Phillips v. Dodds ( 2007 )

NO. 4-06-0561 Filed 2/20/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ALEXANDRA PHILLIPS, a Minor, by Her ) Appeal from
Mother and Next Friend, LORENA D. ) Circuit Court of
TRAVELL; and LORENA D. TRAVELL, ) Sangamon County
Individually, ) No. 05L149
Plaintiffs-Appellants, )
v. ) Honorable
SHAWN A. DODDS, ) Patrick W. Kelley,
Defendant-Appellee. ) Judge Presiding.
JUSTICE APPLETON delivered the opinion of the court:
Lorena D. Travell sued Shawn A. Dodds for the cost of
medical treatment for her niece, Alexandra Phillips, whom Dodds
allegedly injured in a traffic accident. Travell claimed that at
the time of the accident, she was in loco parentis to Phillips
and that section 15(a)(1) of the Rights of Married Persons Act
(750 ILCS 65/15(a)(1) (West 2004)), commonly called "the family
expense statute," obliged her to pay the medical bills. Dodds
moved for summary judgment on the ground that Travell was neither
the parent nor the legal guardian of Phillips. The trial court
granted the motion, and Travell appeals. We hold that if one
accepts a child into one's household and stands in loco parentis
to the child, the family expense statute obligates one to pay for
medical treatment the child receives during the relationship.
Therefore we reverse the summary judgment and remand this case
for further proceedings.
I. BACKGROUND
Dodds's attorney took the depositions of Phillips and
Travell. Phillips testified she was bicycling across an inter-
section in Springfield on August 9, 2004, when a truck struck
her, fracturing some discs in her spine. She was in the hospital
for two days. At the time of the deposition, she was 18 and
living with her boyfriend. But at the time of the accident, she
was 17 and living with Travell, her aunt, who (Phillips believed)
had obtained "legal custody" of her.
Travell testified that Phillips's mother was dead and
no one had come forward as the father. In 2003, Phillips was
living with a cousin in Dallas, and the cousin was preparing to
move to Germany. The cousin "gave [Travell] a paper," which they
signed and notarized, enabling Travell to bring Phillips to
Springfield. (This "paper" does not appear to be in the
record.) Travell thereby acquired what she considered to be
"legal custody" of Phillips, who lived with her for the next two
years, until they moved to Springfield.
Travell considered herself responsible for Phillips's
medical bills. She testified: "After the accident[,] all the
bills came to me[,] and then they said I was responsible ***.
*** [W]hen I got to the hospital[,] they had already processed
her admission paper, and they didn't ask me anything, and then
the bills started coming." The medical bills in the record are
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addressed to Travell. She had not paid any of them yet. She
had bought pain medication, however, because Phillips "had to
have that."
II. ANALYSIS
A. The Purpose of the Family Expense Statute
The family expense statute provides as follows: "The
expenses of the family and of the education of the children shall
be chargeable upon the property of both husband and wife, or of
either of them, in favor of creditors therefor, and in relation
thereto[,] they may be sued jointly or separately." 750 ILCS
65/15(a)(1) (West 2004).
When construing a statute, we may consider "the reason
and necessity for the statute and the evils [the legislature]
intended to remedy." Roth v. Illinois Insurance Guaranty Fund,
366 Ill. App. 3d 787, 794, 852 N.E.2d 289, 294 (2006). The
legislature passed the family expense statute as a section in the
Husband and Wife Act of 1874 (Ill. Rev. Stat. 1874, ch. 68, par.
15) (Lyman v. Harbaugh, 117 Ill. App. 3d 732, 733, 453 N.E.2d
906, 907 (1983)), copying a similar statute in Iowa (Iowa Code
§2214 (1873), now Iowa Code §597.14 (2006)) (Louis Berman & Co.
v. Dahlberg, 336 Ill. App. 233, 236, 83 N.E.2d 380, 382 (1948)).
