No. 2-14-0908 Opinion filed May 15, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

SCOTT STEARNS, as Executor of the ) Appeal from the Circuit Court Estate of Marjorie Stearns, Deceased, ) of Kane County. ) Plaintiff-Appellant, ) ) v. ) No. 11-L-487 ) RIDGE AMBULANCE SERVICE, INC., ) and JERRY BROOKS, ) ) Defendants ) ) Honorable (Countryside Care Centre, Inc., Defendant- ) John G. Dalton, Appellee). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Jorgensen and Hudson concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Scott Stearns, as executor of the estate of Marjorie Stearns, deceased (Marjorie),

filed a multi-count complaint under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West

2010)) and the Survival Act (755 ILCS 5/27-6 (West 2010)) against Ridge Ambulance Service,

Inc. (Ridge), Jerry Brooks, and Countryside Care Centre, Inc. (Countryside). Marjorie, who

resided in a nursing home operated by Countryside, died as a result of injuries sustained while

Ridge transported her back to the nursing home following treatment at an offsite dialysis center.

Brooks, who was an employee of Ridge, was driving the medical transport vehicle (medi-van) in

which Marjorie’s injuries occurred. Countryside’s successful motion for summary judgment on

the claims against it gives rise to this appeal under Illinois Supreme Court Rule 304(a) (eff. Feb.

26, 2010). We reverse and remand.

¶2 The pleadings, along with depositions, affidavits, and exhibits submitted in support of

and in opposition to Countryside’s summary-judgment motion, establish the following facts. At

the time of the incident giving rise to this lawsuit, Marjorie was 89 years old and suffered from

dementia. Countryside’s records indicate that late in July 2009 Marjorie had been found in a

kneeling position wedged between the footrests of her wheelchair. A few weeks later, Marjorie

was found lying on the floor of her room. Her care plan called for the use of bed and chair

alarms.

¶3 Countryside arranged to have Ridge transport Marjorie to a dialysis facility on September

1, 2009, but did not convey any special instructions to Ridge about Marjorie’s risk of falling.

Brooks was assigned to drive Marjorie on her return trip to the nursing home. Brooks testified at

his deposition that he met Marjorie in a waiting area. She was seated in a wheelchair. Brooks

wheeled her to the medi-van, loaded her into it using a wheelchair lift, and secured the

wheelchair inside the medi-van using floor locks. Brooks then placed a safety belt around

Marjorie. According to Brooks, the safety belt was attached to the medi-van’s floor and ceiling

and ran diagonally from Marjorie’s shoulder to her hip. There was no lap belt to secure Marjorie

to the wheelchair.

¶4 Brooks testified that Marjorie had brought a book with her. During the ride back to the

nursing home, Brooks heard the book fall and Marjorie told him that it had fallen. Brooks told

Marjorie that he would take care of the book and that she should not worry about it. About two

minutes later, Brooks noticed that Marjorie appeared to be reaching for the book. Brooks said

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something to the effect of “no, don’t do that, I’ll get it.” Seconds later Brooks saw Marjorie start

to stand up. At that point another vehicle merged in front of the medi-van, forcing Brooks to

brake abruptly. When Brooks did so, Marjorie fell forward and her head struck a metal object.

Marjorie died about two weeks later. Ridge’s medi-van supervisor, Derrick Johnson, testified at

his deposition that Ridge was then (i.e. at the time of the deposition) using a restraint system

with a belt that ran around the passenger’s torso and the back of the passenger’s wheelchair. The

buckle was located behind the wheelchair. Johnson believed that this restraint system was

available at the time of Marjorie’s accident.

¶5 The nursing home’s administrator, Kimberly Kohls, testified at her deposition that she

was responsible for all aspects of the facility’s operations, including the selection of vendors to

provide transportation services for residents. She testified that chair alarms are used with

patients who, for any of various reasons (including cognitive problems), might have difficulty

complying with instructions to request assistance before attempting to stand from a chair.

