Expanding the Common Law

Chicago Daily Law Bulletin
October 6, 2000

Following is a dissent by Chief Justice Moses W. Harrison of the Illinois Supreme Court in Gina Trimble Parks, et al. v. Raymond Kownacki, et al., Nos. 87834 and 87839, consolidated (Aug. 10), in which the majority reversed an appellate ruling that reinstated the plaintiff's claims of childhood sexual abuse. The trial court had dismissed as time-barred the now-grown woman's allegations against a Roman Catholic priest, but Harrison asserted that the dismissal was improper. I cannot concur in the majority's cursory disposition of count XI of plaintiff's complaint. While the duty asserted by plaintiff in that count may be novel, the mere absence of precedent does not render it untenable. If the only cognizable legal principles were the ones already acknowledged by the courts in this state, we could not have abrogated sovereign immunity as to school districts (see Molitor v. Kaneland Community Unit District 302, 18 Ill.2d 11 (1959)) or abolished contributory negligence (see Alvis v. Ribar, 85 Ill.2d 1 (1981)). Indeed, our common law would never have been able to advance beyond the doctrines in effect under the English monarchs. Amann v. Faidy, 415 Ill. 422, 433 (1953).

The outstanding characteristic of our system of judicial decision-making is its adaptability and capacity for growth. Ours is a system of elementary rules and of general judicial declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions and the exigencies and usages of the country." Amann v. Faidy, 415 Ill. at 433-34, quoting Kreitz v. Behrensmeyer, 149 Ill. 496, 502 (1894).

Accordingly, where new situations arise which we have not considered, we should not hesitate to consider whether the common law should be extended or modified to cover them.

Finding no precedent for the situation alleged in count XI, the court should have undertaken its own analysis as to whether the Catholic Diocese of Belleville owed plaintiff a duty. There is nothing sacrosanct about the legal concept of duty. Duty is no more than an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Lee v. Chicago Transit Authority, 152 Ill.2d 432, 453 (1992).

Whether a duty exists is a question of law and depends on whether the defendant and plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of plaintiff. Ward v. Kmart Corp., 136 Ill.2d 132, 140 (1990). The factors relevant to the courts' imposition of a duty include the likelihood of injury, the reasonable foreseeability of such injury, the magnitude of guarding against the injury, and the consequences of placing that burden on the defendant. Jackson v. TLC Associates Inc., 185 Ill.2d 418, 425 (1998).

In this case, I think it quite likely and foreseeable that the Diocese's contact with Mrs. Parks in 1995 would result in injury to her. Any form of sexual abuse is potentially debilitating. The type suffered by Mrs. Parks was especially horrific. The Diocese should have realized that the social worker's investigation of the matter would cause Mrs. Park's memories to resurface and rekindle her fears of retaliation, triggering the type of severe emotional distress, sleeplessness and nightmares she ultimately experienced. The burden to the Diocese of assessing the effects of the investigation on Mrs. Parks prior to making contact would not have been significant, and there would have been no significant adverse consequences if the Diocese had been required to make such an assessment.

I would therefore affirm the Appellate Court's judgment reversing the Circuit Court's dismissal of count XI.

In my view, we should also affirm that part of the Appellate Court's judgment reversing the Circuit Court's dismissal of counts I through X. Although the claims asserted in those counts were filed beyond the applicable limitations and repose periods, the record before us shows that Mrs. Parks was under duress. Father Raymond Kownacki threatened her and her family, boasted of his ties to organized crime and claimed he was untouchable, a claim buttressed by the church's failure to take action against him.

Where a defendant uses duress to prevent the plaintiff from filing suit or otherwise enforcing her legal rights, as Kownacki is alleged to have done here, the duress tolls the running of the limitations period. 54 C.J.S. Limitations of Actions sec92 (1987). Based on the allegations in Mrs. Parks' complaint, Kownacki's wrongdoing may be imputed to the Diocese and the St. Martin of Tours Roman Catholic Parish. Accordingly, the duress applied by Kownacki tolled the time limitations against those defendants as well. The Circuit Court therefore erred in dismissing counts I through X, and the Appellate Court was correct in reversing that part of the Circuit Court's judgment. The outstanding characteristic of our system of judicial decision-making is its adaptability and capacity for growth.


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