2023 IL App (2d) 220180 No. 2-22-0180 Opinion filed August 17, 2023 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
DONALD JAMES, as Executor of the ) Appeal from the Circuit Court Estate of Lucille Helen James, Deceased; ) of Kane County. MARK R. DONESKE, as Executor of the ) Estate of Rose H. Doneske, Deceased; ) FRANCES G. DeFRANCESCO, as Executor ) of the Estate of Jack DeFrancesco, Deceased; ) PATRICIA VELCICH, as Executor of the ) Estate of Marion May Heotis, Deceased; ) FAITH HEIMBRODT, as Independent ) Administrator of the Estate of Carol ) Orlando, Deceased, ) ) Plaintiffs-Appellees, ) ) v. ) Nos. 20-L-247, 20-L-259, 20-L-260, ) 20-L-264 & 20-L-273 GENEVA NURSING AND ) REHABILITATION CENTER, LLC, ) d/b/a Bria Health Services of Geneva, ) Honorable ) Susan Clancy Boles, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.
OPINION
¶1 This certified-question appeal under Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019)
comes to us from several consolidated wrongful-death suits against a nursing home where each
decedent passed from COVID-19 complications during the opening weeks of the pandemic. Each 2023 IL App (2d) 220180
complaint alleges that the nursing home both negligently and willfully failed to control the spread
of COVID-19 in the facility, which led to the deaths of the decedents. The nursing home sought
immunity from the decedents’ negligence claims under an executive order (Exec. Order No. 2020-
19, 44 Ill. Reg. 6192 (Apr. 1, 2020), https://coronavirus.illinois.gov/content/dam/soi/en/web/
coronavirus/documents/executiveorder-2020-19.pdf [https://perma.cc/FG32-BM6L]), issued by
Governor J.B. Pritzker during the pandemic’s beginning.
¶2 The parties presented a question to the circuit court, which was then certified for
interlocutory review, asking whether Executive Order No. 2020-19 provides “blanket immunity
for ordinary negligence [claims] to healthcare facilities that rendered assistance to the State during
the COVID-19 pandemic.” For the reasons explained below, we modify the question and answer
“yes.”
¶3 I. BACKGROUND
¶4 At this stage, we take as true all well-pled allegations from the estates’ complaints. See
In re Chicago Flood Litigation, 176 Ill. 2d 179, 184 (1997); Coley v. Bradshaw & Range Funeral
Home, P.C., 2020 IL App (2d) 190627, ¶ 16. With minor variations, the complaints are largely
uniform and were consolidated in the trial court.
¶5 Each decedent was a resident of the Geneva Nursing and Rehabilitation Center, LLC, also
known as Bria Health Services of Geneva (Bria). Some decedents had been long-term residents,
while others were recent arrivals. According to the complaints, between March and May of 2020,
each decedent contracted COVID-19 and died from related respiratory complications or
respiratory failure (acute hypoxia) while in the nursing home’s care. The complaints generally
alleged that the decedents contracted COVID-19 from Bria’s failure to quarantine symptomatic
staff members and residents adequately and its failure to implement effective procedures for
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maintaining hygiene and equipment, including personal protective equipment (PPE) such as masks
and gowns, thereby exposing decedents to the virus during this period. The complaints alleged that
this was a breach of the nursing home’s duty of care, which proximately caused the decedents’
deaths.
¶6 While the pandemic was in its ascendence, on April 1, 2020, pursuant to the Illinois
Emergency Management Agency Act (Act) (20 ILCS 3305/1 et seq. (West 2020)), the Governor
issued Executive Order No. 2020-19, which was one of the first directives in a series of
proclamations to address the COVID-19 outbreak. Within 30 days, the Governor reissued
Executive Order No. 2020-19 as Executive Order No. 2020-33 (Exec. Order No. 2020-33, 44 Ill.
Reg. 8235 (Apr. 30, 2020), https://coronavirus.illinois.gov/content/dam/soi/en/web/coronavirus/
documents/executiveorder-2020-33.pdf [https://perma.cc/6UA5-48NX]). See generally Fox Fire
Tavern, LLC v. Pritzker, 2020 IL App (2d) 200623, ¶ 24. The Governor reissued his same
executive order several times during the pandemic; however, this appeal is concerned only with
the first two orders, which, for the reader’s convenience, we reference collectively as “Executive
Order No. 2020-19.”
¶7 Executive Order No. 2020-19 invoked the Governor’s authority under section 21(c) of the
Act (20 ILCS 3305/21(c) (West 2020)) to extend ordinary governmental tort immunity (see 745
ILCS 10/1-101 et seq. (West 2020)) to nursing homes and health care facilities that “render[ed]
assistance or advice at the request of the State” during the Governor’s disaster declaration. Exec.
