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Sablik v. County of De Kalb

Court of Appeals of Illinois, Second District

December 20, 2019

ARTHUR SABLIK, as Guardian of the Estate of Bernice Sablik, Plaintiff-Appellant,
v.
THE COUNTY OF DE KALB, d/b/a De Kalb County Rehab & Nursing Center, Defendant-Appellee.

          Appeal from the Circuit Court of De Kalb County. No. 18-L-13 Honorable Bradley J. Waller, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hudson and Bridges concurred in the judgment and opinion.

          OPINION

          JORGENSEN, JUSTICE

         ¶ 1 Plaintiff, Arthur Sablik, as guardian of the estate of Bernice Sablik, sued the County of De Kalb, doing business as De Kalb County Rehab & Nursing Center (the County), alleging negligent treatment under the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2018)). The County moved to dismiss plaintiffs complaint (735 ILCS 5/2-619(a)(9) (West 2018)), asserting that the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2018)) supersedes the Nursing Home Care Act and bars plaintiffs claim. The trial court granted the motion and dismissed plaintiffs complaint. Plaintiff appeals. We affirm in part, reverse in part, and remand the cause for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 On August 11, 2017, plaintiff, as guardian of Bernice's estate (see 755 ILCS 5/27-6 (West 2016)), sued the County in the circuit court of Cook County (case No. 17-L-8192), alleging violations of the Nursing Home Care Act. He asserted that, prior to May 18, 2016, Bernice (born on December 7, 1934) was legally disabled. He alleged that, from about May 18, 2016, through August 16, 2016, Bernice was a resident of the De Kalb County Rehab & Nursing Center (center), a long-term care facility. The County owned, operated, and/or managed the center.

         ¶ 4 Plaintiff further alleged that the center was a nursing facility under the Nursing Home Care Act (210 ILCS 45/1-113 (West 2016)) and that the County knew or should have known that Bernice was at high risk for the development and deterioration of pressure sores. Between June and July 2016, Bernice developed multiple pressure sores while at the center. The County, through its agents, servants, and employees, breached its duties under the Nursing Home Care Act, including the duty not to abuse or neglect any resident. Plaintiff alleged that the County, "through its actual, implied, and/or apparent agents, servants, and employees, was negligent" in its care and treatment of Bernice, where, among other acts and omissions, it failed to timely implement appropriate pressure-sore interventions, failed to institute an individualized turning and repositioning schedule for Bernice to prevent her from placing undue weight on bony prominences and existing pressure sores, and failed to properly train individuals who provided care to Bernice. Plaintiff argued that, as a direct and proximate cause of one or more of the County's statutory violations and negligent acts and omissions, Bernice suffered personal and pecuniary injuries.

         ¶ 5 On October 10, 2017, the parties agreed to transfer the case to De Kalb County, and the trial court entered an order effectuating the transfer. Bernice died on November 21, 2018.

         ¶ 6 On January 11, 2019, the County moved to dismiss plaintiffs complaint (735 ILCS 5/2-619(a)(9) (West 2018)), arguing that the Tort Immunity Act supersedes the Nursing Home Care Act and bars plaintiffs claim. First, the County argued that plaintiffs claim was barred by section 2-109 of the Tort Immunity Act, which provides that "a local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 2018). Second, the County argued that the claim was barred by section 2-204, which immunizes public employees from liability, stating that, "[e]xcept as otherwise provided by statute, a public employee, as such and acting within the scope of his [or her] employment, is not liable for an injury caused by the act or omission of another person." Id. § 2-204. Finally, the County argued that, to the extent that plaintiff sought to recover for the County's alleged failure to supervise its employees, the claim was barred by section 3-108, which provides that

"neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on *** any public property unless the employee or the local public entity has a duty to provide supervision *** and the local public entity or public employee is guilty of willful and wanton conduct in its failure to provide supervision proximately causing such injury." Id. § 3-108(b).

         ¶ 7 On March 18, 2019, the trial court granted the County's motion and dismissed plaintiffs complaint, with prejudice. The court found that all three sections of the Tort Immunity Act raised by the County immunized it from liability, although the court noted that the application of section 3-108 was "a little tenuous." The court declined plaintiffs request to elaborate how each section applied. Plaintiff appeals.

         ¶ 8 II. ANALYSIS

         ¶ 9 Plaintiff argues that (1) the Nursing Home Care Act imposes liability on county-operated nursing homes, such as the center, for injuries caused by neglect, and, by its plain language, it supersedes section 2-204 of the Tort Immunity Act; (2) because section 2-204 does not apply, neither does section 2-109; and (3) section 3-108 does not apply, because plaintiffs complaint does not sound in lack of supervision.

         ¶ 10 The purpose of a motion to dismiss under section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2018)) is to dispose of issues of law and easily proved issues of fact at the outset of the litigation. Van Meter v. Darien Park District,207 Ill.2d 359, 367 (2003). Specifically, section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2018)) permits dismissal where the claim asserted is barred by other affirmative matter that avoids the legal effect of, or defeats, the claim. The effect of a section 2-619(a)(9) motion is that the moving party admits the legal sufficiency of the complaint but asserts an affirmative matter outside the complaint that defeats the cause of action. Reynolds v. Jimmy John's Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31. If, after construing the pleadings in the light most favorable to the nonmoving party, the court finds that no set of facts, if proven, would support the claim, then the court should grant the motion. Id. We review de novo a dismissal under section 2-619. Van Meter, 207 Ill.2d at 368. Furthermore, we review de ...


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