McGee v. Heimburger

                             NO. 4-96-0486

                         IN THE APPELLATE COURT

                               OF ILLINOIS

                             FOURTH DISTRICT                    

MARY McGEE, Individually and as         )    Appeal from

personal representative of the          )    Circuit Court of  

Estate of TRAVIS McGEE, Deceased,       )    Champaign County

         Plaintiff-Appellant,          )    No. 95L975

         v.                            )

JOHN A. HEIMBURGER,                     )

         Defendant,                    )

         and                           )    

JAMES W. HEIMBURGER and JUDY HEIMBURGER,)    Honorable

         Respondents in Discovery-     )    George S. Miller,

         Appellees.                    )    Judge Presiding.

_________________________________________________________________

         PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

         In June 1995, plaintiff, Mary McGee (McGee), indi-

vidually and as personal representative of the estate of Travis

McGee, sued defendant, John Heimburger, to recover damages for

Travis' injuries and his wrongful death that resulted when John

shot him.  McGee also named John's parents, James and Judy

Heimburger, as respondents in discovery, pursuant to section 2-

402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-402 (West

1994)).  

         In January 1996, McGee filed a motion to convert the

respondents in discovery to defendants.  McGee sought to allege a

cause of action against Judy pursuant to section 4(c) of the

Firearm Owners Identification Card Act (Act) (430 ILCS 65/4(c)

(West 1992)) and against both James and Judy pursuant to section

3 of the Parental Responsibility Law (Responsibility Law) (740

ILCS 115/3 (West 1992)).  In February 1996, the trial court

conducted a hearing on McGee's motion to convert and denied it.

         McGee appeals, arguing that the trial court erred by

denying her motion to convert the respondents in discovery to

defendants because (1) Judy is liable pursuant to section 4(c) of

the Act; and (2) McGee established probable cause that John was

an unemancipated minor pursuant to section 3 of the Responsi-

bility Law.  

         We affirm in part, reverse in part and remand.

                              I. BACKGROUND

         On October 2, 1992, Judy executed written consent,

pursuant to section 4(a)(2)(i) of the Act (430 ILCS 65/4(a)(2)(i)

(West 1992)), authorizing John (her then-minor son, born June 17,

1975) to possess and acquire firearms and firearm ammunition.

Judy gave her written consent as part of John's application for a

firearm owner's identification (FOID) card.  In June 1993, the

Illinois State Police denied John's application because of his

prior misdemeanor conviction for other than a traffic violation.

On July 7, 1993, John shot Travis with a firearm and killed him.

         At the February 1996 hearing on McGee's motion to

convert, Champaign police detective Zane Ziegler testified that

he interviewed John shortly after his arrest (a few days after

the shooting).  During that interview, John stated that he went

home after the shooting; John further gave his parent's address

when asked where his "home" was located.  In her discovery

deposition, Judy testified that John had moved from the family

residence to a shared apartment sometime in early June 1993.  She

did not know whether he planned to stay "full[-]time" in the

apartment.  She testified that between early June 1993 and July

7, 1993, John did not pay all of his personal living expenses.

However, she also said that she did not give John any living

expenses during that time.  She and her husband provided John

with a vehicle for his use on a daily basis.  They also main-

tained a furnished bedroom for John, which he frequently used.

John also continued to receive some mail (magazines) at his

parents' residence.  During June and July 1993, John worked on

the family farm in exchange for other services, such as car

insurance payments; he was not employed elsewhere at the time of

the shooting.  

         After considering the evidence and the parties' argu-

ments, the trial court denied McGee's motion to convert respon-

dents in discovery to defendants.  The court found that (1)

section 4(c) of the Act--which McGee cited as the basis for her

claims against Judy--"creates liability in the parent upon the

parent's written consent on the application only if the applica-

tion results in an effective [FOID] card being issued"; and (2)

McGee failed to establish probable cause that John was an uneman-

cipated minor residing with his parents at the time of the

shooting pursuant to section 3 of the Responsibility Law.

                              II. ANALYSIS

                A. Motion To Convert Judy to a Defendant

                           Pursuant to the Act

         McGee first argues that the trial court erred by

denying her motion to convert Judy from a respondent in discovery

to a defendant.  McGee contends that once Judy provided written

consent (on John's application for an FOID card) under section

4(c) of the Act for John to acquire and possess firearms and

ammunition, she became liable for any damages resulting from

John's use of firearms, even though the Illinois State Police

subsequently denied John's application.  Judy responds that

because the Act governs the issuance of FOID cards, section 4(c)

of the Act imposes liability on a parent only when the State

issues an FOID card to that parent's child as a result of the

parent's consent.  We agree with that response.

         Section 4(a)(2)(i) of the Act provides that an appli-

cant for an FOID card who is under 21 years of age--as in this

case--must obtain "the written consent of his parent or legal

guardian to possess and acquire firearms and firearm ammunition."

