Sellers v. Rudert , 395 Ill. App. 3d 1041 ( 2009 )

Filed 11/20/09 NO. 4-09-0115
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
CLINTON SELLERS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
KARL RUDERT, D.O., and BONUTTI ) No. 08L185
ORTHOPEDIC SERVICES, LTD., )
Defendants, )
and )
MARK BONNSTETTER, JENNIFER TYMKEW, ROC ) Honorable
BELLANTONI, MARK HUTSON, and BOB SPOO, ) Jeffrey B. Ford,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In August 2008, plaintiff, Clinton Sellers, filed a
negligence action against defendants Dr. Karl Rudert, Bonutti
Orthopedic Services, Ltd., Mark Bonnstetter, Jennifer Tymkew, Roc
Bellantoni, Mark Hutson, and Bob Spoo for his injuries sustained
during a September 2006 football game. Shortly thereafter,
plaintiff filed an amended complaint to correct a misspelling.
In September 2008, defendants Bonnstetter, Tymkew, Bellantoni,
Hutson, and Spoo (collectively referred to as the University
defendants) filed a combined motion to dismiss, asserting, inter
alia, the trial court lacked subject-matter jurisdiction based on
sovereign immunity. At a November 2008 hearing, the trial court
granted plaintiff leave to file a second-amended complaint,
dismissed the counts of the second-amended complaint against the
University defendants based on sovereign immunity, and denied
plaintiff leave to file a third-amended complaint. In December
2008, plaintiff filed a motion to reconsider the dismissal of the
counts and the denial of the motion for leave to file a third-
amended complaint, and the court later denied the motion.
Pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R.
304(a)), plaintiff appeals, contending (1) the trial court erred
in finding sovereign immunity because (a) plaintiff properly
alleged the University defendants exceeded the scope of their
authority and (b) the court failed to recognize a duty independ-
ent of state employment and (2) the court erred by denying
plaintiff leave to file a third-amended complaint. We affirm in
part, reverse in part, and remand with directions.
I. BACKGROUND
Plaintiff was a member of the Eastern Illinois Univer-
sity football team and suffered a severe neurologic injury while
playing in a football game on September 2, 2006. Prior to the
injury, plaintiff had experienced trauma to his body during
practice sessions that produced neurologic symptoms, including
stingers. University defendants Bonnstetter and Tymkew (the pair
hereinafter referred to as the Trainers) were athletic trainers
licensed by the State of Illinois and employees of the Eastern
Illinois University athletic department. University defendants
Bellantoni, Hutson, and Spoo (the trio hereinafter referred to as
the Coaches) coached the Eastern Illinois football team, which
played at the National Collegiate Athletic Association (NCAA)
Division I-AA level.
In August 2008, plaintiff filed a complaint, asserting
a professional-negligence count against the Trainers and a
negligence count against the Coaches. Plaintiff also raised a
professional-negligence count against the football team physi-
cian, Dr. Rudert, and Dr. Rudert's employer, Bonutti Orthopedic
Services, Ltd. However, that count is not part of this appeal.
Shortly after filing the complaint, plaintiff filed an amended
complaint to correct the name of one of the University defen-
dants.
In September 2008, the University defendants filed a
combined motion to dismiss the amended complaint under section 2-
619.1 of the Code of Civil Procedure (Procedure Code) (735 ILCS
5/2-619.1 (West 2008)), asserting the case should be dismissed
under (1) section 2-619(a)(1) of the Procedure Code (735 ILCS
5/2-619(a)(1) (West 2008)) because the trial court lacked
subject-matter jurisdiction based on sovereign immunity and (2)
section 2-615 of the Procedure Code (735 ILCS 5/2-615 (West
2008)) because (a) the contact-sports exception applied and (b)
the University defendants had no duty to warn plaintiff under the
circumstances. At the November 19, 2008, hearing, on the motion
to dismiss, plaintiff requested leave to file a second-amended
complaint, which the trial court granted. The court then pro-
ceeded to hear the motion to dismiss on the sovereign-immunity
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issue as to the second-amended complaint. After hearing the
parties' arguments, the court dismissed the cause as to the
University defendants due to lack of subject-matter jurisdiction.
