{ "id": 799409, "name": "SHANDOULIA WALLACE, Indiv. and as Adm'r of the Estate of Waketta Roy Wallace, Deceased, Appellant, v. JOHN P. SMYTH et al., Appellees", "name_abbreviation": "Wallace v. Smyth", "decision_date": "2002-12-19", "docket_number": "No. 93144", "first_page": "441", "last_page": "456", "citations": [ { "type": "official", "cite": "203 Ill. 2d 441" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "51 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3383544 ], "year": 1977, "pin_cites": [ { "page": "319", "parenthetical": "holding that the immunity under the School Code does not extend to private day-care centers, nursery schools, and kindergartens governed by the Child Care Act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0313-01" ] }, { "cite": "63 Ill. 2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427298 ], "year": 1976, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0165-01" ] }, { "cite": "198 Ill. 2d 475", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29959 ], "year": 2002, "pin_cites": [ { "page": "480", "parenthetical": "sections 24 - 24 and 34 - 84a of the School Code grant educational employees the same immunity enjoyed by parents" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0475-01" ] }, { "cite": "51 Ill. App. 3d 972", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3382664 ], "year": 1977, "pin_cites": [ { "page": "974", "parenthetical": "\"the rationale behind the [parental immunity] rule loses its persuasive force as one considers situations involving other than the actual parent\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0972-01" ] }, { "cite": "288 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1597021 ], "year": 1997, "pin_cites": [ { "page": "517", "parenthetical": "\"Foster parents are nearly as much in need of leeway [in regard to the supervision and discipline of those children under their care] as are natural parents\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0510-01" ] }, { "cite": "61 Ill. App. 577", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5162532 ], "year": 1895, "opinion_index": 0, "case_paths": [ "/ill-app/61/0577-01" ] }, { "cite": "7 Ill. 2d 608", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2712058 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/7/0608-01" ] }, { "cite": "71 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449385 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "49" }, { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0047-01" ] }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "year": 1993, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] }, { "cite": "57 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406059 ], "year": 1974, "pin_cites": [ { "page": "406-07", "parenthetical": "expressly disapproving of hybrid dismissal/ summary judgment motions, but refusing to waste judicial resources by remanding for the defendants to correct their motion" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0398-01" ] }, { "cite": "298 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073634 ], "year": 1998, "pin_cites": [ { "page": "1047" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/1040-01" ] }, { "cite": "306 Ill. App. 3d 927", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336127 ], "year": 1999, "pin_cites": [ { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0927-01" ] }, { "cite": "318 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279745 ], "year": 2001, "pin_cites": [ { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0869-01" ] }, { "cite": "327 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79438 ], "weight": 3, "pin_cites": [ { "page": "419-20" }, { "page": "421" }, { "page": "422", "parenthetical": "Cahill, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0411-01" ] }, { "cite": "191 Ill. 2d 562", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 75", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257173 ], "weight": 7, "year": 1998, "pin_cites": [ { "page": "80" }, { "page": "80" }, { "page": "80" }, { "page": "80-81" }, { "page": "81" }, { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0075-01" ] }, { "cite": "192 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453267 ], "weight": 7, "year": 2000, "pin_cites": [ { "page": "235" }, { "page": "244-45" }, { "page": "246" }, { "page": "246" }, { "page": "246-47" }, { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0233-01" ] }, { "cite": "156 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777563 ], "weight": 14, "year": 1993, "pin_cites": [ { "page": "85" }, { "page": "88" }, { "page": "98-99" }, { "page": "101-02" }, { "page": "103" }, { "page": "104" }, { "page": "105" }, { "page": "106" }, { "page": "105" }, { "page": "99", "parenthetical": "\"where the family relationship is dissolved or where that relationship has