author: JUSTICE RARICK PRESIDING JUSTICE GOLDENHERSH,

text:
      In re MARRIAGE OF NANCY SIDDENS, Petitioner-Appellant, and W.C. SIDDENS, Respondent-Appellee.
    Fifth District
    No. 5 — 89—0311
    Opinion filed February 5, 1992.
    Rehearing denied March 27, 1992.

      GOLDENHERSH, RJ., concurring in part and dissenting in part.
    John R. Sprague, Sr., of Sprague & Sprague, of Belleville, for appellant.
    Vaughn & Vaughn, of Olney, and Roscoe D. Cunningham, Ltd., of Lawrenceville, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Nancy Siddens, wife, appeals from the judgment of the circuit court of Lawrence County pertaining to the distribution of the parties’ property, denial of maintenance, and award of attorney fees.

Nancy and W.C. Siddens were married in the summer of 1981. Both parties had been married before, and W.C. was some 12 years Nancy’s senior. The marriage lasted six years.

Prior to and during the marriage, W.C. was involved in several businesses, primarily oil production, construction, automotive parts, farming and rental properties. All income from the various businesses was put into several different accounts, all of which were in the names of the respective businesses or W.C. Siddens alone. W.C. then transferred money from the business accounts to a personal account for family expenses. At the beginning of the marriage, W.C. transferred $900 a week into this family account which was then placed under Nancy’s control. By the time the parties separated in 1987, the amount per week had been reduced to $400. Part of the reason for the reduction stemmed from the fact that W.C.’s net worth had been declining for some years as a result of a failing economy in the Lawrenceville area. Nancy claimed, however, that W.C.’s net worth as of January 1, 1987, was $8,626,600. The evidence revealed, on the other hand, that W.C. had over $4,403,774 in debts as of December 31, 1987, and a negative net worth of $421,811. In fact, W.C.’s businesses had been losing money every year since 1982 prompting W.C. to transfer money repeatedly between his various accounts to cover expenses.

Prior to her marriage to W.C., Nancy was employed as a registered nurse. She stopped working, however, once the parties married. Nancy used the family-account money which W.C. had turned over to her to buy food for the parties, decorate their living quarters, cover her traveling expenses, support her relatives, and make her own personal investments and savings. When Nancy left the marriage, she took over $40,000 in cash and some 28 gold and silver coins. Instead of returning to the nursing profession, Nancy chose to live off these monies plus $200 a week in court-ordered temporary maintenance. Nancy has since become licensed to sell real estate but had not started working at the time of the last hearing. Nancy claims monthly expenses of $5,424. She also claims she is entitled to 50% of W.C.’s property, which she values at some $2,313,965, taking into account his numerous debts. The trial court did not agree and instead awarded Nancy $10,886, representing her nonmarital monies brought into the marriage, numerous items of furniture and personal property, a Chrysler LeBaron automobile, one-half of a parcel of real estate known as the Texaco property, $54,470 as Nancy’s interest in the improvements made upon the marital and business premises during the marriage, and $27,817 in attorney fees. Further maintenance was denied. Nancy appeals raising some 26 issues, the majority pertaining to specific items of property awarded to W.C. as his nonmarital property. Again, Nancy believes she is entitled to 50% of everything W.C. owns. She also requests permanent maintenance and all of her attorney fees.

We need not address every contention Nancy raises on appeal. Suffice it to say the record contains five large boxes of exhibits and extensive testimony and argument. The evidence overwhelmingly revealed that the majority of W.C.’s property was acquired prior to the parties’ marriage and was maintained separately throughout the marriage, thereby remaining W.D.’s separate property. (See Ill. Rev. Stat. 1989, ch. 40, par. 503.) It is true some items were exchanged for other property during the course of the marriage, but these “new acquisitions” were also separately maintained and separately titled. Assets purchased with separate funds remain separate property regardless of the number or type of postmarital exchanges as long as there has been no evidence of an intent to transmute. (See In re Marriage of Thacker (1989), 185 Ill. App. 3d 465, 467-69, 541 N.E.2d 784, 786-87; In re Marriage of Preston (1980), 81 Ill. App. 3d 672, 675-76, 402 N.E.2d 332, 335-36.) For example, the mere fact that W.C.’s primary business enterprise, Maeco, was incorporated into a subchapter S corporation during the marriage did not automatically transfer it into marital property. (See Thacker, 185 Ill. App. 3d at 468, 541 N.E.2d at 786.) Likewise, W.C.’s rental business did not become marital property simply because new properties were added and older ones were maintained when all of the funds came from W.C.’s separate accounts. Mere marital use of the rental income certainly did not transmute the properties themselves into marital assets. (See In re Marriage of Cihak (1981), 92 Ill. App. 3d 1123, 1126, 416 N.E.2d 701, 703.) Transmutation occurs only where the contribution of marital assets to non-marital property is significant. (In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 330, 491 N.E.2d 894, 901.) For instance, the trial court properly awarded Nancy a share in the $100,000 plus improvements made to the parties’ residence during the marriage. In contrast, no reimbursement was required for improvements made to W.C.’s rental properties when the evidence was insufficient to establish increased value. And mere maintenance of an asset during a marriage, standing alone, does not constitute a significant contribution requiring reimbursement to the marital estate. (See And, 142 Ill. App. 3d at 330, 491 N.E.2d at 901; see also In re Marriage ofWojcicki (1982), 109 Ill. App. 3d 569, 573, 440 N.E.2d 1028, 1030.) Consequently, as all of W.C.’s business interests were held separately and controlled by him with little if any input from Nancy or the marital estate, we find no error in the trial court finding such interests to be the nonmarital property of W.C. to do with as he saw and sees fit. As a result, we find no evidence of any dissipation of assets. We further note the trial court is not required to place a specific value on each item of property as long as there is sufficient evidence of value in the record to support the court’s apportionment. See In re Marriage of Leff (1986), 148 Ill. App. 3d 792, 803, 499 N.E.2d 1042, 1050; Aud, 142 Ill. App. 3d at 326, 491 N.E.2d at 898; In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 89, 458 N.E.2d 1360, 1362; see also In re Marriage of Panener (1982), 111 Ill. App. 3d 546, 550, 444 N.E.2d 653, 656.

Turning to Nancy’s other contentions, we first reiterate that the touchstone of apportionment of marital property is whether the distribution is equitable. (See In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 222, 543 N.E.2d 119, 130.) Equitable, however, does not necessarily mean equal. (In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 673, 545 N.E.2d 459, 465; see also In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 790, 560 N.E.2d 374, 378.) In fact, in some instances the court may be justified in awarding one spouse a larger share of marital property based upon that spouse having made a greater contribution to the marital assets, especially when the marriage was of short duration. (See Jones, 187 Ill. App. 3d at 225, 543 N.E.2d at 132; see also Cecil, 202 Ill. App. 3d at 790-91, 560 N.E.2d at 378-79.) As we have stated countless times before, a trial court’s resolution of property division is fettered only by the range of reason. (E.g., Aud, 142 Ill. App. 3d at 326, 491 N.E.2d at 898.) And we, sitting as a reviewing court, will not disturb the judgment unless an abuse of the court’s discretion is shown. (E.g., Jones, 187 Ill. App. 3d at 222, 543 N.E.2d at 130.) The question is not whether we agree with the trial court but rather whether the trial court acted arbitrarily without the employment of conscientious judgment or, in view of all circumstances, exceeded the bounds of reason so that no reasonable person would take the view adopted by the trial court. (Jones, 187 Ill. App. 3d at 222, 543 N.E.2d at 130; Aud, 142 Ill. App. 3d at 326, 491 N.E.2d at 898; see also In re Marriage of Wentink (1984), 132 Ill. App. 3d 71, 75, 476 N.E.2d 1109, 1112.) We find no abuse of the trial court’s discretion with respect to the apportionment of the parties’ properties including the horses in this instance, especially in light of the short duration of the marriage, the age of the parties and the fact that the parties’ assets were produced by W.C.’s business interests established long before the marriage. (Pancner, 111 Ill. App. 3d at 550, 444 N.E.2d at 656.) We do find fault, however, with the classification of one item, that being the Jones farm. In 1971, W.C. purchased some 670 acres of unimproved timber and farm ground with the Joneses. In 1983, the Joneses and W.C. divided the land with W.C. receiving approximately 330 acres. At the time of the division, W.C. was in poor health. He therefore decided to add Nancy’s name as a joint tenant to the new deed in order to provide for her in case something should happen to him. By adding Nancy’s name to the deed, W.C. is presumed to have made a gift to the marital estate. (See, e.g., In re Marriage of Nicks (1988), 177 Ill. App. 3d 76, 79, 531 N.E.2d 1069, 1071.) Based upon the record before us, we do not believe W.C. sufficiently rebutted that presumption, and the trial court erred in classifying the farm otherwise. We therefore must reverse this portion of the trial court’s judgment and remand this cause for the purposes of giving Nancy a share in the Jones property.

Besides the property distribution issues, Nancy also contends the trial court erred in allowing her only $200 a week as temporary maintenance and further erred in terminating all maintenance as of March 1989. She claims she has monthly expenses and needs totaling some $5,425 which she cannot meet on her own. Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 504(a)) provides that a court may grant maintenance only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; that the spouse is unable to support herself through appropriate employment; or that the spouse is otherwise without sufficient income. (See, e.g., Harding, 189 Ill. App. 3d at 679, 545 N.E.2d at 469.) Maintenance is to be awarded in such amounts and for such periods of time as the court deems just, after consideration of all the various factors, including: the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; the standard of living established during the marriage; the age and physical and emotional condition of both parties; and the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance. (Ill. Rev. Stat. 1989, ch. 40, par. 504(a).) The propriety and amount of any award of maintenance are matters within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion by that court. (See, e.g., Harding, 189 Ill. App. 3d at 680, 545 N.E.2d at 469; Nicks, 177 Ill. App. 3d at 80, 531 N.E.2d at 1072.) The denial of Nancy’s request for maintenance was not an abuse of discretion in this instance. As the trial court noted in its order, Nancy worked as a registered nurse prior to the parties’ marriage and could easily become relicensed if she should so desire. In addition, Nancy has become a licensed real estate salesperson since the parties’ separation. With two professions available to choose from, Nancy obviously is employable and quite capable of providing for her own needs. More importantly, under section 504 of the Illinois Marriage and Dissolution of Marriage Act, Nancy has an affirmative obligation to seek appropriate employment and not just sit idly by and demand compensation from a former spouse. (See In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 328, 453 N.E.2d 748, 754.) Nancy has few, if any, health problems and is not of an age where she cannot be expected to pay for her own way. This is not, however, all that Nancy has. In addition to the $40,000 in cash and the 28 gold and silver coins she took with her when she left the marriage, plus some $200-a-week temporary maintenance, Nancy was also awarded over $65,000 in cash from W.C. plus an interest in one farm. And, upon remand she will be given an additional interest in the Jones farm, a property which she values at some $170,000. We also take into consideration the declining state of W.C.’s financial well-being which necessarily hinders W.C.’s ability to pay Nancy the maintenance she requests. We further find it curious that Nancy claims she is entitled to some $5,400 a month in maintenance based upon in part the parties’ lifestyle during the marriage when the most W.C. ever gave her during the marriage as her “allowance” was $3,600 a month. And, this money was supposed to be used to support W.C., Nancy and two of her children. Moreover, toward the end of the marriage this allowance had been reduced to just $400 a week. While Nancy may have enjoyed a rather lavish lifestyle at the beginning of the marriage, given the short duration of the marriage and Nancy’s employability, we cannot say the trial court erred in denying Nancy permanent maintenance under such circumstances.

