Opinion
5-21-0243
03-31-2022
MICHAEL McPHERSON, Administrator for the Estate of Karissa McPherson, and CANDICE HOLLAND, n/k/a Candice Amizich, Plaintiffs-Appellants, v. ST. CLAIR COUNTY, Defendant-Appellee.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County. No. 16-L-212 Honorable Christopher T. Kolker, Judge, presiding.
JUSTICE MOORE delivered the judgment of the court. Presiding Justice Boie and Justice Vaughan concurred in the judgment.
ORDER
MOORE, JUSTICE
¶ 1 Held: The trial judge did not err in granting the defendant's motion for summary judgment, because the plaintiffs failed to meet their burden to show that, as a matter of law, the defendant owed a duty to the plaintiffs under the circumstances of this case, and thus, summary judgment for the defendant and against the plaintiffs was proper.
¶ 2 The plaintiffs, Michael McPherson, acting in the capacity of the administrator for the Estate of Karissa McPherson, and Candice Holland, now known as Candice Amizich, appeal the order of the circuit court of St. Clair County that granted the motion for summary judgment of the defendant, St. Clair County, which followed the filing, by the plaintiffs, of their five-count amended complaint. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 This case, which originally was filed in Madison County, arose from the facts surrounding an August 8, 2015, one-vehicle automobile accident in St. Clair County. The accident resulted in the deaths of the two occupants of the vehicle, Jared McPherson and the vehicle's driver, Brian Hubbs. Plaintiff Michael McPherson is Jared's father. Plaintiff Karissa McPherson, who died after the filing of the original complaint, but prior to the filing of the amended complaint, was Jared's biological sister. Plaintiff Candice Holland, now known as Candice Amizich, was Jared's fiancée at the time of Jared's death.
¶ 5 On March 22, 2018, the plaintiffs filed the amended complaint, which is the operative complaint in this appeal. Therein, the plaintiffs alleged that the St. Clair County Coroner's Department, through its employee Deputy Coroner Tom Boyd, responded to the scene of the fatal accident, "and directed recovery of the bodies for transport to the St. Clair County Morgue." The plaintiffs further alleged that approximately three days after the accident, Michael McPherson called the coroner's department and received directions to the exact location of the accident, and that Karissa and Candice thereafter visited the accident scene to place a memorial there. The plaintiffs alleged that at the accident scene, they "discovered human remains of Jared McPherson's skull and hand, along with other items." They alleged that after they contacted the coroner's department about the remains, "Boyd[ ] returned to the accident scene, recovered the portion of the skull and hand, and took said body parts to the funeral director in charge of Jared McPherson's cremation." The plaintiffs further alleged that when they later visited the scene again, "they found additional human remains." They alleged that the defendant-which we reiterate is St. Clair County, rather than the coroner's department, and/or Boyd individually-"had a statutory duty to remove the remains pursuant to § ILCS 5/3-3019," and that the" [defendant's conduct as described herein constitutes deliberate indifference and conscious disregard for the health and safety of others." The individual counts of the complaint, discussed in more detail below, took issue with the manner in which Boyd handled the removal of remains from the accident scene, and also took issue with the fact that someone from the coroner's department gave the plaintiffs directions to the scene, knowing they planned to visit the scene. In each count, Boyd is characterized by the plaintiffs as an employee of the defendant.
¶ 6 Count I of the complaint, asserted on behalf of Karissa's estate, alleged intentional infliction of emotional distress. Count II, asserted on behalf of Candice, also alleged intentional infliction of emotional distress. Count III, asserted on behalf of both plaintiffs, alleged inadequate training of Boyd by the defendant. Count IV, asserted on behalf of both plaintiffs, alleged inadequate supervision and discipline of Boyd by the defendant. One of the individual allegations of this count was" [t]hat as final policy maker for the St. Clair County Coroner's Department, the actions of [the defendant's employees are imputed upon St. Clair County." Count V, also asserted on behalf of both plaintiffs, alleged negligence by the defendant as the result of Boyd's actions and inactions, as well as actions and inactions of the defendant itself. Count V also alleged "[t]hat as final policy maker for the St. Clair County Coroner's Department, the actions of [the defendant's employees are imputed upon St. Clair County."
