                                      No. 2--05--0802      filed:
                                                           10/23/06
_____________________________________________________________________

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_____________________________________________________________________

BRIAN A. BRANDON and               ) Appeal from the Circuit Court
JEFFREY MILLER,                    ) of Lee County.
                                   )
     Plaintiffs-Appellants,        )
                                   )
v.                                 ) No. 99--L--42
                                   )
PAUL BONELL, JAN FREIL, and        )
MARVIN WILLIAMS,                   ) Honorable
                                   ) David T. Fritts,
     Defendants-Appellees.         ) Judge, Presiding.
_____________________________________________________________________




                                                                                    For

the reasons that follow, we affirm.

                                      I. BACKGROUND

       On December 31, 1996, plaintiffs were inmates at the Dixon Correctional Center

(Dixon) and were assigned to work in the Dixon kitchen. Defendants, Paul Bonell, Jan

Freil, and Marvin Williams, are employees of the Illinois Department of Corrections,

assigned to manage the Dixon kitchen. On December 31, 1996, Bonell was the dietary

manager of the kitchen, Williams was a supervisor of kitchen operations, and Freil

supervised inmate workers. On December 10, 1999, plaintiffs filed a complaint in circuit
No. 2--05--0802


court, alleging that defendants had breached their duty to plaintiffs, pursuant to section 3--

7--3 of the Unified Code of Corrections (730 ILCS 5/3--7--3(a) (West 1996)), to maintain

the kitchen facilities and provide plaintiffs with a reasonably safe workplace.     Plaintiffs

alleged that as a result of this breach, plaintiffs were injured on December 31, 1996. In

their complaint, plaintiffs alleged the following facts.

       On December 31, 1996, Freil, Williams, and plaintiffs were working together in the

Dixon kitchen. Prior to that date, Bonell had instructed Freil and Williams to have the

inmates dispose of hot grease in the kitchen as soon as possible. Accordingly, on the date

in question, Williams and Freil instructed plaintiffs to remove a heavy, 15- to 20-gallon vat

of hot grease from the kitchen and dump it in an area outside. At the time, the grease in

the vat was extremely hot, approximately 350 degrees. In order to dispose of the grease,

plaintiffs placed the vat on a cart and pulled it outside onto a dock. Approximately 24 feet

from the dock, there was a hose that had been running water onto the ground for some

time and had caused ice to form. As plaintiffs carried the hot grease from the dock to the

area where they were to dump it, Brandon slipped on the ice, and the hot grease spilled

on plaintiffs.    As a result, Brandon sustained burns and serious injuries, and Miller

sustained burns on his hand.

       On March 29, 2000, defendants filed a motion to dismiss plaintiffs' complaint,

pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615

(West 2000)). Defendants argued that plaintiffs' complaint failed to state a cause of action

upon which relief could be granted, because the claims against defendants were barred

by the principles of absolute immunity, sovereign immunity, and public officials' immunity.



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Defendants argued, in part, that because they were acting in the scope of their state

employment, in a sphere that was under their exclusive control, the Court of Claims had

exclusive jurisdiction over plaintiffs' claims. On August 11, 2000, after hearing argument

from both parties, Judge Tomas M. Magdich, the trial judge assigned to the case, denied

defendants' motion to dismiss. On October 13, 2000, defendants filed their answer to

plaintiffs' complaint, and they                                                            .

       On October 18, 2002, defendants filed a motion for summary judgment pursuant to

sections 2--1005(b) and (c) of the Code (735 ILCS 5/2--1005(b), (c) (West 2000)). In their

motion, defendants again argued that because defendants were being sued within the

scope of their state employment in a prison kitchen, they were protected by the principles

of sovereign and absolute immunity. Defendants further asserted that because the suit

was against State employees, the Court of Claims had exclusive jurisdiction and the circuit

court lacked subject matter jurisdiction.



           Attached to defendants' motion for summary judgment were excerpts from

defendants' depositions.

       In his deposition, Freil testified that on December 31, 1996, he and Williams were

supervising the kitchen. Freil explained that after the fish were cooked that day, he told

plaintiffs to empty the grease from the fryers into vats and to take the vats to the back door.

                                                                      Freil agreed that there

was no written procedure for disposing of the grease, but stated that the normal procedure

was to let the grease cool in the vat by the door and to check if the vat was hot before



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No. 2--05--0802


emptying it. However, Freil stated, it was understood that the vats were to be emptied by

the end of the shift.

       Bonell also briefly discussed in his deposition the events of December 31, 1996.

Bonell stated that he was the food manager of the Dixon kitchen and that he delegated to

his staff the authority to oversee the inmates who worked in the kitchen. Bonell testified

that on December 31, 1996, he had requested that the maintenance staff clean off the

dock behind the kitchen. Bonell said that although maintenance personnel usually made

rounds of the facility, he made a special request that the dock be cleaned off because of

the weather; however, he did not say what the weather was like that day. In addition to

discussing the events of December 31, 1996, Bonell specifically explained the kitchen

policy on grease removal. The policy was to leave the grease to cool for two to three

hours before taking it out. However, Bonell agreed that there were security concerns that

encouraged the kitchen staff to remove the grease quickly. Bonell stated that inmates

would steal the grease for bartering or use it to cook in their cells and that there was a

danger the hot grease could be used to injure staff members.

       In their depositions, defendants were asked to identify the differences between

working in a correctional facility kitchen and working in a restaurant kitchen. Freil testified

that there were many differences, because everything in the correctional facility kitchen

had to be locked up and secured to prevent trading and trafficking. Freil noted that in a

professional kitchen "on the street," the deep fryer grease is not changed after every use

like in the correctional facility kitchen, because in a correctional facility there is a danger

that inmates will steal the grease and barter with it or use it to harm staff members. In their



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depositions, Williams and Bonell also acknowledged the security concerns associated with

working in a prison kitchen. Bonell said that because of theft and safety concerns in a

correctional facility, grease could not be stored outside, as in a restaurant kitchen.

However, Bonell also acknowledged that nothing about the correctional facility setting

prevented kitchen workers from allowing the grease to cool before it was removed.

       On November 22, 2002, plaintiffs filed their response to defendants' motion for

summary judgment. In their response, plaintiffs argued that because the duty defendants

breached was not unique to their state employment, defendants were not entitled to the

protections of sovereign immunity, and the Court of Claims does not have exclusive

                                                                             . Attached to

defendants' motion was the deposition of Ralph McKenzie.