The court stated plaintiff could bring his cause of action in the
Court of Claims but could not proceed any further in the circuit
court against the University defendants. Plaintiff then re-
quested leave to file a third-amended complaint against the
University defendants. The court denied plaintiff's request.
On December 11, 2008, plaintiff filed a motion for
reconsideration of (1) the dismissal of the counts in the second-
amended complaint against the University defendants and (2) the
denial of his request to file a third-amended complaint. The
next day, the trial court denied the motion in a written order.
On December 16, 2008, plaintiff filed a motion for the court to
make a finding under Rule 304(a). Two days later, plaintiff
filed a written motion for leave to file a third-amended com-
plaint and for the first time submitted a proposed third-amended
complaint. The court again denied plaintiff's request. On
January 22, 2009, the court entered an order, making a finding
under Rule 304(a) that no just cause exists to delay enforcement
or appeal of the final dismissal of the University defendants.
On February 18, 2009, plaintiff filed a notice of
appeal in compliance with Supreme Court Rules 303 and 304(a)
(Official Reports Advance Sheet No. 15 (July 16, 2008), R. 303,
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eff. May 30 2008 (corrected eff. June 4, 2008); 210 Ill. 2d R.
304(a)). The notice stated plaintiff was appealing the November
19, 2008, dismissal order and "the [o]rder denying [p]laintiff's
[m]otion to [r]econsider and for [l]eave to [f]ile [t]hird[-
a]mended [c]omplaint entered on December 15, 2008."
II. ANALYSIS
A. Sovereign Immunity
Section 2-619(a)(1) of the Procedure Code (735 ILCS
5/2-619(a)(1) (West 2008)) provides for dismissal of a cause of
action due to the trial court's lack of subject-matter jurisdic-
tion. Siakpere v. City of Chicago, 374 Ill. App. 3d 1079, 1081,
872 N.E.2d 495, 497 (2007). The University defendants asserted
the trial court lacked subject-matter jurisdiction over the
counts against them because the Court of Claims had exclusive
jurisdiction under the sovereign-immunity doctrine.
With a section 2-619 motion to dismiss, the movant
admits the legal sufficiency of the plaintiff's complaint but
raises an affirmative defense or other matter that avoids or
defeats the plaintiff's claim. DeLuna v. Burciaga, 223 Ill. 2d
49, 59, 857 N.E.2d 229, 236 (2006). "In ruling on such a motion,
the court must interpret all pleadings and supporting documents
in the light most favorable to the nonmoving party." Melena v.
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Anheuser-Busch, Inc., 219 Ill. 2d 135, 141, 847 N.E.2d 99, 103
(2006). A section 2-619 motion presents a question of law, and
thus our review of the trial court's ruling on the motion is de
novo. DeLuna, 223 Ill. 2d at 59, 857 N.E.2d at 236.
"The Illinois Constitution of 1970 abolished the
doctrine of sovereign immunity '[e]xcept as the General Assembly
may provide by law.'" PHL, Inc. v. Pullman Bank & Trust Co., 216
Ill. 2d 250, 259-60, 836 N.E.2d 351, 356 (2005), quoting Ill.
Const. 1970, art. XIII, §4. Exercising its constitutional
authority, the General Assembly reestablished the doctrine in the
State Lawsuit Immunity Act (Immunity Act) (745 ILCS 5/0.01
through 1.5 (West 2008)). PHL, 216 Ill. 2d at 260, 836 N.E.2d at
356. Section 1 of the Immunity Act (745 ILCS 5/1 (West Supp.
2007)) prohibits the State of Illinois from being a party to a
lawsuit except for the enumerated exceptions, one of which is the
Court of Claims Act (705 ILCS 505/1 through 29 (West 2008)). The
Court of Claims Act establishes the Court of Claims as the forum
for claims against the state and provides, inter alia, the
"'court shall have exclusive jurisdiction to hear and determine
*** [a]ll claims against the State for damages in cases sounding
in tort, if a like cause of action would lie against a private
person or corporation in a civil suit.'" Loman v. Freeman, 229
Ill. 2d 104, 112, 890 N.E.2d 446, 453 (2008), quoting 705 ILCS
505/8(d) (West 2004).
