Vines v. Fiorenzo ( 2021 )

2021 IL App (1st) 200548-UTHIRD DIVISION
September 8, 2021
No. 1-20-0548
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
)
SELLARS VINES, II, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant ) Cook County
)
v. ) No. 18 L 5226
)
TERENCE FIORENZO ) Honorable
) Christopher E. Lawler
Defendant-Appellee ) Judge Presiding
)
_____________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court.
Justices McBride and Howse concurred in the judgment.
ORDER
¶1 Held: Affirmed. Res judicata barred lawsuit. Trial court did not abuse discretion in
denying leave to amend complaint, as amendment would have been futile.
¶2 This case involves two different lawsuits arising out of the same incident, one filed in
2014 (the 2014 Action) and the one under review in this appeal (at times, the 2018 Action).
¶3 Background
¶4 On March 28, 2014, fourteen-year-old Sellars Vines, II (plaintiff) was studying with his
friends at the Flossmoor Public Library in the Village of Flossmoor when it closed, and the
library staff instructed the group to wait outside for their rides home. To stay warm, the group
No. 1-20-0548
stood on metal grates covering a ventilation shaft that released hot air. The grate on which
plaintiff stood had been improperly positioned and had bent flanges, causing it to not sit flush on
the concrete lip supporting the grate. That grate then collapsed under plaintiff’s weight, and he
fell twenty feet to the bottom of the ventilation vault, resulting in injuries.
¶5 I. The 2014 Action
¶6 Because he was a minor at the time, plaintiff’s parents, Sylvia Vines and Sellars Vines,
filed suit on his behalf in April 2014 against the Village of Flossmoor, later adding the
Flossmoor Library (Library) as a defendant. Among the causes of action were negligence and
willful and wanton conduct.
¶7 The trial court dismissed the willful and wanton count for insufficient pleading. Later, the
defendants moved for summary judgment on the negligence count. Arguing against summary
judgment, plaintiff’s parents claimed that the Library’s maintenance technician, Terrance
Fiorenzo, had improperly positioned the grate and created a dangerous condition.
¶8 The trial court entered summary judgment in favor of the defendants on the negligence
count. The court ruled that the Library was recreational property and thus was covered under
section 3-106 of the Illinois Local Governmental and Governmental Employees Tort Immunity
Act, which immunized the defendants from liability for negligence. The trial court also ruled
that, even had section 3-106 not applied, section 3-102 of that act required that a public entity
have notice of an unsafe condition as a prerequisite to finding a legal duty, but there was no
evidence of actual or constructive notice. As the trial court put it:
“[T]here is no evidence of actual notice, as there were no complaints to the Library and
no prior injuries. Further, the maintenance man, Mr. Fiorenzo, did not see any problems
with the grates or observe that they were not flush with the ground, open, or unstable.
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There is also no evidence as to how long the grate was moved or ajar or otherwise
defective.”
¶9 Plaintiff’s parents then filed a motion for reconsideration and a motion for leave to file an
amended complaint that, notably, included claims of willful and wanton conduct against the
Library. In each motion, plaintiff’s parents claimed that Fiorenzo created the condition that
caused plaintiff to fall. The trial court denied both motions, explaining:
“In this case, as there is no evidence of notice, there is no duty. Additionally, while the
Plaintiffs argue that no evidence of notice is required where the Defendant has caused or
created the condition, the evidence in the record does not demonstrate that the Library or
its employee Mr. Fiorenzo caused or created the condition. As such, there is no point in
allowing an amended pleading as to the claim of willful and wanton conduct.”
¶ 10 Plaintiff’s parents appealed, arguing again that Fiorenzo created the dangerous condition,
but the appeal was untimely. As a result, this court dismissed their appeal. See Vines v. Village of
Flossmoor, 2017 IL App (1st) 163339, ¶ 19.
¶ 11 II. The 2018 Action Under Review
¶ 12 In May 2018, plaintiff himself, no longer a minor, filed suit against Terence Fiorenzo
over the same occurrence. The complaint asserted two counts claiming willful and wanton
conduct, with the first count labeled “maintenance” and the second labeled “use.” Plaintiff
alleged, as he did in the 2014 Action, that Fiorenzo, as an employee of the Library, inspected,
maintained, and altered the conditions of the grate. Plaintiff also claimed that Fiorenzo was the
last person to remove the grate, and that the gate was unlevel and its flanges bent. Thus, Fiorenzo
created a dangerous condition by improperly re-installing the grate and was willful and wanton
by continuing to use the grate and failing to report, replace, or warn about the bent flanges.
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¶ 13 The trial court judge dismissed this lawsuit on the basis of res judicata, finding that both
the claims and the parties were identical in each action. Plaintiff moved to reconsider and sought
leave to file an amended complaint. The trial court denied both motions. This appeal followed.
