text:
    Marcus LEDEAUX, a Disabled Person, BY His Co-Guardians and Conservators, Lisa LEDEAUX, Mark Ledeaux and Lyndra Ledeaux; Elizabeth Bryan, a Minor, by Her Father and Next Friend George Bryan ; Hunter Constant; Tanya Cortez; Sarina Finzer, a Minor, by Her Father and Next Friend Harlan Finzer; John Gall ; Ray Solarez; Gabriel Ernesto Trevino; Diana Hill; Frank Martinez Valdez III; Jennifer Bernard ; Rose Lyko; Enrique Daniel Marin Arballo; Jason Coar; Mitchell Smith' Monica Elias; Eduardo Romero, a Minor; by His Father and Next Friend Hector Romero ; Meg Fernandez; Jeremy Hardison, a Minor, by His Father and Next Friend Eric Hardison ; Serenity Miller, a Minor, by Her Mother and Next Friend Misty Everts; Robert Evan Torrez, a Minor, by His Mother and Next Friend Janan Adams; Elizabeth Mensing ; Lisa Ledeaux; Mark Ledeaux; George Bryan ; Cynthia Bryan ; Brandon Constant; Wendy Constant; Leilani Cortez; Joe Cortez; Harlan Finzer; Sarah Finzer; Mary Mark ; Rosa Marin-Arballo; Henry Arballo; Hector Romero ; Alicia Romero ; Josie Solarez; Armando Fernandez; Shachico Fernandez; Eric Hardison ; Cheryl Hardison; Vincent Miller ; Misty Everts; Robert Torrez; Evelyn Torrez; Steven Adams; Janan Adams; Angela Mensing; Plaintiffs, v. MOTOROLA INCORPORATED, Defendant-Appellee.
    (Sarina Finzer, a Minor, by Her Father and Next Friend, Harlan Finzer; Harlan Finzer; Sarah Finzer; Jeremy Hardison, a minor, by His Father and Next Friend, Eric Hardison ; Eric Hardison ; and Cheryl Hardison; Plaintiffs-Appellants)
    No. 1-16-1345
    Appellate Court of Illinois, First District, SECOND DIVISION.
    February 20, 2018
    Cooney & Conway, of Chicago (Kevin J. Conway and Michael J. Lubeck, of counsel), and Law Offices of Michael T. Reagan, of Ottawa (Michael T. Reagan, of counsel), for appellants.
    Mayer Brown LLP, of Chicago (Michele Odorizzi and Daniel L. Ring, of counsel), for appellee.
   JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs Sarina Finzer and Jeremy Hardison were born with severe birth defects that they asserted were sustained in utero and caused by their fathers' exposure to toxic chemical products and substances during their employment at Motorola Inc.'s semiconductor manufacturing facilities in Arizona and Texas, respectively. Seeking damages for their birth defects, Sarina through her parents, Harlan and Sarah Finzer, and Jeremy through his parents, Eric and Cheryl Hardison, sued Motorola, Inc. for (1) negligence, (2) strict liability, (3) breach of an assumed duty, (4) willful and wanton misconduct, and (5) loss of child consortium relating to the children's birth defects and impairment to the parent-child relationship. Finding that plaintiffs could prove no set of facts that would entitle them to relief, the trial court dismissed plaintiffs' complaint pursuant to section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2010) ).

¶ 2 Plaintiffs appeal the dismissal, asserting that the trial court erred in finding that (1) the exclusive remedy provision of the respective state workers' compensation laws barred their claims, (2) no duty was owed to a not-yet conceived child, and (3) proximate cause could not be established as a matter of law, given that the fathers did not sustain an injury. Plaintiffs also claim that the trial court erred in dismissing the willful and wanton misconduct count and the Finzers' loss of child consortium count, which depended on pleading a viable cause of action for negligence. Construing the allegations in the complaint in the light most favorable to plaintiffs, we reverse the trial court's dismissal of plaintiffs' complaint. We find that plaintiffs properly pled a cause of action for negligence and willful and wanton misconduct under Arizona and Texas law and loss of child consortium under Arizona law, and we remand for further proceedings consistent with this opinion.

¶ 3 BACKGROUND

¶ 4 Plaintiffs' case is one of eight separate personal injury cases filed against Motorola, relating to severe birth defects in children of former Motorola employees who were exposed to toxic chemical products and substances that Motorola provided or approved of while working in semiconductor manufacturing "clean rooms," where semiconductor wafers, microchips, and boards were manufactured. A "clean room" is a controlled environment used for manufacturing high technology products. Lucent Technologies, Inc. v. Mid-West Electronics, Inc. , 49 S.W.3d 236, 239 n.2 (Mo. Ct. App. 2001). Clean rooms are designed to prevent airborne contaminants from contacting semiconductor components during the manufacturing process. Motorola Solutions, Inc. v. Zurich Insurance Co. , 2015 IL App (1st) 131529, ¶ 6, 393 Ill.Dec. 173, 33 N.E.3d 917.

¶ 5 Motorola is headquartered in Illinois and has semiconductor manufacturing plants in Phoenix, Mesa, Scottsdale, Tempe, and Chandler, Arizona, as well as a facility in Austin, Texas.

¶ 6 Sarina was born on April 5, 1999. From approximately 1997 until 1998, her father Harlan worked at Motorola's semiconductor manufacturing plant in Mesa, Arizona. Jeremy was born on April 4, 2000. Jeremy's father Eric worked at Motorola's semiconductor manufacturing plant in Austin, Texas, from 1991 to 2001. Both Sarina and Jeremy were born with birth defects : Sarina has a clubfoot, and Jeremy has an underdeveloped jaw. Both alleged these birth defects resulted from their fathers' repeated and prolonged exposure to toxic chemicals in Motorola's clean rooms.

¶ 7 On July 23, 2010, plaintiffs filed a combined complaint against Motorola, asserting counts for (1) negligence, (2) abnormally dangerous and ultra hazardous activity, (3) willful and wanton misconduct, and (4) loss of child consortium. In the complaint, plaintiffs alleged that the fathers sustained injuries to their reproductive systems as a result of their exposure to toxic chemicals, which in turn caused minor plaintiffs' injuries, i.e. , their severe birth defects. Plaintiffs amended their complaint a month later to include an additional plaintiff.

¶ 8 After plaintiffs filed their amended complaint, a Delaware trial court decided Peters v. Texas Instruments Inc. , C.A. No. 10-C-06-043 JRJ, 2011 WL 4686518 (Del. Super. Ct. Sept. 30, 2011), aff'd by memorandum , 58 A.3d 414 (Del. 2013). Peters is an unpublished Delaware state court decision that applied Texas substantive law. Id. The minor plaintiff in Peters brought a similar negligence action, asserting that his father's exposure to toxic chemicals in the workplace injured his father's reproductive system (his sperm) leading to the minor's birth defects. Id. at *1. The employer defendant argued that the child's negligence claim was barred by the exclusive remedy provision of Texas workers' compensation law because the plaintiff alleged an injury to his father's reproductive system, and the child's injury was entirely dependent on the injury to his father. Id . at *3. The court dismissed the action finding that the exclusive remedy provision barred the child's negligence claim because the validity of his claim depended on the validity of his father's claim, and his father's claim was subject to the exclusive remedy provided under workers' compensation laws. Id . at *6.

¶ 9 After filing their second amended complaint and evidently attempting to plead around Peters , plaintiffs filed a third amended complaint, which no longer alleged an injury to the fathers' reproductive systems. In fact, plaintiffs pled that the fathers did not sustain "a direct injury or cause of action as a result of their exposure to some or all of the aforesaid chemical products and substances, but make[ ] only a claim for loss of consortium which is wholly derivative of the direct cause of action of his/her injured child."

