No. 2--96--0407
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
JANE DOE, a Minor, By and ) Appeal from the Circuit
Through her Father and Next ) Court of Lake County.
Friend, John Doe; JOHN DOE, )
Indiv., and MARY DOE, Indiv., )
) No. 94--L--100
Plaintiffs-Appellants, )
v. )
)
MONTESSORI SCHOOL OF LAKE )
FOREST; ANNE M. GADON, Indiv., )
and as Agent, Servant, and )
Employee of Montessori School )
of Lake Forest; KAY GUERIN, )
Indiv., and as Agent, Servant, )
and Employee of Montessori )
School of Lake Forest; LISSA )
HEKTOR, Indiv., and as Agent, )
Servant, and Employee of )
Forest; KRISTINE THORSEN, )
President of the Board of )
Directors of Montessori School )
of Lake Forest; and BOARD )
MEMBERS OF THE MONTESSORI )
SCHOOL OF LAKE FOREST, )
Defendants-Appellees )
(American Montessori Society, )
Inc., Indiv., and By and Through)
its Actual and/or Apparent ) Honorable
Agents, Montessori School of ) Bernard E. Drew, Jr.
Lake Forest, Defendant). ) Judge, Presiding.
_________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
In January 1994 plaintiffs, Jane Doe and her parents, John Doe
and Mary Doe, filed a complaint against defendants, Montessori
School of Lake Forest (Montessori School), Anne Gadon, Kay Guerin,
Lissa Hektor, Kristine Thorsen, Board Members of the Montessori
School of Lake Forest (Board Members), and American Montessori
Society, Inc., resulting from an alleged contact of a sexual nature
committed against Jane Doe when she was approximately two and one-
half years of age. The trial court granted defendants' motion to
dismiss with prejudice, and plaintiffs timely appealed. We reverse
and remand.
The relevant pleading is the third amended complaint. In
April 1995 plaintiffs filed a third amended complaint, consisting
of 13 counts against defendants. Count I alleged negligence on
behalf of plaintiff Jane Doe against defendant Montessori School.
Count II alleged an "intentional tort" on behalf of plaintiff Jane
Doe against defendant Gadon. Plaintiffs alleged in this count, in
relevant part:
"That on the date and place aforesaid the Defendant, ANNE
M. GADON, Individually and as agent, servant and employee of
the MONTESSORI SCHOOL OF LAKE FOREST, was guilty of one or
more or all of the following extreme and outrageous
intentional acts, with malice aforethought, and/or with intent
to harm the minor Plaintiff and/or to fulfill her own sexual
stimulation and/or gratification, in that she caused contact,
unwanted by the minor Plaintiff, to be made between her hands
and/or fingers and the genitals, and other portions of the
person of the minor Plaintiff and restricting the minor
Plaintiff's freedom of movement of her person in so doing."
Counts III, IV, and V alleged negligence on behalf of
plaintiff Jane Doe against defendants. Count VI alleged negligence
on behalf of plaintiffs John Doe and Mary Doe against defendant
Montessori School for negligent or intentional infliction of
emotional distress. Count VII alleged an "intentional tort" on
behalf of plaintiffs John Doe and Mary Doe against Gadon. Counts
VIII, IX, and XI alleged negligence on behalf of plaintiffs John
Doe and Mary Doe against defendants. Count X alleged an
"intentional tort" on behalf of plaintiffs John Doe and Mary Doe
against defendant Hektor for intentionally failing to report the
alleged incident between defendant Gadon and plaintiff Jane Doe, as
well as fraudulent concealment and conspiracy to conceal. Counts
XII and XIII added American Montessori Society, Inc., as a new
defendant, but it is not a party to this appeal.
