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Worley v. Barger
State: Illinois
Court: 5th District Appellate
Docket No: 5-02-0679 Rel
Case Date: 03/31/2004

                  NOTICE
Decision filed 03/31/04.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-02-0679

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


KELLI WORLEY,

     Plaintiff-Appellant,

v.

KARA BARGER,

     Defendant-Appellee.

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Appeal from the
Circuit Court of
Pope County.

No. 01-L-1

Honorable
Bruce D. Stewart,
Judge, presiding.



JUSTICE DONOVAN delivered the opinion of the court:

Plaintiff, Kelli Worley, appeals the order of the circuit court of Pope Countydismissing her complaint to recover for lost wages she claimed to have suffered in order toprovide care for her minor child, Kelly Barger, who was injured in a car accident as theresult of defendant's negligence. For the following reasons, we find that the parent is entitledto recover the reasonable value of the services rendered in caring for her minor child whowas injured as a result of defendant's negligence. We reverse and remand for furtherproceedings.

 

BACKGROUND

The plaintiff in this case, Kelli Worley, is the mother and custodial parent of theminor child, Kelly Barger. On June 28, 1999, while Kelly was a passenger in an automobileoperated by defendant, Kara Barger, the automobile left the road and overturned, resultingin injuries to Kelly. A settlement was reached on behalf of Kelly against defendant. Afterthe settlement, plaintiff filed a complaint attempting to recover for lost wages she claimedto have sustained in order to provide care for Kelly as a direct result of the negligence ofdefendant. Defendant filed a motion to dismiss pursuant to section 2-619 of the Code ofCivil Procedure (735 ILCS 5/2-619 (West 2000)), claiming that defendant owed no legalduty to plaintiff that would allow her to collect the claimed lost wages. The court heardarguments from counsel and dismissed the complaint with leave to amend. Plaintiff filed herfirst amended complaint and realleged the allegations from the original complaint. Defendant filed a motion to dismiss plaintiff's first amended complaint, pursuant to section2-619. On September 9, 2002, the trial court entered an order finding that plaintiff'scomplaint did not state a cause of action. It is from this order that plaintiff appeals.

 

ANALYSIS

Although the motion was filed as a section 2-619 motion to dismiss, we will analyzeit as a motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)), because the motion challenges the legal sufficiency of the complaint. SeeChandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d 724, 733 (2003). "Asection 2-615 motion attacks only a complaint's legal sufficiency; its purpose is not to raiseaffirmative factual defenses but rather to allege defects apparent on the face of thepleadings." Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 712, 722 N.E.2d1167, 1170 (1999). In reviewing a section 2-615 dismissal, a reviewing court must decidewhether the allegations, when construed in the light most favorable to the plaintiff, aresufficient to establish a cause of action upon which relief may be granted. A cause of actionshould be dismissed only if it is clearly apparent from the pleadings that no set of facts canbe proven which will entitle the plaintiff to recovery. Chandler, 207 Ill. 2d at 349, 798N.E.2d at 733. The review of a section 2-615 dismissal is conducted de novo. Chandler,207 Ill. 2d at 349, 798 N.E.2d at 733; see also Bajwa v. Metropolitan Life Insurance Co., 208Ill. 2d 414, 804 N.E.2d 519 (2004).

To recover in a negligence action, a plaintiff must allege facts from which a court willfind a duty of care owed by the defendant to the plaintiff, a breach of the duty, and an injuryproximately caused by the breach. Chandler, 207 Ill. 2d at 340, 798 N.E.2d at 728. Todetermine whether a duty exists, a court must consider the following factors: (1) thereasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude ofguarding against the injury, and (4) the consequences of placing that burden on thedefendant. Bajwa, 208 Ill. 2d at 427, 804 N.E.2d at 529; Jones v. Chicago HMO Ltd. ofIllinois, 191 Ill. 2d 278, 303, 730 N.E.2d 1119, 1134 (2000); Bucheleres v. Chicago ParkDistrict, 171 Ill. 2d 435, 456, 665 N.E.2d 826, 836 (1996).

