The opinion
Docket No. 102428.
IN THE
SUPREME COURT
OF THE
STATE OF ILLINOIS
_____________________
ALMON B. HEASTIE, Appellee, v. DANIELA ROBERTS et al.,
Appellants.
Opinion filed November 1, 2007.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Burke concurred in the judgment and opinion.
OPINION
Plaintiff, Almon B. Heastie, brought an action in the circuit court
of Cook County to recover damages for personal injuries he sustained
in a fire which took place while he was involuntarily restrained on a
cart while awaiting treatment in the emergency room of the Columbia
Olympia Fields Osteopathic Hospital and Medical Center (the
Hospital). Named as defendants were the Hospital; Jason Humphrey,
one of the Hospital’s security guards; an emergency room technician
named Dawn Epley; and two registered nurses who were involved in
plaintiff’s care, Daniela Roberts and Josephine Onyema. Following a
jury trial, a verdict was returned in favor of all defendants and against
plaintiff. The appellate court reversed and remanded for a new trial on
the grounds that the circuit court had erred in dismissing, on the
pleadings, a negligence count asserted by plaintiff based on the
doctrine of res ipsa loquitur. No. 1–03–3463 (unpublished order
under Supreme Court Rule 23). We granted defendants’ petition for
leave to appeal. 210 Ill. 2d R. 315. For the reasons that follow, the
judgment of the appellate court is affirmed in part and reversed in
part, and the cause is remanded to the circuit court for further
proceedings.
BACKGROUND
The litigation which gave rise to this appeal commenced in the
fall of 1998, approximately nine years ago. The trial court proceedings
lasted more than half a decade, culminating in a month-long jury trial
during the summer of 2003 involving the testimony of approximately
two dozen witnesses. The resulting record is voluminous. For now,
we need only summarize the basic facts of the case. Additional details
will be supplied as necessary during the course of our analysis.
Plaintiff is a 50-year-old male whose intelligence is in the
extremely low to borderline deficient range. On the evening of
October 3, 1998, paramedics responded to a call that he was in need
of medical attention. When they arrived on the scene, they found him
lying intoxicated in a residential driveway and transported him to the
emergency room of the Hospital, a Level 1 trauma center. Plaintiff had
a history of alcohol abuse and had been taken to the same emergency
room in an intoxicated condition before.
When plaintiff arrived at the Hospital, medical personnel assessed
his condition. They determined that he was not suffering from
anything requiring immediate medical intervention. He was, however,
extremely drunk, unable to stand, uncooperative, disoriented, and
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incapable of making rational decisions for himself.1 He was also
yelling and combative.
Daniela Roberts, who was serving as the Hospital’s emergency
room’s charge nurse, believed that plaintiff was in immediate danger
of harming himself or others. In accordance with the Hospital’s
restraint and seclusion policy, nurse Roberts therefore decided that he
should be restrained on a cart and moved to an area away from other
patients. To accomplish this, nurse Roberts required the assistance of
three other persons: defendants Onyema, who was also a nurse; Dawn
Epley, the emergency room technician; and Jason Humphrey, the
hospital security guard.
Roberts, Onyema and the others succeeded in placing plaintiff on
the cart and securing him there using four-point “hard” (i.e., rigid)
restraints, which were locked over plaintiff’s wrists and ankles, then
attached to the cart with straps and buckles. Once plaintiff was thus
restrained, he was wheeled into a separate section of the emergency
room area known as the cast room, so called because it was where
casts were applied to the limbs of injured patients.
The cast room was partitioned off from the other parts of the
emergency room by windowless walls and a door. The room
contained a sink, electrical outlets, lights and equipment, and a variety
of supplies used in applying casts. Because of the danger of fire in
such an environment, the room was equipped with a heat detector. It
did not, however, have a smoke detector.
The Hospital had a different room it normally used to sequester
patients. The cast room was used for plaintiff instead because the
regular seclusion room was in use and the cast room was available. In
accordance with the Hospital’s policy, Hospital staff were required to
search plaintiff for contraband when he was restrained and
sequestered. That was not done. Pursuant to Hospital policy, a
physician was supposed to review the need to restrain him within an
1
When plaintiff’s blood-alcohol concentration was finally checked, it was
determined to be 0.384. That level was nearly five times the legal limit of
0.08 currently provided by the Illinois Vehicle Code (see 625 ILCS 5/11–501
(West 2006)), and approached concentrations regarded as lethal (see People
v. Taylor, 212 Ill. App. 3d 351, 355 (1991)).
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hour. That was not done. Hospital policy also required that staff check
on plaintiff’s behavior and degree of control at 15-minute intervals.
While nurse Roberts did look in on plaintiff according to that schedule
for the first hour, she became occupied with another emergency room
patient and did not check on plaintiff after 9 p.m.
Sometime after 9 p.m., an intern working in the emergency room
heard plaintiff yelling and went into the cast room to see what he
wanted. The intern ascertained that plaintiff required a urinal, then left,
advising a nurse of what was going on. Epley, the emergency room
technician, subsequently closed the door to the cast room so that other
emergency room patients would not have to listen to the noise plaintiff
was making.
At approximately 9:30 p.m., the heat alarm in the cast room
activated the emergency room’s fire alarm bells. A psychotherapist
named Tim Jenkins, who had been standing nearby, was the first to
respond. He opened the door and saw smoke and fire. Plaintiff was
still secured to the cart by the rigid restraints. He was on fire, as was
the wall behind him. Flames from the fire were so high they reached
the ceiling.
Jenkins attempted to extinguish the flames on plaintiff’s body
using a curtain that divided treatment bays in the cast room, but the
smoke and flames drove him from the room before he could put the
fire out. An intern named Dr. David Gilchrist then located a fire
extinguisher and was able to use it to stop the fire.
According to Epley, there was also fire on the floor of the room.
Epley got down on her hands and knees and put it out using a sheet
she had carried with her into the room. She then released the brakes
on the cart to which plaintiff was restrained and wheeled him into a
trauma room. Once plaintiff was in the trauma room, Epley cut the
restraints from his wrists and ankles. A physician named Simeakis
realized that plaintiff needed to be resuscitated and intubated him to
enable him to breathe. By this time a trauma team was on the scene
and plaintiff, who was badly burned, was transported by helicopter to
Loyola University Medical Center (Loyola).
When examined by doctors at Loyola, plaintiff was found to be
suffering from third degree burns to both upper extremities, inhalation
injury, and full thickness burns to the anterior torso, bilateral groins,
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genitalia, and bilateral lower extremities. Extensive debridement and
grafting was required. His right thumb and some of his fingertips had
to be amputated. Multiple surgeries were ultimately required,
including surgery on his penis and surgery to repair and reconstruct
his hands. Plaintiff remained on a respirator and unconscious for
weeks after the accident. As a result of his injuries he is unable to live
independently and will require the assistance of a care giver for the
remainder of his life.
An investigation of the fire was conducted by law enforcement
authorities, led by a detective from the Olympia Fields police
department. The detective was never able to reach an opinion as to
how or by whom the fire was started. A lab report indicated the
presence of an accelerent in plaintiff’s pants, but where the accelerant
came from was unknown. Although a State police officer reported to
the Olympia Fields detective that he had found a disposable lighter on
the floor of the cast room sometime after the fire had been
extinguished, the significance of that discovery, if it had any, could
never be ascertained by authorities. None of the witnesses who were
involved in putting the fire out or who were in the cast room
immediately before or after the blaze ever saw the lighter, the lighter
exhibited no apparent signs of fire damage, it bore no fingerprints, and
there was no evidence linking it to plaintiff. Plaintiff himself could not
even recall being at the Hospital, much less how the fire started.
Four days after the fire, the Hospital, through one of its
administrators, sent a letter to Daniela Roberts, the emergency room
charge nurse on duty when the accident occurred. The letter advised
nurse Roberts that her employment with the Hospital was being
terminated because of the incident involving plaintiff. Termination was
to take effect immediately based on an employee-behavior policy
authorizing such termination in cases involving negligence or patient
abuse or mistreatment.