On April 28, 1995, the first in a long and tortured series of
motions was filed. Over the next several months, plaintiffs'
complaint was attacked pursuant to section 2--619(a)(9) of the
Civil Practice Law (735 ILCS 5/2--619(a)(9) (West 1994)), section
2--615 of the Civil Practice Law (735 ILCS 5/2--615 (West 1994)),
and Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)). Motions for
sanctions were filed, alleging discovery violations pursuant to
Supreme Court Rules 215 and 219(c) (Official Reports Advance Sheet
No. 20 (September 27, 1995), Rs. 215, 219(c), eff. January 1,
1996). Furthermore, each set of motions was accompanied by or
followed by memoranda briefing the issues raised.
In September 1995 plaintiffs filed their response to
defendants' motion for sanctions. Plaintiffs assert in their
response that defendants had not established a good-faith showing
for a defense psychological examination of plaintiff Jane Doe.
Plaintiffs further contend that a psychological examination would
pose a significant and undue risk of harm to plaintiff Jane Doe.
Their response also states that plaintiff Jane Doe has no
"articulable present recollection of *** attending Montessori
School ***, let alone the incident itself." They also contend that
plaintiff Jane Doe should not be subjected to a discovery
deposition because of her tender age. Plaintiffs attached an
affidavit of Daniel Woloszyn, a licensed clinical
neuropsychologist. Woloszyn opined that a psychological
examination of plaintiff Jane Doe would pose a significant risk of
harm because the examination, "in the absence of any current memory
of the event, would reasonably trigger emotional trauma and also a
likelihood of triggering repressed memory syndrome."
Defendants Hektor, the Montessori School, and Gadon filed
replies to plaintiffs' response to the motions for sanctions. In
her reply memorandum, defendant Gadon further asserts, for the
first time, that plaintiffs' cause of action had not accrued.
Applying the discovery rule of the childhood sexual abuse section
of the Limitations Act (735 ILCS 5/13--202.2 (West 1994)), Gadon
argues plaintiff Jane Doe is not yet aware that she had been
injured, and, therefore, the cause of action will accrue only when
she recovers her memory of the event. Only then can it be
determined whether her action was within the limitations period set
forth. Thus, Gadon claims, plaintiff Jane Doe has no cause of
action at this time, but should be allowed to renew her claim
should she discover she was sexually molested.
In October 1995 defendant Guerin filed her reply to
plaintiffs' response to defendants' motions for sanctions. Guerin
argues that plaintiffs' damages are speculative, plaintiff Jane
Doe's cause of action is not ripe, and plaintiffs' and their
affiant, Woloszyn, "overlook the fact that it would be beneficial
rather than harmful, for *** [plaintiff Jane Doe] to recall and
deal with the emotional trauma that may have been caused if the
alleged incident occurred."
In November 1995 plaintiffs filed their surresponse to
defendants' combined replies. Plaintiffs maintain that their cause
of action was ripe on the day the act allegedly occurred because of
the principle that the discovery by a child's parent, even absent
actual cognition or memory by the child, shall be imputed to the
child and shall constitute the accrual of a cause of action.
Plaintiffs also argue that the childhood sexual abuse section of
the Limitations Act (735 ILCS 5/13--202.2 (West 1994)) does not
prohibit bringing a cause of action contemporaneously with the
knowledge of an act of abuse. They also argue that, as a matter of
law, injury is presumed due to the heinous nature of sexual
molestation. Furthermore, plaintiffs claim that John and Mary
Doe's causes of action exist independently of Jane Doe's claim and
that the trial court should employ a balancing test to determine
whether plaintiff Jane Doe should be subjected to a defense
psychological examination.
On December 14, 1995, defendant Gadon filed a surreply to
plaintiffs' surresponse to defendants' combined replies for their
motions for sanctions. In her surreply, defendant Gadon argues
that (1) the cause of action has not accrued for plaintiff Jane
Doe; (2) injury to plaintiff Jane Doe from the alleged molestation
cannot be presumed; and (3) should plaintiff Jane Doe's cause of
action fail, then her parents, John and Mary Doe, have no
independent cause of action. On December 18, 1995, defendants
Guerin, Hektor, Thorsen, Gadon, and the Montessori School filed
essentially the same joint surreply.