ceased to exist with respect to conduct giving rise to the injury, the immunity will not be applied\"" }, { "page": "105" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0076-01" ] }, { "cite": "192 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453267 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "253-73", "parenthetical": "Freeman, J., dissenting" }, { "page": "272-73", "parenthetical": "Freeman, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/192/0233-01" ] } ], "analysis": { "cardinality": 1140, "char_count": 26468, "ocr_confidence": 0.778, "pagerank": { "raw": 2.0438091665381642e-07, "percentile": 0.7480476660994522 }, "sha256": "e84bf36de2f83a8984a967d615d99159c8fd687b9794b3e36c68fe2f06ab42d6", "simhash": "1:a93a6597ee39f383", "word_count": 4163 }, "last_updated": "2023-07-14T19:27:35.846684+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHANDOULIA WALLACE, Indiv. and as Adm\u2019r of the Estate of Waketta Roy Wallace, Deceased, Appellant, v. JOHN P. SMYTH et al., Appellees." ], "opinions": [ { "text": "JUSTICE FITZGERALD\ndelivered the opinion of the court:\nThe issue in this case is whether, in the wake of our decisions to retain a limited form of parental immunity in Cates v. Cates, 156 Ill. 2d 76 (1993), and to extend this immunity to foster parents in Nichol v. Stass, 192 Ill. 2d 233 (2000), the defendants, a residential child care facility and seven of its employees, enjoyed a similar immunity from the plaintiffs negligence claims after her son died in their care. We conclude that because the corporation-child relationship does not mirror the parent-child relationship, the defendants do not have parental immunity. We reverse the appellate court and the circuit court, and we remand for further proceedings.\nBACKGROUND\nOn June 12,1989, the Illinois Department of Children and Family Services (DCFS) placed one of its wards, 12-year-old Waketta Roy Wallace (Roy), at Maryville Academy (Maryville) for a 90-day diagnostic assessment regarding his future placement. Maryville is a not-for-profit corporation that operates a licensed residential child care facility for state wards. In 1989, Maryville cared for approximately 500 children.\nA month later, on July 11, 1989, Roy reported to the office of Maryville program manager Paul Voltz after school. Voltz confronted Roy about sleeping in study hall. Roy made threatening gestures, and Voltz removed him to an adjacent hallway. Once there, Voltz summoned assistant program manager Laura Angelucci and family educator Jill Jacobe to assist him in restraining Roy. Family educator Jim Geidner also participated for a short time until his shift ended, when he was replaced by family educator Xavier Collier. Eventually, after a struggle, Roy was placed on his stomach with his arms crossed in front of his abdomen and his wrists held to the floor. The restraint continued for more than four hours and ended in Roy\u2019s death from positional asphyxia.\nRoy\u2019s mother, Shandoulia Wallace, filed a four-count complaint in the circuit court of Cook County against Maryville, its executive director Reverend John Smyth, Voltz, Angelucci, Collier, Geidner, Jacobe, and nurse Dee LeBel. Wallace alleged that the defendants\u2019 negligence, and, alternatively, willful and wanton misconduct, proximately caused Roy\u2019s death. The defendants filed a motion to dismiss Wallace\u2019s negligence claims; they asserted the parental immunity doctrine shielded them from liability. The trial court agreed and dismissed these claims, stating: \u201cI am convinced from the cases that the defendants have tendered to me, and from the arguments made, and everything that I know about the case that Maryville was acting de facto as loco parentis for this child. *** I do not believe that Maryville can be sued under theories of ordinary negligence.\u201d The case proceeded to trial on Wallace\u2019s willful and wanton misconduct claims. After a jury returned a verdict for the defendants, Wallace appealed the dismissal of her negligence claims.\nThe appellate court reversed. Wallace v. Smyth, 301 Ill. App. 3d 75 (1998). The court noted, \u201cAt common law, in loco parentis status belonged to persons who put themselves in a parent\u2019s shoes by assuming all parental obligations toward a child without going through the formalities of legal adoption.