NO. 4-01-0999

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

COMMERCE BANK, Special Administrator of	)	Appeal from

the Estate of LOUISE OSBORN, Deceased,	)	Circuit Court of

		Plaintiff-Appellee,			)	McLean County

		v.						)	No. 94L244

YOUTH SERVICES OF MID-ILLINOIS, INC.,	)	

		Defendant-Appellant.		)	Honorable

								)	G. Michael Prall,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		Defendant, Youth Services of Mid-Illinois, Inc. (Youth

Services), appeals from the October 22, 2001, order of the McLean

County circuit court denying defendant's posttrial motions for

judgment notwithstanding the verdict and for a new trial.  We

reverse the order denying the motion for judgment notwithstanding

the verdict.

I. BACKGROUND

		This case began on July 29, 1993, when three-year-old

Louise Osborn died while enclosed in a bedroom closet in the home

of her foster parents, Sarah and Matthew Augsburger.  According

to the record, defendant was a private, not-for-profit corpora

tion which was hired by the Department of Children and Family

Services (DCFS).  Defendant had placed Louise and her older

brother with the Augsburgers the previous year.  DCFS contracts

out foster children to private foster agencies such as defendant

to provide the services that DCFS would normally provide.  In the

context of this case, it was defendant's responsibility to find foster parents, make sure that the foster parents and their home

complied with DCFS' licensing requirements, and then monitor the

foster children in accordance with DCFS regulations and Illinois

law.  Defendant provided services to the children, created plans,

distributed state money to the foster parents, and monitored the

foster parents, all pursuant to DCFS regulations.  In other

words, defendant acted in DCFS' place.   The only duties which

DCFS reserves for itself in cases like this are the licensing of

the foster parents and the initial removal of children from their

home that places them into state custody.  DCFS also handles

court appearances.  Plaintiff Commerce Bank, f/k/a the People's

Bank, sued the Augsburgers and defendant over Louise's death on

behalf of Louise's estate.

		In a previous appeal from an order granting a motion to

dismiss, this court ruled that the Augsburgers were immune from

suit for any negligence in regard to their supervision of Louise

because they were clothed with parental immunity.  See Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 517, 680 N.E.2d 822, 827 (1997) (Commerce Bank I).  Plaintiff consequently amended its complaint to sue only defendant for defendant's own negligence in

Louise's death and the Augsburgers' negligence under the theory

of respondeat superior.  The trial court dismissed plaintiff's respondeat superior claims, but allowed the rest of the claims to go to trial.  A jury ultimately found that defendant was not

negligent in Louise's death. 

		Plaintiff appealed, arguing only that the trial court erred when it prevented plaintiff from suing defendant under a

theory of respondeat superior.  This court agreed with plaintiff, and reversed and remanded the question of whether an agency

relationship existed between the parties that would give rise to

the doctrine of respondeat superior.  See Commerce Bank v. Youth Services of Mid-Illinois, Inc., No 4-98-0833 (August 10, 1999) (unpublished order under Supreme Court Rule 23) (Commerce Bank II).  

		The case proceeded to trial against defendant on

remand.  A jury found that Sarah Augsburger was negligent in her supervision of Louise, proximately causing her death, and that an

agency relationship existed between Sarah Augsburger and defen

dant, thus making defendant vicariously liable for Louise's death

under the doctrine of respondeat superior.  The jury awarded plaintiff a total of $640,000:  $400,000 on a wrongful death

claim and $240,000 on a survival claim.  Defendant filed

posttrial motions for judgment notwithstanding the verdict and

for a new trial, which were denied.  Defendant appeals.

II. ANALYSIS

		Defendant raises several arguments in support of its

contention that the trial court should have granted either the

motion for judgment notwithstanding the verdict or a new trial: 

(1) the evidence was insufficient to support the jury's finding

that an agency relationship existed between defendant and Sarah

Augsburger; (2) the evidence was insufficient to support the

jury's finding that Sarah Augsburger was negligent, proximately causing Louise's death; (3) defendant was entitled to derivative

immunity based upon Sarah Augsburger's parental immunity; (4) the

trial court imposed an impossible duty of constant supervision on

Sarah Augsburger; (5) defendant was a public entity immune from

suit under the Local Government and Governmental Employees Tort

Immunity Act (Tort Immunity Act) (745 ILCS 10/1-206) (West 2000));

(6) the trial court abused its discretion by refusing certain

jury instructions; (7) the trial court abused its discretion by

allowing evidence of abuse and neglect within the Augsburger

home; and (8) the evidence was insufficient to support the jury's

award of $640,000 when there was no evidence of pecuniary loss or

that Louise suffered conscious pain and suffering.  We find that

the trial court erred in denying defendant's motion for judgment

notwithstanding the verdict because the evidence was insufficient

to support the jury's finding of an agency relationship.  We

therefore need not address the other issues.

