Brandon v. Bonell ( 2006 )

No. 2--05--0802 filed:
10/23/06
_____________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_____________________________________________________________________
BRIAN A. BRANDON and ) Appeal from the Circuit Court
JEFFREY MILLER, ) of Lee County.
)
Plaintiffs-Appellants, )
)
v. ) No. 99--L--42
)
PAUL BONELL, JAN FREIL, and )
MARVIN WILLIAMS, ) Honorable
) David T. Fritts,
Defendants-Appellees. ) Judge, Presiding.
_____________________________________________________________________
For
the reasons that follow, we affirm.
I. BACKGROUND
On December 31, 1996, plaintiffs were inmates at the Dixon Correctional Center
(Dixon) and were assigned to work in the Dixon kitchen. Defendants, Paul Bonell, Jan
Freil, and Marvin Williams, are employees of the Illinois Department of Corrections,
assigned to manage the Dixon kitchen. On December 31, 1996, Bonell was the dietary
manager of the kitchen, Williams was a supervisor of kitchen operations, and Freil
supervised inmate workers. On December 10, 1999, plaintiffs filed a complaint in circuit
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court, alleging that defendants had breached their duty to plaintiffs, pursuant to section 3--
7--3 of the Unified Code of Corrections (730 ILCS 5/3--7--3(a) (West 1996)), to maintain
the kitchen facilities and provide plaintiffs with a reasonably safe workplace. Plaintiffs
alleged that as a result of this breach, plaintiffs were injured on December 31, 1996. In
their complaint, plaintiffs alleged the following facts.
On December 31, 1996, Freil, Williams, and plaintiffs were working together in the
Dixon kitchen. Prior to that date, Bonell had instructed Freil and Williams to have the
inmates dispose of hot grease in the kitchen as soon as possible. Accordingly, on the date
in question, Williams and Freil instructed plaintiffs to remove a heavy, 15- to 20-gallon vat
of hot grease from the kitchen and dump it in an area outside. At the time, the grease in
the vat was extremely hot, approximately 350 degrees. In order to dispose of the grease,
plaintiffs placed the vat on a cart and pulled it outside onto a dock. Approximately 24 feet
from the dock, there was a hose that had been running water onto the ground for some
time and had caused ice to form. As plaintiffs carried the hot grease from the dock to the
area where they were to dump it, Brandon slipped on the ice, and the hot grease spilled
on plaintiffs. As a result, Brandon sustained burns and serious injuries, and Miller
sustained burns on his hand.
On March 29, 2000, defendants filed a motion to dismiss plaintiffs' complaint,
pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615
(West 2000)). Defendants argued that plaintiffs' complaint failed to state a cause of action
upon which relief could be granted, because the claims against defendants were barred
by the principles of absolute immunity, sovereign immunity, and public officials' immunity.
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Defendants argued, in part, that because they were acting in the scope of their state
employment, in a sphere that was under their exclusive control, the Court of Claims had
exclusive jurisdiction over plaintiffs' claims. On August 11, 2000, after hearing argument
from both parties, Judge Tomas M. Magdich, the trial judge assigned to the case, denied
defendants' motion to dismiss. On October 13, 2000, defendants filed their answer to
plaintiffs' complaint, and they .
On October 18, 2002, defendants filed a motion for summary judgment pursuant to
sections 2--1005(b) and (c) of the Code (735 ILCS 5/2--1005(b), (c) (West 2000)). In their
motion, defendants again argued that because defendants were being sued within the
scope of their state employment in a prison kitchen, they were protected by the principles
of sovereign and absolute immunity. Defendants further asserted that because the suit
was against State employees, the Court of Claims had exclusive jurisdiction and the circuit
court lacked subject matter jurisdiction.
Attached to defendants' motion for summary judgment were excerpts from
defendants' depositions.
In his deposition, Freil testified that on December 31, 1996, he and Williams were
supervising the kitchen. Freil explained that after the fish were cooked that day, he told
plaintiffs to empty the grease from the fryers into vats and to take the vats to the back door.
Freil agreed that there
was no written procedure for disposing of the grease, but stated that the normal procedure
was to let the grease cool in the vat by the door and to check if the vat was hot before
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emptying it. However, Freil stated, it was understood that the vats were to be emptied by
the end of the shift.
Bonell also briefly discussed in his deposition the events of December 31, 1996.
Bonell stated that he was the food manager of the Dixon kitchen and that he delegated to
his staff the authority to oversee the inmates who worked in the kitchen. Bonell testified
that on December 31, 1996, he had requested that the maintenance staff clean off the
dock behind the kitchen. Bonell said that although maintenance personnel usually made
rounds of the facility, he made a special request that the dock be cleaned off because of
the weather; however, he did not say what the weather was like that day. In addition to
discussing the events of December 31, 1996, Bonell specifically explained the kitchen
policy on grease removal. The policy was to leave the grease to cool for two to three
hours before taking it out. However, Bonell agreed that there were security concerns that
encouraged the kitchen staff to remove the grease quickly. Bonell stated that inmates
would steal the grease for bartering or use it to cook in their cells and that there was a
danger the hot grease could be used to injure staff members.
In their depositions, defendants were asked to identify the differences between
working in a correctional facility kitchen and working in a restaurant kitchen. Freil testified
that there were many differences, because everything in the correctional facility kitchen
had to be locked up and secured to prevent trading and trafficking. Freil noted that in a
professional kitchen "on the street," the deep fryer grease is not changed after every use
like in the correctional facility kitchen, because in a correctional facility there is a danger
that inmates will steal the grease and barter with it or use it to harm staff members. In their
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depositions, Williams and Bonell also acknowledged the security concerns associated with
working in a prison kitchen. Bonell said that because of theft and safety concerns in a
correctional facility, grease could not be stored outside, as in a restaurant kitchen.
However, Bonell also acknowledged that nothing about the correctional facility setting
prevented kitchen workers from allowing the grease to cool before it was removed.
On November 22, 2002, plaintiffs filed their response to defendants' motion for
summary judgment. In their response, plaintiffs argued that because the duty defendants
breached was not unique to their state employment, defendants were not entitled to the
protections of sovereign immunity, and the Court of Claims does not have exclusive
. Attached to
defendants' motion was the deposition of Ralph McKenzie.