¶ 7 The defendant thereafter filed an answer and affirmative defenses. Following other procedural matters that are not relevant to the issues raised by the plaintiffs in this appeal, the defendant filed, on June 28, 2021, a motion for summary judgment, wherein the defendant contended, inter alia, that (1) the plaintiffs could not establish that the defendant, St. Clair County, owed a duty to the plaintiffs, because the statute invoked by the plaintiffs establishes no such duty; (2) the public duty rule, which was applicable at the time of the events in this case, likewise shows that there was no duty owed by the defendant to the plaintiffs in this case; (3) factually speaking, no causes of action for intentional infliction of emotional distress are sustainable in this case; and (4) the Illinois "Tort Immunity Act" bars the plaintiffs' claims. In its motion, the defendant asserted that" [t] he facts of this case are not in dispute," and in support of this proposition, attached to the motion, as exhibits, copies of the deposition testimony of several witnesses, as well as several photographs from the scene of the accident.
¶ 8 On June 29, 2021, the plaintiffs filed a response to the defendant's motion, as well as a memorandum in support thereof. Additional pleadings were filed by both parties that are not relevant to this appeal. A hearing on the defendant's motion for summary judgment, and the plaintiffs' response thereto, was held on July 6, 2021. At the hearing, counsel for the defendant argued that the facts derived from the testimony in the attached depositions-which he again characterized as not being "in dispute"-showed that, inter alia, (1) the vehicle in which Jared was a passenger left Interstate 255 "just south of Collinsville Road" while traveling at "full speed" and crashed through heavy brush and undergrowth before striking a tree, still at a very high rate of speed; (2) the vehicle burst into flames and the bodies of both Jared McPherson and Brian Hubbs were "completely burned" and "charred"; (3) Deputy Coroner Boyd thereafter arrived at the scene and directed Sawyer Livery-a company that was contracted by St. Clair County to remove bodies from the scenes of fatal accidents-to remove the bodies; (4) the vehicle first had to be towed away from the tree, so that the charred bodies could be accessed and removed from the vehicle; (5) the fire department used approximately 100 gallons of water to extinguish the fire; (6) employees of Sawyer Livery removed the bodies, once the fire department helped remove a door to the vehicle so that the bodies were accessible; (7) once the bodies were removed, employees of Sawyer Livery, and Boyd, looked around the scene; (8) when Karissa and Candice went to the scene approximately three days later, after being directed to the scene by Boyd, they found what they believed to be human remains near the accident site; (9) Boyd returned to the scene, recovered the purported human remains, and took them to the funeral home to be cremated with the rest of Jared's remains; and (10) on a subsequent visit to the scene, after Jared's funeral, additional purported remains were found.
¶ 9 In response to a question from the trial judge, counsel for the defendant noted that the purported remains were never tested," [s] o we don't know what they were precisely," and therefore it was not known if the purported remains were human, and if so, if they were Jared's remains, or those of Hubbs, or possibly those of both men. Counsel then discussed his legal theories, as put forward in his motion for summary judgment. With regard to the facts necessary to sustain the two claims for intentional infliction of emotional distress, he reiterated some of the foregoing facts, and added that because of the water used to attempt to extinguish the vehicle fire, there was "mud and water *** everywhere," and that because many first responders were "walking around everywhere," it was understandable if Sawyer Livery and Boyd were not able to find and secure all of the remains of the victims, if in fact the small amount of purported remains discovered by the plaintiffs were human remains, and specifically were the remains of Jared. The plaintiffs put forward their arguments as well, at no time disputing the basic facts as recited by counsel for the defendant. The plaintiffs argued, inter alia, that St. Clair County had both a common law and a statutory duty to the plaintiffs to ensure that all of Jared's remains were removed from the accident scene.