Nancy also finds fault with the trial court’s denial of the total amount she requested for attorney fees and costs. The trial court awarded some $27,817 in fees while Nancy claimed amounts totaling some $40,393. Again, we find no error in this award. An award of attorney fees is within the sound discretion of the trial court and absent an abuse of that discretion will not be overturned on review. (See Jones, 187 Ill. App. 3d at 230, 543 N.E.2d at 135; In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417, 423, 480 N.E.2d 513, 518.) The factors to be considered in determining what are reasonable fees are the attorney’s skill and standing, the nature of the controversy, the novelty and difficulty of the questions at issue, the degree of responsibility involved in the management of the case, the time and labor required, the usual and customary charge in the community and the benefits to the client. (Angiuli, 134 Ill. App. 3d at 423, 480 N.E.2d at 518; Green v. Green (1976), 41 Ill. App. 3d 154, 169, 354 N.E.2d 661, 674.) In applying these factors the trial court quite properly may rely on its own knowledge and experience in determining the value of the legal services rendered. (Angiuli, 134 Ill. App. 3d at 423, 480 N.E.2d at 518; Collins v. Collins (1977), 47 Ill. App. 3d 258, 263, 361 N.E.2d 787, 790.) Moreover, assuming that the payment of attorney fees rests primarily with the party for whom the services were rendered, the spouse seeking attorney fees must show she is financially unable to pay the fees while the other spouse is able to do so. (Jones, 187 Ill. App. 3d at 230, 543 N.E.2d at 135-36; In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 684, 509 N.E.2d 707, 716; In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 276, 411 N.E.2d 947, 949.) It is also true that the financial ability of the spouse required to pay may limit the amount awarded regardless of the expenditure of time and labor by the attorney. By the same token, financial ability to pay does not warrant an award beyond what is fair and reasonable. Angiuli, 134 Ill. App. 3d at 425-26, 480 N.E.2d at 520; McNeeley, 117 Ill. App. 3d at 329-30, 453 N.E.2d at 755; Green, 41 Ill. App. 3d at 170, 354 N.E.2d at 675.

Here the trial court found that Nancy did not have sufficient funds with which to pay her attorney fees whereas W.C. had access to such monies. The court accordingly ordered W.C. to pay the fees for Nancy based on the reasonable hours incurred at the prevailing rate in the area for the type of work performed. (See Angiuli, 134 Ill. App. 3d at 424-25, 480 N.E.2d at 519.) One part of the charged fees for which the trial court did not allow reimbursement, however, was the travel time incurred by one of Nancy’s attorneys who lived across the State. The trial court believed it could not justify such an award on the grounds that the nonlocal attorney performed no legal services which were not already available in the area. The award of attorney fees is to be limited to those fees necessarily incurred. (See Ill. Rev. Stat. 1989, ch. 40, par. 508(a).) In this instance, both attorneys Nancy chose to hire to represent her throughout the proceedings had considerable legal experience. She simply did not establish that the required expertise could not have been performed by local counsel. We therefore agree with the trial court that W.C. should not be obligated to pay for unnecessary expenses simply because Nancy felt some unexplained need to have additional counsel from outside the area. (See Richheimer v. Richheimer (1965), 59 Ill. App. 2d 354, 366-67, 208 N.E.2d 346, 353 (husband not obligated to subsidize wife’s zest for accumulation of legal talent).) We therefore find no abuse of the trial court’s discretion with respect to the award of attorney fees under such circumstances.

For the foregoing reasons, we affirm the judgment of the circuit court of Lawrence County in all respects except for the finding pertaining to the Jones farm. As the trial court improperly classified this property as W.C.’s nonmarital property, we remand this cause for reclassification of the real estate as marital property in order to give Nancy an interest in the farm.

Affirmed in part; reversed and remanded in part.

CHAPMAN, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I respectfully dissent from that part of the majority’s opinion which affirms the trial court’s denial of the amount Nancy requested for attorney fees and costs.

I consider the trial court’s ruling to be an abuse of discretion. Attorney McGaughey has considerable skill and expertise, and Nancy’s employment of attorney Sprague as well was quite reasonable. He is a lawyer with unquestioned expertise in dissolution litigation and more than 50 years of experience. As noted above, this case involved several businesses primarily dealing with oil production, construction, auto parts, farming and rental properties. The financial aspects of the case included multiple accounts and transfers of funds to meet expenses in increasingly hard times. The trial produced five boxes of exhibits and many hours of testimony for the trial court to consider. This court received appellant’s brief with 126 pages of argument and appellee’s brief with 45 pages. In a dissolution action of this size and complexity, the employment of counsel with Sprague’s expertise in domestic matters was quite prudent, and the travel time of that counsel and fees of both counsel were necessarily incurred. See Ill. Rev. Stat. 1989, ch. 40, par. 508(a).


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    HAROLD R. MANDEVILLE, Plaintiff-Appellee and Cross-Appellant, v. VIRGINIA TRUCANO et al., Defendants-Appellants and Cross-Appellees (Collinsville Board of Fire and Police Commissioners, Intervenor-Appellant and Cross-Appellee).
    Fifth District
    No. 5 — 90—0550
    Opinion filed February 6, 1992.
    Rehearing denied March 30, 1992.
    Dwight Taylor, of Collinsville, for appellant Board of Fire and Police Commissioners of City of Collinsville.
    Martin J. Haxel, of Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for other appellants.

      William C. Evers III, of Collinsville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On December 28, 1989, the plaintiff, Sergeant Harold Mandeville, received a suspension notice from Collinsville Police Chief David Niebur for allegedly mishandling an automobile accident which occurred December 17, 1989. This notice stated that the suspension would not be implemented if the plaintiff accepted a voluntary, permanent demotion to detective. The notice also warned that if a similar deficiency in job performance occurred in the future, the chief would seek the plaintiff’s dismissal.

The plaintiff proceeded to work his regularly scheduled shift from 10 p.m. that evening until 6 a.m. the following day. At the end of his shift the plaintiff prepared a memo to Chief Niebur outlining his dissatisfaction with the options left him in the notice of suspension and expressing his intention to resign from the department January 12, 1990. The memo also contained the plaintiff’s intention to use his remaining two weeks of vacation between that point in time and January 12,1990.

Upon receiving the memo, Chief Niebur contacted the Board of Fire and Police Commissioners of the City of Collinsville to inform them of the plaintiff’s resignation and that a sergeant’s vacancy existed. The plaintiff did not appear for his scheduled shift December 29, 1989. On December 30, 1989, the plaintiff delivered a second letter to Chief Niebur stating he was not going to resign, and that he would appeal his suspension. The letter also read that the plaintiff would continue his vacation, unless otherwise directed, and report for his regular shift on January 12,1990.

On January 2, 1990, Commissioner Michael Fischer sent a note to Chief Niebur instructing the chief to assign the plaintiff back to his regular shift and stating that he would not declare a vacancy in the department as the matter needed to be reviewed.

On January 10, 1990, the Board of Fire and Police Commissioners held a meeting to consider the plaintiff’s appeal of his suspension. The plaintiff was absent, but his attorney, Mr. Charles Evers, was present. Although no evidence was presented, the board did hear argument from Mr. Evers on the plaintiff’s behalf. The board concluded that the plaintiff had resigned, and therefore, any appeal of his suspension was moot. On January 12, 1990, the plaintiff appeared at the police station for work, but he was informed by Chief Niebur that he was no longer employed there.

The plaintiff did not appeal the board’s decision pursuant to the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3—101 et seq.). Instead, the plaintiff filed an action in the circuit court of Madison County seeking declaratory relief and a writ of mandamus. An advisory jury verdict found that the plaintiff had not resigned, and the trial court ordered immediate reinstatement. A subsequent order was entered requiring the city to pay the plaintiff his back pay. On appeal the defendants allege that the trial court lacked subject matter jurisdiction because the plaintiff failed to appeal the board’s original findings. Defendants contend that as a result of the lack of subject matter jurisdiction the trial court’s orders were void.

Pursuant to section 10—2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10—2.1—17), the City of Collinsville’s Board of Fire and Police Commissioners has the authority to hold hearings in order to investigate matters relating to removal or discharge of policemen and firemen. (Foster v. Board of Fire & Police Commissioners (1980), 81 Ill. App. 3d 48, 50, 400 N.E.2d 1089, 1090.) The statute also contains a provision expressly adopting the Administrative Review Law to judicially review the final administrative decisions of the board of fire and police commissioners.

The plaintiff argues that the board did not have the authority to decide the issue of whether or not the plaintiff had resigned, and its decision as such was void. We disagree. Prior to addressing the issue of the suspension, the board first had to rule on the issue of the resignation. Only then could it conclude whether or not it had jurisdiction to consider the plaintiff’s appeal of his suspension. The board held the resignation was effective and thus the suspension was moot. (Weber v. Board of Fire & Police Commissioners (1990), 204 Ill. App. 3d 358, 360, 562 N.E.2d 318, 320.) Such a finding was prerequisite to any section 10— 2.1—17 hearing being held under the circumstances. The issue of resignation was “closely, related” to the issues of removal or discharge in the present case and therefore was covered by the statute. Foster, 81 Ill. App. 3d 48, 400 N.E.2d 1089.

The plaintiff also claims that an appeal pursuant to the Administrative Review Law was not necessary as no final administrative decision was rendered by the board.

Where it is expressly adopted, the Administrative Review Law is the exclusive method of review. (Mason v. Board of Trustees of Southern Illinois University (1984), 125 Ill. App. 3d 614, 617, 466 N.E.2d 365, 367.) Section 10 —2.1—17 expressly adopts the Administrative Review Law for judicial review of final administrative decisions of the board of fire and police commissioners. An administrative decision is defined as:

“[A]ny decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” Ill. Rev. Stat. 1989, ch. 110, par. 3-101.