At a hearing held on January 3, 1996, the trial court granted
defendant American Montessori Society, Inc., leave to adopt the
arguments of the other defendants. Following that, the trial court
conducted a hearing on a motion to dismiss plaintiffs' third
amended complaint pursuant to section 2--619 (735 ILCS 5/2--619
(West 1994)). Defendants claimed that the suit was barred because
plaintiff Jane Doe's cause of action had not yet accrued and that
the plaintiff parents' individual causes of action had similarly
not accrued on the basis of their claims being derivative of
plaintiff Jane Doe's claims. At the conclusion of that hearing,
the trial court entered certain findings on the record: that
plaintiff Jane Doe's cause of action was not yet ripe because she
had not "broken through" her repressed memory; that the act of
child molestation did not warrant a finding of presumed damages on
the basis of said damages being speculative; and that plaintiffs
John Doe's and Mary Doe's independent causes of action for
intentional infliction of emotional distress, civil conspiracy, and
fraudulent concealment could not be maintained because they were
derivative of plaintiff Jane Doe's claims. The trial court also
requested defendants draft and file a motion to dismiss consistent
with its findings, which defendants did and filed such motion to
dismiss on February 13, 1996.
On March 1, 1996, plaintiffs filed their response to
defendants' motion to dismiss plaintiffs' third amended complaint,
incorporating similar arguments made at the January 3, 1996,
hearing, readopting and realleging arguments made in their previous
pleadings and responses and surresponses to the various motions to
dismiss and motions for sanctions.
On March 4, 1996, the trial court entered an order granting
defendants' motions to dismiss plaintiffs' third amended complaint
with prejudice, specifically finding that (1) the discovery rule as
amended in the childhood sexual abuse section of the Limitations
Act applies to the present case; (2) plaintiff Jane Doe's cause of
action had not accrued within the meaning of the childhood sexual
abuse section of the Limitations Act because she has no present
knowledge of the sexual assault or of her damages; (3) the Indiana
"imputation rule" (the parents' knowledge imputed to the child) is
inapplicable because Indiana has no statute similar to the
childhood sexual abuse section of the Limitations Act; (4) the act
of child molestation did not warrant a finding of presumed damages;
(5) plaintiffs should not be entitled to nominal damages because
such damages are speculative in nature; and (6) plaintiffs, John
Doe and Mary Doe, have no independent cause of action for
intentional infliction of emotional distress, civil conspiracy, or
fraudulent concealment because their claims derive from plaintiff
Jane Doe's claims.
On appeal, plaintiffs argue that the trial court erred by
granting defendants' motion to dismiss because (1) plaintiff Jane
Doe's cause of action has accrued; (2) the act of child molestation
warrants a finding of presumed nominal damages; and (3) plaintiffs
John Doe and Mary Doe may maintain an independent cause of action
for intentional infliction of emotional distress, civil conspiracy,
or fraudulent concealment.
Before reaching the merits, we wish to address the pleading
and motion practice that led to this appeal. A majority of the
arguments were initiated and addressed in defendants' motions for
sanctions; plaintiffs' response to defendants' motions for
sanctions; defendants' reply to plaintiffs' response to defendants'
motions for sanctions; plaintiffs' surresponse to defendants' reply
to plaintiffs' response to defendants' motions for sanctions; and
defendants' surreply to plaintiffs' surresponse to defendants'
reply to plaintiffs' response to defendants' motions for sanctions.
In response, we suggest that a more efficient and practical process
would have been appropriate.
The Illinois Supreme Court has the power to make and amend
rules of pleading, practice, and procedure for the convenient
administration of justice and otherwise simplifying judicial
procedure. 735 ILCS 5/1--104(a) (West 1994). These rules are not
ends in themselves; they are designed to secure the orderly and
fair methods of disposing of litigated matters. Kaufman v.