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The determination of whether an action is one against
the State does not depend "on the formal identification of the
parties but rather on the issues involved and the relief sought."
Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247
(1990). Thus, sovereign immunity cannot be avoided "'by making
an action nominally one against the servants or agents of the
State when the real claim is against the State of Illinois itself
and when the State of Illinois is the party vitally interested.'"
Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247, quoting Sass v.
Kramer, 72 Ill. 2d 485, 491, 381 N.E.2d 975, 977 (1978). We note
that for the first time in his reply brief plaintiff contends the
University defendants failed to show with their motion to dismiss
that they are state employees. Under Illinois Supreme Court Rule
341(h)(7) (210 Ill. 2d R. 341(h)(7)), an appellant forfeits
points not raised in the initial brief and cannot argue them for
the first time in the reply brief. Burlington Northern & Santa
Fe Ry. Co. v. ABC-NACO, 389 Ill. App. 3d 691, 717, 906 N.E.2d 83,
105 (2009). Thus, we find plaintiff has forfeited this argument.
Our supreme court has found an action is actually
against the State when the following are present:
"'(1) no allegations that an agent or em-
ployee of the State acted beyond the scope of
his authority through wrongful acts; (2) the
duty alleged to have been breached was not
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owed to the public generally independent of
the fact of State employment; and (3) where
the complained-of actions involve matters
ordinarily within that employee's normal and
official functions of the State.'" Healy,
133 Ill. 2d at 309, 549 N.E.2d at 1247, quot-
ing Robb v. Sutton, 147 Ill. App. 3d 710,
716, 498 N.E.2d 267, 272 (1986).
Additionally, if the three Robb criteria are not satisfied, "a
court must consider the relief sought--that is, whether '"a
judgment for the plaintiff could operate to control the actions
of the [s]tate or subject it to liability."'" (Emphasis omit-
ted.) Jackson v. Alverez, 358 Ill. App. 3d 555, 560, 831 N.E.2d
1159, 1164 (2005), quoting Jinkins v. Lee, 209 Ill. 2d 320, 330,
807 N.E.2d 411, 418 (2004), quoting Currie v. Lao, 148 Ill. 2d
151, 158, 592 N.E.2d 977, 980 (1992). Here, plaintiff appears to
argue the first and second Robb criteria were not satisfied.
1. Scope of Authority
Plaintiff asserts he properly alleged the University
defendants exceeded the scope of their authority.
Clearly, no state employee possesses the authority to
commit a tort. Jackson, 358 Ill. App. 3d at 561, 831 N.E.2d at
1164. Sovereign immunity as to tort actions would be eviscerated
if a simple reference to a tort could defeat the doctrine.
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Jackson, 358 Ill. App. 3d at 561, 831 N.E.2d at 1164. Since
sovereign immunity presumes the possibility a state employee
committed a legal wrong and "legal wrongs are, per se, unautho-
rized," the relevant question is not whether the employee had
authority to commit the alleged legal wrong. Jackson, 358 Ill.
App. 3d at 561, 831 N.E.2d at 1164. Rather, "the question is
whether the employee intended to perform some function within the
scope of his or her authority when committing the legal wrong."
Jackson, 358 Ill. App. 3d at 561, 831 N.E.2d at 1164.
As the University defendants note, an employee who
breaks workplace rules, performs his or her duties with willful
and wanton indifference, or even violates a statute does not
necessarily act outside the scope of his or her state employment.
Jackson, 358 Ill. App. 3d at 561, 831 N.E.2d at 1164; Welch v.