In his deposition, McKenzie testified that he was an inmate at Dixon from about
1995 to 1998, and that he was working in the kitchen at Dixon on December 31, 1996. On
that day, McKenzie was working as a cook on the second shift, which ran from 11 a.m. to
7 p.m. McKenzie said that Brandon was also working the second shift and was assigned
to work in the kitchen. McKenzie was a cook on the serving line in the front of the kitchen
and was not in any way involved with cleaning the fryers. McKenzie said that while he was
on the serving line, he heard one of the kitchen supervisors shout to Brandon and one or
two other inmates in the kitchen to go dump the grease from the fryers. McKenzie noted
that there was a rush to get everything cleaned that night, because it was almost the end
of the shift. McKenzie testified he did not see the grease vat taken out or emptied, but he
later heard the vat fall and heard two men holler. He and others then ran to the back of
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the kitchen and he saw that Brandon and another man had spilled the grease on the steps.
McKenzie saw that the grease had soaked through Brandon's coat, and he saw hot vapors
rising from the grease on Brandon's body. McKenzie also observed that Brandon had
been carrying hot pads to move the vat. McKenzie said that he knew there was someone
else hurt with Brandon, but McKenzie did not see him or know how badly he was hurt.
McKenzie described the scene of the accident. He said that outside of the kitchen
door there was a dock area that extended approximately six feet to about six or seven
steps. McKenzie said the grease spill was at the bottom of the steps. At the bottom of the
steps, the ground leveled off. A large grease bin and a Dumpster were located in the back
of this area. McKenzie explained that the temperature had dropped that day, between 5
p.m. and 7 p.m., but he saw no snow at the scene of the accident. McKenzie said that
although he could not see ice on the stairs, he knew it was there, because the painted
concrete got very slippery even if there was just water on it.
McKenzie stated that the kitchen staff used the dock to clean and sanitize the meal
carts they used in the kitchen. A 50-foot fire hose was used for cleaning the carts and the
dock. The fire hose was connected inside the kitchen and ran through a hole out to the
dock. According to McKenzie, the fire hose frequently leaked and had to be fixed on
multiple occasions. McKenzie described the leak as a constant stream that was more than
a drip. Because of the leak in the hose, ice had formed in the dock area on prior
occasions and, therefore, salt was kept on the dock and put on the steps.
On December 31, 1996, McKenzie said, the hose was wound up on the dock, and
he noticed that the hose was leaking, causing the dock to get wet.
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McKenzie surmised that the steps
were slippery because the hose had leaked, leaving water at the bottom of the dock area,
which then got tracked onto the stairs and froze when the temperature dropped. However,
McKenzie did not see Brandon's accident and could not say what caused Brandon's fall.
McKenzie did not notice salt around the area and did not see anyone out sprinkling salt
in the area on that particular day.
On September 24, 2003, Judge Magdich issued a memorandum decision denying
defendants' motion for summary judgment. In his decision, Judge Magdich reasoned that
because defendants were not correctional officers, responsible for inmate custody and
discipline, defendants' duty as kitchen managers was the same duty owed by any kitchen
manager in the State of Illinois. Judge Magdich concluded that this duty arose
independently of defendants' state employment and that, therefore, defendants' actions
were not protected by sovereign immunity. Judge Magdich also rejected defendants'
argument that absolute immunity barred plaintiffs' claims.
The record indicates that on December 3, 2003, Judge Magdich assigned this case
to Judge David Fritts. However, Judge John Payne entered the next orders in the case.
On November 22, 2004, Judge Payne set the case for jury trial on March 28, 2005. On
February 2, 2005, defendants filed their first through fourteenth motions in limine. In their
first motion in limine, they asked the court to bar all claims against defendants, based upon
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the doctrines of sovereign immunity and public officials' immunity. Defendants again
argued that the court lacked subject matter jurisdiction because the conduct at issue
occurred as a result of defendants acting in the scope of their employment and that a
prison kitchen is uniquely different from any other kitchen. Defendants did not raise the
defense of absolute immunity in their first motion in limine, as they had earlier in their
motion to dismiss and their motion for summary judgment. Defendants attached to their
motions in limine the excerpts from their depositions that they had attached to their motion
for summary judgment. In their second motion in limine, defendants sought to bar
evidence, argument, or intimation that defendants violated any Dixon policies, arguing that
pursuant to the doctrine of sovereign immunity, the circuit court lacked subject matter
jurisdiction to hear claims against state employees based upon violations of a state law or
policy.
On February 17, 2005, defendants filed their seventeenth motion in limine, asking
the trial court to bar evidence of any duty defendants owed plaintiffs pursuant to section
3--7--3 of the Unified Code of Corrections (730 ILCS 5/3--7--3 (West 1996)). Section 3--7-
-3 requires standards of safety to be established and enforced by the Department of
Corrections and requires all buildings to be properly maintained. Defendants noted that
plaintiffs had alleged in their complaint that defendants violated their duty under this
statute. Defendants argued that because the statute imposes a duty only on the
Department of Corrections, it would violate principles of sovereign immunity and the Court
of Claims Act (705 ILCS 505/1 et seq. (West 2004)) to allow evidence of a duty derived
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from the statute.
Plaintiffs stated that Judge Magdich had already ruled upon all of defendants'
immunity defenses when he considered defendants' motion to dismiss and their motion for
summary judgment. Next, on February 25, 2005,
On March 9, 2005, plaintiffs filed a motion for leave to file an amended complaint.
Plaintiffs sought to refer to a different statute under which defendants' duty to plaintiffs
arose. In their original plaintiffs alleged that defendants breached their duty to
plaintiffs pursuant to section 3--7--3 of the Unified Code of Corrections. In their motion for
leave to file an amended complaint, plaintiffs indicated they wished to instead cite sections
2 and 3 of the Health and Safety Act (820 ILCS 225/2, 3 (West 2004)) as the statute to
define defendants' duty. Sections 2 and 3 require all employers, including the State of
Illinois, to reasonably protect the health and safety of their employees and to furnish
employees with a work environment free from recognized hazards that are likely to cause
death or serious injury. On March 24, 2005, defendants filed their response to plaintiffs'
motion for leave to file an amended complaint, arguing that it would be unfair and
prejudicial for plaintiffs to amend their complaint after defendants' seventeenth motion in
limine had pointed out the fatal flaw in the complaint and after plaintiffs received a change
in judges three weeks before trial. On March 28, 2005, the parties appeared before Judge
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Fritts to argue plaintiffs' motion for leave to amend their complaint. Following argument,
Judge Fritts advised the parties he would enter a written opinion as to whether the
amended complaint would be allowed.