Kaufman, 22 Ill. App. 3d 1045, 1052 (1974). The rules of practice
are required for the simplification and standardization of court
procedure, and these rules should be obeyed by lawyers and
litigants and enforced by the courts. Alfaro v. Meagher, 27 Ill.
App. 3d 292, 297 (1975). Members of the bar and others appearing
before a tribunal are presumed to be aware of the rules of practice
and procedure prescribed by the Illinois Supreme Court. Biggs v.
Spader, 411 Ill. 42, 44 (1951). If the structure of our court
system permitted loose practice, the result would inevitably be
complete chaos. Alfaro, 27 Ill. App. 3d at 297. "Chaos serves no
social end." State Tax Comm'n v. Aldrich, 316 U.S. 174, 196, 86 L.
Ed. 1358, 1378, 62 S. Ct. 1008, 1019 (1942).
We note that defendants Thorsen and the Board Members failed
to attach affidavits in support of their original section 2--619
motion to dismiss, filed on April 28, 1995. Similarly, on February
13, 1996, and pursuant to the trial court's request of January 3,
1996, defendants together filed their section 2--619 motion to
dismiss plaintiffs' third amended complaint with prejudice.
Defendants also failed to support this motion with affidavits.
Where the grounds for dismissal do not appear on the face of
the pleadings, section 2--619(a) mandates that "the motion shall be
supported by affidavit." 735 ILCS 5/2--619(a) (West 1994); see
also Waterford Executive Group, Ltd. v. Clark/Bardes, Inc., 261
Ill. App. 3d 338, 343 (1994). Defendants Thorsen and the Board
Members claimed that they serve on the Board of the Montessori
School without compensation and, as such, are immune from liability
for negligence. In their February 13, 1996, section 2--619 motion
to dismiss, defendants claimed that the suit was barred because
plaintiff Jane Doe's cause of action had not yet accrued, that
plaintiff Jane Doe possesses no such knowledge of the alleged
incident, and that the plaintiff parents' individual causes of
action had similarly not accrued on the basis of their claims being
derivative of plaintiff Jane Doe's claims. Defendants do not
specify upon which subsection of section 2--619 they are basing
their motion. It appears to us that defendants brought this motion
pursuant to either section 2--619(a)(5) (735 ILCS 5/2--619(a)(5)
(West 1994)) or section 2--619(a)(9) (735 ILCS 5/2--619(a)(9) (West
1994)). Section 2--619(a)(5) authorizes a defendant to file a
motion for dismissal on the ground that the action was not
commenced within the time limited by law; section 2--619(a)(9)
provides for a dismissal when the plaintiffs' claim is barred by an
affirmative matter defeating the claim.
The failure to support either a section 2--619(a)(5) motion or
a section 2--619(a)(9) motion with the requisite affidavit mandates
reversal. Denny v. Haas, 197 Ill. App. 3d 427, 430 (1990). Our
review of the record enables us to conclude that defendants'
grounds for dismissal do not appear on the face of the pleadings.
Accordingly, defendants' failure to support their motion with the
affidavit required under section 2--619(a)(5) or section 2--
619(a)(9) mandates reversal under the facts of this case. Having
said that, the Civil Practice Law also needs to be construed
liberally to fulfill its purpose of providing substantial justice
and resolution on the merits, rather than imposing seemingly
insurmountable procedural obstacles to litigation. See 735 ILCS
5/1--106 (West 1994); Marsh v. Nellessen, 235 Ill. App. 3d 998,
1002 (1992).