Plaintiff ultimately brought a negligence action against defendants
in the circuit court of Cook County to recover damages for the
personal injuries he sustained as a result of the fire. As the case
progressed, plaintiff amended his complaint multiple times. The fifth
version, and the one at issue here, contained three counts. Count I
alleged that defendants had been negligent for restraining him
improperly, for failing to search him for contraband before restraining
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him on the cart, for not adequately monitoring him, and for not
providing timely notice to a physician that they had placed him in four-
point restraints in the cast room. Count II, directed solely against the
Hospital, averred that the institution was negligent for not installing
a smoke detector in the cast room and for failing to provide adequate
training to Hospital personnel regarding the proper use of fire
extinguishers.
The focus of this appeal is the third count. That count, which
named all defendants, asserted a claim for negligence based on the
doctrine of res ipsa loquitur. It alleged that (1) “in the ordinary course
of the operation of a hospital emergency room, fires do not start in the
rooms of patients who, like Plaintiff, Almon Heastie, are put in
restraints because they are at risk to harm themselves or who are not
capable of protecting themselves from harm” unless the hospital or its
personnel have been negligent, and (2) that “the cast room, the four-
point restraints, the manner in which the restraints were applied,
whether Plaintiff, Almon Heastie, was searched for items that could
cause him injury, such as matches or a lighter, and all other aspects of
the condition of Plaintiff” were under defendants’ control.
Defendants challenged plaintiff’s complaint in a combined motion
to dismiss under sections 2–615 and 2–619 of the Code of Civil
Procedure (735 ILCS 5/2–615, 2–619 (West 2004)).2 The section
2–615 component of the motion took issue with how issues of duty
had been pled in the complaint. The section 2–619 portion of the
motion raised a statute of limitations issue. See 735 ILCS
5/2–619(a)(5) (West 2004). Defendants’ motion also sought dismissal
of plaintiff’s res ipsa loquitur count, but did not specify the
procedural predicate on which that request for relief was based.
Following a hearing, the circuit court dismissed the res ipsa
loquitur count and reserved a ruling on the statute of limitations issue.
While defendants never indicated the procedural basis for their attack
on plaintiff’s res ipsa count and invoked evidentiary issues as well as
points of law and questions regarding the sufficiency of plaintiff’s
allegations, the circuit court treated this as a dismissal on the
2
Such combined motions to dismiss are permitted under section 2–619.1
of the Code of Civil Procedure (735 ILCS 5/2–619.1 (West 2004)).
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pleadings pursuant to section 2–615 of the Code of Civil Procedure
(735 ILCS 5/2–615 (West 2004)). As the court observed, “what [it
had] to decide at this moment is the complaint, not what the evidence
is because the Court hasn’t heard the evidence.”
After the court dismissed the res ipsa count based on the
complaint and the arguments of counsel, the cause proceeded to trial
before a jury. At the outset of the trial, the circuit court denied a
motion in limine filed by plaintiff seeking to bar defendants from
arguing that plaintiff himself was negligent or that his negligence
caused or contributed to his injuries. At the same time, the court also
granted motions in limine filed by defendants to prevent plaintiff from
presenting evidence that “something other than plaintiff” caused the
fire and to preclude testimony from certain of plaintiff’s experts or
others that the failure to perform a contraband check was the
proximate cause of plaintiff’s injuries.
Plaintiff moved for reconsideration of the in limine rulings. When
that request was denied, he filed a motion for a mistrial, arguing that
the circuit court’s rulings would preclude him from receiving a fair
trial. The circuit court rejected plaintiff’s argument and denied his
motion for mistrial. 3
In light of the circuit court’s pretrial rulings, including dismissal
of count III containing the res ipsa doctrine, plaintiff ultimately
proceeded before the jury only on two of the negligence theories set
forth in count I of his complaint, specifically, that defendants failed to
restrain him properly and had not properly and adequately monitored
him while he was in the restraints. Consistent with the circuit court’s
decision, the res ipsa doctrine was not argued to the jury. The claim
asserted by plaintiff in count II was also not presented to the jury, and
that count is not at issue on this appeal.
Defendants, for their part, urged the jury to reject plaintiff’s
claims on the grounds that plaintiff alone was responsible for the
injuries he sustained. Defendants’ theory was that because plaintiff
was by himself in the cast room when the fire started and because a
3
This initial mistrial motion was filed on June 20, 2003. Plaintiff made a
second motion for mistrial on July 11, 2003, at the conclusion of defendants’
evidence. It was also denied.
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lighter was subsequently found on the cast room floor, plaintiff must
have used the lighter to ignite the blaze.
As noted earlier, investigators were unable to establish the actual
cause of the fire. No one involved in the incident reported seeing the
lighter, and there were no fingerprints or other evidentiary items
connecting plaintiff to the lighter. Defendants, however, contended
that their theory was supported by an occupational therapist who
treated plaintiff after the accident. In particular, they cited an entry in
the therapist’s notes that “[p]er patient, did not mean to set self on
fire.”
The existence of the therapist’s entry was not disputed. Its basis,
however, was vigorously challenged. In the course of being
questioned at trial, the therapist admitted that she could not recall
what she had asked plaintiff to elicit this response or how exactly he
had communicated it to her when he was still intubated and could not
speak. In fact, she stated that she had no independent recollection that
plaintiff had ever told her anything about the fire’s origins.
The therapist surmised that her notation was based on the way
plaintiff nodded his head in response to something she asked him. She
admitted, however, that plaintiff was in pain and on intravenous pain
medication during the interview; that she did not know how well
oriented he really was; and that if plaintiff had nodded his head in
response to her question, she could not be sure whether he actually
meant “no, I didn’t start the fire” instead of “no, I didn’t mean to set
myself on fire.” In the end, she specifically conceded that she simply
could not say whether the assumptions on which her notation was
based were accurate or not.
Following the therapist’s testimony, plaintiff’s counsel sought
leave to present rebuttal evidence. The purpose of that evidence was
to refute defendants’ contention that plaintiff was solely responsible
for his own injuries by showing that if plaintiff did set himself on fire
with a lighter, as defendants theorized, he was able to do so only
because Hospital personnel had failed to search him for contraband,
as Hospital policy required. The circuit court rejected that request on
the grounds that the search was no longer an issue in the case.
At the conclusion of the trial, plaintiff tendered a set of proposed
jury instructions including negligence instructions containing the res
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ipsa doctrine. Plaintiff had prepared those instructions earlier to
correspond with count III of his amended complaint. Notwithstanding
the dismissal of count III, plaintiff argued in conference that the res
ipsa doctrine should still apply. The instructions were refused.
The jury ultimately returned a verdict in favor of defendants and
against plaintiff. Plaintiff filed a posttrial motion pursuant to section
2–1202 of the Code of Civil Procedure (735 ILCS 5/2–1202 (West
2004)), which was denied. Plaintiff then appealed to the appellate
court, raising numerous contentions of error pertaining to the
admissibility of evidence, the applicability of contributory negligence,
and the circuit court’s refusal to permit him to proceed on his res ipsa
loquitur claim.
The appellate court reversed and remanded for a new trial in an
unpublished order under Supreme Court Rule 23, with one justice
dissenting. In ruling as it did, the appellate court first held that plaintiff
had satisfied the elements of the res ipsa loquitur doctrine and that the
res ipsa count should not have been stricken from his fifth amended
complaint. The court further held that the circuit court erred in barring
plaintiff from presenting evidence that defendants had deviated from
the applicable standard of care by failing to search him for contraband
before restraining him to a bed in the emergency room. In the
appellate court’s view, plaintiff should have been allowed to present
that evidence to the jury along with defendants’ evidence that plaintiff
was responsible for his own injuries. Because the court concluded that
the foregoing errors entitled plaintiff to a new trial, it did not reach the
additional points of error plaintiff had raised. Heastie v. Roberts, No.
1–03–3463 (March 16, 2005) (unpublished order under Supreme
Court Rule 23).
Defendants moved for rehearing. After the appellate court denied
that motion, defendants petitioned our court for leave to appeal. 210
Ill. 2d R. 315. We denied that petition, but issued a supervisory order
directing the appellate court to vacate its Rule 23 order and to
reconsider the case in light of our opinion in Sullivan v. Edward
Hospital, 209 Ill. 2d 100 (2004). Heastie v. Roberts, 216 Ill. 2d 685
(2005) (table).
