2023 IL App (1st) 221736
FIFTH DIVISION December 22, 2023
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
No. 1-22-1736
PATRICIA O’DONNELL, Independent ) Administrator of the Estate of Alex Melnyk, Deceased, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 2019 L 7393 ) BAILEY & ASSOCIATES COUNSELING, ) Honorable AND PSYCHOTHERAPY LLC; NICOLE M. BAILEY; ) Daniel A. Trevino, FOUNDATIONS RECOVERY NETWORK, LLC; ) Judge Presiding. ZACHARY KORDIK, M.D.; BIANA MAVASHEVA; ) and BURKE HALINOVYCH, n/k/a Burke Baldwin, ) ) Defendants-Appellees.
JUSTICE MIKVA delivered the judgment of the court, with opinion. Presiding Justice Mitchell and Justice Navarro concurred in the judgment and opinion.
OPINION
¶1 In late 2014, Alexander Melnyk began to receive outpatient mental health treatment. In
July 2017, he died by suicide. The administrator of his estate brought an action alleging both
wrongful death and injury to the person under section 27-6 of the Probate Act of 1975 (Survival
Act) (755 ILCS 5/27-6 (West 2016)) against Mr. Melnyk’s outpatient mental healthcare
providers—Nicole M. Bailey, Dr. Zachary Kordik, Biana Mavasheva, Burke Baldwin, and
vicariously, Bailey & Associates Counseling and Psychotherapy LLC and Foundations Recovery No. 1-22-1736
Network LLC (collectively, defendants).
¶2 The administrator alleged that defendants breached a duty to provide Mr. Melnyk with
reasonable care, including taking reasonable precautions to protect him from self-harm. The
administrator further alleged that the breach of that duty proximately caused Mr. Melnyk’s death.
The circuit court granted summary judgment to defendants on the basis that suicide is an
intervening and independent act by the decedent that precludes liability as a matter of law.
¶3 For the reasons that follow, we hold that a mental healthcare provider can be held liable
when treating an outpatient client for a suicide that is proximately caused by the provider’s failure
to act within the standard of care. Accordingly, we reverse the court’s order granting summary
judgment to defendants and remand for further proceedings.
¶4 I. BACKGROUND
¶5 The following facts, based on the pleadings and the attachments to the motion for summary
judgment and response, provided the basis upon which the circuit court granted summary
judgment.
¶6 In December 2014, defendant Nicole Bailey, a licensed clinical professional counselor,
began providing psychotherapy to Alexander Melnyk. In intake paperwork, Ms. Bailey recorded
that Mr. Melnyk experienced “depression” and “excessive alcohol consumption.” Progress notes
demonstrate the two met regularly for therapy sessions.
¶7 In January 2017, Ms. Bailey recorded that Mr. Melnyk attempted suicide. In addition to
continuing to provide him with therapy, she also referred Mr. Melnyk to an intensive outpatient
program with defendants Foundations Recovery Network, LLC, and its subsidiary, Foundations
Chicago, LLC (collectively, Foundations).
¶8 At Foundations, defendants Biana Mavasheva, a licensed professional counselor, and
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Burke Halinovych, a licensed clinical social worker (now known as Burke Baldwin), provided Mr.
Melnyk with counseling and psychotherapy. Defendant Dr. Zachary Kordik, a psychiatrist, served
as the medical director at Foundations, performed a psychiatric evaluation of Mr. Melnyk, and
prescribed Mr. Melnyk medications. A document, titled “Face Sheet,” indicates that Mr. Melnyk
was diagnosed with major depressive disorder, alcohol use disorder, and unspecified cannabis
related disorder.
¶9 During intensive outpatient therapy sessions, Mr. Baldwin recommended that Mr. Melnyk
use the “Wim Hof method.” The Wim Hof method is a breathing exercise that combines shorter
and longer breaths with periods of holding one’s breath while exposed to cold water.
¶ 10 On July 10, 2017, Mr. Melnyk’s mother found Mr. Melnyk dead in his apartment with a
belt looped around his neck and the other end attached to a doorknob. The Office of the Medical
Examiner in Cook County ruled Mr. Melnyk’s death a suicide.
