                                                    NO. 5-06-0065
                   NOTICE

 Decision filed 05/17/07. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

BRENDA TEDRICK, Administrator of the       ) Appeal from the
Estate of Teresa Street, Deceased, and     ) Circuit Court of
BRENDA TEDRICK and JAMES TEDRICK,          ) Marion County.
Guardians of the Estates of Dalton Ryan    )
Street and Dylan Bryce Street, Minors,     )
                                           )
   Plaintiffs-Appellants,                  )
                                           )
v.                                         ) No. 05-L-36
                                           )
COMM UNITY RESOURCE CENTER, INC., )
d/b/a COMMUNITY RESOURCE CENTER, )
VANDALIA, ILLINOIS; DEENA BALLARD, )
LCSW; LYNETTE M. GARTKE, LCPC;             )
GEORGIANNE B. BROUGHTON, LCPC;             )
JAMES R. GOGGIN, M.D.; HEALTH              )
MANAGEMENT LIMITED PARTNERSHIP, )
d/b/a DOCTORS HOSPITAL; VINE STREET )
CLINIC, LLC; FAREED TABATABAI, M.D., )
JUDY L. KEEVEN, M.D.; and SALLY            )
PUTNAM,                                    )
                                           )
   Defendants-Appellees                    )
                                           )
(Physicians Group Associates, S.C., Daniel )
O'Brien, M.D., and St. Mary's Hospital,    )
Centralia, Illinois,                       ) Honorable
                                           ) David L. Sauer,
   Respondents in Discovery-Appellees).    ) Judge, presiding.
________________________________________________________________________

             JUSTICE DONOVAN delivered the opinion of the court:

             The plaintiffs filed a wrongful-death-and-survival action in the circuit court of Marion

County on behalf of the estates of Teresa Street, deceased, and her children against several

health care providers alleging that they breached their duties to warn and to protect Teresa

Street from foreseeable violent acts of her husband, Richard Street. The circuit court found


                                                         1
that the plaintiffs failed to allege a recognized duty of care owed by any named defendant

to Teresa Street, and the court dismissed the action with prejudice. On appeal, the plaintiffs

claim that the trial court erred in dismissing the action because the defendants owed duties

to Teresa Street under voluntary-undertaking and transferred-negligence theories of liability.

The plaintiffs also claimed that the trial court erred in denying them reimbursement for the

time and expenses that they incurred in compelling a respondent in discovery to comply with

the rules of discovery.

                           I. Factual and Procedural Background

       On May 13, 2003, Richard Street was checked into Hillsboro Hospital. According

to the patient history, Richard was having thoughts of killing himself and killing his wife,

Teresa Street. An emergency screening assessment was conducted. The assessment revealed

that Richard had been enduring paranoid delusions and "gustatory" hallucinations for the

previous month or two. It also revealed that Richard had a history of depression and panic

attacks and that he had attempted to stab himself two months prior to the admission.

       Following the assessment, Richard Street was transferred to Doctors Hospital in

Springfield for purposes of evaluation and treatment.        Sally Putnam, a social worker

employed by Doctors H ospital, obtained a psychiatric social history on Richard. She

included information based on interviews with Richard Street, Teresa Street, and Richard's

mother, Nileene Hancock. Teresa reported that her husband was losing "his grip on reality"

and that he had been exhibiting strange behavior for about a month. Teresa also stated

Richard thought that she was trying to drug him and their children, that she was having an

affair, and that the guys at work were trying to kill him. Nileene Hancock reported that her

son had expressed a plan to kill himself and Teresa. Richard acknowledged that he had

suicidal thoughts and that he had recently placed a knife to his chest with thoughts of killing

himself but changed his mind. Richard reported that he worried a lot about his wife cheating


                                              2
on him. Richard believed that Teresa was trying to poison him and his sons. He admitted

that he had a homicidal plan.

