Loman v. Freeman

Docket No. 104289.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

BRIAN LOMAN et al., Appellees, v. DAVID E. FREEMAN,
Appellant.

Opinion filed April 17, 2008.

JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, and Karmeier
concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
Justice Kilbride dissented, without opinion.

OPINION

Plaintffs are the owners of a race horse, Master David Lee.
Defendant David E. Freeman, D.V.M., a member of the faculty of the
College of Veterinary Medicine at the University of Illinois, performed
surgery on the horse. Plaintiffs allege that one of the surgical
procedures performed by Freeman was unauthorized and that it
rendered the horse lame and unsuitable for racing. Their claims of
negligence and conversion were dismissed by the circuit court of
Champaign County and they appealed. The appellate court reversed.
375 Ill. App. 3d 445. We granted defendant’s petition for leave to
appeal under Supreme Court Rule 315 (210 Ill. 2d R. 315). For the
reasons that follow, we affirm the judgment of the appellate court.
 BACKGROUND
In 2001, plaintiffs brought their horse, Master David Lee, to the
Large Animal Clinic at the University of Illinois College of Veterinary
Medicine for evaluation and treatment. Defendant was employed by
the College as a professor of equine surgery. As such, he was not
required to be licensed as a veterinarian in Illinois. See 225 ILCS
115/4(3) (West 2000). His duties included teaching and training
veterinary students in the diagnosis and treatment of horses. In the
course of his teaching duties, he examined, treated, and performed
surgery on horses.
Plaintiffs allege that they gave defendant permission to perform
two procedures on the animal: surgery on the left carpal bone and
draining of fluid from the right stifle. (The stifle is the joint in a horse’s
hind leg analogous to the human knee.) They further allege that they
specifically forbade him to perform any other procedures on the right
stifle. Notwithstanding this express prohibition, defendant performed
surgery on the right stifle. Plaintiffs claim that, as a result, the horse
has been ruined for future racing.
Plaintiffs’ amended complaint contains two counts. In count I,
negligence, plaintiffs allege that defendant owed a duty to them to
exercise reasonable care in his treatment of the horse “in compliance
with the standards of a qualified veterinarian,” and that he performed
unauthorized and unnecessary surgery on the animal’s right stifle “in
violation of the standard of care of a veterinarian.” In count II,
conversion, plaintiffs allege that the performance of unauthorized
surgery by defendant “constitutes an unauthorized assumption of the
right to possession or ownership of the horse,” causing an “alteration
of the condition” of the horse.
In addition to the tort claims filed in the circuit court, plaintiffs
filed an action against the University of Illinois Department of Clinical
Veterinary Medicine (a department within the College of Veterinary
Medicine) in the Court of Claims. That action has been stayed pending
the outcome of the circuit court action.
Defendant filed a hybrid motion to dismiss pursuant to section
2–619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2– 619.1
(West 2004)). In the portion of the motion invoking section
2–619(a)(9) of the Code (735 ILCS 5/2–619(a)(9) (West 2004)

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(involuntary dismissal based upon certain defects or defenses)),
defendant argued that plaintiffs’ negligence claim is barred by Illinois’
economic loss, or Moorman, doctrine. See Moorman Manufacturing
Co. v. National Tank Co., 91 Ill. 2d 69, 73 (1982). In the portion of
the motion invoking section 2–615 of the Code (735 ILCS 5/2–615
(West 2004) (motions with respect to the pleadings)), defendant
argued that plaintiffs failed to plead a cause of action for conversion
because they did not allege that he permanently deprived them of
possession of the horse.
The trial court granted defendant’s motion and dismissed the
amended complaint with prejudice. Plaintiffs appealed. As a threshold
matter, the appellate court commented that defendant’s motion was
not properly designated a hybrid motion pursuant to section 2–619.1
and treated it as a section 2–615 motion. 375 Ill. App. 3d at 448. No
issue is raised on this point, so we shall accept the appellate court’s
characterization of the procedural posture of the case.
As to the negligence claim, the appellate court found that plaintiffs
alleged a breach of duty imposed by the common law, independent of
defendant’s state employment. 375 Ill. App. 3d at 454-55. The
appellate court further ruled that plaintiffs’ negligence claim is not
barred by the Moorman doctrine because unauthorized surgery is a
sudden and dangerous occurrence. 375 Ill. App. 3d at 458. As to the
conversion claim, the appellate court found that the alleged harm – the
permanent incapacitation of horse for racing – is sufficient, if proven,
to state a cause of action for conversion. 375 Ill. App. 3d at 458.