Thus, we turn to the nature of appellate review of a trial
court's dismissal of a complaint pursuant to section 2--619. The
purpose of section 2--619 motion is to allow for the disposition of
questions of law and easily proved fact issues at the outset of the
case. See, e.g., Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995);
M.E.H. v. L.H., 283 Ill. App. 3d 241, 245 (1996). Unlike a motion
with respect to the pleadings brought under section 2--615
(Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994)
(section 2--615 motion attacks only the legal sufficiency of the
complaint and deals exclusively with defects appearing on the face
of the complaint)), a trial court ruling on a section 2--619 motion
may consider the "pleadings, depositions, and affidavits" (Zedella,
165 Ill. 2d at 185). We have stated:
"The motion should be granted and the complaint dismissed if,
after construing the document in the light most favorable to
the nonmoving party, the court finds that no set of facts can
be proved which would entitle the plaintiff to recover.
[Citations.] When reviewing the propriety of a section 2--619
dismissal, all well-pleaded facts alleged in the complaint are
taken as true. [Citation.] Conclusions of law or conclusions
of material fact unsupported by specific factual allegations
must be disregarded. [Citation.] As such, the reviewing
court is concerned solely with a question of law presented by
the pleadings." Nikolic v. Seidenberg, 242 Ill. App. 3d 96,
98-99 (1993).
Further, courts have recognized that a section 2--619(a)(9)
motion to dismiss admits the legal sufficiency of the plaintiff's
cause of action. Johnson v. Du Page Airport Authority, 268 Ill.
App. 3d 409, 414 (1994). Finally, an appellate court conducts an
independent review of the propriety of dismissing the complaint
and, therefore, is not required to defer to a trial court's
reasoning. Nikolic, 242 Ill. App. 3d at 99.
The first issue on appeal is whether plaintiff Jane Doe's
cause of action has accrued. In plaintiffs' third amended
complaint, plaintiff Jane Doe is seeking relief under a negligence
theory and an "intentional tort" theory. A cause of action based
on tort accrues only when all elements are present--duty, breach,
and resulting injury or damage. West American Insurance Co. v. Sal
E. Lobianco & Son Co., 69 Ill. 2d 126, 129-30 (1977); Wolf v.
Bueser, 279 Ill. App. 3d 217, 226-27 (1996). Without accrual there
can be no cause of action, and there is no cause of action until
injury or damage has occurred. West American Insurance Co., 69
Ill. 2d at 131; Wolf, 279 Ill. App. 3d at 227. Generally, a cause
of action for torts accrues when the plaintiff suffers an injury.
Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 77
(1995); West American Insurance Co., 69 Ill. 2d at 130; M.E.H., 283
Ill. App. 3d at 250.
"Injury" is defined as "[a]ny wrong or damage done to another,
either in his [or her] person, rights, reputation, or property."
Black's Law Dictionary 785 (6th ed. 1990); Restatement (Second) of
Torts §7 (1965). Two recent opinions, Western States Insurance Co.
v. Bobo, 268 Ill. App. 3d 513 (1994), and Scudder v. Hanover
Insurance Co., 201 Ill. App. 3d 921 (1990), have concluded that an
intent to harm can be inferred as a matter of law when an adult
engages in unwanted touching and sexual abuse of another,
especially a minor. Therefore, we believe it to be a logical
extension of those holdings to determine that when an adult engages
in unwanted touching, unlawful restraint, or similar conduct
concerning a minor, an injury occurs.
Further, plaintiffs cannot bring a cause of action until they
know or reasonably should know of their injuries and also know or
reasonably should know that the injuries were caused by another's
wrongful acts. Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 232
(1983); Fetzer v. Wood, 211 Ill. App. 3d 70, 79 (1991). However,
that does not mean that plaintiffs do not have existing causes of
action of which they are unaware. Moore, 95 Ill. 2d at 232;
Fetzer, 211 Ill. App. 3d at 79. In addition, plaintiffs must be
vigilant because a cause of action accrues even though the full
extent of the injury or the consequences of the injury are unknown
at the time of the injury. Golla v. General Motors Corp., 167 Ill.
