Pasquinelli v. Sodexo, Inc.

2021 IL App (1st) 200851

193 N.E.3d 836

456 Ill.Dec. 596

Lisa PASQUINELLI and Brian Kean, as Independent Coexecutors of the Estate of Joan Kean, Deceased, and as Special Administrators of the Estate of Thomas Kean, Deceased, Plaintiffs-Appellants,

v.SODEXO, INC.; CK Franchising, Inc. d/b/a Comfort Keepers; and Helpsource of North Shore, Inc. d/b/a Comfort Keepers, Defendants-Appellees.

No. 1-20-0851

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed December 23, 2021

Lisa M. Longo and Michael G. Miller, of Morici, Longo & Associates, of Chicago, for appellants.

Stuart N. Rappaport, of Law Office of Izzo, Rappaport & Stiefbold, of Chicago, for appellees.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 The plaintiffs-appellants, Lisa Pasquinelli and Brian Kean, are the independent coexecutors of the estate of Joan Kean, deceased, and the special administrators of the estate of Thomas Kean, deceased (Estates). The Estates brought a wrongful death and survival action in the circuit court of Cook County, against the defendants-appellees, Sodexo, Inc., CK Franchising, Inc., and Helpsource of North Shore, Inc., both doing business as Comfort Keepers (Comfort Keepers). The circuit court granted summary judgment in favor of Comfort Keepers, and the Estates now appeal. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 This matter arises out of an incident that occurred on November 3 and 4, 2016, which resulted in the deaths of Thomas and Joan Kean, an elderly married couple. In March 2015, the Keans hired Comfort Keepers to provide caretaking services to Mrs. Kean, who was suffering from dementia. The Keans entered into a client care agreement with Comfort Keepers, which stated that the plan of care for Mrs. Kean would include homemaking duties such as cleaning, assisting with meal preparation, and reminding her to take her medications, as well as personal care duties such as dressing and bathing Mrs. Kean. The client care agreement further provided, in relevant part:

"¶ 5: The Client acknowledges that Comfort Keepers employees who are not providing nursing services under the Plan of Care are not qualified or authorized to provide any medical services to the Client. The Client further acknowledges that if a medical emergency arises while any Comfort Keepers employee is providing services to the Client or is otherwise present, that employee will not provide any medical services to the Client, but the employee may call 911 for emergency assistance. The Client agrees to hold harmless Comfort Keepers and its employee for any medical or other care that the employee may provide to the Client from instructions given by any 911 service provider.

¶ 6: The Client agrees not to hold Comfort keepers or its employees responsible for any physical loss or damage to, or loss of use of the Client's property while outside the care or control of a Comfort Keepers employee. The Client will not hold Comfort Keepers or its employees responsible for any bodily injury to the Client if the Client fails to follow the employee's instructions and/or injury occurs while the Client is not in the presence of the employee. The Client further agrees not to hold Comfort Keepers or its employees responsible for any bodily injury, property damage, fire, theft, collision or public liability claims arising out of the operation of a motor vehicle that is not owned or controlled by a Comfort Keepers employee. " (Emphases added.)

Imelda Reyes, a Comfort Keepers employee, was assigned as Mrs. Kean's live-in caregiver.

¶ 4 On November 2, 2016, the Keans contracted with Comfort Keepers to have Ms. Reyes also provide caregiving services to Mr. Kean, who was alert mentally but had respiratory issues and used an oxygen tank to breathe.

¶ 5 On November 3, 2016,¹ at approximately 4 p.m., the Keans and Ms. Reyes returned home from running errands. Mr. Kean was driving his car, and Mrs. Kean and Ms. Reyes were riding as passengers. They pulled into the garage attached to the Keans’ single-family home, and Mr. Kean parked the car but did not turn it off. Ms. Reyes exited the car first and then assisted Mrs. Kean out of the car and into her wheelchair. Ms. Reyes and Mrs. Kean entered the house, leaving Mr. Kean in the still-running car.

¶ 6 Once Ms. Reyes got Mrs. Kean settled inside the house, she began preparing dinner. About 15 minutes later, Mr. Kean entered the house from the attached garage. According to Ms. Reyes, at some point later in the evening she "smelled something" in the stairwell and asked Mr. Kean about it. Mr. Kean responded that he did not know what the smell was but suggested that it was maybe something from outside. Ms. Reyes said that she checked the bedrooms to see if she could find the source of the smell but was unsuccessful. All three of them became unusually tired around 10 p.m. Ms. Reyes assisted Mrs. Kean into bed and then went to her own bedroom. She did not smell the odor in her bedroom but noticed that it felt "hotter than normal." She usually talked to her young son on the phone before going to bed, but she was too tired to talk on the phone that night and just went to sleep.

