly, the injuries sustained by the plaintiffs, a result of sexual abuse, are the kind the statute was designed to prevent. 325 ILCS 5/2 (West 2002).
However, as discussed below in Part I.B., the children do not fall within the somewhat limited definition of "abused children" contained in the statute. It is not as clear whether a private remedy is consistent with the underlying purpose of the statute as a whole. The Act is designed to enhance the ability of the DCFS to "protect the health, safety, and best interests of the child in all situations in which the child is vulnerable to child abuse or neglect." 325 ILCS 5/2 (West 2002). Nowhere is it either explicitly stated or implied that a purpose of the Reporting Act is to provide children or families with compensation for sexual abuse or a failure to report abuse. The plaintiffs argue that the finding of an implied private cause of action for a failure to report would lead to enhanced enforcement of the Act. The same argument could be made of almost any statute. What the plaintiff fails to present is any evidence that the statute does not already adequately serve its purpose, absent a private cause of action. It may be said that a private cause of action is not inconsistent with the purpose of the Act, since it may provide extra incentive for compliance, but as discussed below, the statute already includes an adequate mechanism for enforcement.
Finally, an implied private cause of action is not necessary to provide an adequate remedy for violations of the statute. A cause of action should only be implied in a statute "in cases where the statute would be ineffective, as a practical matter, unless such an action were implied." Fisher, 188 Ill. 2d at 464, 722 N.E.2d at 1119-20. The Reporting Act provides criminal sanctions for failure to report. Individuals who fail to fulfill an obligation to report are guilty of a Class A misdemeanor. 325 ILCS 5/4.02 (West 2002). The plaintiffs have not explained why this sanction is insufficient to assure compliance with the provisions of the statute.
In summary, although the plaintiffs are members of the class of individuals who are to be protected by the Reporting Act, and even though the harm suffered by the children was of the type the statute was designed to prevent, the plaintiffs have not shown that a private cause of action may be implied in the statute. There is no evidence that the statute was designed to provide ...