       In his deposition, McKenzie testified that he was an inmate at Dixon from about

1995 to 1998, and that he was working in the kitchen at Dixon on December 31, 1996. On

that day, McKenzie was working as a cook on the second shift, which ran from 11 a.m. to

7 p.m. McKenzie said that Brandon was also working the second shift and was assigned

to work in the kitchen. McKenzie was a cook on the serving line in the front of the kitchen

and was not in any way involved with cleaning the fryers. McKenzie said that while he was

on the serving line, he heard one of the kitchen supervisors shout to Brandon and one or

two other inmates in the kitchen to go dump the grease from the fryers. McKenzie noted

that there was a rush to get everything cleaned that night, because it was almost the end

of the shift. McKenzie testified he did not see the grease vat taken out or emptied, but he

later heard the vat fall and heard two men holler. He and others then ran to the back of



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the kitchen and he saw that Brandon and another man had spilled the grease on the steps.

McKenzie saw that the grease had soaked through Brandon's coat, and he saw hot vapors

rising from the grease on Brandon's body. McKenzie also observed that Brandon had

been carrying hot pads to move the vat. McKenzie said that he knew there was someone

else hurt with Brandon, but McKenzie did not see him or know how badly he was hurt.

       McKenzie described the scene of the accident. He said that outside of the kitchen

door there was a dock area that extended approximately six feet to about six or seven

steps. McKenzie said the grease spill was at the bottom of the steps. At the bottom of the

steps, the ground leveled off. A large grease bin and a Dumpster were located in the back

of this area. McKenzie explained that the temperature had dropped that day, between 5

p.m. and 7 p.m., but he saw no snow at the scene of the accident. McKenzie said that

although he could not see ice on the stairs, he knew it was there, because the painted

concrete got very slippery even if there was just water on it.

       McKenzie stated that the kitchen staff used the dock to clean and sanitize the meal

carts they used in the kitchen. A 50-foot fire hose was used for cleaning the carts and the

dock. The fire hose was connected inside the kitchen and ran through a hole out to the

dock. According to McKenzie, the fire hose frequently leaked and had to be fixed on

multiple occasions. McKenzie described the leak as a constant stream that was more than

a drip. Because of the leak in the hose, ice had formed in the dock area on prior

occasions and, therefore, salt was kept on the dock and put on the steps.

       On December 31, 1996, McKenzie said, the hose was wound up on the dock, and

he noticed that the hose was leaking, causing the dock to get wet.



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No. 2--05--0802




                                                        McKenzie surmised that the steps

were slippery because the hose had leaked, leaving water at the bottom of the dock area,

which then got tracked onto the stairs and froze when the temperature dropped. However,

McKenzie did not see Brandon's accident and could not say what caused Brandon's fall.

McKenzie did not notice salt around the area and did not see anyone out sprinkling salt

in the area on that particular day.

       On September 24, 2003, Judge Magdich issued a memorandum decision denying

defendants' motion for summary judgment. In his decision, Judge Magdich reasoned that

because defendants were not correctional officers, responsible for inmate custody and

discipline, defendants' duty as kitchen managers was the same duty owed by any kitchen

manager in the State of Illinois.      Judge Magdich concluded that this duty arose

independently of defendants' state employment and that, therefore, defendants' actions

were not protected by sovereign immunity. Judge Magdich also rejected defendants'

argument that absolute immunity barred plaintiffs' claims.

       The record indicates that on December 3, 2003, Judge Magdich assigned this case

to Judge David Fritts. However, Judge John Payne entered the next orders in the case.

On November 22, 2004, Judge Payne set the case for jury trial on March 28, 2005. On

February 2, 2005, defendants filed their first through fourteenth motions in limine. In their

first motion in limine, they asked the court to bar all claims against defendants, based upon



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No. 2--05--0802


the doctrines of sovereign immunity and public officials' immunity. Defendants again

argued that the court lacked subject matter jurisdiction because the conduct at issue

occurred as a result of defendants acting in the scope of their employment and that a

prison kitchen is uniquely different from any other kitchen. Defendants did not raise the

defense of absolute immunity in their first motion in limine, as they had earlier in their

motion to dismiss and their motion for summary judgment. Defendants attached to their

motions in limine the excerpts from their depositions that they had attached to their motion

for summary judgment. In their second motion in limine, defendants sought to bar

evidence, argument, or intimation that defendants violated any Dixon policies, arguing that

pursuant to the doctrine of sovereign immunity, the circuit court lacked subject matter

jurisdiction to hear claims against state employees based upon violations of a state law or

policy.

          On February 17, 2005, defendants filed their seventeenth motion in limine, asking

the trial court to bar evidence of any duty defendants owed plaintiffs pursuant to section

3--7--3 of the Unified Code of Corrections (730 ILCS 5/3--7--3 (West 1996)). Section 3--7-

-3 requires standards of safety to be established and enforced by the Department of

Corrections and requires all buildings to be properly maintained. Defendants noted that

plaintiffs had alleged in their complaint that defendants violated their duty under this

statute.      Defendants argued that because the statute imposes a duty only on the

Department of Corrections, it would violate principles of sovereign immunity and the Court

of Claims Act (705 ILCS 505/1 et seq. (West 2004)) to allow evidence of a duty derived




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No. 2--05--0802


from the statute.




           Plaintiffs stated that Judge Magdich had already ruled upon all of defendants'

immunity defenses when he considered defendants' motion to dismiss and their motion for

summary judgment. Next, on February 25, 2005,




       On March 9, 2005, plaintiffs filed a motion for leave to file an amended complaint.

Plaintiffs sought to refer to a different statute under which defendants' duty to plaintiffs

arose. In their original           plaintiffs alleged that defendants breached their duty to

plaintiffs pursuant to section 3--7--3 of the Unified Code of Corrections. In their motion for

leave to file an amended complaint, plaintiffs indicated they wished to instead cite sections

2 and 3 of the Health and Safety Act (820 ILCS 225/2, 3 (West 2004)) as the statute to

define defendants' duty. Sections 2 and 3 require all employers, including the State of

Illinois, to reasonably protect the health and safety of their employees and to furnish

employees with a work environment free from recognized hazards that are likely to cause

death or serious injury. On March 24, 2005, defendants filed their response to plaintiffs'

motion for leave to file an amended complaint, arguing that it would be unfair and

prejudicial for plaintiffs to amend their complaint after defendants' seventeenth motion in

limine had pointed out the fatal flaw in the complaint and after plaintiffs received a change

in judges three weeks before trial. On March 28, 2005, the parties appeared before Judge



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No. 2--05--0802


Fritts to argue plaintiffs' motion for leave to amend their complaint. Following argument,

Judge Fritts advised the parties he would enter a written opinion as to whether the

amended complaint would be allowed.