Order No. 2020-19, 44 Ill. Reg. 6192 (Apr. 1, 2020). Relevant here, section 3 of Executive Order
No. 2020-19 provided as follows:
“Pursuant to Sections 15 and 21(b)-(c) of [the Act], 20 ILCS 3305/15 and 21(b)-(c), I direct
that during the pendency of the Gubernatorial Disaster Proclamation, Health Care Facilities
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*** shall be immune from civil liability for any injury or death alleged to have been caused
by any act or omission by the Health Care Facility, which injury or death occurred at a time
when a Health Care Facility was engaged in the course of rendering assistance to the State
by providing health care services in response to the COVID-19 outbreak, unless it is
established that such injury or death was caused by *** willful misconduct ***.” Exec.
Order No. 2020-19, § 3, 44 Ill. Reg. 6192 (Apr. 1, 2020).
¶8 After the decedents’ estates filed their complaints, Bria filed motions to dismiss the
decedents’ negligence claims with prejudice, asserting that Bria was “render[ing] assistance” to
the State when decedents’ negligence claims arose and therefore was immune from suit for
ordinary negligence. Bria argued that its immunity under the order was an affirmative matter,
barring those claims. See 735 ILCS 5/2-619(a)(9) (West 2020). The core of Bria’s assertion was
that as long as it took such steps to address the pandemic, it was immune from negligence claims
regardless of how they arose. In other words, Bria asserted that it was immune from not only
negligence claims tied to COVID-19, but also claims for willful misconduct.
¶9 Attached to Bria’s motion were affidavits from an administrator stating that, in response to
the pandemic and “at the direction of” the Illinois Department of Public Health (IDPH), Bria stored
PPE, made beds available for incoming patients, and provided additional training to its staff on
protective measures such as handwashing. The estates responded that Bria’s interpretation of
Executive Order No. 2020-19 was incorrect and that the affidavits were insufficient to resolve
immunity at the pleading stage of the litigation. The trial court initially denied Bria’s motion to
dismiss, but after Bria filed a motion to reconsider, the court vacated the denial. Bria then
submitted the following question for certification: “Does [EO20-19] provide blanket immunity for
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ordinary negligence to healthcare facilities that rendered assistance to the State during the COVID-
19 pandemic?”
¶ 10 The trial court agreed with Bria that Executive Order No. 2020-19 could reasonably be
read in different ways and that answering that question could help resolve a substantial portion of
the litigation. Thus, the court certified the question for our review. The court also denied the
estates’ motion to reconsider certification.
¶ 11 We granted Bria leave to appeal. Ill. S. Ct. R. 308 (eff. Oct. 1, 2019). We also granted leave
for the Illinois Trial Lawyers Association to submit amicus briefs and received briefing from the
Attorney General on the relevant statutory authority.
¶ 12 II. ANALYSIS
¶ 13 At the outset, we note that the certified question, as presented, misstates the relevant issues
in this case. “By definition, certified questions are questions of law subject to de novo review”
(Rozsavolgyi v. City of Aurora, 2017 IL 121048, ¶ 21), and “the scope of our review is limited to
the certified question” (Moore v. Chicago Park District, 2012 IL 112788, ¶ 9). We are not,
however, limited to the language of the question as certified. As a reviewing court, we may
disregard words or phrases in the question that mischaracterize the issue and instead consider “the
question remaining.” Moore, 2012 IL 112788, ¶¶ 11-14. Here, as is often the case, the “certified
question [was] framed as a question of law, but the ultimate disposition [may] depend[ ] on the
resolution of a host of factual predicates.” (Internal quotation marks omitted.) Rozsavolgyi, 2017
IL 121048, ¶ 21. Nevertheless, we can answer the certified question, as reframed, and we answer
that modified question in the affirmative.
¶ 14 As the parties have briefed it, the certified question calls into question the constitutional
separation of powers and the mechanics of Illinois civil procedure, which could have implications
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for nearly every lawsuit in our state’s courts. The parties’ briefs manifest an awareness of these
concepts to an extent, but both sides have given us a distorted presentation of the issues. The estates
would have us declare that Executive Order No. 2020-19 exceeded the Governor’s authority and
is unconstitutional. Bria would like us to say that Executive Order No. 2020-19 grants them
“blanket immunity” from nearly all claims arising during the COVID-19 pandemic. The Illinois
Trial Lawyers Association suggests we go further and declare that, under Executive Order No.