On remand, the appellate court concluded that the testimony
plaintiff sought to adduce regarding his claim that the defendant
nurses had deviated from the applicable standard of care did not
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comport with our holding in Sullivan v. Edward Hospital and that the
circuit court had therefore not abused its discretion when it granted
defendants’ motion in limine to exclude that evidence. The court
continued to hold, however, that the circuit court should not have
granted defendants’ motion to dismiss plaintiff’s claim based on res
ipsa loquitur. Applying the standards applicable to motions to dismiss
under section 2–615 of the Code of Civil Procedure (735 ILCS
5/2–615 (West 2004)), the court held that count III of plaintiff’s
complaint sufficiently set forth the elements of the res ipsa doctrine
and that the circuit court erred in striking the count from the
complaint. The appellate court therefore once again reversed and
remanded to the circuit court for a new trial. No. 1–03–3463
(unpublished order under Supreme Court Rule 23). As with the
original disposition, one justice dissented.
Following the appellate court’s second ruling, defendants filed a
new petition for leave to appeal. 210 Ill. 2d R. 315. The basis for that
petition was that the appellate court’s interpretation and application
of the res ipsa loquitur doctrine in this case was inconsistent with this
court’s decision in Sullivan v. Edward Hospital, 209 Ill. 2d 100
(2004), and represented an unwarranted expansion of the doctrine.
Defendants also asserted that prohibiting use of the doctrine in this
case was not reversible error because plaintiff failed to adduce
evidence to establish the elements of the doctrine and did not meet his
burden of proving proximate cause. Defendants’ petition was allowed.
210 Ill. 2d R. 315.
ANALYSIS
We begin our review with the question of whether the appellate
court erred in concluding that the circuit court should not have
prevented plaintiff from proceeding under count III of his amended
complaint, which relied on the doctrine of res ipsa loquitur. As
indicated earlier in this opinion, plaintiff was barred from proceeding
under that count before the trial commenced. The count was
eliminated from the litigation when the circuit court granted
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defendants’ motion to dismiss under section 2–615 of the Code of
Civil Procedure (735 ILCS 5/2–615 (West 2004)).4
Because an order granting a section 2–615 motion to dismiss
presents a question of law, our review is de novo. See Wakulich v.
Mraz, 203 Ill. 2d 223, 228 (2003). Whether the res ipsa loquitur
doctrine should apply in a particular case also presents a question of
law, so de novo review is appropriate for this reason as well. See
Gatlin v. Ruder, 137 Ill. 2d 284, 294 (1990).
A section 2–615 motion to dismiss challenges the legal
sufficiency of a complaint based on defects apparent on its face. In
reviewing the sufficiency of a complaint, a court must accept as true
all well-pleaded facts and all reasonable inferences that may be drawn
from those facts. In addition, the allegations in the complaint must be
construed in the light most favorable to the plaintiff. A cause of action
should not be dismissed under section 2–615 unless it is clearly
apparent that no set of facts can be proved that would entitle the
plaintiff to recovery. Marshall v. Burger King Corp., 222 Ill. 2d 422,
429 (2006).
Count III of plaintiff’s complaint asserts a common law action for
negligence based on the doctrine of res ipsa loquitur. The nature and
purpose of the res ipsa doctrine were aptly described by this court in
Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446, 448-49
(1965), where we wrote:
“When a thing which caused the injury is shown to be
under the control or management of the party charged with
negligence and the occurrence is such as in the ordinary
course of things would not have happened if the person so
charged had used proper care, the accident itself affords
reasonable evidence, in the absence of an explanation by the
4
Because the negligence count based on res ipsa was dismissed prior to
commencement of the trial, this case is distinguishable from decisions such
as Adams v. Family Planning Associates Medical Group, Inc., 315 Ill. App.
3d 533 (2000), where the claim based on res ipsa was not stricken until the
jury-instruction conference following the presentation of the evidence.
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party charged, that it arose from want of proper care.
[Citations.] This in essence is the doctrine of res ipsa
loquitur, and its purpose is to allow proof of negligence by
circumstantial evidence when the direct evidence concerning
cause of injury is primarily within the knowledge and control
of the defendant.”
Consistent with this view, we have held that a plaintiff seeking to
rely on the res ipsa doctrine must plead and prove that he or she was
injured (1) in an occurrence that ordinarily does not happen in the
absence of negligence, (2) by an agency or instrumentality within the
defendant’s exclusive control. Gatlin v. Ruder, 137 Ill. 2d at 295. In
setting forth the second element, some authorities speak of
“management and control” rather than “exclusive control,” but the
terms have come to be viewed as interchangeable. In either case, the
requisite control is a not a rigid standard, but a flexible one in which
the key question is whether the probable cause of the plaintiff’s injury
was one which the defendant was under a duty to the plaintiff to
anticipate or guard against. See Jones v. Minster, 261 Ill. App. 3d
1056, 1061 (1994); Darrough v. Glendale Heights Community
Hospital, 234 Ill. App. 3d 1055, 1060 (1992). The traditional
formulation of the doctrine also included a requirement that the injury
occurred under circumstances indicating that it was not due to any
voluntary act or neglect on the part of the plaintiff. Gatlin v. Ruder,
137 Ill. 2d at 295. Consistent with the principles of comparative fault
followed in this state, however, a plaintiff is no longer required to
plead and prove freedom from contributory negligence in order to
make out a prima facie case under the doctrine of res ipsa loquitur.
Dyback v. Weber, 114 Ill. 2d 232, 241 (1986).
As we have indicated, whether the res ipsa doctrine should apply
in a given case presents a question of law. It is a question which must
be decided in the first instance by the trial court. Imig v. Beck, 115 Ill.
2d 18, 27 (1986). That is so not only where the case sounds in
ordinary negligence. It is also true where medical malpractice is
alleged. See 735 ILCS 5/2–1113 (West 2004).
An action asserting negligence based on the theory of res ipsa
loquitur may be challenged on the pleadings, as this one was. See
Greenberg v. Michael Reese Hospital, 83 Ill. 2d 282, 294-96 (1980);
Walker v. Rumer, 72 Ill. 2d 495, 501-02 (1978); see also Collins v.
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Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d 812
(2003). In this case, however, the challenge should have been rejected.
Accepting as true the well-pleaded facts in plaintiff’s amended
complaint and the reasonable inferences that may be drawn from those
facts, and construing the allegations in the complaint in the light most
favorable to the plaintiff, we agree with the appellate court that the
trial court erred when it dismissed plaintiff’s res ipsa loquitur count
on the pleadings prior to trial.
Organic material is sometimes susceptible to spontaneous
combustion (see, e.g., City of Pana v. Central Washed Coal Co., 260
Ill. 111, 116 (1913); Lake Shore Nitro-Glycerine Co. v. Illinois
Central R.R. Co., 75 Ill. 394, 396 (1874)). So far as modern science
has been able to ascertain, the human body is not. If a person catches
fire, there must therefore be some external source of ignition, such as
an open flame, extreme heat or electrical current. One needs no
specialized medical knowledge to understand that allowing a patient
restrained on a bed and left alone in a hospital emergency room to be
exposed to an ignition source that sets him on fire, as plaintiff alleges
happened here, is something that does not ordinarily happen in the
absence of negligence. Plaintiff’s complaint therefore sufficiently
alleged the first element of the res ipsa loquitur doctrine.
The source of ignition has never been ascertained. As we have
indicated, however, plaintiff alleges that he was unable to move and
that no one else was present in the room. He was put in that room by
defendants, the room was owned and maintained solely by the
Hospital, and his condition was monitored and controlled exclusively
by defendants. Whatever the particular agency or instrumentality that
may have led to plaintiff’s being set ablaze, it thus appears likely to
have been under defendants’ exclusive control. We note, moreover,
that under Illinois precedent, plaintiff is not required to show that his
injuries were more likely caused by any particular one of the
defendants in order to proceed with his res ipsa claim, nor must he
eliminate all causes of his injuries other than the negligence of one or
more of the defendants. See Collins v. Superior Air-Ground
Ambulance Service, Inc., 338 Ill. App. 3d at 822-23. Plaintiff’s
complaint therefore also sufficiently alleged the second of the two
elements necessary for application of the res ipsa loquitur doctrine.