On July 25, 2005, when the parties appeared before the court for a status date,
Judge Fritts entered a memorandum decision in the case. In his decision, Judge Fritts
found that the doctrine of sovereign immunity applied and that, as a result, the circuit court
lacked subject matter jurisdiction to hear the case. Judge Fritts reasoned that because of
security concerns, the duties of all employees within the institution of the Department of
Corrections are unique to their state employment and, therefore, the duty defendants were
charged with breaching derived only from their state employment. Judge Fritts indicated
in his written decision that his ruling was in response to issues raised in defendants' first
motion in limine; however, during the parties' July 25, 2005, appearance, Judge Fritts
identified defendants' seventeenth motion in limine as the basis of his decision. In
response to plaintiffs' attorney's questions, Judge Fritts noted he had not ruled on
plaintiffs' motion to amend their complaint, because the circuit court did not have
jurisdiction over the claims.
Plaintiffs now appeal Judge Fritts' July 25, 2005, decision that the circuit court lacks
subject matter jurisdiction.
DISCUSSION
On appeal, plaintiffs that the circuit court erred when it declared that it did not
have subject matter jurisdiction over plaintiffs' claims. Plaintiffs that, rather than
the circuit court's subject matter jurisdiction, Judge Fritts should have denied
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defendants' motions in limine that raised immunity defenses, because Judge Magdich had
already considered the merits of the issue of sovereign immunity twice and ruled against
defendants both times. plaintiffs that the circuit court has subject matter
jurisdiction and that sovereign immunity does not bar plaintiffs' claims, because
defendants' duty to plaintiffs arose independently of their state employment. Finally,
plaintiffs contend that the circuit court erred because it did not allow plaintiffs the
opportunity to amend their complaint. We will analyze each of the three contentions
separately.
Plaintiffs contend that the trial court erred in several ways when it the
issue of subject matter jurisdiction motions
in limine. First, plaintiffs argue that affirmative defenses, such as subject matter
jurisdiction, cannot be raised in any later motion once the trial court has already
considered the issue on its merits in response to a motion to dismiss pursuant to section
2--619 of the Code
1
We note that defendants filed their motion to dismiss pursuant to section 2--615 of the Code
(735 ILCS 5/2--615 (West 2004)), not section 2--619 of the Code (735 ILCS 5/2--619 (West 2004)).
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any new facts or law that would merit
the court's review of Judge Magdich's previous rulings.
A trial court's ruling on a motion in limine is normally reviewed under an abuse of
discretion standard. Chapman v. Hubbard Woods Motors, Inc., 351 Ill. App. 3d 99,110
(2004).
Whether a trial court may consider an issue that is raised in a motion in limine but
was in the
Hamilton v. Conley, 356 Ill. App. 3d 1048, 1052 (2005). In challenging
defendants' motions in limine in the trial court, plaintiffs failed to raise any of the
grounds raised in their appellant brief.
In their brief, plaintiffs point out that at a hearing on March 28, 2005, plaintiffs'
counsel argued
However, plaintiffs fail to note that the March 28, 2005, hearing
concerned plaintiffs' motion to amend their cited Judge
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Magdich's rulings to show that defendants would not be harmed by plaintiffs' proposed
amendment to their complaint, not to argue that the court could not entertain the issues
raised in defendants' motions in limine.
As a result, plaintiffs' arguments that the court
the issue of subject matter jurisdiction raised in defendants' motions in
limine were waived when they failed to to
if defendants improperly raised the issue of subject matter jurisdiction in their motions in
limine, the trial court had the power to rule on its subject matter jurisdiction absent any
motion by defendants. See Barrington Community Unit School District No. 220 v. Special
Education District of Lake County, 245 Ill. App. 3d 242, 247 (1993). Subject matter
jurisdiction can be raised sua sponte by the trial court at any time, since the lack of subject
matter jurisdiction deprives the trial court of all power except to dismiss the action.
Barrington Community Unit School District No. 220, 245 Ill. App. 3d at 247
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Lake County Riverboat
L.P. v. Illinois Gaming Board, 313 Ill. App. 3d 943, 950 (2000). A successor court has the
power to modify or revise an interlocutory order at any time prior to final judgment. Bailey,
316 Ill. App. 3d at 956; see also Rowe,125 Ill. 2d at 213-14; Towns, 73 Ill. 2d at 121.
When the interlocutory order involved the exercise of a prior judge's discretion, the
successor judge may overturn the order only where new facts or circumstances warrant
such action and there is no evidence of judge shopping. Lake County Riverboat, 313 Ill.
App. 3d at 950. On the other hand, where the successor judge finds that the previous
interlocutory order is erroneous as a matter of law, the successor judge, absent evidence
of judge shopping, may correct the previous order regardless of the existence of a new
matter. Lake County Riverboat, 313 Ill. App. 3d at 950.
In this case, in his memorandum decision Judge Fritts ruled on the issue of whether
the doctrine of sovereign immunity prohibited the subject matter jurisdiction of the circuit
court, an issue that was already considered by Judge Magdich. Judge Magdich found that
sovereign immunity did not plaintiffs' claims against
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motion to dismiss and defendants' motion for summary judgment. Both the
denial of a motion to dismiss and the denial of a motion for summary judgment are
interlocutory orders that may be revised prior to final judgment. Bailey, 316 Ill. App. 3d at
956; there is no
evidence of judge shopping by defendants. No party requested that Judge Magdich
reassign the case, and plaintiffs explain in their brief that the case was originally
reassigned because of Judge Magdich's retirement. The case then was reassigned from
Judge Payne to Judge Fritts at the request of plaintiffs, not defendants.
