203 Ill.2d 441, 786 N.E.2d 980, 272 Ill.Dec. 146

Supreme Court of Illinois.

Shandoulia WALLACE, Indiv. and as Adm'r of the Estate of Waketta Roy Wallace,
Deceased, Appellant,

v.

John P. SMYTH et al., Appellees.

No. 93144.

Dec. 19, 2002.
Rehearing Denied March 31, 2003.

Parent brought negligence action against residential child care facility and seven of its employees after her son died in facility from positional asphyxia. The Circuit Court, Cook County, Barbara J. Disko, J., dismissed negligence claims, and parent appealed. The Appellate Court, 301 Ill.App.3d 75, 234 Ill.Dec. 555, 703 N.E.2d 416, reversed. Defendants petitioned for leave to appeal. The Supreme Court remanded. The Appellate Court, 327 Ill.App.3d 411, 260 Ill.Dec. 817, 762 N.E.2d 83, vacated its previous opinion and remanded. Parent appealed. Upon allowance of petition for leave to appeal, the Supreme Court, Fitzgerald, J., held that parental immunity did not extend to residential child care facility.

Appellate Court reversed and remanded.
Freeman, J., concurred specially and filed opinion.

**981 *442 ***147 Stanley L. Hill, Chicago, for appellant.
Jeffrey Edward Kehl and Robert C. Yelton III, of Yelton & Kehl, Ltd., Chicago (John C. O'Malley and Francis D. Morrissey, of counsel), for appellees.
Patrick T. Murphy, Cook County Public Guardian, Chicago (Peter J. Schmiedel, **982 ***148 Charles P. Golbert and Jill Runk, of counsel), for amicus curiae Office of the Cook County Public Guardian.
Bruce A. Boyer and Stacey E. Platt, Chicago, for amicus curiae ChildLaw Center & ChildLaw Clinic of the Loyola University School of Law.
Robert A. Clifford, Chicago, for amicus curiae Clifford Law Offices.
James D. Montgomery and Thomas C. Marszewski, Chicago, for amicus curiae Cochran, Cherry, Givens, Smith & Montgomery, L.L.C.
Thomas F. Geraghty, Chicago, for amicus curiae *443 Children & Family Justice Center of the Northwestern University School of Law.
James D. Montgomery and Thomas C. Marszewski, of Cochran, Cherry, Givens, Smith & Montgomery, and Bruce R. Pfaff, Chicago, for amicus curiae Illinois Trial Lawyers Association.
James A. Serritella and James C. Geoly, of Burke, Warren, MacKay & Serritella, P.C., Chicago, for amicus curiae Illinois Child Care Association.


Justice FITZGERALD delivered the opinion of the court:
The issue in this case is whether, in the wake of our decisions to retain a limited form of parental immunity in Cates v. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 619 N.E.2d 715 (1993), and to extend this immunity to foster parents in Nichol v. Stass, 192 Ill.2d 233, 248 Ill.Dec. 931, 735 N.E.2d 582 (2000), the defendants, a residential child care facility and seven of its employees, enjoyed a similar immunity from the plaintiff's negligence claims after her son died in their care. We conclude that because the corporation-child relationship does not mirror the parent-child relationship, the defendants do not have parental immunity. We reverse the appellate court and the circuit court, and we remand for further proceedings.

