                             2018 IL App (2d) 170313 

                                  No. 2-17-0313

                            Opinion filed May 14, 2018 

______________________________________________________________________________

                                               IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

DOROTHY COLEMAN, Administrator of      ) Appeal from the Circuit Court
the Estate of Johnnie Russell III, Deceased,
                                       ) of Kane County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 11-L-421
                                       )
PROVENA HOSPITALS, d/b/a Provena       )
Mercy Medical Center,                  ) Honorable
                                       ) Mark Pheanis,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Zenoff and Burke concurred in the judgment and opinion.

                                           OPINION


¶1     Johnnie Russell III was a patient of the defendant, Provena Hospitals, doing business as


Provena Mercy Medical Center. The day after Russell was admitted, a nurse discovered that he


had a gun. Shortly thereafter, during a confrontation with the Aurora Police Department, Russell


was shot to death. The plaintiff, Dorothy Coleman, Russell’s sister and the administrator of his


estate, filed a wrongful-death action against the defendant, alleging that it was negligent in not


searching Russell for weapons on the day he was admitted. The circuit court of Kane County


subsequently granted the defendant’s motion for summary judgment, finding that the plaintiff


could not establish that the defendant had proximately caused Russell’s death, because there was

2018 IL App (2d) 170313


no evidence that Russell had a gun when he was admitted. For the reasons that follow, we

reverse and remand for additional proceedings.

¶2                                      BACKGROUND

¶3     In November 2006, Russell was shot to death after he pulled a gun and engaged in a

confrontation with Aurora police officers while being evaluated at the defendant’s hospital. The

plaintiff initially filed suit against both the Aurora Police Department and the defendant in

federal court, but she later voluntarily dismissed that action as to the defendant. In 2011, the

plaintiff filed a wrongful-death action against the defendant in the circuit court of Kane County.

The complaint alleged that the defendant’s agents and employees were aware of Russell’s

“mentally defective condition and prior psychiatric history” but failed to conduct a reasonable

search to determine whether Russell possessed any contraband that could cause harm to himself

or others.

¶4     In December 2011, the defendant filed its answer, asserting the affirmative defense of

comparative negligence and alleging that one or more of Russell’s acts “was the proximate cause

of his death.” Specifically, the defendant asserted that Russell “came to Provena Mercy Medical

Center of his own accord carrying an inherently dangerous weapon, namely a gun.”               The

affirmative defense further alleged that the defendant was entitled to offset any judgment in favor

of the plaintiff by “an amount commensurate with [Russell’s] own degree of comparative

negligence.” The plaintiff did not file an answer to the affirmative defense.

¶5     During the pretrial proceedings, the defendant filed a motion for summary judgment,

arguing that there was no evidence that its acts or omissions were a proximate cause of Russell’s

death. On July 1, 2014, the trial court (Judge F. Keith Brown) denied the motion, noting the

submission of evidence that agents of the defendant had been aware that Russell was exhibiting



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“paranoid, psychotic, and aggressive behavior” and knew of his psychiatric history, which

included a report that he had threatened to kill his neighbors with his guns; had already sedated

Russell once after he became aggressive with staff and had decided to transfer him to the

behavioral health unit; and had had Russell remove his clothing and don a hospital gown but had

failed to check his belongings for items that could cause harm to Russell or others. The trial

court found that this evidence presented a genuine dispute as to whether the conduct of the

defendant’s agents was a “substantial factor or a material element in bringing about” (i.e., a

proximate cause of) Russell’s death. The case was given a trial date of November 17, 2014, with

a pretrial conference to be held on November 6. On October 22, 2014, the defendant filed a

motion to deem its affirmative defense admitted, on the basis that the plaintiff had not filed an

answer denying it.

¶6     On October 23, 2014, the trial court (Judge Thomas Mueller) granted the defendant’s

motion to deem the affirmative defense admitted. The defendant subsequently filed a motion for

judgment on the pleadings, arguing that, as the affirmative defense had been deemed admitted,

the plaintiff could not establish that any of the defendant’s conduct was the proximate cause of

Russell’s death. On November 6, the trial court granted the defendant’s motion and entered

judgment on the pleadings in favor of the defendant. Following the denial of her motion to

reconsider, the plaintiff appealed.