On January 10, 1990, the board concluded that it could not consider any appeal of the plaintiff’s suspension because he had resigned. This decision was reached after a meeting was convened by the board and arguments were heard on behalf of the plaintiff by his counsel. We find that this constituted a final administrative decision as it affected the legal rights, duties and privileges of the plaintiff and terminated the proceedings before the board.

Thus, as a final administrative decision, the holding by the board was reviewable only by means of the Administrative Review Law. (Mason v. Board of Trustees of Southern Illinois University (1984), 125 Ill. App. 3d 614, 466 N.E.2d 365.) The failure to commence an administrative review action, where required, is jurisdictional, and the circuit court will have no subject matter jurisdiction to act. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893.) The lack of subject matter jurisdiction cannot be waived, and without it, the trial court has no authority to consider or act on a case before it other than to dismiss it. Cahoon v. Alton Packaging Corp. (1986), 148 Ill. App. 3d 480, 482, 499 N.E.2d 522, 523.

For the foregoing reasons, the judgment of the circuit court is vacated.

Vacated.

GOLDENHERSH, P.J., and LEWIS, J., concur.


author: JUSTICE HOWERTON JUSTICE CHAPMAN,

text:
    HEATHER CATES, a Minor, by her Mother and Next Friend, Nancy Cates, n/k/a Nancy Cates Schmittling, Plaintiff-Appellant, v. TIMOTHY CATES, Defendant-Appellee (Nancy Cates Schmittling, Plaintiff; Robert Stookey, as Public Adm’r of the Estate of Phillip Darwin, Deceased, et al., Defendants).
    Fifth District
    No. 5 — 89—0615
    Opinion filed February 7, 1992.
    Rehearing denied March 30, 1992.
    CHAPMAN, J., dissenting.
    Neubauer & Meyer, of Fairview Heights, for appellant.
    Theodore J. MacDonald, Jr., and J. Todd Hayes, both of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff was riding in a car driven by her father, who was divorced from her mother, who had custody. She and her father were on their way to a circus, but when it began to rain, they decided to drive to her father’s home, instead. On the way, her father drove from Illinois Route 15 onto Illinois Route 157. Keeley and Sons, Inc., was repairing the intersection under a contract with the State. As plaintiff’s father drove onto Route 157, another driver, Phillip Darwin, ran a stop sign and crashed into plaintiff’s father’s car. Plaintiff was seriously injured.

Plaintiff, by her mother and next friend, Nancy Cates Schmittling, sued Phillip Darwin’s estate, Keeley and Sons, Inc., and her father, Timothy Cates, for her injuries. Her father filed a motion for summary judgment claiming that his daughter’s suit against him was barred by the doctrine of parental immunity. The circuit court granted him summary judgment. Plaintiff appealed, and only plaintiff and her father are parties to this appeal.

We reverse and remand.

Plaintiff asks this court to abolish the doctrine of parental immunity to permit her to sue her father for negligence.

Defendant argues that parental immunity was adopted by the Illinois Supreme Court and, therefore, only the Illinois Supreme Court has the power to abolish it. See Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 131 N.E.2d 525; Stallman v. Youngquist (1988), 125 Ill. 2d 267, 531 N.E.2d 355; Ackley v. Ackley (1988), 165 Ill. App. 3d 231, 518 N.E.2d 1056.

Parental immunity is a creature of the common law and was judicially created by the Mississippi Supreme Court in 1891. (See Hewellette v. George (1891), 68 Miss. 703, 9 So. 885.) Four years later, in 1895, the Illinois Appellate Court, citing no authority, said that “[i]t is doubtless the law, that a child can not maintain an action for damages on account of maltreatment against a parent.” (Foley v. Foley (1895), 61 Ill. App. 577, 580.) Sixty-one years later, the Illinois Supreme Court addressed the issue for the first time. Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 131 N.E.2d 525.

In Nudd, a child sued his father for willful and wanton misconduct. His father argued that parental immunity barred the action and that the supreme court was bound by stare decisis to rule accordingly. The court disagreed, stating:

“We consider the question before us a novel one in Illinois. The Appellate Court decisions cited to us do not determine the question of parental immunity in case of wilful and wanton misconduct. Any justification for the rule of parental immunity can be found only in a reluctance to create litigation and strife between members of the family unit. While this policy might be such justification to prevent suits for mere negligence within the scope of the parental relationship we do not conceive that public policy should prevent a minor from obtaining redress for wilful and wanton misconduct on the part of a parent.” (Emphasis added.) (Nudd, 7 Ill. 2d at 618-19,131 N.E.2d at 531.)

The supreme court’s holding is clear: a child may sue his parents for willful and wanton misconduct; it did not hold that a parent is immune from suits brought in negligence. We are not free to impute an adoption of parental immunity to Nudd, for appellate courts must read cases only in light of the issues brought before the court for determination (Nix v. Smith (1965), 32 Ill. 2d 465, 207 N.E.2d 460), and the only issue in Nudd was whether “public policy should prevent a minor from obtaining redress for wilful and wanton misconduct on the part of a parent.” (Nudd, 7 Ill. 2d at 619, 131 N.E.2d at 531.) Nudd’s holding, furthermore, should not be read to imply tacit approval of parental immunity for negligence for two cogent reasons: (1) the question of immunity from suits for negligence was not presented and, therefore, not argued to the court, and the competing policies presented by that question might or could differ from the policies involved in consideration of the question of immunity from suits brought for willful and wanton misconduct, rendering it unfair to impute tacit approval of a doctrine not argued; and (2) the very language used by the court is precatory: “[w]hile this policy might be such justification to prevent suits for mere negligence,” words chosen to alert the reader that the issue has purposely been left open. (Emphasis added.) 7 Ill. 2d at 619.

Since Nudd, the supreme court’s treatment of parental immunity has been confined to six cases: (1) Mroczynski v. McGrath (1966), 34 Ill. 2d 451, 216 N.E.2d 137; (2) Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705; (3) Tanari v. School Directors of District No. 502 (1977), 69 Ill. 2d 630, 373 N.E.2d 5; (4) Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323; (5) Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538; and (6) Stallman v. Youngquist (1988), 125 Ill. 2d 267, 531 N.E.2d 355. We examine these cases to determine if parental immunity was ever adopted by the Illinois Supreme Court.

In Mroczynski, a son sued his father for, among other things, abandoning him and his mother. The father, having been served summons in Minnesota, where he resided, moved to quash service and dismiss the case. His motions were granted. Plaintiff appealed directly to the supreme court, where the case turned on whether Illinois’ long-arm statute conferred jurisdiction over the defendant. It held it did not. In doing so, the court examined whether abandonment of mother and child gave rise to a cause of action. In that analysis, the court reiterated the holding in Nudd, i.e., that “public policy in a case of wilful misconduct did not prevent redress of a minor from his parent.” (Mroczynski, 34 Ill. 2d at 455.) The court went no further. This reiteration, however, is not law, for it is not a holding; it is dictum or obiter dictum.

In Kobylanski, the court reviewed two cases consolidated for the purpose of deciding whether teachers were immune from suit pursuant to the School Code (Ill. Rev. Stat. 1967, ch. 122, pars. 24—24, 34—84a). The court held that sections 24 — 24 and 34 — 84a of the Code conferred upon teachers immunity from suits in negligence arising out of matters relating to the discipline in, and conduct of, the schools and the school children. The court stated: “None of the parties *** disputes the fact that a parent is not liable for injuries to his child absent wilful and wanton misconduct.” (Kobylanski, 63 Ill. 2d at 170, 347 N.E.2d at 709.) Since the parties did not raise the issue whether a parent was immune from suits in negligence brought by his children, the court did not address it. Concerned, however, that the Kobylanski majority seemed to accept that a parent is not liable for injuries to his child absent willful and wanton misconduct, Justice Goldenhersh, with two justices joining, stated in dissent that the “court has never decided [the] question [of parental immunity].” Kobylanski, 63 Ill. 2d at 179, 347 N.E.2d at 712 (Goldenhersh, J., dissenting).

In Tanari, the court reversed the lower court and held that a school district is not immune from suit by a spectator injured by students at a football game. In discussing Kobylanski, the supreme court stated: “Since the forgoing statute [section 24—24 of the School Code] specifically confers upon educators the status of parent or guardian to the students, and since a parent is not liable for injuries to his child absent wilful and wanton misconduct (Nudd v. Matsoukas (1956), 7 Ill. 2d 608[, 131 N.E.2d 525]), it therefore follows that the same standard applies as between educator and student.” (Tanari, 69 Ill. 2d at 636, 373 N.E.2d at 7.) Here too, Justice Goldenhersh was compelled to comment on what he termed was “the repetitive misreading of Nudd v. Matsoukas.” (69 Ill. 2d at 640.) He stated in his concurrence: “The majority, and apparently the parties, appear to accept as settled law ‘that a parent is not liable for injuries to his child absent willful and wanton misconduct. [Citations.]’ [Citation.] On the contrary, this court has never decided that question.” Tanari, 69 Ill. 2d at 640, 373 N.E.2d at 9 (Goldenhersh, J., concurring).

That “repetitive misreading of Nudd v. Matsoukas” occurred twice more: once in Gerrity and once in Thomas. In Gerrity, the court stated that “it has been recognized as a general rule in this State that children may not maintain actions against their parents for mere negligence but may do so only in cases of wilful and wanton misconduct.” (Gerrity, 71 Ill. 2d at 49, 373 N.E.2d at 1324.) In Thomas, the court stated that “children may not maintain actions for negligence against their parents.” (Thomas, 77 Ill. 2d at 171, 395 N.E.2d at 541.) Both cases, while not holding themselves that a parent is immune from suit absent willful and wanton misconduct, impute to Nudd an adoption of the doctrine. But, the fact is, the supreme court has never adopted parental immunity.