\u201d Wallace, 301 Ill. App. 3d at 80. After reviewing Wallace\u2019s negligence allegations, the court rejected the defendants\u2019 argument that Wallace conceded they stood in loco parentis by pleading that Maryville was licenced by the state to house, care for, and educate children. Wallace, 301 Ill. App. 3d at 80. The court held that housing, caring for, and educating a child do not confer in loco parentis status. Wallace, 301 Ill. App. 3d at 80. According to the appellate court, teachers are in loco parentis with regard to students under the School Code, but no statutory equivalent exists to insulate an entity like Maryville against allegations that it negligently disciplined a child. Wallace, 301 Ill. App. 3d at 80-81. Rather, in conjunction with Illinois\u2019 statutory scheme, DCFS bore ultimate responsibility for traditional parental functions with regard to Roy. Wallace, 301 Ill. App. 3d at 81, citing 89 Ill. Adm. Code \u00a7\u00a7 359.7, 359.9 (1996). The appellate court concluded that Wallace\u2019s allegations did not show Maryville stood in loco parentis to Roy and that the trial court improperly dismissed her negligence claims. Wallace, 301 Ill. App. 3d at 81.\nThe defendants filed a petition for leave to appeal. While this petition was pending, we decided Nichol. Accordingly, we denied the defendant\u2019s petition and remanded this cause to the appellate court for additional consideration in light of Nichol. See Wallace v. Smyth, 191 Ill. 2d 562 (2000).\nOn remand, the appellate court discussed both Cates and Nichol and stated:\n\u201cThe similarities between foster parents and defendants are obvious. The wards that foster parents and facilities such as Maryville provide care for are both under the ultimate legal and financial control of DCFS. Further, both foster parents and Maryville assume physical custody of the minors in their care. They both provide day-to-day housing, care, medical attention, supervision, and discipline to those in their care pursuant to extensive DCFS regulations. Those are exactly the types of duties and responsibilities found in Cates and Nichol to be inherent to the parent-child relationship. ***** Both Cates and Nichol make clear that what matters most for purposes of extending immunity is whether the party to whom it is being extended exercises a substantial amount of parental discretion in discipline, supervision, and care of minors. *** [W]e cannot say that there is meaningful difference between foster parents and residential child care institutions such as Maryville so as to preclude the limited form of parental immunity discussed in Cates and Nichol from applying to such institutions and those who work there.\u201d 327 Ill. App. 3d 411, 419-20.\nThe court vacated its previous opinion and remanded to allow Wallace to amend her complaint and allege facts which would preclude parental immunity. 327 Ill. App. 3d at 421.\nIn dissent, Justice Cahill stated:\n\u201cThe opinion in Nichol [citation] is a narrow one. *** Nichol extends a limited form of parental immunity to foster parents. The role of a natural parent and a foster parent in the life of a child is so often similar our supreme court concluded that it would be anomalous to reject a limited form of personal immunity for foster parents. The immunity shields one person in his or her relationship with one child. To now broaden limited immunity to include a corporation, however dedicated, however essential its work, strikes me as a public policy decision for the legislature.\u201d 327 Ill. App. 3d at 422 (Cahill, J., dissenting).\nWe allowed Wallace\u2019s petition for leave to appeal. See 177 Ill. 2d R. 315.\nANALYSIS\nA motion to dismiss under section 2 \u2014 615(a) of the Civil Practice Law (735 ILCS 5/2 \u2014 615(a) (West 2000)) tests the legal sufficiency of the plaintiffs claim, while a motion to dismiss under section 2 \u2014 619(a) (735 ILCS 5/2 \u2014 619(a) (West 2000)) admits the legal sufficiency of the plaintiff\u2019s claim, but asserts certain defects or defenses outside the pleading which defeat the claim. See Provenzale v. Forister, 318 Ill. App. 3d 869, 878 (2001); Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930 (1999). Consistently with the designation the defendants gave to their motion to dismiss, the trial court considered the motion under section 2 \u2014 615. This motion, however, should have been brought under section 2 \u2014 619(a)(9) because the defendants argued that the plaintiffs negligence claim was barred by \u201cother affirmative matter,\u201d namely, parental immunity. 735 ILCS 5/2\u2014 619(a)(2) (West 2000); see Nichol, 192 Ill. 2d at 235. We will address the merits of this appeal, despite the defendants\u2019 error, because Wallace has suffered no prejudice from the defendants\u2019 improper designation. See Storm & Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 1047 (1998); see also Janes v. First Federal Savings & Loan Ass\u2019n of Berwyn, 57 Ill. 2d 398, 406-07 (1974) (expressly disapproving of hybrid dismissal/ summary judgment motions, but refusing to waste judicial resources by remanding for the defendants to correct their motion). Under either section, our standard of review is de novo. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993).