¶7     On December 18, 2015, this court reversed the trial court’s judgment and remanded for

additional proceedings. Coleman v. Provena Hospitals, 2015 IL App (2d) 150368-U (Coleman

I). We explained that, read liberally, the plaintiff’s complaint alleged that Russell was suffering

from an impaired mental state at the time of the incident. Specifically, it alleged that, when

Russell was admitted to the hospital, he was “suffering from conditions including altered mental



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stability, *** speech and language deficits, paranoid personality and Dilantin toxicity.” The

complaint also alleged that Russell was in the process of being transferred from the emergency

room to the behavioral health unit. These allegations of an impaired mental state controverted

the affirmative defense’s allegations that Russell was acting “knowingly” or “willfully” during

the incident. They also raised a fair question as to whether Russell was able to appreciate the

consequences of his actions at the time, the recklessness and dangerousness of those actions, and

the need to follow the orders of medical personnel and the police. Thus, we held, the trial court

erred in finding that the allegations of the affirmative defense regarding Russell’s mental state

had been admitted. Id. ¶ 19.

¶8     We also found that, to the extent that the affirmative defense alleged that Russell’s

actions amounted to comparative negligence and were “the proximate cause of his death,” those

allegations were conclusions that were not admitted by the failure to reply. We further found,

however, that the plaintiff did admit certain factual allegations, specifically that Russell came to

the hospital while carrying a gun on his person and that he took hospital staff and patients

hostage. Id. ¶¶ 20-21.

¶9     Pursuant to Illinois Supreme Court Rule 366(b) (eff. Feb. 1, 1994), we modified the trial

court’s order of October 23, 2014, to deem admitted only the affirmative defense’s allegations of

fact that did not relate to the defendant’s mental state and were not conclusory. Based on the

modified trial court order, we held that the trial court erred in determining that the admission of

those facts mandated the entry of judgment on the pleadings in favor of the defendant. Coleman

I, 2015 IL App (2d) 150368-U, ¶¶ 22, 25.

¶ 10   Following remand, on February 2, 2017, the defendant filed a motion for summary

judgment on the basis that the plaintiff had failed to present evidence to support the element of



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proximate cause. The defendant asserted that there was no evidence that the defendant had a gun

when he was admitted, as it was just as plausible that he obtained the gun sometime later. In

response, the plaintiff argued that questions of material fact remained that precluded the entry of

summary judgment. In support of her response, the plaintiff relied on the 2013 opinions and

deposition testimony of her expert, Timothy Hawkins. Hawkins stated that the defendant had a

policy to search for contraband when a patient was admitted to the behavioral health unit.

Hawkins opined that the defendant should have adhered to that policy throughout the medical

center. Hawkins opined that, if the defendant’s staff had done that, they would have found the

gun and confiscated it pursuant to the “Custody of Firearms Presented at Provena Mercy Center”

policy and Russell would be alive today.

¶ 11   On April 6, 2017, the trial court (Judge Mark Pheanis) granted the defendant’s motion for

summary judgment, holding that there was no evidence that would allow the plaintiff to establish

proximate cause. The trial court explained:

       “We do not have any evidence, number one, that had the Mercy mental health rules and

       regulations for a search been followed, that this particular weapon would have been

       found. And the crux of this case, according—and it’s really a case that comes down to

       the expert testimony, is that there shouldn’t have been this binary set of rules. The search

       should have been followed in the emergency room for someone who exhibited the type of

       presentation that the decedent did. And the problem we have with that is, without

       evidence as to whether that search would have disclosed the weapon, there is no

       proximate cause. And a jury is going to have to speculate as to whether that would have

       occurred.