Because there is no evidence of judge shopping by defendants, Judge Fritts had
the right to rule on the issues already addressed by Judge Magdich's interlocutory orders
(1) the previous rulings were discretionary and new matters justified
reconsideration, or (2) the previous rulings were erroneous as a matter of law. See Bailey,
316 Ill. App. 3d at 956-57; Lake County Riverboat, 313 Ill. App. 3d at 950
B.
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Plaintiffs contend that the trial court erred when it dismissed plaintiffs' claims for lack
of subject matter jurisdiction, because the doctrine of sovereign immunity does not bar
plaintiffs' claims against defendants as individual employees of the Department of
Corrections. Plaintiffs argue that the circuit court has subject matter jurisdiction over
plaintiffs' claims because the duty defendants allegedly breached was one that arose
independently of their state employment. Defendants respond that they are protected by
sovereign immunity because plaintiffs' claims are truly against the State of Illinois
Subject matter
jurisdiction is an issue of law, which we review de novo. Gassman, 329 Ill. App. 3d at 226.
Article XIII, section 4, of the Illinois Constitution of 1970 abolishes sovereign
immunity in this state except as the General Assembly provides by law. Ill. Const. 1970,
art. XIII, §4. In 1972, the legislature enacted the State Lawsuit Immunity Act (745 ILCS
5/1 (West 2004)), which states that the State of Illinois shall not be made a party or
defendant in any court, except as provided by the Illinois Public Labor Relations Act (5
ILCS 315/1 et seq. (West 2004)) or the Court of Claims Act. The Court of Claims Act gives
the Court of Claims exclusive jurisdiction over all tort claims against the State. 705 ILCS
505/8(d) (West 2004). Therefore, in the case before us, if defendants are insulated from
liability by sovereign immunity, exclusive jurisdiction rests in the Court of Claims, and the
circuit court has no subject matter jurisdiction. See Currie v. Lao, 148 Ill. 2d 151, 157-58
(1992).
We must pause here to clarify how the Court of Claims Act and the State Lawsuit
Immunity Act can regulate the jurisdiction of the circuit court. Our supreme court has held
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that because the circuit courts' subject matter jurisdiction over justiciable matters derives
solely from the Illinois Constitution, legislative enactments cannot create or limit the circuit
courts' subject matter jurisdiction. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A.,
Inc., 199 Ill. 2d 325, 335 (2002). We recognize that allowing the State Lawsuit Immunity
Act and the Court of Claims Act to control the circuit courts' jurisdiction over claims against
the State, instead of merely creating affirmative defenses to claims against the State, may
seem to conflict with the holdings of Belleville. However, in Healy v. Vaupel, 133 Ill. 2d
295, 316 (1990), our supreme court held that the Court of Claims Act did not conflict with
the provision of
stated:
"Article XIII, section 4, of the Illinois Constitution abolishes sovereign immunity
'[e]xcept as the General Assembly may provide by law.' Pursuant to that express
g r a n t
of authority, the legislature has established the Court of Claims, to serve as the
f o r u m
for hearing and determining claims against the State. We discern no conflict
b e t w e e n
the two constitutional provisions [abolishing sovereign immunity (Ill. Const. 1970,
a r t .
XIII, §4) and granting the circuit courts jurisdiction over all justiciable matters (Ill.
Const. 1970, art. VI, §9)] and the Court of Claims Act." Healy, 133 Ill. 2d
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at 316.
of whether an action is one against the State does not
necessarily depend on whether the State is named as a party. Kawaguchi v. Gainer, 361
Ill. App. 3d 229, 243 (2005). Whether an action is one against the State depends on the
issues raised and the relief sought. Jinkins v. Lee, 209 Ill. 2d 320, 330 (2004). An action
that is brought nominally against a state employee in his individual capacity but "could
operate to control the actions of the State or subject it to liability" is considered an action
against the State. Currie, 148 Ill. 2d at 158. Treating such actions against state
employees as against the State prevents plaintiffs from sidestepping state immunity by
naming only individual state employees as defendants. Kawaguchi, 361 Ill. App. 3d at
243.
if the suit against them are truly against the State. See Currie, 148 Ill. 2d at 158-59.
In Jinkins, our supreme court reiterated the three-part test it established in Healy
to determine if an action against a state employee is truly one against the State. An action
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against a state employee is considered one against the State when (1) there are no
allegations that an employee or agent of the State acted beyond the scope of his authority
through wrongful acts; (2) the duty alleged to have been breached was not owed by the
employee independently of his state employment; and (3) the complained-of actions
involve matters ordinarily within that employee's normal and official functions. Jinkins, 209
Ill. 2d at 330. In this case, defendants were working in their capacity as Department of
Corrections employees at the time plaintiffs were injured. Plaintiffs make no argument on
that defendants were acting beyond
the scope of their authority or that the actions complained of involve
matters outside of defendants' normal and official functions. Therefore, the dispute here
centers on the second factor above, whether the duty allegedly breached was one
defendants owed independently of their state employment. Jinkins, 209 Ill. 2d at 331.
The determination of whether an employee has breached a duty owed
independently of his employment is guided by the "source of the duty" test established by
our supreme court in Currie. Jinkins, 209 Ill. 2d at 331. According to the test, in order to
determine if sovereign immunity protects an employee for his own act of negligence, one
must look to the source of the duty the employee is charged with breaching in committing
the negligent act. Currie, 148 Ill. 2d at 159. When the state employee allegedly breaches
a duty that arises solely by virtue of his state employment, sovereign immunity will bar in
circuit court an action that is founded on that breach. Currie, 148 Ill. 2d at 159. However,
when an employee breaches a duty imposed independently of his state employment, he
is entitled to no more immunity than is a private individual who breaches that same duty
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and the mere fact of his employment will not endow him with heightened protection.
Currie, 148 Ill. 2d at 160. Thus, even if an employee is acting in the scope of his
employment, he will not be protected by sovereign immunity for breaching a duty that
arises separately from his state employment. Currie, 148 Ill. 2d at 160.
When applying the source of duty test, courts have found that an independent duty
is a duty imposed by the employee's status as something other than an employee.