We are presented with the issue of whether a parent has a right to recover the wageslost while caring for a child who was injured as a result of a defendant's negligence. Surprisingly, there is little case law regarding this issue in Illinois. However, it is wellestablished that a parent is allowed to recover the child's loss of earnings and medical andcaretaking expenses during the child's minority. The Comment to instruction number 30.08of the Illinois Pattern Jury Instructions provides as follows:

"In actions for damages arising out of an injury to an unemancipated minor,the loss of earnings [and] medical and caretaking expense during the child's minorityare recoverable by the parents. The child, therefore, is limited to the loss of earnings[and] medical or caretaking expense he would have incurred after reaching hismajority. Wolczek v. Public Service Co. of N. Ill., 342 Ill. 482, 496, 174 N.E. 577,583 (1930). The usual practice in Illinois, however, is to sue for all damages in theminor's action. This is accomplished by alleging an assignment[] or waiver orrelinquishment by the parents of their right to recover these damages. Curtis v. Lowe,338 Ill. App. 463, 87 N.E.2d 865 (2d Dist. 1949)." (Emphasis added.) IllinoisPattern Jury Instructions, Civil, No. 30.08, Comment, at 141 (1995).

In the case at bar, the issue of plaintiff's lost wages was brought in a separate causeof action because the minor's cause of action had been settled and plaintiff's claim of lostwages had not been addressed in the minor's settlement documents.

Historically, there is some support for plaintiff's position. In Seltzer v. Saxton, 71 Ill.App. 229 (1897), a father brought a negligence cause of action against a store owner. Thefather sought damages for the care he provided to his son after his son had been blinded inone eye as a result of the store owner's actions. According to the syllabus of the opinion, thefather argued that "[i]n a suit by a parent for loss of services, the parent may recover for timespent in caring for and nursing the child. Connell v. Putnam, 58 New Hampshire, 534." Seltzer, 71 Ill. App. at 232. In affirming a jury verdict in the amount of $2,900 for the father,the court held: "The plaintiff was entitled to recover a reasonable sum for actual losssustained and to be sustained by reason of the defendant's act. This actual loss would bemade up of expense and trouble in caring for the child and the deprivation of his servicesduring minority." Seltzer, 71 Ill. App. at 233. Similarly, in Baltimore & O. S.-W. Ry. Co.v. Keck, 89 Ill. App. 72 (1899), the court allowed a parent to recover for medical bills andfor necessary care in nursing the boy until his recovery, because it was the parent's duty tocare for his boy. Keck, 89 Ill. App. at 78.

More recently, in Doe v. Montessori School of Lake Forest, 287 Ill. App. 3d 289, 678N.E.2d 1082 (1997), a private preschool student, by her father and next friend, and herparents, on their own behalf, sued the school and its employees. The plaintiffs soughtdamages for negligence, intentional torts, negligent or intentional infliction of emotionaldistress, fraudulent concealment, and conspiracy to conceal, in connection with allegedsexual contact committed against the student. The circuit court dismissed the cause ofaction. The plaintiffs argued that the trial court had erred when it found that the parents,John and Mary Doe, could not maintain an independent cause of action for the intentionalinfliction of emotional distress, civil conspiracy, or fraudulent concealment because theirclaims derived from plaintiff Jane Doe's claims against defendants.

In reversing the trial court, the appellate court determined that although parents do nothave a primary cause of action against a defendant for injuries received by their child, "it isuniversally recognized that parents may maintain an action in their own right for anyimpairment of parental rights caused by the injuries, particularly for any pecuniary lossessuffered as a result of the injuries." (Emphasis added.) Doe, 287 Ill. App. 3d at 301-02, 678N.E.2d at 1092. The court reasoned, "[T]he parent's right of action, although distinct fromthe child's right of action, is based upon and arises out of the negligence that causes theinjury to the child." Doe, 287 Ill. App. 3d at 302, 678 N.E.2d at 1092.

Additionally, support for plaintiff's position can be found in the decisions of otherstates and in the Restatement (Second) of Torts. Section 703 of the Restatement (Second)of Torts, entitled "Action by Parent for Harm Caused by Tort Against Minor Child," states:

"One who by reason of his tortious conduct is liable to a minor child for illness orother bodily harm is subject to liability to

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(b) the parent who is under a legal duty to furnish medical treatment for anyexpenses reasonably incurred or likely to be incurred for the treatment during thechild's minority." Restatement (Second) of Torts

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