¶ 10 In response to plaintiffs' third amended complaint, Motorola moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2010) ). Motorola asserted, in part, that despite alleging no direct injury to their fathers, the children's injuries were nonetheless derivative of a work-related injury to their fathers' reproductive systems, and a claim under the workers' compensation law was the children's exclusive remedy. To the extent that minor plaintiffs did not allege an injury to their fathers, Motorola asserted that they could not establish proximate cause because the children were never present in the clean rooms and, thus, were never directly exposed to the toxic chemicals. Motorola's position was that the complaint failed to establish causation because although plaintiffs asserted that the minors were injured as a result of their fathers' workplace exposure, they pled no injury to their fathers and failed to explain how the exposure was the proximate cause of the children's injury absent an injury to their fathers. Motorola further alleged that because the exposure to the toxic chemicals allegedly occurred preconception, plaintiffs were asserting a preconception tort, which is not recognized under either Arizona or Texas law.

¶ 11 After Motorola filed its motion, plaintiffs filed a fourth amended complaint, which pled counts for (1) negligence, (2) willful and wanton misconduct, (3) strict liability, (4) breach of an assumed duty, and (5) loss of child consortium. In the fourth amended complaint, plaintiffs alleged that Motorola had (1) a duty of care to its employees and their offspring to provide a safe workplace and (2) a duty to warn its employees of the potential for injury to their offspring, but failed to do so and, instead, provided its employees with misleading information regarding the safety of working in clean rooms. Minor plaintiffs' causation theory was that the toxic chemicals entered their fathers' reproductive systems and temporarily remained there leading to either (1) some temporary alteration of the sperm or (2) the sperm carrying the toxic chemicals to the mother's egg, which, in turn, resulted in their birth defects. Other than the transitory effect on their fathers' reproductive system, minor plaintiffs asserted that the chemical exposure did not otherwise result in any diagnosable or permanent injury to their fathers. Motorola stood on its motion to dismiss in response to the fourth amended complaint.

¶ 12 After a hearing on Motorola's motion to dismiss, the trial court granted the dismissal with prejudice, finding that there were no well-pled facts that supported any of plaintiffs' causes of action. The trial court denied plaintiffs' oral motion to amend on the basis that no amendment could change the result. The trial court's order included section 304(a) language finding no just reason to delay enforcement or appeal. Plaintiffs timely appeal the dismissal of their complaint.

¶ 13 ANALYSIS

¶ 14 Plaintiffs appeal the dismissal of the counts of their complaint for (1) negligence, (2) willful and wanton misconduct under Arizona and Texas law, and (3) loss of child consortium under Arizona law. The parties agree that we are to apply Arizona and Texas law to the substantive issues, but that Illinois law governs procedural issues, such as whether plaintiffs satisfied pleading requirements sufficient to withstand a section 2-615 motion to dismiss. In Illinois, a section 2-615 dismissal motion challenges the legal sufficiency of the complaint based on defects apparent on the face of the pleading. Simpkins v. CSX Transportation, Inc ., 2012 IL 110662, ¶ 13, 358 Ill.Dec. 613, 965 N.E.2d 1092. The relevant inquiry on a section 2-615 motion to dismiss is whether the allegations, viewed in the light most favorable to the non-moving party, are sufficient to state a claim. Sheffler v. Commonwealth Edison Co. , 2011 IL 110166, ¶ 61, 353 Ill.Dec. 299, 955 N.E.2d 1110. A court must accept all well-pleaded facts in the complaint, as well as any reasonable inferences that flow from those facts, as true. Cochran v. Securitas Security Services USA, Inc. , 2017 IL 121200, ¶ 11, 419 Ill.Dec. 374, 93 N.E.3d 493. A trial court should not dismiss a cause of action under section 2-615 unless it is clear from the pleadings that no set of facts can be proven that would entitle the plaintiff to recover. Id. We review the trial court's order dismissing a complaint under section 2-615de novo . Schweihs v. Chase Home Finance, LLC , 2016 IL 120041, ¶ 27, 412 Ill.Dec. 882, 77 N.E.3d 50 ; Kean v. Wal-Mart Stores, Inc. , 235 Ill. 2d 351, 361, 336 Ill.Dec. 1, 919 N.E.2d 926 (2009).

¶ 15 A. Plaintiffs' Negligence Claim Against Motorola

¶ 16 Plaintiffs first challenge the trial court's dismissal of their negligence claim under section 2-615 for failure to state a claim based on the trial court's conclusion that (1) the exclusive remedy provisions of the Arizona and Texas workers' compensation laws barred their claims, (2) Arizona and Texas do not recognize preconception torts, and (3) causation could not be established.

¶ 17 1. The Exclusive Remedy Provisions of Arizona and Texas Workers' Compensation Statutes

¶ 18 As a threshold issue, Motorola argued in the trial court that the exclusive remedy provisions of the Arizona and Texas workers' compensation laws barred minor plaintiffs' claims because their injuries necessarily flowed from and depended on their fathers' work-related injuries, given that they were not directly exposed to the toxic chemicals in the clean rooms either in utero or through their physical presence. Minor plaintiffs countered that because they suffered their own personal injuries, those injuries were not derivative of any workplace injury to their fathers and the trial court erred in finding that the exclusive remedy provisions barred their negligence claims.

¶ 19 Under Arizona and Texas law, workers' compensation benefits are the exclusive remedy for a work-related injury sustained by an employee. See Tex. Labor Code Ann. § 408.001 (West 2017) ("Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee."); Ariz. Rev. Stat. Ann. § 23-1022(A) (2017) ("The right to recover compensation * * * for injuries sustained by an employee or for the death of an employee is the exclusive remedy against the employer or any co-employee acting in the scope of his employment * * *.")

¶ 20 Derivative claims, for purposes of work-related injuries, are those that would not exist in the absence of the injury to the employee. Thus, the exclusive remedy provisions of state workers' compensations laws apply to loss of consortium or wrongful death claims, so that such claims cannot be pursued outside the workers' compensation system, but must proceed in tandem with the employee's work-related injury claim. See Rodriguez v. Naylor Industries, Inc. , 763 S.W.2d 411, 412 (Tex. 1989) (workers' compensation law barred employee's wife's claim for loss of consortium); Mardian Construction Co. v. Superior Court , 157 Ariz. 103, 754 P.2d 1378, 1381 (App. 1988) (workers' compensation law barred injured spouse's action for loss of consortium in a wrongful death case).

¶ 21 In contrast, the minor plaintiffs' birth defects are injuries personal to them that exist apart from and regardless of a work-related injury sustained by their parent. To illustrate the distinction, assume exposure to the toxic chemicals used by Motorola employees was known by Motorola to cause development of blood clots. An exposed employee-parent is driving his son to school when a blood clot, previously undiagnosed, reaches his brain. The ensuing aneurysm causes the parent to lose consciousness, and an accident ensues in which the child is injured. In this scenario, the child's injuries "derive" from his father's work-related injury in the sense that the blood clot produced by chemical exposure is the cause-in-fact of the accident. But the child's ability to pursue recovery for his own injuries caused by Motorola's negligence is independent of his father's work-related injury and would therefore not be precluded by the exclusive remedy provisions of workers' compensation law.