¶ 11 Patricia O’Donnell, administrator of Mr. Melnyk’s estate, filed the underlying complaint
on behalf of his parents and two brothers. Ms. O’Donnell asserted a claim for wrongful death
against each defendant based on the theory that the individual defendants breached their duty of
care to Mr. Melnyk. She asserted a separate claim under the Survival Act against each defendant
for Mr. Melnyk’s suffering. 755 ILCS 5/27-6 (West 2016).
¶ 12 Ms. O’Donnell alleged that defendants breached their duty by failing, despite Mr. Melnyk’s
symptoms, to properly assess him, appropriately treat his mental illness, or refer Mr. Melnyk for
emergent or additional psychiatric services. She additionally alleged that Dr. Kordick failed to
properly supervise Mr. Baldwin, allowing Mr. Baldwin to recommend the Wim Hof method,
which Ms. O’Donnell alleged was an inappropriate intervention. Ms. O’Donnell alleged that
Foundations and Bailey & Associates Counseling and Psychotherapy LLC were vicariously liable.
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¶ 13 Foundations and Ms. Mavasheva filed a motion for summary judgment. The remaining
defendants adopted the motion in full. Defendants asserted that, under Illinois law, suicide is an
independent intervening act that breaks any alleged chain of causation. According to defendants,
Illinois law recognizes only two exceptions to this “black letter rule.” These exceptions are (1)
where the defendant assumes custody and control of the decedent and (2) where the defendant
causes the decedent to become insane or bereft of reason. Because neither exception applied,
defendants argued “as a matter of law” that they could not be found to have breached any duty to
prevent the suicide, and plaintiff could not prove causation.
¶ 14 Plaintiff filed a response in opposition to defendants’ motions. She argued that Illinois
courts have made it clear that mental healthcare professionals owe a duty to their patients to take
reasonable steps to protect them from reasonably foreseeable self-harm and that this duty exists
even when the patient is being treated on an outpatient basis. Plaintiff attached affidavits from Dr.
Cheryl D. Wills and Dr. Richard J. Stride. These two doctors expressed the opinion that “it should
have been reasonably foreseeable to *** any mental health professional that Alex Melnyk would
commit suicide or act in a self-destructive manner.”
¶ 15 The circuit court granted defendants’ motion for summary judgment. The circuit court’s
oral ruling was not transcribed but it issued a brief written order in which it wrote that “in addition
to the reasons stated in open court, the Court specifically relied on the following cases and
citations.” The court then cited three cases, which the court summarized as follows:
“Stanphill v. Ortberg, 2018 IL 122974, ¶ 35, stating the general rule that ‘the
injured party’s voluntary act of suicide is an independent intervening act, which is
unforeseeable as a matter of law and breaks the causal link between any alleged
negligent conduct and the injury.’
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Winger v. Franciscan Medical Center, 299 Ill. App. 3d 364, 375 (1998), ***
which states that ‘when the mental healthcare professional has assumed the custody
or control of an individual, be it for a voluntary or involuntary admission, so that it
is treating the individual and has knowledge of his suicidal tendencies, the
defendant assumes the patient’s duty of self-care and must act reasonably to prevent
self-inflicted harm’; and,
[Doe I v. Doe I], 2016 IL App (1st) 153272, ¶ 16, noting the general rule as
stated by the First District Appellate Court that ‘the voluntary act of suicide “is an
independent intervening act which is unforeseeable as a matter of law, and which
breaks the chain of causation from the tortfeasor’s negligent conduct,” ’ and noting
there are only two recognized exceptions to the general rule, when (1) ‘as the
proximate cause of a physical injury caused by the tortfeasor, the injured party
becomes insane or bereft of reason and while in that state commits suicide,’ and
(2) ‘when a mental health professional who has assumed the care, custody or
control over an individual with suicidal tendencies fails to act reasonable to prevent
self-inflicted harm ***’(citing [Winger, 299 Ill. App. 3d at 375]).”
¶ 16 As the circuit court made clear in denying plaintiff’s motion to reconsider, which it did
with a court reporter present, the court viewed the exception to the suicide rule noted in Winger
and repeated in Doe as inapplicable in this case because Mr. Melnyk “was not in the [defendants’]
custody or control. He was not in the defendant[s’] facility.”
¶ 17 II. JURISDICTION
¶ 18 The circuit court denied plaintiff’s timely motion to reconsider on October 26, 2022.
Plaintiff filed a notice of appeal on November 18, 2022. This court has jurisdiction over the appeal
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pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1, 2017),
governing appeals from final judgments entered by the circuit court in civil cases.