The only other supreme court case mentioning parental immunity was Stallman v. Youngquist (1988), 125 Ill. 2d 267, 531 N.E.2d 355, a case that held that a fetus bom alive has no cause of action against its mother for the unintentional infliction of prenatal injuries. There, the court stated that “it [was] unnecessary *** to reach the issue concerning the status of the parental immunity doctrine” (Stallman, 125 Ill. 2d at 269, 531 N.E.2d at 355), and so did not address it. The court did state, however: “Insofar as Stallman I [Stallman v. Youngquist (1984), 129 Ill. App. 3d 859, 473 N.E.2d 400] and Stallman II [Stall-man v. Youngquist (1987), 152 Ill. App. 3d 683, 504 N.E.2d 920] purport to effect a change in the status of the parental immunity doctrine as it existed before the appeal to the Stallman I court, the judgments are vacated.” (Stallman, 125 Ill. 2d at 271, 531 N.E.2d at 356.) Since the supreme court specifically said “we do not decide the issue,” we fail to see how anyone could contend that Stallman adopted the doctrine of parental immunity. Furthermore, nothing could have been implied by the court when it said: “Insofar as Stall-man I and Stallman II purport to *** change *** the status of *** parental immunity *** as it existed before [the first appeal], the judgments are vacated.” (125 Ill. 2d at 271.) Nothing can be inferred from this statement simply because Stallman held only that a fetus has no cause of action against its mother; had the court not added this language, some lawyers might have expanded the holding, a mischief sought to be avoided by the supreme court.

A cardinal principle of our common law system is that a holding can have no broader application than the facts of the case that gave it birth. (Nix v. Smith (1965), 32 Ill. 2d 465, 207 N.E.2d 460). We, as an appellate court, forsake our duty if we refuse to follow that principle. We are not condemning or refusing to follow what the supreme court has ruled; we merely point out the truth. The supreme court has never ruled upon this issue.

To say otherwise is unwise, for it would be most incongruous, and indeed dangerous to our fundamental system of separation of powers, for the Illinois Supreme Court to insist on strict construction of statutes (see DeClerck v. Simpson (1991), 143 Ill. 2d 489, 577 N.E.2d 767; City of Elmhurst v. Buettgen (1946), 394 Ill. 248, 68 N.E.2d 278), but permit a less rigorous treatment of its own cases and the common law rules fashioned therein. Since the Illinois Supreme Court never adopted parental immunity, but the Illinois Appellate Court has, we are free to either retain it, retool it, or abolish it. In a larger sense, however, it is not simply a matter of this court being free to abolish or modify the doctrine (Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12; contra Ackley v. Ackley (1988), 165 Ill. App. 3d 231, 518 N.E.2d 1056); rather, it is because the issue has been put to us that we must decide it, at least until the supreme court speaks.

Since its inception, courts favoring parental immunity have feared that a suit brought by an unemancipated child might disrupt family harmony, encourage collusion, fraud, and perjury between family members, or impair parental authority or discipline. See Foley v. Foley (1895), 61 Ill. App. 577.

We consider first family harmony. We believe the argument that parental immunity is necessary to preserve family harmony is inharmonious with contemporary standards; indeed, it may have never carried much weight. (See, e.g., Roller v. Roller (1905), 37 Wash. 242, 79 P. 788 (where an unemancipated daughter was prevented from suing her father who had raped her), overruled by Borst v. Borst (1952), 41 Wash. 2d 642, 251 P.2d 149; Hewellette v. George (1891), 68 Miss. 703, 9 So. 885 (where the court held that a minor child could not sue her mother for maliciously confining her to an insane asylum); McKelvey v. McKelvey (1903), Ill. Tenn. 388, 77 S.W. 664, overruled by Davis v. Davis (Tenn. 1983), 657 S.W.2d 753 (where the court barred a child from suing a father and stepmother for cruel and inhuman treatment).) Rape. Imprisonment. Cruel and inhuman treatment. Who would believe that in 1992 courts would refuse to hear these cases?

Courts, furthermore, ignore family harmony in other intrafamily suits. For example, an emancipated child can sue a parent for injuries negligently inflicted (see Logan v. Reaves (1962), 209 Tenn. 631, 354 S.W.2d 789; Glover v. Glover (1958), 44 Tenn. App. 712, 319 S.W.2d 238; contra Wilkosz v. Wilkosz (1984), 124 Ill. App. 3d 904, 464 N.E.2d 1232); and children, regardless of emancipation, can sue a parent for breach of contract or on property matters. (See Streenz v. Streenz (1970), 106 Ariz. 86, 471 P.2d 282.) We believe a child’s body is worthy of as much protection from the law as her property or contractual rights. Can a suit for breach of contract somehow disrupt a family less than a personal injury suit? We fail to see how, for our instincts tell us that it would be more disruptive for a child to sue a parent over the family fortune or a family heirloom or hearth and home than to sue over injuries from a car wreck.

Another principle upon which the doctrine of parental immunity rests is the prevention of collusion, fraud, and penury between family members. The possibility of these very serious and practical problems, however, exists in all litigation, including other intrafamily litigation not barred by the doctrine. (See, e.g., Brown v. Brown (1978), 62 HI. App. 3d 328, 379 N.E.2d 634 (a case between brother and sister); see also Streenz v. Streenz (1970), 106 Ariz. 86, 471 P.2d 282; Logan v. Reaves (1962), 209 Tenn. 631, 354 S.W.2d 789.) In these other cases, courts traditionally have relied on the trial lawyers’ talents at direct and cross-examination and on the jury’s ability to sift through the facts and determine the truth. Do these talents dissipate, disappear, when the suit is for bodily injury? Do defense lawyers, competent in all other matters, become inept when handling a personal injury case? We think not.

Another pillar supporting parental immunity is the fear that suit will undermine parental authority and discipline. These same concerns exist in cases of contract and property, yet they create no immunities. How is it, by what device, do they create immunities in negligence? Are we afraid that a child will sue a parent for negligence in disobedience to that parent’s command? Surely not. The fact is suits are most commonly brought where there is insurance coverage, and if no coverage exists, no suit will likely be brought, because there is no way to equitably satisfy the judgment. Are we afraid that a parent will injure a child so there can be recovery against insurance funds? Would any parent ever do that? If so, only the most minuscule number, but the law ordinarily is not framed to prevent the unexpected. Threads of what is expected, what is reasonably forseeable, what is likely or unlikely, weave their way through the fabric of the law, and the recognition of this is, to some extent, the source of Holmes’ famous maxim: “The life of the law has not been logic: it has been experience.” The law should not be fashioned in such a way that courthouse doors are closed to those who need redress in order to satisfy some remote fear of collusive claims, claims that we know in our collective experience as human beings pose negligible risk.

Courts have increasingly abandoned parental immunity either completely or partially. (See Annot., Liability of Parent for Injury to Unemancvpated Child Caused by Parent’s Negligence—Modern Cases, 6 A.L.R4th 1066 (1981).) In Illinois a child may sue a parent for willful and wanton misconduct (Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 131 N.E.2d 525) or when the injury complained of occurred outside the realm of the family relationship or family purpose (Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12). A child may sue a deceased parent (Johnson v. Myers (1972), 2 Ill. App. 3d 844, 277 N.E.2d 778) or a grandparent (Gulledge v. Gulledge (1977), 51 Ill. App. 3d 972, 367 N.E.2d 429), and a defendant may seek contribution from a child-plaintiff’s parent (Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 435 N.E.2d 221).

Nine States have completely abolished parental immunity. (See Gibson v. Gibson (1971), 3 Cal. 3d 914, 479 P.2d 648, 92 Cal. Rptr. 288; Anderson v. Stream (Minn. 1980), 295 N.W.2d 595; Guess v. Gulf Insurance Co. (1981), 96 N.M. 27, 627 P.2d 869; Gelbman v. Gelbman (1969), 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529; Nuelle v. Wells (N.D. 1967), 154 N.W.2d 364; Kirchner v. Crystal (1984), 15 Ohio St. 3d 326, 474 N.E.2d 275; Winn v. Gilroy (1984), 296 Or. 718, 681 P.2d 776; Falco v. Pados (1971), 444 Pa. 372, 282 A.2d 351; Elam v. Elam (1980), 275 S.C. 132, 268 S.E.2d 109.) Nineteen States and the District of Columbia have partially abrogated the doctrine where the minor’s injury resulted from a parent’s negligent operation of an automobile. (See Hebel v. Hebel (Alaska 1967), 435 P.2d 8; Streenz v. Streenz (1970), 106 Ariz. 86, 471 P.2d 282; Conn. Gen. Stat. Ann. §52—572(c) (1985); Williams v. Williams (Del. 1976) 369 A.2d 669; Rousey v. Rousey (D.C. App. 1985), 499 A.2d 1199; Ard v. Ard (Fla. 1982), 414 So. 2d 1066; Farmers Insurance Group v. Reed (1985), 109 Idaho 849, 712 P.2d 550; Turner v. Turner (Iowa 1981), 304 N.W.2d 786; Nocktonick v. Nocktonick (1980), 227 Kan. 758, 611 P.2d 135; Black v. Solmitz (Me. 1979), 409 A.2d 634; Sorensen v. Sorensen (1975), 369 Mass. 350, 339 N.E.2d 907; Transamerica Insurance Co. v. Royle (1983), 202 Mont. 173, 656 P.2d 820; Briere v. Briere (1966), 107 N.H. 432, 224 A.2d 588; N.C. Gen. Stat., §1-539.21 (1983); Unah v. Martin (Okla. 1984), 676 P.2d 1366; Silva v. Silva (R.I. 1982), 446 A.2d 1013; Smith v. Kauffman (1971), 212 Va. 181, 183 S.E.2d 190; Lee v. Comer (1976), 159 W.Va. 585, 224 S.E.2d 721; Merrick v. Sutterlin (1980), 93 Wash. 2d 411, 610 P.2d 891; Allstate Insurance Co. v. Wyoming Insurance Department (Wyo. 1983), 672 P.2d 810.) Four States have abolished the doctrine except in cases where a parent is exercising authority and discretion as a parent. (See Rigdon v. Rigdon (Ky. 1970), 465 S.W.2d 921; Foldi v. Jeffries (1983), 93 N.J. 533, 461 A.2d 1145; Plumley v. Klein (1972), 388 Mich. 1, 199 N.W.2d 169; Goller v. White (1963), 20 Wis. 2d 402, 122 N.W.2d 193). Five States never adopted parental immunity in the first place. Petersen v. City & County of Honolulu (1969), 51 Haw. 484, 462 P.2d 1007; Rupert v. Stienne (1974), 90 Nev. 397, 528 P.2d 1013; Kloppenburg v. Kloppenburg (1938), 66 S.D. 174, 280 N.W. 209; Wood v. Wood (1977), 135 Vt. 119, 370 A.2d 191; Elkington v. Foust (Utah 1980), 618 P.2d 37.

Having examined the doctrine of parental immunity’s history, its rationale and its treatment by our supreme court and the courts in other jurisdictions, we believe it should be abolished.