¶ 22 Motorola does not cite to any Arizona or Texas workers' compensation case negating an employer's liability to a nonemployee injured as a result of the employer's alleged negligence, but this issue has been addressed in numerous other jurisdictions. See Meyer v. Burger King Corp. , 144 Wash.2d 160, 26 P.3d 925, 930 (2001) (exclusive remedy provision did not bar child's claim relating to injuries she sustained in utero when mother slipped and fell at work because third parties are not precluded from bringing a claim for injuries suffered due to the employer's negligence); Omori v. Jowa Hawai'i Co. , 91 Hawai'i 157, 981 P.2d 714, 715, 718 (App. 1999) (action seeking damages for injuries a child sustained as a result of premature birth resulting from his mother's employer's negligence not barred by the exclusive remedy provision because his injuries did not arise out of and in the course of his employment); Snyder v. Michael's Stores, Inc. , 16 Cal.4th 991, 68 Cal.Rptr.2d 476, 945 P.2d 781, 782, 786 (1997) (exclusive remedy provision did not bar child's injuries sustained in utero resulting from her mother breathing carbon monoxide gas in toxic amounts at her workplace because the child did not claim any damages for an injury to her mother, and recovery for her own injuries was not legally dependent on any injury sustained by her mother); Hitachi Chemical Electro-Products, Inc. v. Gurley , 219 Ga.App. 675, 466 S.E.2d 867, 869 (1995) (exclusive remedy provision did not bar children's claims that were "entirely separate and distinct from any claim which could possibly be asserted by their parents for work-related injuries," and the children were "third-party plaintiffs whose claims are not contemplated by the Workers' Compensation Act and whose injuries the act was not designed to protect"); Pizza Hut of America, Inc. v. Keefe , 900 P.2d 97, 99, 101 (Colo. 1995) (exclusive remedy provision did not bar an action brought on behalf of a child born prematurely and who later died due to her mother's employer requiring her to perform tasks in violation of medical work restrictions because "the child's right of action arises out of and on account of her own personal injuries, and not any personal injury suffered by the mother"); Jackson v. Tastykake, Inc. , 437 Pa.Super. 34, 648 A.2d 1214, 1216 (1994) (the exclusive remedy provision did not bar a wrongful death action on behalf of a child born when her mother went into premature labor while at work because the claim was for injuries to the child and not the employee-mother); Thompson v. Pizza Hut of America, Inc. , 767 F.Supp. 916, 917-18 (N.D. Ill. 1991) (child's action for his personal injuries sustained in utero resulting from his mother's exposure to carbon monoxide at her workplace not barred by the exclusive remedy provision because the child's claim was "based on his own injuries which occurred while in utero " (emphasis in original) ).

¶ 23 These cases consistently hold that the respective exclusive remedy provisions of the state's workers' compensation laws do not bar a cause of action brought by an employee's offspring based on injuries he or she sustained independent of any injuries sustained by the employee-mother. In the absence of controlling decisions from Arizona and Texas, we believe that based on the language of the states' workers' compensation statutes, Arizona and Texas courts would adopt the principle that their respective exclusive remedy provisions do not bar family members who are separately and independently injured by the employer's negligence from bringing a claim.

¶ 24 Motorola, however, differentiates between an injury to the child of a male employee and a female employee, asserting that because the child of a male employee can never be in utero and directly exposed to toxic chemicals in the workplace, the injury to a male employee's child must necessarily be dependent upon an injury to the employee-father. Motorola argues that such an injury is foreclosed by the exclusive remedy bar or, if there was no detectable injury to the father, the child's claim must fail due to the lack of proximate cause. In other words, for purposes of this appeal, Motorola is willing to concede the viability of a claim for birth defects suffered by the child of a female employee exposed to toxic chemicals in the workplace, while denying the viability of the same claim by a child of a male employee exposed to the same chemicals.

¶ 25 No case from Arizona or Texas recognizes the distinction advanced by Motorola. Plaintiffs' theory is that a child is exposed in utero to toxic chemicals through the mother's bloodstream. Whether the chemicals enter the mother's bloodstream as a result of her own workplace exposure or through her husband's workplace exposure seems to us a factual distinction without a legal difference. If, as plaintiffs allege, Motorola could foresee the detrimental effects of workplace exposure to toxic chemicals on the children of female employees, it stands to reason it could foresee that a male employee's impaired sperm could produce the same result. Thus, because, in either scenario, the child's injury is separate and independent from his or her parent's injury, if any, the exclusive remedy provisions of the workers' compensation laws of Arizona and Texas do not bar the claims.

¶ 26 Motorola relies on Peters , 2011 WL 4686518, which, as discussed, found that the exclusive remedy provision of Texas workers' compensation law barred the negligence claim of a male-employee's child against his father's employer relating to his father's exposure to toxins at the workplace. Apart from having no precedential value here, Peters is distinguishable because, unlike here, the plaintiff expressly pled an injury to the employee-father. Id. at *3. Nevertheless, even if minor plaintiffs here had pled an injury to their fathers as a result of the chemical exposure, we disagree with Motorola that the Peters court properly applied Texas law to find that a child's birth defects allegedly caused by an employer's negligence derives from a work-related injury to the father, and are for that reason, governed by workers' compensation exclusive remedy provisions. Id. at *4. Peters draws an artificial distinction between a mother's and father's exposure, asserting that a child in utero was directly exposed to the toxins leading to his or her own injury, which the court found was untrue with respect to a male-employee's child. Texas law does not support the distinction advanced in Peters . As stated, minor plaintiffs were injured separately and independently from any injury that their fathers did or did not sustain, and they were not seeking damages for any injury sustained by their fathers.

¶ 27 We instead find the reasoning of Woerth v. United States , 714 F.2d 648 (6th Cir. 1983), persuasive. The issue in Woerth was whether the exclusive remedy provision under the federal equivalent of state workers' compensation law barred a husband from seeking recovery for his own medical expenses and wages after contracting hepatitis from his wife, who contracted the disease through a workplace injury. Id . at 650. The court specifically noted that "[w]hile Woerth's hepatitis may derive from his wife as a matter of proximate cause, his cause of action does not." Id. The court reasoned that mere transmission of the disease through his spouse did not change Woerth's status from that of any other unrelated, but similarly injured, tort victim. Id. The court further explained that because Woerth was not seeking relief relating to his wife's injuries, his claim for his own injuries was not barred by the exclusive remedy provision. Id. ; see also Hitachi Chemical Electro-Products, Inc. , 466 S.E.2d at 868-69 (exclusive remedy provision did not bar children's injuries arising from prenatal exposure to toxic chemicals at their parents' workplace because the children were third-party plaintiffs whose claims were not contemplated templated by the workers' compensation law); Trahan v. Trans-Louisiana Gas Co. , 618 So.2d 30, 32 (La. Ct. App. 1993) (exclusive remedy provision did not bar wife's claim for injuries she sustained from exposure to hazardous chemicals present on her injured husband's clothing worn while working).

¶ 28 Plaintiffs' complaint indisputably pled a claim for the children's injuries personally sustained separately and independently from any injury to their fathers. See Cushing v. Time Saver Stores, Inc. , 552 So.2d 730, 731-32 (La. Ct. App. 1989) (workers' compensation law addresses injuries to employees and certain losses to family members based on the injuries to the employees, but does not affect the rights of an employee's offspring who was injured on the parent's job site); Vallery v. Southern Baptist Hospital , 630 So.2d 861, 865 (La. Ct. App. 1993) (the only injury referred to in the workers' compensation law is the one to the employee). Because minor plaintiffs seek to recover not based on workplace injuries sustained by their employee-fathers, but for their own personal injuries, the exclusive remedy provisions of the Arizona and Texas workers' compensation laws do not apply.

¶ 29 2. Motorola's Duty to Protect Their Employees and Their Children From the Effects of Toxic Chemicals Used in the Workplace

¶ 30 Minor plaintiffs further claim that the trial court erred in finding that Motorola did not owe them a duty because it misclassified their action as a "preconception tort," which is not recognized as a tort under either Arizona or Texas law.

¶ 31 Although variously formulated, Arizona and Texas, like Illinois, require a negligence plaintiff to plead the existence of a duty, defendant's breach of that duty, and damages proximately caused by the breach. Lee Lewis Construction, Inc. v. Harrison , 70 S.W.3d 778, 782 (Tex. 2001) ; Sanders v. Alger , 242 Ariz. 246, 394 P.3d 1083, 1085 (2017) ; Schweihs , 2016 IL 120041, ¶ 31, 412 Ill.Dec. 882, 77 N.E.3d 50.