¶ 19 III. ANALYSIS
¶ 20 A. Suicide Is Not Unforeseeable As a Matter of Law for an Outpatient
¶ 21 The primary issue on appeal is whether the circuit court properly granted summary
judgment on the basis that suicide is an independent intervening cause that is unforeseeable as a
matter of law, such that, except in two limited exceptions that are not applicable here, mental health
professionals can never be liable for a failure to prevent suicide. More specifically, this case
requires us to determine whether the exception that this court has held applies in an inpatient setting
can also apply where, as in this case, the decedent dies by suicide while receiving care in an
outpatient setting.
¶ 22 A motion for summary judgment may only be granted when the right of the moving party
is clear and free from doubt. Pedersen v. Joliet Park District, 136 Ill. App. 3d 172, 175 (1985).
Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavits
demonstrate that there is no genuine issue of material fact and that the moving party is entitled to
a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). We review the circuit court’s
summary judgment decision de novo. Cohen v. Chicago Park District, 2017 IL 121800, ¶ 17.
¶ 23 Defendants’ argument, and the circuit court’s ruling, rest on the application of what our
supreme court has described as the “general rule.” Turcios v. The DeBruler Co., 2015 IL
117962, ¶ 20. Under this general rule, “the injured party’s voluntary act of suicide is an
independent intervening act which is unforeseeable as a matter of law, and which breaks the chain
of causation from the tortfeasor’s negligent [or intentional] conduct.” Id. As the supreme court
explained in Turcios, the “general rule” is based on policy considerations inherent in analyzing
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legal cause. Any legal cause analysis is limited by an “assessment of foreseeability.” Id. ¶ 24.
“Courts ask whether the injury is the type of injury that a reasonable person would see as a ‘likely
result’ of his or her conduct, or whether the injury is so ‘highly extraordinary’ that imposing
liability is not justified.” Id. (quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 456
(1992)).
¶ 24 The Turcios court stated that the general rule was not absolute. Id. ¶ 40. It recognized that
a plaintiff could plead facts that “would overcome application of the general rule that suicide is
deemed unforeseeable as a matter of law.” Id. According to the court, those allegations must
include “facts demonstrating that the suicide was foreseeable, i.e., that it was a likely result of the
defendant’s conduct.” Id
¶ 25 The parties and the circuit court all recognize that this general suicide rule has exceptions.
But the defendants and the circuit court, relying on what we view as a misreading of our previous
cases, conclude that no exception can apply here. We find that such a conclusion would be at odds
with several decisions of our supreme court and is not at all compelled by the cases on which
defendants rely.
¶ 26 In Stanphill v. Ortberg, 2018 IL 122974, ¶ 35, the court cited Turcios’s “general rule” and
foreseeability exception and recognized that one situation in which liability could attach was where
a licensed professional was offering mental health services on an outpatient basis. In Stanphill, a
decedent’s son filed suit against a licensed clinical social worker who had provided outpatient
treatment to the decedent before the decedent died by suicide. Id. ¶ 3. The son alleged that the
social worker violated her duty of care by failing to properly assess for suicidality or refer for
emergent services. Id. He further alleged that the social worker’s breach of that duty was a
proximate cause leading to the decedent’s death. Id.
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¶ 27 Our supreme court addressed whether the circuit court should have presented the jury with
an objective or subjective interrogatory—asking if the decedent’s suicide was foreseeable to a
reasonable provider or to the social worker personally. Id. ¶ 32. The assumption underlying this
question and the supreme court’s opinion was “where a plaintiff can show that the suicide was a
reasonably foreseeable result of the defendant’s conduct, liability will attach.” Id. ¶ 35. Thus,
Stanphill recognizes that suicide can be foreseeable to a provider offering mental health services
and that it is not unforeseeable as a matter of law. Because Stanphill occurred in an entirely
outpatient context, it is clear that our supreme court did not view the fact that the defendant did
not have custody over the decedent as a legal bar to recovery.
¶ 28 In Hobart v. Shin, 185 Ill. 2d 283 (1998), the decedent died after ingesting medications
prescribed by her primary care physician to treat her mental illness. Id. at 286-89. Our supreme
court addressed whether the decedent could be contributorily negligent in her own death by
suicide. Id. at 290. In holding that it was possible, our supreme court stated that “[t]he issue of
contributory negligence of a mentally disturbed person is a question of fact; unless, of course, the
evidence discloses that the person whose actions are being judged is completely devoid of reason.”