\nIn this appeal, Wallace contends that the parental immunity doctrine does not extend to residential child care facilities because such entities do not have a parent-child relationship with the state wards in their care. By contrast, the defendants contend that the doctrine protects any person or entity charged with the day-today care, supervision, and discipline of state wards, regardless of any familial relationship between the child and the person or entity. In the defendants\u2019 view, \u201cthe parental immunity doctrine follows the child.\u201d\nThe parental immunity doctrine, which blocks mere negligence claims, but not willful and wanton misconduct claims (see Gerrity v. Beatty, 71 Ill. 2d 47, 49 (1978), citing Nudd v. Matsoukas, 7 Ill. 2d 608 (1956)), was recognized in Illinois in Foley v. Foley, 61 Ill. App. 577 (1895). Nearly 100 years later, this court first discussed the doctrine at length in Cates. In Cates, a four-year-old girl was seriously injured in an automobile accident involving vehicles driven by her noncustodial father and another driver. The girl, by her mother, filed a negligence complaint against the other driver; she subsequently amended her complaint to add her father as a defendant. The father filed a summary judgment motion, asserting that the parental immunity doctrine blocked the girl\u2019s negligence claim against him. The trial court granted summary judgment to the father. The appellate court reversed and partially abrogated the doctrine in automobile negligence cases.\nWe affirmed the appellate court. Cates, 156 Ill. 2d 76. After concluding that this court had recognized the parental immunity doctrine in earlier cases (Cates, 156 Ill. 2d at 85), we turned to its history. The cases which created the doctrine relied on several public policy justifications: preservation of family harmony, preservation of family assets, and preservation of parental authority. Cates, 156 Ill. 2d at 88. We noted that the family harmony justification was no longer viable: \u201cThe focus has shifted to a concern with preventing litigation concerning conduct intimately associated with the parent-child relationship. *** [Wjhere that relationship is not impacted, the policies supporting the doctrine lose their persuasive strength.\u201d Cates, 156 Ill. 2d at 98-99. We also noted that the family assets justification had become irrelevant with the proliferation of liability insurance. Cates, 156 Ill. 2d at 101-02. We observed that, today, the parental immunity doctrine is supported by other policy concerns:\n\u201cCourts should not be involved in deciding matters between parent and child which concern decisions which those persons are uniquely equipped to make because of that relationship-, to allow otherwise would unnecessarily and obtrusively inject courts into family matters which they are ill-equipped to decide. Such matters, by definition, involve parental discretion in discipline, supervision and care. *** [Tjhose underlying policies ought to determine the scope of the immunity.\u201d (Emphases added.) Cates, 156 Ill. 2d at 103-04.\nIn short, we focused on both the nature of the conduct and the nature of the relationship. Cates, 156 Ill. 2d at 103. The central inquiry, thus, is whether the allegedly negligent conduct is conduct intimately associated with the parent-child relationship \u2014 such as the care, supervision, and discipline of a child. Cates, 156 Ill. 2d at 104. As we observed, \u201cThese limited areas of conduct require the skills, knowledge, intuition, affection, wisdom, faith, humor, perspective, background, experience, and culture which only a parent and his or her child can bring to the situation-, our legal system is ill-equipped to decide the reasonableness of such matters.\u201d (Emphasis added.) Cates, 156 Ill. 2d at 105. We concluded that operating a motor vehicle is not such conduct; accordingly, parental immunity did not block the girl\u2019s negligence claim against her father. Cates, 156 Ill. 2d at 106.\nMore recently, in Nichol, we addressed the issue of who, in addition to biological parents, may claim this immunity. There, the biological parents of a two-year-old child who drowned in a toilet filed a negligence complaint against the child\u2019s foster parents, in whose home the accident occurred. The foster parents filed a motion to dismiss, asserting that they enjoyed sovereign immunity as state employees. The trial court granted the motion, and the biological parents appealed. The appellate court affirmed, and the biological parents appealed to this court. Before us, the foster parents again claimed sovereign immunity, and, as further support for the appellate court\u2019s judgment, claimed parental immunity.