The question remains, however, whether parental immunity should be abolished completely or partially. We have examined the facts of this case and have imagined hypothetical cases, ranging from these facts to one where a parent negligently allows the handle of a pot of hot water to extend outward from a stove so that a toddler can reach it and be scalded. We, likewise, have been mindful of the tension that exists between our own language above, on the one hand, wherein we reiterate that cardinal principle of the common law that holdings should be confined to the facts of the case presented, and, on the other hand, society’s need to be able to extrapolate broader contours so as to be able to predict results in future cases and lives be governed accordingly. We further are acutely aware that it is the supreme court, not us, who is the ultimate policy arm of the judicial branch and who bears the responsibility of unifying the law throughout this State. Since we cannot predict with certainty all sets of facts that are possible within the field of parental immunity, we cannot predict the impact of a rule of universal applicability. We remember here that the genius of the common law has been its ability to proceed on a case-by-case basis, so that new theories may emerge slowly and be molded by the myriad facts of countless cases until the end result fits contemporary needs. In consideration of these factors, and mindful also that in Illinois automobile insurance is mandatory, we hold that a parent is not immune from suit brought by a child alleging personal injury proximately caused by that parent’s negligent operation of an automobile.

The circuit court is reversed and this cause is remanded.

Reversed and remanded.

HARRISON, J., concurs.

JUSTICE CHAPMAN,

dissenting:

I do not necessarily disagree with the majority’s result, and in fact, I agree with many of their criticisms of the parental-immunity doctrine and a good deal of their analysis of the bases (or lack thereof) of it. I dissent, however, because I think that the supreme court has made its position on parental tort immunity known to date and that we are required to follow it. Although the Illinois Supreme Court has not decided a case in which the question of parent-child tort immunity for negligent torts was directly at issue, the court’s adoption of the rule is implicit in the holdings of several of the cases to which the majority refers. I find it of particular significance that in two of those decisions Justice Goldenhersh, deviating from the majority, protested the court’s repeated assumption that a parent is not liable for injuries to his child absent willful and wanton misconduct. He pointed out that the court has never decided the question of parental tort immunity in a negligence context. (See Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 179, 347 N.E.2d at 705, 712 (Goldenhersh, J. dissenting); Tanari v. School Directors of District No. 502 (1977), 69 Ill. 2d 630, 640, 373 N.E.2d 5, 9 (Goldenhersh, J., concurring).) In light of Justice Goldenhersh’s statements and the language of Nudd, I cannot agree that the supreme court majority was unaware that it was imputing to Nudd an adoption of the rule in this State that children may not maintain actions against their parents for mere negligence. Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 131 N.E.2d 525; Mroczynski v. McGrath (1966), 34 Ill. 2d 451, 216 N.E.2d 137; Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705; Tanari v. School Directors of District No. 502 (1977), 69 Ill. 2d 630, 373 N.E.2d 5; Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323; Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538; Stallman v. Youngquist (1988), 125 Ill. 2d 267, 531 N.E.2d 355.

In reviewing the state of the parental-tort-immunity doctrine, one finds that the districts in Illinois have continually precluded children from maintaining negligence actions against their parents because of the parental-tort-immunity doctrine adopted by the supreme court. However, each of the districts has recognized exceptions to the rule. (See Eisele v. Tenuta (1st Dist. 1980), 83 Ill. App. 3d 799, 404 N.E.2d 349; Edgington v. Edgington (3d Dist. 1990), 193 Ill. App. 3d 104, 549 N.E.2d 942.) In one instance the court permitted minors to maintain a cause of action against their deceased mother’s estate for negligence because the policy of maintaining the family relationship underlying the tort-immunity doctrine could not apply where the parent was deceased. (Johnson v. Myers (2d Dist. 1966), 2 Ill. App. 3d 844, 277 N.E.2d 778.) Another exception allows a negligence claim if the minor’s injuries arose “outside of the family relationship.” Illinois National Bank & Trust Co. v. Turner (2d Dist. 1980), 83 Ill. App. 3d 234, 238, 403 N.E.2d 1256; Cummings v. Jackson (4th Dist. 1978), 57 Ill. App. 3d 68, 372 N.E.2d 1127; see also Hogan v. Hogan (5th Dist. 1982), 106 Ill. App. 3d 104, 435 N.E.2d 770.

As the majority point out, other States have relaxed or completely abolished the parental-tort-immunity doctrine. Various commentators have noted the trend toward abolishing the parental-tort-immunity doctrine. (See Rooney & Rooney, Parental Tort Immunity: Spare the Liability, Spoil the Parent, 25 New Eng. L. Rev. 1161 (1991); McLeod, Jilani v. Jilani: The Erosion of the Parental Tort Immunity Doctrine in Texas, 28 Hous. L. Rev. 717 (1991); Wingerter, Parent-Child Tort Immunity, 50 La. L. Rev. 1131 (1990); Fularczyk, Parent-Child Immunity After Carey v. Meijer, Inc., 35 Wayne L. Rev. 153 (1988); Atchison, Ard v. Ard: Limiting the Parent-Child Immunity Doctrine, 44 U. Pitt. L. Rev. 977 (1983); Grimm, Tort — Parental Immunity — Merrick v. Sutterlin, 93 Wash. 2d 411, 610 P.2d 891 (1980), 56 Wash. L. Rev. 319 (1981).) Because of the exceptions that have been carved by the districts within Illinois, the apparent trend toward partial abrogation or complete abolishment of the doctrine, and the analysis set forth in the majority opinion, the supreme court may want to reexamine the parental-tort-immunity doctrine.

My disagreement with the majority is based on what they say the supreme court says on the issue which obviously differs from my interpretation of the supreme court rulings. I would affirm the decision of the trial court.


author: PRESIDING JUSTICE GOLDENHERSH JUSTICE HOWERTON,

text:
    JOHN ROE et al., Plaintiffs-Appellants, v. CATHOLIC CHARITIES OF THE DIOCESE OF SPRINGFIELD, ILLINOIS, d/b/a Catholic Charities of Alton-Wood River, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0411
    Opinion filed February 14, 1992.
    Rehearing denied March 31, 1992.

      HOWERTON, J., concurring in part and dissenting in part.
    Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellants.
    Lisa K. Franke and James W. McConkey, both of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs John Roe, Mary Roe, Jane Roe (by her father and next friend, John Roe), Betty Doe, Billy Doe (by his mother and next friend, Betty Doe), and Carol Boe appeal from an order of the circuit court of Madison County granting the motion to dismiss pursuant to section 2—619(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)) of defendant, Catholic Charities of the Diocese of Springfield, Illinois, d/b/a Catholic Charities of Alton-Wood River. In this cause, plaintiffs question whether an adopting parent and an adopted child may state a cause of action against an adoption agency for information regarding the child’s health, condition and need for future treatment. We affirm in part and reverse and remand in part.

Although defendant brings up several factual arguments, a motion to dismiss admits all well-pleaded facts of the complaint. (Long v. City of New Boston (1982), 91 Ill. 2d 456, 463, 440 N.E.2d 625, 628; Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790, 794.) We will therefore take the pleaded facts as true and not address defendant’s factual arguments.

Plaintiffs John and Mary Roe, Betty Doe and Carol Boe (hereafter referred to as adoptive parents) separately approached defendant in 1978 and the early 1980’s seeking to adopt a “normal, healthy” child. Defendant placed a child in each family’s home as a foster child with the potential for future adoption. The adoptive parents stated to defendant that they would only choose to adopt a child if (1) all the child needed was lots of love, (2) the child was normal both physically and mentally, (3) defendant would tell them all it knew about their particular child’s background, and (4) they would incur no unusual or extraordinary expense. Defendant, through its agents and employees, made statements to the adoptive parents that their particular child was a normal child who only needed lots of love. Defendant indicated that each child was normal in its physical and mental condition as well as level of development for a child of similar chronological age and that the adoptive parents would incur no unusual or extraordinary medical expense for the child’s care and treatment. Defendant further indicated that it had no information concerning the children’s background.

While making these statements, however, defendant knew that Jane Roe had seen psychiatrists, psychologists and other mental health professionals for violent and uncontrollable behavior as well as intellectual, social and emotional retardation. Defendant knew that Billy Doe had severe instances of abnormal behavior such as smearing feces on the interior walls of past foster homes and had exhibited other uncontrollable behavior in those homes as well. Defendant also knew that Joe Boe displayed destructive behavior in past foster homes such as stomping the family’s dog to death. Defendant further knew that Joe Boe received extensive psychiatric counseling and suffered from emotional and social retardation.

The adoptive parents each relied on the representations of defendant and adopted a child. Since then, each child continued its destructive and violent behavior. One child cut the whiskers off the family cat and flattened his mother’s tires. Another child painted a neighbor’s house and exposed himself to neighbors. The other child had severe episodes of violent behavior requiring the aid of professional counseling. The adoptive parents have incurred extraordinary expenses for treatment of these disturbed children and expect to continue incurring these expenses into the future.

In March 1988, the adoptive parents obtained a court order to review defendant’s file on their children as a result of medical problems. The grant of that order is not appealed here. Upon review of the files, each parent discovered the falsity of defendant’s statements.

The adoptive parents brought suit based on fraud, breach of contract and negligence. They also brought suit for fraud and negligence on behalf of two of the children. The third child, Joe Boe, was institutionalized and no cause is brought on his behalf. On June 16, 1989, the circuit court of Madison County granted defendant’s motion and dismissed the cause with prejudice.

Plaintiffs’ first issue on appeal is whether Illinois recognizes a cause of action for fraud based upon an adoption agency’s intentional misrepresentation of a child’s health and psychological background. They argue that they have alleged each element of a cause of action for fraud and that public policy supports the application of common law fraud to the adoption setting. Defendant responds that since adoption is strictly a creature of statute, this court must only apply statutory law to the case. At the time of the adoptions, defendant had no statutory obligation to disclose such information. They further argue that the recognition of a cause of action for fraud in the adoption setting would force agencies to guarantee that adopted children will mature into happy and healthy children.

The circuit court stated:

“Court finds that Illinois does not recognize a cause of action for malpractice in adoption and grants defendant’s motion pursuant to 111. Civil Practice Act section 2 — 619(a).”

We recognize that cause of action for fraud today.

Recognition of this cause of action is not a dramatic, radical departure from the well-established common law of the State of Illinois. It is rather an extension of the doctrine of common law fraud. This is how the common law traditionally grows; it responds to the needs of the society it serves.

Our research indicates this is a case of first impression in Illinois. Ohio, California and Indiana, however, have recently dealt with similar issues. Michael J. v. County of Los Angeles, Department of Adoptions (1988), 201 Cal. App. 3d 859, 247 Cal. Rptr. 504; Burr v. Board of County Commissioners (1986), 23 Ohio St. 3d 69, 491 N.E.2d 1101; County Department of Public Welfare v. Morningstar (1958), 128 Ind. App. 688,151 N.E.2d 150; see also Annot., 56 A.L.R.4th 357 (1987).