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Accordingly, the appellate court was correct to conclude that count
III of plaintiff’s complaint should not have been dismissed.
In urging this court to reach a contrary conclusion, defendants
cite to decisions such as Dyback v. Weber, 114 Ill. 2d 232, 242-43
(1986), and Bernardi v. Chicago Steel Container Corp., 187 Ill. App.
3d 1010, 1013 (1989), where applicability of the res ipsa loquitur
doctrine was rejected under circumstances where the origin of a fire
was uncertain. Unlike the matter before us, however, those cases did
not turn on the sufficiency of the pleadings. They involved situations
where evidence supported plausible explanations for the fire other
than negligence by the defendant. In Dyback, where a house
undergoing repair caught fire, the court noted the possibility of a
lightning strike or the commission of arson. Dyback, 114 Ill. 2d at
243. In Bernardi, where a worker was fatally burned while priming
the engine of a motorized vehicle, the evidence showed that the
process of priming an engine by pouring gasoline into the carburetor,
which is what the worker was doing when he was hurt, is dangerous
even where ordinary care is exercised. Moreover, unlike the situation
alleged to have existed here, the defendant in that case did not have
exclusive control of the instrumentality which caused the injury.
Control of or responsibility for the vehicle was divided between the
defendant and the worker who was fatally burned. Bernardi, 187 Ill.
App. 3d at 1022.
Defendants next argue that plaintiff should not have been
permitted to invoke the res ipsa doctrine because he lacked testimony
from a properly qualified and competent expert to substantiate the
proposition that hospital patients in plaintiff’s situation do not
ordinarily catch fire absent negligence. In defendants’ view, the acts
or omissions asserted in this case were in the nature of “nursing
negligence,” and the only medical expert proffered by plaintiff was a
doctor who was not competent under our court’s decision in Sullivan
v. Edward Hospital, 209 Ill. 2d 100, 121-23 (2004), to render an
opinion on the standard of care applicable to the nursing profession.
Permitting plaintiff to proceed under these circumstances would,
according to defendants, be tantamount to creating a res ipsa
exception to Sullivan v. Edward Hospital.
Plaintiff initially responds that our decision in Sullivan is
inapplicable to this litigation because it was not decided until months
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after the trial concluded. We must reject this contention. Although the
trial was over by the time we announced our decision in Sullivan,
plaintiff had filed a notice of appeal, and his cause remained pending
on direct review in the appellate court. It is well established that
decisions of our court normally apply retroactively to causes pending
at the time they are announced, including cases on direct review in the
appellate court. Miller v. Gupta, 174 Ill. 2d 120, 128 (1996).
The presumption that an opinion applies retroactively as well as
prospectively can be overcome in two types of circumstances. First,
the issuing court itself may expressly state that its decision will be
applied prospectively only. Aleckson v. Village of Round Lake Park,
176 Ill. 2d 82, 86 (1997). That situation is not present here. Sullivan
was not, by its terms, limited only to cases which followed it.
Second, a later court may, under certain circumstances, override
the presumption by declining to give the previous opinion retroactive
effect, at least with respect to the parties appearing before the later
court. Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 86
(1997). In considering whether a decision should not be applied
retroactively, the later court will consider.
“whether the decision to be applied nonretroactively
establishes a new principle of law, either by overruling clear
past precedent on which litigants may have relied, or by
deciding an issue of first impression whose resolution was not
clearly foreshadowed. If either of these criteria is met, the
question of prospective or retroactive application will be
answered by considering whether, given the purpose and
prior history of the rule, its operation will be retarded or
promoted by prospective or retroactive application and
whether prospective application is mandated by a balance of
equities.” Bogseth v. Emanuel, 166 Ill. 2d 507, 515 (1995).
Our decision in Sullivan did not establish a new principle of law.
The salient legal principles it articulated regarding the qualifications
of health-care experts followed the analysis of the appellate court,
whose judgment it affirmed. The appellate court’s judgment had been
filed the year before the trial in this case commenced and was
therefore in effect at the time the circuit court was called upon to
make its rulings here. Indeed, the appellate court’s opinion in Sullivan
was specifically discussed by the trial judge and counsel for the
-15-
parties. We further note that the appellate court’s decision cannot,
itself, be said to have established a new principle of law. As our
discussion in Sullivan indicates, the appellate court’s decision was
fully in accord with the past precedent of our court. Sullivan, 209 Ill.
2d at 122-23.
Because establishing a new principle of law is a threshold
requirement for limiting a new decision to prospective application
(Tosado v. Miller, 188 Ill. 2d 186, 197 (1999)), and because Sullivan
did not cross this threshold, we have no need to consider the
additional factors applicable to the assessment of whether Sullivan
should only be applied to cases which followed it. The presumption
that the decision should be applied retroactively as well as
prospectively has not been overcome, and the case before us is
therefore subject to its principles.
Although we reject plaintiff’s contention that Sullivan should not
apply to this litigation, we agree with him that our decision in that
case cannot be invoked as a basis for upholding the circuit court’s
dismissal of his res ipsa count. Defendants’ charge that allowing
plaintiff to go forward with that claim would be tantamount to
creating a res ipsa exception to the principles set forth in Sullivan is
wholly without merit.
A preliminary flaw in defendants’ argument is that it presupposes
that expert medical testimony is a prerequisite to invocation of the res
ipsa doctrine. That is clearly not the case. To be sure, the
determination as to whether the res ipsa loquitur doctrine should
apply in a given case may be based on expert testimony. Nothing in
Illinois law, however, makes expert testimony a prerequisite to
reliance on the doctrine in every case. That is so even in medical
malpractice actions. Under section 2–1113 of the Code of Civil
Procedure (735 ILCS 5/2–1113 (West 2004)), a trial court is
specifically authorized to rely upon either “the common knowledge of
laymen, if it determines that to be adequate” or upon expert medical
testimony. 735 ILCS 5/2–1113 (West 2004). For the reasons we have
previously discussed, we believe this is one of those situations where
the common knowledge of laymen is sufficient.
Next, as our opinion has indicated, defendants’ Sullivan challenge
is predicated on the evidence presented at trial. The problem with that
is twofold. First, it fails to recognize that the res ipsa question was
-16-
decided at the pleading stage in the context of a motion to dismiss. A
motion to dismiss under section 2–615 tests only the legal sufficiency
of the complaint based on facial defects. Tuite v. Corbitt, 224 Ill. 2d
490, 509 (2006). It does not assess the underlying facts. See Oliva v.
Amtech Reliable Elevator Co., 366 Ill. App. 3d 148, 151 (2006).
What the evidence presented at trial showed or failed to show is
therefore irrelevant to the determination of whether defendants’
motion to dismiss was properly granted.
Second, because plaintiff was precluded from invoking the res
ipsa doctrine when count III was dismissed on the pleadings, he
cannot be faulted for failing to buttress his res ipsa arguments with
additional evidentiary support. In light of the circuit court’s initial
determination that plaintiff could not invoke the res ipsa doctrine, any
attempts to present additional evidence regarding that doctrine would
have been unavailing.
In addition to their arguments about expert testimony, defendants
contend that the res ipsa count was properly stricken because plaintiff
never introduced any evidence of what caused the fire and failed to
establish that the instrumentality responsible for triggering the blaze
was under their control. Again, however, these arguments are
misguided. The sufficiency of the evidence is not germane to the
determination of whether a count in a complaint was properly
dismissed on the pleadings.
We note, moreover, that while reliance on the res ipsa doctrine
may normally require that the injury can be traced to a specific cause
for which the defendant is responsible, Illinois law also authorizes use
of the doctrine where it can be shown that the defendant was
responsible for all reasonable causes to which the accident could be
attributed. See Napoli v. Hinsdale Hospital, 213 Ill. App. 3d 382, 388
(1991); see also W. Keeton, Prosser & Keeton §39, at 248 (5th ed.
1984). That is precisely the situation plaintiff claims to have been
present here.
