Filed 11/20/09 NO. 4-09-0115

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

CLINTON SELLERS,

 Plaintiff-Appellant,

 v.

KARL RUDERT, D.O., and BONUTTI

ORTHOPEDIC SERVICES, LTD.,

 Defendants,

 and

MARK BONNSTETTER, JENNIFER TYMKEW, ROC

BELLANTONI, MARK HUTSON, and BOB SPOO,

 Defendants-Appellees.

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 Appeal from

 Circuit Court of 

 Champaign County

 No. 08L185

 Honorable

 Jeffrey B. Ford, 

 Judge Presiding.

_________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In August 2008, plaintiff, Clinton Sellers, filed a

negligence action against defendants Dr. Karl Rudert, Bonutti

Orthopedic Services, Ltd., Mark Bonnstetter, Jennifer Tymkew, Roc

Bellantoni, Mark Hutson, and Bob Spoo for his injuries sustained

during a September 2006 football game. Shortly thereafter,

plaintiff filed an amended complaint to correct a misspelling. 

In September 2008, defendants Bonnstetter, Tymkew, Bellantoni,

Hutson, and Spoo (collectively referred to as the University

defendants) filed a combined motion to dismiss, asserting, inter

alia, the trial court lacked subject-matter jurisdiction based on

sovereign immunity. At a November 2008 hearing, the trial court

granted plaintiff leave to file a second-amended complaint,

dismissed the counts of the second-amended complaint against the

University defendants based on sovereign immunity, and denied
plaintiff leave to file a third-amended complaint. In December

2008, plaintiff filed a motion to reconsider the dismissal of the

counts and the denial of the motion for leave to file a thirdamended complaint, and the court later denied the motion.

Pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R.

304(a)), plaintiff appeals, contending (1) the trial court erred

in finding sovereign immunity because (a) plaintiff properly

alleged the University defendants exceeded the scope of their

authority and (b) the court failed to recognize a duty independent of state employment and (2) the court erred by denying

plaintiff leave to file a third-amended complaint. We affirm in

part, reverse in part, and remand with directions. 

I. BACKGROUND

Plaintiff was a member of the Eastern Illinois University football team and suffered a severe neurologic injury while

playing in a football game on September 2, 2006. Prior to the

injury, plaintiff had experienced trauma to his body during

practice sessions that produced neurologic symptoms, including

stingers. University defendants Bonnstetter and Tymkew (the pair

hereinafter referred to as the Trainers) were athletic trainers

licensed by the State of Illinois and employees of the Eastern

Illinois University athletic department. University defendants

Bellantoni, Hutson, and Spoo (the trio hereinafter referred to as

the Coaches) coached the Eastern Illinois football team, which

played at the National Collegiate Athletic Association (NCAA)
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Division I-AA level.

In August 2008, plaintiff filed a complaint, asserting

a professional-negligence count against the Trainers and a

negligence count against the Coaches. Plaintiff also raised a

professional-negligence count against the football team physician, Dr. Rudert, and Dr. Rudert's employer, Bonutti Orthopedic

Services, Ltd. However, that count is not part of this appeal. 

Shortly after filing the complaint, plaintiff filed an amended

complaint to correct the name of one of the University defendants. 

In September 2008, the University defendants filed a

combined motion to dismiss the amended complaint under section 2-

619.1 of the Code of Civil Procedure (Procedure Code) (735 ILCS

5/2-619.1 (West 2008)), asserting the case should be dismissed

under (1) section 2-619(a)(1) of the Procedure Code (735 ILCS

5/2-619(a)(1) (West 2008)) because the trial court lacked

subject-matter jurisdiction based on sovereign immunity and (2)

section 2-615 of the Procedure Code (735 ILCS 5/2-615 (West

2008)) because (a) the contact-sports exception applied and (b)

the University defendants had no duty to warn plaintiff under the

circumstances. At the November 19, 2008, hearing, on the motion

to dismiss, plaintiff requested leave to file a second-amended

complaint, which the trial court granted. The court then proceeded to hear the motion to dismiss on the sovereign-immunity
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issue as to the second-amended complaint. After hearing the

parties' arguments, the court dismissed the cause as to the

University defendants due to lack of subject-matter jurisdiction. 