BACKGROUND
On June 12, 1989, the Illinois Department of Children and Family Services (DCFS) placed one of its wards, 12-year-old Waketta Roy Wallace (Roy), at Maryville Academy (Maryville) for a 90-day diagnostic assessment regarding his future placement. Maryville is a not-for-profit corporation that operates a licensed residential child care facility for state wards. In 1989, Maryville cared for approximately 500 children.
A month later, on July 11, 1989, Roy reported to the *444 office of Maryville program manager Paul Voltz after school. Voltz confronted Roy about sleeping in study hall. Roy made threatening gestures, and Voltz removed him to an adjacent hallway. Once there, Voltz summoned assistant program manager Laura Angelucci and family educator Jill Jacobe to assist him in restraining Roy. Family educator Jim Geidner also participated for a short time until his shift ended, when he was replaced by family educator Xavier Collier. Eventually, after a struggle, Roy was placed on his stomach with his arms crossed in front of his abdomen and his wrists held to the floor. The restraint continued for more than four hours and ended in Roy's death from positional asphyxia.
Roy's mother, Shandoulia Wallace, filed a four-count complaint in the circuit court of Cook County against Maryville, its executive director Reverend John Smyth, Voltz, Angelucci, Collier, Geidner, Jacobe, and nurse Dee LeBel. Wallace alleged that the defendants' negligence, and, alternatively, willful and wanton misconduct, proximately caused Roy's death. The defendants filed a motion to dismiss Wallace's negligence claims; they asserted the **983 ***149 parental immunity doctrine shielded them from liability. The trial court agreed and dismissed these claims, stating: "I am convinced from the cases that the defendants have tendered to me, and from the arguments made, and everything that I know about the case that Maryville was acting de facto as loco parentis for this child. * * * I do not believe that Maryville can be sued under theories of ordinary negligence." The case proceeded to trial on Wallace's willful and wanton misconduct claims. After a jury returned a verdict for the defendants, Wallace appealed the dismissal of her negligence claims.
The appellate court reversed. Wallace v. Smyth, 301 Ill.App.3d 75, 234 Ill.Dec. 555, 703 N.E.2d 416 (1998). The court noted, "At common law, in loco parentis status belonged to persons who put *445 themselves in a parent's shoes by assuming all parental obligations toward a child without going through the formalities of legal adoption." Wallace, 301 Ill.App.3d at 80, 234 Ill.Dec. 555, 703 N.E.2d 416. After reviewing Wallace's negligence allegations, the court rejected the defendants' argument that Wallace conceded they stood in loco parentis by pleading that Maryville was licensed by the state to house, care for, and educate children. Wallace, 301 Ill.App.3d at 80, 234 Ill.Dec. 555, 703 N.E.2d 416. The court held that housing, caring for, and educating a child do not confer in loco parentis status. Wallace, 301 Ill.App.3d at 80, 234 Ill.Dec. 555, 703 N.E.2d 416. According to the appellate court, teachers are in loco parentis with regard to students under the School Code, but no statutory equivalent exists to insulate an entity like Maryville against allegations that it negligently disciplined a child. Wallace, 301 Ill.App.3d at 80-81, 234 Ill.Dec. 555, 703 N.E.2d 416. Rather, in conjunction with Illinois' statutory scheme, DCFS bore ultimate responsibility for traditional parental functions with regard to Roy. Wallace, 301 Ill.App.3d at 81, 234 Ill.Dec. 555, 703 N.E.2d 416, citing 89 Ill. Adm.Code §§ 359.7, 359.9 (1996). The appellate court concluded that Wallace's allegations did not show Maryville stood in loco parentis to Roy and that the trial court improperly dismissed her negligence claims. Wallace, 301 Ill.App.3d at 81, 234 Ill.Dec. 555, 703 N.E.2d 416.
The defendants filed a petition for leave to appeal. While this petition was pending, we decided Nichol. Accordingly, we denied the defendant's petition and remanded this cause to the appellate court for additional consideration in light of Nichol. See Wallace v. Smyth, 191 Ill.2d 562, 249 Ill.Dec. 176, 735 N.E.2d 1001 (2000).
On remand, the appellate court discussed both Cates and Nichol and stated:
"The similarities between foster parents and defendants are obvious. The wards that foster parents and facilities such as Maryville provide care for are both under the ultimate legal and financial control of DCFS. Further, both foster parents and Maryville assume physical custody of the minors in their care. They both provide day-to-day *446 housing, care, medical attention, supervision, and discipline to those in their care pursuant to extensive DCFS regulations. Those are exactly the types of duties and responsibilities found in Cates and Nichol to be inherent to the parent-child relationship. * * * Both Cates and Nichol make clear that what matters most for purposes of extending immunity is whether the party to whom it is being extended exercises a substantial amount of parental discretion in discipline, supervision, and care of minors. * * * [W]e cannot say that there is meaningful difference between foster parents and residential child care institutions such as **984 ***150 Maryville so as to preclude the limited form of parental immunity discussed in Cates and Nichol from applying to such institutions and those who work there." 327 Ill.App.3d 411, 419-20, 260 Ill.Dec. 817, 762 N.E.2d 83.
The court vacated its previous opinion and remanded to allow Wallace to amend her complaint and allege facts which would preclude parental immunity. 327 Ill.App.3d at 421, 260 Ill.Dec. 817, 762 N.E.2d 83.
In dissent, Justice Cahill stated:
"The opinion in Nichol [citation] is a narrow one. * * * Nichol extends a limited form of parental immunity to foster parents. The role of a natural parent and a foster parent in the life of a child is so often similar our supreme court concluded that it would be anomalous to reject a limited form of personal immunity for foster parents. The immunity shields one person in his or her relationship with one child. To now broaden limited immunity to include a corporation, however dedicated, however essential its work, strikes me as a public policy decision for the legislature." 327 Ill.App.3d at 422, 260 Ill.Dec. 817, 762 N.E.2d 83 (Cahill, J., dissenting).
We allowed Wallace's petition for leave to appeal. See 177 Ill.2d R. 315. [FN1]
FN1. We granted leave to the Cook County public guardian; the Children and Family Justice Center of Northwestern University School of Law; the ChildLaw Center and ChildLaw Clinic of the Loyola University Chicago School of Law; the Illinois Trial Lawyers Association; Cochran, Cherry, Givens, Smith and Montgomery, L.L.C.; and the Clifford Law Offices to file a brief as amici curiae in support of Wallace. See 155 Ill.2d R. 345.