Illinois Supreme Court, 322 Ill. App. 3d 345, 352, 751 N.E.2d
1187, 1194 (2001). An employee's actions are considered within
the scope of employment where the alleged facts are consistent
with an intent to further the state's business. See Welch, 322
Ill. App. 3d at 354, 751 N.E.2d at 1195. This court has found
state employees did not exceed the scope of their authority where
the plaintiff did not allege specific facts demonstrating the
defendants harbored any personal animosity toward the plaintiff
or indicating they committed the alleged acts for reasons other
than what the defendants perceived to be in the best interests of
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the state agency. Nikelly v. Stubing, 204 Ill. App. 3d 870, 876,
562 N.E.2d 360, 364 (1990). In his reply brief, plaintiff does
not respond to the aforementioned authority.
a. Trainers
Plaintiff's second-amended complaint suggests the
Trainers' jobs were to practice injury prevention, emergency
care, and physical reconditioning on plaintiff and coordinate
their care of plaintiff with plaintiff's physician and coaches.
Plaintiff alleged the Trainers (1) advised plaintiff they were
communicating with Dr. Rudert with regard to plaintiff's neuro-
logical problems; (2) did not fully and accurately describe
and/or failed to describe plaintiff's neurological problems to
Dr. Rudert; and (3) failed to keep an accurate historical record
of the frequency, nature, and extent of plaintiff's neurological
problems. By acting in the aforesaid manner, the Trainers acted
independently of Dr. Rudert as they neither regularly coordinated
with him nor acted under his direction. Accordingly, plaintiff
contended the Trainers exceeded the scope of their authority
under their license. Plaintiff also contended the Trainers
exceeded their authority as NCAA trainers by (1) substituting
their judgment regarding the severity of plaintiff's injuries as
they did not consult with the appropriate team physician or refer
plaintiff to a physician for further evaluation and (2) encourag-
ing plaintiff to continue playing after experiencing stingers
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without assuring a physician had appropriately evaluated him.
Plaintiff argues the Trainers exceeded the scope of
their license as set forth in section 3 of the Illinois Athletic
Trainers Practice Act (Athletic Trainers Act) (225 ILCS 5/3 (West
2008)). As stated earlier, an employee's violation of a statute
does not necessarily mean the employee acted outside the scope of
his or her state employment. Welch, 322 Ill. App. 3d at 352, 751
N.E.2d at 1194. Here, the Trainers' state employment was as
athletic trainers for a university football team. The alleged
facts show the Trainers committed the alleged negligence while
coordinating and providing care to plaintiff in his capacity as a
student-athlete on the football team. Specifically, the alleged
facts in support of the outside-the-scope-of-authority assertion
argue negligence based on the Trainers' failure to perform the
functions set forth in section 3 of the Athletic Trainers Act
(225 ILCS 5/3 (West 2008)). Moreover, the alleged facts do not
suggest the Trainers' actions were inconsistent with an intent to
further the university's interests or the Trainers acted for
reasons other than what they perceived to be in the state univer-
sity football team's best interests.
Accordingly, we find plaintiff did not plead the
Trainers acted outside the scope of their authority, and thus the
first Robb criterion was met as to the Trainers.
b. Coaches
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Plaintiff's second-amended complaint contends the
Coaches' jobs were (1) to monitor, coach, and instruct plaintiff
during football practices and games and, (2) in coordination with
plaintiff's physician and athletic trainers, evaluate and assess
plaintiff's physical capacity to safely engage in the physical
activities required by football. Plaintiff alleged the Coaches
(1) advised plaintiff they were communicating with Dr. Rudert
with regard to plaintiff's neurological problems; (2) did not
fully and accurately describe plaintiff's neurological problems
to Dr. Rudert; and (3) failed to keep an accurate historical
record of the frequency, nature, and extent of plaintiff's
neurological problems. By acting in the aforesaid manner, the
Coaches acted independently of Dr. Rudert as they did not regu-
larly coordinate with him or act under his discretion with
respect to plaintiff's health and safety. Accordingly, plaintiff
contended the Coaches exceeded the scope of their authority as
coaches and as NCAA coaches. Additionally, like with the Train-
ers, plaintiff contended the Coaches exceeded their authority as
NCAA coaches by (1) substituting their judgment regarding the
severity of plaintiff's injuries as they did not consult with the
appropriate team physician or refer plaintiff to a physician for
further evaluation and (2) encouraging plaintiff to continue
playing after experiencing stingers without assuring a physician
had appropriately evaluated him.