       On July 25, 2005, when the parties appeared before the court for a status date,

Judge Fritts entered a memorandum decision in the case. In his decision, Judge Fritts

found that the doctrine of sovereign immunity applied and that, as a result, the circuit court

lacked subject matter jurisdiction to hear the case. Judge Fritts reasoned that because of

security concerns, the duties of all employees within the institution of the Department of

Corrections are unique to their state employment and, therefore, the duty defendants were

charged with breaching derived only from their state employment. Judge Fritts indicated

in his written decision that his ruling was in response to issues raised in defendants' first

motion in limine; however, during the parties' July 25, 2005, appearance, Judge Fritts

      identified defendants' seventeenth motion in limine as the basis of his decision. In

response to plaintiffs' attorney's questions, Judge Fritts noted he had not ruled on

plaintiffs' motion to amend their complaint, because the circuit court did not have

jurisdiction over the claims.

       Plaintiffs now appeal Judge Fritts' July 25, 2005, decision that the circuit court lacks

subject matter jurisdiction.

                                        DISCUSSION

       On appeal, plaintiffs       that the circuit court erred when it declared that it did not

have subject matter jurisdiction over plaintiffs' claims. Plaintiffs          that, rather than

            the circuit court's subject matter jurisdiction, Judge Fritts should have denied



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defendants' motions in limine that raised immunity defenses, because Judge Magdich had

already considered the merits of the issue of sovereign immunity twice and ruled against

defendants both times.            plaintiffs             that the circuit court has subject matter

jurisdiction and that sovereign immunity does not bar plaintiffs' claims, because

defendants' duty to plaintiffs arose independently of their state employment. Finally,

plaintiffs contend that the circuit court erred because it did not allow plaintiffs the

opportunity to amend their complaint. We will analyze each of the three contentions

separately.



       Plaintiffs contend that the trial court erred in several ways when it                    the

issue of subject matter jurisdiction                                                      motions

in limine.    First, plaintiffs argue that affirmative defenses, such as subject matter

jurisdiction, cannot be raised                 in any later motion once the trial court has already

considered the issue on its merits in response to a motion to dismiss pursuant to section

2--619 of the Code




       1
        We note that defendants filed their motion to dismiss pursuant to section 2--615 of the Code

(735 ILCS 5/2--615 (West 2004)), not section 2--619 of the Code (735 ILCS 5/2--619 (West 2004)).



                                                  -11-
No. 2--05--0802




                                                        any new facts or law that would merit

the court's review of Judge Magdich's previous rulings.

      A trial court's ruling on a motion in limine is normally reviewed under an abuse of

discretion standard. Chapman v. Hubbard Woods Motors, Inc., 351 Ill. App. 3d 99,110

(2004).



          Whether a trial court may consider an issue that is raised in a motion in limine but

was                                                     in the




            Hamilton v. Conley, 356 Ill. App. 3d 1048, 1052 (2005).           In challenging

defendants' motions in limine in the trial court, plaintiffs failed to raise any of the

             grounds raised in their appellant brief.

      In their brief, plaintiffs point out that at a hearing on March 28, 2005, plaintiffs'

counsel argued

                       However, plaintiffs fail to note that the March 28, 2005, hearing

concerned plaintiffs' motion to amend their                                      cited Judge



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Magdich's rulings to show that defendants would not be harmed by plaintiffs' proposed

amendment to their complaint, not to argue that the court could not entertain the issues

raised in defendants' motions in limine.




                                 As a result, plaintiffs' arguments that the court

                  the issue of subject matter jurisdiction raised in defendants' motions in

limine were waived when they failed to              to




if defendants improperly raised the issue of subject matter jurisdiction in their motions in

limine, the trial court had the power to rule on its subject matter jurisdiction absent any

motion by defendants. See Barrington Community Unit School District No. 220 v. Special

Education District of Lake County, 245 Ill. App. 3d 242, 247 (1993). Subject matter

jurisdiction can be raised sua sponte by the trial court at any time, since the lack of subject

matter jurisdiction deprives the trial court of all power except to dismiss the action.

Barrington Community Unit School District No. 220, 245 Ill. App. 3d at 247



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                                                                    Lake County Riverboat

L.P. v. Illinois Gaming Board, 313 Ill. App. 3d 943, 950 (2000). A successor court has the

power to modify or revise an interlocutory order at any time prior to final judgment. Bailey,

316 Ill. App. 3d at 956; see also Rowe,125 Ill. 2d at 213-14; Towns, 73 Ill. 2d at 121.

When the interlocutory order involved the exercise of a prior judge's discretion, the

successor judge may overturn the order only where new facts or circumstances warrant

such action and there is no evidence of judge shopping. Lake County Riverboat, 313 Ill.

App. 3d at 950. On the other hand, where the successor judge finds that the previous

interlocutory order is erroneous as a matter of law, the successor judge, absent evidence

of judge shopping, may correct the previous order regardless of the existence of a new

matter. Lake County Riverboat, 313 Ill. App. 3d at 950.

       In this case, in his memorandum decision Judge Fritts ruled on the issue of whether

the doctrine of sovereign immunity prohibited the subject matter jurisdiction of the circuit

court, an issue that was already considered by Judge Magdich. Judge Magdich found that

sovereign immunity did not         plaintiffs' claims against



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            motion to dismiss and defendants' motion for summary judgment. Both the

denial of a motion to dismiss and the denial of a motion for summary judgment are

interlocutory orders that may be revised prior to final judgment. Bailey, 316 Ill. App. 3d at

956;                                                                             there is no

evidence of judge shopping by defendants. No party requested that Judge Magdich

reassign the case, and plaintiffs explain in their brief that the case was originally

reassigned because of Judge Magdich's retirement. The case then was reassigned from

Judge Payne to Judge Fritts at the request of plaintiffs, not defendants.

       Because there is no evidence of judge shopping by defendants, Judge Fritts had

the right to rule on the issues already addressed by Judge Magdich's interlocutory orders

          (1) the previous rulings were discretionary and new matters justified

reconsideration, or (2) the previous rulings were erroneous as a matter of law. See Bailey,

316 Ill. App. 3d at 956-57; Lake County Riverboat, 313 Ill. App. 3d at 950




                      B.




