Swanigan v. Smith
Case Date: 01/14/1998
Court: 4th District Appellate
Docket No: 4-96-0502
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IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT ALBERT SWANIGAN, Individually and as ) Appeal from next best friend of CORTEZ SWANIGAN, a ) Circuit Court of Minor, ) Champaign County Plaintiff-Appellant, ) No. 93L1134 v. ) JOEANNIER SMITH, ) Honorable Defendant-Appellee. ) George S. Miller, ) Judge Presiding. _________________________________________________________________ JUSTICE KNECHT delivered the opinion of the court: On September 8, 1993, Albert Swanigan, individually and as next best friend of his son Cortez Swanigan, filed a complaint of negligence against defendant Joeannier Smith in the circuit court of Champaign County. The complaint sought damages for injuries Cortez sustained while in foster care at the home of defendant, who was a licensed foster parent with the Illinois De- partment of Children and Family Services (DCFS). After a trial, the jury found for defendant. Plaintiffs appeal, contending the trial court erred by (1) failing to enter a directed verdict; (2) failing to grant plaintiffs' motion for a new trial; (3) refusing to admit certain opinion testimony; and (4) refusing to permit plaintiffs to display to the jury both Cortez's actual physical injuries as well as photographs of those injuries. Defendant raises an additional issue on appeal, arguing the circuit court lacked subject-matter jurisdiction over the matter. We affirm. Plaintiffs alleged in the complaint Cortez was injured while a guest in defendant's home. Plaintiffs sought medical ex- penses and damages for those injuries. On November 3, 1993, de- fendant filed a motion to dismiss with prejudice, pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)). Defendant argued the circuit court lacked subject-matter jurisdiction over plaintiffs' complaint, because plaintiffs' claims were essentially against the State of Illi- nois. After a hearing and without comment, the trial court de- nied defendant's motion. At trial, prior to testimony, defendant objected to the admission of a question and answer from deposition testimony to be read to the jury. Defendant objected to the following ques- tion and answer from the deposition of Marsha Biggers, a DCFS employee: "Based on your trained experience, do you have an opinion if it would be reasonable for a child-care provider to leave an 18-month- old child in a room unattended where the child could reach her hot cooking grease?" Defendant argued the question assumed facts not in evidence and it asked for a legal conclusion that was for the jury to decide. Plaintiffs argued Biggers possessed the training and experience, as an investigator of abuse and neglect cases, to know what a child-care provider should do. The trial court sustained defendant's objection, concluding the question asked an opinion as to the ultimate fact for the jury to decide and that fact was not beyond the ken of the average juror. During trial, the deposition testimony of three wit- nesses was read to the jury and two witnesses testified. Defen- dant testified as to the events leading up to and following the incident. Plaintiff Albert Swanigan testified regarding the ex- tent of Cortez's injuries and the treatment Cortez received for those injuries. Testimony relevant to this appeal follows. Defendant, 49 years old, had two adult children and four minor children, and had been a foster parent for 14 years. In that time she cared for over 200 children, approximately 75% of whom were between the ages of one and three. At the time of the incident, defendant was licensed to care for children between ages 0 and 12. Defendant attended both required and voluntary classes on the provision of foster care. She worked with chil- dren at the Urbana Park District for about 4 |