		The primary issue in this case was whether Sarah Augsburger was defendant's agent or merely an independent con

tractor.  If an agency relationship existed, then defendant can

be held liable for Sarah Augsburger's negligence under the

doctrine of respondeat superior; defendant is not liable if Sarah Augsburger was an independent contractor.  Lang v. Silva, 306 Ill. App. 3d 960, 972, 715 N.E.2d 708, 716 (1999).  An independ

ent contractor is hired to achieve a certain result but is not

controlled in the method of reaching that result.  Lang, 306 Ill. App. 3d at 972, 715 N.E.2d at 716.  An agency relationship exists when the principal has the right to control the manner in which

the agent performs his work.  Lang, 306 Ill. App. 3d at 972, 715 N.E.2d at 716.  In determining whether an agency relationship

exists, the following factors should be considered:  the right to

control the manner in which the work is performed, the right to

discharge, the method of payment, whether taxes are deducted from

the payment, the level of skill required to do the work, and the

furnishing of the necessary tools, materials, and equipment. 

Lang, 306 Ill. App. 3d at 972, 715 N.E.2d at 716.  The right to control the manner of doing the work is the predominant factor. 

Wabash Independent Oil Co. v. King & Wills Insurance Agency, 248 Ill. App. 3d 719, 723, 618 N.E.2d 1214, 1217 (1993).   It does

not matter if the right to control was not actually exercised. 

Ross v. Cummins, 7 Ill. 2d 595, 600, 131 N.E.2d 521, 524 (1956).  The question of whether the parties' relationship is that of

principal and agent or independent contractor is a question of

fact unless the relationship is so clear that it is undisputable. 

Letsos v. Century 21-New West Realty, 285 Ill. App. 3d 1056, 1065, 675 N.E.2d 217, 224-25 (1996).

		Defendant argues that the trial court should have

granted its motion for judgment notwithstanding the verdict

because the evidence did not support the jury's finding that a

principal-agent relationship existed between defendant and Sarah

Augsburger.  "'Judgment notwithstanding the verdict should not be

entered unless the evidence, when viewed in the light most

favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever

stand.'[Citations.]"  McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999).  If reasonable

minds can come to different conclusions based on the facts

presented, then judgment notwithstanding the verdict is not

appropriate.  McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257.  Our review of the trial court's decision on the motion for

judgment notwithstanding the verdict is de novo.  McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257.		

		Our analysis begins with this court's mandate in the

prior appeal in Commerce Bank II, wherein we remanded for the trial court to determine if an agency relationship existed

between defendant and Sarah Augsburger:   			

		"more precisely, whether defendant had enough 

		control over the Augsburgers' day-to-day 

		supervision of Louise and her brother necessary 

		to create an employee-employer, or master-

		servant, relationship that would give rise to 

		the doctrine of respondeat superior."  

		Commerce Bank II, slip order at 7.

This court noted that the First District had found that DCFS-

appointed foster parents were agents of the State (see Griffin v. Fluellen, 283 Ill. App. 3d 1078, 1087, 670 N.E.2d 845, 852 (1996); Nichol v. Stass, 297 Ill. App. 3d 557, 564, 697 N.E.2d 758, 762-63 (1998)), but we opined as follows: 

		"Perhaps given the relentless, around-the-

		clock care parenting foster children requires, 

		defendant would not have had the control 

		necessary for the imposition of vicarious 

		liability for the Augsburgers' negligence."  

		Commerce Bank II, slip order at 7-8.

