2015 IL App (2d) 140908 No. 2-14-0908 Opinion filed May 15, 2015 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
SCOTT STEARNS, as Executor of the ) Appeal from the Circuit Court Estate of Marjorie Stearns, Deceased, ) of Kane County. ) Plaintiff-Appellant, ) ) v. ) No. 11-L-487 ) RIDGE AMBULANCE SERVICE, INC., ) and JERRY BROOKS, ) ) Defendants ) ) Honorable (Countryside Care Centre, Inc., Defendant- ) John G. Dalton, Appellee). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Jorgensen and Hudson concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Scott Stearns, as executor of the estate of Marjorie Stearns, deceased (Marjorie),
filed a multi-count complaint under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West
2010)) and the Survival Act (755 ILCS 5/27-6 (West 2010)) against Ridge Ambulance Service,
Inc. (Ridge), Jerry Brooks, and Countryside Care Centre, Inc. (Countryside). Marjorie, who
resided in a nursing home operated by Countryside, died as a result of injuries sustained while
Ridge transported her back to the nursing home following treatment at an offsite dialysis center.
Brooks, who was an employee of Ridge, was driving the medical transport vehicle (medi-van) in 2015 IL App (2d) 140908
which Marjorie’s injuries occurred. Countryside’s successful motion for summary judgment on
the claims against it gives rise to this appeal under Illinois Supreme Court Rule 304(a) (eff. Feb.
26, 2010). We reverse and remand.
¶2 The pleadings, along with depositions, affidavits, and exhibits submitted in support of
and in opposition to Countryside’s summary-judgment motion, establish the following facts. At
the time of the incident giving rise to this lawsuit, Marjorie was 89 years old and suffered from
dementia. Countryside’s records indicate that late in July 2009 Marjorie had been found in a
kneeling position wedged between the footrests of her wheelchair. A few weeks later, Marjorie
was found lying on the floor of her room. Her care plan called for the use of bed and chair
alarms.
¶3 Countryside arranged to have Ridge transport Marjorie to a dialysis facility on September
1, 2009, but did not convey any special instructions to Ridge about Marjorie’s risk of falling.
Brooks was assigned to drive Marjorie on her return trip to the nursing home. Brooks testified at
his deposition that he met Marjorie in a waiting area. She was seated in a wheelchair. Brooks
wheeled her to the medi-van, loaded her into it using a wheelchair lift, and secured the
wheelchair inside the medi-van using floor locks. Brooks then placed a safety belt around
Marjorie. According to Brooks, the safety belt was attached to the medi-van’s floor and ceiling
and ran diagonally from Marjorie’s shoulder to her hip. There was no lap belt to secure Marjorie
to the wheelchair.
¶4 Brooks testified that Marjorie had brought a book with her. During the ride back to the
nursing home, Brooks heard the book fall and Marjorie told him that it had fallen. Brooks told
Marjorie that he would take care of the book and that she should not worry about it. About two
minutes later, Brooks noticed that Marjorie appeared to be reaching for the book. Brooks said
-2- 2015 IL App (2d) 140908
something to the effect of “no, don’t do that, I’ll get it.” Seconds later Brooks saw Marjorie start
to stand up. At that point another vehicle merged in front of the medi-van, forcing Brooks to
brake abruptly. When Brooks did so, Marjorie fell forward and her head struck a metal object.
Marjorie died about two weeks later. Ridge’s medi-van supervisor, Derrick Johnson, testified at
his deposition that Ridge was then (i.e. at the time of the deposition) using a restraint system
with a belt that ran around the passenger’s torso and the back of the passenger’s wheelchair. The
buckle was located behind the wheelchair. Johnson believed that this restraint system was
available at the time of Marjorie’s accident.
¶5 The nursing home’s administrator, Kimberly Kohls, testified at her deposition that she
was responsible for all aspects of the facility’s operations, including the selection of vendors to
provide transportation services for residents. She testified that chair alarms are used with
patients who, for any of various reasons (including cognitive problems), might have difficulty
complying with instructions to request assistance before attempting to stand from a chair.
¶6 Laura Westergard, a registered nurse with 30 years’ experience in the field of long-term
care, executed an affidavit stating that she had reviewed various documents pertaining to
Marjorie and the accident that preceded her death. Westergard further stated as follows:
“Countryside *** undertook to furnish transportation for residents in connection
with outside medical care by selecting a transportation vendor. Based on [Marjorie’s] fall
history, fall risk, [cognitive impairments,] and need for safety interventions, the standard
of care required Countryside to take or ensure such precautions as would prevent her
from getting out of the wheelchair during medivan transport. This could have been
accomplished in several ways: Countryside could have sent someone in the medivan with
[Marjorie] for supervision; Countryside could have educated Ridge (the transportation
-3- 2015 IL App (2d) 140908
vendor) about the risks of [Marjorie] and arranged for Ridge to send in the medivan
additional personnel for supervision; Countryside could have ensured use in the medivan
of a seatbelt that would not allow [Marjorie] to disengage and stand up during transport.”