ISSUES PRESENTED
Defendant raises three issues before this court: (1) whether
plaintiffs’ negligence claim is barred by the Moorman doctrine; (2)
whether the Court of Claims has exclusive jurisdiction over plaintiffs’
claims because the University of Illinois is the real party in interest;
and (3) whether defendant is immune from any liability in connection
with his treatment of the horse because he is exempt from all terms of
the Veterinary Medicine and Surgery Practice Act of 1994 (Practice
Act) (225 ILCS 115/1 et seq. (West 2000)).

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 STANDARD OF REVIEW
A motion to dismiss under section 2–615 of the Code (735 ILCS
5/2–615 (West 2004)) challenges only the legal sufficiency of the
complaint. Jarvis v. South Oak Dodge, Inc., 201 Ill. 2d 81, 85 (2002).
As such, an appeal from an order granting such a motion presents a
question of law, which we review de novo. Wakulich v. Mraz, 203 Ill.
2d 223, 228 (2003). The proper inquiry is whether the well-pleaded
facts of the complaint, taken as true and construed in a light most
favorable to the plaintiff, are sufficient to state a cause of action upon
which relief may be granted. Jarvis, 201 Ill. 2d at 86.

ANALYSIS
(1) Whether Plaintiffs’ Tort Claims Are Barred by the Moorman
Doctrine
In Moorman Manufacturing Co. v. National Tank Co., this court
held the purchaser of a defective product may not sue the
manufacturer in tort to recover solely economic losses caused by the
defect. Moorman, 91 Ill. 2d at 88 (“When the defect is of a qualitative
nature and the harm relates to the consumer’s expectation that a
product is of a particular quality so that it is fit for ordinary use,
contract, rather than tort, law provides the appropriate set of rules for
recovery”).
In Anderson Electric, Inc. v. Ledbetter Erection Corp., 115 Ill. 2d
146 (1986), this court extended the Moorman doctrine to contracts
for services, which would seem to include the veterinary care at issue
in the present case.
The exception to the doctrine upon which plaintiffs rely was
articulated in Moorman itself. This court noted that “[t]ort theory is
appropriately suited for personal injury or property damage resulting
from a sudden or dangerous occurrence ***. The remedy for
economic loss, loss relating to a purchaser’s disappointed expectations
due to deterioration, internal breakdown or nonaccidental cause, on
the other hand, lies in contract.” Moorman, 91 Ill. 2d at 86. This court
had in mind fires, explosions, or other calamitous occurrences due to
the failure of a product and the resulting risk of harm to persons or
property. Moorman, 91 Ill. 2d at 84-86.

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 The circuit court concluded that count I of the amended
complaint, negligence, was barred by the Moorman doctrine. The
appellate court reversed.
With respect to the negligence count, the appellate court found
that laceration with a scalpel is “sudden,” as compared to the gradual
deterioration of the grain storage tank that was at issue in Moorman.
375 Ill. App. 3d at 458. The appellate court also reasoned that the
occurrence was “dangerous,” because surgery is inherently dangerous
and because plaintiffs allege that this particular procedure was “very
risky.” 375 Ill. App. 3d at 458.
We note that application of the “sudden and dangerous” exception
to the Moorman doctrine to the conduct of one who has contracted
to provide a service, as opposed to the failure of a product, is
awkward at best. We also observe that the appellate court’s reasoning
could lead to inconsistent results in similar cases. If veterinary surgery
is “sudden and dangerous,” the owner of an animal could seek a
remedy in tort if he alleged malpractice in the performance of
veterinary surgery, but he would be limited by Moorman to a
contractual remedy if he alleged that the veterinarian misdiagnosed a
disease or condition or failed to render the proper nonsurgical
treatment. Nevertheless, we find it unnecessary to review the appellate
court’s reasoning on this issue.
Defendant’s petition for leave to appeal lists “Moorman Doctrine”
as one of the points relied upon for reversal. However, the doctrine is
only briefly referred to in the remainder of the petition. Defendant
wonders how, if veterinary surgery is sudden and dangerous, it can be
expected to be performed in a professional manner. He concludes that
he “firmly believes that the Moorman Doctrine applies to this set of
facts. Veterinary surgery is not sudden nor dangerous to the point that
it falls within the ambit of the recognized exception to the Doctrine.”
In defendant’s brief to this court, he did not provide argument in
support of these conclusory remarks. Indeed, the sole mention of the
Moorman doctrine is a statement that plaintiffs have recourse to the
Court of Claims, “[w]hether or not the Moorman Doctrine applies.”
Counsel for defendant made no mention of Moorman at oral
argument.
“A reviewing court is entitled to have issues clearly defined with
relevant authority cited.” In re Marriage of Bates, 212 Ill. 2d 489,