In Burr, the plaintiffs adopted an infant in 1964. At that time, the agency informed the Burrs that the child was the son of an unwed mother who was living with her parents. They were told that the mother was trying to take care of the child and work during the day, that the grandparents were mean to the child, and that the mother was going to Texas to seek better employment and voluntarily surrendered the child for adoption. The agency represented to the Burrs that the child “was a nice big, healthy, baby boy” who was born at a particular hospital. 23 Ohio St. 3d at 70, 491 N.E.2d at 1103.

The child in fact suffered many physical and mental problems. He had a speech impediment, twitched, and had poor motor skills and learning disabilities. His school classified him as “educable, mentally retarded.” Eventually, he was diagnosed as having Huntington’s disease. In 1982, during treatment, the Burrs obtained a court order opening the sealed records concerning the child’s background. They then learned for the first time that the representations made by the agency were false. (23 Ohio St. 3d at 71, 491 N.E.2d at 1103-04.) The natural mother was actually a 31-year-old mental patient at a State hospital, and the father was assumed to be one of the patients. The baby was born at that State mental hospital and not at the city hospital indicated. The mother was diagnosed as having a “mild mental deficiency, idiopathic, with psychotic reactions” and shared the child’s speech impediment and low intellectual level. The “mean” grandparents, trip to Texas and voluntary placement were all false. Before the Burrs adopted him, the child had been in two foster homes. According to the court, seemingly all information about the child, other than his age and sex, was a fabrication. (23 Ohio St. 3d at 71, 491 N.E.2d at 1104.) The Ohio Supreme Court held:

“It would be a travesty of justice and a distortion of the truth to conclude that deceitful placement of this infant, known by appellants to be at risk, was not actionable when the tragic but hidden realities of the child’s infirmities came to light.” 23 Ohio St. 3d at 75, 491 N.E.2d at 1107.

In Michael J. v. County of Los Angeles, Department of Adoptions (1988), 201 Cal. App. 3d 859, 247 Cal. Rptr. 504, the California Court of Appeal recognized a similar cause of action. Here, the child in question had a port-wine stain, a manifestation of Sturge-Weber syndrome, on his upper torso and face. Although the adoptive mother saw the stain, the agency concealed from her the fact that it was a manifestation of the disease. She indicated that had she known, she would not have adopted the child. (201 Cal. App. 3d at 864, 247 Cal. Rptr. at 505.) The court held:

“As keepers of the conscience of the community, we cannot countenance conduct which would allow persons who desire entrance into the emotional realm of parenting to be unprotected from schemes or tactics designed to discharge societal burdens onto the unsuspecting or unwary. As trustees of the child’s destiny the agency was obligated to act with morals greater than those found in a purveyor’s common marketplace.” 201 Cal. App. 3d at 875, 247 Cal. Rptr. at 513.

County Department of Public Welfare v. Morningstar (1958), 128 Ind. App. 688, 151 N.E .2d 150, predates both of the other cases by approximately 30 years. There, the appellate court of Indiana affirmed the trial court order setting aside an adoption based on fraud by the County Department of Public Welfare. The board represented to the adoptive parents that it had rated the child as to its social, moral, spiritual, physical and mental standards and placed it with parents meeting comparable standards. The child, however, was not in good health mentally or physically. The child was mentally retarded, had violent tantrums, and engaged in “serious sex abnormalities.” The board knew this prior to the adoption and yet made false representations to the adoptive parents. In fact, the board knew that the child’s natural father committed incest with the child. The parents relied on the representations of the board to their detriment, and had they known the truth, they would not have adopted the child. The court held that it could not condone such dishonest conduct by a public agency and set aside the adoption. 128 Ind. App. at 689-96, 151 N.E .2d at 152-55.

Other States have also recognized a cause of action for fraud in the adoption setting. In In re Lisa Diane G. (R.I. 1988), 537 A.2d 131, 133, the supreme court of Rhode Island held that the family court has jurisdiction to decide whether to vacate an adoption order based on a claim of fraud or misrepresentation. (537 A.2d at 133.) In Allen v. Allen (1958), 214 Or. 664, 330 P.2d 151, the supreme court of Oregon held the evidence was insufficient in weight or character to support a determination that a decree of adoption was void by reason of fraud. (214 Or. at 672-73, 330 P.2d at 155.) The supreme court of Minnesota held that if a party can demonstrate that an adoption decree was fraudulently obtained, he should be entitled to relief. (In re Welfare of Alie (1975), 304 Minn. 254, 258-59, 230 N.W.2d 574, 577.) The supreme judicial court of Massachusetts held that the probate court may annul an adoption decree based on fraud, even after death. (Tucker v. Fisk (1891), 154 Mass. 574, 28 N.E. 1051; see also McKay v. Kean (1897), 167 Mass. 524, 46 N.E. 120.) The supreme judicial court of Massachusetts later held that if a person dominates his wife to such an extent that it amounts to “undue influence” and he thereby forces her to bring a petition for adoption of his son, he commits a “gross fraud” upon both her and the court. In such a case, the decree of adoption should be set aside (Phillips v. Chase (1909), 203 Mass. 556, 560, 89 N.E. 1049, 1051-52), for “[t]he law will not allow a man to profit by his own wrongdoing.” 203 Mass. at 565, 89 N.E. at 1052.

The Illinois Supreme Court outlined the elements of a cause of action for fraudulent misrepresentation, often referred to as fraud, in Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599. To show a cause of action in fraud, one must show (1) a false statement of material fact, (2) known or believed to be false by the party making it, (3) intent to induce the other party to act, (4) action by the other party in reliance on the truth of the statement, and (5) damage to the other party resulting from such reliance. (79 Ill. 2d at 286, 402 N.E.2d at 601; see also Smith v. Kurtzman (1988), 176 Ill. App. 3d 840, 846, 531 N.E.2d 885, 889; Cotter v. Parrish (1988), 166 Ill. App. 3d 836, 841, 520 N.E.2d 1172, 1175.) The party must be justified in his reliance; he must have a right to rely. Soules, 79 Ill. 2d 282, 402 N.E.2d 599; Smith, 176 Ill. App. 3d 840, 531 N.E.2d 885.

According to the second amended complaint, (1) defendant made various false statements of material fact to plaintiffs. These include statements that: the children were normal; all they needed was lots of love; defendant had no background information about the children; the children would be normal in that they were in normal physical and mental condition and at a normal level of development for someone of the children’s chronological age; and the parents would incur no unusual or extraordinary expense for the care and treatment of the children. The second amended complaint alleges that the statements are false and that (2) defendant knew them to be false when made. Plaintiffs allege that (3) defendant made the statements with intent to deceive and induce them to adopt the children, i.e., act. The complaint further alleges that (4) the parents, relying on these statements, did act and that these statements were material in that had plaintiffs known the truth, they would not have adopted. Finally, the complaint alleges that (5) plaintiffs were damaged as a result of the misrepresentations and fraud. Plaintiffs have alleged the necessary elements of a fraud cause of action.

Defendant argues that adoption is strictly a creature of statute, and, therefore, all proceedings pertaining to adoption are controlled by statute. In determining what duty exists, if any, defendant argues that the court must look only to legislation. At the time of the adoption, Illinois had a statute protecting the confidentiality of adoption records, section 18 of the Adoption Act (Act) (111. Rev. Stat. 1981, ch. 40, par. 1522). According to defendant, disclosure of any such information was against public policy as evidenced by section 18.

It is true that adoptions are creatures of statute. As such, if this were a case dealing with who may adopt a child, who may be adopted, whether the placement complied with the law, or any of a number of other subjects addressed by the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.), all proceedings would be controlled by that Act. This is not such a case, however. Corporations are also creatures of statute. (Ill. Rev. Stat. 1987, ch. 32, par. 1.01 et seq.) The Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 1.01 et seq.) states that a corporation may sue and be sued in its corporate name. (Ill. Rev. Stat. 1987, ch. 32, par. 3.10(b).) Private adoption agencies, and agencies of not-for-profit corporations in particular, are bound by all of the law of the State of Illinois—both statutes and common law. The courts of this State have long held that a corporation may be sued for the common law torts it commits. One need look no further than the negligence actions against such corporations as airlines, railroads, automobile manufacturers and hospitals for examples.

Defendant is also incorrect in its assertion that disclosure of the requested information would have violated public policy evidenced by section 18 of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 1522.) That section has not changed since the 1982 adoption. It has, however, been supplemented by sections 18.1 through 18.6 (Ill. Rev. Stat. 1987, ch. 40, pars. 1522.1 through 1522.6), which require the disclosure of such information. We can see no conflict between the confidentiality requirement and the disclosure amendments, and apparently neither could the legislature.

Defendant cites Petrowsky v. Family Service of Decatur, Inc. (1987), 165 Ill. App. 3d 32, 518 N.E.2d 664, for the proposition that adoption agency malpractice is not a recognized cause of action in Illinois. Petrowsky involved an adoption agency’s alleged shoddy investigation and paper work. The Fourth District Appellate Court found no precedent or policy favoring recognition of the tort of adoption agency malpractice. 165 Ill. App. 3d at 35, 518 N.E.2d at 665-66.

This case is distinguishable. Professional malpractice is a species of negligence, not fraud. However, not every tort committed by a professional rises to the level of malpractice. (See, e.g., Owens v. Manor Health Care Corp. (1987), 159 Ill. App. 3d 684, 512 N.E.2d 820 (nursing home was negligent, but not engaged in a “healing art” with respect to the particular patient when act occurred); Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 509 N.E.2d 702 (defendant committed acts of both negligence and malpractice: malpractice in not properly exercising adequate judgment or skill in supplying the ambulance, negligence in maintaining its vehicles).) If a physician committed fraud in billing a patient, she would be liable for committing fraud, not malpractice. When the Petrowsky court discussed “adoption agency malpractice,” it was discussing negligence in the investigation of the child’s history. That is not the issue in the case at bar.