The court stated plaintiff could bring his cause of action in the

Court of Claims but could not proceed any further in the circuit

court against the University defendants. Plaintiff then requested leave to file a third-amended complaint against the

University defendants. The court denied plaintiff's request.

On December 11, 2008, plaintiff filed a motion for

reconsideration of (1) the dismissal of the counts in the secondamended complaint against the University defendants and (2) the

denial of his request to file a third-amended complaint. The

next day, the trial court denied the motion in a written order. 

On December 16, 2008, plaintiff filed a motion for the court to

make a finding under Rule 304(a). Two days later, plaintiff

filed a written motion for leave to file a third-amended complaint and for the first time submitted a proposed third-amended

complaint. The court again denied plaintiff's request. On

January 22, 2009, the court entered an order, making a finding

under Rule 304(a) that no just cause exists to delay enforcement

or appeal of the final dismissal of the University defendants.

On February 18, 2009, plaintiff filed a notice of

appeal in compliance with Supreme Court Rules 303 and 304(a)

(Official Reports Advance Sheet No. 15 (July 16, 2008), R. 303,
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eff. May 30 2008 (corrected eff. June 4, 2008); 210 Ill. 2d R.

304(a)). The notice stated plaintiff was appealing the November

19, 2008, dismissal order and "the [o]rder denying [p]laintiff's

[m]otion to [r]econsider and for [l]eave to [f]ile [t]hird[-

a]mended [c]omplaint entered on December 15, 2008." 

II. ANALYSIS

A. Sovereign Immunity

Section 2-619(a)(1) of the Procedure Code (735 ILCS

5/2-619(a)(1) (West 2008)) provides for dismissal of a cause of

action due to the trial court's lack of subject-matter jurisdiction. Siakpere v. City of Chicago, 374 Ill. App. 3d 1079, 1081,

872 N.E.2d 495, 497 (2007). The University defendants asserted

the trial court lacked subject-matter jurisdiction over the

counts against them because the Court of Claims had exclusive

jurisdiction under the sovereign-immunity doctrine.

With a section 2-619 motion to dismiss, the movant

admits the legal sufficiency of the plaintiff's complaint but

raises an affirmative defense or other matter that avoids or

defeats the plaintiff's claim. DeLuna v. Burciaga, 223 Ill. 2d

49, 59, 857 N.E.2d 229, 236 (2006). "In ruling on such a motion,

the court must interpret all pleadings and supporting documents

in the light most favorable to the nonmoving party." Melena v.
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Anheuser-Busch, Inc., 219 Ill. 2d 135, 141, 847 N.E.2d 99, 103 

(2006). A section 2-619 motion presents a question of law, and

thus our review of the trial court's ruling on the motion is de

novo. DeLuna, 223 Ill. 2d at 59, 857 N.E.2d at 236. 

"The Illinois Constitution of 1970 abolished the

doctrine of sovereign immunity '[e]xcept as the General Assembly

may provide by law.'" PHL, Inc. v. Pullman Bank & Trust Co., 216

Ill. 2d 250, 259-60, 836 N.E.2d 351, 356 (2005), quoting Ill.

Const. 1970, art. XIII, §4. Exercising its constitutional

authority, the General Assembly reestablished the doctrine in the

State Lawsuit Immunity Act (Immunity Act) (745 ILCS 5/0.01

through 1.5 (West 2008)). PHL, 216 Ill. 2d at 260, 836 N.E.2d at

356. Section 1 of the Immunity Act (745 ILCS 5/1 (West Supp.

2007)) prohibits the State of Illinois from being a party to a

lawsuit except for the enumerated exceptions, one of which is the

Court of Claims Act (705 ILCS 505/1 through 29 (West 2008)). The

Court of Claims Act establishes the Court of Claims as the forum

for claims against the state and provides, inter alia, the

"'court shall have exclusive jurisdiction to hear and determine

*** [a]ll claims against the State for damages in cases sounding

in tort, if a like cause of action would lie against a private

person or corporation in a civil suit.'" Loman v. Freeman, 229

Ill. 2d 104, 112, 890 N.E.2d 446, 453 (2008), quoting 705 ILCS

505/8(d) (West 2004).
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The determination of whether an action is one against

the State does not depend "on the formal identification of the

parties but rather on the issues involved and the relief sought." 

Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247

(1990). Thus, sovereign immunity cannot be avoided "'by making

an action nominally one against the servants or agents of the

State when the real claim is against the State of Illinois itself

and when the State of Illinois is the party vitally interested.'" 

Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247, quoting Sass v.

Kramer, 72 Ill. 2d 485, 491, 381 N.E.2d 975, 977 (1978). We note

that for the first time in his reply brief plaintiff contends the

University defendants failed to show with their motion to dismiss

that they are state employees. Under Illinois Supreme Court Rule

341(h)(7) (210 Ill. 2d R. 341(h)(7)), an appellant forfeits

points not raised in the initial brief and cannot argue them for

the first time in the reply brief. Burlington Northern & Santa

Fe Ry. Co. v. ABC-NACO, 389 Ill. App. 3d 691, 717, 906 N.E.2d 83,

105 (2009). Thus, we find plaintiff has forfeited this argument.

Our supreme court has found an action is actually

against the State when the following are present:

"'(1) no allegations that an agent or employee of the State acted beyond the scope of

his authority through wrongful acts; (2) the

duty alleged to have been breached was not
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owed to the public generally independent of

the fact of State employment; and (3) where

the complained-of actions involve matters

ordinarily within that employee's normal and

official functions of the State.'" Healy,

133 Ill. 2d at 309, 549 N.E.2d at 1247, quoting Robb v. Sutton, 147 Ill. App. 3d 710,

716, 498 N.E.2d 267, 272 (1986).

Additionally, if the three Robb criteria are not satisfied, "a

court must consider the relief sought--that is, whether '"a

judgment for the plaintiff could operate to control the actions

of the [s]tate or subject it to liability."'" (Emphasis omitted.) Jackson v. Alverez, 358 Ill. App. 3d 555, 560, 831 N.E.2d

1159, 1164 (2005), quoting Jinkins v. Lee, 209 Ill. 2d 320, 330,

807 N.E.2d 411, 418 (2004), quoting Currie v. Lao, 148 Ill. 2d

151, 158, 592 N.E.2d 977, 980 (1992). Here, plaintiff appears to

argue the first and second Robb criteria were not satisfied.

1. Scope of Authority

Plaintiff asserts he properly alleged the University

defendants exceeded the scope of their authority. 

Clearly, no state employee possesses the authority to

commit a tort. Jackson, 358 Ill. App. 3d at 561, 831 N.E.2d at

1164. Sovereign immunity as to tort actions would be eviscerated

if a simple reference to a tort could defeat the doctrine. 
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Jackson, 358 Ill. App. 3d at 561, 831 N.E.2d at 1164. Since

sovereign immunity presumes the possibility a state employee

committed a legal wrong and "legal wrongs are, per se, unauthorized," the relevant question is not whether the employee had

authority to commit the alleged legal wrong. Jackson, 358 Ill.

App. 3d at 561, 831 N.E.2d at 1164. Rather, "the question is

whether the employee intended to perform some function within the

scope of his or her authority when committing the legal wrong." 

Jackson, 358 Ill. App. 3d at 561, 831 N.E.2d at 1164. 

As the University defendants note, an employee who

breaks workplace rules, performs his or her duties with willful

and wanton indifference, or even violates a statute does not

necessarily act outside the scope of his or her state employment. 

Jackson, 358 Ill. App. 3d at 561, 831 N.E.2d at 1164; Welch v.