2d 353, 364 (1995). When minor plaintiffs are injured, they cannot
initiate the legal proceeding, but must appear by a guardian,
guardian ad litem, or a next friend. Skaggs v. Industrial Comm'n,
371 Ill. 535, 542 (1939). Alternatively, minors may bring the
action within two years after they attain the age of 18 years. 735
ILCS 5/13--211 (West 1994).
In the present case, plaintiff Jane Doe, by her father and
next friend, John Doe, alleges, inter alia, that on or about April
24, 1992, plaintiff Jane Doe was a student at defendant Montessori
School; the Montessori School and its agents owed a duty of care to
plaintiff Jane Doe; defendant Gadon was an agent of the Montessori
School; defendants breached their duty of care to plaintiff Jane
Doe when defendant Gadon caused unwanted contact upon plaintiff
Jane Doe's person and restricted plaintiff Jane Doe's freedom of
movement. Plaintiffs conclude that, as a result of the above,
plaintiff Jane Doe suffered an injury.
Because a review of a section 2--619 dismissal directs that
all well-pleaded facts alleged in the complaint are taken as true,
we determine that plaintiff Jane Doe has established a cause of
action. Therefore, we hold that the trial court erred in
dismissing plaintiff Jane Doe's negligence counts against
defendants. We also hold that the trial court erred in dismissing
plaintiff Jane Doe's "intentional tort" count against defendant
Gadon. Plaintiff, through her next friend, John Doe, has pleaded
a foundation to prove that defendants owed a duty, breached their
duty, and, as a result of that breach, an injury to her occurred.
The nature of the intentional tort, such as a battery, willful or
wanton conduct, or false imprisonment, must be established by the
evidence.
Defendants argue that the childhood sexual abuse section of
the Limitations Act (735 ILCS 5/13--202.2 (West 1992) (amended by
Pub. Act 88--127 §5, eff. January 1, 1994)), bars plaintiff Jane
Doe from initiating an action or recovering until she is actually
aware of the injury. Defendants claim that, because plaintiff Jane
Doe cannot recall the injuring event and has no resulting damages,
she should wait and bring the action "within two years after she
discovers (or reasonably should have discovered) that sexual abuse
occurred and she suffered injuries therefrom." By doing so, "she
will still have her 'day in court.' "
The childhood sexual abuse section of the Limitations Act
provides, in pertinent part:
"An action for damages for personal injury based on
childhood sexual abuse must be commenced within 2 years of the
date the person abused discovers or through the use of
reasonable diligence should discover that the act of childhood
sexual abuse occurred and that the injury was caused by the
childhood sexual abuse." 735 ILCS 5/13--202.2(b) (West 1994)
(as amended by Pub. Act 88--127 §5, eff. January 1, 1994).
We are not persuaded by defendants' claims. First and
foremost, the childhood sexual abuse section of the Limitations Act
does not create a cause of action. Instead, it is a statute of
repose that begins to run when a specific event occurs, no matter
when the cause of action accrues. M.E.H., 283 Ill. App. 3d at 246.
Furthermore, in their third amended complaint, plaintiffs have made
no statutory claims of childhood sexual abuse. What plaintiffs
have alleged, though, is negligence and an intentional tort,
possibly battery, willful or wanton conduct, or false imprisonment.
Thus, this statute is inapplicable as to these causes of action.
The public policy of the State dictates that courts should guard
carefully the rights of minors and that a minor should not be
precluded from enforcing her or his rights unless clearly debarred
from so doing by some statute or constitutional provision.
Walgreen Co. v. Industrial Comm'n, 323 Ill. 194, 197 (1926). To
argue that only Jane Doe can bring this lawsuit contravenes the
public policy of allowing a guardian, guardian ad litem, or a next
friend to initiate a cause of action on behalf of a minor or a
person under a legal disability. See City of Danville v. Clark, 63
Ill. 2d 408, 411 (1976).