Defendants fear that recognition of a cause of action for fraud in the adoption setting will force agencies to guarantee that the adopted children will mature into happy and healthy children. In Richard P. v. Vista Del Mar Child Care Service (1980), 106 Cal. App. 3d 860, 165 Cal. Rptr. 370, the California Court of Appeal, noting that the plaintiff alleged no facts which indicated that the agency’s statements were false (106 Cal. App. 3d at 865, 165 Cal. Rptr. at 372-73), expressed a similar fear. (106 Cal. App. 3d at 867, 165 Cal. Rptr. at 374.) A later California Court of Appeal, in Michael J. v. County of Los Angeles, Department of Adoptions (1988), 201 Cal. App. 3d 859, 247 Cal. Rptr. 504, also held that agencies cannot be made guarantors of the future health of a child. Nevertheless, Michael J. recognized a cause of action for fraudulent misrepresentation in the adoption setting in California. (201 Cal. App. 3d at 875, 247 Cal. Rptr. at 513.) As the supreme court of Ohio noted, “[s]uch matters [of the future health] are solely in the hands of a higher authority.” (Burr v. Board of Commissioners (1986), 23 Ohio St. 3d 69, 77-78, 491 N.E.2d 1101, 1109.) We join with these learned courts and require no guarantee of the future health and happiness of the adopted children. To do so would place an unbearable burden upon adoption agencies. We merely require adoption agencies to follow the law. Although at the time of the adoptions there was no statute requiring disclosure, the agency was prohibited from committing fraud.

Defendant argues that such recognition will hinder its efforts to place handicapped children with families. We believe that a policy of truth and straightforward dealing, rather than fraud, will actually help in the placing of handicapped children in appropriate homes. It requires a person of special strength and strong values to adopt a handicapped child. This person will go into the adoption with eyes open, presumably emotionally and financially able to support a handicapped child. These parents will be prepared to accept the children as they are. In addition, if the adoptive parents know of any potential problems with a child, they can see to it that the child receives appropriate treatment as soon as possible. Early detection and treatment may lead to a greater chance of cure or effective treatment. The children deserve the opportunity for early treatment. Here, as in Burr, the adoptive parents spent a great deal of time and money duplicating diagnostic work already accomplished. The parents went to doctors to discover problems already known to the agency. These children could have received proper treatment at a much earlier time.

Defendant further argues that if this court recognizes a cause of action for fraud, adoption agencies will not want to place emotionally or physically handicapped children for fear that an unforeseen problem will arise. As stated above, however, we hold that agencies are not the guarantors of the future health and happiness of adoptive children. Agencies should not fear such placements. Under law, an agency may not make a false statement of material fact it knows or believes to be false. Neither are agencies guarantors of the truthfulness of the natural parent’s statement of background. The agency cannot control the information given by the natural parents. It can only offer the information it has and believes to be true.

Defendant next argues that punitive damages sought in the complaint are inappropriate. We note that the First District Appellate Court in Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 512 N.E.2d 1286, held that punitive damages are only allowed:

“[W]hen a wrongful act is accompanied by aggravated circumstances, including fraud, willfulness, wantonness, or malice. Courts award punitive damages to punish a defendant, teaching him not to repeat his intentional, deliberate and outrageous conduct, and to deter others from similar conduct. [Citation.] Further, the decision to award damages is left to the trier of fact ***.” 159 Ill. App. 3d at 846, 512 N.E.2d at 1293.

Finally, defendant asserts that the second amended complaint is insufficient in that plaintiffs did not plead particular facts. Defendant also asserts that the term “normal, healthy” in the complaint is ambiguous. “A pleader is not required to set out his evidence, but need only plead ultimate facts to be proved.” (Borgsmiller v. Burroughs (1989), 187 Ill. App. 3d 1, 7, 542 N.E.2d 1281, 1286, citing People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1009.) In light of the surrounding circumstances and the relationship between the parties, a “normal, healthy” child is unambiguous. The second amended complaint has been sufficiently pleaded on both points noted above.

The circuit court dismissed the complaint in its entirety, stating that Illinois does not recognize a cause of action for malpractice in adoption. The circuit court was most likely relying on Petrowsky, cited by defendant for this proposition. In fact, the Fourth District Appellate Court remanded two counts but declined to impose an additional contractual duty to investigate the child’s paternity. (Petrowsky, 165 Ill. App. 3d at 38, 518 N.E.2d at 668.) By our decision today, we do not impose such a duty either.

NEGLIGENCE

Plaintiffs’ next issue on appeal is whether an adoption agency breaches a duty of care when it fails to disclose necessary medical and psychological information to adoptive parents. Plaintiffs specifically argue that the adoption agency-adoptive parent relationship of trust and confidence is fiduciary in nature and therefore requires good faith and complete disclosure. Defendants argue that Illinois does not recognize such a cause of action.

Illinois has long recognized a cause of action for negligent misrepresentation. The elements of the negligent misrepresentation cause of action include a duty owed by defendant to plaintiffs, a breach of that duty, and injury proximately resulting from such breach. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 163, 510 N.E.2d 409, 415; Lyons v. Christ Episcopal Church (1979), 71 Ill. App. 3d 257, 259, 389 N.E.2d 623, 625.) The duty owed in a negligent misrepresentation situation is exactly the same as that owed in a fraudulent misrepresentation situation. (Zimmerman, 156 Ill. App. 3d at 163, 510 N.E.2d at 415.) In addition, it is entirely appropriate for a plaintiff to allege counts of both intentional and negligent misrepresentation. (Tan v. Boyke (1987), 156 Ill. App. 3d 49, 508 N.E.2d 390.) As Zimmerman noted, the misrepresentations may result from failing to provide adequate information when there is a duty to do so, as well as providing information which is false.

Defendant cites Petrowsky v. Family Service of Decatur, Inc. (1987), 165 Ill. App. 3d 32, 518 N.E.2d 664, for the proposition that adoption agency malpractice is not a recognized cause of action in the State of Illinois. Petrowsky involved an adoption agency’s alleged shoddy investigation and paperwork. The Fourth District Appellate Court found no precedent or policy favoring recognition of the tort of adoption agency malpractice. (165 Ill. App. 3d at 35, 518 N.E.2d at 665-66.) The earlier case of Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 445 N.E.2d 6, also a fourth district opinion, declined to recognize the tort of social worker malpractice, noting that the court considered there was no precedent or policy in the State of Illinois compelling recognition of that cause of action. The court in Petrowsky cited Martino with approval and declined to recognize a tort action.

Subsequent to the Martino decision, but prior to Petrowsky, the Second District Appellate Court in Horak v. Biris (1985), 130 Ill. App. 3d 140, 474 N.E.2d 13 (see Annot., 58 A.L.R.4th 965 (1987)), considered and declined to follow Martino and specifically recognized a cause of action for social worker malpractice. The Horak court extensively discussed Martino as follows:

“In dismissing the counts in question, the circuit court noted that although it was bound by the Fourth District’s opinion in Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 445 N.E.2d 6 (see People v. Collings (1981), 95 Ill. App. 3d 325, 329, 420 N.E.2d 203), it disagreed with the reasoning of that case. We have reviewed the Martino decision and agree with the circuit court that the tort of social worker malpractice should be recognized under the facts presented here.
In Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 445 N.E.2d 6, the plaintiff, Janet Martino, filed a five-count complaint against the Family Service Agency of Adams County (Family Service) and Jane Balke, the chief executive officer of Family Service, essentially alleging that plaintiff and her husband sought and received marital counseling services from Family Service, that defendant Balke was assigned to and did counsel plaintiff, and that during this period Balke: (a) used against plaintiff’s interest information obtained by Balke from plaintiff during counseling, (b) revealed those confidences to others, (c) fell in love with plaintiff’s husband, pursued him, and engaged in ‘intimate relations’ with him, and (d) after developing this conflict of interest failed to either inform plaintiff of the conflict or terminate her counseling relationship with plaintiff. (112 Ill. App. 3d 593, 594-95, 445 N.E.2d 6.) Respecting her malpractice claim, Mrs. Martino argued that the situation was analogous to the medical profession, where a breach of duty has been held to arise from a psychiatrist’s having intercourse with his patient as part of her prescribed therapy (Roy v. Hartogs (1976), 85 Misc. 2d 891, 381 N.Y.S.2d 587), and a hospital’s negligent failure to abide by licensing regulations (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253). Plaintiff also urged the court to consider the code of ethics adopted by the National Association of Social Workers, which would have been violated by defendant Balke’s conduct.
While noting that there was an inference arising from numerous authorities that the tort of malpractice is applicable to one engaged in the profession of social work, the Martino court nevertheless was unwilling to recognize such a tort, ‘at least when it arises from conduct not intended to harm.’ (112 Ill. App. 3d 593, 597, 445 N.E.2d 6.) The court stated:
‘Although the conduct alleged here was clearly improper, determination of the propriety of conduct of social workers and the relationship it might have to injury suffered by clients generally would be most difficult to ascertain. The damages a client might receive from the improper practice of social work are unlikely to be pecuniary in nature and extremely unlikely to be physical in nature.’ (112 Ill. App. 3d 593, 597, 445 N.E.2d 6.)
The court then concluded that in the absence of Illinois precedence there was ‘no compelling policy reason to initiate the recognition of the tort of social worker malpractice for unintended “hurts” most of which we deem likely to be “slight hurts which are the price of a complex society.” ’ 112 Ill. App. 3d 593, 597, 445 N.E.2d 6, quoting Knierim v. Izzo (1961), 22 Ill. 2d 73, 85, 174 N.E.2d 157, 164.
Contrary to the reasoning set forth in the Martino decision, we believe that the facts alleged and admitted in the instant case are sufficient to establish a cause of action for social worker malpractice. ‘Malpractice’ is defined in Black’s Law Dictionary 1111 (rev. 4th ed. 1968), as ‘[a]ny professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.’ The elements necessary to establish a malpractice action are the same elements required of any negligence case. (See, e.g., Borowski v. Von Solbrig (1973), 14 Ill. App. 3d 672, 677, 303 N.E.2d 146.) Thus, plaintiff must plead: (1) that defendant owed him a duty, (2) that defendant failed to perform or breached that duty, (3) that the breach was the proximate cause of plaintiff’s injuries, and (4) damages. (14 Ill. App. 3d 672, 677, 303 N.E.2d 146.) Whether a duty exists is a question of law to be determined by the court, but whether the duty is properly performed by defendant is a fact question to be decided by the trier of fact. (Johnson v. Hoover Water Well Service [Inc.] (1982), 108 Ill. App. 3d 994, 1003, 439 N.E.2d 1284.) A person’s duty to act with reasonable care does not extend to the world at large, but, rather, is defined and limited by various considerations such as the relation between the parties, the gravity and foreseeability of the harm, the utility of the chailenged conduct and the burden of guarding against the injury. Orrico v. Beverly Bank (1982), 109 Ill. App. 3d 102, 105-06, 440 N.E.2d 253.
We believe the facts alleged in the instant case, if proved, sufficiently establish a duty owed by defendant Biris to plaintiff Horak and a subsequent breach of that duty by defendant. It was alleged that plaintiff went to defendant’s office, at defendant’s request, to receive counseling and guidance in his personal and marital relationships, ostensibly for the purpose of improving those relationships. Defendant held himself out as a social worker licensed by the State to render such assistance and insight. His license placed him in a position of trust, the violation of which would constitute a breach of the fiduciary relationship. Such a breach has been held on several occasions to be an actionable and independent tort. (See Allabastro v. Cummins (1980), 90 Ill. App. 3d 394, 399, 413 N.E.2d 86; Glass v. Burkett (1978), 64 Ill. App. 3d 676, 381 N.E.2d 821; but see Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 596, 445 N.E.2d 6, suggesting that a breach of fiduciary relationship is not an actionable tort.) Further, we think that the very nature of the therapist-patient relationship, which was alleged and admitted here, gives rise to a clear duty on the therapist’s part to engage only in activity or conduct which is calculated to improve the patient’s mental or emotional well-being, and to refrain from any activity or conduct which carries with it a foreseeable and unreasonable risk of mental or emotional harm to the patient.” Horak v. Biris, 130 Ill. App. 3d at 143-45, 474 N.E.2d at 16-17.