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Plaintiff contends the Coaches exceeded the scope of
their authority under NCAA guidelines by assuming the role of
medical professionals. We note plaintiff does not allege the
State required the Coaches to comply with the policy and regula-
tions of the private association. Moreover, an employee's
violation of policies and/or regulations does not necessarily
mean the employee acted outside the scope of his or her state
employment. Welch, 322 Ill. App. 3d at 352, 751 N.E.2d at 1194.
Here, the Coaches' state employment was to coach a university
football team. The pleaded facts allege the Coaches committed
the alleged negligence while coaching plaintiff, a student-
athlete on the football team. The alleged facts do not suggest
the Coaches' actions were inconsistent with an intent to further
the university's interests or the Coaches acted for reasons other
than what they perceived to be in the state university football
team's best interests.
Accordingly, we find plaintiff failed to allege spe-
cific facts demonstrating the University defendants exceeded
their authority, and thus the first Robb criterion was met as to
the Coaches.
2. Source of Duty
Our supreme court has explained the analysis for the
second Robb criterion as follows:
"Where the charged act of negligence arose
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out of the State employee's breach of a duty
that is imposed on him solely by virtue of
his State employment, sovereign immunity will
bar maintenance of the action in circuit
court. [Citations.] Conversely, where the
employee is charged with breaching a duty
imposed on him independently of his State
employment, sovereign immunity will not at-
tach and a negligence claim may be maintained
against him in circuit court." (Emphasis
omitted.) Currie, 148 Ill. 2d at 159, 592
N.E.2d at 980.
Illinois courts have found a duty to be an independent one in
several different situations. First, an independent duty exists
when the duty is a professional duty owed by every member of that
profession. Grimes v. Saikley, 388 Ill. App. 3d 802, 814, 904
N.E.2d 183, 192 (2009). In the context of sovereign immunity,
our supreme court has recognized a professional duty of care was
owed by a physician (Jinkins, 209 Ill. 2d at 332, 807 N.E.2d at
419, citing Madden v. Kuehn, 56 Ill. App. 3d 997, 1001, 372
N.E.2d 1131, 1134 (1978)), a psychiatrist and a licensed clinical
professional counselor (Jinkins, 209 Ill. 2d at 334-36, 807
N.E.2d at 420-21), and a veterinarian (Loman, 229 Ill. 2d at 119,
890 N.E.2d at 457). Additionally, the First District has found
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an independent professional duty was owed by an attorney.
Johnson v. Halloran, 312 Ill. App. 3d 695, 700, 728 N.E.2d 490,
494 (2000). However, the Second District has found no profes-
sional duty existed requiring kitchen supervisors to keep kitchen
staff members safe. Brandon v. Bonell, 368 Ill. App. 3d 492,
508, 858 N.E.2d 465, 482 (2006).
Second, an independent duty exists when the duty arises
from the person's general status regardless of one's employment,
i.e., a person's status as a driver of a vehicle on a state
roadway imposes a duty to drive safely. Grimes, 388 Ill. App. 3d
at 814, 904 N.E.2d at 192. However, sovereign immunity will apply
when "'the conduct related to a state employee's independent duty
is unique to his state employment such that a suit challenging
this conduct could affect state policies or control its ac-
tions.'" Grimes, 388 Ill. App. 3d at 814, 904 N.E.2d at 192,
quoting Brandon, 368 Ill. App. 3d at 506, 858 N.E.2d at 481. For
example, an independent duty did not exist when a police officer
drove in a manner unique to police officers in response to an
emergency call that was part of the officer's normal and official
duties. Kawaguchi v. Gainer, 361 Ill. App. 3d 229, 249, 835
N.E.2d 435, 451 (2005).
Third, an independent duty exists where a statute
imposes specific requirements on all people regardless of their
employment. Grimes, 388 Ill. App. 3d at 814, 904 N.E.2d at 193.