\nWe rejected the sovereign immunity argument, but accepted the parental immunity argument:\n\u201c[Although the relationship between foster parents and foster children is not identical with the relationship between biological parents and their children, we believe that it would be anomalous to reject some form of the [parental immunity] defense in these circumstances. The rationale identified by the Cates court as justifying the retention of some portion of the doctrine \u2014 the preservation of parental authority and discipline [citation] \u2014 is also applicable in the foster parent setting. Although foster parents receive compensation for their role, they exercise a substantial amount of discretion in discipline, supervision, and care, areas in which Cates found immunity to be appropriate.\u201d Nichol, 192 Ill. 2d at 244-45.\nAccord Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 517 (1997) (\u201cFoster parents are nearly as much in need of leeway [in regard to the supervision and discipline of those children under their care] as are natural parents\u201d).\nWe compared teachers, who enjoy statutory immunity under the School Code, to foster parents. Like teachers and biological parents, foster parents remain responsible for \u201ca broad range of decisions affecting the vital interests of the children involved.\u201d Nichol, 192 Ill. 2d at 246. We noted, however, that parental immunity in this context is tailored to the peculiar circumstances of the foster parent-child relationship. Nichol, 192 Ill. 2d at 246. Parental immunity is not available to foster parents when the allegedly negligent conduct results in a revocation of their license, a finding of neglect, or a criminal charge; it also cannot override any DCFS regulations. Nichol, 192 Ill. 2d at 246-47. We reversed and remanded to allow the plaintiffs to amend their complaint to allege facts that would defeat parental immunity. Nichol, 192 Ill. 2d at 248.\nThe defendants assert that foster parents and residential child care facilities are no different. At trial, Father Smyth even characterized Maryville as \u201ca very large foster home for the children who are dependent and neglected [and abused].\u201d According to the defendants, foster parents and facilities like Maryville are trained to provide day-to-day care for state wards, and both should receive immunity. The defendants contend that we have refined the parental immunity doctrine to shield persons and entities who perform parental functions and exercise parental functions, without regard for the existence of a \u201cfilial or pseudo-filial relationship.\u201d\nWe disagree. The Cates standard \u201cfocuses primarily on conduct inherent to the parent-child relationship\u201d (Emphasis added.) Cates, 156 Ill. 2d at 105. Clearly, neither the conduct nor the relationship is the sole consideration. Both remain important in determining who is cloaked with immunity. That is, application of the doctrine depends upon more than the performance of so-called \u201cparental\u201d responsibilities; we also consider whose performance is at issue. See Gulledge v. Gulledge, 51 Ill. App. 3d 972, 974 (1977) (\u201cthe rationale behind the [parental immunity] rule loses its persuasive force as one considers situations involving other than the actual parent\u201d); see also Cates, 156 Ill. 2d at 99 (\u201cwhere the family relationship is dissolved or where that relationship has ceased to exist with respect to conduct giving rise to the injury, the immunity will not be applied\u201d).\nConsequently, we conclude that, while the parental immunity doctrine logically reaches foster parents, it cannot stretch to cover a corporate entity and its employees. The employees of a residential child care facility like Maryville exercise their professional duties in handling state wards; they are not parents, however similar their responsibilities. See Cates, 156 Ill. 2d at 105. As Wallace notes in her brief, a biological parent or foster parent does not discipline a child by means of a four-hour restraint, pinning the child to the floor with the assistance of three additional adults. The fact that Maryville employees were ordered to participate in the restraint by the program manager, and later replaced each other during the restraint, underscores the institutional nature of Maryville\u2019s response.\nWe recognize that the parental immunity doctrine is a judicial creation (see Nudd, 7 Ill. 2d at 619; accord Cates, 156 Ill. 2d at 108), but we note that only the legislature has provided parental immunity to individuals who are not parents or foster parents (see 105 ILCS 5/24 \u2014 24, 34 \u2014 84a (West 2000) (\u201cIn all matters relating to the discipline in and conduct of the schools and the school children, [educators] stand in the relation of parents and guardians to the pupils\u201d); Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 480 (2002) (sections 24 \u2014 24 and 34 \u2014 84a of the School Code grant educational employees the same immunity enjoyed by parents); Gerrity, 71 Ill. 2d at 51; Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165, 173 (1976); see also Possekel v. O\u2019Donnell, 51 Ill. App. 3d 313, 319 (1977) (holding that the immunity under the School Code does not extend to private day-care centers, nursery schools, and kindergartens governed by the Child Care Act)). We decline to extend the immunity to a corporate entity, even one whose purpose and history demonstrate the noblest motives. The corporation-child relationship simply does not mirror the parent-child relationship. Consequently, the defendants do not enjoy parental immunity.