430 ILCS 65/4(a)(2)(i) (West 1994).  Section 4(c) of the Act pro-

vides as follows:

              "(c) Upon such written consent, pursuant

         to Section 4, paragraph (a)(2)(i), the parent

         or legal guardian giving the consent shall be

         liable for any damages resulting from the

         applicant's use of firearms or firearm ammu-

         nition."  430 ILCS 65/4(c) (West 1994).

         When construing a statute, a court must ascertain and

give effect to the legislature's intent in enacting the statute.

Collins v. Board of Trustees of the Firemen's Annuity & Benefit

Fund, 155 Ill. 2d 103, 110, 610 N.E.2d 1250, 1253 (1993).  The

legislative intent is best determined by the language of the

statute.  People v. Ferrell, 277 Ill. App. 3d 74, 77, 659 N.E.2d

992, 995 (1995).  A court construing a statute should read it as

a whole, construing each provision in connection with every other

provision.  Bonaguro v. County Officers Electoral Board, 158 Ill.

2d 391, 397, 634 N.E.2d 712, 714 (1994).  A court also must

consider the reason and necessity for the law, as well as the

statute's objective.  Collins, 155 Ill. 2d at 111, 610 N.E.2d at

1253.  Further, when construing a statute capable of two inter-

pretations, a court should provide that interpretation which is

reasonable and which will not produce absurd, unjust, unreason-

able, or inconvenient results that the legislature could not have

intended.  People v. Stanciel, 153 Ill. 2d 218, 233-34, 606

N.E.2d 1201, 1210 (1992).

         The legislature enacted the Act to set forth a compre-

hensive scheme for the issuance of FOID cards.  Section 1 of the

Act provides that

         "in order to promote and protect the health,

         safety[,] and welfare of the public, it is

         necessary and in the public interest to pro-

         vide a system of identifying persons who are

         not qualified to acquire or possess firearms

         and firearm ammunition *** by the establish-

         ment of a system of [FOID] [c]ards."  430

         ILCS 65/1 (West 1994).

Construing the statute as a whole and giving the statutory lan-

guage its reasonable meaning in light of the purpose of the Act,

we conclude that section 4(c) of the Act imposes liability upon a

parent or legal guardian (for damages resulting from a minor's

use of a firearm or ammunition) only if and when the Illinois

State Police approve the minor's application and issue the

applicant an FOID card.  

         In so concluding, we note that parents and guardians

are constantly called upon to grant consent to a minor child to

engage in activities that carry the potential for substantial

harm, such as driving an automobile.  See 625 ILCS 5/6-107 (West

1994) (requiring parental consent for unemancipated minors under

18 years of age to obtain a driver's license).  One hopes that

consent, when granted, represents the parent's considered judg-

ment that the child possesses the maturity and skill to engage in

the activity in question.  But the consent given is not determi-

native and is, at most, advisory.  Parental consent is a neces-

sary--but not sufficient--condition for issuance of the FOID card

and may be overridden by the licensing authority, as was the case

here, or even revoked by the parent resulting in cancellation of

the card.  See 430 ILCS 65/8(b) (West 1994); see also 625 ILCS

5/6-108(a)(1) (West 1994) (requiring cancellation of a driver's

license or permit upon request of the person who consented to the

application).

         To be sure, had the Illinois State Police issued an

FOID card in this case, liability would be clear; the legislature

has determined that parents must bear automatic responsibility

for the ill-advised consent they provide when it results in the

minor legally acquiring a weapon or ammunition with which he then

causes an injury during the period of his minority.  However,

once the efficacy of the consent is completely nullified by the

refusal of the State Police to recognize it, the causal connec-

tion between the consent and the injury caused by the minor's

subsequent illegal conduct in acquiring and using firearms is

effectively broken.  Accordingly, we hold that the trial court

did not err by denying McGee's motion to convert Judy from a

respondent in discovery to a defendant pursuant to section 4(c)

of the Act.    

                 B. Motion To Convert James and Judy to

             Defendants Pursuant to the Responsibility Law

         Last, McGee argues that the trial court erred by

denying her motion to convert James and Judy from respondents in

discovery to defendants pursuant to section 3 of the Responsi-

bility Law.  McGee contends that she established probable cause

that John was an unemancipated minor residing with his parents at

the time of the shooting.  We agree.

         A plaintiff may request to add a respondent in discov-

ery as a defendant pursuant to section 2-402 of the Code, which

provides as follows:

              "The plaintiff in any civil action may

         designate as respondents in discovery in his

         or her pleading those individuals or other

         entities, other than the named defendants,

         believed by the plaintiff to have information

         essential to the determination of who should

         properly be named as additional defendants in

         the action.

              Persons or entities so named as respon-

         dents in discovery *** may, on motion of the

         plaintiff, be added as defendants if the

         evidence discloses the existence of probable

         cause for such action."  735 ILCS 5/2-402

         (West 1994).