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In Fritz v. Johnston, 209 Ill. 2d 302, 314, 807 N.E.2d 461, 469
(2004), the supreme court found the Illinois Criminal Code
imposed an independent duty not to make false accusations of
criminal conduct. However, the Fritz court recognized that,
where a statute proscribes the actions of state employees and
does not apply to the public as a whole, an independent duty does
not arise. Fritz, 209 Ill. 2d at 314, 807 N.E.2d at 469. This
court recently found such a situation with regard to a public
administrator whose duties arose under section 13-4 of the
Probate Act of 1975 (755 ILCS 5/13-4 (West 2006)) and were
imposed on him solely because he was a state employee or agent.
Grimes, 388 Ill. App. 3d at 815-16, 904 N.E.2d at 193; see also
Brandon, 368 Ill. App. 3d at 508, 858 N.E.2d at 482 (finding no
independent duty where the statute at issue imposed a duty solely
on the Department of Corrections).
Plaintiff appears to be asserting an independent
professional duty exists for both athletic trainers and coaches
as courts have found for doctors, lawyers, and veterinarians. In
asserting no independent duty exists, the University defendants
rely on the supreme court's decision in Healy, 133 Ill. 2d at
313, 549 N.E.2d at 1249, where it found the duty owed by the
university athletic directors, gymnastics coach, and team trainer
to a student on the university gymnastics team did not have a
source outside the defendants' employment status.
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In Healy, 133 Ill. 2d at 311-12, 549 N.E.2d at 1248-49,
the plaintiff argued the court should follow Madden, 56 Ill. App.
3d at 1001, 372 N.E.2d at 1134, where, as stated earlier, the
court held the duty breached in a negligence action against a
state-employed physician was the one every physician owed a
patient. The plaintiff contended Madden should be followed in
that matter because "the duty of care owed by the defendants was
no greater than, and no different from, the duty that would be
owed to participants in a privately run gymnastics program."
Healy, 133 Ill. 2d at 312, 549 N.E.2d at 1249.
The Healy court rejected the plaintiff's argument. It
noted that "[e]ssential to the court's holding in Madden was the
view that the duty of care owed by the physician arose independ-
ently of his status as an employee of the State; that conclusion
may be said to rest on the special nature of the doctor-patient
relationship." Healy, 133 Ill. 2d at 313, 549 N.E.2d at 1249.
The court found that conclusion could not be reached in the case
before it and noted the relationship between the plaintiff and
the defendants did not have a source outside the employment
status of the defendants. "Whatever duty was owed by the defen-
dants to the plaintiff existed because of the plaintiff's status
as a student and her participation in university-sponsored
activities." Healy, 133 Ill. 2d at 313, 549 N.E.2d at 1249.
Plaintiff contends Healy is inconsistent with the
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supreme court's recent decision in Loman, 229 Ill. 2d 104, 890
N.E.2d 446. We disagree with any suggestion Healy is no longer
good law after Loman. See Loman, 229 Ill. 2d at 112, 890 N.E.2d
at 453 (citing Healy in support of the statement the rules
governing the inquiry of whether a particular tort action is one
"'against the State'" are well established).
a. Trainers
As to the Trainers, we found that, while Healy is still
good law, the facts of this case are distinguishable from those
in Healy.
Here, plaintiff's complaint asserts the Trainers were
licensed athletic trainers and alleges the Trainers breached
duties imposed by their license. In describing the plaintiff's
complaint in Healy, the supreme court neither indicates the
university athletic trainer was licensed nor alleges the athletic
trainer breached a duty imposed by a license. See Healy, 133
Ill. 2d at 310-11, 549 N.E.2d at 1247-48. Moreover, we note the
athletic trainer in Healy could not have been licensed at the
time of the plaintiff's accident (October 23, 1985) under the
Athletic Trainers Act because that act did not become effective
until January 1, 1986. See Pub. Act 84-1080, §1, eff. January 1,
1986 (1985 Ill. Laws 7129, 7130). Accordingly, the complaint at
issue requires an analysis of whether the Athletic Trainers Act
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establishes an independent professional duty.
This court rendered the appellate decision in Loman.
See Loman v. Freeman, 375 Ill. App. 3d 445, 874 N.E.2d 542
(2006). While the veterinarian in Loman was not subject to a
licensing act, we still analyzed a duty arising from a licensing
statute. Loman, 375 Ill. App. 3d at 452-53, 874 N.E.2d at 548.