; Johnson
v. Halloran, 312 Ill. App. 3d 695, 699-700 (2000); Janes v. Albergo, 254 Ill. App. 3d 951,
964 (1993). For example, professionals employed by the State, such as public defenders
and doctors at state hospitals, are not protected by sovereign immunity when they breach
a professional duty owed by every member of that profession.
Johnson, 312 Ill. App. 3d at 699-700. Because a professional duty derives from the duty
of care imposed by one's status as a professional, this is an independent duty that does
not arise solely from one's employment and, thus, a breach is not protected by sovereign
immunity.
In the same way, the duty to drive safely is a duty one owes to others regardless
of one's employment, because it arises from one's status as a person operating a vehicle
on a state roadway and not as a person employed as a driver. Currie, 148 Ill. 2d at 160.
As a result, when a state employee breaches her duty to drive safely, even if she is driving
within the scope of her state employment, she has breached a duty not imposed solely by
her employment and is not protected by sovereign immunity. Currie, 148 Ill. 2d at 160.
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However, the "source of duty" test is not without exceptions. Currie, 148 Ill. 2d at
160.
Currie, 148 Ill. 2d at 160; Kawaguchi, 361 Ill. App. 3d at 244.
, duties imposed
by statute are normally considered independent duties because most statutes impose
specific requirements on all people regardless of their employment. Fritz v. Johnston, 209
Ill. 2d 302, 314 (2004). For example, when an employee in the course of his employment
breaches a duty imposed by the Illinois Criminal Code of 1961 (720 ILCS 5/1--1 et seq.
(West 2004)), he has breached an independent duty and is not protected by sovereign
immunity. Fritz, 209 Ill. 2d at 314. However, recently in Fritz our supreme court clarified
that where a statute imposes a duty only upon state employees, this statutory duty arises
solely from their employment. Fritz, 209 Ill. 2d at 314. As a result, an action resulting from
a state employee's breach of a duty imposed solely by a statute pertaining only to state
employees is protected by sovereign immunity. See Fritz, 209 Ill. 2d at 314. For example,
where a professor sued the Board of Governors of State Colleges and Universities of
Illinois, alleging that they had discharged her in violation of a section of the Board of
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Governors Act, which applied only to the operation, management, and control of the State
Colleges and Universities System, the court applied sovereign immunity despite the
plaintiff's argument that the Board of Governors violated a statute. See Fritz, 209 Ill. 2d
at 314, citing Ellis v. Board of Governors of State Colleges & Universities, 102 Ill. 2d 387,
389 (1984).
In this case, plaintiffs, defendants, and the trial court all focused their analyses on
whether defendants' duty to plaintiffs was unique to their state employment by
distinguishing the aspects of prison kitchens from private kitchens. Plaintiffs argue that
because all kitchen managers and supervisors owe their employees a duty to maintain a
safe work environment, defendants' duty is independent of their state employment.
Defendants argue that the safety concerns and nutritional differences between a private
kitchen and a prison kitchen make defendants' duty to maintain a safe kitchen environment
unique to their state employment
In light of these arguments, the trial court that because the procedure to
dispose of hot grease within a correctional facility is sufficiently different from that of a
private enterprise, the duty defendants breached arose solely by reason of their state
employment.
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Although the parties and the trial court outlined the differences between supervising
private kitchens and correctional facility kitchens, we believe the focus on these
differences is misplaced in light of . However, we may
affirm the trial court on any ground called for by the record, regardless of whether the trial
court relied on that ground. Thomson Learning, Inc. v. Olympia Properties, LLC, 365 Ill.
App. 3d 621, 632 (2006). In their complaint, plaintiffs allege that defendants breached
their specific duty under section 3--7--3 of the Unified Code of Corrections to properly
maintain the kitchen facilities and adjacent grounds and to provide plaintiffs with a
reasonably safe workplace. Section 3--2--1 of the Unified Code of Corrections states that
the Unified Code of Corrections consolidates in one statute the "powers and duties of the
Department of Corrections." 730 ILCS 5/3--2--1 (West 1996). Section 3--7--3 of the
Unified Code of Corrections states:
"Institutional Safety and Sanitation. (a) Standards of sanitation and safety for
all
institutions and facilities shall be established and enforced by the Department. All
buildings
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and facilities shall be cleaned regularly and properly maintained. Ventilation of air
and heat
adequate to the climate and season shall be provided." 730 ILCS 5/3--7--3(a)
.
As noted by the language, this statute applies only to the Department of Corrections.
Consequently, the statute imposes a duty solely on the Department of Corrections, and
thus, any duty it imposes on Department of Corrections employees arises solely by virtue
of their employment. Further, this court cannot find any common-law duty, akin to that of
lawyers, doctors and other health professionals, and motor vehicle operators, that kitchen
supervisors have to keep kitchen staff members safe. See Fritz, 209 Ill. 2d at 314.
Therefore, the trial court did not err in concluding that the duty defendants allegedly
breached arose solely from their employment
However, before concluding our analysis of the circuit court's subject matter
jurisdiction, we need to address plaintiffs' contention that the legislature did not intend the
Court of Claims to have exclusive jurisdiction over claims against employees of the
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Department of Corrections. Plaintiffs argue that because section 8(d) of the Court of
Claims Act fails to specifically mention the Department of Corrections as an agency over
which the Court of Claims has exclusive jurisdiction, the legislature did not intend for the
Court of Claims to have sole jurisdiction over all tort actions against employees of the
Department of Corrections. Section 8(d) of the Court of Claims Act states, in part, that the
Court of Claims has exclusive jurisdiction over:
"All 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, and all like claims sounding in tort against the Medical Center
Commission, the Board of Trustees of the University of Illinois, the Board of
Trustees of Southern Illinois University, the Board of Trustees of Chicago
State University, the Board of Trustees of Eastern Illinois University, the
Board of Trustees of Governors State University, the Board of Trustees of
Illinois State University, the Board of Trustees of Northeastern Illinois
University, the Board of Trustees of Northern Illinois University, the Board of
Trustees of Western Illinois University, or the Board of Trustees of the Illinois
Mathematics and Science Academy." 705 ILCS 505/8(d) (West 2004).