At common law, the wife could bind the husband for "necessaries"
only if he gave her express authority to do so or only if the law
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implied such authority from the husband's "neglect to furnish
articles suitable to her station in life, which said articles
were considered and treated in law as necessaries." Arnold v.
Keil, 81 Ill. App. 237, 242 (1898). This rule hindered commerce
and the extension of credit. In the 1870s, most married women
had no source of income other than their husbands. Therefore,
selling goods to a married woman on credit could be risky. The
merchant had to ask himself two questions: (1) does this woman
have authority from her husband to make the purchase, and (2) is
the item that she proposes to buy a "necessary"? The family
expense statute eliminated the first question altogether and
changed the second question into "whether the expenditure was
incurred for, on account of, and to be used in the family."
Louis Berman & Co., 336 Ill. App. at 236, 83 N.E.2d at 382.
Family expenses, so defined, were a broader category than "neces-
saries."
As the Supreme Court of Iowa explained, this change in
the law helped the wife, husband, and creditor:
"The statute was enacted for the benefit of
the husband or wife, and person from whom the
things constituting the family expenses were
obtained, to the end that credit could be
obtained and extended for something essen-
tial, necessary, or convenient, or so deemed
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by the husband or wife, to be used in or by
the family." Davis v. Ritchey, 55 Iowa 719,
721, 8 N.W. 669, 670 (1881).
By interpreting the family expense statute to apply to
persons who, under the common law, stand in loco parentis, we
would remove an obstacle to commerce and lessen the financial
risk of providing medical care to the child, thereby benefitting
the child, the creditor, and the persons in loco parentis (who,
presumably, intend to provide for the child). Such an interpre-
tation would tend to effectuate the legislative intent of making
adults liable for family expenses if they hold themselves and the
child out as one family. See Chicago Manual Training School
Ass'n v. Scott, 159 Ill. App. 350, 355 (1911).
B. The Legislature's Presumed Awareness of the
Concept of "in Loco Parentis"
"'Where statutes are enacted after judicial opinions
are published, it must be presumed that the legislature acted
with knowledge of the prevailing case law.'" Cargill v.
Czelatdko, 353 Ill. App. 3d 654, 658, 818 N.E.2d 898, 903 (2004),
quoting People v. Hickman, 163 Ill. 2d 250, 262, 644 N.E.2d 1147,
1153 (1994). We presume that when the legislature passed the
family expense statute, it was aware of Mowbry v. Mowbry, 64 Ill.
383 (1872), decided only two years earlier, and Brush v.
Blanchard, 18 Ill. 46 (1856). In those two cases, the supreme
court recognized that one could admit a child into one's family,
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treat the child as a member of the family, and voluntarily assume
the relation of parent to that child. Mowbry, 64 Ill. at 387;
Brush, 18 Ill. at 47. By choosing to be in loco parentis to a
child, one "[stood] in the place of natural parent, and the
reciprocal rights, obligations[,] and duties of parent and child
attach and continue[] so long as this mutually assumed relation
continues." Brush, 18 Ill. at 47; see also Faber v. Industrial
Comm'n, 352 Ill. 115, 120, 185 N.E. 255, 257 (1933) (same).
Thus, when using the phrase "[t]he expenses of the family" in
1874, the legislature must have known that, under prevailing
decisions of the supreme court, one could create a family--with
"reciprocal rights, obligations[,] and duties"--by standing in
loco parentis to a child.
C. The Applicability of the Family Expense Statute
Outside the Marital Relationship
By its terms, the family expense statute makes a
"husband and wife" jointly and severally liable for family
expenses. 750 ILCS 65/15(a)(1) (West 2004). The record appears
to contain no evidence that Travell is married. Courts, however,
interpret the family expense statute as requiring parents to pay
their children's medical and educational expenses regardless of
whether the parents are married. Mercy Center for Health Care
Services v. Lemke, 199 Ill. App. 3d 958, 963-64, 557 N.E.2d 943,
946 (1990); Proctor Hospital v. Taylor, 279 Ill. App. 3d 624,
625, 665 N.E.2d 872, 874 (1996); In re Marriage of Bennett, 306
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Ill. App. 3d 246, 248, 713 N.E.2d 1278, 1280 (1999). Thus, being
unmarried would not remove Travell from the purview of the family
expense statute.
