Griffin v. Fluellen ( 1996 )

SIXTH DIVISION September 20, 1996 No. 1-95-2391 JOYCE GRIFFIN, Indiv., and as ) APPEAL FROM THE Mother and Next Friend of Verna ) CIRCUIT COURT OF Griffin, a Minor, ) COOK COUNTY ) Plaintiff-Appellant, ) ) v. ) ) ETHEL FLUELLEN, ) HONORABLE ) JENNIFER DUNCAN-BRICE, Defendant-Appellee. ) JUDGE PRESIDING. JUSTICE McNAMARA delivered the opinion of the court: Plaintiff Joyce Griffin appeals from the order of the circuit court of Cook County granting defendant Ethel Fluellen's motion to dismiss plaintiff's action for damages against defendant pursuant to section 2-619 of the Code of Civil Procedure (Code)(735 ILCS 5/2-619 (West Supp. 1993)). The central issue on appeal is whether the circuit court has subject matter jurisdiction over plaintiff's claims. We affirm the circuit court's order of dismissal on the ground that the Illinois Court of Claims has exclusive subject matter jurisdiction over this case. The relevant facts are as follows. On March 8, 1994, plaintiff filed a complaint, seeking damages for the severe burn injuries sustained by her daughter, Verna Griffin, the minor plaintiff in this case, as the result of a fire at defendant's home on January 16, 1994. The complaint alleged in a single count that prior to the date of the fire, Verna had been placed in the legal custody of the Illinois Department of Children and Family Services (DCFS) and that thereafter DCFS placed her in the legal custody of Fluellen, a foster parent. As a result of their relationship, Fluellen allegedly had a duty to protect Verna, to provide her with food and shelter and to use a reasonable degree of care for her safety. The complaint further alleged that notwithstanding said duty, defendant was negligent in one of more of the following ways: (1) allowed other foster children in her care to gain access to the means to start a fire; (2) failed to take reasonably necessary steps to prevent foster children in her legal custody from starting a fire; and (3) failed to properly supervise her foster children when she knew, or should have known, that close supervision was necessary to prevent harm from befalling Verna. The complaint further alleged that as a direct and proximate cause of one or more of said acts, an unsupervised foster child set fire to the house, causing Verna to be severely burned. On April 7, 1994, the law firm of Querrey & Harrow filed an appearance and jury demand on defendant's behalf, while on April 15, 1994, the Attorney General of the State of Illinois also filed an appearance and jury demand on defendant's behalf. On April 19, 1994, the Attorney General filed a motion to dismiss the complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West Supp. 1993)) for lack of subject matter jurisdiction. In that motion, the Attorney General asserted that DCFS had licensed defendant as a foster parent "for the past twenty five years," that any duty she owed to Verna arose by virtue of her employment by the State as a foster parent only and that defendant was entitled to sovereign immunity such that this case could be maintained only in the Illinois Court of Claims. On April 26, 1994, plaintiff filed a request for production. This request sought the following: "(a) Any contract between the Defendant and the State of Illinois or any department or agency thereof; (b) Any letters, booklets, pamphlets or writings of any kind that set out, refer, or make reference in any way to the terms of employment of the Defendant with the State of Illinois, or any department or agency thereof; (c) The complete personnel file of the Defendant; (d) Any report, memo, note or other writing of any kind concerning Verna Griffin; (e) Any report, memo, note or other writing of any kind concerning the fire at Defendant's house on January 16, 1994." On May 12, 1994, defendant, by and through Querrey & Harrow, filed a combined motion to strike the complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West Supp. 1993)) for failure to state a cause of action and to dismiss the complaint pursuant to section 2-619 based on the assertion that the complaint was barred by the doctrine of parent-child tort immunity and that the Court of Claims has exclusive jurisdiction over this matter, since defendant was a state employee within the meaning of the State Employee Indemnification Act (5 ILCS 350/1 et seq. (West 1992)). On June 27, 1994, plaintiff filed a motion to compel wherein she requested the trial court to compel answers to her request for production to which defendant had not responded. On July 5, 1994, the trial court directed defendant to comply with the outstanding production request. Plaintiff alleges in her brief that a series of documents was produced, but that none of the documents reflect that defendant was a State employee at the time of the incident. Plaintiff further alleges that the most recent document produced was dated July 6, 1991, and that it indicated that questions were raised concerning defendant's ability to care for foster children. Plaintiff also alleges that, according to the records produced, the last year during which defendant had a valid license to care for foster children was 1989. Plaintiff finally alleges that no records were produced which concern Verna or the fire at defendant's home. Plaintiff filed a response to defendant's motion to dismiss, and defendant subsequently