2020-19, Bria could be immune only for acts directly connected to measures implemented in
response to the pandemic. None of these results is tenable, and except for the Attorney General,
all parties indirectly suggest that we review the trial court’s order initially denying Bria’s motion
to dismiss the negligence counts—an order that was subsequently vacated. Nevertheless, this is
not an interlocutory appeal of that order. Our task is to answer the certified question rather than to
opine on the propriety of a now-vacated, nonfinal order denying a motion to dismiss. See
Rozsavolgyi, 2017 IL 121048, ¶ 21. As we explain, with modifications, we can answer the certified
question simply and directly under Rule 308.
¶ 15 After careful consideration, we determine that the certified question incorrectly describes
the scope of the immunity at issue as well as its source. First, the question’s use of the phrase
“blanket immunity” is inapt. In modern legal vernacular, two primary modifiers denote the scope
of the immunity in question. The first phrase, “absolute immunity,” indicates that a defendant is
completely exempt from suit for any conduct in performing (or not performing) the defendant’s
official duties. E.g., Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (judicial immunity). Such
exemptions are justified because “[i]n the absence of immunity, *** [certain] officials would
hesitate to exercise their discretion *** even when the public interest required bold and
unhesitating action.” Nixon v. Fitzgerald, 457 U.S. 731, 744-45 (1982) (presidential immunity). In
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contrast, there is also “qualified” or “partial” immunity. This immunity is typically a statutory
limitation that bars negligence claims, but not claims for willful and wanton misconduct. See, e.g.,
Hernandez v. Lifeline Ambulance, LLC, 2020 IL 124610, ¶ 26 (discussing partial immunity for
paramedics); Corbett v. County of Lake, 2017 IL 121536, ¶ 35 (discussing partial immunity for
state and local authorities for the maintenance of bike trails).
¶ 16 The phrase “blanket immunity” connotes absolute immunity (e.g., Cohen v. Chicago Park
District, 2017 IL 121800, ¶ 22; Ries v. City of Chicago, 242 Ill. 2d 205, 227 (2011)); yet the
statutory authority, Executive Order No. 2020-19, and the parties’ respective arguments, all
conceive that the immunity at issue is only partial. In other words, the certified question, as
presented, could be taken to erroneously suggest that Bria could be immune from both negligence
claims and claims of willful misconduct. The latter suggestion is a bridge too far.
¶ 17 In addition, the certified question also misconceives where Bria’s potential immunity
derives from. Any potential immunity would derive from the Illinois Emergency Management Act,
not the executive order invoking that Act. As the Attorney General points out, all Executive Order
No. 2020-19 did was invoke the Governor’s authority to declare a public health emergency,
triggering the preexisting, potential statutory immunity for health care facilities under the Act. We
look to section 7 of the Act, which empowers the Governor to declare that a disaster exists and to
exercise emergency powers for 30 days. 20 ILCS 3305/7 (West 2020). Such orders may be reissued
as well. See, e.g., Fox Fire Tavern, LLC, 2020 IL App (2d) 200623, ¶¶ 4, 23. Relevant here, section
21(c) of the Act states:
“(c) Any private person, firm or corporation, and any employee or agent of such
person, firm or corporation, who renders assistance or advice at the request of the State, or
any political subdivision of the State under this Act during an actual or impending disaster,
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shall not be civilly liable for causing the death of, or injury to, any person or damage to
any property except in the event of willful misconduct.” 20 ILCS 3305/21(c) (West 2020).
¶ 18 We note that the Act does not define what it means to “render assistance,” but Executive
Order No. 2020-19 stated that “for Health Care Facilities, ‘rendering assistance’ in support of the
State’s response must include measures such as increasing the number of beds, preserving personal
protective equipment, or taking necessary steps to prepare to treat patients with COVID-19.” Exec.
Order No. 2020-19, § 2, 44 Ill. Reg. 6192 (Apr. 1, 2020). We agree with the Attorney General that
the executive order’s elaboration is not inconsistent with the relevant portions of the Act.
Consequently, we reject the estates’ argument that Executive Order No. 2020-19 is
unconstitutional, or ultra vires, as the executive order neither overrides nor is inconsistent with the
General Assembly’s grant of authority to the Governor under the Act.
¶ 19 The parties primarily dispute the phrase in section 3 of the executive order immunizing
health care facilities when an “injury or death occurred at a time when [the facility] was engaged
in the course of rendering assistance to the State,” which was covered by the Governor’s disaster
proclamation. (Emphasis added.) Exec. Order No. 2020-19, § 3, 44 Ill. Reg. 6192 (Apr. 1, 2020).
We need not parse the executive order’s language too closely— particularly its use of the phrase
“at a time”—as the parties have. It is axiomatic that an executive order, issued pursuant to statutory
authority, cannot convey more than the statute that authorized it. Again, the question is not what
the executive order says but rather what the relevant statute that the executive order invoked says.