\nCONCLUSION\nFor the reasons we have discussed, we reverse the judgment of the appellate court, reverse the judgment of the trial court, and remand to the trial court for further proceedings.\nAppellate court judgment reversed; circuit court judgment reversed; cause remanded.\nWe granted leave to the Cook County public guardian; the Children and Family Justice Center of Northwestern University School of Law; the ChildLaw Center and ChildLaw Clinic of the Loyola University Chicago School of Law; the Illinois Trial Lawyers Association; Cochran, Cherry, Givens, Smith and Montgomery, L.L.C.; and the Clifford Law Offices to file a brief as amici curiae in support of Wallace. See 155 Ill. 2d R. 345.", "type": "majority", "author": "JUSTICE FITZGERALD" }, { "text": "JUSTICE FREEMAN,\nspecially concurring:\nI agree that Maryville Academy and its employees (hereinafter Maryville Academy) may not invoke parental immunity as a defense to plaintiffs action. Thus, I concur in the result reached by the majority. However, I disagree with the analysis the majority uses in arriving at its decision. In my opinion, Nichol v. Stass, 192 Ill. 2d 233 (2000), which extended a limited form of parental immunity to foster parents in negligence actions, is controlling. Foster parents and institutions, such as Maryville Academy, that provide care to wards of the state should be treated the same. Like foster parents, these institutions assume physical custody of the ward and provide housing, food and medical care to the ward. The institutions supervise and discipline the ward, as do foster parents. Also, both foster parents and the institutions are subject to supervision and regulation by DCFS. Lastly, foster parents and the institutions receive financial reimbursement for the services they provide.\nI also believe, however, that Nichol was wrongly decided. I dissented in Nichol, 192 Ill. 2d at 253-73 (Freeman, J., dissenting), because there are fundamental differences in the relationship between a foster parent and foster child and the relationship between a biological parent and child that militate against extension of parental immunity to foster parents. In my dissent, I noted that all foster parents, whether supervised directly by DCFS or supervised by a child welfare agency, are subject to DCFS licensing requirements, must participate in DCFS training programs, must maintain records required by DCFS, must provide access to DCFS, and must comply with DCFS standards relating to the appearance, cleanliness and safety of the facility; the discipline of children at the facility; and the provision of care to children at the facility. I also noted that foster parents are entitled to reimbursement from the state for the services they provide to foster children. Foster parents do not stand in loco parentis to foster children because foster parents do not take upon themselves the financial obligations of a parent. Lastly, I sounded a cautionary note regarding the majority\u2019s holding:\n\u201cBy its holding today, the majority has eliminated the requirement that one who stands in loco parentis must assume financial responsibility for the child. The majority has redefined the term in loco parentis. The implication in the present case is that the Stasses may invoke the doctrine of parental immunity to bar an action for negligent supervision of Jonathan Nichol. The majority opinion, however, may have unintended consequences. As noted by the appellate court in Wallace [v. Smyth], 301 Ill. App. 3d [75], 80, housing, care and education are also provided by summer camps, day-care centers, medical and psychological treatment facilities, grandparents and other relatives of a child. Do these persons or entities also stand in loco parentis to a child? Should the Wallace court have held that the [Maryville Academy] and counselors stood in loco parentis to the child placed in their care? Moreover, use of the term in loco parentis is not restricted to the area of foster care or education. Under the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 1998)) death benefits are payable to a child to whom the deceased employee stood in loco parentis. A parent, or one who stands in loco parentis to a child, may be guilty of the offense of contributing to the dependency or neglect of the child. 720 ILCS 130/2 (West 1998). By redefining the term in loco parentis, the majority opinion may have an impact on diverse areas of the law.