(Internal quotation marks omitted.) Id.
¶ 29 By holding that a decedent may be contributorily negligent in a tort related to her own
suicide, our supreme court necessarily recognized that the alleged tortfeasor also had potential
liability. As in this case, the potential liability existed for a healthcare professional providing
treatment on an outpatient basis. Id. at 286-89.
¶ 30 In Jinkins v. Lee, 209 Ill. 2d 320 (2004), the defendant psychiatrist decided not to admit
the decedent to a hospital, believing that the decedent was not at imminent risk of self-harm. Id. at
325-26. The decedent went home and shot himself in the head, dying later from the wound. Id.
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The estate’s administrator sued, alleging the psychiatrist failed to properly diagnose or treat the
underlying mental illness. Id. at 323.
¶ 31 Our supreme court addressed whether the psychiatrist owed the decedent a duty of care
arising from his role as a state employee, which would trigger the doctrine of sovereign immunity,
or from his role as a healthcare provider. Id. at 336. In holding sovereign immunity did not apply,
the court stated, “the duties inherent in the doctor-patient relationship emanate from the standards
imposed by the profession itself. A physician’s duty is to exercise the same degree of knowledge,
skill, and care which a reasonably well qualified physician in the same or similar community would
use under similar circumstances.” Id.
¶ 32 In Jinkins—as in Hobart and Stanphill—our supreme court operated on the premise that
mental healthcare providers owe their patients a duty of care emanating from their “mental health
professional status.” Jinkins, 209 Ill. 2d at 335. The takeaway from these cases is that a healthcare
provider’s malpractice can be a basis for liability, even where, as in those cases and in this one,
the suicide occurs outside of an institutional setting.
¶ 33 Defendants argue that Stanphill, Hobart, and Jinkins, did not address the issue before us in
this case because the defendants in those cases conceded they owed their patients a duty of care.
The defendants reason that, because reviewing courts “do not address unbriefed issues,” the
necessary assumption that our supreme court made in arriving at those decisions does not provide
any guidance.
¶ 34 Without the briefs in those supreme court cases, we cannot be sure what issues were
presented. But even if we assume that the defendants conceded that they could have liability,
language from an opinion is nonbinding as obiter dictum only where it is a “remark or opinion that
a court uttered as an aside.” Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 236 (2010).
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Obiter dictum is, by definition, “not essential to the outcome of the case” and “not an integral part
of the opinion.” Id. In each of the three above-cited cases, the assumption that healthcare
professionals can be liable for the suicides of their outpatients cannot properly be characterized as
dictum because it was an integral part of the analysis of each opinion. If, in fact, there could be no
liability in an outpatient setting, then there would be no need to decide whether foreseeability was
objective or subjective in Stanphill, or whether there could be contributory negligence in Hobart,
or whether sovereign immunity protected the psychiatrist in Jinkins. The potential for liability was
an integral part of the opinion.
¶ 35 Defendants counter this supreme court authority with language we used in Doe I v. Doe I,
2016 IL App (1st) 153272, ¶ 16, which was also relied on by the circuit court in this case. In Doe,
we stated:
“[O]ur supreme court has reaffirmed the proposition that the voluntary act of suicide ‘is an
independent intervening act which is unforeseeable as a matter of law, and which breaks
the chain of causation from the tortfeasor’s negligent conduct.’ (Emphasis added [by Doe].)
Turcios, 2015 IL 117962, ¶ 20 [citation shortened]. Our research has revealed only two
recognized exceptions to this rule: (1) when, as the proximate result of a physical injury
caused by the tortfeasor, the injured party becomes insane or bereft of reason and while in
that state commits suicide [citations] and (2) when a mental health care professional who
has assumed the care, custody or control over an individual with known suicidal tendencies
fails to act reasonably to prevent self-inflicted harm, and the individual commits suicide
(Winger, 299 Ill.App.3d at 374-75) [citation shortened].” Id.
¶ 36 Doe was a suit against the parents of two minors. Id. The minors were alleged to have
fraudulently communicated to the decedent that one of the minors had a desire to end his own life.