See Exec. Order No. 2020-19, § 3, 44 Ill. Reg. 6192 (Apr. 1, 2020) (“Pursuant to Sections 15 and
21(b)-(c) of [the Act], 20 ILCS 3305/15 and 21(b)-(c) ***”).
¶ 20 We do not find any ambiguity in section 21(c) of the Act. The statutory authority is clear
that, except for willful misconduct, any “private person, firm or corporation” who renders
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“assistance or advice at the request of the State *** during [a] *** disaster[ ] shall not be civilly
liable for causing the death of, or injury to, any person.” (Emphases added.) 20 ILCS 3305/21(c)
(West 2020). Thus, Bria would have immunity from negligence claims arising during the
Governor’s disaster declaration if and only if it can show it was “render[ing] assistance” to the
State during this time. This interpretation is consistent with guidance from our supreme court,
which has repeatedly observed that, “[w]here the legislature has chosen to limit an immunity to
cover only negligence, it has unambiguously done so.” (Emphasis added.) In re Chicago Flood
Litigation, 176 Ill. 2d at 196; see also Barnett v. Zion Park District, 171 Ill. 2d 378, 391 (1996).
¶ 21 Thus, we modify the certified question to state as follows: “Does Executive Order No.
2020-19, which triggered the immunity provided in 20 ILCS 3305/21(c), grant immunity for
ordinary negligence claims to healthcare facilities that rendered assistance to the State during the
COVID-19 pandemic?” And we answer that question in the affirmative.
¶ 22 We further observe that what it means to “render assistance” to the State during the
pandemic is apt to be a fact-bound question not easily disposed of through preliminary pleadings
and process. While immunity from tort liability is an affirmative matter that may properly be raised
in a section 2-619 motion (Hernandez, 2020 IL 124610, ¶ 14), it is often a “red flag” to ask courts
to evaluate complex legal or factual disputes via a motion to dismiss. See Reynolds v. Jimmy John’s
Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 26. We remind the parties that the purpose of a
section 2-619 motion to dismiss is to “dispose of issues of law and easily proved issues of fact at
the outset of litigation.” (Emphasis added.) Van Meter v. Darien Park District, 207 Ill. 2d 359, 367
(2003). As with more challenging immunity questions, like this one, the trial court will be in the
best position to evaluate the quantum of evidence necessary to determine whether a given
defendant qualifies for the statutory immunity at issue. See, e.g., Cates v. Cates, 156 Ill. 2d 76, 78
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(1993) (determining scope of partial immunity on summary judgment).
¶ 23 Finally, we note that we have considered the three federal cases cited by the parties related
to this issue—Walsh v. SSC Westchester Operating Co., 592 F. Supp. 3d 737 (N.D. Ill. 2022);
Brady v. SSC Westchester Operating Co., 533 F. Supp. 3d 667 (N.D. Ill. 2021); Claybon v. SSC
Westchester Operating Co., No. 20-cv-04507, 2021 WL 1222803 (N.D. Ill. Apr. 1, 2021). All
three of these cases focus on the text of the Governor’s order but do not hinge their analyses on
section 21(c) of the Act. Nevertheless, we determine that the result in our case today is consistent
with those federal authorities, which may provide some guidance to the trial court on remand.
¶ 24 III. CONCLUSION
¶ 25 In sum, we modify the certified question, answer in the affirmative, and remand this cause
to the circuit court of Kane County.
¶ 26 Certified question answered; cause remanded.
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James v. Geneva Nursing & Rehabilitation Center, LLC, 2023 IL App (2d) 220180
Decision Under Review: Appeal from the Circuit Court of Kane County, Nos. 20-L-247, 20-L-259, 20-L-260, 20-L-264, 20-L-273; the Hon. Susan Clancy Boles, Judge, presiding.
Attorneys Anne M. Oldenburg and LaDonna L. Boeckman, of for HeplerBroom LLC, Robert Marc Chemers and David N. Larson, Appellant: of Pretzel & Stouffer, Chtrd., and Mark D. Rosen, of IIT Chicago-Kent College of Law, all of Chicago, for appellant.
Attorneys Margaret P. Battersby and Gabriel J. Apprati, of Levin & for Perconti, of Chicago, and Michael W. Lenert and Christopher J. Appellee: Warmbold, of Myers & Flowers, LLC, of St. Charles, for appellees.
Amicus Curiae: Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis, Assistant Attorney General, of counsel), for amicus curiae People of the State of Illinois.
Yvette C. Loizon and Keith A. Hebeisen, of Clifford Law Offices, P.C., of Chicago, for amicus curiae Illinois Trial Lawyers Association.
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