        Richard Street was hospitalized at Doctors Hospital from M ay 13, 2003, to May 16,

2003. During the admission, Richard was evaluated and treated by Fareed Tabatabai, M.D.,

a psychiatrist with the Vine Street Clinic. Dr. Tabatabai discharged Richard Street from

Doctors Hospital on M ay 16, 2003, with the diagnosis of "major depression with mild

psychotic features". Richard was instructed to attend a follow-up appointment with the

Community Resource Center (CRC) in Fayette County on May 20, 2003. CRC is an

outpatient facility that treats individuals afflicted with depression or substance abuse issues.

Lynette M. Gartke, a licensed clinical professional counselor (LCPC) at CRC, conducted an

initial evaluation of Richard on May 20, 2003, and a comprehensive assessment on June 3,

2003.

        On June 6, 2003, at approximately 10 a.m., Richard Street arrived at CRC in a state

of crisis. Deena Ballard, a licensed clinical social worker, performed a crisis-intervention

assessment. During the assessment, Richard indicated that he wanted to voluntarily admit

himself to a mental health hospital. He reported that he was going to kill his wife, Teresa.

Richard's mother was present. She reported that her son had threatened to kill Teresa.

Deena Ballard contacted St. Mary's Hospital in Centralia to arrange for a voluntary

admission. Richard was deemed appropriate for admission pending a formal determination

by the hospital. Sometime between 11:30 a.m. and noon, during the process of arranging for

the admission, Richard changed his mind. He indicated that he no longer wanted to be

hospitalized. He wanted to return home to his wife. Deena Ballard scheduled Richard for

an appointment later that day with his family physician, James R. Goggin, M.D. Richard left

CRC accompanied by his mother and a nephew.

        Meanwhile, Teresa Street was on her way to CRC. She arrived at the facility between


                                               3
noon and 12:15 p.m., and she consulted with Deena Ballard. Teresa expressed her concern

about Richard's changing moods and behavior and his treatment needs. Deena Ballard

provided Teresa with a crisis line telephone number, and Teresa agreed to call the crisis line

or the police in an emergency.

          At about 3:45 p.m. on June 6, 2003, Richard Street arrived for his appointment with

Dr. Goggin. Teresa Street and Nileene Hancock also attended the appointment. Dr. Goggin

met with Richard and his mother. He met separately with Teresa. In his office record, Dr.

Goggin noted Teresa's concern that Richard might hurt her because he believed she was

having an affair. Dr. Goggin also noted that Richard had denied suicidal ideations at that

time and that Richard had said that he did not intend to hurt Teresa. The record also

indicates that Nileene Hancock agreed with her son's assessment of his mental state. Dr.

Goggin noted that Richard displayed symptoms of paranoia. He prescribed Xanax and

Zyprexa. Dr. Goggin advised Richard that he could not treat Richard for this condition. Dr.

Goggin told Richard that he should have psychiatric care.

          On June 9, 2003, Richard Street was found lying over the lifeless body of Teresa

Street. Teresa, the 34-year-old mother of three, had been strangled. Richard Street was

found to have overdosed on medication. He survived the episode but required below-the-

knee amputation of both legs because of the way his body was positioned during the period

following his ingestion of the medication. In December 2005, Richard Street entered a guilty

plea to second-degree murder in the death of his wife, and he was sentenced to 18 years in

prison.

          The plaintiffs filed a wrongful-death action on behalf of the estates of Teresa Street

and her children, against Richard Street's health care providers, alleging theories of direct

negligence and transferred negligence. In the third amended complaint, the plaintiffs alleged

that in the period between May 13, 2003, and June 9, 2003, Richard Street came under the


                                                4
care of the defendants for psychiatric care, that Richard Street informed the defendants that

he thought his wife was committing adultery and trying to poison him and their sons, that

Richard Street told the defendants that he had thoughts of killing himself and his wife, that

it was reasonably foreseeable that Richard Street would injure and/or kill Teresa Street, and

that the defendants knew or should have known that Richard Street posed a specific threat

of harm to Teresa Street.