¶ 10 Following the arguments of the parties, the trial judge stated that he believed counsel for the defendant was "right on the tort immunity part and how it's pled," and that he believed there was "an issue with duty." He also noted that he believed the plaintiffs would have "some serious problems with linking up the body parts if they're body parts." He thereafter entered a written order in which he granted the defendant's motion for summary judgment. The written order did not contain findings of fact, or analysis of the applicable law. On August 3, 2021, this appeal was timely filed. Additional facts will be presented as necessary throughout the remainder of this order.
¶ 11 II. ANALYSIS
¶ 12 On appeal, the plaintiffs contend the trial judge erred in granting summary judgment to the defendant because (1) whether Boyd's conduct was sufficiently "extreme and outrageous" to sustain claims of intentional infliction of emotional distress is a question of fact that should be decided by the trier of fact; (2) "[the d]efendant violated its statutory duty under" certain statutes that govern the responsibilities of a county coroner, said violation being the result of, inter alia, Boyd's failure "to properly remove and transport the decedent's body in its entirety to the morgue on two different occasions"; (3) the defendant also owed a common law duty to the plaintiffs, and violated that duty; (4) to the extent the public duty rule otherwise applies in this case, the "specific duty" exception to that rule renders the defendant liable in this case; and (5) to the extent Illinois's tort immunity provisions otherwise are applicable in this case, they nevertheless do "not operate to bar inadequate training and supervision claims in the present circumstances," and the defendant is not entitled to any sort of discretionary immunity because, the plaintiffs contend, the defendant "caused injuries to the decedent's next of kin, directly violating their right to custody and burial of the decedent."
¶ 13 The defendant responds that it believes that (1) the defendant is entitled to "absolute immunity" under the relevant portions of Illinois's tort immunity provisions, including with regard to the claims for inadequate training and supervision; (2) no statutory or common law duty on the part of the defendant, to the plaintiffs, exists under the circumstances of this case, and in any event, the public duty rule is applicable to the timeframe of this case; and (3) no reasonable trier of fact could conclude that Boyd's conduct in this case was "extreme and outrageous" enough to sustain the claims of intentional infliction of emotional distress. The defendant notes that the plaintiffs chose to sue St. Clair County, rather than to sue Boyd personally, or "the elected St. Clair County Coroner," which he contends "is an independent elected public official that controls his/her office." The defendant further notes that the amended complaint does not include a claim for tortious interference with the possession of a corpse. With regard to the question of duty-which the defendant notes is a question of law, not fact-the defendant contends that the statutory sections cited by the plaintiffs do not create a duty on the part of the defendant to the plaintiffs under the circumstances of this case, because the sections do "not impose a specific duty upon St. Clair County to inform or remove the corpse for the benefit of individuals," which is significant because of the well-established rule of law that" [i] n order to state a cause of action based upon a statutory violation [, ] a plaintiff must prove an actual violation of a statute and that the plaintiff is within the class intended to be protected by the statute." The defendant contends the plaintiffs can prove neither proposition in this case. The defendant also argues that there exists no case law in Illinois in support of a common law duty of a coroner to remove the remains of a deceased person, other than possibly in situations-unlike this case-that involve a claim for tortious interference with the possession of a corpse. The defendant contends that even if a duty could be found to exist in this case, the public duty rule was still in effect at the time of the events in question in this case, and that accordingly, that rule bars recovery by the plaintiffs. In their reply brief, the plaintiffs reiterate their earlier contentions, described above. In so doing, the plaintiffs assert, inter alia, that they "are not asserting a cause of action for tortious interference with the next of kin's right to possession of a decedent's remains." Instead, the plaintiffs claim that the statutory sections in question create "a duty to not interfere with [the plaintiffs'] right to Jared McPherson's body."