¶ 32 Arizona and Texas differ though on the issue of whether the injury for which plaintiff seeks recovery must be forseeable. Under Texas law, the foreseeability of an injury factors into whether a duty exists. Timberwalk Apartments, Partners, Inc. v. Cain , 972 S.W.2d 749, 756 (Tex. 1998). But unlike Texas, foreseeability of an injury is not a consideration in the duty analysis under Arizona law. Barkhurst v. Kingsmen of Route 66, Inc. , 234 Ariz. 470, 323 P.3d 753, 755 (App. 2014). Rather, to determine whether a tortfeasor owed a duty to the injured party, Arizona requires the existence of a special relationship between the tortfeasor and the injured party (e.g. , employer-employee, doctor-patient), or, alternatively, Arizona recognizes a duty when public policy considerations compel that result. Quiroz v. Alcoa, Inc. , 240 Ariz. 517, 382 P.3d 75, 79 (App. 2016); Guerra v. State , 237 Ariz. 183, 348 P.3d 423, 425 (2015) ; Gipson v. Kasey , 214 Ariz. 141, 150 P.3d 228, 231-32 (2007).

¶ 33 As noted, at least for purposes of this appeal, Motorola concedes the viability of a claim by the offspring of a female employee exposed to toxic chemicals in the workplace. With that context in mind, considering first a duty analysis under Arizona law, strong public policy considerations counsel against allowing a child's negligence case to proceed if toxic exposure was through the mother-employee, but precluding the same cause of action if exposure was through the father-employee. As a matter of public policy, a child born with defects caused by a parent's exposure to toxic chemicals in the workplace is entitled to seek damages regardless of whether the child's mother or father was the employee exposed to the toxic chemicals. Indeed, precluding a child born with defects from proceeding with a negligence claim because his or her father, and not mother, was exposed to the toxins would violate traditional notions of fairness. And Motorola's duty to provide a safe workplace free from harmful toxins extended to all its employees-male and female. For these reasons, Motorola's primary authority on the duty element, Quiroz , is not on point. In Quiroz , the court held that an employer owed no duty of care to its employee's son who was allegedly exposed to asbestos brought home on his father's clothing because finding a duty under those facts would create a dramatic expansion of liability that would not be compatible with public policy. 382 P.3d at 81. Quiroz is distinguishable because, unlike here, public policy considerations associated with an employer treating family members of male and female employees differently were not implicated.

¶ 34 Moreover, under the Arizona Constitution, individuals have a fundamental right to pursue an action against a tortfeasor for injuries sustained. Hunter Contracting Co. v. Superior Court , 190 Ariz. 318, 947 P.2d 892, 894 (App. 1997). Arizona's constitution includes an anti-abrogation clause ("[t]he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation" ( Ariz. Const., art. 18, § 6 ) ), which has been interpreted to guarantee an individual a fundamental right to bring a tort action. See Kenyon v. Hammer , 142 Ariz. 69, 688 P.2d 961, 975 (1984) (en banc ) (despite bringing an action outside the applicable statute of limitations, a wrongful death claim of a stillborn child not dismissed because the parents had a fundamental right guaranteed by the Arizona Constitution to bring and pursue the action). Based on these public policy considerations, Sarina sufficiently pled the existence of a duty owed to her by Motorola to survive dismissal under section 2-615. Given our finding that a duty under Arizona law exists as a matter of public policy, we need not address the alternative basis of whether Sarina had a sufficient relationship with Motorola, giving rise to a duty owed to her.

¶ 35 Under Texas law, not only do the same public policy considerations favor finding the existence of a duty, but Jeremy sufficiently pled in the complaint that his injuries were foreseeable based on Motorola's knowledge of the risk of injury to its employees' unborn children arising from use of toxic chemicals in clean rooms. Specifically, Jeremy pled that Motorola had duty of reasonable care for the safety and protection of both its employees and their unborn children due to exposure to toxic chemicals in the workplace. According to the complaint, the duty of reasonable care included warning employees about the risk of injury (including birth defects ) to their unborn children resulting from exposure to toxic chemicals. Jeremy also pled in detail that the risk of injury to Motorola's employees' unborn children was foreseeable, based on (i) studies known to Motorola linking the toxic chemicals to adverse reproductive outcomes and (ii) warnings to the same effect disseminated by industry associations and provided to Motorola. Jeremy further pled that Motorola provided the toxic chemicals for use in the clean rooms despite knowing that exposure to those chemicals dramatically increased the likelihood of injury to both its employees and their unborn children. And most importantly, Jeremy alleged that Motorola tracked the incidence of adverse reproductive outcomes to its employees' offspring, which demonstrated Motorola's awareness and knowledge of the risk of injury to the unborn children. Consequently, taking the complaint's allegations as true, Jeremy pled sufficient facts not only supporting the existence of a duty in that Motorola had an obligation to provide employees with a working environment free of toxic chemicals and to warn employees of the risk of birth defects to their offspring, but also demonstrating that injury to its employees' unborn children was foreseeable.

¶ 36 Because we find that plaintiffs alleged facts sufficient to support the existence of a duty under both Arizona and Texas law, we need not address plaintiffs' alternative theory that Motorola assumed a duty to protect its employees and their offspring.

¶ 37 We reject Motorola's "Pandora's box" argument. Finding that Motorola owes a duty to plaintiffs does not expand its existing duties to its employees or create a new duty. Rather, in this context, Motorola's duty to protect its employees is co-extensive with a duty to protect its employees' unborn children.

¶ 38 Motorola contests the viability of minor plaintiffs' duty allegations, asserting that regardless of the sufficiency of the factual allegations, no duty exists because Texas and Arizona do not recognize preconception torts, i.e. , injuries resulting from preconception exposure to toxic chemicals. Regarding Arizona law, Motorola relies on Rodriguez v. Intel Corp. , C.A. No. N11C-08-029 JRJ, 2014 WL 605472 (Del. Super. Ct. Jan. 29, 2014), an unpublished case authored by the same Delaware trial court judge that decided Peters . In Rodriguez , the court held that a child could not plead a cause of action relating to her birth defects purportedly caused by her father's exposure to toxic chemicals in a clean room because her claim asserted a preconception tort, which the court deemed was not a recognized tort in Arizona. Id. at *5. Again, apart from having no precedential value, we are not persuaded that Rodriguez is a correct statement of Arizona law because fundamental tort law does not prohibit imposing liability on a tortfeasor for conduct that causes an injury regardless of whether that conduct occurred pre-conception and the resulting injury manifested after the child's conception and birth. For this same reason, we are likewise not persuaded by Motorola's reliance on Peters as to Texas law.

¶ 39 Under Arizona and Texas law, it is irrelevant from a negligence perspective whether minor plaintiffs' injuries arose from exposure to toxic chemicals transmitted by their fathers' sperm or whether instead the exposure occurred in utero during their mothers' employment at Motorola. Under both scenarios, the children allegedly have been injured from their parents' exposure to toxic chemicals in Motorola's clean rooms as a result of Motorola's alleged negligence. Adopting Motorola's position would bar relief for its preconception negligence even though, according to the complaint's allegations, the risk of harm to unborn children was known to Motorola and that same conduct would be actionable by a child exposed in utero who was later born with birth defects.

Motorola's alleged negligent conduct occurred regardless of whether the injury did not manifest until the child's birth. To preclude a cause of action for negligence based solely on the fact that the negligence occurred before plaintiffs' conception would leave a party with no recourse for injuries caused by another. Applying Arizona and Texas negligence law, we find that dismissal of the complaint on the basis that minor plaintiffs were pursuing a new, unrecognized tort was improper. The minor plaintiffs' cause of action was for simple negligence, and the duty owed, foreseeability (under Texas law), and proximate cause was exactly the same regardless of whether the employee was male or female, pregnant or not. Consequently, minor plaintiffs properly pled a negligence claim.

¶ 40 3. The Proximate Relationship Between the Minor Plaintiffs' Birth Defects and Their Fathers' Workplace Exposure

¶ 41 Plaintiffs claim that they sufficiently pled proximate cause of the minor's injuries by asserting that exposure to the toxic chemicals in Motorola's clean rooms compromised their fathers' reproductive systems, which in turn caused their birth defects.