       In support of the voluntary-undertaking theory, the plaintiffs alleged that the

defendants undertook to evaluate, supervise, treat, and control Richard Street for the

protection of Teresa Street and that Teresa Street relied on the defendants to exercise

reasonable care in the performance of their undertakings by conducting appropriate

evaluation, treatment, supervision, and control of Richard Street and by warning Teresa

Street of Richard Street's threats of violence against her. As to the theory of transferred

negligence, the plaintiffs alleged that Teresa Street and Richard Street had the type of special

and intimate relationship that gives rise to the transfer of the defendants' duties of care to

Teresa Street. The complaint further asserts that the breach of one or more of the stated

duties proximately caused pain and suffering, and ultimately the death of Teresa Street.

       The defendants moved to dismiss the action under section 2-615 of the Illinois Code

of Civil Procedure (735 ILCS 5/2-615 (West 2002)), on the ground that the allegations failed

to show that the defendants owed a duty of care to Teresa Street. The defendants claimed

that the complaint lacked factual allegations indicating the existence of a direct physician-

patient relationship between Teresa Street and the defendants, or a special relationship

between Teresa Street and Richard Street.

       The trial court dismissed the action with prejudice on the ground that the third

amended complaint in its entirety failed to allege a recognized duty owed by any named

defendant to the decedent. In its docket entry, the trial court wrote that the nature of the


                                               5
special relationships that will establish transferred negligence has been narrowly defined in

reported decisions in Illinois. The court found that the complaint did not allege the existence

of a special relationship that has been recognized by existing Illinois law and that there was

no other legal basis in Illinois law from which to find a duty owed by the medical care

providers to a third party.

                                  II. Analysis of the Issues

       A motion to dismiss brought pursuant to section 2-615 attacks the legal sufficiency

of the complaint. Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d

724, 733 (2003). It is properly granted only when it clearly appears that no set of facts could

ever be proved under the pleadings that would entitle the plaintiff to recover damages.

Chandler, 207 Ill. 2d at 349, 798 N.E.2d at 733. On review of an order dismissing an action

for a failure to state a cause of action, all well-pleaded facts and reasonable inferences

therefrom are taken as true, and the allegations of the complaint are to be liberally construed

with a view towards substantial justice between the parties. Doe 1 v. North Central

Behavioral Health Systems, Inc., 352 Ill. App. 3d 284, 286, 816 N.E.2d 4, 6 (2004).

Whether the complaint states a valid cause of action is a question of law that is reviewed de

novo. Chandler, 207 Ill. 2d at 349, 798 N.E.2d at 733.

       To adequately state a cause of action for negligence, the plaintiff must allege facts that

establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty,

and an injury that was proximately caused by the breach. Pelham v. Griesheimer, 92 Ill. 2d

13, 18, 440 N.E.2d 96, 98 (1982). The existence of a duty depends on whether a plaintiff

and a defendant stood in such a relationship to each other that the law imposed on the

defendant an obligation of reasonable conduct for the benefit of the plaintiff. Pelham, 92 Ill.

2d at 18-19, 440 N.E.2d at 98. The existence of a duty is a question of law to be resolved

by the court. Pelham, 92 Ill. 2d at 19, 440 N.E.2d at 98.


                                               6
       The present action is predicated on the duties of the physicians and other health care

providers to warn Teresa Street of the potential violent acts of Richard Street. In such an

action, a plaintiff must establish the following elements relating to the alleged duty: (a) the

patient made a specific threat of violence, (b) the threat was directed toward a specific and

identifiable victim, and (c) there was a direct physician-patient relationship between the

defendant and the plaintiff or a special relationship between the patient and the plaintiff.