Illinois Supreme Court, 322 Ill. App. 3d 345, 352, 751 N.E.2d

1187, 1194 (2001). An employee's actions are considered within

the scope of employment where the alleged facts are consistent

with an intent to further the state's business. See Welch, 322

Ill. App. 3d at 354, 751 N.E.2d at 1195. This court has found

state employees did not exceed the scope of their authority where

the plaintiff did not allege specific facts demonstrating the

defendants harbored any personal animosity toward the plaintiff

or indicating they committed the alleged acts for reasons other

than what the defendants perceived to be in the best interests of
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the state agency. Nikelly v. Stubing, 204 Ill. App. 3d 870, 876,

562 N.E.2d 360, 364 (1990). In his reply brief, plaintiff does

not respond to the aforementioned authority. 

a. Trainers

Plaintiff's second-amended complaint suggests the

Trainers' jobs were to practice injury prevention, emergency

care, and physical reconditioning on plaintiff and coordinate

their care of plaintiff with plaintiff's physician and coaches. 

Plaintiff alleged the Trainers (1) advised plaintiff they were

communicating with Dr. Rudert with regard to plaintiff's neurological problems; (2) did not fully and accurately describe

and/or failed to describe plaintiff's neurological problems to

Dr. Rudert; and (3) failed to keep an accurate historical record

of the frequency, nature, and extent of plaintiff's neurological

problems. By acting in the aforesaid manner, the Trainers acted

independently of Dr. Rudert as they neither regularly coordinated

with him nor acted under his direction. Accordingly, plaintiff

contended the Trainers exceeded the scope of their authority

under their license. Plaintiff also contended the Trainers

exceeded their authority as NCAA trainers by (1) substituting

their judgment regarding the severity of plaintiff's injuries as

they did not consult with the appropriate team physician or refer

plaintiff to a physician for further evaluation and (2) encouraging plaintiff to continue playing after experiencing stingers
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without assuring a physician had appropriately evaluated him.

Plaintiff argues the Trainers exceeded the scope of

their license as set forth in section 3 of the Illinois Athletic

Trainers Practice Act (Athletic Trainers Act) (225 ILCS 5/3 (West

2008)). As stated earlier, an employee's violation of a statute

does not necessarily mean the employee acted outside the scope of

his or her state employment. Welch, 322 Ill. App. 3d at 352, 751

N.E.2d at 1194. Here, the Trainers' state employment was as

athletic trainers for a university football team. The alleged

facts show the Trainers committed the alleged negligence while

coordinating and providing care to plaintiff in his capacity as a

student-athlete on the football team. Specifically, the alleged

facts in support of the outside-the-scope-of-authority assertion

argue negligence based on the Trainers' failure to perform the

functions set forth in section 3 of the Athletic Trainers Act

(225 ILCS 5/3 (West 2008)). Moreover, the alleged facts do not

suggest the Trainers' actions were inconsistent with an intent to

further the university's interests or the Trainers acted for

reasons other than what they perceived to be in the state university football team's best interests.

Accordingly, we find plaintiff did not plead the

Trainers acted outside the scope of their authority, and thus the

first Robb criterion was met as to the Trainers.

b. Coaches
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Plaintiff's second-amended complaint contends the

Coaches' jobs were (1) to monitor, coach, and instruct plaintiff

during football practices and games and, (2) in coordination with

plaintiff's physician and athletic trainers, evaluate and assess

plaintiff's physical capacity to safely engage in the physical

activities required by football. Plaintiff alleged the Coaches

(1) advised plaintiff they were communicating with Dr. Rudert

with regard to plaintiff's neurological problems; (2) did not

fully and accurately describe plaintiff's neurological problems

to Dr. Rudert; and (3) failed to keep an accurate historical

record of the frequency, nature, and extent of plaintiff's

neurological problems. By acting in the aforesaid manner, the

Coaches acted independently of Dr. Rudert as they did not regularly coordinate with him or act under his discretion with

respect to plaintiff's health and safety. Accordingly, plaintiff

contended the Coaches exceeded the scope of their authority as

coaches and as NCAA coaches. Additionally, like with the Trainers, plaintiff contended the Coaches exceeded their authority as

NCAA coaches by (1) substituting their judgment regarding the

severity of plaintiff's injuries as they did not consult with the

appropriate team physician or refer plaintiff to a physician for

further evaluation and (2) encouraging plaintiff to continue

playing after experiencing stingers without assuring a physician

had appropriately evaluated him.
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Plaintiff contends the Coaches exceeded the scope of

their authority under NCAA guidelines by assuming the role of

medical professionals. We note plaintiff does not allege the

State required the Coaches to comply with the policy and regulations of the private association. Moreover, an employee's

violation of policies and/or regulations does not necessarily

mean the employee acted outside the scope of his or her state

employment. Welch, 322 Ill. App. 3d at 352, 751 N.E.2d at 1194. 