¶6 Laura Westergard, a registered nurse with 30 years’ experience in the field of long-term

care, executed an affidavit stating that she had reviewed various documents pertaining to

Marjorie and the accident that preceded her death. Westergard further stated as follows:

“Countryside *** undertook to furnish transportation for residents in connection

with outside medical care by selecting a transportation vendor. Based on [Marjorie’s] fall

history, fall risk, [cognitive impairments,] and need for safety interventions, the standard

of care required Countryside to take or ensure such precautions as would prevent her

from getting out of the wheelchair during medivan transport. This could have been

accomplished in several ways: Countryside could have sent someone in the medivan with

[Marjorie] for supervision; Countryside could have educated Ridge (the transportation

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vendor) about the risks of [Marjorie] and arranged for Ridge to send in the medivan

additional personnel for supervision; Countryside could have ensured use in the medivan

of a seatbelt that would not allow [Marjorie] to disengage and stand up during transport.”

¶7 Summary judgment is proper where “the pleadings, depositions, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West

2010). “The purpose of summary judgment is to determine whether a genuine issue of material

fact exists, not to try a question of fact.” Thompson v. Gordon,

(2011).

Furthermore, “[s]ummary judgment should be granted only when the right of the moving party is

clear and free from doubt.”

An order entering summary judgment is subject to de novo

review. Colburn v. Mario Tricoci Hair Salons & Day Spas, Inc.,

.

¶8 The elements of a common-law cause of action for negligence are “the existence of a

duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury

proximately caused by that breach.” Marshall v. Burger King Corp.,

(2006).

In granting Countryside’s motion for summary judgment, the trial court concluded that, as a

matter of law, Countryside owed no duty to protect Marjorie from the risk of injury resulting

from her failure to remain seated in her wheelchair while in transit from an offsite treatment

facility. Plaintiff argues that a nursing home has both a common-law and a statutory duty to

exercise care to avoid injury to residents and that that duty is not categorically limited to

guarding against injuries that occur on its premises. Plaintiff further contends that the trial court

“misapprehended the distinction between duty and standard of care and erroneously applied a

duty analysis to what is a standard of care issue.”

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¶9 Illinois courts have long struggled with the concept of duty, which has been described as

“ ‘very involved, complex and indeed nebulous.’ ”

at 435 (quoting Mieher v. Brown,

(1973)). Professor Dan B. Dobbs, a leading authority on tort law, has noted that

lawyers and judges sometimes “use duty to refer to a general standard or obligation” whereas at

other times they “use duty as a conclusion about whether the defendant’s particular act or

omission should be actionable, irrespective of any general standard.” 1 Dan B. Dobbs, The Law

of Torts § 226, at 577 (2001) (cited with approval in Marshall,

).

¶ 10 In Simpkins v. CSX Transportation, Inc.,

, our supreme court

offered the following summary of the principles governing the determination of whether a duty

exists:

“As we have held in the past, ‘[t]he touchstone of this court’s duty analysis is to ask

whether a plaintiff and a defendant stood in such a relationship to one another that the

law imposed upon the defendant an obligation of reasonable conduct for the benefit of the

plaintiff.’ (Emphasis added.) [Citations.] The ‘relationship’ referred to in this context

acts as a shorthand description for the sum of four factors: (1) the reasonable

foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the

burden of guarding against the injury, and (4) the consequences of placing that burden on

the defendant. [Citations.] The determination of such a ‘relationship,’ as sufficient to

establish a duty of care, requires considerations of policy inherent in the consideration of

these four factors and the weight accorded each of these factors in any given analysis

depends on the circumstances of the case at hand. ***

Generally, individuals (and businesses) do not owe an affirmative duty to protect

or rescue a stranger. [Citation.] However, this court has long recognized that ‘every

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person owes a duty of ordinary care to all others to guard against injuries which naturally

flow as a reasonably probable and foreseeable consequence of an act, and such a duty

does not depend upon contract, privity of interest or the proximity of relationship, but

extends to remote and unknown persons.’ [Citations.] Thus, if a course of action creates

a foreseeable risk of injury, the individual engaged in that course of action has a duty to

protect others from such injury. This does not establish a ‘duty to the world at large,’ but

rather this duty is limited by the considerations discussed above. ***

Even when one has not created the risk of harm, a duty to take affirmative action

to aid another may arise where a legally recognized ‘special relationship’ exists between

the parties. [Citation.] Such duties are, indeed, premised upon a relationship between the

parties that is independent of the specific situation which gave rise to the harm. We have

recognized four relationships that give rise to an affirmative duty to aid or protect another

against an unreasonable risk of physical harm: ‘common carrier and passenger, innkeeper

and guest, custodian and ward, and possessor of land who holds it open to the public and

member of the public who enters in response to the possessor’s invitation.’ ***

Thus, the duty analysis must begin with the threshold question of whether the

defendant, by his act or omission, contributed to a risk of harm to this particular plaintiff.