Defendants also argue that knowledge of the injuring event
should not be imputed from the plaintiff parents, John and Mary
Doe, to plaintiff Jane Doe to determine whether a cause of action
has accrued. Defendants urge that the "discovery rule" be applied;
that is, plaintiff Jane Doe's cause of action should not accrue
until plaintiff Jane Doe herself knows or should have known of her
injury and knows or should have known that the injury was
wrongfully caused, thereby postponing the commencement of the
limitations period. The trial court would not apply Indiana's
"imputation rule" to this case because Indiana has no childhood
sexual abuse limitations statute.
The concept of "imputed knowledge" is not unique to Indiana.
Indeed, imputed knowledge is practiced in every state of the union
by our justice system. It is well settled that if a crime against
an individual also involves a crime against the public, such as a
battery, the individual and the general public suffers, and the
knowledge of the victim and witnesses is the knowledge of the
State, even though the victim does not represent the State in any
official capacity. Additionally, where infants are victims of
criminal abuse or neglect, knowledge is often imputed to the State
for purposes of prosecution. Civil actions for injuries to minors
may be maintained by a child's guardian, guardian ad litem, or next
friend. See Skaggs, 371 Ill. at 542; see generally 755 ILCS 5/11--
1 et seq. (West 1994). We thus hold that the trial court erred in
disallowing the parents' knowledge of the injuring event to be
imputed to the child for purposes of commencing a cause of action
against defendants.
Plaintiffs' second contention on appeal is that the trial
court erred when it found that the act of child molestation does
not warrant a finding of presumed damages. In its written order
filed on March 4, 1996, the trial court stated that the act of
child molestation did not warrant a finding of presumed damages and
that plaintiffs were not entitled to nominal damages because such
damages were speculative in nature.
Article I, section 12, of the Illinois Constitution provides
that a remedy shall exist for every wrong. Ill. Const. 1970, art.
I, §12. However, the method by which such a remedy should be
granted is not indicated. Our method is to compensate the one so
injured for each aspect of damages which she or he has sustained.
Recovery is not limited to items of pain, suffering, and
anguish. It also embraces intangible losses, including any other
facets of nonfinancial losses. See, e.g., Drews v. Gobel Freight
Lines, Inc., 197 Ill. App. 3d 1049, 1057-58 (1990); Jolley v.
Consolidated Rail Corp., 167 Ill. App. 3d 1002, 1012 (1988).
Suffice it to say that the law seeks to compensate for all aspects
of damage wrongfully inflicted, tangible or intangible, and the
fairness of compensation for the particular deprivations
encountered must be determined under the circumstances of each
suit. See generally Parnham v. Carl W. Linder Co., 36 Ill. App. 2d
224 (1962).
The real issue in the present case is not whether an act of
child molestation warrants a finding of presumed damages.
Plaintiffs, in their third amended complaint, have not specifically
alleged that an act of child molestation occurred. On that basis,
we decline to make a determination of whether an act of child
molestation warrants a finding of presumed damages. What
plaintiffs' pleadings do suggest, albeit surreptitiously, is that
an act of battery, willful or wanton conduct, or false imprisonment
occurred to a child of tender age. Thus, the real issue is whether
plaintiffs' pleadings sufficiently allege damages when viewed in
conjunction with the depositions and affidavits for the purpose of
surviving a section 2--619 motion to dismiss.
We have already determined that plaintiffs have stated a cause
of action for an injury and that the cause of action for said
injury has accrued. We also now determine that, if the alleged
conduct directed at Jane Doe is proved, damages can be presumed.
However, the amount of damages is uniquely a question of fact to be
determined by the trier of fact (Parnham, 36 Ill. App. 2d at 236)
and not by a dismissal motion. Because we have determined that
plaintiffs have sufficiently alleged the existence of an injury and
damages, the trial court erred in making its findings on damages.
In the present case, if plaintiffs' allegations are true, nominal
damages, at a minimum, exist. Should plaintiffs wish to seek an
award beyond nominal damages, they may do so, provided they are
able to prove the existence of the damages.
