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Bahr v. Sunrise Senior Living

February 3, 2010

GRACE BAHR, EXECUTOR OF THE ESTATE OF ANN MIHOK, DECEASED, PLAINTIFF,
v.
SUNRISE SENIOR LIVING, INC. A/K/A SUNRISE ASSISTED LIVING, DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Sunrise Senior Living, Inc's motion for summary judgment [54]. For the following reasons, Defendant's motion for summary judgment [54] is granted.

I. Background

A. Procedural History

On April 26, 2007, Plaintiff Grace Bahr filed a complaint in the Circuit Court of Cook County, Illinois, against Defendant Sunrise Senior Living, Inc., alleging negligence and violations of the Nursing Home Care Act, 210 ILCS 45/et seq., in the death of Ann Mihok, a resident at an assisted living facility known as Sunrise Assisted Living of Palos Park. On July 12, 2007, Defendant removed this matter to this Court. On December 6, 2007, in its answers to Plaintiff's interrogatories, Defendant Sunrise informed Plaintiff of Defendant's belief that it was not the correct defendant in this suit. In response, on March 5, 2008, Plaintiff filed a motion for leave to file an amended complaint, seeking to name additional defendants. The Court denied Plaintiff's motion, concluding that the statute of limitations on Plaintiff's claims had run and that Plaintiff could not show that the proposed amendment related back to Plaintiff's original complaint. On November 8, 2008, the Court gave Plaintiff leave to conduct additional, limited discovery regarding the scope of Defendant's involvement with Sunrise of Palos Park, the facility where Ann Mihok resided prior to and at the time of her death.

B. Factual History*fn1

Defendant Sunrise Senior Living, Inc. ("Sunrise") is a corporation organized and existing under the laws of Delaware, with its principal place of business in Virginia. Defendant Sunrise is the parent corporation for a wholly owned subsidiary, Sunrise Senior Living Management, Inc. ("Sunrise Management"). Sunrise Management is a corporation organized and existing under the laws of Virginia. Defendant Sunrise and Sunrise Management file separate annual corporate reports. At the time of Ms. Mihok's death, Sunrise Management was the licensee, manager, and operator for Sunrise of Palos Park (also known as Sunrise Assisted Living of Palos Park), where Ms. Mihok resided, and Sunrise Second Assisted Living Holdings, LLC ("Sunrise Holdings") was the real estate owner of the facility. Sunrise of Palos Park is licensed as an assisted living facility under 210 ILCS 9/1 et seq. It is not licensed under the Nursing Home Care Act, 210 ILCS 45/1-101 et seq.

The individual assisted living communities, such as Sunrise of Palos Park, are assigned an Executive Director, who is responsible for managing and controlling the day-to-day operations of the community and who reports to the area manager's office. These individuals working at the area manager's office and at the Virginia headquarters were all employed by Sunrise Management. Defendant presented Kathleen Ridder, the Executive Director responsible for managing and overseeing Sunrise of Palos Park, for deposition. Ms. Ridder produced both her W-2 and earnings statement, which established that Sunrise Management paid her salary. Ms. Ridder also testified that the policies relating to care of the residents were developed by Sunrise Management and carried out by the employees at Sunrise communities. Ms. Ridder testified that she executed many of the vendor contracts on behalf of Sunrise of Palos Park, and, for the larger contracts, Sunrise Management employees in Virginia were consulted. Ms. Ridder acknowledged that Paul and Theresa Klaassen (co-founders of Defendant Sunrise), Tiffany Tomasso (COO of Sunrise), and Tom Newell (employee of Defendant Sunrise) occasionally would attend meetings with Executive Directors, during which time they might speak about the philosophy and mission of Sunrise Management. Additionally, Tomasso, Bradley Rush, and Jeffrey Jasnoff had dual roles with the parent (Defendant Sunrise) and the subsidiary (Sunrise Management).

In June 2001, Plaintiff, as the responsible party for Ann Mihok, entered into a resident contract with Sunrise Management for the lodging, care, and services for Ann Mihok. Plaintiff did not enter into a contract with Defendant Sunrise. From May 17, 2001 through April 27, 2005, Ann Mihok resided at Sunrise of Palos Park. Ms. Mihok suffered from Alzheimer's disease and/or dementia and required assistance with some of her daily living activities. On April 27, 2005, Ann Mihok choked while eating lunch, and on May 2, she died. At the time of her death, Ms. Mihok was ninety-five years old.

II. Analysis

A. Summary Judgment Standard

Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, Ind., 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.

B. Applicable Law

In a diversity action such as this, the Court applies the substantive law of Illinois, as the Court believes the Illinois Supreme Court would apply it, to the negligence and Nursing Home Care Act claims. Association Ben. Services, Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007). However, with regard to Plaintiff's allegations that Defendant is liable as a parent corporation for the actions of its subsidiary, Illinois courts have established that the law of the state of incorporation applies. See Retzler v. Pratt and Whitney Co., 723 N.E.2d 345, 354 (1st Dist. 1999); Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 ...


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