¶ 42 Proximate cause embodies two distinct concepts: cause-in-fact and legal cause. Turcios v. DeBruler Co. , 2015 IL 117962, ¶ 23, 392 Ill.Dec. 541, 32 N.E.3d 1117. Cause-in-fact includes both the traditional "but for" test and the "substantial factor" test. Id. Under the "but for" test, a defendant's conduct is not the cause of an injury if the injury would have occurred absent the conduct. Id. Under the "substantial factor" test, the defendant's conduct is a cause of an injury if it was a material element and a substantial factor giving rise to the injury. Id. Legal cause, on the other hand, assesses foreseeability and the relevant inquiry is whether the injury is the type of injury that a reasonable person would see as a "likely result" of the defendant's conduct. Id. ¶ 24. Motorola sought dismissal asserting plaintiffs failed to establish that Motorola's conduct was the cause-in-fact of their injuries.

¶ 43 The original complaint alleged that exposure to the toxic chemicals proximately caused a direct (albeit transitory) injury to the fathers' reproductive system, but plaintiffs later omitted any allegation claiming an injury to the fathers, apparently, as noted, to avoid the workers' compensation exclusive remedy argument. Motorola claims that because minor plaintiffs did not allege an injury to their fathers cognizable under state law, they cannot establish that their injuries were proximately caused by their fathers' exposure to toxic chemicals in the workplace. Motorola essentially argues that because minor plaintiffs disclaim any injury to their fathers, they cannot establish proximate cause for their own injuries.

¶ 44 We are not persuaded by Motorola's argument because, importantly, the lack of a manifest injury to minor plaintiffs' fathers under the workers' compensation laws does not automatically negate proximate cause for negligence pleading purposes relating to minor plaintiffs' separate and independent injuries. Motorola infers that because minor plaintiffs did not allege an injury to their fathers, then it necessarily follows that their fathers' exposure to the toxic chemicals in the clean rooms could not be the proximate cause of their own injuries. But Motorola is drawing inferences from the pleadings against minor plaintiffs, an improper exercise on a motion to dismiss where all reasonable inferences must be indulged in favor of the non-moving party. Sheffler , 2011 IL 110166, ¶ 61, 353 Ill.Dec. 299, 955 N.E.2d 1110.

¶ 45 Moreover, pleading an injury to their fathers falling within the definition of "injury" under the workers' compensation laws would not establish the only possible causal link between their fathers' exposure and minor plaintiffs' injuries. See Seef v. Ingalls Memorial Hospital , 311 Ill. App. 3d 7, 20-21, 243 Ill.Dec. 806, 724 N.E.2d 115 (1999) (recognizing the principle that an injury may have more than one proximate cause). Indeed, minor plaintiffs' well-pleaded allegations and the related reasonable inferences assert that their fathers served as a conduit in the chain of causation between Motorola's negligent conduct and their resulting injuries. Evidence refuting any negative impact or breaking the causal link between their fathers' exposure to the toxic chemicals and the minor plaintiffs' birth defects is not suited for resolution on a motion to dismiss. Importantly, at this juncture in the proceedings, the relevant inquiry for negligence pleading purposes is whether minor plaintiffs pled sufficient facts demonstrating that their fathers' prolonged exposure to toxic chemicals in Motorola's clean rooms proximately caused their birth defects. And whether their fathers also sustained a work-related injury under the workers' compensation laws is irrelevant to minor plaintiffs' negligence cause of action.

¶ 46 Turning to the complaint, plaintiffs sufficiently pled proximate cause because their allegations detailed a causal link between Motorola's wrongful conduct and the children's injuries. Specifically, plaintiffs alleged that the fathers worked in close proximity for a prolonged period in Motorola's clean rooms using toxic chemicals that Motorola knew were hazardous. Plaintiffs asserted that Motorola monitored its employees' medical conditions, including their reproductive health, and tracked the occurrence of adverse reproductive outcomes among its employees' offspring, thus rendering any potential adverse reproductive outcomes to their employees and offspring foreseeable. Plaintiffs also alleged that although Motorola implemented industrial hygiene policies and procedures, dures, the policies and procedures were inadequate to minimize or prevent their employees' exposure to the toxic chemicals, and that exposure led to their birth defects. Construing the allegations in the complaint in the light most favorable to plaintiffs, we find that plaintiffs sufficiently pled that the toxic chemicals in Motorola's clean rooms were the cause-in-fact of the minors' injuries and that those allegations were sufficient to withstand Motorola's section 2-615 motion to dismiss.

¶ 47 B. Plaintiffs' Claims for Willful and Wanton Misconduct

¶ 48 The trial court also dismissed minor plaintiffs' willful and wanton misconduct claim. The substantive law in both Arizona and Texas recognizes willful and wanton misconduct as a form of aggravated or gross negligence. See Williams v. Thude , 188 Ariz. 257, 934 P.2d 1349, 1351 (1997) (en banc ) (recognizing willful and wanton misconduct as a form of aggravated negligence); BP Oil Pipeline Co. v. Plains Pipeline, L.P. , 472 S.W.3d 296, 312 (Tex. App. 2015) (recognizing willful and wanton misconduct is equivalent to gross negligence).

¶ 49 To state a cause of action for aggravated or gross negligence (willful and wanton misconduct), a plaintiff must plead the elements of negligence together with facts establishing that the negligent conduct created an extreme risk of harm to others and that the defendant knew of the extreme risk but proceeded anyway. Columbia Medical Center of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 248 (Tex. 2008) ; Lee Lewis Construction, Inc. v. Harrison , 70 S.W.3d 778, 784-86 (Tex. 2001) ; Arizona Independent Redistricting Comm'n v. Brewer , 229 Ariz. 347, 275 P.3d 1267, 1276 (2012) ; DeElena v. Southern Pacific Co. , 121 Ariz. 563, 592 P.2d 759, 762-63 (1979) (en banc ). We find that plaintiffs' complaint alleged multiple factual bases supporting their willful and wanton misconduct claim against Motorola. For example, the minor plaintiffs pled that Motorola willfully and with a reckless disregard for safety (1) "altered the methods for collecting and/or measuring levels of chemical products and substances in the air of its wafer processing areas in order to obtain data showing lower exposure levels when it knew, or reasonably should have known, that such altered methods resulted in inaccurate data"; (2) "failed and/or refused to design, approve and/or implement reasonable and proper chemical handling and disposal policies and procedures to protect semiconductor workers, including the EMPLOYEE PARENTS, and their offspring from dangers associated with exposure to some or all of the aforesaid chemical products and substances"; and (3) "failed and/or refused to comply with reasonable standards and regulations designed to protect the health and safety of those persons, including EMPLOYEE PARENTS and his/her unborn child, who would foreseeably be exposed to some or all of the aforesaid chemical products and substances." Assuming the truth of these allegations, as we must, they are sufficient to state a claim for willful and wanton misconduct.

¶ 50 C. Parental Loss of Consortium Claim

¶ 51 Finally, the parties agree that parental loss of child consortium is not recognized as a viable cause of action in Texas ( Roberts v. Williamson , 111 S.W.3d 113, 120 (Tex. 2003) ), but such a claim is viable in Arizona ( Howard Frank, M.D., P.C. v. Superior Court , 150 Ariz. 228, 722 P.2d 955, 961 (1986) (en banc ) ). Parental loss of child consortium is a derivative cause of action based on a recognizable injury to a child. See id. Having found that Sarina properly pled a cause of action for negligence, we find that her parent's derivative action incorporated sufficient allegations, demonstrating that Motorola's wrongful conduct interfered with and compromised the parent-child relationship, to withstand Motorola's motion to dismiss.

¶ 52 CONCLUSION

¶ 53 We express no opinion on the likelihood of success on the merits of plaintiffs' claims, but conclude that, construing the allegations in the complaint in a light most favorable to plaintiffs, the claims for negligence and willful and wanton misconduct under both Arizona and Texas law and the claims for loss of child consortium under Arizona law were sufficiently pled to withstand a section 2-615 motion to dismiss. The allegations in the complaint set forth a viable cause of action for negligence. It also cannot reasonably be argued that Motorola was unaware or uninformed of the basis for the claims against it. Because we conclude that the complaint was sufficient to survive Motorola's motion to dismiss, we need not separately address plaintiffs' argument regarding denial of leave to appeal.