If so, we weigh the four factors to determine whether a duty ran from the defendant to the

plaintiff: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury,

(3) the magnitude of the burden of guarding against the injury, and (4) the consequences

of placing that burden on the defendant. If the answer to this threshold question is ‘no,’

however, we address whether there were any recognized ‘special relationships’ that

establish a duty running from the defendant to the plaintiff.” (Emphasis in original.)

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¶ 11 These standards do not necessarily resolve the confusion noted by Professor Dobbs and

the Marshall court about whether “duty” encompasses rules of broad applicability or is, to the

contrary, a highly fact-specific inquiry into whether a particular act or omission is actionable in a

particular set of circumstances. In certain settings—motor-vehicle-accident cases, for example—

it is not unusual to encounter duty rules of broad applicability. For instance, in Mulloy v.

American Eagle Airlines, Inc.,

(2005), it was stated that “[t]he operator

of a motor vehicle has the duty to use ordinary care to avoid injuring a pedestrian.” The Mulloy

court did not attempt to tailor a duty rule to the specific circumstances of the case (although the

court upheld a directed verdict on the basis that there was insufficient evidence from which the

jury could conclude that the driver of the vehicle in question had breached the standard of

ordinary care).

.

¶ 12 Lance v. Senior,

(1967), reflects a more fact-specific duty analysis. In

Lance, the plaintiff was a nine-year-old boy afflicted with hemophilia. In his complaint he

alleged that, while he was a guest in the defendants’ home, they “ ‘negligently and carelessly

permitted and allowed’ the plaintiff to play with a needle ‘which was caused to and did get into

the throat of the plaintiff and was thereafter sucked into the inner part of the plaintiff’s lung.’ ”

. The trial court dismissed the complaint on the basis that the duty owed by the

defendants was only to refrain from willfully or wantonly injuring the plaintiff. The Appellate

Court, First District, reversed, holding that ordinary negligence principles applied and that the

case presented a question of foreseeability for the jury to decide. Lance v. Senior,

(1966). Our supreme court reversed the appellate court, reasoning as follows:

“In many negligence cases no more than foreseeability is involved. And because so

many actions grounded upon negligence involve familiar patterns of conduct, it is easy to

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forget that implicit in an allegation of negligence is the assertion of a failure to comply

with the standard of care that the law requires—the assertion of a duty and its breach.

[Citations.] In the present case, for example, implicit in the allegation that the defendants

‘negligently and carelessly permitted and allowed the plaintiff to play with a needle’, is

an assertion that the law imposed a duty upon the defendants to guard against the risk that

a nine-year-old boy who was a guest in their home, would swallow or otherwise ingest a

needle.

After the event, hindsight makes every occurrence forseeable [sic], but whether

the law imposes a duty does not depend upon forseeability [sic] alone. The likelihood of

injury, the magnitude of the burden of guarding against it and the consequences of

placing that burden upon the defendant, must also be taken into account. In the present

case the risk that a nine-year-old boy would swallow or otherwise ingest a needle is

minimal. The allegation that the defendants knew that the plaintiff was a hemophiliac

does not justify the imposition of this duty, for it suggests that the plaintiff, who was not

alleged to be mentally defective, would have been taught to guard against the special

hazards to which his condition made him particularly vulnerable. The burden sought to

be imposed upon the defendants is a heavy one, which would require intimate and

constant surveillance. The existence of such a legal obligation, if generally known,

would discourage persons in the position of the defendants from affording opportunities

for children like the plaintiff to mingle with others, and would tend to isolate those

children in their own homes. For these reasons, we hold that the complaint was properly

dismissed because it does not allege facts upon which a recovery may be had.” Lance,

.

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¶ 13 In recent years, our supreme court has indicated (at times somewhat indirectly) that the

weight to be given to each of the four factors in the duty analysis (foreseeability of the injury,

likelihood of the injury, magnitude of the burden of guarding against the injury, and

consequences of placing the burden on the defendant) depends on the facts of a given case. See,

e.g., Bruns v. City of Centralia,

; Simpkins,

.