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              Tie in, in addition to that, the fact that we don’t know—we don’t have any

       evidence that the gun was in his possession at the time he came into the hospital as

       opposed to being provided to him later, and I know that’s, that’s a difficult—it’s a

       difficult ruling, but I can’t allow a jury to simply use speculation, conjecture, or guess to

       make those conclusions that are really necessary. And that’s why I asked the question,

       are there any facts, do we have any facts whatsoever, and would the Mercy mental health

       policy have revealed that. And the only way I can see that it would reveal that is if it

       required strip search or some type of metal detector/wanding-type thing.

              Without those two actions, simply asking someone if he has a weapon, simply

       asking someone to empty their pockets, and relying on the compliance of the patient isn’t

       going to necessarily solve this particular situation.”

¶ 12   Following the trial court’s ruling, the plaintiff filed a timely notice of appeal.

¶ 13                                        ANALYSIS

¶ 14   On appeal, the plaintiff argues that the trial court erred in granting the defendant’s motion

for summary judgment, because a question of fact remains as to whether the gun would have

been recovered from the defendant had a proper search been conducted.               In response, the

defendant maintains that summary judgment in its favor was proper because, not only did its

actions not proximately cause Russell’s death, it owed no duty to Russell to protect him from his

own criminal acts. The defendant further argues that summary judgment was proper because the

plaintiff cannot recover any damages that were based on Russell’s criminal acts.

¶ 15   The purpose of a motion for summary judgment is to determine whether a genuine issue

of material fact exists (People ex rel. Barsanti v. Scarpelli, 371 Ill. App. 3d 226, 231 (2007)),

and such a motion should be granted only when “the pleadings, depositions, and admissions on



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file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law” (735 ILCS 5/2-1005(c)

(West 2016)). In determining the existence of a genuine issue of material fact, a court must

construe the pleadings, depositions, admissions, and affidavits strictly against the movant and

liberally in favor of the opponent. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Summary

judgment may be granted only where the facts are susceptible to a single reasonable inference.

Consolino v. Thompson, 127 Ill. App. 3d 31, 33 (1984). An order granting summary judgment

should be reversed if the evidence shows that a genuine issue of material fact exists or if the

judgment is incorrect as a matter of law. Clausen v. Carroll, 291 Ill. App. 3d 530, 536 (1997).

We review de novo the trial court’s grant of a motion for summary judgment. AUI Construction

Group, LLC v. Vaessen, 2016 IL App (2d) 160009, ¶ 16.

¶ 16   In order to succeed in a negligence action, the plaintiff must prove three elements: (1) the

defendant owed a duty of care, (2) the defendant breached that duty, and (3) the plaintiff’s

resulting injury was proximately caused by the breach. Espinoza v. Elgin, Joliet & Eastern Ry.

Co., 165 Ill. 2d 107, 114 (1995). Whether the defendant owed a duty to the plaintiff is a question

of law, to be decided by the court. Id. Whether the defendant breached its duty and whether the

breach was the proximate cause of the injury are factual questions, for a jury to decide, as long as

there is a genuine issue of material fact about breach and causation. Stanphill v. Ortberg, 2017

IL App (2d) 161086, ¶ 30.

¶ 17   We initially observe that the defendant did not argue in its motion for summary judgment

that it did not owe Russell a duty to protect him. Thus, its argument is forfeited. See Mabry v.

Boler, 2012 IL App (1st) 111464, ¶ 15 (arguments not raised before the circuit court are forfeited

and cannot be raised for the first time on appeal). Even overlooking forfeiture, the defendant’s



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argument is without merit. A court will find a duty where a plaintiff and a defendant stand in

such a relationship to one another that the law imposes upon the defendant an obligation of

reasonable conduct for the benefit of the plaintiff. Simpkins v. CSX Transportation, Inc., 2012 IL

110662, ¶¶ 18-21. The “relationship” referred to in this context acts as a shorthand description

for the sum of four factors: (1) the reasonable foreseeability of the injury, (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 determination of such a

“relationship,” as sufficient to establish a duty of care, requires considerations of policy inherent

in these four factors, and the weight accorded each factor in any given analysis depends on the

circumstances of the case at hand. Id. It has long been recognized, however, that hospitals are

under a duty to exercise reasonable care to protect their patrons from harm.             Darling v.