¶7 Summary judgment is proper where “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
2010). “The purpose of summary judgment is to determine whether a genuine issue of material
fact exists, not to try a question of fact.” Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011).
Furthermore, “[s]ummary judgment should be granted only when the right of the moving party is
clear and free from doubt.” Id. An order entering summary judgment is subject to de novo
review. Colburn v. Mario Tricoci Hair Salons & Day Spas, Inc., 2012 IL App (2d) 110624,
¶ 32.
¶8 The elements of a common-law cause of action for negligence are “the existence of a
duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury
proximately caused by that breach.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 430 (2006).
In granting Countryside’s motion for summary judgment, the trial court concluded that, as a
matter of law, Countryside owed no duty to protect Marjorie from the risk of injury resulting
from her failure to remain seated in her wheelchair while in transit from an offsite treatment
facility. Plaintiff argues that a nursing home has both a common-law and a statutory duty to
exercise care to avoid injury to residents and that that duty is not categorically limited to
guarding against injuries that occur on its premises. Plaintiff further contends that the trial court
“misapprehended the distinction between duty and standard of care and erroneously applied a
duty analysis to what is a standard of care issue.”
-4- 2015 IL App (2d) 140908
¶9 Illinois courts have long struggled with the concept of duty, which has been described as
“ ‘very involved, complex and indeed nebulous.’ ” Id. at 435 (quoting Mieher v. Brown, 54 Ill.
2d 539, 545 (1973)). Professor Dan B. Dobbs, a leading authority on tort law, has noted that
lawyers and judges sometimes “use duty to refer to a general standard or obligation” whereas at
other times they “use duty as a conclusion about whether the defendant’s particular act or
omission should be actionable, irrespective of any general standard.” 1 Dan B. Dobbs, The Law
of Torts § 226, at 577 (2001) (cited with approval in Marshall, 222 Ill. 2d at 436).
¶ 10 In Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶¶ 18-21, our supreme court
offered the following summary of the principles governing the determination of whether a duty
exists:
“As we have held in the past, ‘[t]he touchstone of this court’s duty analysis is to ask
whether a plaintiff and a defendant stood in such a relationship to one another that the
law imposed upon the defendant an obligation of reasonable conduct for the benefit of the
plaintiff.’ (Emphasis added.) [Citations.] The ‘relationship’ referred to in this context
acts as a shorthand description for the sum of four factors: (1) the reasonable
foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the
burden of guarding against the injury, and (4) the consequences of placing that burden on
the defendant. [Citations.] The determination of such a ‘relationship,’ as sufficient to
establish a duty of care, requires considerations of policy inherent in the consideration of
these four factors and the weight accorded each of these factors in any given analysis
depends on the circumstances of the case at hand. ***
Generally, individuals (and businesses) do not owe an affirmative duty to protect
or rescue a stranger. [Citation.] However, this court has long recognized that ‘every
-5- 2015 IL App (2d) 140908
person owes a duty of ordinary care to all others to guard against injuries which naturally
flow as a reasonably probable and foreseeable consequence of an act, and such a duty
does not depend upon contract, privity of interest or the proximity of relationship, but
extends to remote and unknown persons.’ [Citations.] Thus, if a course of action creates
a foreseeable risk of injury, the individual engaged in that course of action has a duty to
protect others from such injury. This does not establish a ‘duty to the world at large,’ but
rather this duty is limited by the considerations discussed above. ***
Even when one has not created the risk of harm, a duty to take affirmative action
to aid another may arise where a legally recognized ‘special relationship’ exists between
the parties. [Citation.] Such duties are, indeed, premised upon a relationship between the
parties that is independent of the specific situation which gave rise to the harm. We have
recognized four relationships that give rise to an affirmative duty to aid or protect another
against an unreasonable risk of physical harm: ‘common carrier and passenger, innkeeper
and guest, custodian and ward, and possessor of land who holds it open to the public and
member of the public who enters in response to the possessor’s invitation.’ ***
Thus, the duty analysis must begin with the threshold question of whether the
defendant, by his act or omission, contributed to a risk of harm to this particular plaintiff.