¶ 14 ANALYSIS
¶ 15 Plaintiff raises several points of error regarding the dismissal of his complaint, but for our
purposes we need only focus on one—the ruling that res judicata bars this lawsuit.
¶ 16 A motion to dismiss under section 2-619 admits the legal sufficiency of the plaintiff’s
claim but allows for dismissal of the claim due to defects or defenses outside the pleadings that
defeat the claim. See v. Illinois Gaming Bd., 2020 IL App (1st) 192200, ¶ 10. The reviewing
court should view the pleadings and supporting documents in the light most favorable to the
nonmoving party. Id. Our review of a section 2-619 dismissal is de novo, meaning we are not
required to give any deference to the trial court’s reasoning. Id.¶ 17 I. Res Judicata
¶ 18 The doctrine of res judicata prevents a multiplicity of lawsuits between the same parties
when the facts and issues are the same. Carlson v. Rehabilitation Institute of Chicago, 2016 IL
App (1st) 143853, ¶ 22. Under this doctrine, “a final judgment on the merits rendered by a ‘court
of competent jurisdiction’ bars a later suit between the same parties involving the same cause of
action.” Id. For res judicata to apply, three requirements must be met: (1) a final judgment on the
merits has been rendered by a court of competent jurisdiction; (2) an identity of cause of action
exists; and (3) the parties or their privies are identical in both actions. Hudson v. City of Chicago,
228 Ill. 2d 462, 467 (2008). Res judicata bars not only what was decided in the original action
but what could have been decided. Id.¶ 19 Plaintiff does not challenge the first element of res judicata but argues that the second
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and third elements are not met here. We start with the second element, identity of causes of
action. Plaintiff says the 2014 Action was a premises-liability action against the Flossmoor
Public Library, whereas the 2018 Action is based on Fiorenzo’s individual and specific willful
and wanton conduct.
¶ 20 Illinois courts have adopted the transactional test for determining whether causes of
actions are the same for purposes of res judicata. Carlson, 2016 IL App (1st) 143853, ¶ 25.
Under that test, “separate claims will be considered the same cause of action for purposes of res
judicata if they arise from a single group of operative facts, regardless of whether they seek
different theories of relief.” Id.¶ 21 We agree with the circuit court that the causes of action were identical. Each lawsuit
arises out of the same incident at the Library, where plaintiff fell through the grate, and each
alleges essentially the same wrongdoing (failure to secure, repair, or warn of the faulty grate)
that resulted in the same injuries to plaintiff. They clearly arise out of the same group of
operative facts and are, for our purposes, identical. Labelling the theory of one case “premises
liability” and the other “willful and wanton” does not change this fact.
¶ 22 The third element of res judicata requires that the parties or their privies are identical in
each action. Privity exists when the parties adequately represent the same legal interest. Direct
Auto Insurance Co. v. Bahena, 2019 IL App (1st) 172918, ¶ 62. “[W]hen a prior judgment is a
bar to a claim against an employer, a claim against an employee, predicated upon the same acts,
is also barred.” Ross Advertising, Inc. v. Heartland Bank & Trust Co., 2012 IL App (3d) 110200,
¶ 35 (quoting Bonanno v. La Salle & Bureau County Railroad Co., 87 Ill. App. 3d 988, 995
(1980)).
¶ 23 Thus, in Ross, a suit against a bank’s loan officer, Shafer, was barred by res judicata
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because the plaintiff had previously litigated a suit over the same transaction against the bank,
Heartland. See id. We honored the long-held view that “as an employee of Heartland, Shafer is
in privity with Heartland for purposes of res judicata.” Id. Likewise, doctors named in a second
lawsuit, who were employees of named defendants (a pediatric practice and a hospital, Michael
Reese) from the first lawsuit, were privies to those original defendants and could not be sued
later based on the same conduct. Neuberg v. Michael Reese Hospital & Medical Center, 118 Ill.
App. 3d 93, 100 (1983) (plaintiff's “attempt to name additional [employee] defendants to avoid
the applicability of the doctrine of res judicata ” was “without legal effect”). And a new lawsuit
litigating the same dispute against a corporation’s officers and directors was barred, given the
disposition of an earlier lawsuit naming the corporation as a defendant, based on the same
transactional dispute. Bonanno, 87 Ill. App. 3d at 995.
¶ 24 The law could not be otherwise. The Library is a legal, municipal entity that operates
through individuals acting on its behalf. If a municipal entity is guilty of negligence or willful
and wanton misconduct, it is only because, at bottom, one or more individuals are guilty of that
wrongdoing. Indeed, that is precisely how plaintiff’s parents sought to hold the Library liable in
the 2014 Action—by highlighting the actions and inactions of Fiorenzo, the Library’s
maintenance employee. (See supra ¶¶ 7-10.)
¶ 25 And imagine if, hypothetically, there were three multiple Library employees who
potentially shared the blame for the bent grate—Fiorenzo, a co-worker, and their supervisor.
