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Stearns v. Ridge Ambulance Serv., Inc.

Court of Appeals of Illinois, Second District

May 15, 2015

SCOTT STEARNS, as Executor of the Estate of Marjorie Stearns, Deceased, Plaintiff-Appellant,
v.
RIDGE AMBULANCE SERVICE, INC., and JERRY BROOKS, Defendants Countryside Care Centre, Inc., Defendant-Appellee

Appeal from the Circuit Court of Kane County. No. 11-L-487. Honorable John G. Dalton, Judge, Presiding.

Patrick M. Flaherty, of Kinnally, Flaherty, Krentz & Loran, P.C., of Aurora, for appellant.

Joshua M. Rosenstein and Terrence S. Carden III, both of Myers Carden & Sax LLC, of Chicago, for appellee.

Jorgensen and Hudson, Justices concurred in the judgment and opinion.

OPINION

Page 766

BURKE, JUSTICE.

[¶1] Plaintiff, Scott Stearns, as executor of the estate of Marjorie Stearns, deceased (Marjorie), filed a multi-count complaint under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2010)) and the Survival Act (755 ILCS 5/27-6 (West 2010)) against Ridge Ambulance Service, Inc. (Ridge), Jerry Brooks, and Countryside Care Centre, Inc. (Countryside). Marjorie, who resided in a nursing home operated by Countryside, died as a result of injuries sustained while Ridge transported her back to the nursing home following treatment at an offsite dialysis center. Brooks, who was an employee of Ridge, was driving the medical transport vehicle (medi-van) in which Marjorie's injuries occurred. Countryside's successful motion

Page 767

for summary judgment on the claims against it gives rise to this appeal under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). We reverse and remand.

[¶2] The pleadings, along with depositions, affidavits, and exhibits submitted in support of and in opposition to Countryside's summary-judgment motion, establish the following facts. At the time of the incident giving rise to this lawsuit, Marjorie was 89 years old and suffered from dementia. Countryside's records indicate that late in July 2009 Marjorie had been found in a kneeling position wedged between the footrests of her wheelchair. A few weeks later, Marjorie was found lying on the floor of her room. Her care plan called for the use of bed and chair alarms.

[¶3] Countryside arranged to have Ridge transport Marjorie to a dialysis facility on September 1, 2009, but did not convey any special instructions to Ridge about Marjorie's risk of falling. Brooks was assigned to drive Marjorie on her return trip to the nursing home. Brooks testified at his deposition that he met Marjorie in a waiting area. She was seated in a wheelchair. Brooks wheeled her to the medi-van, loaded her into it using a wheelchair lift, and secured the wheelchair inside the medi-van using floor locks. Brooks then placed a safety belt around Marjorie. According to Brooks, the safety belt was attached to the medi-van's floor and ceiling and ran diagonally from Marjorie's shoulder to her hip. There was no lap belt to secure Marjorie to the wheelchair.

[¶4] Brooks testified that Marjorie had brought a book with her. During the ride back to the nursing home, Brooks heard the book fall and Marjorie told him that it had fallen. Brooks told Marjorie that he would take care of the book and that she should not worry about it. About two minutes later, Brooks noticed that Marjorie appeared to be reaching for the book. Brooks said something to the effect of " no, don't do that, I'll get it." Seconds later Brooks saw Marjorie start to stand up. At that point another vehicle merged in front of the medi-van, forcing Brooks to brake abruptly. When Brooks did so, Marjorie fell forward and her head struck a metal object. Marjorie died about two weeks later. Ridge's medi-van supervisor, Derrick Johnson, testified at his deposition that Ridge was then ( i.e. at the time of the deposition) using a restraint system with a belt that ran around the passenger's torso and the back of the passenger's wheelchair. The buckle was located behind the wheelchair. Johnson believed that this restraint system was available at the time of Marjorie's accident.

[¶5] The nursing home's administrator, Kimberly Kohls, testified at her deposition that she was responsible for all aspects of the facility's operations, including the selection of vendors to provide transportation services for residents. She testified that chair alarms are used with patients who, for any of various reasons (including cognitive problems), might have difficulty complying with instructions to request assistance before attempting to stand from a chair.

[¶6] Laura Westergard, a registered nurse with 30 years' experience in the field of long-term care, executed an affidavit stating that she had reviewed various documents pertaining to Marjorie and the accident that preceded her death. Westergard further stated as follows:

" Countryside *** undertook to furnish transportation for residents in connection with outside medical care by selecting a transportation vendor. Based on [Marjorie's] fall history, fall risk, [cognitive impairments,] and need for safety interventions, the standard of care ...

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