Doe 1, 352 Ill. App. 3d at 290, 816 N.E.2d at 9; Reynolds v. National R.R. Passenger Corp.,

216 Ill. App. 3d 334, 338, 576 N.E.2d 1041, 1043 (1991).

       That the third amended complaint sets out sufficient factual allegations to indicate that

Richard Street made specific threats of violence toward his wife within days of her murder

is not seriously challenged. At issue is whether the complaint contains sufficient factual

allegations to indicate that Teresa Street falls within the class of persons to whom a duty of

care was owed by the health care providers who evaluated and treated Richard Street. The

plaintiffs have alleged that the defendants owed a duty to warn and to protect Teresa Street

against potential violent acts of her husband pursuant to sections 315 and 324A of the

Restatement (Second) of Torts (Restatement (Second) of Torts §§315, 324A (1965)) and a

duty to appropriately evaluate, treat, and supervise Richard Street for the care and benefit of

Teresa Street under a transferred-negligence theory. We consider each in turn.

A. Special-Relationship Exceptions to Section 315 of the Restatement (Second) of Torts

       Section 315 of the Restatement (Second) of Torts sets out the general rule that a

person has no duty to control the conduct of a third person to prevent him from causing harm

to another, in the absence of a special relationship between the actor and the third person or

between the actor and the other. Restatement (Second) of Torts §315 (1965). The duties

arising from special relationships include the duty of a parent to control the conduct of his

minor child (Restatement (Second) of Torts §316 (1965)), the duty of a master to control his


                                               7
servant (Restatement (Second) of Torts §317 (1965)), the duty of a possessor of land or

chattels to control the conduct of a licensee (Restatement (Second) of Torts §318 (1965)),

and the duty of those who have charge of a person with dangerous propensities (Restatement

(Second) of Torts §319 (1965)).

       Of the relationships identified in sections 316 through 319 of the Restatement

(Second) of Torts, only the custodian-charge relationship could conceivably apply here.

Section 319 provides that one who has charge of a person whom he knows or should know

is likely to cause bodily harm to others if not controlled has a duty to exercise reasonable

care to control the person in order to prevent him from doing that harm.

       In construing the scope of the custodian-charge relationship for purposes of imposing

a duty of care under section 319, mental health facilities and criminal justice agencies have

been held to "have charge of" a person with dangerous propensities where the person was

"committed" to the institution through a court order or an adjudication that gave the

institution or its agent actual control over the person. See Estate of Johnson v. Condell

Memorial Hospital, 119 Ill. 2d 496, 509-10, 520 N.E.2d 37, 42-43 (1988) (the complaint

failed to plead the hospital's duty of care under section 319 in the absence of any factual

allegation that the patient was involuntarily admitted to the facility or was the subject of a

petition for an emergency admission); National Bank of Bloomington v. State, 35 Ill. Ct. Cl.

37 (1982) (the estate of a decedent killed by a parolee established that a state parole officer

breached a duty to adequately monitor and control the parolee where the Illinois Court of

Claims deemed the parolee to be in the custody and under the control of the parole officer).

These cases suggest that a duty under section 319 will not arise in the absence of allegations

that the person with dangerous propensities was committed to the custody and control of an

institution or its agent. In this case, the third amended complaint lacks the factual allegations

necessary to state a cause of action based on section 319 or any of the other special-


                                               8
relationship exceptions to section 315 of the Restatement (Second) of Torts.

                           B. The Voluntary-Undertaking Duty

       Illinois law recognizes that a duty may arise under the common law where a person

voluntarily undertakes a duty of care. See Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69,

199 N.E.2d 769 (1964). In addition, the Illinois Supreme Court has implicitly adopted

section 324A of the Restatement (Second) of Torts (Restatement (Second) of Torts §324A

(1965)). See Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210-11, 399 N.E.2d 596,

600 (1979). Section 324A states as follows:

              "§324A. Liability to Third Person for Negligent Performance of Undertaking

              One who undertakes, gratuitously or for consideration, to render services to

       another which he should recognize as necessary for the protection of a third person

       or his things[] is subject to liability to the third person for physical harm resulting

       from his failure to exercise reasonable care to protect his undertaking, if

              (a) his failure to exercise reasonable care increases the risk of such harm, or

              (b) he has undertaken to perform a duty owed by the other to the third person,

       or

              (c) the harm is suffered because of reliance of the other or the third person

       upon the undertaking." Restatement (Second) of Torts §324A (1965).