That analysis serves as a guide in this case.
In Loman, 375 Ill. App. 3d at 452, 874 N.E.2d at 548,
we noted the legislature's use of the term "malpractice" in the
Veterinary Medicine and Surgery Practice Act of 1994 (Veterinary
Practice Act) (see 225 ILCS 115/25(1)(F) (West 2000)) implied a
set of professional standards applicable to all veterinarians.
We explained as follows:
"'Malpractice' is '[a]n instance of negli-
gence or incompetence on the part of a pro-
fessional.' [Citation.] A 'professional' is
a member of 'a learned profession.' [Cita-
tion.] A learned profession implies the
existence of a body of learning relevant to
that profession as a whole--the 'standard of
care' ***." Loman, 375 Ill. App. 3d at 452-
53, 874 N.E.2d at 548.
Like the Veterinary Practice Act, the Athletic Trainers
Act provides the Department of Professional Regulations may take
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various forms of disciplinary action for, inter alia,
"[m]alpractice." 225 ILCS 5/16(F) (West 2008). Other sections
of the Athletic Trainers Act indicate athletic training is a
"learned profession." In section 1 of the act, the legislature
declares (1) athletic training "affects the public health,
welfare, and safety and its regulation and control [are] in the
public interest" and (2) "only qualified persons [are] permitted
to hold themselves out to the public as athletic trainers in the
State of Illinois." 225 ILCS 5/1 (West 2008). Moreover, section
9 of the Athletic Trainers Act (225 ILCS 5/9 (West 2008)) re-
quires a licensee to, inter alia, have graduated from both an
accredited curriculum in athletic training and a four-year
accredited college or university as well as passed an examination
determining one's fitness to practice as an athletic trainer
(unless an exception to the examination requirement applies).
Additionally, we note that, in defining "'[l]icensed
athletic trainer,'" the legislature's language again indicates a
standard of care. See 225 ILCS 5/3(4) (West 2008). Section 3(4)
of the Athletic Trainers Act (225 ILCS 5/3(4) (West 2008)) states
a licensed athletic trainer, under the direction of a physician,
"carries out the practice of prevention/emergency care or physi-
cal reconditioning of injuries incurred by athletes." The
section further contains a nonexclusive list of specific duties
of an athletic trainer, including the "[p]rovision of on-site
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injury care and evaluation as well as appropriate transportation,
follow-up treatment[,] and rehabilitation as necessary for all
injuries sustained by athletes in the program." 225 ILCS
5/3(4)(H) (West 2008). Last, the section permits those licensed
to practice athletic training to use modalities such as electric-
ity and "mechanical devices related to care and reconditioning."
225 ILCS 5/3(4) (West 2008).
Accordingly, we find the Athletic Trainers Act demon-
strates the existence of a standard of care for athletic train-
ers, and thus a duty of care independent of state employment
exists for athletic trainers. In his second-amended complaint,
plaintiff asserts the Trainers breached that independent duty of
care, and thus the trial court erred by dismissing the count
against the Trainers.
b. Coaches
Regarding the Coaches, plaintiff notes the NCAA is a
national organization that governs the conduct of its members,
including coaches. Plaintiff asserts the Coaches' independent
professional duty arose from the common law and the Restatement
(Second) of Torts. However, plaintiff provides neither citation
to authority nor analysis in support of his assertion in viola-
tion of Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)). Plaintiff's
bare contentions are insufficient for us to distinguish the
supreme court's decision in Healy where it specifically found
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coaches of a state university team did not have a professional
duty of care like a physician.
Thus, we conclude plaintiff has failed to show his
second-amended complaint sets forth an independent duty of care
for the Coaches. We note plaintiff has not challenged the
applicability of the third Robb criterion, and thus we find the
trial court properly found all three Robb criteria were satisfied
and sovereign immunity applies to the Coaches.
B. Third-Amended Complaint
Plaintiff also contends the trial court erred by
denying him leave to file a third-amended complaint.