Similarly, Illinois law does not require a plaintiff to show the
actual force which initiated the motion or set the instrumentality in
operation in order to rely on the res ipsa doctrine. To the contrary, if
the specific and actual force which initiated the motion or set the
instrumentality in operation were known unequivocally, leaving no
reason for inference that some other unknown negligent act or force
-17-
was responsible, the res ipsa doctrine could not even be invoked. See
Collgood, Inc. v. Sands Drug Co., 5 Ill. App. 3d 910, 916 (1972); see
also 65A C.J.S. Negligence §759, at 555 (2000) (“The res ipsa
loquitur rule aids the injured party who does not know how the
specific cause of the event that results in his or her injury occurs, so
if he or she knows how it comes to happen, and just what causes it
*** there is no need for the presumption or inference of the
defendant’s negligence as afforded by the *** rule”).
Some authorities have held that in order for the res ipsa doctrine
to be employed, the defendant must have superior knowledge or
means of knowing the cause of the accident. Under this view, if the
plaintiff and the defendant have equal knowledge of the cause of the
accident and equal ability to discover facts concerning it, the doctrine
is inapplicable. 65A C.J.S. Negligence §750, at 532-33 (2000). The
soundness of this view has been challenged. Prosser, for example,
writes:
“It is difficult to believe that this factor [i.e., unequal
knowledge and accessibility to evidence] ever can be
controlling, or more than at best a makeweight. If the
circumstances are such as to create a reasonable inference of
the defendant’s negligence, it cannot be supposed that the
inference would ever be defeated by a showing that the
defendant knew nothing about what had happened ***.
***
The plaintiff’s comparative ignorance of the facts in the
type of cases under consideration no doubt provides some
argument for the validity of the principle of res ipsa loquitur,
and undoubtedly it has had some persuasive effect in making
courts more willing to apply the doctrine. *** But it cannot
be regarded as an indispensable requirement, and there are
few cases in which it can be said to have had any real
importance.” W. Keeton, Prosser & Keeton on Torts §39, at
254-55 (5th ed. 1984).
The notion that a defendant’s superior knowledge is a
prerequisite to use of the res ipsa doctrine has been rejected by
various jurisdictions (see 65A C.J.S. Negligence §750, at 534 (2000))
and by the Restatement (Second) of Torts. Section 328D, comment
-18-
k, of the Restatement echoes some of the points raised by Dean
Prosser:
“It frequently is said by courts that one basis for the
application of the principle of res ipsa loquitur is the
defendant’s superior knowledge, or his superior opportunity
to obtain it, as to how the event occurred. This statement
usually is made as an additional reason for permitting the
inference of negligence where it can otherwise be drawn, or
for refusing to permit the inference where it cannot otherwise
be drawn. Undoubtedly the fact that in res ipsa loquitur cases
defendants in general have such superior knowledge, or
access to it, has been a very persuasive factor in the
development of the principle. Cases are, however, very few
in which this has ever been the decisive factor. Obviously the
inference of the defendant’s negligence and responsibility may
still be drawn in cases where the event is of a kind which
does not usually occur without negligence and all reasonably
probable causes were under the control of the defendant,
even though it is quite clear from the facts that he does not
know and cannot know what has happened. Such superior
knowledge, or opportunity to obtain it, is therefore not a
requirement for the application of the rule stated in this
Section.” Restatement (Second) of Torts §328D, Comment
k, at 164 (1965).
In discussing when res ipsa can be invoked, the courts of this
State have sometimes referred to situations in which “direct evidence
concerning cause of injury is primarily within the knowledge and
control of the defendant.” Metz, 32 Ill. 2d at 449. To our knowledge,
however, no Illinois decision has expressly addressed the superior-
knowledge rule or held that showing superior knowledge by the
defendant is a prerequisite to use of the doctrine. To the contrary, the
established view in this state appears to be that a plaintiff is not
required to establish that a defendant had superior knowledge of the
facts or superior accessibility to the evidence in order to prevail in a
negligence action based on res ipsa loquitur. See Illinois Pattern Jury
Instructions, Civil, No. 22.01 (2006).
Whether the superior-knowledge rule is a sound principle of law
and whether it should be adopted in Illinois are not matters we need
-19-
to resolve today. As we have mentioned at various points in this
opinion, the res ipsa count was disposed of at the pleadings stage.
Even if the superior-knowledge rule represented the law of Illinois, the
pleadings themselves offer no possible basis for holding that plaintiff
rather than the defendants had superior knowledge or means of
knowing the cause of the accident. According to plaintiff’s fifth
amended complaint, plaintiff’s ability to appreciate the circumstances
around him was seriously diminished. He was extremely intoxicated,
at risk of harm to himself, unable to protect himself from injury, and
strapped down with four-point restraints.
The Hospital, by contrast, knew or could readily have ascertained
every aspect of what transpired after plaintiff was brought to the
emergency room. It owned and maintained the premises on which
plaintiff was injured. It was responsible for the condition of the room
where plaintiff was sequestered and, according to the complaint, the
defendants were responsible for creating the conditions under which
defendant was restrained and confined. They also had the ability to
monitor plaintiff’s situation and take appropriate action should
problems arise. If anyone had superior knowledge of the cause of the
accident or superior ability to discover facts concerning how the
accident occurred, it would therefore appear to be defendants.5
On retrial, it will be incumbent upon plaintiff to persuade the jury
that his res ipsa loquitur theory provides a valid basis for imposing
liability on defendants. As discussed in this opinion, and as noted by
the appellate court, the res ipsa loquitur doctrine is a species of
circumstantial evidence. Like any other proof, it may be rebutted by
the opposing party. If contrary evidence is proffered by defendants,
the inference or presumption of negligence will not dissolve. Rather,
it will remain to be considered with all the other evidence in the case
and must be weighed by the jury against the direct evidence offered by
5
Although we are concerned here only with the pleadings, the evidence
adduced at trial suggests that it is very unlikely that the superior-knowledge
rule will prove an impediment to plaintiff’s use of the res ipsa doctrine.
Plaintiff testified that he had no recollection of even being present at the
Hospital on the night he was burned, much less how the fire began. In fact,
he testified that he remembers nothing about the experience prior to waking
up at Loyola several days later. That testimony was uncontradicted.
-20-
defendants. Gatlin, 137 Ill. 2d at 294, quoting Metz, 32 Ill. 2d at 448-
50. Whether plaintiff will ultimately succeed in making his case with
the jury is not a question that is properly before us. Our sole inquiry
is whether the allegations in plaintiff’s complaint were sufficient to
state a cause of action for negligence based on the res ipsa loquitur
doctrine. For the reasons we have just explained, we agree with the
appellate court that they were.
In describing the events which occurred in the trial court, we
have observed that plaintiff tendered res ipsa loquitur instructions at
the conclusion of the case, notwithstanding the fact that the res ipsa
theory had been eliminated from the litigation when the trial court
dismissed count III of plaintiff’s fifth amended complaint on the
pleadings. Based upon the evidence that was ultimately adduced at
trial, one might argue that the circuit court should have reconsidered
its position and allowed plaintiff’s res ipsa instructions to be read to
the jury. The threshold for giving an instruction in a civil case is, after
all, not a high one. Generally speaking, litigants have the right to have
the jury instructed on each theory supported by the evidence. Whether
the jury would have been persuaded is not the question. All that is
required to justify the giving of an instruction is that there be some
evidence in the record to justify the theory of the instruction. The
evidence may be insubstantial. LaFever v. Kemlite Co., 185 Ill. 2d
380, 406 (1998).
While the threshold for permitting an instruction in a civil case is
modest, the standard for reversing a judgment based on failure to
permit an instruction is high. The decision as to which jury
instructions to use falls within the discretion of the trial court. A
reviewing court will not disturb the trial court’s determination unless
the trial court has abused its discretion, and a new trial will be granted
only when the refusal to give a tendered instruction results in serious
prejudice to a party’s right to a fair trial. See Stift v. Lizzardo, 362 Ill.
App. 3d 1019, 1025-26 (2005).
Whether this standard has been satisfied in the case before us is
an issue we need not reach. Plaintiff has not raised the failure to give
the res ipsa instruction as an additional source of reversible error, and
in light of our conclusion that plaintiff is entitled to a new trial in any
event based on the dismissal of his res ipsa count, resolution of the
question could have no possible effect on the outcome of the case.
-21-
In contesting the appellate court’s judgments in this case,
defendants have focused on the viability of plaintiff’s res ipsa count
and the applicability of our decision in of Sullivan v. Edward Hospital,
209 Ill. 2d 100 (2004). These, however, are not their only complaints.
They also seek to raise an additional and distinct basis for challenging
the appellate court’s judgment, namely, that under any of the
negligence theories asserted by plaintiff, they should have been
granted a directed verdict.