If so, we weigh the four factors to determine whether a duty ran from the defendant to the
plaintiff: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury,
(3) the magnitude of the burden of guarding against the injury, and (4) the consequences
of placing that burden on the defendant. If the answer to this threshold question is ‘no,’
however, we address whether there were any recognized ‘special relationships’ that
establish a duty running from the defendant to the plaintiff.” (Emphasis in original.)
-6- 2015 IL App (2d) 140908
¶ 11 These standards do not necessarily resolve the confusion noted by Professor Dobbs and
the Marshall court about whether “duty” encompasses rules of broad applicability or is, to the
contrary, a highly fact-specific inquiry into whether a particular act or omission is actionable in a
particular set of circumstances. In certain settings—motor-vehicle-accident cases, for example—
it is not unusual to encounter duty rules of broad applicability. For instance, in Mulloy v.
American Eagle Airlines, Inc., 358 Ill. App. 3d 706, 713 (2005), it was stated that “[t]he operator
of a motor vehicle has the duty to use ordinary care to avoid injuring a pedestrian.” The Mulloy
court did not attempt to tailor a duty rule to the specific circumstances of the case (although the
court upheld a directed verdict on the basis that there was insufficient evidence from which the
jury could conclude that the driver of the vehicle in question had breached the standard of
ordinary care). Id. at 715-16.
¶ 12 Lance v. Senior, 36 Ill. 2d 516 (1967), reflects a more fact-specific duty analysis. In
Lance, the plaintiff was a nine-year-old boy afflicted with hemophilia. In his complaint he
alleged that, while he was a guest in the defendants’ home, they “ ‘negligently and carelessly
permitted and allowed’ the plaintiff to play with a needle ‘which was caused to and did get into
the throat of the plaintiff and was thereafter sucked into the inner part of the plaintiff’s lung.’ ”
Id. at 517. The trial court dismissed the complaint on the basis that the duty owed by the
defendants was only to refrain from willfully or wantonly injuring the plaintiff. The Appellate
Court, First District, reversed, holding that ordinary negligence principles applied and that the
case presented a question of foreseeability for the jury to decide. Lance v. Senior, 66 Ill. App. 2d
41 (1966). Our supreme court reversed the appellate court, reasoning as follows:
“In many negligence cases no more than foreseeability is involved. And because so
many actions grounded upon negligence involve familiar patterns of conduct, it is easy to
-7- 2015 IL App (2d) 140908
forget that implicit in an allegation of negligence is the assertion of a failure to comply
with the standard of care that the law requires—the assertion of a duty and its breach.
[Citations.] In the present case, for example, implicit in the allegation that the defendants
‘negligently and carelessly permitted and allowed the plaintiff to play with a needle’, is
an assertion that the law imposed a duty upon the defendants to guard against the risk that
a nine-year-old boy who was a guest in their home, would swallow or otherwise ingest a
needle.
After the event, hindsight makes every occurrence forseeable [sic], but whether
the law imposes a duty does not depend upon forseeability [sic] alone. The likelihood of
injury, the magnitude of the burden of guarding against it and the consequences of
placing that burden upon the defendant, must also be taken into account. In the present
case the risk that a nine-year-old boy would swallow or otherwise ingest a needle is
minimal. The allegation that the defendants knew that the plaintiff was a hemophiliac
does not justify the imposition of this duty, for it suggests that the plaintiff, who was not
alleged to be mentally defective, would have been taught to guard against the special
hazards to which his condition made him particularly vulnerable. The burden sought to
be imposed upon the defendants is a heavy one, which would require intimate and
constant surveillance. The existence of such a legal obligation, if generally known,
would discourage persons in the position of the defendants from affording opportunities
for children like the plaintiff to mingle with others, and would tend to isolate those
children in their own homes. For these reasons, we hold that the complaint was properly
dismissed because it does not allege facts upon which a recovery may be had.” Lance, 36
Ill. 2d at 518-19.
-8- 2015 IL App (2d) 140908
¶ 13 In recent years, our supreme court has indicated (at times somewhat indirectly) that the
weight to be given to each of the four factors in the duty analysis (foreseeability of the injury,
likelihood of the injury, magnitude of the burden of guarding against the injury, and
consequences of placing the burden on the defendant) depends on the facts of a given case. See,
e.g., Bruns v. City of Centralia, 2014 IL 116998, ¶ 14; Simpkins, 2012 IL 110662, ¶ 18.