Here, the Coaches' state employment was to coach a university

football team. The pleaded facts allege the Coaches committed

the alleged negligence while coaching plaintiff, a studentathlete on the football team. The alleged facts do not suggest

the Coaches' actions were inconsistent with an intent to further

the university's interests or the Coaches acted for reasons other

than what they perceived to be in the state university football

team's best interests.

Accordingly, we find plaintiff failed to allege specific facts demonstrating the University defendants exceeded

their authority, and thus the first Robb criterion was met as to

the Coaches. 

2. Source of Duty

Our supreme court has explained the analysis for the

second Robb criterion as follows:

"Where the charged act of negligence arose
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out of the State employee's breach of a duty

that is imposed on him solely by virtue of

his State employment, sovereign immunity will

bar maintenance of the action in circuit

court. [Citations.] Conversely, where the

employee is charged with breaching a duty

imposed on him independently of his State

employment, sovereign immunity will not attach and a negligence claim may be maintained

against him in circuit court." (Emphasis

omitted.) Currie, 148 Ill. 2d at 159, 592

N.E.2d at 980.

Illinois courts have found a duty to be an independent one in

several different situations. First, an independent duty exists

when the duty is a professional duty owed by every member of that

profession. Grimes v. Saikley, 388 Ill. App. 3d 802, 814, 904

N.E.2d 183, 192 (2009). In the context of sovereign immunity,

our supreme court has recognized a professional duty of care was

owed by a physician (Jinkins, 209 Ill. 2d at 332, 807 N.E.2d at

419, citing Madden v. Kuehn, 56 Ill. App. 3d 997, 1001, 372

N.E.2d 1131, 1134 (1978)), a psychiatrist and a licensed clinical

professional counselor (Jinkins, 209 Ill. 2d at 334-36, 807

N.E.2d at 420-21), and a veterinarian (Loman, 229 Ill. 2d at 119,

890 N.E.2d at 457). Additionally, the First District has found
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an independent professional duty was owed by an attorney. 

Johnson v. Halloran, 312 Ill. App. 3d 695, 700, 728 N.E.2d 490,

494 (2000). However, the Second District has found no professional duty existed requiring kitchen supervisors to keep kitchen

staff members safe. Brandon v. Bonell, 368 Ill. App. 3d 492,

508, 858 N.E.2d 465, 482 (2006).

Second, an independent duty exists when the duty arises

from the person's general status regardless of one's employment,

i.e., a person's status as a driver of a vehicle on a state

roadway imposes a duty to drive safely. Grimes, 388 Ill. App. 3d

at 814, 904 N.E.2d at 192. However, sovereign immunity will apply

when "'the conduct related to a state employee's independent duty

is unique to his state employment such that a suit challenging

this conduct could affect state policies or control its actions.'" Grimes, 388 Ill. App. 3d at 814, 904 N.E.2d at 192,

quoting Brandon, 368 Ill. App. 3d at 506, 858 N.E.2d at 481. For

example, an independent duty did not exist when a police officer

drove in a manner unique to police officers in response to an

emergency call that was part of the officer's normal and official

duties. Kawaguchi v. Gainer, 361 Ill. App. 3d 229, 249, 835

N.E.2d 435, 451 (2005).