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Id. ¶ 2. The decedent became greatly distressed and died by suicide. Id. The decedent’s
representative sued, arguing the fraudulent communications negligently caused the death. Id. ¶ 3.
Using the above-quoted rule, we held that the suicide was an intervening and independent action
that broke the chain of causation. Id. ¶ 16.
¶ 37 Doe does not address healthcare malpractice in any way. The quotation above is an accurate
description of the general rule that suicide is an independent act by the decedent that is not
foreseeable as a matter of law. It says nothing directly about foreseeability or liability in the mental
healthcare context.
¶ 38 To the extent that Doe says anything about liability in the healthcare context, it does so by
citing Winger, 299 Ill. App. 3d at 374-75. According to defendants, until Winger, Illinois courts
recognized only one exception to the suicide rule—when, due to the defendant’s actions, the
injured party became insane, and for that reason took her own life. Defendants’ argument is that
Winger created the only other exception to this “black letter” rule when the mental healthcare
professional assumes the custody or control of the individual.
¶ 39 In Winger, the victim was hospitalized for suicidality and died by hanging himself with his
shoelaces. Id. at 366. His parents sued the hospital and attending psychiatrist for wrongful death.
Id. at 367-68. This court held that the defendants owed a duty to “act reasonably to prevent self-
inflicted harm.” Id. at 375. While we agree that Winger specifically recognizes an exception, in
the context of inpatient care, to the general rule that suicide is unforeseeable as a matter of law, we
disagree that the case should be read to bar any liability for professionals treating outpatients.
¶ 40 When discussing mental illness, the Winger court used broad language that is equally
applicable here:
“Where it is reasonably foreseeable that a patient by reason of his mental or emotional
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illness may attempt to injure himself, those in charge of his care owe a duty to safeguard
him from his self-damaging potential. This duty contemplates the reasonably foreseeable
occurrence of self-inflicted injury regardless of whether it is the product of the patient’s
volitional or negligent act.” (Internal quotation marks omitted.) Id. at 374.
¶ 41 The Winger court went on to describe Illinois’s conception of mental illness. Id. Unlike
with other illnesses, where a patient’s noncompliance with treatment usually exculpates the
provider if harm results, Winger recognizes that a measure of noncompliance may be expected
when treating certain mental illnesses. Id. As we stated, “the patient, by the nature of his illness,
may be working at cross-purposes to his doctor’s suggestions.” (Internal quotation marks omitted.)
Id. at 372. Inasmuch as Winger provides guidance, it recognizes that suicide is not necessarily an
independent and intervening act in the context of mental healthcare.
¶ 42 Defendants insist that Winger must be cabined to the inpatient context because we
described the doctor-patient relationship there as a “special relationship.” Id. at 374. They then
claim we used these two words as a term of art, implicitly referencing the Second Restatement of
Torts. Restatement (Second) of Torts § 314A (1965). The Second Restatement recognizes only
four types of “special relationships,” one of which is a “voluntary custodian.” Id. Defendants
therefore argue that Winger only applies in custodial contexts.
¶ 43 But we did not cite this section of the Restatement in Winger, 299 Ill. App. 3d at 374. Nor
is there any reason to think that we used the phrase “special relationship” as a term of art that was
meant to conform to the four special relationships listed in the restatement. The rationale of Winger
supports plaintiff’s claim that there can be liability in this case, and nothing in the holding or the
language of that case suggests otherwise.
¶ 44 We also think it is significant that, in the Doe court’s description of Winger, it referenced
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“a mental health care professional who has assumed the care, custody or control over an
individual.” (Emphases added.) Doe I, 2016 IL App (1st) 153272, ¶ 16. Since “care, custody or
control” are stated in the alternative, “care” of a patient could certainly include outpatient care. We
do not, therefore, read Doe to say that the second exception noted there is limited to inpatient care.
¶ 45 In any event, to the extent that either of these appellate court cases suggest that suicide is
unforeseeable as a matter of law in the context of mental health treatment unless the defendant is
hospitalized, we disagree and find such a statement at odds with the supreme court cases cited
above. See supra ¶¶ 26-34.