Defendants’ argument is untenable, both procedurally and
substantively. Our court has long held that a verdict should be directed
only in those cases in which all of the evidence, when viewed in its
aspect most favorable to the opponent, so overwhelmingly favors the
movant that no contrary verdict based on that evidence could ever
stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510
(1967). With respect to the theories of recovery at issue on this
appeal, i.e., plaintiff’s claim based on the doctrine of res ipsa loquitur
and his failure-to-search claim, this standard can have no application.
The reason is obvious: the circuit court’s rulings precluded plaintiff
from presenting either of those theories to the jury. If the claims were
not part of the case, the circuit court can scarcely be faulted for having
failed to direct a verdict on them in defendants’ favor, and we have no
basis for holding that a directed verdict should be entered on them
now.
We note, moreover, that while the circuit court made directed
findings with respect to a number of specific issues in the case,
defendants’ request for a directed verdict was denied in all other
respects. Defendants then proceeded to present evidence of their own.
In civil as in criminal cases, a defendant who elects to present
evidence after his or her motion for directed verdict has been denied
is deemed to have waived any right to a directed verdict. People ex
rel. Kubala v. Woods, 52 Ill. 2d 48, 54 (1972).
Defendants seek to avoid waiver by arguing that they should be
allowed to raise any issue in support of the trial court’s judgment.
Whether that doctrine can properly be applied under the circumstances
present here, where the judgment was based on a jury’s verdict, is
questionable. That is so because holding that a directed verdict should
have been granted would not be an alternative basis for affirming what
-22-
the jury did. To the contrary, it would, as a technical matter, render
the jury’s deliberations and subsequent verdict a nullity.
Even if the question of defendants’ entitlement to a directed
verdict had been properly raised and preserved, it would fail on the
merits. Defendants’ argument that they were entitled to a directed
verdict under any of the theories of recovery advanced by plaintiff is
predicated on two points. The first is that plaintiff’s failure to call an
expert who met the requirements of our decision in Sullivan was fatal,
as a matter of law, to his right to recovery. For the reasons we have
just discussed, Sullivan is not a bar to plaintiff’s claim based on the res
ipsa doctrine. For reasons set forth later in this opinion, it is likewise
not a fatal barrier to his failure-to-search claim.
Defendants’ second argument is that because of the uncertainty
regarding the origin of the fire, plaintiff cannot establish that anything
defendants did or failed to do was a proximate cause of his injuries. As
the discussion which follows will show, defendants’ proximate cause
argument is untenable. Proximate cause is ordinarily a question of fact
for the jury to decide. See Elliott v. Williams, 347 Ill. App. 3d 109,
113 (2004). Under the circumstances present here, plaintiff should
have been permitted to argue to the jury that defendants’ failure to
search him for contraband was a proximate cause of his injuries.
For the foregoing reasons, we reject the arguments raised by
defendants that the judgment of the appellate court should be
reversed. This, however, does not end our inquiry, for an additional
challenge to the appellate court’s judgment has also been raised by
plaintiff. He contends that we should reverse the appellate court’s
judgment to the extent that it upheld the trial court’s decision barring
him from presenting evidence that defendants had deviated from the
standard of care by failing to search him for contraband before they
restrained him on the cart and left him unattended in the cast room.
In evaluating this claim, we begin by noting that no question has
been raised as to plaintiff’s right to assert it. Although plaintiff did not
file a separate petition for leave to appeal, none was required. Plaintiff
is entitled to raise the additional issue under Rule 318(a), which
provides that in all appeals “any appellee, respondent, or coparty may
seek and obtain any relief warranted by the record on appeal without
having filed a separate petition for leave to appeal or notice of cross-
appeal or separate appeal.” 155 Ill. 2d R. 318(a). This court has
-23-
invoked Rule 318(a) in finding that allowance of one party’s petition
for leave to appeal brings before this court the other party’s requests
for cross-relief. See Tri-G, Inc. v. Burke, Bosselman & Weaver, 222
Ill. 2d 218, 242 (2006); Weatherman v. Gary-Wheaton Bank of Fox
Valley, N.A., 186 Ill. 2d 472, 490 (1999). Defendants do not dispute
that it is appropriate for us to reach the same conclusion here.
In order to properly analyze plaintiff’s contention, it is important
to place it in its appropriate context. The question of defendants’
failure to search plaintiff for contraband was mentioned twice in
plaintiff’s fifth amended complaint. It was one of the specific forms of
negligence asserted in count I. It was also listed in count III, the res
ipsa count, as being among the conditions under the shared control of
defendants which may have led to the fire which caused plaintiff’s
injuries.
The argument that defendants should be held liable for failing to
search plaintiff was advanced by plaintiff as a counter to defendants’
theory that because plaintiff was alone in the cast room when the fire
started and because a lighter was subsequently found on the cast-room
floor, plaintiff must have used the lighter to ignite the blaze and he,
rather than defendants, was therefore solely responsible for his
injuries. As we have described, plaintiff attempted to foreclose
defendants from pursuing this theory by filing a motion in limine to
bar them from arguing that plaintiff himself was negligent or that his
negligence caused or contributed to his injuries. Plaintiff advanced two
grounds in support of the motion. First, he contended that even if he
did start the fire, that action was not the proximate cause of his
injuries as a matter of law. Rather, his injuries were caused by
defendants’ failure to follow the Hospital’s policy regarding the
procedures to be followed when patients are restrained, including the
requirement that they be searched for contraband. Second, he argued
that he was so intoxicated at the time of the accident that he was, as
a matter of law, incapable of exercising due care for his own safety.
Defendants, for their part, not only opposed plaintiff’s motion,
they submitted a motion in limine of their own asking that plaintiff be
barred from presenting “any testimony that something other than the
plaintiff caused the fire which injured him.” As grounds for that
motion, defendants argued that “[a]ny evidence, testimony, argument
or reference proffered by plaintiff that someone or something other
-24-
than Almon Heastie caused the fire would be entirely speculative,
contrary to all the evidence, and prejudicial to the defendants.”
Defendants also filed additional motions in limine in which they
sought to bar plaintiff from presenting expert testimony from a
medical doctor named Segal, from a registered nurse named Houdek,
or from anyone else to the effect that defendants had deviated from
the standard of care by, among other things, not performing a
contraband check on him. The basis for these motions had nothing to
do with the witnesses’ qualifications. Rather, defendants asserted that
the testimony should not be allowed because neither Segal nor
Houdek had an opinion as to how the fire had started, they could not
say what such a contraband search would have disclosed, and neither
they nor any other expert had opined that defendant’s alleged
deviations from the standard of care were the proximate cause of
plaintiff’s injuries.
The circuit court denied plaintiff’s motion in limine regarding his
own alleged negligence and allowed defendants’ motion barring
plaintiff from presenting “any testimony that something other than the
plaintiff caused the fire which injured him.” The court also granted the
defendants’ motions in limine barring testimony from Houdek, Segal
or others concerning the failure to search for contraband. In ruling as
it did, the circuit court agreed with defendants’ contention that there
was no evidence to support the proposition that their failure to search
plaintiff for contraband was the proximate cause of his injuries. As
noted previously in this opinion, plaintiff’s motions for reconsideration
and for a mistrial were denied. The result was that plaintiff was unable
to present his failure-to-search theory to the jury.
When the appellate court initially reviewed this case, it agreed
with plaintiff that the circuit court’s refusal to permit him to submit his
failure-to-search theory to the jury was error. The appellate court
reasoned that if defendants were allowed to argue that plaintiff set
himself on fire with his own lighter, then plaintiff should have been
permitted to advance his claim that defendants should have searched
plaintiff’s person for such potentially dangerous items before
restraining him and that their failure to do so constituted actionable
negligence.
One member of the appellate court dissented. The dissenting
justice rejected the majority’s resolution of this issue for two reasons.