Third, an independent duty exists where a statute

imposes specific requirements on all people regardless of their

employment. Grimes, 388 Ill. App. 3d at 814, 904 N.E.2d at 193. 
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In Fritz v. Johnston, 209 Ill. 2d 302, 314, 807 N.E.2d 461, 469

(2004), the supreme court found the Illinois Criminal Code

imposed an independent duty not to make false accusations of

criminal conduct. However, the Fritz court recognized that,

where a statute proscribes the actions of state employees and

does not apply to the public as a whole, an independent duty does

not arise. Fritz, 209 Ill. 2d at 314, 807 N.E.2d at 469. This

court recently found such a situation with regard to a public

administrator whose duties arose under section 13-4 of the

Probate Act of 1975 (755 ILCS 5/13-4 (West 2006)) and were

imposed on him solely because he was a state employee or agent. 

Grimes, 388 Ill. App. 3d at 815-16, 904 N.E.2d at 193; see also

Brandon, 368 Ill. App. 3d at 508, 858 N.E.2d at 482 (finding no

independent duty where the statute at issue imposed a duty solely

on the Department of Corrections).

Plaintiff appears to be asserting an independent

professional duty exists for both athletic trainers and coaches

as courts have found for doctors, lawyers, and veterinarians. In

asserting no independent duty exists, the University defendants

rely on the supreme court's decision in Healy, 133 Ill. 2d at

313, 549 N.E.2d at 1249, where it found the duty owed by the

university athletic directors, gymnastics coach, and team trainer

to a student on the university gymnastics team did not have a

source outside the defendants' employment status. 
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In Healy, 133 Ill. 2d at 311-12, 549 N.E.2d at 1248-49,

the plaintiff argued the court should follow Madden, 56 Ill. App.

3d at 1001, 372 N.E.2d at 1134, where, as stated earlier, the

court held the duty breached in a negligence action against a

state-employed physician was the one every physician owed a

patient. The plaintiff contended Madden should be followed in

that matter because "the duty of care owed by the defendants was

no greater than, and no different from, the duty that would be

owed to participants in a privately run gymnastics program." 

Healy, 133 Ill. 2d at 312, 549 N.E.2d at 1249.

The Healy court rejected the plaintiff's argument. It

noted that "[e]ssential to the court's holding in Madden was the

view that the duty of care owed by the physician arose independently of his status as an employee of the State; that conclusion

may be said to rest on the special nature of the doctor-patient

relationship." Healy, 133 Ill. 2d at 313, 549 N.E.2d at 1249. 

The court found that conclusion could not be reached in the case

before it and noted the relationship between the plaintiff and

the defendants did not have a source outside the employment

status of the defendants. "Whatever duty was owed by the defendants to the plaintiff existed because of the plaintiff's status

as a student and her participation in university-sponsored

activities." Healy, 133 Ill. 2d at 313, 549 N.E.2d at 1249.

Plaintiff contends Healy is inconsistent with the
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supreme court's recent decision in Loman, 229 Ill. 2d 104, 890

N.E.2d 446. We disagree with any suggestion Healy is no longer

good law after Loman. See Loman, 229 Ill. 2d at 112, 890 N.E.2d

at 453 (citing Healy in support of the statement the rules

governing the inquiry of whether a particular tort action is one

"'against the State'" are well established).

a. Trainers

As to the Trainers, we found that, while Healy is still

good law, the facts of this case are distinguishable from those

in Healy. 

Here, plaintiff's complaint asserts the Trainers were

licensed athletic trainers and alleges the Trainers breached

duties imposed by their license. In describing the plaintiff's

complaint in Healy, the supreme court neither indicates the

university athletic trainer was licensed nor alleges the athletic

trainer breached a duty imposed by a license. See Healy, 133

Ill. 2d at 310-11, 549 N.E.2d at 1247-48. Moreover, we note the

athletic trainer in Healy could not have been licensed at the

time of the plaintiff's accident (October 23, 1985) under the

Athletic Trainers Act because that act did not become effective

until January 1, 1986. See Pub. Act 84-1080, §1, eff. January 1,

1986 (1985 Ill. Laws 7129, 7130). Accordingly, the complaint at

issue requires an analysis of whether the Athletic Trainers Act
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establishes an independent professional duty. 

This court rendered the appellate decision in Loman. 

See Loman v. Freeman, 375 Ill. App. 3d 445, 874 N.E.2d 542

(2006). While the veterinarian in Loman was not subject to a

licensing act, we still analyzed a duty arising from a licensing

statute. Loman, 375 Ill. App. 3d at 452-53, 874 N.E.2d at 548. 