Pursuant to the voluntary-undertaking theory, one who gratuitously undertakes to render

service to another is subject to liability for bodily harm caused to the other if he fails to

exercise due care or to act with the competence and skill that he possesses while performing

the undertaking. Nelson, 31 Ill. 2d at 85-86, 199 N.E.2d at 779; Siklas v. Ecker Center for

Mental Health, Inc., 248 Ill. App. 3d 124, 131, 617 N.E.2d 507, 512 (1993). However, the

scope of the duty is limited to the extent of the undertaking. Siklas, 248 Ill. App. 3d at 131,

617 N.E.2d at 512.


                                              9
       In Siklas, a patient brought a negligence action against the defendant, a mental health

center, alleging that the defendant violated its duty to warn him of the dangerous propensities

of his roommate and by failing to relocate him or his roommate. The defendant's breach of

duty was premised on a number of theories, including the voluntary-undertaking theory.

Siklas, 248 Ill. App. 3d at 131, 617 N.E.2d at 512. The Second District concluded that the

defendant had undertaken to locate housing and a compatible roommate for the plaintiff, a

young man with a history of mental illness, and to monitor the living arrangements, mental

status, and compatibility of the plaintiff and the plaintiff's roommate, who also suffered from

a mental illness. The court found that implicit in the defendant's undertakings was an

obligation to determine, insofar as possible, that the plaintiff remained safe in his housing.

Siklas, 248 Ill. App. 3d at 132, 617 N.E.2d at 513. While the Siklas appeal challenged the

entry of a summary judgment, we find the discussion of the mental health center's duty to

exercise reasonable care in performing services that it undertook for the protection of a third

party to be helpful in our analysis here.

       In this case, the plaintiffs have alleged that from May 13, 2003, Richard Street had

ongoing paranoid delusions that his wife was having an affair and that she was trying to

poison him and their children, that Richard Street acknowledged to the defendants that he

had thoughts of killing his wife and that he had threatened to kill her, that the defendants

knew or should have known of Richard's threats of violence, and that Richard Street's

propensity to do violence to himself and to his wife was reasonably foreseeable to the

defendants. The plaintiffs further alleged that the defendants undertook to evaluate, treat,

and control Richard Street for his protection and the protection of his wife; that Teresa relied

on the defendants' undertakings, assuming that they would appropriately evaluate and treat

her husband's condition and that they would keep her safe from his violent propensities,

passing on other remedies or protections against the risks; that the defendants' failure to


                                              10
exercise reasonable care in the performance of their undertakings increased the risk of harm

to Teresa; and that Teresa was harmed by the defendants' failure to exercise reasonable care

in the performance of their undertakings. Accepting all well-pleaded factual allegations and

the reasonable inferences derived therefrom as true, we conclude that the third amended

complaint contains sufficient factual allegations regarding the defendants' assumption of a

duty to warn Teresa Street about the violent propensities of her husband to survive a motion

to dismiss brought pursuant to section 2-615 of the Code of Civil Procedure.