¶ 54 We reverse the trial court's dismissal of plaintiffs' claims for negligence and willful and wanton misconduct under Arizona and Texas law and the claims for loss of child consortium under Arizona law. Because parental loss of child consortium is not a valid cause of action in Texas, we affirm dismissal of that count.

¶ 55 Affirmed in part and reversed in part.

¶ 56 Cause remanded.

Presiding Justice Neville and Justice Hyman concurred in the judgment and opinion.

      Harlan ended his employment with Motorola in March 1998, 13 months before Sarina's birth. Whether Harlan's exposure to toxic chemicals while working in a clean room had a lasting effect on his reproductive system after he left Motorola's employment presents a factual question we need not determine here.

      Motorola filed a separate motion to dismiss as to Sarina's and Jeremy's claims, but similar grounds for dismissal were raised in each motion.

      Plaintiffs do not appeal dismissal of the strict liability and breach of assumed duty counts.

      In Taylor v. Cutler , 306 N.J.Super. 37, 703 A.2d 294, 301, 303 (App. Div. 1997), the court identified the key consideration in determining whether a duty exists in preconception tort cases is the tortfeasor's knowledge of the risk created by his or her tortious conduct rather than the status of the person who is injured. By way of example, the court explained that in toxic tort cases stemming from polluted ground water, a tort duty is imposed on the contaminator when the soil became contaminated because the tortfeasor either knew or should have known the risk created by the wrongful discharge of pollutants into the environment. Id. at 303. The tort duty extends to plaintiffs born and unborn at the time of contamination and who sue for injuries manifesting years later when the ground water becomes polluted. Id. Likewise, to support recognition of a preconception tort in Lough v. Rolla Women's Clinic, Inc. , 866 S.W.2d 851, 854 (Mo. 1993) (en banc ), the court hypothesized that it would be "ludicrous" to suggest that only a mother would have a cause of action against a builder based on a negligently constructed balcony that gave way when the mother and her one-year-old child stepped onto the balcony, but no duty of care extended to the child because the child was not conceived at the time of the negligent conduct. Similarly, our supreme court in Renslow v. Mennonite Hospital , 67 Ill. 2d 348, 357, 10 Ill.Dec. 484, 367 N.E.2d 1250 (1977), found it illogical to bar recovery based on a negligent act occurring before conception where the defendant would be liable for the same conduct had the child, unbeknownst to him, been conceived before his negligent act.

      We find the Lough court's rejection of "Pandora box" arguments arising from recognition of preconception misconduct persuasive. In Lough , the court reasoned that such arguments were pure speculation and there was no evidence indicating that the states permitting preconception torts "have been swallowed up by the kind of apocalypse of liability actions" envisioned by defendants. 866 S.W.2d at 854.

      Texas workers' compensation law defines injury as "damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm." Tex. Labor Code Ann. § 401.011(26) (West 2017). Arizona workers' compensation law does not define "injury," but case law defines "injury" as an "organic or structural change in the body." Phelps Dodge Corp. v. Cabarga , 79 Ariz. 148, 285 P.2d 605, 608 (1955).


source: Caselaw Access Project

license: Public Domain

text:
    FOX VALLEY FAMILIES AGAINST PLANNED PARENTHOOD, Socorro Nieto, and Charles Amaning, Plaintiffs-Appellants, v. PLANNED PARENTHOOD OF ILLINOIS, as Successor in Interest to Planned Parenthood/Chicago, Gemini Office Development, LLC, and 21st Century Office Development, LLC, Defendants-Appellees.
    No. 2-17-0137
    Appellate Court of Illinois, Second District.
    Opinion filed March 6, 2018
    Peter Breen, of Thomas More Society, of Chicago, for appellants.
    Christopher B. Wilson and Caitlin M. Foley, of Perkins Coie LLP, of Chicago, for appellees.
   JUSTICE ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Defendant Gemini Office Development, LLC (Gemini), owns the property located at 3051 East New York Street in Aurora, Illinois. The tenant of that property, defendant Planned Parenthood of Illinois, operates a facility where it provides abortions and other healthcare services. Planned Parenthood of Illinois is the sole and controlling member and owner of defendant 21st Century Office Development, LLC, which, in turn, is the sole and controlling member and owner of Gemini. Plaintiffs-Fox Valley Families Against Planned Parenthood, Socorro Nieto, and Charles Amaning-filed the instant action to challenge defendants' use of the property. Specifically, plaintiffs alleged in their fourth amended complaint that such use constitutes an ongoing violation of the Aurora Zoning Ordinance (Aurora Code of Ordinances, Appendix A, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015) ). The trial court dismissed the action pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2016) ). Plaintiffs appeal. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 This is the second time that this case has been before us. In Fox Valley Families Against Planned Parenthood v. Planned Parenthood of Illinois , 2015 IL App (2d) 131019-U, 2015 WL 3852924 ( Fox Valley Families I ), we remanded the matter for further proceedings on the issue of whether defendants' ongoing use of the subject property violates the zoning ordinance. We made it clear that we expressed no opinion on the merits of that particular issue. Fox Valley Families I , 2015 IL App (2d) 131019-U, ¶ 107 ("We emphasize that we express no opinion on the merits of plaintiffs' claim that Planned Parenthood's ongoing use of the property violates the [zoning ordinance], even though plaintiffs maintain that this court should make that determination. Given the procedural posture of this case, it would be premature for this court to do so.").

¶ 4 On remand, plaintiffs filed a fourth amended complaint seeking a declaratory judgment and an injunction pursuant to section 11-13-15 of the Illinois Municipal Code ( 65 ILCS 5/11-13-15 (West 2016) ). That statute provides a mechanism for property owners to seek redress for ordinance violations on neighboring properties.

¶ 5 The parties agree that the subject property is located in Aurora's Business-Boulevard District (B-B District). They disagree as to whether the present use of the property is permitted in that district. According to defendants, the Planned Parenthood facility is indeed a permitted use, because it falls under the category of "Offices, business and professional, including medical clinics." See Aurora Code of Ordinances, Appendix A, § 8.6-4.1(LLL), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Plaintiffs, on the other hand, maintain that the use of the property more accurately comes under the umbrella of "Social Service Agencies, Charitable Organizations, Health Related Facilities, and similar uses when not operated for pecuniary profit." See Aurora Code of Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Plaintiffs submit that this so-called "nonprofit use category" or "not-for-profit use category" is prohibited in the B-B District.

¶ 6 The parties outlined their respective interpretations of the zoning ordinance in the context of briefing defendants' motion to dismiss the fourth amended complaint pursuant to section 2-615 of the Code. The trial court granted that motion, concluding that plaintiffs failed to allege an ongoing violation of the zoning ordinance. Plaintiffs timely appealed.

¶ 7 II. ANALYSIS

¶ 8 Plaintiffs preliminarily contend that the law-of-the-case doctrine bars defendants' arguments. Plaintiffs also submit that it was improper for the trial court to dismiss the fourth amended complaint, because we determined in the prior appeal that it would be premature for us to address the merits of their claim and "the case was in effectively the same posture" on remand. Plaintiffs further assert that defendants forfeited their statutory-interpretation argument by failing to raise it in the first appeal.

¶ 9 "[T]he law-of-the-case doctrine generally bars relitigation of an issue previously decided in the same case." People ex rel. Madigan v. Illinois Commerce Comm'n , 2012 IL App (2d) 100024, ¶ 31, 359 Ill.Dec. 833, 967 N.E.2d 863. When an appellate court decides a question of law, that decision ordinarily binds both the trial court on remand and the appellate court in a subsequent appeal. Madigan , 2012 IL App (2d) 100024, ¶ 31, 359 Ill.Dec. 833, 967 N.E.2d 863. But "matters concerning the merits of a controversy that were not decided by a first appellate opinion do not become the law of the case." Filipetto v. Village of Wilmette , 254 Ill. App. 3d 461, 466, 193 Ill.Dec. 901, 627 N.E.2d 60 (1993). That is true even if such issues were "presented but not decided in the prior appeal." Filipetto , 254 Ill. App. 3d at 466, 193 Ill.Dec. 901, 627 N.E.2d 60.