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       Plaintiffs contend that the trial court erred when it dismissed plaintiffs' claims for lack

of subject matter jurisdiction, because the doctrine of sovereign immunity does not bar

plaintiffs' claims against defendants as individual employees of the Department of

Corrections. Plaintiffs argue that the circuit court has subject matter jurisdiction over

plaintiffs' claims because the duty defendants allegedly breached was one that arose

independently of their state employment. Defendants respond that they are protected by

sovereign immunity because plaintiffs' claims are truly against the State of Illinois

                                                                                 Subject matter

jurisdiction is an issue of law, which we review de novo. Gassman, 329 Ill. App. 3d at 226.

       Article XIII, section 4, of the Illinois Constitution of 1970 abolishes sovereign

immunity in this state except as the General Assembly provides by law. Ill. Const. 1970,

art. XIII, §4. In 1972, the legislature enacted the State Lawsuit Immunity Act (745 ILCS

5/1 (West 2004)), which states that the State of Illinois shall not be made a party or

defendant in any court, except as provided by the Illinois Public Labor Relations Act (5

ILCS 315/1 et seq. (West 2004)) or the Court of Claims Act. The Court of Claims Act gives

the Court of Claims exclusive jurisdiction over all tort claims against the State. 705 ILCS

505/8(d) (West 2004). Therefore, in the case before us, if defendants are insulated from

liability by sovereign immunity, exclusive jurisdiction rests in the Court of Claims, and the

circuit court has no subject matter jurisdiction. See Currie v. Lao, 148 Ill. 2d 151, 157-58

(1992).

       We must pause here to clarify how the Court of Claims Act and the State Lawsuit

Immunity Act can regulate the jurisdiction of the circuit court. Our supreme court has held



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that because the circuit courts' subject matter jurisdiction over justiciable matters derives

solely from the Illinois Constitution, legislative enactments cannot create or limit the circuit

courts' subject matter jurisdiction. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A.,

Inc., 199 Ill. 2d 325, 335 (2002). We recognize that allowing the State Lawsuit Immunity

Act and the Court of Claims Act to control the circuit courts' jurisdiction over claims against

the State, instead of merely creating affirmative defenses to claims against the State, may

seem to conflict with the holdings of Belleville. However, in Healy v. Vaupel, 133 Ill. 2d

295, 316 (1990), our supreme court held that the Court of Claims Act did not conflict with

the provision of

                     stated:

       "Article XIII, section 4, of the Illinois Constitution abolishes sovereign immunity

       '[e]xcept as the General Assembly may provide by law.' Pursuant to that express

g                      r                       a                       n                       t

       of authority, the legislature has established the Court of Claims, to serve as the

f                      o                      r                       u                      m

       for hearing and determining claims against the State. We discern no conflict

b              e               t              w               e               e               n

       the two constitutional provisions [abolishing sovereign immunity (Ill. Const. 1970,

a                               r                              t                               .

       XIII, §4) and granting the circuit courts jurisdiction over all justiciable matters (Ill.

       Const. 1970, art. VI, §9)] and the Court of Claims Act."            Healy, 133 Ill. 2d




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       at 316.




                               of whether an action is one against the State does not

necessarily depend on whether the State is named as a party. Kawaguchi v. Gainer, 361

Ill. App. 3d 229, 243 (2005). Whether an action is one against the State depends on the

issues raised and the relief sought. Jinkins v. Lee, 209 Ill. 2d 320, 330 (2004). An action

that is brought nominally against a state employee in his individual capacity but "could

operate to control the actions of the State or subject it to liability" is considered an action

against the State.    Currie, 148 Ill. 2d at 158.     Treating such actions against state

employees as against the State prevents plaintiffs from sidestepping state immunity by

naming only individual state employees as defendants. Kawaguchi, 361 Ill. App. 3d at

243.

if the suit against them are truly against the State. See Currie, 148 Ill. 2d at 158-59.

       In Jinkins, our supreme court reiterated the three-part test it established in Healy

to determine if an action against a state employee is truly one against the State. An action



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against a state employee is considered one against the State when (1) there are no

allegations that an employee or agent of the State acted beyond the scope of his authority

through wrongful acts; (2) the duty alleged to have been breached was not owed by the

employee independently of his state employment; and (3) the complained-of actions

involve matters ordinarily within that employee's normal and official functions. Jinkins, 209

Ill. 2d at 330. In this case, defendants were working in their capacity as Department of

Corrections employees at the time plaintiffs were injured. Plaintiffs make no argument on

                                                       that defendants were acting beyond

the scope of their authority                       or that the actions complained of involve

matters outside of defendants' normal and official functions. Therefore, the dispute here

centers on the second factor above, whether the duty allegedly breached was one

defendants owed independently of their state employment. Jinkins, 209 Ill. 2d at 331.

        The determination of whether an employee has breached a duty owed

independently of his employment is guided by the "source of the duty" test established by

our supreme court in Currie. Jinkins, 209 Ill. 2d at 331. According to the test, in order to

determine if sovereign immunity protects an employee for his own act of negligence, one

must look to the source of the duty the employee is charged with breaching in committing

the negligent act. Currie, 148 Ill. 2d at 159. When the state employee allegedly breaches

a duty that arises solely by virtue of his state employment, sovereign immunity will bar in

circuit court an action that is founded on that breach. Currie, 148 Ill. 2d at 159. However,

when an employee breaches a duty imposed independently of his state employment, he

is entitled to no more immunity than is a private individual who breaches that same duty



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and the mere fact of his employment will not endow him with heightened protection.

Currie, 148 Ill. 2d at 160. Thus, even if an employee is acting in the scope of his

employment, he will not be protected by sovereign immunity for breaching a duty that

arises separately from his state employment. Currie, 148 Ill. 2d at 160.

       When applying the source of duty test, courts have found that an independent duty

is a duty imposed by the employee's status as something other than an employee.

                                                                                 ; Johnson

v. Halloran, 312 Ill. App. 3d 695, 699-700 (2000); Janes v. Albergo, 254 Ill. App. 3d 951,

964 (1993). For example, professionals employed by the State, such as public defenders

and doctors at state hospitals, are not protected by sovereign immunity when they breach

a professional duty owed by every member of that profession.