Whether to allow a plaintiff to amend a complaint lies
within the trial court's sound discretion, and absent an abuse of
that discretion, this court will not overturn the trial court's
decision on review. Compton v. Country Mutual Insurance Co., 382
Ill. App. 3d 323, 331, 887 N.E.2d 878, 886 (2008). A reviewing
court will find an abuse of discretion only where no reasonable
person would take the view adopted by the trial court. Compton,
382 Ill. App. 3d at 331-32, 887 N.E.2d at 886-87.
Illinois law maintains a liberal policy of allowing
parties to amend their pleadings so parties may fully present
their alleged cause or causes of action. Grove v. Carle Founda-
tion Hospital, 364 Ill. App. 3d 412, 417, 846 N.E.2d 153, 157
(2006). However, plaintiffs do not have an absolute right to
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amend their complaint. Grove, 364 Ill. App. 3d at 417, 846
N.E.2d at 158. In determining whether an amendment to a com-
plaint should be allowed, a court generally considers the follow-
ing four factors:
"(1) whether the proposed amendment would
cure a defect in the pleading, (2) whether
the proposed amendment would surprise or
prejudice the opposing party, (3) whether the
proposed amendment was timely filed, and (4)
whether the moving party had previous oppor-
tunities to amend the complaint." Grove, 364
Ill. App. 3d at 417-18, 846 N.E.2d at 158.
Here, plaintiff made an oral motion for leave to file a
third-amended complaint, a motion to reconsider the denial of the
motion for leave, and then another written motion for leave to
file a third-amended complaint. A proposed written amendment was
not tendered until the written motion. However, we note plain-
tiff has not listed the order denying the written motion for
leave to file a third-amended complaint in his notice of appeal,
and thus that judgment is not before us. People v. Smith, 228
Ill. 2d 95, 104, 885 N.E.2d 1053, 1058 (2008) (stating a notice
of appeal confers jurisdiction on reviewing court to consider
only the judgments or parts thereof specified in the notice of
appeal). Accordingly, just the denial of the oral motion and the
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reconsideration motion are before this court. Thus, the trial
court did not have a proposed amendment before it when it ruled
on the request for leave to file a third-amended complaint.
A plaintiff's failure to tender a proposed complaint
significantly diminishes a court's ability to analyze the appro-
priate factors for determining whether leave should be granted as
the existence of a proposed amendment is implicit in the first
three factors. See Ignarski v. Norbut, 271 Ill. App. 3d 522,
532, 648 N.E.2d 285, 293 (1995). In fact, this court has held a
plaintiff's failure to tender the proposed amendment to the trial
court forfeits review of the trial court's decision. Illinois
Non-Profit Risk Management Ass'n v. Human Service Center of
Southern Metro-East, 378 Ill. App. 3d 713, 726, 884 N.E.2d 700,
712 (2008). Additionally, courts have found a presumption does
not exist that a proposed amendment will be a proper one and it
is not error to refuse to grant leave to amend where the party
has not provided a basis to determine whether the amendment will
be sufficient to state a cause of action. People ex rel. Scott
v. Cardet International, Inc., 24 Ill. App. 3d 740, 748, 321
N.E.2d 386, 393 (1974); Urfer v. Country Mutual Insurance Co., 60
Ill. App. 3d 469, 474, 376 N.E.2d 1073, 1077 (1978).
Assuming arguendo the third-amended complaint was
before the trial court when it ruled on the motions, reversal is
still not warranted as to the Coaches. The third-amended com-
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plaint does not cure the defects that we have already addressed
regarding those defendants. As stated earlier, an allegation of
willful and wanton conduct does not itself demonstrate the act
was outside the scope of state employment. Jackson, 358 Ill.
App. 3d at 561, 831 N.E.2d at 1164.
Thus, we conclude the trial court did not abuse its
discretion by denying plaintiff's motion for leave to file a
third-amended complaint.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
dismissal of the count against the Coaches, reverse the court's
dismissal of the count against the Trainers, and remand for
further proceedings consistent with this opinion.
Affirmed in part and reversed in part; cause remanded
with directions.
APPLETON and POPE, JJ., concur.
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