                    C. Duty and the Concept of Transferred Negligence

       The Illinois Supreme Court first recognized that a nonpatient, third party who was

injured as a result of a negligent act performed against a patient could maintain an action

against the medical providers in Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 367 N.E.2d

1250 (1977). In Renslow, a 13-year-old patient with Rh-negative blood was given a

transfusion of Rh-positive blood by the health care providers (the defendants). As a result

of the defendants' negligence in transfusing incompatible blood, the patient's blood was

sensitized to the Rh-positive factor. The defendants did not inform their patient of the

medical error or its effects. The patient first learned that her blood had been sensitized eight

years later, when she was pregnant. The infant suffered permanent damage to her brain,

internal organs, and nervous system because her mother had been exposed to incompatible

blood. The supreme court found that the negligence against the mother invaded the protected

rights of her infant, with whom she shared an intimate relationship. Renslow, 67 Ill. 2d at

357-58, 367 N.E.2d at 1254-55. The court determined that the defendants' duty of care to

the patient should be transferred to the patient's infant because of the special relationship

between the infant and her mother and because the injury to the infant was alleged to be the

direct result of negligent treatment rendered to the mother. Renslow, 67 Ill. 2d at 356-57,

367 N.E.2d at 1254-55. The Illinois Supreme Court recognized the concept of transferred


                                              11
negligence but limited its reach to circumstances where there was a special, intimate

relationship between the parties harmed. Renslow, 67 Ill. 2d at 357, 367 N.E.2d at 1255.

       Ten years later, the supreme court reaffirmed its decision to limit the scope of

transferred negligence to cases involving a special relationship, as present in Renslow,

between the patient and the plaintiff. Kirk v. Michael Reese Hospital & Medical Center, 117

Ill. 2d 507, 531-32, 513 N.E.2d 387, 399 (1987). In Kirk, the plaintiff sought to recover

damages for injuries he sustained while he was a passenger in a vehicle operated by a patient

who had been recently released from a hospital. Prior to the discharge, the patient had taken

prescription medication. Shortly after leaving the hospital, the patient consumed alcoholic

beverages and then drove the car in which the plaintiff was a passenger into a tree. The

plaintiff claimed that the physicians had a duty to warn their patient of the drugs' side effects

and that the duty to warn extended to third parties. The supreme court considered decisions

from a number of jurisdictions, the social and public policy of Illinois, and its own holdings,

and it determined that the preferable view was that "a plaintiff cannot maintain a medical

malpractice action absent a direct physician-patient relationship between the doctor and

plaintiff or a special relationship, as present in Renslow." Kirk, 117 Ill. 2d at 531, 513

N.E.2d at 399. In declining to extend a duty to warn to an indeterminate class of potential

plaintiffs, the court specifically noted an earlier decision in which it held that in order to

establish a duty in a legal malpractice case, a nonclient, third party must plead and prove that

the attorney-client relationship was intended to benefit or influence that third party (Pelham,

92 Ill. 2d at 21, 440 N.E.2d at 100). Kirk, 117 Ill. 2d at 531-32, 513 N.E.2d at 399.

       Since Kirk, our colleagues in the appellate court have been wary of finding that other

types of relationships are of the same intimate nature as that presented in Renslow,

expressing uncertainty regarding whether the supreme court considered that relationship to

be sui generis. See, e.g., Charleston v. Larson, 297 Ill. App. 3d 540, 548-49, 696 N.E.2d


                                               12
793, 799 (1998); Britton v. Soltes, 205 Ill. App. 3d 943, 945-46, 563 N.E.2d 910, 912

(1990); Heigert v. Riedel, 206 Ill. App. 3d 556, 563-64, 565 N.E.2d 60, 65 (1990).

       While the Illinois Supreme Court has reiterated its holding that the concept of

transferred negligence is a limited exception to the customary rule barring malpractice

liability to nonpatient third parties, the court has never declared the special relationship

between mother and infant in Renslow to be sui generis. Rather, the court has allowed for

the possibility that other intimate relationships would fit within the Renslow exception. See

Doe v. McKay, 183 Ill. 2d 272, 280, 700 N.E.2d 1018, 1023 (1998) (the special relationship

between a mother and an infant is "perhaps singular and unique"). Given that, litigants

continue to explore in good faith the bounds of the Renslow exception and the nature of the

relationships that fit within it. In this case, we must consider whether the plaintiffs have

alleged the existence of a special relationship shared by Richard and Teresa that will support

a claim based on transferred negligence.