However, in Marshall, our supreme court recognized that purely ad hoc determinations that a

defendant has a duty to perform or refrain from performing particular acts improperly conflate

the concepts of duty and breach. Marshall,

. As the Marshall court observed,

“Courts could, after all, ‘state an infinite number of duties if they spoke in highly particular

terms,’ and while particularized statements of duty may be comprehensible, ‘they use the term

duty to state conclusions about the facts of particular cases, not as a general standard.’ ”

(quoting 1 Dan B. Dobbs, The Law of Torts § 226, at 577 (2001)).

¶ 14 In Marshall, the plaintiff’s decedent was fatally injured when a motor vehicle crashed

through the wall of the Burger King restaurant where he was eating. The plaintiff sought

recovery both from the Burger King Corporation and from the franchisee that operated the

restaurant, alleging that they failed to design the structure to withstand the impact from a motor

vehicle or to place concrete pillars or poles outside the structure as protective barriers. The

defendants argued that they owed no duty to the decedent to protect him from the risk that an

out-of-control motor vehicle would crash into the restaurant and strike him. Our supreme court

held that “[b]ased on the allegations in plaintiff’s complaint, the duty of care that a business

invitor owes to invitees to protect them against the unreasonable risk of physical harm is clearly

applicable to this case.” Id. at 440. The Marshall court expressly declined to frame the duty in

more specific terms, i.e. as a duty to install concrete pillars or poles. Id. at 443 (“the issue in this

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case is not whether defendants had a duty to install protective poles, or a duty to prevent a car

from entering the restaurant, or some such other fact-specific formulation”).

¶ 15 Here Countryside argues for a fact-specific formulation of duty. Countryside argues that

the first two factors in the traditional duty analysis—the foreseeability and likelihood of the

injury—militate against imposing a duty on Countryside. Countryside stresses that the record

shows that Ridge had transported Marjorie to and from the dialysis center, without incident, on

numerous occasions prior to September 1, 2009. Countryside further argues that the magnitude

of the burden of guarding against the injury and the consequences of placing that burden on

Countryside also militate against imposition of a duty. Countryside contends that, because

Marjorie was injured while returning from offsite dialysis treatment, it had no opportunity either

to instruct her driver (Brooks) about any special precautions for Marjorie’s safety or to inspect

the medi-van. Countryside argues that sending an aide along with Marjorie “would negate the

entire purpose of hiring a licensed transportation service with experience and expertise in

transporting medical patients and long-term care residents.” Moreover, according to

Countryside, imposing such a duty “would disrupt the feasibility and cost-effectiveness for

businesses utilizing the services of independent contractors providing transportation services, as

well as a host of other specialized services.” Countryside acknowledges only a duty to exercise

care in selecting a vendor to provide transportation services, seemingly renouncing the

possibility of liability on any other basis for harm befalling a resident while in transit.

¶ 16 The rule that would emerge from Countryside’s analysis is that, where a nursing-home

resident has been transported offsite in the past, without incident, by a properly vetted third-party

transportation service, the nursing home has no duty: (1) to inspect the vehicle in which the

resident will be returning to the nursing home; (2) to instruct the driver of that vehicle about any

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precautions for the resident’s safety; or (3) to have a nursing-home employee accompany the

resident. However, as noted, duties are not to be formulated so narrowly. And indeed, even in

this context, this court has stated, in far broader terms, that “[t]he proprietors of a convalescent

home, somewhat like those of a private hospital, are under a duty to exercise reasonable care to

avoid injury to patrons, and the reasonableness of such care is to be assessed in the light of the

patron’s physical and mental condition.” Stogsdill v. Manor Convalescent Home, Inc.,

(1976). We added that “a hospital is required ‘ [“]to conform to the legal

standard of reasonable conduct in the light of the apparent risk.[”] ’ ”

(quoting Darling v.

Charleston Community Memorial Hospital,

(1965), quoting William L.

Prosser, The Law of Torts, at 331 (3d ed. 1964)).

¶ 17 Neither Stogsdill nor Darling explained whether the duty was predicated on the four

factors discussed in Lance, Marshall, and Simpkins (i.e. foreseeability of the injury, likelihood of

the injury, magnitude of the burden of guarding against the injury, and consequences of placing

the burden on the defendant) or on a special relationship between the parties. 1 In the case of a

nursing home, recognition of a duty would appear to be appropriate on either basis. There can be

no doubt that nursing-home residents are at a foreseeable risk of, and likely to sustain, any of a

variety of injuries if appropriate precautions are not taken. We note that the foreseeability factor

1 In Simpkins,

, the supreme court indicated that these standards are

not alternative but rather depend on the answer to the “threshold question” of whether the

defendant contributed to the risk of harm to the plaintiff. Subsequently, however, in Doe-3 v.