Plaintiffs assert that because the legislature used the
state agencies not listed
such as the Department of Corrections, were intended to be excluded from
the exclusive jurisdiction of the Court of Claims. As a result, plaintiffs contend that
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defendants must show that the action is only nominally against them, and in effect is an
action against the State.
Plaintiffs never explain why the absence of the Department of Corrections from
section 8(d) of the Court of Claims Act specifically precludes defendants from asserting a
defense of sovereign immunity pursuant to the State Lawsuit Immunity Act (745 ILCS 5/1
(West 2004) neither the State
Lawsuit Immunity Act nor the Court of Claims Act expressly protects a state employee from
a lawsuit individually against him or her. See 745 ILCS 5/1 (West 2004); 705 ILCS 505/8(d)
(West 2004). An action against a state employee is sovereign immunity only
when it is an action truly against the State. Currie, 148 Ill. 2d at 159. As a result, as
discussed earlier, in order for any state employee to invoke the State Lawsuit Immunity Act,
the court must find that the action is only nominally against the employee and is in effect
an action against the State Ill. 2d at 309. Plaintiffs do not explain how the
absence of the Department of Corrections in section 8(d) of the Court of Claims Act
changes
As discussed earlier, the State Lawsuit
Immunity Act provides that the State may not be sued in any court, unless it is provided for
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in the specified acts. 745 ILCS 5/1 (West 2004). For the purposes of the State Lawsuit
Immunity Act, the sovereign immunity of the State includes immunity from present
against arms of the State. Williams v. Medical Center Comm'n, 60 Ill. 2d 389, 393 (1975);
Williams v. Davet, 345 Ill. App. 3d 595, 599 (2003); Gordon v. Department of
Transportation, 109 Ill. App. 3d 1071, 1074 (1982). Generally, an agency of the State is
considered an arm of the State itself, which is immune from suit in the circuit court. Davet,
345 Ill. App. 3d at 599.
The Department of Corrections is in
no way a separate legal entity. Foley, 199 Ill. App. 3d at 14. The Department of
Corrections is an agency of the State and as such, it is indisputably an arm of the State.
Foley, 199 Ill. App. 3d at 13. Accordingly, suits against it would subject the State to liability.
Thus, because the State Lawsuit Immunity Act bars claims against the State in any court
except as provided in the specified acts, we fail to see how the application of section 8(d)
of the Court of Claims Act would allow the circuit court subject matter jurisdiction over
claims against Department of Corrections employees who show that the claims are only
nominally against them.
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Because we find that plaintiffs' claims are only nominally against defendants and are
truly claims against the State, the claims are barred by the principles of sovereign immunity
asserted in the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2004). Therefore, we find
that the circuit court properly held that it lacked subject matter jurisdiction to hear plaintiffs'
suit. We now turn to whether the circuit court erred plaintiffs'
motion to amend their complaint.
C. Plaintiffs' Motion to Amend Complaint
Plaintiffs argue that the trial court erred when it ruled on defendants' motions in
limine without first ruling on and granting plaintiffs' motion for leave to file an amended
complaint. Plaintiffs contend that their motion for leave to amend their complaint was
intended to allow them to change their reference to the statute imposing defendants' duty
to plaintiffs from section 3--7--3 of the Unified Code of Corrections (730 ILCS 5/3--7--3(a)
(West1996)) to sections 2 and 3 of the Health and Safety Act (820 ILCS 225/2, 3 (West
2004)) and thereby dispute defendants' contention that the circuit court lacked jurisdiction.
Defendants respond that once the court determined that it lacked subject matter jurisdiction
it could not take any action other than to dismiss plaintiffs' claims and, moreover, that even
if plaintiffs had amended their complaint, their claims would still have been barred by
sovereign immunity.
Section 2--616 of the Code allows amendment of a complaint at any time before final
judgment, in order to enable a plaintiff to sustain the claim that was intended. 735 ILCS
5/2--616(a) (West 2004). The decision to permit an amendment of a complaint is a matter
within the sound discretion of the trial court, and we will not disturb the trial court's decision
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absent an abuse of that discretion. R.J. Management Co. v. SRLB Development Corp., 346
Ill. App. 3d 957, 969 (2004). The trial court should exercise its discretion liberally in favor
of allowing an amendment, and any doubts should be resolved in favor of allowing the
amendment if the ends of justice will be furthered by allowing it. Hartshorn v. State Farm
Insurance Co., 361 Ill. App. 3d 731, 735 (2005). However, the denial of a plaintiff's request
to amend a complaint is appropriate if even after the amendment, no cause of action can
be stated. Terry v. Metropolitan Pier & Exposition Authority, 271 Ill. App. 3d 446, 456
(1995).
Assuming, without deciding, that the trial court erred when it ruled on the issues
raised in defendants' motions in limine prior to ruling on plaintiffs' motion for leave to file an
amended complaint, this error was harmless because plaintiffs' amended complaint would
also have been barred by the doctrine of sovereign immunity. See City of Elgin v. County
of Cook, 169 Ill. 2d 53, 71-72 (1995); Firestone v. Fritz, 119 Ill. App. 3d 685, 690 (1983).
Plaintiffs argue that the proposed amended complaint would have merely corrected the
statutory reference in the complaint to conform with the duty plaintiffs asserted throughout
the litigation, and thus, asserted an independent duty of defendants that would allow the
trial court subject matter jurisdiction over plaintiffs' claims. We disagree.
Plaintiffs' proposed amended complaint alleges that it was the duty of defendants
under sections 2 and 3 of the Health and Safely Act to properly maintain the kitchen
facilities and adjacent grounds and to provide plaintiffs with a reasonably safe workplace.
820 ILCS 225/2, 3 (West 2004). Section 2 of the Health and Safety Act states, in part:
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"This Act shall apply to all employers engaged in any occupation, business
or enterprise
in this State, and their employees, including the State of Illinois and its employees
a n d a l l
political subdivisions and its employees ***." 820 ILCS 225/2 (West 2004).
Section 3 of the Health and Safety Act states, in part:
"(a) It shall be the duty of every employer under this Act to provide
reasonable
protection to the lives, health and safety and to furnish to each of his
e m p l o y e e s
employment and a place of employment which are free from recognized
hazards that
are causing or are likely to cause death or serious physical harm to his
employees. (b) It shall be the duty of each employer under this Act to
comply with occupational health and safety standards promulgated
under this Act." 820 ILCS 225/3 (West 2004).