¶ 46 Cases outside of Illinois go both ways. Defendants cite cases from jurisdictions that have
applied the “suicide rule” to preclude liability for outpatient mental healthcare providers. See, e.g.,
Lee v. Corregedore, 925 P.2d 324, 337 (Haw. 1996) (“Regardless of whether [the decedent’s]
suicide was foreseeable, it would be inappropriate to impose a duty on counselors to prevent
suicides—which might stifle all such counseling ***.”); Christian v. Counseling Resources
Associates, No. N09C-10-202 EMD, 2014 WL 4100681, at *10 (Del. Super. Ct. July 16, 2014)
(“there is not sufficient evidence in the record of either custody or control over [the decedent] to
find that a special relationship existed that would trigger the duty to act”).
¶ 47 There are also a number of cases that find that liability is possible in this context. For
example, in Kockelman v. Segal, 71 Cal. Rptr. 2d 552, 555 (Ct. App. 1998), the California appellate
court addressed this issue as follows:
“[Mental health providers] owe a duty of care, consistent with standards in the professional
community, to provide appropriate treatment for a potentially suicidal patient, whether the
patient is hospitalized or not. ***
***
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*** If those who are caring for and treating mentally disturbed patients know of
facts from which they could reasonably conclude that the patients would be likely to inflict
harm on themselves in the absence of preventative measures, then those caretakers must
use reasonable care under the circumstances to prevent such harm from occurring.”
(Internal quotation marks omitted.) Id. at 558, 561.
¶ 48 In Morris v. Corder, 866 S.E.2d 66, 67 (W. Va. 2021), West Virginia’s supreme court
determined that “[i]t would defy logic” to impose liability only in the inpatient setting. Id. at 71.
Providers could thereby avoid responsibility by refusing to involuntarily hospitalize or admit
suicidal clients and then argue that liability could not attach “on the basis that the patient was not
admitted.” (Emphasis in original.) Id.; see also Perez v. United States, 883 F. Supp. 2d 1257, 1286
(S.D. Fla. 2012) (“[I]t would be peculiar, and seemingly contrary to the intent of Florida’s law on
medical negligence, to absolve a treating psychiatrist of liability for all negligent acts simply
because the patient is being seen on an outpatient basis.”); Smits as Trustee for Short v. Park
Nicollet Health Services, 979 N.W.2d 436, 447 (Minn. 1997) (“We will not absolve [the defendant]
of the duty to meet the standard of care because its patient committed suicide.”); Edwards v. Tardif,
692 A.2d 1266, 1270 n.7 (Conn. 1997) (“In our view, the circumstances in which a physician may
be liable for a patient’s suicide are not limited only to when the patient is in the physician’s
custody”); Champagne v. United States, 513 N.W.2d 75, 76-77 (N.D. 1994) (“[i]f the patient’s act
of suicide is a foreseeable result of the medical provider’s breach of duty to treat the patient, the
patient’s act of suicide cannot be deemed a superseding cause of the patient’s death that breaks the
chain of causation between the medical provider and the patient, which absolves the medical
provider of liability”).
¶ 49 We find the latter group of cases are in keeping with Illinois law, which also recognizes
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that a mental health professional can have liability in an outpatient context. Thus, the circuit court
erred in holding that defendants were entitled to judgment as a matter of law.
¶ 50 B. Defendants’ Alternative Argument
¶ 51 As an alternative basis to affirm, defendants argue plaintiff “failed to produce evidence of
a prima facie negligence claim sufficient to present to a jury.” Defendants are, of course, correct
that ultimately the plaintiff will have the burden of proving all elements of her claims. As a general
rule, “expert testimony is necessary in professional negligence cases to establish the standard of
care and that its breach was the proximate cause of the plaintiff’s injury.” Snelson v. Kamm, 204
Ill. 2d 1, 43-44, (2003). Defendants contend that plaintiff has failed to make a timely disclosure of
the necessary experts. Defendants also contend that the record contains no evidence of the
standards of care, the precise nature of any breach or of the causal connection between any action
by a defendant and Mr. Melnyk’s suicide. These alleged deficiencies may prove fatal, but they are
simply not before us given the nature of the motion that defendants filed.
¶ 52 Defendants first raised this alternative argument in the reply memorandum in support of
their summary judgment motion. Defendants did not seek at that point to expand their motion and
neither plaintiff (who had already filed her response to the motion) nor the circuit court ever
addressed this argument.