		Subsequent to our rulings in Commerce Bank I and Commerce Bank II, the Illinois Supreme Court reversed the First District in Nichol, and abrogated Griffin, which were the cases we cited for the proposition that it was possible for a foster

parent to be an agent of DCFS.  In Nichol, foster parents were being sued for negligence because a foster child drowned in a

toilet while in their care.  The foster parents argued that they

were agents of the state and therefore cloaked with sovereign

immunity, because "they were subject to a diverse and comprehen

sive set of requirements concerning their care for [the] foster

children," such as providing closet space, adequate bedding, and

regulating meals and discipline.  Nichol v. Stass, 192 Ill. 2d 233, 239, 735 N.E.2d 582, 587 (2000).  The Illinois Supreme Court

held that "[w]e do not believe that the preceding measures are

anything more than licensing requirements or that they serve to

establish the defendant'0s' role as state employees or agents." 

Nichol, 192 Ill. 2d at 239, 735 N.E.2d at 587.  Therefore, pursuant to this court's mandate and the holding in Nichol, the controlling issue in this case is whether the evidence presented

supports a finding that defendant had control over the Augsburgers' day-to-day supervision of Louise beyond subjecting

the Augsburgers to DCFS "licensing requirements."

		There was testimony and evidence that defendant did in

fact have the right to control a great deal of the day-to-day

supervision and parenting of the foster children placed within

the Augsburgers' home.  Defendant could arrive at the

Augsburgers' home any time, could instruct them when and how

often to feed the children, to clean up the house, to change the

children's bed linen, where the children could sleep, and how

much allowance the children get, could direct supervision of the

children, and could prohibit corporal punishment, among other

things.  If the Augsburgers failed to comply with defendant's

instructions in any respect, defendant could remove the children

from the home.  The right to control the manner of doing the work

and the right to discharge are critical factors in determining an

agency relationship.  Lang, 306 Ill. App. 3d at 972, 715 N.E.2d at 716.  

		However, in every area where defendant could exercise

control over the Augsburgers, defendant was merely monitoring

"licensing standards" set by DCFS regulations.  See 89 Ill. Adm.

Code §402.10(a) (1993) (the number of meals and time span between

meals); 89 Ill. Adm. Code §402.10(f) (1993) (the manner in which

meals are served and sanitary conditions); 89 Ill. Adm. Code

§402.9(g) (1993) (linen changes); 89 Ill. Adm. Code §§402.9(a),

(b), (c) (1993) (sleeping arrangements); 89 Ill. Adm. Code

§402.21(i) (1993) (withholding child's spending money for disci plinary purposes); 89 Ill. Adm. Code §402.16(b) (1993) (supervi

sion of the child); 89 Ill. Adm. Code §402.21(c) (1993) (corporal

punishment).  There was also uncontradicted testimony that every

interaction defendant had with the Augsburgers was dictated by

DCFS regulations.  If DCFS had been monitoring the Augsburgers in

this case, the Augsburgers would not have been agents of DCFS

despite the amount of control the regulations gave DCFS over the

Augsburgers' day-to-day parenting.  See Nichol, 192 Ill. 2d at 240, 735 N.E.2d at 587.  			 

		By merely acting in accordance with DCFS regulations,

defendant did not have the right to exercise any more control

over the Augsburgers than DCFS would have had if it were provid

ing services directly.  The defendant in this case was essen

tially acting in DCFS' place.  Pursuant to the Illinois Supreme

Court's decision in Nichol, if there is no proof that defendant was exercising control over the Augsburgers beyond merely sub

jecting them to DCFS regulations, then an agency relationship has

not been proved in this case.  Nichol, 192 Ill. 2d at 240, 735 N.E.2d at 587.  Therefore, since there was no evidence that

defendant exercised day-to-day control over the Augsburger's'

parenting beyond merely subjecting them to DCFS regulations, the

jury's finding of an agency relationship can not stand.

III. CONCLUSION

		We reverse the October 22, 2001, order of the McLean

County circuit court denying defendant's posttrial motion for

judgment notwithstanding the verdict.

		Reversed.

		TURNER, J., concurs.

		MYERSCOUGH, J., dissents.

	JUSTICE MYERSCOUGH, dissenting:

	I respectfully dissent. I would affirm the trial court. 