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517 (2004). Defendant mentioned the Moorman issue, but neither
clearly defined it nor argued its merits. We, therefore, find the issue
forfeited. See Bates, 212 Ill. 2d at 517 (allowing the appellate court
judgment to stand where the petitioner “fail[ed] to give this court an
adequate basis to grant her relief on this issue”).

(2) Whether the Court of Claims Has Exclusive Jurisdiction Over
Plaintiffs’ Claims in Tort
Defendant claims the protection of the doctrine of sovereign
immunity. Our state constitution abolished this traditional doctrine,
“[e]xcept as the General Assembly may provide by law.” Ill. Const.
1970, art. XIII, §4. The Court of Claims Act (Act) (750 ILCS 505/1
et seq. (West 2004)) is the legislature’s exercise of that grant of
authority. The Act establishes the Court of Claims to serve as the
forum for claims against the state, providing, inter alia, that the “court
shall have exclusive jurisdiction to hear and determine *** [a]ll claims
against the State for damages in cases sounding in tort, if a like cause
of action would lie against a private person or corporation in a civil
suit.” 705 ILCS 505/8(d) (West 2004).
This court has had numerous occasions to consider whether a
particular tort action is “against the State” and, therefore, must be
brought in the Court of Claims. As a result, the rules governing this
inquiry are well established. See, e.g., Fritz v. Johnston, 209 Ill. 2d
302 (2004); Jinkins v. Lee, 209 Ill. 2d 320 (2004); Currie v. Lao, 148
Ill. 2d 151 (1992); Healy v. Vaupel, 133 Ill. 2d 295 (1990).
Whether an action is one against the state does not depend on the
identification of the parties but, rather, on the “issues involved and the
relief sought.” Thus, plaintiffs cannot evade the jurisdiction of the
Court of Claims by naming a servant or agent of the state as the
nominal defendant when the State of Illinois is the real party in
interest. Healy, 133 Ill. 2d at 308.
When the “issue involved” is the alleged negligence of a state
employee, the mere fact that he was acting within the scope of his
employment is not sufficient to make the state the real party in
interest. Currie, 148 Ill. 2d at 158. The proper inquiry is to determine
the source of the duty the state employee is charged with breaching.
Where the alleged negligence is the breach of a duty imposed on the

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employee solely by virtue of his state employment, the Court of
Claims has exclusive jurisdiction. If, however, the duty that he is
accused of breaching is imposed independently of his state
employment, the claim may be heard in circuit court. Currie, 148 Ill.
2d at 159. Thus, this court concluded that a “State employee who
breaches a duty he owes regardless of his State employment is no
more entitled to immunity than is a private individual who breaches
that same duty.” Currie, 148 Ill. 2d at 160.
As to the “relief sought,” an action naming a state employee as
defendant will be found to be a claim against the state “where a
judgment for the plaintiff could operate to control the actions of the
State or subject it to liability.” Currie, 148 Ill. 2d at 158.
We must, therefore, determine whether a veterinarian employed
as a member of the faculty at a state university is bound by a duty of
care that arises independently of his state employment. We must also
determine whether a judgment against such a defendant could operate
to control the actions of the state or subject it to liability.