Plaintiffs' final issue on appeal contends that the trial
court erred when it found that plaintiffs John Doe and Mary Doe
could not maintain an independent cause of action for intentional
infliction of emotional distress, civil conspiracy, or fraudulent
concealment because their claims derive from plaintiff Jane Doe's
claims against defendants. For judicial economy, the dynamics of
the present case necessitate discussion of this issue.
There are two distinct categories of "derivative liability":
in the first category is the action in which a plaintiff may
institute to redress a wrong done to another; in the second
category is the action which a plaintiff may institute to redress
a wrong done to herself or himself that is proximately caused by a
wrong done to another. See Garfield v. United States, 297 F. Supp.
891, 900 (W.D. Wis. 1969). The instant case falls into the second
category; that is, plaintiffs John and Mary Doe wish to institute
an action to redress a wrong or wrongs done to them that was
proximately caused by the wrong done to their child, plaintiff Jane
Doe. Plaintiffs John and Mary Doe allege the wrongs of fraudulent
concealment, intentional infliction of emotional distress, and
civil conspiracy. Plaintiffs John and Mary Doe have not argued on
appeal whether their negligence count derives from plaintiff Jane
Doe's negligence claims against defendants.
Although parents do not have a primary cause of action against
a perpetrator for injuries inflicted upon their child, it is
universally recognized that parents may maintain an action in their
own right for any impairment of parental rights caused by the
injuries, particularly for any pecuniary losses suffered as a
result of the injuries. 59 Am. Jur. 2d Parent & Child §97, at 237
(1987). Thus, plaintiffs John and Mary Doe have no independent
cause of action for an intentional tort of battery, willful or
wanton conduct, or false imprisonment based upon the alleged
contact between defendant Gadon and plaintiff Jane Doe. One who,
by reason of her or his tortious conduct, is liable to a minor
child for illness or other bodily harm is subject to liability to
(a) the parent who is entitled to the child's services for any
resulting loss of services or ability to render services, and to
(b) the parent who is under a legal duty to furnish medical
treatment for any expenses reasonably incurred or likely to be
incurred for the treatment during the child's minority. See
Restatement (Second) of Torts §703 (1977).
Although the parent's cause of action is usually viewed as
merely a part of the child's cause of action, and the rights of the
parties are frequently merged into one action for the entire
damage, analytically, the two rights of action are entirely
separate and distinct. For example, the parent's cause of action
may be barred by limitations, though the child's is not. Thus, the
parent is not, as is sometimes held, a mere assignee of a part of
the child's cause of action. But the parent's right of action,
although distinct from the child's right of action, is based upon
and arises out of the negligence that causes the injury to the
child. Jones v. Schmidt, 349 Ill. App. 336, 341 (1953). Thus, in
most situations, the parent cannot recover unless the child also
has a good cause of action. Jones, 349 Ill. App. at 341. For a
complete analysis, see Annotation, Sexual Child Abuser's Civil
Liability to Child's Parent, 54 A.L.R. 4th 93 (1987).
In the present case, should plaintiff Jane Doe's cause of
action for negligence ultimately fail, then so too should the
parent plaintiffs' cause of action for negligence fail. This is
consistent with the holding enunciated in Jones. However, the
Jones holding does not preclude plaintiffs John and Mary Doe from
bringing other causes of action against defendants for injuries
they have suffered that were proximately caused by the primary
injuring event sustained by their child. The allegations of
fraudulent concealment, intentional infliction of emotional
distress, and civil conspiracy allegedly committed by defendants
upon plaintiffs John and Mary Doe, occurring after the injury
sustained by their child, were acts done independently to them.
However, the causes of action are factually related. Therefore, we
determine that plaintiffs John and Mary Doe may maintain
independent causes of action against defendants on those
allegations.
For the foregoing reasons, the judgment of the circuit court
of Lake County is reversed, and the cause is remanded for further
proceedings.
Reversed and remanded.
McLAREN and DOYLE, JJ., concur.