¶ 14 Having recounted the arguments of the parties on appeal, we begin our legal analysis with the following points of law that are relevant to all cases involving summary judgment, and the legal question of duty. A trial judge should grant a party's motion for summary judgment if "the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Hodges v. St. Clair County, 263 Ill.App.3d 490, 491 (1994). Moreover, "the existence of a duty is a question of law properly decided on a motion for summary judgment because, absent a legal duty, there can be no recovery in negligence as a matter of law." Id. at 492. We review de novo a trial judge's decision on a party's motion for summary judgment. See, e.g., Godair v. Metro East Sanitary District, 2021 IL App (5th) 200160, ¶ 32. As we do so, we are cognizant of the fact that it is a plaintiff's burden, when attempting to properly state a cause of action for negligence, to establish that (1) the defendant owed to the plaintiff a duty of care, (2) the defendant breached that duty, and (3) an injury proximately resulted from the breach. See, e.g., id. ¶ 28. We may affirm the trial court on any basis that is supported by the record on appeal. See, e.g., Evans v. Lima Lima Flight Team, Inc., 373 Ill.App.3d 407, 418 (2007).
¶ 15 We turn now to the plaintiffs' contention that the statutory sections they have cited, found in the Counties Code, create "a duty to not interfere with [the plaintiffs'] right to Jared McPherson's body." As the Illinois Supreme Court has long held, "[i]n order to recover for a defendant's violation of a statute or rule designed to protect human life or property, a plaintiff must show" that, inter alia, the "plaintiff belonged to the class of persons whom the rule was intended to protect from injury," and "the kind of injury suffered by [the] plaintiff was the kind of injury which the rule sought to prevent." Gouge v. Central Illinois Public Service Co., 144 Ill.2d 535, 543 (1991). In this case, the plaintiffs point to three sections of the Counties Code. First, the plaintiffs point to, and add their emphasis to, the portion of section 3-3013 which states that when a dead body is discovered, a county coroner or representative thereof "shall go to the place where the dead body is, and take charge of the same and shall make a preliminary investigation into the circumstances of the death," and which further states that "[i]n the case of death without attendance by a licensed physician the body may be moved with the coroner's consent from the place of death to a mortuary in the same county." (Emphasis added.) 55 ILCS 5/3-3013 (West 2014). Second, the plaintiffs point to the portion of section 3-3019 which states that a third party may not remove a body without the permission of the coroner. Id. § 3-3019. Third, they point to, and add their emphasis to, the portion of section 3-3021 which states that, as a matter of public policy, "none of the duties or powers of coroners enumerated in this Division shall be construed to interfere with or control the right of [the decedent's next of kin, personal representative, friends, or *** the person designated in writing by the decedent or *** the funeral director selected by such persons] to the custody and burial of the decedent upon completion of the coroner's investigation." (Emphasis added.) Id. § 3-3021.
¶ 16 The plaintiffs claim that these three sections, taken together, "clearly impose" a duty on St. Clair County "to take charge of Jared McPherson's body" and "to perform such duty in a manner that would not interfere with [the plaintiffs'] right to custody and burial of Jared." In their reply brief, as noted above, they specifically contend that the statutory sections in question create "a duty to not interfere with [the plaintiffs'] right to Jared McPherson's body." The plaintiffs do not, however, attempt at all to tie their allegations of a duty on the part of St. Clair County to the Gouge court's requirement that "[i]n order to recover for a defendant's violation of a statute or rule designed to protect human life or property, a plaintiff must show" that, inter alia, the "plaintiff belonged to the class of persons whom the rule was intended to protect from injury," and "the kind of injury suffered by [the] plaintiff was the kind of injury which the rule sought to prevent" (144 Ill.2d at 543). Accordingly, this court could find that the plaintiffs have forfeited their statutory duty argument. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (argument must contain the contentions of the appellant, the reasons therefor, and the citation of authorities; points not argued in an opening brief are forfeited and shall not be raised in the reply brief, in oral argument, or in a petition for a rehearing).