(a) Source of Duty Defendant Is Alleged to Have Breached
The appellate court held that when one “undertakes to render
veterinary services, the common law imposes upon that person a duty
to use the same skill and knowledge normally possessed by
veterinarians in good standing in similar communities, unless that
person represented he or she had greater or less skill or knowledge.”
375 Ill. App. 3d at 454. The appellate court concluded, therefore, that
defendant’s duty to plaintiffs did not arise solely from his position as
a member of the faculty at the university, which “merely provid[ed]
the occasion for his incurring a duty toward them.” As such, he was
not performing a uniquely governmental function. 375 Ill. App. 3d at
455.
In reaching this conclusion, the appellate court relied on this
court’s decisions in Currie and Jinkins. In Currie, an Illinois State
Police trooper, Lao, was on duty patrolling Interstate 80. He heard
and responded to a call regarding a disturbance in the nearby City of
Joliet. He activated his lights and siren, exited the interstate, and
headed for the location of the disturbance. After he missed a turn, he
made a U-turn that resulted in his traveling the wrong way on a one-

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way street. When he made a left turn to leave the one-way street, he
collided with the plaintiff’s pickup truck. Currie, 148 Ill. 2d at 155.
This court concluded that the duty the trooper had allegedly breached
“did not arise as a result of his employment as a State trooper, but
rather arose as a result of his status as the driver of an automobile on
a public roadway.” Currie, 148 Ill. 2d at 161-62. Thus, he “was not
performing a uniquely governmental function” at the time of the
collision. Currie, 148 Ill. 2d at 162. Because it was not within his
“normal and official” role as a state trooper to respond to police calls
in a nearby jurisdiction with its own police department, he was not
protected by sovereign immunity and plaintiff’s claim was not a matter
for the exclusive jurisdiction of the Court of Claims. Currie, 148 Ill.
2d at 162. When he chose to respond to the call, he “was performing
the nongovernmental activity of driving a motor vehicle in a routine
manner on a public street” (Currie, 148 Ill. 2d at 164), and, thus, he
owed “the same duty owed by all automobile drivers to their fellow
motorists” (Currie, 148 Ill. 2d at 163).
We distinguished Lao’s situation from that of the officer in
Campbell v. White, 207 Ill. App. 3d 541 (1991), who was involved in
a high-speed chase. In the course of the chase, he struck the suspect’s
vehicle, causing the suspect’s death. We observed that although
Officer White “was operating a motor vehicle, he was doing so in a
manner in which only a governmental official is authorized to act,”
and the duty he was alleged to have breached “arose solely as a result
of [his] State employment.” Currie, 148 Ill. 2d at 164, citing
Campbell, 207 Ill. App. 3d at 555.
Defendant cites Currie, but only to note that this court cited
Campbell therein. Relying on Campbell, he argues that, like the
officer involved in a high-speed chase, any actions he took while
treating plaintiffs’ horse were uniquely related to his state
employment. At oral argument, counsel for the defendant represented
that at the time defendant performed surgery on the animal, students
were present and he was teaching. (Counsel explained that these facts
have not been pleaded because defendant responded to the complaint
by filing a motion to dismiss rather than a responsive pleading.)
Counsel also argued that trooper Lao’s actions were not unique to his
state employment because he was not on duty and he owed a duty of