Johnson, 312 Ill. App. 3d at 699-700. Because a professional duty derives from the duty

of care imposed by one's status as a professional, this is an independent duty that does

not arise solely from one's employment and, thus, a breach is not protected by sovereign

immunity.

       In the same way, the duty to drive safely is a duty one owes to others regardless

of one's employment, because it arises from one's status as a person operating a vehicle

on a state roadway and not as a person employed as a driver. Currie, 148 Ill. 2d at 160.

As a result, when a state employee breaches her duty to drive safely, even if she is driving

within the scope of her state employment, she has breached a duty not imposed solely by

her employment and is not protected by sovereign immunity. Currie, 148 Ill. 2d at 160.




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       However, the "source of duty" test is not without exceptions. Currie, 148 Ill. 2d at

160.




Currie, 148 Ill. 2d at 160; Kawaguchi, 361 Ill. App. 3d at 244.




                                                                            , duties imposed

by statute are normally considered independent duties because most statutes impose

specific requirements on all people regardless of their employment. Fritz v. Johnston, 209

Ill. 2d 302, 314 (2004). For example, when an employee in the course of his employment

breaches a duty imposed by the Illinois Criminal Code of 1961 (720 ILCS 5/1--1 et seq.

(West 2004)), he has breached an independent duty and is not protected by sovereign

immunity. Fritz, 209 Ill. 2d at 314. However, recently in Fritz our supreme court clarified

that where a statute imposes a duty only upon state employees, this statutory duty arises

solely from their employment. Fritz, 209 Ill. 2d at 314. As a result, an action resulting from

a state employee's breach of a duty imposed solely by a statute pertaining only to state

employees is protected by sovereign immunity. See Fritz, 209 Ill. 2d at 314. For example,

where a professor sued the Board of Governors of State Colleges and Universities of

Illinois, alleging that they had discharged her in violation of a section of the Board of



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Governors Act, which applied only to the operation, management, and control of the State

Colleges and Universities System, the court applied sovereign immunity despite the

plaintiff's argument that the Board of Governors violated a statute. See Fritz, 209 Ill. 2d

at 314, citing Ellis v. Board of Governors of State Colleges & Universities, 102 Ill. 2d 387,

389 (1984).

       In this case, plaintiffs, defendants, and the trial court all focused their analyses on

whether defendants' duty to plaintiffs was unique to their state employment by

distinguishing the aspects of prison kitchens from private kitchens. Plaintiffs argue that

because all kitchen managers and supervisors owe their employees a duty to maintain a

safe work environment, defendants' duty is independent of their state employment.

Defendants argue that the safety concerns and nutritional differences between a private

kitchen and a prison kitchen make defendants' duty to maintain a safe kitchen environment

unique to their state employment



       In light of these arguments, the trial court         that because the procedure to

dispose of hot grease within a correctional facility is sufficiently different from that of a

private enterprise, the duty defendants breached arose solely by reason of their state

employment.




                                            -22-
 No. 2--05--0802




        Although the parties and the trial court outlined the differences between supervising

 private kitchens and correctional facility kitchens, we believe the focus on these

 differences is misplaced in light of                                    . However, we may

 affirm the trial court on any ground called for by the record, regardless of whether the trial

 court relied on that ground. Thomson Learning, Inc. v. Olympia Properties, LLC, 365 Ill.

 App. 3d 621, 632 (2006). In their complaint, plaintiffs allege that defendants breached

 their specific duty under section 3--7--3 of the Unified Code of Corrections to properly

 maintain the kitchen facilities and adjacent grounds and to provide plaintiffs with a

 reasonably safe workplace. Section 3--2--1 of the Unified Code of Corrections states that

 the Unified Code of Corrections consolidates in one statute the "powers and duties of the

 Department of Corrections." 730 ILCS 5/3--2--1 (West 1996). Section 3--7--3 of the

 Unified Code of Corrections states:

              "Institutional Safety and Sanitation. (a) Standards of sanitation and safety for

all

       institutions and facilities shall be established and enforced by the Department. All

buildings




                                             -23-
No. 2--05--0802


       and facilities shall be cleaned regularly and properly maintained. Ventilation of air

and heat

       adequate to the climate and season shall be provided." 730 ILCS 5/3--7--3(a)

            .

As noted by the language, this statute applies only to the Department of Corrections.

Consequently, the statute imposes a duty solely on the Department of Corrections, and

thus, any duty it imposes on Department of Corrections employees arises solely by virtue

of their employment. Further, this court cannot find any common-law duty, akin to that of

lawyers, doctors and other health professionals, and motor vehicle operators, that kitchen

supervisors have to keep kitchen staff members safe. See Fritz, 209 Ill. 2d at 314.

Therefore, the trial court did not err in concluding that the duty defendants allegedly

breached arose solely from their employment




       However, before concluding our analysis of the circuit court's subject matter

jurisdiction, we need to address plaintiffs' contention that the legislature did not intend the

Court of Claims to have exclusive jurisdiction over claims against employees of the



                                             -24-
No. 2--05--0802


Department of Corrections. Plaintiffs argue that because section 8(d) of the Court of

Claims Act fails to specifically mention the Department of Corrections as an agency over

which the Court of Claims has exclusive jurisdiction, the legislature did not intend for the

Court of Claims to have sole jurisdiction over all tort actions against employees of the

Department of Corrections. Section 8(d) of the Court of Claims Act states, in part, that the

Court of Claims has exclusive jurisdiction over:

                     "All claims against the State for damages in cases sounding in tort, if

              a like cause of action would lie against a private person or corporation in a

              civil suit, and all like claims sounding in tort against the Medical Center

              Commission, the Board of Trustees of the University of Illinois, the Board of

              Trustees of Southern Illinois University, the Board of Trustees of Chicago

              State University, the Board of Trustees of Eastern Illinois University, the

              Board of Trustees of Governors State University, the Board of Trustees of

              Illinois State University, the Board of Trustees of Northeastern Illinois

              University, the Board of Trustees of Northern Illinois University, the Board of

              Trustees of Western Illinois University, or the Board of Trustees of the Illinois

              Mathematics and Science Academy." 705 ILCS 505/8(d) (West 2004).

Plaintiffs assert that because the legislature used the

                                                          state agencies not listed

               such as the Department of Corrections, were intended to be excluded from

the exclusive jurisdiction of the Court of Claims. As a result, plaintiffs contend that




                                             -25-
No. 2--05--0802


defendants must show that the action is only nominally against them, and in effect is an

action against the State.