That analysis serves as a guide in this case.

In Loman, 375 Ill. App. 3d at 452, 874 N.E.2d at 548, 

we noted the legislature's use of the term "malpractice" in the

Veterinary Medicine and Surgery Practice Act of 1994 (Veterinary

Practice Act) (see 225 ILCS 115/25(1)(F) (West 2000)) implied a

set of professional standards applicable to all veterinarians. 

We explained as follows:

"'Malpractice' is '[a]n instance of negligence or incompetence on the part of a professional.' [Citation.] A 'professional' is

a member of 'a learned profession.' [Citation.] A learned profession implies the

existence of a body of learning relevant to

that profession as a whole--the 'standard of

care' ***." Loman, 375 Ill. App. 3d at 452-

53, 874 N.E.2d at 548.

Like the Veterinary Practice Act, the Athletic Trainers

Act provides the Department of Professional Regulations may take
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various forms of disciplinary action for, inter alia,

"[m]alpractice." 225 ILCS 5/16(F) (West 2008). Other sections

of the Athletic Trainers Act indicate athletic training is a

"learned profession." In section 1 of the act, the legislature

declares (1) athletic training "affects the public health,

welfare, and safety and its regulation and control [are] in the

public interest" and (2) "only qualified persons [are] permitted

to hold themselves out to the public as athletic trainers in the

State of Illinois." 225 ILCS 5/1 (West 2008). Moreover, section

9 of the Athletic Trainers Act (225 ILCS 5/9 (West 2008)) requires a licensee to, inter alia, have graduated from both an

accredited curriculum in athletic training and a four-year

accredited college or university as well as passed an examination

determining one's fitness to practice as an athletic trainer

(unless an exception to the examination requirement applies). 

Additionally, we note that, in defining "'[l]icensed

athletic trainer,'" the legislature's language again indicates a

standard of care. See 225 ILCS 5/3(4) (West 2008). Section 3(4)

of the Athletic Trainers Act (225 ILCS 5/3(4) (West 2008)) states

a licensed athletic trainer, under the direction of a physician,

"carries out the practice of prevention/emergency care or physical reconditioning of injuries incurred by athletes." The

section further contains a nonexclusive list of specific duties

of an athletic trainer, including the "[p]rovision of on-site
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injury care and evaluation as well as appropriate transportation,

follow-up treatment[,] and rehabilitation as necessary for all

injuries sustained by athletes in the program." 225 ILCS

5/3(4)(H) (West 2008). Last, the section permits those licensed

to practice athletic training to use modalities such as electricity and "mechanical devices related to care and reconditioning." 

225 ILCS 5/3(4) (West 2008). 

Accordingly, we find the Athletic Trainers Act demonstrates the existence of a standard of care for athletic trainers, and thus a duty of care independent of state employment

exists for athletic trainers. In his second-amended complaint,

plaintiff asserts the Trainers breached that independent duty of

care, and thus the trial court erred by dismissing the count

against the Trainers. 

b. Coaches

Regarding the Coaches, plaintiff notes the NCAA is a

national organization that governs the conduct of its members,

including coaches. Plaintiff asserts the Coaches' independent

professional duty arose from the common law and the Restatement

(Second) of Torts. However, plaintiff provides neither citation

to authority nor analysis in support of his assertion in violation of Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)). Plaintiff's

bare contentions are insufficient for us to distinguish the

supreme court's decision in Healy where it specifically found
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coaches of a state university team did not have a professional

duty of care like a physician. 

Thus, we conclude plaintiff has failed to show his

second-amended complaint sets forth an independent duty of care

for the Coaches. We note plaintiff has not challenged the

applicability of the third Robb criterion, and thus we find the

trial court properly found all three Robb criteria were satisfied

and sovereign immunity applies to the Coaches. 

B. Third-Amended Complaint

Plaintiff also contends the trial court erred by

denying him leave to file a third-amended complaint. 

