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Ernestine Watson, As Independent v. South Shore Nursing and Rehabilitation Center

February 10, 2012


Appeal from the SLOAN, Circuit Court of Cook County, Illinois. No. 2009 L 014819 Honorable Donald J. Suriano, Judge Presiding.

The opinion of the court was delivered by: Justice Joseph Gordon

JUSTICE JOSEPH GORDON delivered the judgment of the court, with opinion. Presiding Justice Epstein and Justice McBride concurred in the judgment and opinion.


¶ 1 This case is a survival and wrongful death action arising out of the death of William Sloan, a patient at a nursing home operated by defendant-appellee South Shore Nursing and Rehabilitation Center, LLC, and defendant Care Centers, Inc. It is undisputed that, on July 24, 2004, while Mr. Sloan was unsupervised inside the facility, he attempted to smoke a cigarette and caught on fire. He suffered severe burns which led to an infection that caused his death on June 10, 2006, at the age of 86.

¶ 2 After Mr. Sloan's death, his daughter Ernestine Watson, in her capacity as administrator of his estate, brought the instant suit against South Shore and Care Centers, claiming that Mr. Sloan's death was due to their negligence in leaving him unsupervised with smoking materials. She sought survival and wrongful death damages arising out of common law negligence claims and alleged violations of the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2008)).

Following a trial, the jury found in favor of Care Centers but against South Shore. It awarded damages in the amount of $1,650,547.86 for Mr. Sloan's medical expenses, pain and suffering, disfigurement, and loss of normal life, but it awarded no damages for loss of society. Subsequently, plaintiff petitioned for attorney fees in the amount of $568,187.50 pursuant to the Nursing Home Care Act, which provides for the award of reasonable attorney fees to prevailing plaintiffs, but the trial court only awarded plaintiff $322,110.00 in attorney fees.

¶ 3 Plaintiff now appeals, contending that the jury's award of no damages for loss of society was against the manifest weight of the evidence, thus entitling her to a new trial on the issue of damages for loss of society, and also contending that the trial court erred in not awarding attorney fees in the amount requested. South Shore does not raise any cross-appeal. For the reasons that follow, we affirm the trial court's grant of $322,110.00 in attorney fees, but we find that plaintiff is entitled to a new trial on the issue of damages for loss of society.


¶ 5 On May 8, 2007, plaintiff filed her instant amended complaint against South Shore and Care Centers. In her complaint, she alleged that, at all times material to the action, Mr. Sloan was a patient at a nursing home owned and operated by South Shore, a corporation engaged in the custodial care of elderly and helpless individuals in need of nursing care and treatment. Care Centers was a nursing home management company providing services to and for South Shore.

¶ 6 The complaint stated that, while Mr. Sloan was in the care of South Shore, his clinical records indicated that he required close monitoring while smoking, and defendants therefore ordered their agents and employees to prevent him from smoking without supervision.

Notwithstanding these orders, on July 24, 2004, Mr. Sloan was allegedly left unsupervised in the dining area of South Shore with smoking materials. He was found "engulfed in flames" by defendants' employees and suffered third degree burns to 30 percent of his upper body which were the proximate cause of his death on June 10, 2006.

¶ 7 The complaint sought relief in four counts. In count I, common law negligence, plaintiff alleged that defendants were negligent in failing to properly monitor Mr. Sloan and failing to secure all smoking materials from him. In count II, plaintiff alleged that defendants violated the Nursing Home Care Act, which provides, in relevant part, that "An owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident." 210 ILCS 45/2-107 (West 2006). Plaintiff alleged that defendants committed neglect by failing to provide adequate supervision and oversight for Mr. Sloan. In count III, survival, plaintiff alleged that as a proximate result of defendants' conduct, Mr. Sloan suffered personal injury, including pain and suffering, mental anguish, fright, disfigurement, emotional distress, and humiliation. In count IV, wrongful death, plaintiff alleged that Mr. Sloan left surviving daughters who, as a result of their father's death, suffered injuries in their means of support and loss of their father's society.

¶ 8 Prior to trial, plaintiff filed a motion in limine barring any testimony regarding Mr. Sloan's pre-existing medical conditions or allegations of alternative causes of death. Plaintiff argued that such testimony would be without foundation and extremely prejudicial, since there had been no expert opinion testimony disclosed pursuant to Illinois Supreme Court Rule 213(f)(2) or Rule 213(f)(3) that any of Mr. Sloan's pre-existing medical conditions caused or contributed to his death. The trial court granted this motion with the exception that the parties could introduce evidence that Mr. Sloan previously had a stroke and that he smoked cigarettes.