However, in Marshall, our supreme court recognized that purely ad hoc determinations that a
defendant has a duty to perform or refrain from performing particular acts improperly conflate
the concepts of duty and breach. Marshall, 222 Ill. 2d at 443. As the Marshall court observed,
“Courts could, after all, ‘state an infinite number of duties if they spoke in highly particular
terms,’ and while particularized statements of duty may be comprehensible, ‘they use the term
duty to state conclusions about the facts of particular cases, not as a general standard.’ ” Id.
(quoting 1 Dan B. Dobbs, The Law of Torts § 226, at 577 (2001)).
¶ 14 In Marshall, the plaintiff’s decedent was fatally injured when a motor vehicle crashed
through the wall of the Burger King restaurant where he was eating. The plaintiff sought
recovery both from the Burger King Corporation and from the franchisee that operated the
restaurant, alleging that they failed to design the structure to withstand the impact from a motor
vehicle or to place concrete pillars or poles outside the structure as protective barriers. The
defendants argued that they owed no duty to the decedent to protect him from the risk that an
out-of-control motor vehicle would crash into the restaurant and strike him. Our supreme court
held that “[b]ased on the allegations in plaintiff’s complaint, the duty of care that a business
invitor owes to invitees to protect them against the unreasonable risk of physical harm is clearly
applicable to this case.” Id. at 440. The Marshall court expressly declined to frame the duty in
more specific terms, i.e. as a duty to install concrete pillars or poles. Id. at 443 (“the issue in this
-9- 2015 IL App (2d) 140908
case is not whether defendants had a duty to install protective poles, or a duty to prevent a car
from entering the restaurant, or some such other fact-specific formulation”).
¶ 15 Here Countryside argues for a fact-specific formulation of duty. Countryside argues that
the first two factors in the traditional duty analysis—the foreseeability and likelihood of the
injury—militate against imposing a duty on Countryside. Countryside stresses that the record
shows that Ridge had transported Marjorie to and from the dialysis center, without incident, on
numerous occasions prior to September 1, 2009. Countryside further argues that the magnitude
of the burden of guarding against the injury and the consequences of placing that burden on
Countryside also militate against imposition of a duty. Countryside contends that, because
Marjorie was injured while returning from offsite dialysis treatment, it had no opportunity either
to instruct her driver (Brooks) about any special precautions for Marjorie’s safety or to inspect
the medi-van. Countryside argues that sending an aide along with Marjorie “would negate the
entire purpose of hiring a licensed transportation service with experience and expertise in
transporting medical patients and long-term care residents.” Moreover, according to
Countryside, imposing such a duty “would disrupt the feasibility and cost-effectiveness for
businesses utilizing the services of independent contractors providing transportation services, as
well as a host of other specialized services.” Countryside acknowledges only a duty to exercise
care in selecting a vendor to provide transportation services, seemingly renouncing the
possibility of liability on any other basis for harm befalling a resident while in transit.
¶ 16 The rule that would emerge from Countryside’s analysis is that, where a nursing-home
resident has been transported offsite in the past, without incident, by a properly vetted third-party
transportation service, the nursing home has no duty: (1) to inspect the vehicle in which the
resident will be returning to the nursing home; (2) to instruct the driver of that vehicle about any
- 10 - 2015 IL App (2d) 140908
precautions for the resident’s safety; or (3) to have a nursing-home employee accompany the
resident. However, as noted, duties are not to be formulated so narrowly. And indeed, even in
this context, this court has stated, in far broader terms, that “[t]he proprietors of a convalescent
home, somewhat like those of a private hospital, are under a duty to exercise reasonable care to
avoid injury to patrons, and the reasonableness of such care is to be assessed in the light of the
patron’s physical and mental condition.” Stogsdill v. Manor Convalescent Home, Inc., 35 Ill.
App. 3d 634, 662 (1976). We added that “a hospital is required ‘ [“]to conform to the legal
standard of reasonable conduct in the light of the apparent risk.[”] ’ ” Id. (quoting Darling v.
Charleston Community Memorial Hospital, 33 Ill. 2d 326, 331 (1965), quoting William L.
Prosser, The Law of Torts, at 331 (3d ed. 1964)).
¶ 17 Neither Stogsdill nor Darling explained whether the duty was predicated on the four
factors discussed in Lance, Marshall, and Simpkins (i.e. foreseeability of the injury, likelihood of
the injury, magnitude of the burden of guarding against the injury, and consequences of placing
the burden on the defendant) or on a special relationship between the parties. 1 In the case of a
nursing home, recognition of a duty would appear to be appropriate on either basis. There can be
no doubt that nursing-home residents are at a foreseeable risk of, and likely to sustain, any of a
variety of injuries if appropriate precautions are not taken. We note that the foreseeability factor
1 In Simpkins, 2012 IL 110662, ¶ 21, the supreme court indicated that these standards are
not alternative but rather depend on the answer to the “threshold question” of whether the
defendant contributed to the risk of harm to the plaintiff. Subsequently, however, in Doe-3 v.
McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶¶ 22-35, the court
seemed to treat the standards as alternative, without asking the “threshold question.” At least in
this context, we do likewise.
- 11 - 2015 IL App (2d) 140908
focuses on “ ‘the general character of the event or harm *** not its precise nature or manner of
occurrence.’ ” Marshall, 222 Ill. 2d at 442 (quoting Bigbee v. Pacific Telephone & Telegraph
Co., 665 P.2d 947, 952 (Cal. 1983)). Further, it would be incongruous to hold that guarding
against the general class of risks faced by nursing-home residents is too great a burden to impose
on nursing homes.
¶ 18 In any event, as noted, our supreme court has recognized four special relationships that
give rise to a duty of care. Simpkins, 2012 IL 110662, ¶ 20. Although, to our knowledge,
Illinois courts have not specifically identified the relationship between a nursing home and one
of its residents as a “special relationship,” it is possible that, in addition to the four that have been
recognized, there may be other special relationships that give rise to a duty. See Fancil v. Q.S.E.
Foods, Inc., 60 Ill. 2d 552, 559-60 (1975). Moreover, the relationship between a nursing home
and a resident can be viewed as a specific instance of the “custodian and ward” relationship. “A
special relationship exists where, inter alia, one voluntarily takes custody of another so as to
deprive the other of his normal opportunities for protection.” Platson v. NSM, America, Inc., 322
Ill. App. 3d 138, 146 (2001). The term “custody” is not used in a particularly technical sense.
For instance, in Platson, we held that allegations that a high school student worked for a business
under a work-study program sponsored by her school were sufficient to show a special
relationship giving rise to a duty on the business’s part to protect the student from sexually
predatory behavior by one of the business’s employees. A physically infirm and cognitively
impaired nursing-home resident depends upon the staff of the nursing home to prevent injury.
The relationship is sufficiently custodial to give rise to a duty.
¶ 19 The fact-specific analysis undertaken by Countryside conflates the issues of duty and
breach. See Marshall, 222 Ill. 2d at 443. Countryside owed Marjorie a duty of care. What
- 12 - 2015 IL App (2d) 140908
Countryside should or could have done to protect Marjorie bears on the question of whether
Countryside breached its duty. And on the record here, that is a question of fact. The factual
determination whether Countryside exercised due care is not amenable to artificial and arbitrary
rules that insulate Countryside from liability for anything other than negligence in selecting a
transportation service. Plaintiff does not seek to hold Countryside vicariously liable for the
negligence of the other defendants; he seeks the opportunity to show Countryside’s own
negligence in failing to properly communicate with those defendants or to provide additional
personnel to assist the other defendants in protecting Marjorie from harm while in transit.
Plaintiff is entitled to present these theories of negligence to a jury.
¶ 20 Countryside argues that summary judgment was appropriate for the alternative reason
that the record shows that plaintiff cannot establish the element of proximate cause. A party
seeking summary judgment bears an initial burden of production that can be met in either of two
ways: “(1) by affirmatively disproving the plaintiff’s case by introducing evidence that, if
uncontroverted, would entitle the movant to judgment as a matter of law (traditional test)
[citation], or (2) by establishing that the nonmovant lacks sufficient evidence to prove an
essential element of the cause of action (Celotex [Corp. v. Catrett, 477 U.S. 317 (1986),] test)
[citations].” Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688-89 (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 judgment under the applicable
law.” Id. at 689.
¶ 21 Countryside maintains that it is entirely speculative that any of the precautions that
plaintiff’s expert recommended would have prevented the accident. In this respect, Countryside
treats its summary-judgment motion as a Celotex-type motion. The introductory section of
- 13 - 2015 IL App (2d) 140908
Countryside’s memorandum of law in support of its motion for summary judgment contained the
cursory assertion that “[t]here is no evidence or testimony whatsoever in this case to show that
*** any action or inaction of Countryside or its staff proximately caused [Marjorie’s] injury.”
However, the remainder of Countryside’s memorandum of law focused on whether Countryside
owed Marjorie a duty of care. The bare assertion that plaintiff could not establish proximate
cause was insufficient to shift the burden to plaintiff to come forward with evidence of proximate
cause. Id. at 690.
¶ 22 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed
and the cause is remanded for further proceedings.
¶ 23 Reversed and remanded.
- 14 -