Whether to allow a plaintiff to amend a complaint lies

within the trial court's sound discretion, and absent an abuse of

that discretion, this court will not overturn the trial court's

decision on review. Compton v. Country Mutual Insurance Co., 382

Ill. App. 3d 323, 331, 887 N.E.2d 878, 886 (2008). A reviewing

court will find an abuse of discretion only where no reasonable

person would take the view adopted by the trial court. Compton,

382 Ill. App. 3d at 331-32, 887 N.E.2d at 886-87.

Illinois law maintains a liberal policy of allowing

parties to amend their pleadings so parties may fully present

their alleged cause or causes of action. Grove v. Carle Foundation Hospital, 364 Ill. App. 3d 412, 417, 846 N.E.2d 153, 157

(2006). However, plaintiffs do not have an absolute right to
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amend their complaint. Grove, 364 Ill. App. 3d at 417, 846

N.E.2d at 158. In determining whether an amendment to a complaint should be allowed, a court generally considers the following four factors: 

"(1) whether the proposed amendment would

cure a defect in the pleading, (2) whether

the proposed amendment would surprise or

prejudice the opposing party, (3) whether the

proposed amendment was timely filed, and (4)

whether the moving party had previous opportunities to amend the complaint." Grove, 364

Ill. App. 3d at 417-18, 846 N.E.2d at 158. 

Here, plaintiff made an oral motion for leave to file a

third-amended complaint, a motion to reconsider the denial of the

motion for leave, and then another written motion for leave to

file a third-amended complaint. A proposed written amendment was

not tendered until the written motion. However, we note plaintiff has not listed the order denying the written motion for

leave to file a third-amended complaint in his notice of appeal,

and thus that judgment is not before us. People v. Smith, 228

Ill. 2d 95, 104, 885 N.E.2d 1053, 1058 (2008) (stating a notice

of appeal confers jurisdiction on reviewing court to consider

only the judgments or parts thereof specified in the notice of

appeal). Accordingly, just the denial of the oral motion and the
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reconsideration motion are before this court. Thus, the trial

court did not have a proposed amendment before it when it ruled

on the request for leave to file a third-amended complaint. 

A plaintiff's failure to tender a proposed complaint

significantly diminishes a court's ability to analyze the appropriate factors for determining whether leave should be granted as

the existence of a proposed amendment is implicit in the first

three factors. See Ignarski v. Norbut, 271 Ill. App. 3d 522,

532, 648 N.E.2d 285, 293 (1995). In fact, this court has held a

plaintiff's failure to tender the proposed amendment to the trial

court forfeits review of the trial court's decision. Illinois

Non-Profit Risk Management Ass'n v. Human Service Center of

Southern Metro-East, 378 Ill. App. 3d 713, 726, 884 N.E.2d 700,

712 (2008). Additionally, courts have found a presumption does

not exist that a proposed amendment will be a proper one and it

is not error to refuse to grant leave to amend where the party

has not provided a basis to determine whether the amendment will

be sufficient to state a cause of action. People ex rel. Scott

v. Cardet International, Inc., 24 Ill. App. 3d 740, 748, 321

N.E.2d 386, 393 (1974); Urfer v. Country Mutual Insurance Co., 60

Ill. App. 3d 469, 474, 376 N.E.2d 1073, 1077 (1978).

Assuming arguendo the third-amended complaint was

before the trial court when it ruled on the motions, reversal is

still not warranted as to the Coaches. The third-amended com-
- 25 -

plaint does not cure the defects that we have already addressed

regarding those defendants. As stated earlier, an allegation of

willful and wanton conduct does not itself demonstrate the act

was outside the scope of state employment. Jackson, 358 Ill.

App. 3d at 561, 831 N.E.2d at 1164.

Thus, we conclude the trial court did not abuse its

discretion by denying plaintiff's motion for leave to file a

third-amended complaint.

III. CONCLUSION

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

dismissal of the count against the Coaches, reverse the court's

dismissal of the count against the Trainers, and remand for

further proceedings consistent with this opinion.

Affirmed in part and reversed in part; cause remanded

with directions.

APPLETON and POPE, JJ., concur.