¶ 17 Forfeiture notwithstanding, we do not find persuasive the arguments the plaintiffs do attempt to make. The plaintiffs first argue that "the underlying public policy stated in [s]ection 3-3021" and "Illinois common law" show that a duty exists in this case. However, other than simply setting forward, and emphasizing, certain statutory sections, the plaintiffs have in no way explained how these statutory sections, by their plain language or by their legislative history, create a duty on the part of St. Clair County to the plaintiffs in this case. Section 3-3013-which, as explained above, states in part that when a dead body is discovered, a county coroner or representative thereof "shall go to the place where the dead body is, and take charge of the same and shall make a preliminary investigation into the circumstances of the death," and further states in part that "[i] n the case of death without attendance by a licensed physician the body may be moved with the coroner's consent from the place of death to a mortuary in the same county" (emphasis added) (see 55 ILCS 5/3-3013 (West 2014))-sets forth certain responsibilities of a coroner with regard to conducting a preliminary investigation into a death under certain delineated circumstances, as well as responsibilities with regard to blood and urine analysis, summoning a jury, and reporting requirements. See id. The section does not address any duty-as that term is understood in a negligence case analysis-the coroner owes to any individual or class of individuals, nor does the section address at all any type of injury to those individuals that the section attempts to prevent. Accordingly, the mere fact that the section states that a body may be moved with the coroner's consent from the place of death to a mortuary in the same county does not amount to the creation of a legal duty, for the purposes of a negligence action, of the sort alleged by the plaintiffs in this case. There is simply no indication that the drafters of the section had any intent whatsoever to address negligence law when mentioning that a body may be moved with the coroner's consent; to the contrary, it is apparent from the overall context of section 3-3013 that the purpose of this wording is to set forth one of the means by which a coroner may meet the aforementioned responsibilities of a coroner when conducting a preliminary investigation into a death. See id.
¶ 18 Likewise, section 3-3019-which, as explained above, states that a third party may not remove a body without the permission of the coroner (see id. § 3-3019)-does not address any duty, as that term is understood in a negligence case analysis, the coroner owes to any individual or class of individuals, nor does the section address at all any type of injury to those individuals that the section attempts to prevent. To the contrary, section 3-3019, by its plain language, is addressed to people other than a coroner who, in nonemergency situations, take it upon themselves to tamper with a body, and specifically states that" [a]ny person knowingly violating the provisions of this Section is guilty of a Class A misdemeanor." Id. As with section 3-3013, when viewed in its proper context, there is no indication that the drafters of this section intended to create a duty, for negligence law purposes, on the part of a coroner to anyone under this section.
¶ 19 Similarly, section 3-3021-which, as explained above, states that, as a matter of public policy, "none of the duties or powers of coroners enumerated in this Division shall be construed to interfere with or control the right of [the decedent s next of kin, personal representative, friends, or *** the person designated in writing by the decedent or *** the funeral director selected by such persons] to the custody and burial of the decedent upon completion of the coroner's investigation" (emphasis added) (see id. § 3-3021)-is, when viewed in its proper context, simply a recognition and expression of the well-established legal principle, discussed in more detail below, that upon completion of a coroner's death investigation, survivors of a deceased person have the right to possession of the deceased's remains for burial or other disposition. Section 3-3021 does not address any duty, as that term is understood in a negligence case analysis, the coroner owes to any individual or class of individuals, nor does the section address at all any type of injury to those individuals that the section attempts to prevent. See id. As with sections 3-3013 and 3-3019, when viewed in its proper context, there is no indication that the drafters of this section intended to create a duty, for negligence law purposes, on the part of a coroner to anyone under this section.