-25-
The first was relevance. The dissenting justice observed that plaintiff’s
attempt to present evidence of the failure to search had initially been
rejected by the circuit court because plaintiff denied that he had
started the fire or that he had ever possessed the lighter. If, as plaintiff
asserted, the lighter was not his and he did not use it to start the fire,
then whether or not he was searched was immaterial. If there was no
lighter, the search would have yielded nothing and the failure to search
could not have been a proximate cause of plaintiff’s injuries.
The dissent further noted that plaintiff also sought to present
evidence on the failure to search by way of rebuttal. According to the
dissenting justice, that was not appropriate either. Citing Hoem v. Zia,
239 Ill. App. 3d 601, 618 (1992), aff’d, 159 Ill. 2d 193 (1994), the
dissenting justice reasoned that rebuttal evidence is evidence offered
to explain, repel, contradict or disprove evidence presented by the
defendant. What plaintiff sought to rebut was evidence presented
during defendants’ case in chief that plaintiff had admitted to another
party that he had set himself on fire. The dissenting justice wrote,
however, that whether defendants breached a standard of care by
failing to search plaintiff for contraband was not something which
helped explain, repel, contradict or disprove the contention that
plaintiff was responsible for setting the fire himself.
The second basis for the dissenting justice’s view concerned the
competency of plaintiff’s evidence. The dissenting justice held that the
witnesses called by plaintiff, including Bernard Presutti, a former
hospital administrator, and Dr. Marshall Segal, a medical doctor and
licensed attorney, were not qualified to address the standard of care
for emergency-room nurses and other personnel under this court’s
decision in Sullivan v. Edward Hospital, 209 Ill. 2d 100 (2004). The
dissenting justice therefore concluded that the circuit court’s judgment
should have been affirmed.
As we have already described, defendants petitioned for leave to
appeal. Although their petition was denied, this court entered a
supervisory order directing the appellate court to vacate its judgment
and reconsider its decision in light of Sullivan v. Edward Hospital,
209 Ill. 2d 100 (2004). When the appellate court undertook that
reconsideration, it did not change its position with regard to the res
ipsa issue. The only substantive change it made to its decision was to
adopt the position advanced by the dissenting judge in the original
-26-
proceeding regarding the competency of Presutti and Segal. The
majority opined that because Presutti and Segal were not licensed
nurses, they were not competent under Sullivan to offer testimony
regarding the standard of care of nurses. The court therefore
concluded that the circuit court had not erred in precluding plaintiff
from pursing his claim that defendants had deviated from the standard
of care by failing to search him for contraband.
In reviewing this aspect of the appellate court’s decision, we
begin by noting that, in a very narrow sense, the appellate court was
correct. Because neither Presutti nor Segal was a licensed nurse, it is
true that neither was competent under Sullivan to testify regarding the
standard of care governing the nursing profession, nor were they
competent to offer opinions as to whether the defendant nurses in this
case had violated that standard of care.
The problem with the appellate court’s analysis is that it attempts
to resolve the dispute over plaintiff’s failure-to-search theory based
solely on the qualifications of the particular witnesses. That approach
is unsound for a number of reasons. First, it assumes that Segal and
Presutti were the only experts plaintiff could have called to testify
regarding whether defendants’ failure to search violated the applicable
standard of care. How the appellate court reached this conclusion is
unclear. The record suggests that plaintiff could present alternative
witnesses to speak to that question and would be willing to do so, if
necessary, on retrial.
Second, the appellate court found Segal and Presutti deficient
under our decision in Sullivan because neither of them was a
registered nurse. Their lack of nursing credentials, however, was
relevant only to their competence to address issues of medical
malpractice involving nurses. The defendants in this case were not
limited to nurses. They also included the Hospital itself and
nonnursing hospital personnel.
Third, while nurses were an integral part of the events leading up
to the accident in which plaintiff was injured, the fact that these and
other medical professionals were involved does not, in itself, mean
that expert medical testimony was necessary to establish the standard
of care. Not every injury sustained by a patient in a hospital results
from healing art malpractice. See Giegoldt v. Condell Medical Center,
328 Ill. App. 3d 907, 911 (2002). Hospitals also have administrative
-27-
and managerial duties toward patients, a breach of which may subject
them to liability. Advincula v. United Blood Services, 176 Ill. 2d 1, 28
(1996).
Edelin v. Westlake Community Hospital, 157 Ill. App. 3d 857
(1987), involved such a situation. In that case, a hospital patient was
allowed to leave the hospital’s premises without an escort following
her discharge. On the way out, she slipped and fell in the hospital’s
lobby, injuring herself. The appellate court ruled that expert medical
testimony was not necessary to sustain the injured patient’s cause of
action because, among other things, the gravamen of her claim was
not negligence in furnishing medical treatment, but rather the breach
of an administrative duty to provide discharged patients with an escort
according to the hospital’s own policy. Edelin v. Westlake Community
Hospital, 157 Ill. App. 3d at 862.
A similar case is Mooney v. Graham Hospital Ass’n, 160 Ill.
App. 3d 376 (1987), where a physician noted on the chart of a
postoperative hospital patient that the patient was permitted to get up
and go to the bathroom whenever she wished. When the patient
attempted to do so, she slipped on a pool of liquid that had
accumulated on the floor of her hospital room and fell, injuring
herself. The patient subsequently sued the hospital to recover damages
for her injuries. The hospital sought dismissal of the patient’s
complaint on the ground that she had failed to provide a supporting
affidavit from a health professional required by section 2–622 of the
Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2–622) for
cases involving healing-art malpractice. The circuit court denied that
motion and the appellate court affirmed. It held that plaintiff’s cause
of action implicated the hospital’s obligations as owner or occupier of
the premise rather than as a provider of medical treatment. The action
therefore it sounded in ordinary negligence rather than healing-art
malpractice, and the requirement of certification by a health
professional was inapplicable. See also Block v. Michael Reese
Hospital & Medical Center, 93 Ill. App. 3d 578 (1981) (hospital liable
in ordinary negligence for injuries sustained by a hospital patient who
was left unattended after undergoing diagnostic tests in violation of a
hospital policy, adopted for the safety and convenience of patients,
which required that patients be escorted back to their rooms following
tests).
-28-
In our view, plaintiff’s failure-to-search claim likewise falls within
the category of ordinary negligence rather than healing-art
malpractice. Whether a hospital patient should be restrained involves
the exercise of medical judgment. Eads v. Heritage Enterprises, Inc.,
204 Ill. 2d 92, 100 (2003); see Giegoldt, 328 Ill. App. 3d at 910.
Whether the patient should be searched for potentially dangerous
contraband before being restrained and sequestered does not.
Prerestraint contraband searches are wholly unrelated to the
diagnosis or treatment of a patient’s condition. They serve no medical
function of any kind. Their purpose is purely safety related,
specifically, to insure that a patient who is going to be restrained and
then left alone will not have access to implements which may be used
to effect an escape, inflict harm on himself or others, or destroy
property. Such a purpose bears on a hospital’s administrative and
management functions, not its delivery of medical care.
In fulfilling its administrative and managerial duties, a hospital
must conform to the standard of “reasonable conduct” in light of the
apparent risk. Advincula, 176 Ill. 2d at 29. Expert testimony is not
necessarily required to determine whether administrative or
managerial negligence has occurred. Jones v. Chicago HMO, Ltd. of
Illinois, 191 Ill. 2d 278, 296 (2000). Whether a hospital has been
reasonably careful may be shown by a wide variety of evidence,
including, but not limited to, expert testimony, hospital bylaws,
statutes, accreditation standards, custom and community practice.
Advincula, 176 Ill. 2d at 29.
In advancing his position here, plaintiff cited the failure of the
hospital and its personnel to adhere to written hospital policy requiring
patients to be searched for contraband prior to being placed in
restraints. This was appropriate. Our precedent makes clear that a
hospital’s customs or policies are among the types of information
which may be presented to the jury to assist it in determining a
hospital’s duty to a patient. While such policies are not determinative
of the standard of care, the failure of a hospital to follow its policies
can be evidence of a breach of the hospital’s duty to a patient. See
Greenberg v. Michael Reese Hospital, 83 Ill. 2d 282, 292-93 (1980);
Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326,
331-32 (1965).