The majority correctly identifies the issue as whether defendant

exerted control beyond DCFS licensing regulations over the

Augsburgers' day-to-day supervision of Louise.  In response to

this question, the majority stated defendant did have the right

to control "a great deal of the day-to-day supervision and

parenting" provided by the Augsburgers.  Slip op. at 8.  However,

the majority finds no agency relationship between defendant and

the Augsburgers, stating:

			"By merely acting in accordance with

DCFS regulations, defendant did not have the

right to exercise any more control over the

Augsburgers than DCFS would have had if it

were providing services directly."  Slip op.

at 9.

Finding "no evidence" that defendant's control went beyond

"merely subjecting" the Augsburgers to DCFS regulations, the

majority finds no agency relationship.  Slip op. at 9.  I dis

agree.

		Through the testimony of Jim Smith (Smith), Eexecutive

Ddirector of Youth Services, and William Sherman (Sherman), foster

family supervisor for the Augsburgers, evidence was presented

that defendant exercised control over the Augsburgers beyond

merely subjecting them to DCFS regulations.  Plaintiff’s appellee

brief summarizes Smith's testimony as follows:

			"A treatment plan was drafted by Youth

Services, not DCFS or the foster parents, and the foster parents were required to follow

it.  Youth Services was in the home 2-4 times

a week.  Youth Services would visit the home

to make sure [the] foster parents were doing

what they were supposed to do[,] which even

included maintaining a tidy house.  Failure

to comply with a Youth Services' directive

could result in discharge of the foster par

ents.  Youth Services had the right to dis

charge Sarah Augsburger."  (Emphasis added.)  

Sherman's testimony further explained the extent of defendant's

control over the Augsburgers, and, Pplaintiff’s appellee brief 

summarized it as follows:	

			"Bill Sherman was the foster family supervisor for Sarah and Matthew Augsburger. 

As foster family supervisor[,] one thing Bill

Sherman was required to do was make sure that

the home complied with all foster care li

censing requirements.  If a licensing viola

tion occurred, Sherman could take corrective

action ranging from talking to the parents to

discharging them.  Sherman was constantly

monitoring the care the Augsburgers gave

Louise even for simple things[,] including[] a comfortable bed, three balanced meals per

day--eaten at appropriate times and not in a

hurried manner.  Sherman even admitted that

he would monitor the Augsburgers to ensure

they were providing appropriate supervision

to Louise.

			Separate from licensing guidelines, Youth Services drafted a treatment plan in

which Youth Services required the Augsburgers

to provide Sean and Louise 'clean and safe

living conditions,' 'adequate nutrition,' and

'adequate clothing.'  Youth Services could

have discharged the Augsburgers had the goals

identified in the treatment plans not been

achieved to the satisfaction of Youth Ser

vices.  It was his job to make sure the

treatment plan was followed.  The treatment

plan which was drafted by Youth Services was

a tool used in raising Louise and Sean. ***	

Sarah was present at 'staffings.'  Youth

Services had an absolute right to discharge

the Augsburgers at any time and for any rea

son.  Bill Sherman filled out [p]rogress

[n]otes wherein he repeatedly memorialized a

decision to maintain placement."  (Emphasis

added.) 

The clearest example of the reach of defendant's control over the

Augsburgers, however, was defendant's illegal policy on reporting

allegations of abuse and neglect.  Plaintiff’s appellee brief

states:

		"Youth Services had a policy (an illegal

policy) regarding reporting allegations of

abuse and neglect to DCFS.  The policy was

that in cases where the child reported the

abuse or the abuse was obvious[,] Youth Ser

vices called it into the Hotline, but on

cases that were in question, Youth Services

investigated it and then wrote a note to Jim

Smith[,] who would decide whether DCFS should

be called.  This policy was followed in rela

tion to the Augsburgers when an anonymous

call was received about some concerns in the

home.  Bill Sherman, along with Barbara

Schneider, investigated the concerns and

prepared investigation notes regarding their

investigation of Sarah.  On a separate occa

sion, Bill Sherman[,] along with Ron Webber

(no relation to Dawn)[,] met with Jackie

Blaine and fielded her concerns regarding the

placement."    

		Clearly, the majority's finding that "every interaction

defendant had with the Augsburgers was dictated by DCFS regula tions," is erroneous.  Slip op at 9.  Sufficient evidence  sup

ported the jury's finding of an agency relationship.  The jury’s

finding of an agency relationship should, therefore, be affirmed.