D. Travell's Status as a Person in Loco Parentis
Dodds disputes that Travell was in loco parentis to
Phillips. According to Dodds, Travell has produced no evidence
that she "[took] on the obligations of a parent" or "assumed the
financial burdens arising out of the relationship of a parent and
child." We note that in his motion for summary judgment, Dodds
never disputed Travell's status as a person in loco parentis; he
merely argued that because Travell was a nonparent who lacked
legal custody, Travell could not recover the expenses of
Phillips's medical treatment. In any event, looking at the
evidence in a light most favorable to Travell and drawing all
reasonable inferences in her favor, we find a genuine issue of
fact as to whether Travell stood in loco parentis to Phillips.
See Moore v. Kickapoo Fire Protection District, 210 Ill. App. 3d
736, 738, 569 N.E.2d 214, 215 (1991). The significance of the
notarized "paper" from Phillips's cousin depends not on its legal
efficacy but on what it reveals about Travell's intent. Regard-
less of whether the document was legally valid, Travell testified
that she accepted the document in the belief that it was legally
valid and with the intent of assuming custody of Phillips. In
Phillips's mind, Travell was her legal custodian. Travell is not
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like the grandmother in Busillo v. Hetzel, 58 Ill. App. 3d 682,
684, 374 N.E.2d 1090, 1091 (1978), who "had custody for only a
few days during the daylight hours." Phillips lived with Travell
for two years, and we infer that Travell supported her during
those two years, since supporting a child usually goes with
having custody. Most tellingly, Travell considers herself liable
for the expense of Phillips's medical treatment.
E. The Duty of a Person in Loco Parentis To Furnish
Medical Care for the Child
The family expense statute makes parents liable for the
medical expenses of their minor children. Graul v. Adrian, 32
Ill. 2d 345, 347, 205 N.E.2d 444, 446 (1965). The common law in
turn gives the parents a cause of action against the tortfeasor
who, by injuring the child, caused the parents to incur the
medical expenses. Worley v. Barger, 347 Ill. App. 3d 492, 495,
807 N.E.2d 1222, 1225 (2004), appeal denied, 211 Ill. 2d 618, 823
N.E.2d 980 (2004). Section 703(b) of the Restatement (Second) of
Torts provides as follows:
"'One who by reason of his tortious conduct
is liable to a minor child for illness or
other bodily harm is subject to liability to
***
(b) the parent who is under a legal duty
to furnish medical treatment for any expenses
reasonably incurred or likely to be incurred
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for the treatment during the child's minor-
ity.'" Worley, 347 Ill. App. 3d at 496, 807
N.E.2d at 1226, quoting Restatement (Second)
of Torts §703(b), at 510 (1977).
Dodds is liable to Travell only if Travell had a duty
to provide medical care to Phillips. "Custodial parents have an
affirmative duty to protect and provide for their minor children"
(People v. Peters, 224 Ill. App. 3d 180, 190, 586 N.E.2d 469, 476
(1991)), and when one "stands in the place of natural parent" (in
loco parentis), "the reciprocal rights, obligations[,] and duties
of parent and child attach and continue[] so long as this mutu-
ally assumed relation continues" (Brush, 18 Ill. at 47; see also
Faber, 352 Ill. at 120, 185 N.E. at 257). From this unqualified
statement in Brush and Faber, we conclude that as long as the
mutually assumed relationship continues, a person in loco paren-
tis has the same duty to provide medical care for the child as
the child's natural parents would have. The relationship is
reciprocal: the child has a duty to render the services that a
child would normally render to a parent, such as by helping out
around the farm (Brush, 18 Ill. at 47), and the person in loco
parentis has a duty to provide for the child as if the child were
his or her own (Mowbry, 64 Ill. at 387).