¶ 10 The law-of-the-case doctrine does not bar defendants' arguments. In Fox Valley Families I , we recounted that the trial court had granted summary judgment in defendants' favor on plaintiffs' "ongoing use" claim, based on its erroneous finding that "a legislative decision had been made approving of Planned Parenthood's use of the property and that plaintiffs could not establish that the decision was arbitrary and capricious."

Fox Valley Families I , 2015 IL App (2d) 131019-U, ¶ 97. We held that defendants "were not entitled to judgment as a matter of law on [the ongoing-use] claim on the basis that the city made a legislative decision approving of Planned Parenthood's use." Fox Valley Families I , 2015 IL App (2d) 131019-U, ¶ 107. However, we expressly declined to comment on the merits of plaintiffs' theory that the ongoing use of the subject property violates the zoning ordinance. Fox Valley Families I , 2015 IL App (2d) 131019-U, ¶ 107. Plaintiffs' suggestion that we nevertheless made certain "preliminary finding[s]" on that issue is simply wrong.

¶ 11 For similar reasons, we decline to hold that defendants have waived, forfeited, or otherwise defaulted their arguments. Throughout much of the history of this case, defendants' position with respect to plaintiffs' claim of an ongoing ordinance violation was colored by an erroneous assumption that the City of Aurora had made a legislative decision approving of defendants' particular use of the property. In Fox Valley Families I , we certainly contemplated that the parties would have a chance on remand to present their respective interpretations of the zoning ordinance without the effect of that erroneous assumption. Contrary to what plaintiffs propose, the case was not in the same procedural posture on remand as it had been on appeal.

¶ 12 The trial court dismissed plaintiffs' fourth amended complaint pursuant to section 2-615 of the Code. "A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face." Bueker v. Madison County , 2016 IL 120024, ¶ 7, 410 Ill.Dec. 883, 72 N.E.3d 269. In reviewing the trial court's ruling, we accept as true the well-pleaded facts in the complaint as well as the reasonable inferences that can be drawn from such facts. Bueker , 2016 IL 120024, ¶ 7, 410 Ill.Dec. 883, 72 N.E.3d 269. "The critical inquiry is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted." Ferris, Thompson & Zweig, Ltd. v. Esposito , 2017 IL 121297, ¶ 5, 418 Ill.Dec. 242, 90 N.E.3d 400. Dismissal of a complaint is appropriate only where it is clearly apparent that the plaintiff can prove no set of facts that would entitle him or her to recovery. Ferris , 2017 IL 121297, ¶ 5, 418 Ill.Dec. 242, 90 N.E.3d 400. Our review is de novo. Ferris , 2017 IL 121297, ¶ 5, 418 Ill.Dec. 242, 90 N.E.3d 400.

¶ 13 The parties present competing interpretations of the zoning ordinance. We construe municipal ordinances in the same manner as statutes. In re Application of the County Collector , 132 Ill. 2d 64, 72, 138 Ill.Dec. 138, 547 N.E.2d 107 (1989). Our primary objective is to ascertain and effectuate the legislative body's intent. Henderson Square Condominium Ass'n v. LAB Townhomes, LLC , 2015 IL 118139, ¶ 67, 399 Ill.Dec. 387, 46 N.E.3d 706. "Effect should be given to the intention of the drafters by concentrating on the terminology, its goals and purposes, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance." Monahan v. Village of Hinsdale , 210 Ill. App. 3d 985, 993, 155 Ill.Dec. 571, 569 N.E.2d 1182 (1991).

¶ 14 The zoning ordinance divides Aurora into 23 zoning districts. See Aurora Code of Ordinances, Appendix A, § 4.1, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). The parties agree that the subject property is part of the B-B District. Section 8.6 of the zoning ordinance governs the use of property in that district. Aurora Code of Ordinances, Appendix A, § 8.6, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Specifically, section 8.6-4.1 identifies 99 categories of permitted uses, one of which is "Offices, business and professional, including medical clinics." Aurora Code of Ordinances, Appendix A, § 8.6-4.1(LLL), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Section 8.6-4.2 then lists certain uses that are allowed in the B-B District with a special-use permit. Aurora Code of Ordinances, Appendix A, § 8.6-4.2, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Section 8.6-4.4 provides that all uses that are not "expressly permitted" in the B-B District are "expressly prohibited." Aurora Code of Ordinances, Appendix A, § 8.6-4.4, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).

¶ 15 Defendants contend that their use of the subject property is permitted under the provision that allows "Offices, business and professional, including medical clinics."

¶ 16 In their fourth amended complaint, plaintiffs alleged that defendants' use of the property implicates a "more restrictive" zoning classification. According to plaintiffs, the property is also being used for political lobbying, voter education, and other community-organizing and educational activities. In plaintiffs' view, the facility is thus "far more than any mere 'medical office building.' " Plaintiffs alleged that defendants' use of the property most accurately falls under a category that, under plaintiffs' interpretation of the zoning ordinance, is banned in the B-B District: "Social Service Agencies, Charitable Organizations, Health Related Facilities, and similar uses when not operated for pecuniary profit." Aurora Code of Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Plaintiffs repeatedly referred to that particular use as the "nonprofit use category." (On appeal, they call it the "not-for-profit use category.")

¶ 17 Plaintiffs alleged that, when defendants applied for the necessary permits in July 2006, "the nonprofit land use could be permitted on the subject property pursuant to section 8.6-4.2 of the [zoning ordinance], but only pursuant to a special use permit issued by the City Council, after notice and a public hearing." (It is undisputed that defendants never sought a special-use permit.) According to plaintiffs, before defendants received their permits, the city council amended the zoning ordinance in December 2006 to, in plaintiffs' words, "ban entirely any nonprofit land use from the subject property." Therefore, plaintiffs concluded, defendants' use of the property is an ongoing prohibited use under the zoning ordinance.

¶ 18 The trial court rejected plaintiffs' interpretation of the zoning ordinance, as do we. Plaintiffs' proffered distinction between for-profit uses of property in the B-B District (which plaintiffs contend are permissible) and nonprofit uses (which plaintiffs contend are impermissible) is not supported by the plain language of the zoning ordinance.

¶ 19 As noted, one of the permitted uses of property in the B-B District is "Offices, business and professional, including medical clinics." Aurora Code of Ordinances, Appendix A, § 8.6-4.1(LLL), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). The plain language of that provision does not limit such uses to for-profit enterprises. Furthermore, the zoning ordinance defines the term "Clinic, Medical or Dental" as follows:

"A building containing an individual practitioner or an association or group of licensed physicians[,] surgeons, dentists, clinical psychologists, or similar professional health care practitioners, including assistants. The clinic may include apothecary, dental and medical laboratories, and/or X-ray facilities, but shall not include in-patient care or operating rooms for major surgery." Aurora Code of Ordinances, Appendix A, § 3.3, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).

The zoning ordinance similarly defines the term "Clinic or Medical Center" as follows:

"A 'medical center' or 'medical clinic' is an establishment where three (3) or more licensed physicians, surgeons or dentists engage in the practice of medicine or dentistry, operating on a group or individual basis with pooled facilities, which need not, but may, include coordinated laboratory, X-ray and allied departments, and the diagnosis and treatment of humans, a drug prescription counter (not a drugstore) for the dispensing of drugs and pharmaceutical products, orthopedic or optical devices to the patients of said physicians, surgeons, and dentists; but not including any exterior display or advertising sign." Aurora Code of Ordinances, Appendix A, § 3.3, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).

Neither of those definitions distinguishes between for-profit and nonprofit uses.

