Illinois lawyers are often confused by the application of attacking motions under two distinct motion practice sections — the Illinois Code of Civil Procedure, 735 ILCS §5/2-615 and §5/2-619. The case decision found in Doe v. The University of Chicago Medical Center points out the distinct differences in how a §2-619 motion to dismiss should be applied. In the well-written article in the Chicago Daily Law Bulletin, May 19, 2015, authored by attorney Brion W. Doherty, Mr. Doherty analyzed the Illinois Appellate Court’s decision in the Doe case, illustrating how §2-619 should be used.
In the Doe case, the plaintiff claimed to have been attacked and injured on her way to her car after working the night shift. The plaintiff had claimed that the University of Chicago Medical Center had promised her that it would it see to her safety in getting her to her car late at night. That was part of her agreement for working the night shift. The plaintiff claimed that her injuries were because the medical center had chosen not to comply with its promise to provide security at night.
In response to the complaint filed against it, the University of Chicago Medical Center filed a motion to dismiss under §2-619. It attached an affidavit by its head of security, which essentially contradicted the factual claims made by the plaintiff. The security part of the dispute was whether the plaintiff followed the hospital’s instructions on how to contact security in case of trouble.
The plaintiff claimed that she went to the designated location and waited, but no one from the medical center or its security force came to her aid. The medical center said the plaintiff was supposed to use a telephone to contact security. If she had used the telephone, someone would have come to assist her on her way to her car.
At the hearing on the motion to dismiss under §2-619, the judge asked the plaintiff for proof from the evidentiary record to support her claim about the promise to provide security for her late at night when she needed to walk to her car. The plaintiff informed the court that because this was a §2-619 motion, she was relying on the well-pleaded allegations in her complaint, which were to be taken as true for the purposes of the motion.
However, the trial judge rejected that argument stating that §2-619 motions and summary judgment motions are analogous. The judge maintained that allegations in the complaint could not withstand a contradictory affidavit. However, the plaintiff filed her own affidavit contradicting the defendant’s affidavit. Even still the court found that because the plaintiff failed to call for assistance from security, she could not move forward on her claim that the medical center was negligent in failing to provide the promised security assistance.
Mr. Doherty labeled the §2-619 motion correctly as a “yes but” motion. In other words, a motion to dismiss under §2-619 is an assertion that the well-pleaded facts are true but under the law there must be some affirmative matter that defeats the plaintiff’s claim. Since the University of Chicago Medical Center’s motion was a “yes but” motion to dismiss, it had only its own version of the facts and nothing affirmatively as a matter of law that would defeat the plaintiff’s lawsuit.
Accordingly, the dismissal order of the trial judge was reversed and the case remanded for further disposition. I compliment Mr. Doherty on his well-reasoned article, which should serve in aiding lawyers who often confuse §2-615 and §2-619 motions.
Doe v. The University of Chicago Medical Center, 2015 IL App (1st) 133735.
Kreisman Law Offices has been handling jury trials, civil jury trial, medical negligence cases, birth injury cases and catastrophic injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Inverness, Gurnee, Schaumburg, Palos Hills, Palatine, Long Grove, Barrington, Bolingbrook, Elgin, Waukegan, Wheaton, Hinsdale, Aurora, Niles, Crystal Lake and Grayslake, Ill.
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