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