*447 ANALYSIS

A motion to dismiss under section 2-615(a) of the Civil Practice Law (735 ILCS 5/2-615(a) (West 2000)) tests the legal sufficiency of the plaintiff's claim, while a motion to dismiss under section 2-619(a) (735 ILCS 5/2-619(a) (West 2000)) admits the legal sufficiency of the plaintiff's claim, but asserts certain defects or defenses outside the pleading which defeat the claim. See Provenzale v. Forister, 318 Ill.App.3d 869, 878, 252 Ill.Dec. 808, 743 N.E.2d 676 (2001); Joseph v. Chicago Transit Authority, 306 Ill.App.3d 927, 930, 240 Ill.Dec. 46, 715 N.E.2d 733 (1999). Consistently with the designation the defendants gave to their motion to dismiss, the trial court considered the motion under section 2-615. This motion, however, should have been brought under section 2-619(a)(9) because the defendants argued that the plaintiff's negligence claim was barred by "other affirmative matter," namely, parental immunity. 735 ILCS 5/2-619(a)(2) (West 2000); see Nichol, 192 Ill.2d at 235, 248 Ill.Dec. 931, 735 N.E.2d 582. We will address the merits of this appeal, despite the defendants' error, because Wallace has suffered no prejudice from the defendants' improper designation. See Storm & Associates, Ltd. v. Cuculich, 298 Ill.App.3d 1040, 1047, 233 Ill.Dec. 101, 700 N.E.2d 202 (1998); see also Janes v. First Federal Savings & Loan Ass'n of Berwyn, 57 Ill.2d 398, 406-07, 312 N.E.2d 605 (1974) (expressly disapproving of hybrid dismissal/summary judgment motions, but refusing to waste judicial resources by remanding for the defendants to correct their motion). Under either section, our standard of review is de novo. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993).
In this appeal, Wallace contends that the parental immunity doctrine does not extend to residential child care facilities because such entities do not have a parent-child relationship with the state wards in **985 ***151 their care. By *448 contrast, the defendants contend that the doctrine protects any person or entity charged with the day-to-day care, supervision, and discipline of state wards, regardless of any familial relationship between the child and the person or entity. In the defendants' view, "the parental immunity doctrine follows the child."

The parental immunity doctrine, which blocks mere negligence claims, but not willful and wanton misconduct claims (see Gerrity v. Beatty, 71 Ill.2d 47, 49, 15 Ill.Dec. 639, 373 N.E.2d 1323 (1978), citing Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525 (1956)), was recognized in Illinois in Foley v. Foley, 61 Ill.App. 577 (1895). Nearly 100 years later, this court first discussed the doctrine at length in Cates. In Cates, a four-year-old girl was seriously injured in an automobile accident involving vehicles driven by her noncustodial father and another driver. The girl, by her mother, filed a negligence complaint against the other driver; she subsequently amended her complaint to add her father as a defendant. The father filed a summary judgment motion, asserting that the parental immunity doctrine blocked the girl's negligence claim against him. The trial court granted summary judgment to the father. The appellate court reversed and partially abrogated the doctrine in automobile negligence cases.
We affirmed the appellate court. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 619 N.E.2d 715. After concluding that this court had recognized the parental immunity doctrine in earlier cases (Cates, 156 Ill.2d at 85, 189 Ill.Dec. 14, 619 N.E.2d 715), we turned to its history. The cases which created the doctrine relied on several public policy justifications: preservation of family harmony, preservation of family assets, and preservation of parental authority. Cates, 156 Ill.2d at 88, 189 Ill.Dec. 14, 619 N.E.2d 715. We noted that the family harmony justification was no longer viable: "The focus has shifted to a concern with preventing litigation concerning conduct intimately associated with the parent-child relationship. * * * [W]here that relationship *449 is not impacted, the policies supporting the doctrine lose their persuasive strength." Cates, 156 Ill.2d at 98-99, 189 Ill.Dec. 14, 619 N.E.2d 715. We also noted that the family assets justification had become irrelevant with the proliferation of liability insurance. Cates, 156 Ill.2d at 101-02, 189 Ill.Dec. 14, 619 N.E.2d 715. We observed that, today, the parental immunity doctrine is supported by other policy concerns:
"Courts should not be involved in deciding matters between parent and child which concern decisions which those persons are uniquely equipped to make because of that relationship; to allow otherwise would unnecessarily and obtrusively inject courts into family matters which they are ill-equipped to decide. Such matters, by definition, involve parental discretion in discipline, supervision and care. * * * [T]hose underlying policies ought to determine the scope of the immunity." (Emphases added.) Cates, 156 Ill.2d at 103-04, 189 Ill.Dec. 14, 619 N.E.2d 715.