       Plaintiffs never explain why the absence of the Department of Corrections from

section 8(d) of the Court of Claims Act specifically precludes defendants from asserting a

defense of sovereign immunity pursuant to the State Lawsuit Immunity Act (745 ILCS 5/1

(West 2004)                                                                neither the State

Lawsuit Immunity Act nor the Court of Claims Act expressly protects a state employee from

a lawsuit individually against him or her. See 745 ILCS 5/1 (West 2004); 705 ILCS 505/8(d)

(West 2004). An action against a state employee is                sovereign immunity only

when it is an action truly against the State. Currie, 148 Ill. 2d at 159. As a result, as

discussed earlier, in order for any state employee to invoke the State Lawsuit Immunity Act,

the court must find that the action is only nominally against the employee and is in effect

an action against the State               Ill. 2d at 309. Plaintiffs do not explain how the

absence of the Department of Corrections in section 8(d) of the Court of Claims Act

changes




                                                   As discussed earlier, the State Lawsuit

Immunity Act provides that the State may not be sued in any court, unless it is provided for



                                            -26-
No. 2--05--0802


in the specified acts. 745 ILCS 5/1 (West 2004). For the purposes of the State Lawsuit

Immunity Act, the sovereign immunity of the State includes immunity from present

against arms of the State. Williams v. Medical Center Comm'n, 60 Ill. 2d 389, 393 (1975);

Williams v. Davet, 345 Ill. App. 3d 595, 599 (2003); Gordon v. Department of

Transportation, 109 Ill. App. 3d 1071, 1074 (1982). Generally, an agency of the State is

considered an arm of the State itself, which is immune from suit in the circuit court. Davet,

345 Ill. App. 3d at 599.




                                                          The Department of Corrections is in

no way a separate legal entity.        Foley, 199 Ill. App. 3d at 14.       The Department of

Corrections is an agency of the State and as such, it is indisputably an arm of the State.

Foley, 199 Ill. App. 3d at 13. Accordingly, suits against it would subject the State to liability.

Thus, because the State Lawsuit Immunity Act bars claims against the State in any court

except as provided in the specified acts, we fail to see how the application of section 8(d)

of the Court of Claims Act would allow the circuit court subject matter jurisdiction over

claims against Department of Corrections employees who show that the claims are only

nominally against them.



                                              -27-
No. 2--05--0802


       Because we find that plaintiffs' claims are only nominally against defendants and are

truly claims against the State, the claims are barred by the principles of sovereign immunity

asserted in the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2004). Therefore, we find

that the circuit court properly held that it lacked subject matter jurisdiction to hear plaintiffs'

suit. We now turn to whether the circuit court erred                                     plaintiffs'

motion to amend their complaint.

                          C. Plaintiffs' Motion to Amend Complaint

       Plaintiffs argue that the trial court erred when it ruled on defendants' motions in

limine without first ruling on and granting plaintiffs' motion for leave to file an amended

complaint. Plaintiffs contend that their motion for leave to amend their complaint was

intended to allow them to change their reference to the statute imposing defendants' duty

to plaintiffs from section 3--7--3 of the Unified Code of Corrections (730 ILCS 5/3--7--3(a)

(West1996)) to sections 2 and 3 of the Health and Safety Act (820 ILCS 225/2, 3 (West

2004)) and thereby dispute defendants' contention that the circuit court lacked jurisdiction.

Defendants respond that once the court determined that it lacked subject matter jurisdiction

it could not take any action other than to dismiss plaintiffs' claims and, moreover, that even

if plaintiffs had amended their complaint, their claims would still have been barred by

sovereign immunity.

       Section 2--616 of the Code allows amendment of a complaint at any time before final

judgment, in order to enable a plaintiff to sustain the claim that was intended. 735 ILCS

5/2--616(a) (West 2004). The decision to permit an amendment of a complaint is a matter

within the sound discretion of the trial court, and we will not disturb the trial court's decision



                                               -28-
No. 2--05--0802


absent an abuse of that discretion. R.J. Management Co. v. SRLB Development Corp., 346

Ill. App. 3d 957, 969 (2004). The trial court should exercise its discretion liberally in favor

of allowing an amendment, and any doubts should be resolved in favor of allowing the

amendment if the ends of justice will be furthered by allowing it. Hartshorn v. State Farm

Insurance Co., 361 Ill. App. 3d 731, 735 (2005). However, the denial of a plaintiff's request

to amend a complaint is appropriate if even after the amendment, no cause of action can

be stated. Terry v. Metropolitan Pier & Exposition Authority, 271 Ill. App. 3d 446, 456

(1995).

       Assuming, without deciding, that the trial court erred when it ruled on the issues

raised in defendants' motions in limine prior to ruling on plaintiffs' motion for leave to file an

amended complaint, this error was harmless because plaintiffs' amended complaint would

also have been barred by the doctrine of sovereign immunity. See City of Elgin v. County

of Cook, 169 Ill. 2d 53, 71-72 (1995); Firestone v. Fritz, 119 Ill. App. 3d 685, 690 (1983).

Plaintiffs argue that the proposed amended complaint would have merely corrected the

statutory reference in the complaint to conform with the duty plaintiffs asserted throughout

the litigation, and thus, asserted an independent duty of defendants that would allow the

trial court subject matter jurisdiction over plaintiffs' claims. We disagree.

       Plaintiffs' proposed amended complaint alleges that it was the duty of defendants

under sections 2 and 3 of the Health and Safely Act to properly maintain the kitchen

facilities and adjacent grounds and to provide plaintiffs with a reasonably safe workplace.

820 ILCS 225/2, 3 (West 2004). Section 2 of the Health and Safety Act states, in part:




                                              -29-
No. 2--05--0802


                "This Act shall apply to all employers engaged in any occupation, business

or enterprise

       in this State, and their employees, including the State of Illinois and its employees

a                n             d                              a              l             l

       political subdivisions and its employees ***." 820 ILCS 225/2 (West 2004).

Section 3 of the Health and Safety Act states, in part:

                      "(a) It shall be the duty of every employer under this Act to provide

reasonable

                protection to the lives, health and safety and to furnish to each of his

e          m            p          l         o            y         e            e        s

                employment and a place of employment which are free from recognized

hazards that

                are causing or are likely to cause death or serious physical harm to his

employees.                   (b) It shall be the duty of each employer under this Act to

                      comply with occupational health and safety standards promulgated

                      under this Act." 820 ILCS 225/3 (West 2004).