In Scott, 159 Ill. App. at 351, for instance, the
defendant had a stepson, Edward, who for some four years had
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lived in his household. Edward's mother, Vivian, sent him to a
vocational school at his natural father's expense, but when the
father died, the tuition went unpaid, and the school sued the
defendant for the arrears. Scott, 159 Ill. App. at 351-52. The
defendant denied he was liable. See Brush, 18 Ill. at 47 ("The
husband is not, from the fact of marriage with the mother of
minor children, bound to support them"). The appellate court
held that "if a man took the children of his wife by a former
marriage into his family, he did then stand in loco parentis as
to them[] and was bound by his wife's contracts made for their
maintenance and education." (Emphasis in original.) Scott, 159
Ill. App. at 354. The defendant could have refused to take
Edward into his family (see Brush, 18 Ill. at 47); or, after
taking Edward into his family, the defendant could have termi-
nated the relationship between himself and Edward by announcing
that from henceforth, he would support Edward no longer (see
Brush, 18 Ill. at 47 (the obligation exists "so long as this
mutually assumed relation continues")). But the defendant could
not retroactively terminate the relationship by repudiating an
expense incurred while the relationship was still in effect--that
is, while the defendant was still holding out Edward, Vivian, and
himself as one family. Scott, 159 Ill. at 355.
In the present case (looking at the evidence in a light
most favorable to Travell and resolving all reasonable inferences
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in her favor), the hospital rendered services to Phillips at a
time when Travell was holding herself and Phillips out as a
family. Travell could have refused to take Phillips into her
household in the first place, or she could have decided, at some
point, that she no longer wished to stand in loco parentis to
Phillips. Travell could not retroactively terminate the rela-
tionship, however, to evade liability for medical expenses
already incurred. Having voluntarily assumed the role of parent,
Travell had "a legal duty to furnish medical treatment" for
Phillips, and she had a corresponding cause of action against
Dodds for the cost of the treatment. See Restatement (Second) of
Torts §703(b), at 510 (1977). Travell could not enjoy the
benefits of parenthood without shouldering the expense.
III. CONCLUSION
For the foregoing reasons, we reverse the trial court's
judgment and remand this case for further proceedings.
Reversed and remanded.
KNECHT, J., concurs.
TURNER, J., specially concurs.
JUSTICE TURNER, specially concurring:
Although I concur with the conclusion reached by the
majority, I write separately because the majority opinion appears
to conclude Travell did stand in loco parentis to Phillips.
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However, this case comes to us at the summary-judgment stage, and
as our supreme court recently pronounced, "[t]he purpose of
summary judgment is not to try a question of fact, but rather to
determine whether a genuine question of material fact exists"
(Bagent v. Blessing Care Corp., No. 102430, slip op. at 6 (Janu-
ary 19, 2007). Thus, our analysis in section D should have ended
when we found "a genuine issue of fact as to whether Travell
stood in loco parentis to Phillips." Slip op. at 7.
Also, the majority opinion need not cite and should not
have cited the Scott case, a 1911 appellate court opinion. See
slip op. at 5, 9. First, appellate court decisions issued before
1935 are not binding authority. Bryson v. News America Publica-
tions, Inc., 174 Ill. 2d 77, 95, 672 N.E.2d 1207, 1217 (1996);
see also Young v. Bryco Arms, 213 Ill. 2d 433, 451-52, 821 N.E.2d
1078, 1089 (2004). Second, due to its age, the case has limited
applicability today given the development of family law since it
was rendered and the current complexity of family law. Last,
regardless of age, the Scott court's general statements regarding
a stepfather's obligation to support a stepchild lend little to
our analysis of the facts before us.
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