¶ 9 The case proceeded to trial. At trial, the parties stipulated that, as a result of his attempt to light a cigarette, Mr. Sloan suffered first, second, and third-degree burns on his head, face, chest, neck, and arms. These burns caused him to get an infection that was the proximate cause of his death on June 10, 2006. The parties also stipulated that Mr. Sloan incurred medical bills totaling $1,200,547.86 as a result of the incident.

¶ 10 Ann Livingston, Mr. Sloan's daughter, testified for plaintiff. Mr. Sloan had five daughters: Margaret Sloan (deceased at the time of trial), herself, Ernestine Watson, Gwendolyn Jackson, and Sharon Sloan. She testified that, while she was growing up, their family was very close-knit, and Mr. Sloan was "the nucleus of our lives." She said that she loved her father all of her life and was very proud of him. All the way up until his accident, she said, he was a source of confidence and advice when she needed it. She also stated that her father's father lived to be 92 years old, and her father's mother lived to be 99.

¶ 11 Ann stated that in the late 1990s, her mother, Margaret Sloan (Mrs. Sloan), was diagnosed as being in the early stages of Alzheimer's disease. The family decided that she needed continual care and, in 2000, placed her in South Shore. Mr. Sloan was not yet in South Shore but, after his wife was placed in South Shore, was living by himself in an apartment. Ann said that the sisters took care of their father and visited him daily. One day, Ernestine came to visit her father and found that he had fallen the night before and was unable to get up. Ann stated that the sisters were concerned over his safety and his ability to take care of himself. As a result, in 2002, they decided to place him in South Shore as well. Although Ann was living out of state at this time, she said that she would visit her father in South Shore three to five times a year and kept phone contact "all of the time." She testified that the other sisters visited their parents at South Shore on a weekly basis and would bring them home on weekends.

¶ 12 Ann testified that, on the day of the accident, July 24, 2004, she and her husband were visiting in town. Together with Ernestine and Sharon, they used the occasion to visit Mr. Sloan. They arrived around 4:00 p.m. Ann stated that Mr. Sloan was smiling and alert, chatting about the Cubs and about his grandchildren. Before dinner was served, Ann and the other visitors left in order to go shopping for Mr. Sloan. While they were shopping, Ann said, Ernestine received a phone call that Mr. Sloan had been in an accident. They went to the emergency room and were directed to the burn unit, where Ann saw her father "totally wrapped from head to foot." Ann said that the administrator of South Shore subsequently told her that her father had set himself on fire by smoking and dropping his cigarette.

¶ 13 Ann testified that, although her father lived, he never talked to her or smiled at her again, although he would follow her with his eyes. She said that he was not able to breathe independently and was confined to a hospital bed for the last 23 months of his life. Mrs. Sloan died on June 6, 2006, and Mr. Sloan died four days later, on June 10, 2006.

¶ 14 On cross-examination, Ann testified that, in the 1980s, Mr. Sloan had a stroke that weakened his right arm. However, she said, he was still able to carry on his daily activities "[t]o a certain extent." She also testified that he smoked for all of his adult life.

¶ 15 Sharon Sloan, another of Mr. Sloan's daughters, testified for plaintiff. She said that, while she was growing up, her father was kind and loving and always there for her if needed.

"He was my shepherd," she said. "He led me through life." Sharon stated that before the accident occurred, while he was in the nursing home, he enjoyed her company. She visited often, and they would have birthday parties and dinner together on holidays. She did these things because she loved him, and she felt that he always loved her. Before the fire, Sharon said, her father could talk and walk. After the fire, he was not able to talk but "would just stare at you."

¶ 16 Ernestine Watson also testified on her own behalf. She stated that her father was a good father, always there for his daughters, even after they were grown. She testified that he was kind and gentle and made his daughters understand that they were to treat others the way they wanted to be treated. While he was in South Shore, Ernestine would visit him during her lunch hour and in the evenings.

ΒΆ 17 Ernestine testified that her life changed a lot as a result of the accident and her father's subsequent death. "I don't have that strong figure," she said, "because my father was there for all of us. And he -- I don't care what his age ...

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