       In order to determine if defendants' duty under this statute is an independent duty,

we must first determine what duty, if any, the statute imposes on defendants. Plaintiffs'

argument throughout the case was that defendants were kitchen supervisors and that all

kitchen supervisors have an independent duty to maintain a safe work environment.

Plaintiffs contend that sections 2 and 3 of the Health and Safety Act impose this duty upon

defendants.


                                            -30-
No. 2--05--0802




                  -31-
No. 2--05--0802




                                                             Williams v. Banning, 72 F.3d

552, 555 (7th Cir. 1995    In suits for retaliatory discharge, our supreme court has said,

only an employer may be sued, and therefore, a supervisor cannot be found individually

liable for firing an employee. Buckner, 182 Ill. 2d at 21. The Seventh Circuit Court of

Appeals has held that under provisions of the federal Civil Rights Act of 1964 (42 U.S.C.

§2000(e) (2000)) directed at employers, supervisors do not fall in the definition of

employers and cannot be sued individually (Williams, 72 F.3d at 555), and that supervisors

cannot be held criminally liable under the Occupational Health and Safety Act of 1970 (29

U.S.C. §666 (2000)), which applies only to employers (United States v. Doig, 950 F.2d

411, 412-13 (7th Cir. 1991)). In the same way, neither is a supervisor an employer for the

purposes of vicarious liability for an employee's actions. Northrop, 242 Ill. App. 3d at 5

(holding that although an employer could be liable for the actions of a dental assistant

through the doctrine of agency, her supervisor, the dentist, was not accountable, because,

as her supervisor, he was a coworker and not an employer). Additionally, plaintiffs do not

allege that defendants were plaintiffs' employers or had a duty to plaintiffs as their

employers. Neither do the facts pled lead to the reasonable conclusion that plaintiffs were

employees of defendants.


                                           -32-
No. 2--05--0802


       Certainly, some kitchen supervisors may be employers, but not all kitchen

supervisors are employers. Section 3 of the Health and Safety Act does not create an

independent duty of kitchen supervisors, who are not employers, to maintain a workplace

free from hazards. Plaintiffs allege facts that show only that defendants were kitchen

supervisors and not employers. The facts alleged do not show that defendants had a

contract of hire with plaintiffs or that defendants individually paid plaintiffs' wages.

Consequently, if defendants had a duty to protect plaintiffs from injury, related to sections

2 and 3 of the Health and Safety Act, this duty arose solely because defendants were

agents of plaintiffs' employer, to which the Health and Safety Act applies. Thus, any duty

defendants had to plaintiffs derives solely from their employment, not from the Act itself.

See Healy,133 Ill. 2d at 31

       Instead of articulating how sections 2 and 3 of the Health and Safety Act impose a

duty on defendants that is independent of their employment, plaintiffs argue that

defendants' duty as kitchen supervisors is an independent duty because all kitchen

supervisors have a duty to maintain a safe kitchen Plaintiffs argue that because many

employers, both public and private, require their kitchen supervisors to maintain a safe

kitchen environment for kitchen workers, this duty is not unique to state employment.

However, plaintiffs' argument                                                   in Healy, 133

Ill. 2d at 312. In Healy, the plaintiff was a gymnast at Northern Illinois University (NIU) who

sued gymnastics program staff, who were employed by NIU, for injuries that occurred while

participating in gymnastics activities at NIU. Healy,133 Ill. 2d at 298-99. The defendants

asserted that the Court of Claims had exclusive jurisdiction over the plaintiff's claims.


                                             -33-
No. 2--05--0802


Healy, 133 Ill. 2d at 297. The plaintiff argued that because the defendants' duty of care

was no greater than, and no different from, the duty that would be owed to participants in

a privately run gymnastics program, the defendants' duty was analogous to a doctor's

independent duty to care for a patient. Healy, 133 Ill. 2d at 312. Our supreme court

rejected the plaintiff's argument. The court distinguished between the independent duty

owed by a doctor to his patient, based on the doctor-patient relationship, and the duty

owed to the student by the gymnastics department employees, which derived from their

employment. Healy, 133 Ill. 2d at 312.




      Plaintiffs argue that Healy is no longer good law because it predated the source of

duty test outlined in Currie (Currie, 148 Ill. 2d at 159) and because the Jinkins




                                           -34-
No. 2--05--0802




                  We disagree. We believe that plaintiffs' confusion lies in the parties'

interpretation of the Currie court's statement that "[w]here the charged act of negligence

arose out of the State employee's breach of a duty that is imposed on him solely by virtue

of his State employment, sovereign immunity will bar maintenance of the action in circuit


                                           -35-
No. 2--05--0802


court." (Emphasis in original.) Currie, 148 Ill. 2d at 159. Plaintiffs interpret this statement

to mean that, in order for sovereign immunity to apply, a state employee must have

breached a duty that arises only in state employment and does not exist for employees in

the private sector. However, this is inconsistent with the premise of sovereign immunity.

See Fritz, 209 Ill. 2d at 315 ("sovereign immunity is designed to protect the state's

autonomy of action and to preserve state funds").        The State provides many services

similar to those provided in the private sector, and therefore both private and public

employees engaged in the same work acquire identical duties associated with their

positions. Despite these often identical duties, the State Lawsuit Immunity Act and the

Court of Claims Act still require that all actions against the State be heard in the Court of

Claims, not just those involving actions only the State performs. See 745 ILCS 5/1 (West

2004); 705 ILCS 505/8(d) (West 2004). Consequently, even when a state employee's

position requires the same duty required of a private employee, the state employee's

breach of such a duty is protected by sovereign immunity if the duty derives solely from the

employment position, and not from professional standards or statutory requirements that

apply to all citizens. Healy, 133 Ill. 2d at 312. In other words, the source of duty test

favors sovereign immunity when a state employee is sued for a breach of a duty imposed

on him solely by his employment. See                   361 Ill. App. 3d at 243. Therefore, it

is not whether an employee performs uniquely state functions, like regulating prison

inmates, but whether the state                                        arises solely from his




                                             -36-
No. 2--05--0802


employment, that determines whether the duty derives solely from his state employment.

