Docket No. 93144–Agenda 31–September 2002.

SHANDOULIA WALLACE, Indiv. and as Adm’r of the Estate of

Waketta Roy Wallace, Deceased, Appellant, v. JOHN P. SMYTH

								et al., Appellees.

Opinion fileid d December 19, 2002.

	JUSTICE FITZGERALD delivered the opinion of the court:

	The 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 plaintiff’s 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.

BACKGROUND

	On 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.

	A 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’s death from positional

asphyxia.

	Roy’s 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’ negligence, and, alternatively, willful and wanton

misconduct, proximately caused Roy’s death. The defendants filed

a motion to dismiss Wallace’s negligence claims; they asserted the

parental immunity doctrine shielded them from liability. The trial

court agreed and dismissed these claims, stating: “I 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.” The case proceeded to trial on Wallace’s

willful and wanton misconduct claims. After a jury returned a

verdict for the defendants, Wallace appealed the dismissal of her

negligence claims.

	The appellate court reversed. Wallace v. Smyth, 301 Ill. App. 3d 75 (1998). The court noted, “At common law, in loco parentis status belonged to persons who put themselves in a parent’s shoes

by assuming all parental obligations toward a child without going

through the formalities of legal adoption.” Wallace, 301 Ill. App. 3d at 80. After reviewing Wallace’s negligence allegations, the

court rejected the defendants’ 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. Thise court held that h 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’ 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 §§359.7, 359.9 (1996).

The appellate court concluded that Wallace’s 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.

	The defendants filed a petition for leave to appeal. While this

petition was pending, we decided Nichol. Accordingly, we denied the defendant’s 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).

	On remand, the appellate court discussed both Cates and Nichol and stated:

			“The 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.” 327 Ill. App. 3d 411, 419-20.

The 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.

	In dissent, Justice Cahill stated:

		“The 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.” 327 Ill. App. 3d at 422 (Cahill, J., dissenting).

	We allowed Wallace’s petition for leave to appeal. See 177 Ill.

2d R. 315.1

ANALYSIS

	A motion to dismiss under section 2–615(a) of the Civil

Practice Law (735 ILCS 5/2–615(a) (West 2000)) tests the legal

sufficiency of the plaintiff’s claim, while a motion to dismiss under

section 2–619(a) (735 ILCS 5/2–619(a) (West 2000)) admits the

legal sufficiency of the plaintiff’s 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). Consistent with the designation the defendants gave to their motion

to dismiss, the trial court considered the motion under section

2–615. This motion, however, should have been brought under

section 2–619(a)(9) because the defendants argued that the

plaintiff’s negligence claim was barred by “other affirmative

matter,” namely, parental immunity. 735 ILCS 5/2–619(a)(2)

(West 2000); see Nichol, 192 Ill. 2d at 235. We will address the merits of this appeal, despite the defendants’ error, because

Wallace has suffered no prejudice from the defendants’ improper

designation. See Storm & Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 1047 (1998); see also Janes v. First Federal Savings & Loan Ass’n 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).

	In 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-to-day

care, supervision, and discipline of state wards, regardless of any

familial relationship between the child and the person or entity. In

the defendants’ view, “the parental immunity doctrine follows the

child.”

	The 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’s 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.

	We 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: “The focus has shifted

to a concern with preventing litigation concerning conduct

intimately associated with the parent-child relationship. ***

[W]here that relationship is not impacted, the policies supporting

the doctrine lose their persuasive strength.” 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:

		“Courts 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. *** [T]hose underlying policies

ought to determine the scope of the immunity.”

(Emphases added.) Cates, 156 Ill. 2d at 103-04.

	In 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–such as the

care, supervision, and discipline of a child. Cates, 156 Ill. 2d at 104. As we observed, “These 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.” (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’s negligence

claim against her father. Cates, 156 Ill. 2d at 106.

	More 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’s 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’s judgment, claimed parental immunity.

	We rejected the sovereign immunity argument, but accepted

the parental immunity argument:

		“[A]lthough 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–the preservation

of parental authority and discipline [citation]–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.” Nichol, 192 Ill. 2d at 244- 45.

Accord Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 517 (1997) (“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”).

	We compared teachers, who enjoy statutory immunity under

the School Code, to foster parents. Like teachers and biological

parents, foster parents remain responsible for “a broad range of

decisions affecting the vital interests of the children involved.”

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 whichthat would defeat parental immunity. Nichol, 192 Ill. 2d at 248.

	The defendants assert that foster parents and residential child

care facilities are no different. At trial, Father Smyth even

characterized Maryville as “a very large foster home for the

children who are dependent and neglected [and abused].”

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 “filial or pseudo-

filial relationship.”

	We disagree. The Cates standard “focuses primarily on conduct inherent to the parent-child relationship.” (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

“parental” responsibilities; we also consider whose performance is

at issue. See Gulledge v. Gulledge, 51 Ill. App. 3d 972, 974 (1977) (“the rationale behind the [parental immunity] rule loses its

persuasive force as one considers situations involving other than

the actual parent”); see also Cates, 156 Ill. 2d at 99 (“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”).

	Consequently, 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’s response.

	We 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 5/24–24, 34–84a (West 2000) (“In 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”); Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 480 (2002) (sections 24–24 and 34–84a 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’Donnell, 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.

CONCLUSION

	For 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.

Appellate court judgment reversed;

circuit court judgment reversed;

cause remanded.

	JUSTICE FREEMAN, specially concurring:

	I agree that Maryville Academy and its employees (hereinafter

Maryville Academy) may not invoke parental immunity as a

defense to plaintiff’s 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.

	I 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 ythat 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’s

holding:

			“By 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’ 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.” Nichol, 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.

	The 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.

	Because 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.