Our supreme court in Corgan v. Muehling (1991), 143 Ill. 2d 296, 574 N.E.2d 602, found that the plaintiff stated a cause of action for negligence arising from a psychologist’s engaging in sexual relations with a patient. The court in Corgan cited Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387, which stated:

“A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Teter v. Clemens (1986), 112 Ill. 2d 252, 256[, 492 N.E.2d 1340]; Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162[, 456 N.E.2d 116].) The determination of whether a duty exists — whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff — is an issue of law to be determined by the court. Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 440[, 484 N.E.2d 1088]; Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18-19[, 440 N.E.2d 96]; Cunis v. Brennan (1974), 56 Ill. 2d 372[, 308 N.E.2d 617].
This court has held that ‘the existence of a legal duty is not to be bottomed on the factor of foreseeability alone,’ but on whether the harm reasonably was foreseeable. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375[, 308 N.E.2d 617, 618] (the defendant municipality owed no duty to the plaintiff, who was injured when he was thrown 30 feet upon the collision with a third person’s automobile and impaled his leg on a drain pipe left in the defendant’s public parkway); see also Feldscher v. E & B, Inc. (1983), 95 Ill. 2d 360, 368-69[, 447 N.E.2d 1331]; Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 342-43, 162 N.E. 99, 100; 3 F. Harper, F. James & O. Gray, The Law of Torts sec. 18.2, at 664 (2d ed. 1986).) This standard of reasonable foreseeability governs the foreseeability of injury from the defendant’s conduct to the plaintiff, who would be the passenger here in the patient’s car.
Although the reasonable foreseeability of injury is a key concern in determining whether a duty exists, it is not the only consideration. The question of duty in a negligence action should take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant. (Lance v. Senior (1967), 36 Ill. 2d 516, 518[, 224 N.E.2d 231, 233]; Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 99[, 306 N.E.2d 39, 41-42]; see also Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 388-89[, 493 N.E.2d 1022, 1026-27]; Resag v. Washington National Insurance Co. (1980), 90 Ill. App. 3d 971, 974[, 414 N.E.2d 107, 109]; Van Skike v. Zussman (1974), 22 Ill. App. 3d 1039, 1042[, 318 N.E.2d 244].)” (117 Ill. 2d at 525-26, 513 N.E.2d at 395-96.)

The court then cited Horak favorably as follows:

“The essential question is whether the plaintiff properly alleged negligence on the part of the defendant. This court has held:
‘A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. [Citations.] The determination of whether a duty exists—whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff—is an issue of law to be determined by the court.’ (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387.)
In determining whether to impose a duty upon a defendant, a court will look at various policy considerations, such as the likelihood of harm, the gravity of the injury, the burden of guarding against the injury, and the relationship between the parties. See Horak v. Biris (1985), 130 Ill. App. 3d 140, 145[, 474 N.E.2d 13].” Corgan v. Muehling, 143 Ill. 2d at 306, 574 N.E.2d at 493.

The First District Appellate Court in Wogelius v. Dallas (1987), 152 Ill. App. 3d 614, 504 N.E.2d 791, noted Horak recognized a cause of action for social worker malpractice. The Wogelius court stated that to establish this action, a plaintiff must plead a duty owed to plaintiff by defendant, its breach as the proximate cause of plaintiff’s injuries, and damages. 152 Ill. App. 3d at 622, 504 N.E.2d at 796.

Neither of the parties has cited to this court a fifth district case determining whether we should follow the Martino-Petrowsky line of reasoning or that enunciated in Horak. Our court in Midamerica Trust Co. v. Moffatt (1987), 158 Ill. App. 3d 372, 511 N.E.2d 964, considered an action brought against a caseworker with the Illinois Department of Children and Family Services seeking damages for injuries sustained by minor children while under the supervision of the Department. Moffatt cited both Martino and Horak in stating: “We note that the existence of a social worker’s duty to his or her client is not settled in this State.” (158 Ill. App. 3d at 378, 511 N.E.2d at 968.) Analyzing Horak, we decided that it was inapplicable to the situation in Moffatt.

After analyzing the approach of the fourth district in Martino and Petrowsky and comparing it with the analysis in Horak, and Horak as cited and applied by our supreme court in Corgan, we choose to follow the position of the Second District Appellate Court in Horak and recognize that one can allege a cause of action grounded in negligence against an adoption agency. We determine that the negligence allegations as pleaded in this cause are generic to negligence and are sufficient to state a cause of action. We specifically disagree with the Petrowsky court in determining that there is no compelling authority or public policy of Illinois which would lead to a recognition of the tort of adoption agency negligence. The reasoning of the court in Horak is applicable to the instant situation. We find specifically that a duty was owed to plaintiffs by defendant, in this particular instance the duty of an honest and complete response to plaintiffs’ specific request concerning the characteristics of the potentially adoptable child; that defendant breached that duty in its failure to supply plaintiffs with the information defendant possessed and had available; and that as a direct and proximate result of that breach, damages were sustained as alleged by plaintiffs.

We also hold today that, in light of the criteria for establishing duty that our supreme court stated in Kirk, the question of duty should be resolved affirmatively. This result simply applies accepted tort principles to the adopting parent-adoption agency relationship. In the instant case we conclude that the harm was reasonably foreseeable in that one can reasonably foresee adverse consequences to placing an infant with medical and psychological problems, especially when the adopting parents are not forewarned about the existence of those problems. Given the severity of the problems in this case and the reasonably foreseeable problems that a sick or disturbed child can cause in a family unit, emotionally, physically and financially, we determine that the instant case meets the Kirk criteria, especially when taking into account the likelihood of injury. The magnitude of the burden on defendant of guarding against the situation alleged is slight; it involves merely an honest and complete answer to the question posed by plaintiffs. Since defendant adoption agency is the only one of these parties with the information concerning the infants’ physical and psychological health, the burden can be placed on no other party. The consequence of placing that burden on defendant is defendant discloses what information it has in response to an adopting parent’s inquiry, so that adoptive parents assume the awesome responsibility of raising a child with their eyes wide open. We further view the consequences of placing the burden of disclosure upon defendant when, as in this situation, the adoptive parents ask for this information, to include a party’s being answerable for the consequences of their own acts or omissions, a principle basic to our system of justice. Since informed adults would be assuming the responsibility of raising an adopted child, a favorable consequence of imposing this burden would be the encouragement, preservation and strengthening of basic family units in our society, a policy of the State of Illinois which is enunciated in the Illinois Marriage and Dissolution of Marriage Act ( Ill. Rev. Stat. 1989, ch. 40, par. 102(2)).

Given the above-discussed factors, we today recognize the tort of adoption agency negligence and hold that plaintiffs in this cause have adequately pleaded a cause of action sounding in that tort.

BREACH OF CONTRACT

Plaintiffs’ final issue on appeal is whether they have sufficiently alleged a cause of action for breach of an oral contract. Plaintiffs specifically argue that as they have alleged the necessary elements of a cause of action, this court must decide whether to accord the same remedies to the adoption agency-adoptive parents contract as those accorded common consumer or commercial contracts. Defendant responds that Illinois does not recognize a breach of contract action in the adoption setting, and plaintiffs have failed to allege the necessary elements of a breach of contract action.

As the First District Appellate Court stated in Latex Glove Co. v. Gruen (1986), 146 Ill. App. 3d 868, 497 N.E.2d 466:

“A complaint which sets forth a cause of action for breach of contract must allege facts sufficient to indicate offer, acceptance and consideration. [Citation.] In addition to the existence of a contract, the complaint must allege plaintiff’s performance of all contractual conditions, the facts of defendant’s alleged breach, and the existence of damages as a consequence thereof.” 146 Ill. App. 3d at 873, 497 N.E.2d at 469.

We have extensively reviewed the allegations constituting plaintiffs’ breach of contract counts (counts III, VIII and XII). While these counts are labeled as contractual, we conclude that the actions they allege and the relief prayed for essentially sound in tort rather than contract. The majority of the allegations are tortious in nature, and the allegations and relief prayed for fail to specify consequential damages from the breach of contract. Without reaching the issue defendant urges, whether one can file a breach of contract action in this adoption setting, we conclude that plaintiffs have not pleaded a cause of action for breach of contract.

THE CHILDREN’S CAUSES OF ACTION

In essence, all four counts on behalf of the adopted children allege that had defendant not made fraudulent misrepresentations, their problems would have been dealt with by defendant rather than their respective adoptive parents, and that the adopted children have thereby suffered injury. After consideration of these counts, including taking the allegations as well-pleaded and therefore true, we determine that they fail to state a cause of action accruing to these named plaintiffs, the children, with identifiable injury in either fraud or negligence.

On the basis stated above, we therefore affirm the circuit court of Madison County’s dismissal of the following counts: counts III, VIII and XII (contract), and counts II, V, VII and X (counts filed on behalf of the adopted children). We reverse the order of the circuit court of Madison County dismissing the following counts and remand for further proceedings consistent with this opinion: counts I, VI and XI (fraud); counts IV, IX and XIII (negligence).

Affirmed in part, reversed and remanded in part.

LEWIS, J., concurs.

JUSTICE HOWERTON,

concurring in part and dissenting in part:

I agree with the majority that there is a cause of action for fraud, in this case.

I must dissent, however, from the majority’s opinion that there is a cause of action for negligence in this case. I believe that there is no tort for adoption agency malpractice. Petrowsky v. Family Service of Decatur, Inc. (1987), 165 Ill. App. 3d 32, 518 N.E.2d 664.

I further do not believe that there can be a cause of action for breach of contract.