       In this case, the plaintiffs have alleged that Teresa and her husband shared an intimate,

marital relationship and that Teresa was an active participant in his medical care, providing

the defendants with information regarding her husband's changeable moods and behaviors

and consulting with the defendants regarding her concerns about whether her husband would

act on his ideas and threats and do her harm. In our view, the relationship, as alleged,

between Teresa and Richard reaches the level of personal, familial intimacy that was present

in Renslow. The injury inflicted on Teresa was physical and traceable to the allegedly

negligent treatment of Richard's mental health conditions. The allegations of the complaint

do not indicate that interests of the plaintiffs and Richard Street are adverse to each other.

Moreover, finding that the plaintiff has pleaded a cause of action under the facts of this case

would not expose therapists to suits by any nonpatient, third party who is adversely affected

by a patient. We conclude that the special relationship between husband and wife, under the


                                              13
circumstances of this case, is comparable to that found in Renslow, and we believe that the

Illinois Supreme Court would concur.

       In summary, we conclude that the third amended complaint sets forth sufficient

factual allegations to establish a cause of action based on theories of a voluntary undertaking

and transferred negligence and that the trial court erred in dismissing the action. W e

therefore order the action reinstated in its entirety. We caution that this appeal is limited to

the legal sufficiency of the complaint for purposes of a motion to dismiss under section 2-

615 of the Code of Civil Procedure.

      D. Request for Reimbursement of Expenses Related to the Motion to Compel

       In the second point on appeal, the plaintiffs contend that the trial court erred in

refusing their request for reimbursement of the attorney fees and costs that they incurred as

a result of the failure of Daniel O'Brien, M.D., a respondent in discovery, to answer certain

questions posed to him during a discovery deposition. The plaintiffs contend that the

deponent lacked substantial justification for his failure or refusal to answer the question and

that, pursuant Supreme Court Rule 219(a) (210 Ill. 2d R. 219(a)), the deponent should be

required to reimburse the plaintiffs for the reasonable expenses they incurred in obtaining

an order compelling his testimony.

       Under supreme court rules, the trial court has broad authority to supervise the

discovery process. If a party or other deponent refuses to answer any question propounded

upon oral examination, the proponent of the question, upon notice to all parties, may move

the trial court for an order compelling an answer. 210 Ill. 2d R. 219(a). If the court finds

that the deponent failed or refused to answer questions and that the failure or refusal was

"without substantial justification", the court is required to order the offending party or

deponent to pay to the aggrieved party the amount of the reasonable expenses incurred in

obtaining an order compelling compliance with the rules of discovery. Van Hyning v. Hyk,


                                              14
78 Ill. App. 3d 721, 724, 397 N .E.2d 566, 568 (1979); Lynch v. Mullenix, 48 Ill. App. 3d

963, 363 N.E.2d 645 (1977).

       In this case, the trial court reviewed the deposition transcript of Dr. O'Brien and

considered the arguments of counsel. The court found that some of the questions posed were

proper and should have been answered. But the court did not find that Dr. O'Brien's failure

or refusal to answer those questions was without substantial justification. The court

extended the period for discovery so that the deposition of Dr. O'Brien could be concluded,

but it declined the plaintiffs' requests for court supervision of the deposition and for

reimbursement of the fees and expenses they incurred in pursuing the motion to compel.

After reviewing the record, we cannot say that the trial court erred in finding that there was

substantial justification for the deponent's refusal to answer some of the questions posed to

him.

                                       III. Conclusion

       The third amended complaint sets forth sufficient factual allegations to establish a

cause of action based on theories of a voluntary undertaking and transferred negligence. The

trial court erred in dismissing the third amended complaint with prejudice. In the absence

of a finding that the deponent's conduct lacked substantial justification, the decision to deny

the plaintiffs' request for the reimbursement of expenses under Supreme Court Rule 219(a)

was proper.

