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Docket No. 86065-Agenda 15-May 1999.

GREGORY NICHOL et al., Appellants, v. JOHN STASS et al., Appellees.

Opinion filed August 10, 2000.

JUSTICE MILLER delivered the opinion of the court:

The plaintiffs, Gregory Nichol and Ruby Nichol, brought thisaction in the circuit court of Cook County individually and ascospecial administrators of the estate of the decedent, JonathanNichol, against the defendants, John Stass and Bonnie Stass, andthe Human Enrichment and Developmental Association (HEDA),an independent child welfare agency. The plaintiffs alleged thatJonathan, their son, died while in the care of the Stasses, who wereacting as Jonathan's foster parents at the time of his death and whowere allegedly under the supervision of HEDA. The plaintiffssought recovery from the defendants under several differenttheories. The trial judge dismissed the plaintiffs' action against theStasses on the ground that it was barred by sovereign immunity.The appellate court affirmed. 297 Ill. App. 3d 557. We allowed theplaintiffs' petition for leave to appeal (177 Ill. 2d R. 315(a)), andwe now reverse the judgments of the appellate and circuit courtsand remand the cause to the circuit court for further proceedings.

According to the allegations in the complaint, Jonathan diedon June 16, 1995, while at the Stasses' home and in their care, bydrowning in a toilet. He was two years old. The plaintiffs soughtrecovery from each of the defendants under the Wrongful DeathAct (740 ILCS 180/1 (West 1996)), the Rights of Married PersonsAct (750 ILCS 65/15 (West 1996)), and the Survival Act (755ILCS 5/27-6 (West 1996)), alleging that the defendants negligentlyviolated various duties imposed by the common law and byadministrative regulations, and, further, that liability wasestablished under the doctrine of res ipsa loquitur. The complaintalleged that the Stasses failed to supervise Jonathan, failed toprotect him from hazards within the home, failed to provide himwith sufficient food and water, and failed to provide him withimmediate medical care after the occurrence. The amendedcomplaint described HEDA as an independent licensed childwelfare agency that has contracted with the Department of Childrenand Family Services "to provide supervision, inspections,management, guidance and discipline" to foster parents and fosterchildren. The amended complaint further asserted that HEDA "wasin charge of, supervisor of, manager of, and director of" theStasses. The plaintiffs alleged, among other things, that HEDAnegligently failed to supervise the Stasses, failed to ensure that thechild was provided with adequate food and water, failed tocomplete background checks on the Stasses, and failed to place thechild in a home "free from observable hazards."

Pursuant to sections 2-619(a)(1) and (a)(9) of the Code ofCivil Procedure (735 ILCS 5/2-619(a)(1), (a)(9) (West 1996)), theStasses moved to dismiss the counts of the amended complaint thatwere directed against them, arguing that the claims were barred bythe doctrines of sovereign immunity and public officials'immunity. Following a hearing, the trial judge stated that he woulddeny the Stasses' motion. Counsel for the Stasses then advised thetrial judge that a pending case in the appellate court raised a similarissue, and the judge said that he would postpone his ruling on themotion until the outcome of the appeal was known. The appellatecourt soon filed its opinion in the other case, Griffin v. Fluellen,283 Ill. App. 3d 1078 (1996), holding that the foster parent namedas a defendant in that action was a state employee and could invokethe protection of the sovereign immunity doctrine. In a laterproceeding in the case at bar, the trial judge concluded that he wasrequired to follow Griffin and granted the Stasses' motion todismiss. The trial judge also entered a finding pursuant to SupremeCourt Rule 304(a) (155 Ill. 2d R. 304(a)) permitting the plaintiffsto appeal immediately from that ruling; the plaintiffs' separateclaims against HEDA remained pending in the circuit court ofCook County, and they are not at issue in this appeal.

The appellate court affirmed the circuit court's dismissalorder. 297 Ill. App. 3d 557. The appellate court believed that theStasses should be considered agents of the state and therefore couldassert the protection of the sovereign immunity doctrine. The courttheorized that the state owed the foster child a nondelegable dutyof care and that the state would therefore be vicariously liable forthe foster parents' conduct. The court rejected the plaintiffs'contention that the Stasses, even as agents of the state, could stillbe liable for the Jonathan's death because they owed the child aduty of care that was entirely independent of their status as fosterparents. We allowed the plaintiffs' petition for leave to appeal. 177Ill. 2d R. 315(a).

Before this court, the plaintiffs contend that the defendants areneither employees nor agents of the state and therefore cannotavoid suit through the sovereign immunity doctrine. The Stasses,in response, maintain that the lower courts correctly concluded thatthey are state employees or agents and that the plaintiffs' actionagainst them is one in substance against the State of Illinois,triggering the sovereign immunity doctrine. The Stasses also argue,as an alternative ground in support of the judgments below, thateven if they are not protected from suit by sovereign immunity,they may still assert parental immunity as an affirmative defense tothe plaintiffs' action. We will consider these contentions in turn.

Article XIII, section 4, of the Illinois Constitution provides,"Except as the General Assembly may provide by law, sovereignimmunity in this State is abolished." Ill. Const. 1970, art. XIII,