In Ingle v. Hospital Sisters Health System, 141 Ill. App. 3d

1057, 1064-65, 491 N.E.2d 139, 144 (1986), this court discussed

the showing necessary to establish such "probable cause" and

wrote the following:

              "We have no reason to believe that the

         legislature intended that the probable cause

         issue under section 2-402 was to be decided

         upon the basis of considerations that would

         be present in ruling on a motion for summary

         judgment for the respondents-in-discovery.

         Nor do we believe that the plaintiff is re-

         quired to show a prima facie case in order to

         require that respondents be made defendants.

         ***  Rather, the question [here] is ***

         whether there exists 'honest and strong

         suspicion' that the respondents-in-discovery

         are liable."  (Emphasis added.)

         In determining whether a respondent in discovery may be

added as a defendant, the trial court's role is that of gate-

keeper--to simply assess whether it is fair to let the plaintiff

proceed further against the respondents in discovery and subject

them to the fact-finding process.  When resolving motions to

convert respondents in discovery to defendants under section   

2-402 of the Code, trial courts should bear in mind the following

cautionary remarks this court wrote in Ingle--which we now

reaffirm:  

              "The purpose of encouraging plaintiffs

         to name medical providers as respondents-in-

         discovery rather than defendants will not be

         served if a high degree of likelihood of

         success is necessary to be shown before such

         respondents can be named defendants.  If that

         is required, plaintiffs will continue the

         practice of naming as defendants most [of]

         those who [plaintiffs might otherwise have

         designated only as respondents-in-discov-

         ery]."  Ingle, 141 Ill. App. 3d at 1062, 491

         N.E.2d at 142.

         A trial court's ruling on a motion to add a respondent

in discovery as a defendant is entitled to deference in circum-

stances in which the court has heard testimony and resolved con-

flicting evidence, and a reviewing court will not overturn the

trial court's ruling unless it is against the manifest weight of

the evidence.  See People v. Enis, 163 Ill. 2d 367, 393, 645

N.E.2d 856, 867 (1994) (a trial court's determination that

probable cause was established will not be disturbed unless

against the manifest weight of the evidence).  

         However, where (1) the facts are undisputed, (2) the

credibility of witnesses is not an issue, and (3) in-court

testimony has not been presented, a question of law is presented,

and a reviewing court may consider the question de novo.  People

v. Besser, 273 Ill. App. 3d 164, 167, 652 N.E.2d 454, 456 (1995).

Because in this case the trial court considered in-court testimo-

ny as part of its decision, we will not overturn the trial

court's ruling unless it is against the manifest weight of the

evidence.        

         In the present case, McGee sought leave to add respon-

dents in discovery as defendants pursuant to section 3 of the

Responsibility Law.  That section provides as follows:

              "The parent or legal guardian of an

         unemancipated minor who resides with such

         parent or legal guardian is liable for actual

         damages for the wilful or malicious acts of

         such minor which cause injury to a person or

         property."  740 ILCS 115/3 (West 1992).

Thus, McGee was required to establish that a person of ordinary

caution and prudence would entertain an honest and strong suspi-

cion that John was an unemancipated minor residing with his

parents pursuant to section 3 of the Responsibility Law.  (It is

undisputed that John was a minor under section 2 of the Responsi-

bility Law (740 ILCS 115/2 (West 1992)) at the time of the shoot-

ing.)   

         Judy's deposition testimony showed that James and Judy

maintained a furnished bedroom for John, which he frequently used

during the short time period between early June 1993 (when he

moved to a shared apartment) and July 7, 1993 (the date of the

shooting).  In addition, the Heimburgers provided John with a

vehicle that he used on a daily basis.  John also continued to

receive some mail at his parents' residence.  Further, at the

time of the shooting, he worked on the family farm in exchange

for other consideration, such as car insurance payments.  

         Viewing the record before us in accordance with the

appropriate standard of review and consistent with the low

threshold plaintiff needs to cross of demonstrating the existence

of only "probable cause," we conclude that the trial court's

determination that McGee failed to establish that a person of

ordinary caution and prudence would entertain an "honest and

strong suspicion" that John was an unemancipated minor residing

with his parents at the time of the shooting was against the

manifest weight of the evidence.  Accordingly, we hold that the

trial court erred by denying McGee's motion to convert James and

Judy from respondents in discovery to defendants pursuant to

section 3 of the Responsibility Law.

         We note in passing the following remarks from the trial

court in this case that were directed to defense counsel at the

hearing on plaintiff's motion to convert:

              "[Counsel, your opposing counsel] cites

         some factors that would raise a question

         about emancipation; whereas, you raise other

         factors that seem to indicate that the boy

         was not emancipated.

              With that presentation, isn't it a mat-

         ter of fact that the jury has to decide rath-

         er than myself?"

The trial court was correct in this assessment; unfortunately,

defense counsel subsequently persuaded the court to hold other-

wise.

                             III. CONCLUSION

         For the reasons stated, we affirm the trial court's

judgment in part and reverse in part, and remand for further

proceedings consistent with the views expressed herein.

         Affirmed in part and reversed in part; cause remanded

with directions.

         GARMAN and KNECHT, JJ., concur.