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Just as medical testimony was not a prerequisite to plaintiff’s
failure-to-search claims against the Hospital, it was not necessary to
sustain plaintiff’s failure-to-search claims against the various medical
professionals involved in this litigation. Whether expert medical
testimony is necessary in a given case depends on whether ascertaining
the applicable standard of care, determining whether there was a
deviation from that standard, and evaluating whether there was an
injury proximately caused by that deviation require consideration of
knowledge, skill, or training in a technical area outside the
comprehension of a lay person. See Prairie v. University of Chicago
Hospitals, 298 Ill. App. 3d 316, 321 (1998). Expert testimony is not
required if the health-care provider’s conduct is so grossly negligent
or the treatment so common that a layman could readily appraise it
(Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 59 (2000)) or where the
act alleged to be negligent is not an implicit part of the medical
procedure (see Jones v. Dettro, 308 Ill. App. 3d 494, 498 (1999)).
This is such a case. Whether a contraband search should be
conducted before a patient is restrained and sequestered is not a
determination for which any specialized training or expertise is
necessary. Under the Hospital’s policy, the only patients subject to
involuntary mechanical restraint are those exhibiting behavior which
poses a threat of personal injury to them or others or which may lead
to the destruction of property. Whenever a patient is so agitated that
he poses a danger to himself and others, as the plaintiff in this case
unquestionably was, basic common sense dictates that before he is tied
down and left alone, any implements he could use to harm himself or
facilitate his escape should be removed from his person. Restraints,
after all, are not foolproof. In the struggle to apply them, hospital
personnel may not tighten them sufficiently. Even tight restraints may
be loosened by a sufficiently powerful, violent or persistent patient.
Pockets or other hiding places may then be reached and dangerous
implements accessed. The potential for disaster is exacerbated
because, when sequestered, the patient will have the opportunity to
act without being observed by others.
One need not be a doctor, a nurse or any other kind of health
provider to appreciate these risks. Nor is any special medical
knowledge necessary to realize that such risks can be readily avoided
simply by searching the patient for contraband before he is tied down
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and left alone. These are matters that a lay person could readily
understand. As a result, the trial court’s decision to bar plaintiff from
advancing a failure-to-search theory cannot be justified on the grounds
that witnesses proffered by plaintiff were not competent under our
decision in Sullivan v. Edward Hospital, 209 Ill. 2d 100 (2004). To
the extent the appellate court held otherwise, its judgment cannot be
sustained.
The appellate court’s judgment likewise cannot be sustained
under the rationale actually advanced by defendants and upon which
the circuit court relied, namely, that because plaintiff himself could
produce no evidence establishing that he was carrying a lighter at the
time he was restrained and left unattended in the cast room, he was
precluded from claiming that defendants’ failure to search him for
contraband was a proximate cause of his injuries under any negligence
theory. Although the dissent from the appellate court’s original
decision in this case found this theory persuasive, it cannot withstand
scrutiny.
It is true, of course, that in any negligence action, the plaintiff
bears the burden of proving not only that defendant was under a duty
and breached it, but also that defendant’s breach of duty proximately
caused plaintiff’s injuries. Leonardi v. Loyola University of Chicago,
168 Ill. 2d 83, 93 (1995). It is also true that the plaintiff in this case
adduced no evidence himself to prove that he was carrying a lighter
at the time he was involuntarily restrained. The record makes clear,
however, that at the same time defendants sought to block plaintiff’s
failure-to-search claim on the grounds that he could not prove that he
was carrying the lighter at the time he was injured, defendants
themselves made the existence of that lighter and its presence on
plaintiff’s person the cornerstone of their defense that plaintiff alone
was solely responsible for his injuries. If defendants were allowed to
make the case that there was a lighter and that plaintiff could still
reach it despite being restrained, we fail to see any reason why plaintiff
should not, in turn, have been permitted to use the facts adduced or
admitted by defendants to buttress his alternative theory of recovery
that the failure to search him for contraband was a proximate cause of
his injuries. Facts, after all, do not belong only to the party who
proves them. Were it otherwise, admissions by an adverse party could
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not be used by a plaintiff to meet his or her burden of proof, and the
presentation of evidence would be needlessly duplicative.
The trial court in this case was concerned that parties to litigation
ought not be allowed to take factually inconsistent positions in arguing
their claims to a jury. The court’s sensitivity to consistency, however,
was not applied in an evenhanded way. If defendants were allowed to
argue that plaintiff was carrying the lighter and used it to set himself
on fire, as they were, then consistent with that view, they could
scarcely deny the possibility that a search of plaintiff’s person might
have disclosed the presence of the lighter and prevented the fire from
occurring. Yet, the trial court’s rulings allowed them to do just that.6
In fact, by ruling in limine that plaintiff was barred from “presenting
any testimony that something other than the plaintiff caused the fire
which injured him,” the circuit court insulated defendants from having
to answer any charge that they were in any way culpable for plaintiff’s
immolation. We think it no exaggeration to say that the court’s ruling
was tantamount to granting a directed verdict before any evidence had
even been presented. Neither the Code of Civil Procedure (735 ILCS
5/1–101 et seq. (West 2004)) nor the rules of our court countenance
such a procedure.
Wholly aside from that, the circuit court’s concerns over
consistency were unfounded. During the trial, plaintiff did not attempt
to both disclaim and claim the lighter at the same time. His position,
which we have discussed before, was that he had no knowledge of the
lighter and there was no evidence to link it to him, but that if the jury
believed defendant’s theory that he used the lighter to set himself on
fire, he was able to do so only because defendants were negligent in
failing to search him for contraband and monitoring in accordance
with Hospital policy. There is no inconsistency in this.
Moreover, to the extent that plaintiff’s position could be
perceived as containing some inconsistency, that should not have
6
Plaintiff’s counsel pointed out the inequity in this and argued at trial that
if he could not make the case that defendants’ failure to conduct a
contraband search was a cause of his injuries, then defendants should not be
allowed to argue that plaintiff had set himself on fire. The trial court
expressly rejected that argument.
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barred him from proceeding with his failure-to-search claim. Illinois
law unquestionably allows litigants to plead alternative grounds for
recovery, regardless of the consistency of the allegations, as long as
the alternative factual statements are made in good faith and with
genuine doubt as to which contradictory allegation is true. See
Bulatovic v. Dobritchanin, 252 Ill. App. 3d 122, 127 (1993). Illinois
law likewise permits parties to argue in the alternative, even when
such arguments are based on inconsistent facts. See Fitchie v. Yurko,
212 Ill. App. 3d 216, 224 (1991). Where, as here, the facts are
controverted, determining which, if any, of the possible theories is
meritorious is a question for the trier of fact. The circuit court
therefore erred when it precluded plaintiff from presenting his failure-
to-search claim to the jury.
Contrary to the view expressed by the dissenting appellate
court justice in the initial appeal of this case, the circuit court’s refusal
to allow plaintiff to proceed on his failure-to-search claim cannot be
justified on the grounds that it involved an inappropriate use of
rebuttal evidence. Plaintiff specifically pled the failure to search in his
complaint and sought to make it part of his case in chief. When the
circuit court thwarted that effort, but then permitted defendants to
make the case that defendant had set himself on fire with the lighter
and was solely responsible for his injuries, plaintiff sought to persuade
the circuit court that its original view was wrong and that, in light of
defendants’ evidence, he should in the end be permitted to present his
theory that defendants should be held liable for having failed to search
him, as Hospital policy required. Although plaintiff’s counsel used the
term rebuttal in making this final plea, it was more in the nature of a
request for reconsideration, a request which the circuit court had the
authority to allow.
CONCLUSION
For the foregoing reasons, we agree with the appellate court
that the circuit court erred in dismissing plaintiff’s res ipsa loquitur
count on the pleadings. We reject the appellate court’s determination
that circuit court was correct when it barred plaintiff from pursuing his
claims that defendants’ should be held liable for failure to search him
for contraband. The judgment of the appellate court is therefore
affirmed in part and reversed in part, and the cause is remanded to the
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circuit court for a new trial. On retrial, plaintiff’s cause of action shall
be limited to the claims which were the subject of this appeal,
specifically, that defendants were negligent for failing to search him
for contraband as alleged in count I of his fifth amended complaint
and, in the alternative, that they were negligent based on the doctrine
of res ipsa loquitur as alleged in count III of his fifth amended
complaint.
Appellate court affirmed in part
and reversed in part;
cause remanded with directions.
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