¶ 7 At approximately 3 a.m., Ms. Reyes was awakened by the sound of Mr. Kean calling for her and yelling that he could not breathe. She got out of bed and ran to Mr. Kean, who was sitting in the bathroom struggling to breathe. Ms. Reyes was also having a hard time breathing and called 911. She told the 911 operator that something was wrong with the house that was making it hard to breathe. The 911 operator told Ms. Reyes to get out of the house, but Ms. Reyes responded, "I cannot get out of this house. I have my two old people with me, I can't [leave them]." Ms. Reyes waited inside the house with the Keans for emergency services to arrive.

¶ 8 Emergency medical services, the Park Ridge Fire Department, and the Park Ridge Police Department were dispatched to the Keans’ house. As the fire department entered the house with their carbon monoxide equipment, the "four-gas meter" began alarming. The meter registered over 900 parts per million of carbon monoxide inside the house, a level that was "immediately dangerous to life and health."

¶ 9 The Keans and Ms. Reyes were all removed from the house and transported to the hospital. After emergency services removed the Keans and Ms. Reyes from the house, they searched the house and discovered that Mr. Kean's car was running inside the attached garage, which was the source of the carbon monoxide. They also discovered that there were no carbon monoxide detectors anywhere in the Keans’ home.

¶ 10 Mr. Kean was pronounced dead at the hospital at approximately 4:18 a.m. on November 4, 2016. The Cook County Medical Examiner's report listed Mr. Kean's cause of death as carbon monoxide intoxication, vitiated atmosphere, and residential infusion from motor vehicle exhaust. Mrs. Kean was treated for carbon monoxide poisoning and was then transported to a long-term care facility. She passed away on November 17, 2016. The Medical Examiner's report listed her cause of death as Alzheimer's/dementia. Ms. Reyes was also treated for carbon monoxide poisoning and recovered.

¶ 11 On February 8, 2018, the Estates filed a wrongful death and survival action against Comfort Keepers. The complaint alleged that Comfort Keepers, through Ms. Reyes, "knew or should have known that [Mr. and Mrs. Kean] required supervision and assistance with activities of daily living, including but not limited to parking the car and ensuring the car was properly turned off after use ***" and "knew or should have known that [Mr. and Mrs. Kean] needed assistance in daily living by, but not limited to, making sure their home environment was free from safety hazards." According to the Estates, Comfort Keepers had a duty of reasonable care in providing services to the Keans, and Comfort Keepers was negligent in its care by failing to properly protect the Keans or provide them a safe environment—specifically, when Ms. Reyes did not ensure that the car was turned off and did not investigate the source of the odor she smelled. The complaint alleged that Comfort Keepers’ negligent acts proximately caused the death of the Keans.

¶ 12 Comfort Keepers answered the Estates’ complaint by denying all material allegations. On October 18, 2018, Comfort Keepers filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure ( 735 ILCS 5/2-619(a)(9) (West 2018)). The motion to dismiss argued that Comfort Keepers did not owe a duty to ensure that the Keans’ home was compliant with the Carbon Monoxide Alarm Detector Act ( 430 ILCS 135/1 (West 2018) ) or to turn off Mr. Kean's car. The motion to dismiss additionally argued that the client care agreement precluded liability, as it explicitly listed Ms. Reyes's duty as caretaking functions that were not related to medical or emergency tasks. Comfort Keepers also pointed out that the client care agreement provided: "The Client further agrees not to hold Comfort Keepers or its employees responsible for any bodily injury, property damage, fire, theft, collision or public liability claims arising out of the operation of a motor vehicle that is not owned or controlled by a Comfort Keepers employee." Accordingly, Comfort Keepers claimed that, because the incident arose out of Mr. Kean operating his car, Comfort Keepers could not be held liable.²

¶ 13 On February 14, 2020, the Estates filed a response to Comfort Keepers’ motion to dismiss. The response argued that Comfort Keepers did owe a duty of care to the Keans because it had a "specialized knowledge in caring for elderly clients," which included "looking out for potential safety hazards." The Estates claimed that Comfort Keepers tested their caregivers, including Ms. Reyes, about safety precautions and required them to maintain written emergency preparedness plans for its clients, which...