Charleston Community Memorial Hospital, 33 Ill. 2d 326, 331 (1965); Stearns v. Ridge

Ambulance Service, Inc., 2015 IL App (2d) 140908, ¶ 16; Stogsdill v. Manor Convalescent

Home, Inc., 35 Ill. App. 3d 634, 662 (1976).

¶ 18   The defendant insists that it owed no legal duty to Russell, because the harm that befell

him was not reasonably foreseeable. The defendant maintains that it was not foreseeable that

Russell would engage in a series of bizarre acts that would ultimately result in his being shot and

killed by police officers.

¶ 19   Arguably, the defendant here is improperly positing a “fact-specific formulation of duty.”

Stearns, 2015 IL App (2d) 140908, ¶ 15. In any event, the defendant’s argument is undermined

by its policy to search people going into its behavioral health unit. The apparent purpose of this

policy is to prevent patients who are possibly mentally ill from harming themselves or others.

Based on the existence of this policy, it was reasonably foreseeable that someone would be



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injured if the policy were not adhered to. Hawkins asserted that there was no reason why the

policy should not exist throughout the hospital. We believe that the allegations of the plaintiff’s

complaint sufficiently established that the defendant owed Russell a duty to protect him from

harming himself or someone else.

¶ 20   We next turn to proximate cause. There are two requirements for a showing of proximate

cause: cause in fact and legal cause. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455

(1992); see also Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 548-49 (2005). At issue in this case

is cause in fact. Cause in fact looks for sufficient facts to establish a reasonable certainty that a

wrongdoer’s conduct caused the damages involved. Lee, 152 Ill. 2d at 455.

¶ 21   The trial court essentially found that cause in fact did not exist, because there was no

evidence presented that, had Russell been searched, the gun would have been discovered. We

disagree. Hawkins testified that, if Russell had been searched, there was a high probability that

the gun would have been found. This testimony is consistent with what the defendant alleged in

its affirmative defense and what in Coleman I we found the plaintiff to have admitted: Russell

had the gun with him when he entered the defendant’s care. The trial court’s suggestion that it

was possible that Russell got the gun sometime after he was admitted was therefore both

improper speculation (Harris Trust & Savings Bank v. Otis Elevator Co., 297 Ill. App. 3d 383,

394 (1998)) and contrary to the law of the case (Radwill v. Manor Care of Westmont, IL, LLC,

2013 IL App (2d) 120957, ¶ 8).

¶ 22   Furthermore, Hawkins’ testimony supported another causal link: if the defendant’s staff

had removed the gun from Russell, he would not have engaged in the altercation with the police

that resulted in his death. Thus, through Hawkins’ testimony, the plaintiff presented enough

evidence to raise a genuine issue concerning cause in fact.



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¶ 23     The defendant insists that there is no evidence that, had Russell been searched, (1)

Russell would have voluntarily yielded possession of the gun or (2) the gun would have been

confiscated without conflict. Both of those arguments might be true. However, those arguments

should be directed to the trier of fact, not this court, as we cannot say as a matter of law and

based on the evidence in the record that any search of Russell would have been pointless and

would not have prevented his untimely death.

¶ 24     In so ruling, we find the defendant’s reliance on Schuler v. Mid Central Cardiology, 313

Ill. App. 3d 326, 335 (2000), to be misplaced. In that medical malpractice case, the plaintiff

alleged that one doctor had gotten a second doctor to alter his diagnosis of the decedent. Id. at

334. The plaintiff, however, presented no direct or circumstantial evidence to support that

allegation. Id. at 336. On review, the appellate court held that the trial court had properly

instructed the jury to disregard a third doctor’s testimony regarding the possibly changed

diagnosis, because that testimony was based on nothing but conjecture. Id. at 335-36. Here,

unlike in Schuler, there was sufficient evidence to support the plaintiff’s theory that the

defendant’s failure to search Russell when he was admitted caused or contributed to Russell’s

death.