Would plaintiff be entitled to four bites at the apple—a suit against the Library, then one against
Fiorenzo, a third against his co-worker, and finally one against Fiorenzo’s supervisor?
¶ 26 Of course not. Avoidance of piecemeal litigation and the need for finality are at the heart
of res judicata. See Ross, 2012 IL App (3d) 110200, ¶ 29. Any claims based on the acts or
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omissions of Fiorenzo belonged in the original 2014 Action and cannot be relitigated here.
¶ 27 Nothing in Don Saffold Enterprises v. Concept I, Inc. 316 Ill. App. 3d 993, 998 (2000)
changes our conclusion. It is true, as plaintiff notes, that we found there that an individual
employee and a corporation did not share the same identity of interest. See id. The plaintiff there
sued an individual, Wasserman, in his individual capacity, over a contract dispute. Wasserman
argued that he did not personally contract with the plaintiff—the actual party was a corporation
named Concept I. Id. at 993-94. Thus, we held, a later lawsuit (or more properly, the refiling of
the same lawsuit) against that corporation was not barred, because Wasserman and Concept I had
different identities. Id. at 998.
¶ 28 In many ways, Don Saffold is the inverse of our case—the plaintiff first suing the
individual and then the corporate entity. Whatever may be true in that context, that is a
fundamentally different situation than what we have here: a plaintiff suing a corporate (albeit
municipal) entity and then, when that lawsuit falls short, suing one of the corporation’s
employees over the same incident. The law is overwhelmingly clear, as discussed above, that res
judicata bars that lawsuit. Don Saffold does not undermine the longstanding case law we have
discussed above.
¶ 29 Nor does Karalyos v. Board of Education of Lake Forest Community High School
District 115, 788 F. Supp. 2d 727 (N.D. Ill. 2011), involving a federal court’s disposition of a
motion to dismiss. The court never so much as mentioned res judicata and requires no further
discussion.
¶ 30 As all three elements of res judicata were met here, the trial court properly dismissed the
complaint. It is thus unnecessary to consider the additional bases on which the trial court
dismissed the complaint.
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¶ 31 II. Motion for Leave to Amend Complaint
¶ 32 Finally, Plaintiff claims the court erred in denying him leave to file an amended
complaint. During oral argument on the motion to dismiss, plaintiff requested leave to amend the
complaint to remove the allegation that Fiorenzo was an employee of the Library. He later
offered that amended pleading.
¶ 33 We lack a transcript of any hearing on the motion for leave to amend, and it is tempting
to end the matter there. We have typically held that, when reviewing a discretionary decision of
the trial court, the lack of a transcript prevents us from understanding the bases for the court’s
decision. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984); Illinois Founders Insurance Co.
v. Williams, 2015 IL App (1st) 122481, ¶ 56 (absent transcript of proceedings, reviewing court
must presume, per Foutch, that trial court did not abuse discretion in denying leave to amend
complaint).
¶ 34 But we have a written order, as well as at least some argument from the transcript on the
hearing on the motion to dismiss. So we will consider the argument on the merits.
¶ 35 Granting leave to amend a pleading is within the discretion of the trial court, and a
reviewing court will not reverse a trial court’s decision absent an abuse of that discretion. Geisler
v. Everest Nat. Ins. Co., 2012 IL App (1st) 103834, ¶ 94. An abuse of discretion occurs when no
reasonable person would have taken the view adopted by the court. Id. The four factors used to
decide whether a trial court abused its discretion when denying leave to amend include whether
(1) the proposed amendment would cure the defective pleading; (2) other parties would sustain
prejudice or surprise by virtue of the proposed amendment; (3) the proposed amendment is
timely; and (4) previous opportunities to amend the pleading could be identified. Id.¶ 36 We agree with the circuit court that it was proper to deny leave to amend because it
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would not have cured the defect in the pleading. In the circuit court’s words, “an amended
pleading would not cure that res judicata applies and precludes [plaintiff’s] claims against
Fiorenzo.” See Malacina v. Cook County Sheriff's Merit Board, 2021 IL App (1st) 191893, ¶ 40
(“it is never an abuse of discretion to deny leave to amend when the proposed amendment would
be futile.”). Regardless of whether the amended complaint would omit the fact that Fiorenzo was
a Library employee, the entire 2014 Action was premised on the fact that he was; the trial court’s
ruling in that case was based on the fact that he was; and it is undisputed that he was. Even if
plaintiff were correct that Fiorenzo may have acted outside the scope of his employment in his
actions regarding this incident, that was an argument plaintiff’s parents could have made during
the 2014 Action. Again, res judicata bars what was raised in a previous action and what could
have been raised. Hudson, 228 Ill. 2d at 467.
¶ 37 We thus uphold the denial of leave to amend the complaint.
¶ 38 CONCLUSION
¶ 39 The judgment of the circuit court is affirmed.
¶ 40 Affirmed.
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