Healy, 133 Ill. 2d at 312; see also Swanigan v. Smith, 294 Ill. App. 3d 263, 271 (1998).2

          In this case, the facts alleged in plaintiffs' proposed amended complaint do not show

that defendants breached an independent duty to plaintiffs, but only a duty that arose as

a result of their employment in the kitchen at Dixon.               Defendants' employer is the

Department of Corrections, which is an arm of the State of Illinois. See

               Therefore, their duty derives solely from their State employment. Like the

employees of NIU, if it were not for defendants' status as kitchen supervisors at Dixon,

defendants would have had no duty to protect plaintiffs from harm. See Healy,133 Ill. 2d

at 312.




    2
        As discussed earlier, the issue of whether a defendant is performing a uniquely governmental

function becomes relevant once the court determines that the duty at issue does not arise solely as

a result of one's state employment. Currie, 148 Ill. 2d at 160. In some circumstances, a state

employee's performance of an independent duty may be unique to a government function such that

an exception to the source of duty test is made. Currie, 148 Ill. 2d at 160;            361 Ill. App.

3d at 243-44. Thus, even when a state employee breaches a duty that does not derive solely from his

employment, he may be protected by sovereign immunity if the breach occurs while he is performing

a uniquely governmental function. Currie, 148 Ill. 2d at 160; see also Jinkins, 209 Ill. 2d at 335;

               361 Ill. App. 3d at 243-44. Because we conclude that defendants' alleged duty to

plaintiffs arose solely as a result of their employment, we do not have to consider if defendants were

performing uniquely governmental functions.

                                                 -37-
No. 2--05--0802


       Because defendants did not have a duty to plaintiffs independent of their state

employment, plaintiffs' proposed amended complaint presented a claim only nominally

against defendants and truly against the State, and it would be barred by principles of

sovereign immunity. As a result, we conclude that if the trial court made an error in

refusing to rule on plaintiffs' motion to amend their complaint prior to dismissing the case

for lack of subject matter jurisdiction, such error was harmless. See City of Elgin, 169 Ill.

2d at 72; Firestone, 119 Ill. App. 3d at 690.

                                      CONCLUSION

       After reviewing all of plaintiffs' arguments on appeal, we hold that the trial court did

not err when it dismissed plaintiffs' claims for lack of subject matter jurisdiction



                         . Accordingly, we affirm the decision of the trial court.

       Affirmed.

       BOWMAN, J., concurs.

       JUSTICE McLAREN, specially concurring:

       I believe that this majority has now rendered two decisions that incorrectly analyze

the merits of the sundry counts contained in the complaints. I specially concur here

because I believe that, in spite of its incorrect analysis, the majority reaches the correct

result in this case.

       In Felzak v. Hruby, No. 2--05--0848 (September 5, 2006), I dissented in part

because the majority found subject matter jurisdiction extant. The majority determined that


                                             -38-
No. 2--05--0802


an unconstitutional statutory claim with a distinctive statutory theory of relief did not confer

subject matter jurisdiction. However, the majority then reviewed the facts alleged in the

statutory claim and determined that those facts alleged a justiciable common law claim.

The majority did so by reinterpreting the facts and determining that there existed an

alternative theory of relief, with different elements, relating to grandparent visitation. See

Felzak, slip op. at 14-23. I noted that the majority allowed the plaintiff to assert that subject

matter jurisdiction existed merely on the basis that a claim existed at common law, without

requiring the plaintiff to file a separate count alleging such a claim. I pointed out that

assuming, arguendo, such a claim existed at common law, it still should be pled as a

separate count, as required by section 2--613(a) of the Code of Civil Procedure (735 ILCS

5/2--613(a) (West 2004)).            By ferreting through the counts of the complaint in the

case before us in an effort to find alternative theories of relief, the majority again subverts

the rule of procedure that requires parties to plead "as many causes of action *** as they

may have, and each shall be separately designated and numbered." 735 ILCS 5/2--613(a)

(West 2004). Analogically, the majority has determined that the apple is an apple, but it

did so by three separate reviews of the same apple, when only one review was appropriate

and necessary. See Felzak, slip op. at 37 (McLaren, J., dissenting in part and specially

concurring in part).

       I wish to emphasize that I did not and do not declare that the claim must properly

state a cause of action that would withstand a motion to dismiss; however, the claim must

actually allege a common-law action.




                                              -39-
No. 2--05--0802


          "Thus, in order to invoke the subject matter jurisdiction of the circuit court, a

          plaintiff's case, as framed by the complaint or petition, must present a justiciable

          matter. See People ex rel. Scott v. Janson, 57 Ill. 2d 451, 459 (1974) (if a complaint

          states a case belonging to a general class over which the authority of the court

          extends, subject matter jurisdiction attaches)." Belleville Toyota, Inc. v. Toyota

          Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002).

See also Felzak, slip op. at 38 (McLaren, J., dissenting in part and specially concurring in

part). The court in Belleville reviewed the complaint and did not parse words or find a

claim at common law integrated into a void statutory claim or in a count subject to

jurisdiction in the Court of Claims.

          I submit that the two-step analysis utilized by the majority in Felzak and this case

is incorrect. The majority here erroneously continues to review a count to determine if

there is an integrated second or third underlying cause of action contained within it. The

majority determines that no count contains any facts that allege a duty outside the

supervisors' employment.           The majority also reviews the counts to determine if an

independent duty exists that is common to all kitchen supervisors.3 See slip op. at 21.

Again, the majority fails to comprehend that, if there is no count alleging such an


     3
         I submit that a policy was violated when the grease was ordered to be moved prior to cooling.

I see little difference between the violation of this policy and the violation of the policy relating to

responding to a call that was not within the trooper's jurisdiction in Currie v. Lao, 148 Ill. 2d 151

(1992). Also, though not pled, it would seem that the facts may allege wilful and wanton behavior

on the part of the supervisors. But I digress.

                                                  -40-
No. 2--05--0802


alternative theory of relief, the court should not further consider what the existing counts

might contain, other than the stated theory of relief, in order to determine if subject matter

jurisdiction exists.

       The simple fact is that separate theories of relief must be pled in separate counts.

The failure of the plaintiffs to comply with this simple fact absolves the majority of its

erroneously held belief that it must search amongst the words of the sundry counts for

additional interpolations addressing whether or not there is a justiciable matter. The

majority in this case has again failed to properly follow the admonitions set forth in my

partial dissent in Felzak and has ventured into the land beyond the looking glass. Neither

the parties nor the courts should be placed in the position of trying to decipher a count to

determine if there is more than one theory of relief in the count and, if so, how many. The

majority has again followed the wrong analysis that it created and utilized in Felzak but,

despite this failure, has come to the correct conclusion. That is why I specially concur.




                                            -41-