\u201d\nNichol, 192 Ill. 2d at 272-73 (Freeman, J., dissenting). Thus, in my dissent, I anticipated that other providers of care would claim immunity in negligence actions filed against them. I felt strongly that these providers and foster parents are not entitled to parental immunity.\nThe present case offered this court an opportunity to reconsider the holding in Nichol. To do so would have been helpful to persons bringing actions on behalf of children hurt by providers of care, whether these providers be foster parents or institutions such as Maryville Academy. These providers would not be able to claim parental immunity as a defense in actions filed against them. Further, reconsideration would have safeguarded precious judicial resources since our courts would not be faced with claims of parental immunity by other care providers. The majority fails to grasp this opportunity, however. Instead, the majority relies on an artificial distinction between foster parents and Maryville Academy. The majority apparently bases this distinction on the assistance of additional adults in disciplining the child. Can this court then assume that a foster parent could not enlist the help of other adults in the foster home (or even other children in the foster home) in disciplining a particular minor? In my opinion, this court cannot do so.\nBecause the majority has refused to reconsider the holding in Nichol, our courts will inevitably be faced with claims of parental immunity by other care providers, leading to delay in recovery for wrongs perpetrated against minor wards of this state and a waste- of precious judicial resources. I, for one, continue to believe that Nichol was wrongly decided. I also believe the present case is controlled by Nichol. This court should reconsider the holding in Nichol rather than create an unreal distinction between foster parents and Maryville Academy. For these reasons, I cannot join in the majority opinion, although I concur in the result reached.", "type": "concurrence", "author": "JUSTICE FREEMAN," } ], "attorneys": [ "Stanley L. Hill, of Chicago, for appellant.", "Jeffrey Edward Kehl and Robert C. Yelton III, of Yelton & Kehl, Ltd., of Chicago (John C. O\u2019Malley and Francis D. Morrissey, of counsel), for appellees.", "Patrick T. Murphy, Cook County Public Guardian, of Chicago (Peter J. Schmiedel, Charles P. Golbert and Jill Runk, of counsel), for amicus curiae Office of the Cook County Public Guardian.", "Bruce A. Boyer and Stacey E. Platt, of Chicago, for amicus curiae ChildLaw Center & ChildLaw Clinic of the Loyola University School of Law.", "Robert A. Clifford, of Chicago, for amicus curi\u00e6 Clifford Law Offices.", "James D. Montgomery and Thomas C. Marszewski, of Chicago, for amicus curi\u00e6 Cochran, Cherry, Givens, Smith & Montgomery, L.L.C.", "Thomas F. Geraghty, of Chicago, for amicus curi\u00e6 Children & Family Justice Center of the Northwestern University School of Law.", "James D. Montgomery and Thomas C. Marszewski, of Cochran, Cherry, Givens, Smith & Montgomery, and Bruce R. Pfaff, all of Chicago, for amicus curi\u00e6 Illinois Trial Lawyers Association.", "James A. Serritella and James C. Geoly, of Burke, Warren, MacKay & Serritella, P.C., of Chicago, for amicus curiae Illinois Child Care Association." ], "corrections": "", "head_matter": "(No. 93144.\nSHANDOULIA WALLACE, Indiv. and as Adm\u2019r of the Estate of Waketta Roy Wallace, Deceased, Appellant, v. JOHN P. SMYTH et al., Appellees.\nOpinion filed December 19, 2002.\nRehearing denied March 31, 2003.\nFREEMAN, J., specially concurring.\nStanley L. Hill, of Chicago, for appellant.\nJeffrey Edward Kehl and Robert C. Yelton III, of Yelton & Kehl, Ltd., of Chicago (John C. O\u2019Malley and Francis D. Morrissey, of counsel), for appellees.\nPatrick T. Murphy, Cook County Public Guardian, of Chicago (Peter J. Schmiedel, Charles P. Golbert and Jill Runk, of counsel), for amicus curiae Office of the Cook County Public Guardian.\nBruce A. Boyer and Stacey E. Platt, of Chicago, for amicus curiae ChildLaw Center & ChildLaw Clinic of the Loyola University School of Law.\nRobert A. Clifford, of Chicago, for amicus curi\u00e6 Clifford Law Offices.\nJames D. Montgomery and Thomas C. Marszewski, of Chicago, for amicus curi\u00e6 Cochran, Cherry, Givens, Smith & Montgomery, L.L.C.\nThomas F. Geraghty, of Chicago, for amicus curi\u00e6 Children & Family Justice Center of the Northwestern University School of Law.\nJames D. Montgomery and Thomas C. Marszewski, of Cochran, Cherry, Givens, Smith & Montgomery, and Bruce R. Pfaff, all of Chicago, for amicus curi\u00e6 Illinois Trial Lawyers Association.\nJames A. Serritella and James C. Geoly, of Burke, Warren, MacKay & Serritella, P.C., of Chicago, for amicus curiae Illinois Child Care Association." }, "file_name": "0441-01", "first_page_order": 453, "last_page_order": 468 }