¶ 53 A defendant moving for summary judgment has the initial burden of production, which can
be met by either (1) introducing evidence that, if uncontroverted, would disprove the plaintiff’s
case (see Purtill v. Hess, 111 Ill. 2d 229, 240-41 (1986)), or (2) establishing that a lack of evidence
will prevent the plaintiff from proving an essential element of the cause of action (CZ Driving
Horses, Inc. v. Horse Powered Equestrian, Inc., 2022 IL App (3d) 190509, ¶ 41). When this
second kind of motion, sometimes described as a “Celotex” motion (see Celotex Corp. v. Catrett,
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477 U.S. 317, 323 (1986)) is filed, the burden then shifts to the plaintiff to show a factual basis to
support the elements of her claim. Hutchcraft v. Independent Mechanical Industries, Inc., 312 Ill.
App. 3d 351, 355 (2000).
¶ 54 As we have made clear, “[t]he grounds for summary judgment should be pleaded with
sufficient specificity to alert the opposing party to what he must answer and the trial judge to what
he may be expected to pass on.” Tongate v. Wyeth Laboratories, 220 Ill. App. 3d 952, 956 (1991).
Only where a defendant files a motion for summary judgment based on a lack of evidence, i.e., a
Celotex motion, is the plaintiff obligated to come forward with evidence on all aspects of the claim.
See Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 689 (2000) (“Only if a defendant
satisfies its initial burden of production does the burden shift to the plaintiffs to present some
factual basis that would arguably entitle them to a judgment under the applicable law.”); Hallmark
Insurance Co. v. Chicago Transit Authority, 179 Ill. App. 3d 260, 264, 267 (1989) (where a moving
defendant fails in showing there was no genuine issue of material fact to try, plaintiffs “had no
duty to present evidence in support of their allegations”).
¶ 55 Here, the only argument defendants made in their motion for summary judgment was that
the decedent’s suicide was unforeseeable as a matter of law. Plaintiff responded to this argument,
and the circuit court decided the motion on that basis. Plaintiff was under no obligation to submit
any affidavits or other evidence to support all elements of her cause of action.
¶ 56 At oral argument, defendants cited cases not cited in their brief which they contend allow
us to consider this argument. Those cases offer no support to defendants here. In Cohen v. Chicago
Park District, 2017 IL 121800, ¶ 34, our supreme court affirmed the circuit court’s grant of
summary judgment for the defendant on the basis that there was no evidence that the park district’s
conduct was willful and wanton. In Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 641
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(2002), we reversed a grant of summary judgment based on the same point that we repeat here:
that a “defendant meets its burden by producing evidence that would clearly entitle the defendant
to judgment as a matter of law” and “[o]nly if defendant[] satisf[ies] [this] initial burden of
production does the burden shift to [the plaintiff] to present some factual basis that would arguably
entitle them to a favorable judgement.” (Internal quotation marks omitted.) Neither of these cases
suggest in any way that this court should consider defendants’ alternative argument or comb the
record to see if plaintiff can prove her case.
¶ 57 While alternative arguments are certainly permitted, and we can affirm on any basis present
in the record (City of Chicago v. Holland, 206 Ill. 2d 480, 491-92 (2003)), the record in this case
discloses that there was no obligation on the part of the plaintiff to provide evidence of the standard
of care, the precise nature of any breach, or the alleged causal connection between the two. This
argument offers us no “alternative” basis on which to affirm.
¶ 58 IV. CONCLUSION
¶ 59 For the forgoing reasons, we reverse the circuit court’s grant of summary judgment in favor
of defendants and remand for proceedings consistent with this opinion.
¶ 60 Reversed and remanded.
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O’Donnell v. Bailey & Associates Counseling & Psychotherapy LLC, 2023 IL App (1st) 221736
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2019-L- 7393; the Hon. Daniel A. Trevino, Judge, presiding.
Attorneys Milo W. Lundblad, of Brustin & Lundblad, Ltd., of Chicago, for for appellant. Appellant:
Attorneys Lawrence S. Gosewisch and Richard C. Harris, of Hinshaw & for Culbertson LLP, Gretchen Harris Sperry, of Gordon Rees Scully Appellee: Mansukhani LLP, Scott L. Howie, John M. McGarry, and Zachary A. Kutsulis, of Donohue Brown Mathewson & Smyth LLC, and Thomas B. Orlando and Douglas J. Palandech, of Foran Glennon Palandech Ponzi & Rudloff PC, all of Chicago, for appellees.
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