¶ 20 If the City of Aurora intended to require medical clinics in the B-B District to operate as for-profit enterprises, it certainly knew how to make such intent explicit. For example, section 8.6-4.2(B)(ii)(a) of the zoning ordinance allows the following uses in the B-B District, with a special-use permit: "Amusement and recreational uses including archery range, golf practicing range, miniature golf course, swimming pools, swim clubs, roller skating rinks, dance halls, tennis courts, tennis buildings, bowling alleys or other similar places of entertainment when operated for profit. " (Emphasis added.) Aurora Code of Ordinances, Appendix A, § 8.6-4.2(B)(ii)(a), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). In contrast to section 8.6-4.2(B)(ii)(a), section 8.6-4.1(LLL) permits medical clinics in the B-B District without expressly limiting such use to for-profit businesses. Plaintiffs nevertheless effectively ask us to read that restriction into section 8.6-4.1(LLL). We are not free to do so. See Beggs v. Board of Education of Murphysboro Community Unit School District No. 186 , 2016 IL 120236, ¶ 52, 410 Ill.Dec. 902, 72 N.E.3d 288 ("It is never proper for a court to depart from the plain language by reading into the statute exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent."); Gutraj v. Board of Trustees of the Police Pension Fund , 2013 IL App (2d) 121163, ¶ 14, 372 Ill.Dec. 763, 992 N.E.2d 605 (" '[W]e should normally assume that whenever the legislature intended a limitation, it expressed that limitation; conversely, if the limitation is absent from the text, the legislature presumably did not intend the limitation.' " (quoting Illinois Bell Telephone Co. v. Illinois Commerce Comm'n , 362 Ill. App. 3d 652, 660, 298 Ill.Dec. 591, 840 N.E.2d 704 (2005) ) ).

¶ 21 Plaintiffs emphasize that section 8.6-2.1 of the zoning ordinance provides:

"The intent of the B-B business boulevard district is to combine residential, commercial, office and industrial development in an orderly arrangement along a major street so as to maximize the commercial service benefit it offers and to minimize its harmful affects [sic ] on (1) traffic movement and flow; (2) traffic safety; (3) the various land uses within and in close proximity to the B-B district; and (4) the beauty of the community." (Emphasis added.) Aurora Code of Ordinances, Appendix A, § 8.6-2.1, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).

In plaintiffs' view, "[p]ermitting not-for-profit uses in the B-B Business Boulevard District directly conflicts with that stated intent." Plaintiffs seem to imply that nonprofit uses inherently provide less of a commercial-service benefit than for-profit uses. To the extent that this is what plaintiffs mean to suggest, they fail to develop a cogent argument in support of that proposition. Moreover, providing medical care might reasonably be considered a valuable commercial-service benefit in and of itself. It is also not difficult to imagine that a medical clinic, though operated not-for-profit, could provide a substantial commercial-service benefit simply by drawing large numbers of people into the district. Plaintiffs' argument regarding commercial-service benefits is unpersuasive for the additional reason that some of the permitted property uses listed in section 8.6-4.1 of the zoning ordinance would seem to apply only to nonprofit or governmental entities. For example, religious institutions, libraries, post offices and postal substations, public-utility collection offices, and reading rooms are all permitted uses in the B-B District. See Aurora Code of Ordinances, Appendix A, §§ 8.6-4.1(W), (DDD), (VVV), (WWW), (YYY), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). So are clubs and fraternal organizations (Aurora Code of Ordinances, Appendix A, § 8.6-4.1(X), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015) ), which are nonprofit entities by definition. See Aurora Code of Ordinances, Appendix A, § 3.3, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015) (defining "Club or Lodge, Private" as "[a] structure or part thereof used by a not-for-profit association of persons who are bona fide members paying dues and where facilities are restricted to members and their guests" (emphasis added) ).

¶ 22 Furthermore, plaintiffs' contentions about a so-called "nonprofit use category" or "not-for-profit use category" are rooted in a version of the zoning ordinance that has not been in effect for more than a decade. Prior to December 2006, the zoning ordinance contained a section 4.3-1.1(FFF), describing special uses, which provided as follows:

"The city council of the City of Aurora shall have the authority to permit by ordinance the following uses of land or structures or both, subject to the conditions contained in the Administrative Section.
* * *
FFF. Social Service agencies, charitable organizations, health-related facilities, meeting halls and similar uses when not operated for pecuniary profit in any use district." Aurora Code of Ordinances, Appendix A, § 4.3-1.1(FFF), as amended by Ordinance No. O06-64 (approved July 25, 2006).

¶ 23 The only portion of the current version of the zoning ordinance that contains language similar to that formerly included in section 4.3-1.1(FFF) is now section 20, Table One. See Aurora Code of Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). As noted above, the zoning ordinance creates 23 zoning districts. The respective sections of the zoning ordinance governing 17 of those districts specifically incorporate Table One. Table One, in turn, contains a chart listing a number of use categories. That chart indicates whether and under what circumstances the myriad uses are allowed in those 17 districts. Of relevance to this appeal, one use category listed in Table One is "Social Service Agencies, Charitable Organizations, Health Related Facilities, and similar uses when not operated for pecuniary profit." According to Table One, a use under that category is a special use in 16 of the 17 specified districts but is not a permitted use in the "P" Park and Recreation District. Importantly, section 8.6 of the zoning ordinance, which relates to the B-B District, does not specifically incorporate Table One. Nor does Table One mention the B-B District. Instead, section 8.6-4.1 contains an extensive list of uses permitted in the B-B District, and section 8.6-4.2 identifies the applicable special uses. We also note that Table One makes no mention of medical clinics, which are expressly permitted in the B-B District pursuant to section 8.6-4.1(LLL).

¶ 24 Plaintiffs are correct that section 8.6-4.4 of the zoning ordinance indicates that all uses that are not expressly permitted in the B-B District are prohibited. They are also correct that the zoning ordinance does not designate "Social Service Agencies, Charitable Organizations, Health Related Facilities, and similar uses when not operated for pecuniary profit" as either a permitted or a special use in the B-B District. Plaintiffs extrapolate that such use must therefore be prohibited in the B-B District. The fault in plaintiffs' logic, however, is that the language regarding "Health Related Facilities, * * * and similar uses when not operated for pecuniary profit" now comes from Table One, which neither mentions the B-B District nor is incorporated by reference in the substantive provisions regulating that district.

¶ 25 If the City of Aurora intended to restrict or prohibit nonprofit health-related facilities in the B-B District, it certainly knew how to do so. As previously noted, in section 8.6-4.2(B)(ii)(a), the zoning ordinance explicitly states that certain amusement and recreational uses, "when operated for profit," are allowed in the B-B District upon the issuance of a special-use permit. Aurora Code of Ordinances, Appendix A, § 8.6-4.2(B)(ii)(a), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Additionally, the zoning ordinance is clear that "Social Service Agencies, Charitable Organizations, Health Related Facilities, and similar uses when not operated for pecuniary profit" are prohibited in the "P" Park and Recreation District. See Aurora Code of Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). In contrast, as explained above, medical clinics are designated as permitted uses in the B-B District, and there is no discernible intent to distinguish between for-profit and nonprofit uses of such facilities.

¶ 26 We hold that plaintiffs' theory of an ongoing ordinance violation as alleged in their fourth amended complaint fails as a matter of law. Accordingly, the trial court properly granted defendants' motion to dismiss the complaint, with prejudice, for failure to state a cause of action.

¶ 27 III. CONCLUSION

¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 29 Affirmed.

Justices McLaren and Hutchinson concurred in the judgment and opinion.

      Section 8.6-3.2(A) incorporates the definitions "[a]s provided for in the Rules and Definitions Section." Aurora Code of Ordinances, Appendix A, § 8.6-3.2(A), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).

      The "R-1" One-Family Dwelling District, governed by section 7.5 of the zoning ordinance, is one such example. See Aurora Code of Ordinances, Appendix A, § 7.5-4.1, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015) ("The Permitted Uses for this district as identified in Table One: Use Categories shall apply ." (emphasis in original) ); Aurora Code of Ordinances, Appendix A, § 7.5-4.2, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015) ("The Special Uses for this district as identified in Table One: Use Categories shall apply ." (emphasis in original) ).