¶ 25     We are also unpersuaded by the defendant’s argument that it cannot be liable for

Russell’s death because the police officers’ response to Russell’s actions was the superseding

proximate cause of Russell’s death.      The negligence of a defendant will not constitute a

proximate cause of a plaintiff’s injuries if some intervening act supersedes the defendant’s

negligence, but if the defendant could reasonably foresee the intervening act, that act will not

relieve the defendant of liability. Bentley v. Saunemin Township, 83 Ill. 2d 10, 15 (1980).

Again, the ostensible reason for searching some patients before they entered the hospital was to



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protect them from being harmed or harming others. Thus, it was reasonably foreseeable to the

defendant that, if it did not search Russell before he was admitted to the hospital, he might be

harmed. That the defendant could not necessarily foresee the specific harm that would befall

Russell is of no significance. See Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill. App. 3d 32, 45

(1997) (although the foreseeability of an injury will establish the legal-cause prong of proximate

cause, the extent of the injury or the exact way in which it occurs need not be foreseeable).

¶ 26   Finally, we consider the defendant’s argument that the plaintiff cannot recover for

damages arising from Russell’s criminal acts. As the defendant did not raise this argument in the

trial court, it is forfeited. Mabry, 2012 IL App (1st) 111464, ¶ 15. Even overlooking forfeiture,

the defendant’s argument is without merit. Relying on Reed v. Witvoet, 311 Ill. App. 3d 735,

740 (2000), the defendant insists that a party cannot recover if his own illegal acts contributed to

his damages. Reed, however, actually undermines the defendant’s argument. In that case, a 13­

year-old minor died in a farm accident. The defendant had hired the minor at the request of one

of the plaintiffs, the minor’s father. Id. at 736. The minor’s father also transported the minor to

the workplace. The minor’s estate, consisting of his parents and his brother, filed a complaint

against the defendant. Id. The defendant filed a motion for summary judgment, alleging that the

plaintiffs had violated the Child Labor Law (820 ILCS 205/19 (West 1992)) when they allowed

the defendant to employ the minor and that such conduct barred them from any recovery.

Relying on Newton v. Illinois Oil Co., 316 Ill. 416 (1925), the trial court granted summary

judgment, finding that the parents were prohibited from recovering damages by their

participation in the minor’s illegal employment. Reed, 311 Ill. App. 3d at 737. The trial court

further found that the minor’s brother could not recover where the parents’ illegal act was a

contributing cause of the death. Id.



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¶ 27   On appeal, the reviewing court affirmed the trial court’s judgment as to the minor’s

parents but not as to his brother. Id. at 740. The reviewing court found that Newton remained

good law as to the minor’s parents. Id. However, in Nudd v. Matsoukas, 7 Ill. 2d 608, 615-16

(1956), the supreme court had reexamined the principles underlying Newton and held that public

policy did not require barring an entire action simply because one beneficiary of the decedent’s

estate contributed to the injury. Reed, 311 Ill. App. 3d at 740. Based on Newton and Nudd, the

reviewing court held that, although the parents were barred from recovering damages, due to

their violation of the Child Labor Law, that violation did not defeat the estate’s ability to recover

in a wrongful-death action arising out of the violation. Id.

¶ 28   Here, there is nothing in the record to suggest that the plaintiff gave Russell the gun that

he possessed at the hospital. Although the trial court found that it was possible that the gun was

provided to Russell after he was admitted to the hospital, as noted earlier that finding was

improper as it was contrary to the law of the case. See Radwill, 2013 IL App (2d) 120957, ¶ 8.

Accordingly, absent any evidence that the plaintiff contributed to Russell’s deadly altercation

with the police, she is not barred from pursuing her action against the defendant. See Reed, 311

Ill. App. 3d at 740.

¶ 29                                      CONCLUSION

¶ 30   For the reasons stated, the judgment of the circuit court of Kane County is reversed and

the cause is remanded for additional proceedings.

¶ 31   Reversed and remanded.




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