filed her reply. On December 6, 1994, the trial court entered an order dismissing plaintiff's complaint pursuant to section 2-619, finding that the Illinois Court of Claims had exclusive jurisdiction over this case. The order granted leave to plaintiff to file an amended complaint, which she did on January 3, 1995. The first amended complaint alleged, again in a single count, that for some time prior to January 16, 1994, defendant owned, operated and maintained a residence located at 13412 South Clifton Court in Robbins, Illinois. Verna was alleged to have been lawfully at that residence when the aforesaid fire started on the premises. The first amended complaint further alleged that at all material times, defendant had a duty to use reasonable care to maintain her premises in a reasonably safe condition for the persons on the premises and that notwithstanding that duty, she committed one or more of the following negligent acts: (1) failed to maintain a heating system that could provide an adequate amount of heat; (2) used an electric space heater as a primary heating source; and (3) failed to provide supervision for the children in the house, when she knew, or reasonably should have known, that such supervision was needed to keep the children reasonably safe. As a direct and proximate result thereof, a fire started in a space heater, igniting household furnishings and setting the house on fire, and Verna was injured. On February 10, 1995, defendant, through her private counsel, moved to dismiss plaintiff's first amended complaint pursuant to section 2-619. She attached her affidavit to the motion. In her affidavit, Fluellen averred that on January 16, 1994, she owned her home located at 13412 South Clifton Court in Robbins, that on said date she was a foster parent for DCFS, that she had been a foster parent for DCFS for many years prior to that date, that she was a foster parent of Verna Griffin, that she had custody of Verna and that she had been given custody of her for at least one year preceding the incident. Based upon this affidavit, Fluellen argued that the Illinois Court of Claims had exclusive jurisdiction over the case under the Court of Claims Act because as a foster parent she was acting as an agent of the State. She further argued that the doctrine of parent- child tort immunity required dismissal of plaintiff's complaint because defendant, in her capacity as Verna's foster parent, was exercising parental discretion in providing and maintaining housing for Verna at the time she was injured. Plaintiff filed a response to the motion to dismiss her first amended complaint. In her response, plaintiff argued that parent-child tort immunity is not available to defendant here because "[i]n the present circumstances, Ethel Fluellen is no longer acting as the foster parent of Verna Griffin." Plaintiff further argued that although defendant in her affidavit does not claim she was an agent of the State at the time of the occurrence, the motion to dismiss makes such a claim. Moreover, plaintiff asserted that no evidence has been offered which is sufficient to establish that defendant was a State employee. Defendant filed a reply in support of the motion, arguing that plaintiff seeks recovery for defendant's conduct in maintaining housing for Verna, a duty which falls within her obligations as foster parent and, as such, the parent-child tort immunity applies to her such that the first amended complaint should be dismissed; that plaintiff has provided no factual basis for her allegation that a foster parent-child relationship no longer existed between defendant and Verna and that noncustodial status of a parent is not an exception to parent-child tort immunity. Defendant also argued that the fact that the State appeared on her behalf is evidence of its position that DCFS placed Verna with defendant and that defendant had custody of her and was therefore a foster parent and State employee. Finally, defendant argued that the jurisdictional issue is a question of law, not of fact, as argued by plaintiff. It must therefore be decided by the court. After a hearing on June 5, 1995, the trial court entered an order granting Fluellen's motion to dismiss for lack of subject matter jurisdiction and dismissing the cause. It further ordered that the action be refiled in the Court of Claims, which has exclusive jurisdiction over the cause. We note that on January 19, 1996, pursuant to the court's order, plaintiff filed a protective claim in the Court of Claims (No. 96 CC 2369), naming Fluellen and DCFS as defendants. On appeal, plaintiff contends that the circuit court has proper jurisdiction over a premise liability action at the home of an alleged State employee. More specifically, she argues that there is insufficient evidence establishing that defendant was an agent of the State at the time of the occurrence. Alternatively, plaintiff argues that even if defendant was a State agent at the time of the incident, because defendant owed a duty to Verna independent of her official duties as Verna's foster parent, the circuit court would have proper jurisdiction over this cause. A trial court's decision to grant a motion to dismiss pursuant to section 2-619 is proper "if no set of facts may be proven by which the plaintiff can recover." Management Ass'n of Illinois, Inc. v. Board of Regents of Northern