The opinion
PRESIDING JUSTICE O’MALLEY, concurring in part and dissenting in part:
The parties completely missed the issue by arguing, not whether Patricia breached a duty to Nicholas, but rather that, under section 316 of the Restatement (Second) of Torts, she breached a duty to third parties to prevent Nicholas from harming them. While the City will appreciate what the majority has done for it, the City will be as surprised as Patricia to find that the majority has ruled that a child can sue his grandmother for allowing him to go skateboarding. They will both be surprised because neither party has even mentioned, let alone developed an argument, regarding whether a child may sue his grandmother under these circumstances. Finally, this ruling will arouse interest from both sides of the debate regarding tort reform, especially in light of the fact that it comes about without so much as a request from the party that benefits from it.
A reviewing court should set aside the principles of waiver only for good reason: “to provide a just result [or] to maintain a sound and uniform body of precedent.” Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002). In exercising the court’s power to override considerations of waiver, “[proper] care should be taken that the litigants are not deprived of an opportunity to present argument.” Hux v. Raben, 38 Ill. 2d 223, 225 (1967) (holding that, in the situation presented there, the appellate court did not err by considering arguments not raised by the parties).
The majority contends that no waiver has occurred. However, neither the majority nor I can point to any discussion in the briefs of the duty of a person in charge of a child to that child — the foundation of any contribution claim against Patricia. The City has based its arguments entirely on the assumption that section 316 of the Restatement (Second) of Torts provides the relevant duty of care. The majority states that, because our standard of review is de novo, we are not constrained by the erroneous basis of the trial court’s ruling. 355 Ill. App. 3d at 346. The majority confuses two different applications of the doctrine of waiver. An argument is waived where it is brought on appeal but the trial court record is not sufficiently developed on the issue or where the record is sufficiently developed on the issue but the parties do not bring the argument on appeal. That “the court reviews the matter anew” (355 Ill. App. 3d at 346) does not mean that waiver no longer applies. This court has not hesitated to invoke waiver when conducting de novo review. See, e.g., Salte v. YMCA of Metropolitan Chicago Foundation, 351 Ill. App. 3d 524, 530 (2004); Waitcus v. Village of Gilberts, 199 Ill. App. 3d 102, 105 (1990). By not invoking waiver here, the majority has cut off Patricia’s opportunity to argue the points of law on which it decided the case. This is risky even where the law is well developed and clear. It is particularly inadvisable when, as discussed below, the court must expand the law to decide the matter.
Another of the majority’s justifications for completely disregarding principles of waiver and then deciding an issue that it raised sua sponte is that “[t]he City’s failure to correctly explain that section 316 does not apply does not constitute a waiver of all other valid arguments.” 355 Ill. App. 3d at 346. It is true, as the majority says, that making a nonmeritorious argument does not waive other arguments. 355 Ill. App. 3d at 346. But failing to make those arguments does waive them. See 188 Ill. 2d R. 341(e)(7) (“[pjoints not argued are waived”). The City did, as the majority states, fail to correctly explain why section 316 does not apply. However, it also failed to explain why any other duty should apply. Neither party even mentioned another possible duty to apply. The majority’s statement, that the City sufficiently argued a cause of action against Patricia, is patently incorrect. I cannot imagine a more straightforward and obvious application of the doctrine of waiver.
The majority arrives at its discussion of Patricia’s duty to Nicholas by saying that, “excluding the argument regarding section 316,” the City still made a sufficient argument on Patricia’s duty to Nicholas. 355 Ill. App. 3d at 347. However, excluding the argument regarding section 316, the City made no argument whatsoever.
The majority claims to be “baffled” that I am unable to comprehend the meaning of the following sentence from the City’s brief: “ Tn the case at bar, the Third-Party Defendant could also step in and stop Nick from causing harm to himself by not granting permission to Nick to skateboard on the City’s streets.’ ” See 355 Ill. App. 3d at 347. I find the meaning quite readily comprehensible when that sentence is read in its context, which is:
“The case of Lott v. Strang, [ 312 Ill. App. 3d 521 (2000),] relied upon by the Third-Party Defendant in the trial court, actually supports the Third-Party Plaintiffs’ position. In Lott, the appellate court relied upon the following illustration from section 316 of the Restatement (Second) of Torts:
‘A is informed that his six-year-old child is shooting at a target in the street with a .22 rifle, in a manner which endangers the safety of those using the street. A fails to take the rifle away from the child, or to take any other action. The child unintentionally shoots B, a pedestrian, in the leg. A is subject to liability to B.’
Restatement (Second) of Torts § 316, at 124 (1965). The court found that in the above quoted scenario, the parent can step in and stop the child from causing harm. In the case at bar, the Third-Party Defendant could also step in and stop Nick from causing harm to himself by not granting permission to Nick to skateboard on the City’s streets.” (Emphasis in original.)
Thus, it is readily apparent that the sentence quoted by the majority is in no way an argument “exclusive” of section 316. On the contrary, it is part of the only argument made by the City, i.e., its section 316 argument. As the quote shows, the City even emphasized its reference to section 316. What I cannot comprehend is what the majority seeks to accomplish by its misleading, out-of-context quote. As noted above, the parties will be quite aware upon reading this decision that they both missed the issue. The City will no doubt appreciate what the majority has done, but I doubt that the City will be so delusional as to think that it really did it by itself.
