Stearns v. Ridge Ambulance Service, Inc. , 2015 IL App (2d) 140908 ( 2015 )

Illinois Official Reports
Appellate Court
Stearns v. Ridge Ambulance Service, Inc., 2015 IL App (2d) 140908
Appellate Court SCOTT STEARNS, as Executor of the Estate of Marjorie Stearns,
Caption Deceased, Plaintiff-Appellant, v. RIDGE AMBULANCE SERVICE,
INC., and JERRY BROOKS, Defendants (Countryside Care Centre,
Inc., Defendant-Appellee).
District & No. Second District
Docket No. 2-14-0908
Filed May 15, 2015
Decision Under Appeal from the Circuit Court of Kane County, No. 11-L-487; the
Review Hon. John G. Dalton, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Patrick M. Flaherty, of Kinnally, Flaherty, Krentz & Loran, P.C., of
Appeal Aurora, for appellant.
Joshua M. Rosenstein and Terrence S. Carden III, both of Myers
Carden & Sax LLC, of Chicago, for appellee.
Panel 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 multicount 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
off-site dialysis center. Brooks, who was an employee of Ridge, was driving the medical
transport vehicle (medi-van) in 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 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
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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 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 off-site
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.”
¶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
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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
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
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recognized ‘special relationships’ that establish a duty running from the defendant to
the plaintiff.” (Emphases in original.)
¶ 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 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
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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.
¶ 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 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 off-site 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
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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 off-site 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 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 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
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.
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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
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 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.
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