       Accordingly, the decision to deny the reimbursement of expenses under Supreme

Court Rule 219(a) is affirmed, the decision to dismiss the action with prejudice is reversed,

and the action is reinstated in its entirety and remanded to the circuit court for further

proceedings.



       Affirmed in part and reversed in part; cause remanded.


                                              15
CHAPMAN and STEWART, JJ., concur.




                             16
                                         NO. 5-06-0065
                                             IN THE
                              APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      BRENDA TEDRICK, Administrator of the       ) Appeal from the
      Estate of Teresa Street, Deceased, and     ) Circuit Court of
      BRENDA TEDRICK and JAMES TEDRICK,          ) Marion County.
      Guardians of the Estates of Dalton Ryan    )
      Street and Dylan Bryce Street, Minors,     )
                                                 )
         Plaintiffs-Appellants,                  )
                                                 )
      v.                                         ) No. 05-L-36
                                                 )
      COMM UNITY RESOURCE CENTER, INC., )
      d/b/a COMMUNITY RESOURCE CENTER, )
      VANDALIA, ILLINOIS; DEENA BALLARD, )
      LCSW; LYNETTE M. GARTKE, LCPC;             )
      GEORGIANNE B. BROUGHTON, LCPC;             )
      JAMES R. GOGGIN, M.D.; HEALTH              )
      MANAGEMENT LIMITED PARTNERSHIP, )
      d/b/a DOCTORS HOSPITAL; VINE STREET )
      CLINIC, LLC; FAREED TABATABAI, M.D., )
      JUDY L. KEEVEN, M.D.; and SALLY            )
      PUTNAM,                                    )
                                                 )
         Defendants-Appellees                    )
                                                 )
      (Physicians Group Associates, S.C., Daniel )
      O'Brien, M.D., and St. Mary's Hospital,    )
      Centralia, Illinois,                       ) Honorable
                                                 ) David L. Sauer,
         Respondents in Discovery-Appellees).    ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed:        May 17, 2007
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Justices:          Honorable James K. Donovan, J.
                 Honorable Melissa A. Chapman, J., and
                 Honorable Bruce D. Stewart, J.,
                 Concur
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Attorneys        Christian G. Montroy, The Rex Carr Firm, LLC, 412 Missouri Ave., East St. Louis,
for              IL 62201; James E. Buchmiller, James E. Buchmiller, Ltd., 102 East Main Street,
Appellants       Greenville, IL 62246
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Attorneys          Matthew J. Maddox, Quinn, Johnston, Henderson & Pretorius, 205 South Fifth
for                Street, Suite 900, Springfield, IL 62701 (attorney for Judy L. Keeven, M.D.)
Appellees
Attorneys           Stephen R. Swofford, Hinshaw & Culbertson, 222 N. LaSalle Street, Suite 300,
for                 Chicago, IL 60601-1081 (attorney for James R. Goggin, M.D., Fareed Tabatabai,
Appellees           M.D., and Vine Street Clinic, LLC)
Continued
                    Randall W . Segatto, Barber, Segatto, Hoffee & Hines, P.O. Box 79, Springfield, IL
                    62705-0079 (attorney for Sally Putnam)
                    Brian J. Hickey, Cassiday, Schade & Gloor, 1230 East Diehl Road, Suite 202,
                    Naperville, IL 60563 (attorney for Deena Ballard, LCSW, Georgianne B. Broughton,
                    LCPC, Community Resource Center, Inc., and Lynette M. Gartke, LCPC)
                    Daniel R. Price, Wham & Wham, 212 East Broadway, P.O. Box 549, Centralia, IL
                    62801 (attorney for St. Mary's Hospital, Centralia, IL -- NO BRIEF FILED)
                 Richard H. Narup, Drake, Narup & Mead, P.C., 107 E. Allen Street, Springfield,
                 IL 62704 (attorney for Daniel O'Brien, M.D., and Physicians Group Associates, S.C.)
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