After tossing aside the doctrine of waiver to raise a new issue for the parties, the majority then moves on to its next self-appointed task: creating a novel duty in tort law without the benefit of argument from either side. The majority’s rush to decide the relevant standard of care was notably precipitous given the uncertain state of the law in the area. Illinois lacks case law on the issue of a child care provider’s duty to prevent the child from engaging in risky activities.
The majority cites Gulledge, 51 Ill. App. 3d 972 , in characterizing the duty it conjures as a “long-held principle of tort law.” 355 Ill. App. 3d at 347. In Gulledge, the plaintiff child suffered an injury when he fell under a riding lawnmower being operated by his 13-year-old sister while both were visiting their grandparents’ residence. Gulledge, 51 Ill. App. 3d at 973 . The child sued his grandparents for ordinary negligence, and the grandparents moved to dismiss the case based on the doctrines of parental immunity and in loco parentis. Gulledge, 51 Ill. App. 3d at 973 . The trial court granted the motion, and the appellate court granted the child’s application for interlocutory appeal in order to determine whether the grandparents enjoyed parental immunity. Gulledge, 51 Ill. App. 3d at 973-74 . Gulledge does not deal with the duty of a child care provider to prevent a child from engaging in risky activities; it instead deals solely with the question, not relevant here, of whether grandparents/caretakers enjoy parental immunity.
The majority states that “[a] caretaker of a child has a duty to protect the child from harm.” 355 Ill. App. 3d at 345. That is surely true as far as it goes, but it does not get at any of the troubling issues lurking here. To unearth its standard of care, the majority had to turn to Parks, a case holding that a parish had a duty to protect a parishioner against a sexually abusive priest. Parks, 305 Ill. App. 3d at 452. The Parks court did not attempt to lay out all of the facets of the duty of care, but simply stated that the “duty to protect from harm certainly encompasses a duty to refrain from harming and to restrain others within one’s control from harming.” Parks, 305 Ill. App. 3d at 461. It did not need to address the more difficult problem of the extent of the duty to prevent a child from engaging in activities that might be found to be unreasonably risky.
Clearly, the duty is something other than simply to do everything reasonably possible to keep the child from harm. A child care provider can conveniently eliminate most risks of active play by sitting a child in front of a television set, but no one will claim that that is good child care. A standard of care that overemphasizes a duty to keep a child from harm will encourage such overly risk-averse behavior. By suggesting that the duty to protect from harm is unqualified by any competing concerns of encouraging the child’s healthy development, the majority has created exactly that kind of incentive.
Although the majority’s sweeping disregard of the doctrine of waiver troubles me, I believe that the interests of justice required us to take a measured step beyond the City’s argument to correct the trial court’s obvious error in granting Patricia’s motion to dismiss. “The purpose of requiring that defects in pleadings be attacked by motion [citation] is to point out the defects in the pleadings so that the complainant will have an opportunity to cure them before trial.” Knox College v. Celotex Corp., 88 Ill. 2d 407, 422 (1981); see also People ex rel. Pope County v. Shetler, 318 Ill. App. 279, 285 (1943) (“a motion which fails to allege facts pointing out specifically the defects complained of *** is insufficient”). Thus, a trial court should not grant a motion to dismiss unless the motion correctly points out a critical defect in the complaint.
Patricia’s motion clearly failed to do this. As the majority observes, the heart of any viable contribution claim by the City must be the allegation of facts showing that Patricia is liable to Nicholas for his injuries. Patricia cited authorities concerning only the duty owed by a person caring for a child to supervise that child for the benefit of third parties. Her motion to dismiss thus failed to attack the sufficiency of the complaint as a claim for contribution. The City missed the flaw in Patricia’s argument — indeed, the City bought into her reasoning so completely that its appellate briefs are pervaded by it. Nevertheless, the error was clear-cut, so we would not wander into uncharted legal territory if we recognized the error and vacated the dismissal. To do that would require only a measured relaxation of the rules of waiver, rather than the wholesale abandonment indulged in by the majority.
It may be that the complaint sufficiently alleged that Patricia breached even a properly formulated standard of care. However, the parties should have had a chance to aid the court in developing the law in an area so laden with policy implications. Had we vacated the dismissal without finding that the complaint stated a cause of action, the parties could have done just that on remand.
One more thing I am unable to comprehend is how the majority can describe the preceding sentences as “[t]he dissent’s desire to *** hold that a caretaker has no duty to her charge [and thus] eviscerate a basic tenet of tort law.” 355 Ill. App. 3d at 347. Even a cursory reading of my dissent reveals that I express no desire to hold that a caretaker has no duty to her charge. I do not assert that an argument for such a duty cannot be made; I am merely saying that the majority should not make the argument for the City, thus precluding any responsive argument, and that we should not even address the issue until it is properly before us.
Although I concur that the trial court erred in granting Patricia’s motion to dismiss, I must dissent from the majority’s decision to hold that the City stated a cause of action. I would have vacated the dismissal and ordered the trial court to deny the motion to dismiss without prejudice, thus allowing the parties to properly frame the issue for the trial court and for us.