¶ 20 In sum, there is simply nothing in the plain language of any of these statutory sections, or in their legislative histories, that indicates that the plaintiffs in this case "belonged to the class of persons whom the rule was intended to protect from injury," or that "the kind of injury suffered by [the] plaintiff[s] was the kind of injury which the rule sought to prevent." See Gouge, 144 Ill.2d at 543.
¶ 21 Moreover, although the plaintiffs insist that they "are not asserting a cause of action for tortious interference with the next of kin's right to possession of a decedent's remains," the only cases they cite as part of their duty argument in their opening brief on appeal-Cochran v. Securitas Security Services USA, Inc., 2016 IL App (4th) 150791, Leno v. St. Joseph Hospital, 55 Ill.2d 114 (1973), and Mensinger v. O'Hara, 189 Ill.App. 48 (1914)-all involve such a claim. None of these cases refer to any other common law, or statutory claims, of the sort advocated for by the plaintiffs in this case, and therefore none discuss the concept of duty as related thereto. Thus, these cases in no way support the plaintiffs' claims in this appeal.
¶ 22 In light of the foregoing, we are left only with what appears to be the insinuation, on the part of the plaintiffs, that the statutory sections they have cited represent codifications of the common law cause of action for tortious interference with a next of kin's right to possession of a decedent's remains, and that it is because of these alleged codifications that a duty on the part of St. Clair County exists in this case. However, as explained above, there is simply no indication in the statutory sections themselves, or in their legislative histories, that this is the purpose of the sections in question. In addition, the plaintiffs have not cited a single decision of this court, or the Illinois Supreme Court, that would support the argument that these statutory sections create a duty of the sort advocated for by the plaintiffs in this case. Even the treatise cited by the plaintiffs contains a discussion relevant to only the common law in Illinois, not to the nexus between that common law and these statutory sections, which are never mentioned by the treatise at all. Because, as explained above, the plaintiffs have failed to address the Gouge factors, they have not made any kind of coherent argument for why, the present lack of Illinois precedent notwithstanding, this court should find a duty from the defendant to these plaintiffs under the statutory sections in question. We decline to craft such a duty wholly out of thin air.
¶ 23 Likewise, the plaintiffs fail to allege adequately any other nonstatutory, common law duty in support of their claim. To determine whether a common law duty exists, courts consider whether a defendant and a plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of plaintiff. See, e.g., Godair v. Metro East Sanitary District, 2021 IL App (5th) 200160, ¶ 32. Four factors guide a court's common law duty analysis: (1) whether the injury is reasonably foreseeable, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant. Id. "The weight to be accorded these factors depends upon the circumstances of a given case." Id. Here, the plaintiffs have not mentioned these four factors at all, let alone provided any analysis with respect thereto. Thus, the plaintiffs have forfeited any claim with regard to any other nonstatutory common law duty. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (argument must contain the contentions of the appellant, the reasons therefor, and the citation of authorities; points not argued in an opening brief are forfeited and shall not be raised in the reply brief, in oral argument, or in a petition for a rehearing).
¶ 24 Accordingly, although the plaintiffs have repeatedly put forward the manner by which they believe St. Clair County breached its alleged duty in this case-by, they claim, "failing to properly remove and transport the decedent's body in its entirety to the morgue on two different occasions[, ] *** utilizing a third party to handle removal without retaining proper control[, ] *** contributing to incomplete removal[, ] and *** effectively preventing [them] from custody of Jared McPherson's body and a proper burial"-they simply have not met their burden to show that a duty existed in this case in the first place. See, e.g., Godair, 2021 IL App (5th) 200160, ¶ 28 (burden is on plaintiff, when attempting to properly state a cause of action for negligence, to establish that (1) the defendant owed to the plaintiff a duty of care, (2) the defendant breached that duty, and (3) an injury proximately resulted from the breach).
¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, we affirm the order of the circuit court of St. Clair County that granted the defendant's motion for summary judgment.
¶ 27 Affirmed.