McLean County Unit District No. 5 Board of Directors,

, the court

seemed to treat the standards as alternative, without asking the “threshold question.” At least in

this context, we do likewise.

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focuses on “ ‘the general character of the event or harm *** not its precise nature or manner of

occurrence.’ ” Marshall,

(quoting Bigbee v. Pacific Telephone & Telegraph

Co.,

(Cal. 1983)). Further, it would be incongruous to hold that guarding

against the general class of risks faced by nursing-home residents is too great a burden to impose

on nursing homes.

¶ 18 In any event, as noted, our supreme court has recognized four special relationships that

give rise to a duty of care. Simpkins,

. Although, to our knowledge,

Illinois courts have not specifically identified the relationship between a nursing home and one

of its residents as a “special relationship,” it is possible that, in addition to the four that have been

recognized, there may be other special relationships that give rise to a duty. See Fancil v. Q.S.E.

Foods, Inc.,

(1975). Moreover, the relationship between a nursing home

and a resident can be viewed as a specific instance of the “custodian and ward” relationship. “A

special relationship exists where, inter alia, one voluntarily takes custody of another so as to

deprive the other of his normal opportunities for protection.” Platson v. NSM, America, Inc.,

(2001). The term “custody” is not used in a particularly technical sense.

For instance, in Platson, we held that allegations that a high school student worked for a business

under a work-study program sponsored by her school were sufficient to show a special

relationship giving rise to a duty on the business’s part to protect the student from sexually

predatory behavior by one of the business’s employees. A physically infirm and cognitively

impaired nursing-home resident depends upon the staff of the nursing home to prevent injury.

The relationship is sufficiently custodial to give rise to a duty.

¶ 19 The fact-specific analysis undertaken by Countryside conflates the issues of duty and

breach. See Marshall,

. Countryside owed Marjorie a duty of care. What

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Countryside should or could have done to protect Marjorie bears on the question of whether

Countryside breached its duty. And on the record here, that is a question of fact. The factual

determination whether Countryside exercised due care is not amenable to artificial and arbitrary

rules that insulate Countryside from liability for anything other than negligence in selecting a

transportation service. Plaintiff does not seek to hold Countryside vicariously liable for the

negligence of the other defendants; he seeks the opportunity to show Countryside’s own

negligence in failing to properly communicate with those defendants or to provide additional

personnel to assist the other defendants in protecting Marjorie from harm while in transit.

Plaintiff is entitled to present these theories of negligence to a jury.

¶ 20 Countryside argues that summary judgment was appropriate for the alternative reason

that the record shows that plaintiff cannot establish the element of proximate cause. A party

seeking summary judgment bears an initial burden of production that can be met in either of two

ways: “(1) by affirmatively disproving the plaintiff’s case by introducing evidence that, if

uncontroverted, would entitle the movant to judgment as a matter of law (traditional test)

[citation], or (2) by establishing that the nonmovant lacks sufficient evidence to prove an

essential element of the cause of action (Celotex [Corp. v. Catrett,

(1986),] test)

[citations].” Williams v. Covenant Medical Center,

(2000). “Only

if a defendant satisfies its initial burden of production does the burden shift to the plaintiffs to

present some factual basis that would arguably entitle them to judgment under the applicable

law.”

.

¶ 21 Countryside maintains that it is entirely speculative that any of the precautions that

plaintiff’s expert recommended would have prevented the accident. In this respect, Countryside

treats its summary-judgment motion as a Celotex-type motion. The introductory section of

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Countryside’s memorandum of law in support of its motion for summary judgment contained the

cursory assertion that “[t]here is no evidence or testimony whatsoever in this case to show that

*** any action or inaction of Countryside or its staff proximately caused [Marjorie’s] injury.”

However, the remainder of Countryside’s memorandum of law focused on whether Countryside

owed Marjorie a duty of care. The bare assertion that plaintiff could not establish proximate

cause was insufficient to shift the burden to plaintiff to come forward with evidence of proximate

cause. Id. at 690.

¶ 22 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed

and the cause is remanded for further proceedings.

¶ 23 Reversed and remanded.

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