In order to determine if defendants' duty under this statute is an independent duty,
we must first determine what duty, if any, the statute imposes on defendants. Plaintiffs'
argument throughout the case was that defendants were kitchen supervisors and that all
kitchen supervisors have an independent duty to maintain a safe work environment.
Plaintiffs contend that sections 2 and 3 of the Health and Safety Act impose this duty upon
defendants.
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Williams v. Banning, 72 F.3d
552, 555 (7th Cir. 1995 In suits for retaliatory discharge, our supreme court has said,
only an employer may be sued, and therefore, a supervisor cannot be found individually
liable for firing an employee. Buckner, 182 Ill. 2d at 21. The Seventh Circuit Court of
Appeals has held that under provisions of the federal Civil Rights Act of 1964 (42 U.S.C.
§2000(e) (2000)) directed at employers, supervisors do not fall in the definition of
employers and cannot be sued individually (Williams, 72 F.3d at 555), and that supervisors
cannot be held criminally liable under the Occupational Health and Safety Act of 1970 (29
U.S.C. §666 (2000)), which applies only to employers (United States v. Doig, 950 F.2d
411, 412-13 (7th Cir. 1991)). In the same way, neither is a supervisor an employer for the
purposes of vicarious liability for an employee's actions. Northrop, 242 Ill. App. 3d at 5
(holding that although an employer could be liable for the actions of a dental assistant
through the doctrine of agency, her supervisor, the dentist, was not accountable, because,
as her supervisor, he was a coworker and not an employer). Additionally, plaintiffs do not
allege that defendants were plaintiffs' employers or had a duty to plaintiffs as their
employers. Neither do the facts pled lead to the reasonable conclusion that plaintiffs were
employees of defendants.
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Certainly, some kitchen supervisors may be employers, but not all kitchen
supervisors are employers. Section 3 of the Health and Safety Act does not create an
independent duty of kitchen supervisors, who are not employers, to maintain a workplace
free from hazards. Plaintiffs allege facts that show only that defendants were kitchen
supervisors and not employers. The facts alleged do not show that defendants had a
contract of hire with plaintiffs or that defendants individually paid plaintiffs' wages.
Consequently, if defendants had a duty to protect plaintiffs from injury, related to sections
2 and 3 of the Health and Safety Act, this duty arose solely because defendants were
agents of plaintiffs' employer, to which the Health and Safety Act applies. Thus, any duty
defendants had to plaintiffs derives solely from their employment, not from the Act itself.
See Healy,133 Ill. 2d at 31
Instead of articulating how sections 2 and 3 of the Health and Safety Act impose a
duty on defendants that is independent of their employment, plaintiffs argue that
defendants' duty as kitchen supervisors is an independent duty because all kitchen
supervisors have a duty to maintain a safe kitchen Plaintiffs argue that because many
employers, both public and private, require their kitchen supervisors to maintain a safe
kitchen environment for kitchen workers, this duty is not unique to state employment.
However, plaintiffs' argument in Healy, 133
Ill. 2d at 312. In Healy, the plaintiff was a gymnast at Northern Illinois University (NIU) who
sued gymnastics program staff, who were employed by NIU, for injuries that occurred while
participating in gymnastics activities at NIU. Healy,133 Ill. 2d at 298-99. The defendants
asserted that the Court of Claims had exclusive jurisdiction over the plaintiff's claims.
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Healy, 133 Ill. 2d at 297. The plaintiff argued that because the defendants' duty of care
was no greater than, and no different from, the duty that would be owed to participants in
a privately run gymnastics program, the defendants' duty was analogous to a doctor's
independent duty to care for a patient. Healy, 133 Ill. 2d at 312. Our supreme court
rejected the plaintiff's argument. The court distinguished between the independent duty
owed by a doctor to his patient, based on the doctor-patient relationship, and the duty
owed to the student by the gymnastics department employees, which derived from their
employment. Healy, 133 Ill. 2d at 312.
Plaintiffs argue that Healy is no longer good law because it predated the source of
duty test outlined in Currie (Currie, 148 Ill. 2d at 159) and because the Jinkins
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We disagree. We believe that plaintiffs' confusion lies in the parties'
interpretation of the Currie court's statement that "[w]here the charged act of negligence
arose 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
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No. 2--05--0802
court." (Emphasis in original.) Currie, 148 Ill. 2d at 159. Plaintiffs interpret this statement
to mean that, in order for sovereign immunity to apply, a state employee must have
breached a duty that arises only in state employment and does not exist for employees in
the private sector. However, this is inconsistent with the premise of sovereign immunity.
See Fritz, 209 Ill. 2d at 315 ("sovereign immunity is designed to protect the state's
autonomy of action and to preserve state funds"). The State provides many services
similar to those provided in the private sector, and therefore both private and public
employees engaged in the same work acquire identical duties associated with their
positions. Despite these often identical duties, the State Lawsuit Immunity Act and the
Court of Claims Act still require that all actions against the State be heard in the Court of
Claims, not just those involving actions only the State performs. See 745 ILCS 5/1 (West
2004); 705 ILCS 505/8(d) (West 2004). Consequently, even when a state employee's
position requires the same duty required of a private employee, the state employee's
breach of such a duty is protected by sovereign immunity if the duty derives solely from the
employment position, and not from professional standards or statutory requirements that
apply to all citizens. Healy, 133 Ill. 2d at 312. In other words, the source of duty test
favors sovereign immunity when a state employee is sued for a breach of a duty imposed
on him solely by his employment. See 361 Ill. App. 3d at 243. Therefore, it
is not whether an employee performs uniquely state functions, like regulating prison
inmates, but whether the state arises solely from his
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No. 2--05--0802
employment, that determines whether the duty derives solely from his state employment.
Healy, 133 Ill. 2d at 312; see also Swanigan v. Smith, 294 Ill. App. 3d 263, 271 (1998).2
In this case, the facts alleged in plaintiffs' proposed amended complaint do not show
that defendants breached an independent duty to plaintiffs, but only a duty that arose as
a result of their employment in the kitchen at Dixon. Defendants' employer is the
Department of Corrections, which is an arm of the State of Illinois. See
Therefore, their duty derives solely from their State employment. Like the
employees of NIU, if it were not for defendants' status as kitchen supervisors at Dixon,
defendants would have had no duty to protect plaintiffs from harm. See Healy,133 Ill. 2d
at 312.
2
As discussed earlier, the issue of whether a defendant is performing a uniquely governmental
function becomes relevant once the court determines that the duty at issue does not arise solely as
a result of one's state employment. Currie, 148 Ill. 2d at 160. In some circumstances, a state
employee's performance of an independent duty may be unique to a government function such that
an exception to the source of duty test is made. Currie, 148 Ill. 2d at 160; 361 Ill. App.
3d at 243-44. Thus, even when a state employee breaches a duty that does not derive solely from his
employment, he may be protected by sovereign immunity if the breach occurs while he is performing
a uniquely governmental function. Currie, 148 Ill. 2d at 160; see also Jinkins, 209 Ill. 2d at 335;
361 Ill. App. 3d at 243-44. Because we conclude that defendants' alleged duty to
plaintiffs arose solely as a result of their employment, we do not have to consider if defendants were
performing uniquely governmental functions.
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Because defendants did not have a duty to plaintiffs independent of their state
employment, plaintiffs' proposed amended complaint presented a claim only nominally
against defendants and truly against the State, and it would be barred by principles of
sovereign immunity. As a result, we conclude that if the trial court made an error in
refusing to rule on plaintiffs' motion to amend their complaint prior to dismissing the case
for lack of subject matter jurisdiction, such error was harmless. See City of Elgin, 169 Ill.
2d at 72; Firestone, 119 Ill. App. 3d at 690.
CONCLUSION
After reviewing all of plaintiffs' arguments on appeal, we hold that the trial court did
not err when it dismissed plaintiffs' claims for lack of subject matter jurisdiction
. Accordingly, we affirm the decision of the trial court.
Affirmed.
BOWMAN, J., concurs.
JUSTICE McLAREN, specially concurring:
I believe that this majority has now rendered two decisions that incorrectly analyze
the merits of the sundry counts contained in the complaints. I specially concur here
because I believe that, in spite of its incorrect analysis, the majority reaches the correct
result in this case.
In Felzak v. Hruby, No. 2--05--0848 (September 5, 2006), I dissented in part
because the majority found subject matter jurisdiction extant. The majority determined that
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No. 2--05--0802
an unconstitutional statutory claim with a distinctive statutory theory of relief did not confer
subject matter jurisdiction. However, the majority then reviewed the facts alleged in the
statutory claim and determined that those facts alleged a justiciable common law claim.
The majority did so by reinterpreting the facts and determining that there existed an
alternative theory of relief, with different elements, relating to grandparent visitation. See
Felzak, slip op. at 14-23. I noted that the majority allowed the plaintiff to assert that subject
matter jurisdiction existed merely on the basis that a claim existed at common law, without
requiring the plaintiff to file a separate count alleging such a claim. I pointed out that
assuming, arguendo, such a claim existed at common law, it still should be pled as a
separate count, as required by section 2--613(a) of the Code of Civil Procedure (735 ILCS
5/2--613(a) (West 2004)). By ferreting through the counts of the complaint in the
case before us in an effort to find alternative theories of relief, the majority again subverts
the rule of procedure that requires parties to plead "as many causes of action *** as they
may have, and each shall be separately designated and numbered." 735 ILCS 5/2--613(a)
(West 2004). Analogically, the majority has determined that the apple is an apple, but it
did so by three separate reviews of the same apple, when only one review was appropriate
and necessary. See Felzak, slip op. at 37 (McLaren, J., dissenting in part and specially
concurring in part).
I wish to emphasize that I did not and do not declare that the claim must properly
state a cause of action that would withstand a motion to dismiss; however, the claim must
actually allege a common-law action.
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"Thus, in order to invoke the subject matter jurisdiction of the circuit court, a
plaintiff's case, as framed by the complaint or petition, must present a justiciable
matter. See People ex rel. Scott v. Janson, 57 Ill. 2d 451, 459 (1974) (if a complaint
states a case belonging to a general class over which the authority of the court
extends, subject matter jurisdiction attaches)." Belleville Toyota, Inc. v. Toyota
Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002).
See also Felzak, slip op. at 38 (McLaren, J., dissenting in part and specially concurring in
part). The court in Belleville reviewed the complaint and did not parse words or find a
claim at common law integrated into a void statutory claim or in a count subject to
jurisdiction in the Court of Claims.
I submit that the two-step analysis utilized by the majority in Felzak and this case
is incorrect. The majority here erroneously continues to review a count to determine if
there is an integrated second or third underlying cause of action contained within it. The
majority determines that no count contains any facts that allege a duty outside the
supervisors' employment. The majority also reviews the counts to determine if an
independent duty exists that is common to all kitchen supervisors.3 See slip op. at 21.
Again, the majority fails to comprehend that, if there is no count alleging such an
3
I submit that a policy was violated when the grease was ordered to be moved prior to cooling.
I see little difference between the violation of this policy and the violation of the policy relating to
responding to a call that was not within the trooper's jurisdiction in Currie v. Lao, 148 Ill. 2d 151
(1992). Also, though not pled, it would seem that the facts may allege wilful and wanton behavior
on the part of the supervisors. But I digress.
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alternative theory of relief, the court should not further consider what the existing counts
might contain, other than the stated theory of relief, in order to determine if subject matter
jurisdiction exists.
The simple fact is that separate theories of relief must be pled in separate counts.
The failure of the plaintiffs to comply with this simple fact absolves the majority of its
erroneously held belief that it must search amongst the words of the sundry counts for
additional interpolations addressing whether or not there is a justiciable matter. The
majority in this case has again failed to properly follow the admonitions set forth in my
partial dissent in Felzak and has ventured into the land beyond the looking glass. Neither
the parties nor the courts should be placed in the position of trying to decipher a count to
determine if there is more than one theory of relief in the count and, if so, how many. The
majority has again followed the wrong analysis that it created and utilized in Felzak but,
despite this failure, has come to the correct conclusion. That is why I specially concur.
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