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reasonable care as a citizen, while trooper White was on duty, driving
his squad car for a purpose uniquely related to his state employment.
Defendant is mistaken. In both Currie and Campbell, the
defendant police officers were on duty at the time they were involved
in automobile accidents. In Currie, the on-duty officer was performing
the “nongovernmental activity” of driving the wrong way down a city
street on his way to a location at which his job did not require him to
be. Currie, 148 Ill. 2d at 164. In Campbell, the on-duty officer was
performing the governmental activity of pursuing a fleeing suspect.
Campbell, 207 Ill. App. 3d at 555.
Even if we accept defendant’s assertion that he was teaching
students at the time he performed the allegedly unauthorized surgery,
his actions are more like those of Officer Lao than those of officer
White. Like both officers, defendant was “on duty.” That is, he was
present at his place of state employment, engaged in his state function
of teaching students. When he performed a procedure that the owners
of the animal had forbidden, his conduct was like that of Officer Lao,
who was acting outside his authority as a state trooper when he
caused an accident. Thus, like Officer Lao, whose duty “to refrain
from these negligent acts is the same duty owed by all automobile
drivers to their fellow motorists” (Currie, 148 Ill. 2d at 163),
defendant owed a duty to “perform only those nonemergency
surgeries to which the owner has consented.” 375 Ill. App. 3d at 455.
The appellate court also relied on our decision in Jinkins, where
we held that a psychiatrist and a licensed clinical professional
counselor employed at a state mental health facility owed a duty of
care to their patient that arose from their status as professionals,
rather than from their state employment. Jinkins, 209 Ill. 2d at 334.
We rejected the defendants’ argument that their only duty to the
patient arose from their state employment because they would not
have come into contact with him “but for” their employment at a state
facility. Jinkins, 209 Ill. 2d at 333. We held that because the
defendants “were using their professional judgment ***, the source of
their duty was their mental health professional status.” Jinkins, 209 Ill.
2d at 335.
Defendant responds by commenting that while health-care
providers have a duty to their patients that “exists above and beyond

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any duty unique to state employment,” the “duty owed [in this case]
involved property, not people.”
The appellate court identified several sources of a common law
duty of veterinarians: (1) the status of veterinary medicine as a
“learned profession,” which sets certain standards for its members
(375 Ill. App. 3d at 452-53), (2) numerous cases from other
jurisdictions that have recognized a common law duty of care
applicable to veterinarians (375 Ill. App. 3d at 453-54), (3) cases from
our own appellate court that have assumed the existence of a
veterinary standard of care (375 Ill. App. 3d at 454), and (4) section
299A of the Restatement (Second) of Torts, defining the standard of
conduct for professions or trades (375 Ill. App. 3d at 454).
Defendant argues that he owed no duty of care to plaintiffs or
their animal. He rejects the first source listed based on his exemption
from the license requirement of the Veterinary Medicine and Surgery
Practice Act, which we discuss below.
As to the second source, he argues that this court should give no
weight to the decisions of the many other states that impose a duty of
care on veterinarians because those states may not have veterinary
colleges. We do not find this argument persuasive.
Defendant does not comment on the third source, but we find the
appellate cases cited to be of limited value because the duty question
was not addressed directly. See Nikolic v. Seidenberg, 242 Ill. App.
3d 96, 102 (1993) (adoption contract with animal shelter did not
waive right to sue associated veterinarian for negligence); Jankoski v.
Preiser Animal Hospital, Ltd., 157 Ill. App. 3d 818, 821 (1987)
(damages for loss of companionship were not properly awarded in
action against animal hospital and veterinarian for negligently causing
the death of plaintiff’s dog); Spilotro v. Hugi, 93 Ill. App. 3d 837
(1981) (trial court erred by excluding certain testimony of plaintiff’s
expert witness in malpractice action against veterinarian). We note,
however, that these cases are not new and they are not novel. See C.
Bailey, Annotation, Veterinarian’s Liability for Malpractice, 71
A.L.R.4th 811 (1989) (listing cases).
Defendant does not respond to the appellate court’s reliance on
section 299A of the Restatement (Second) of Torts. This section,
entitled “Undertaking in Profession or Trade,” provides:

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 “Unless he represents that he has greater or less skill or
knowledge, one who undertakes to render services in the
practice of a profession or trade is required to exercise the
skill and knowledge normally possessed by members of that
profession or trade in good standing in similar communities.”
Restatement (Second) of Torts §299A, at 73 (1965).
Comment a to section 299A notes that the word “skill,” as used
here, refers to a “special form of competence which is not part of the
ordinary equipment of the reasonable man, but which is the result of
acquired learning, and aptitude developed by special training and
experience.” Further, “[a]ll professions, and most trades, are
necessarily skilled, and the word is used to refer to the special
competence which they require.” Restatement (Second) of Torts
§299A, Comment a, at 73 (1965). It cannot be disputed that a doctor
of veterinary medicine is skilled. It is also beyond dispute that the
practice of veterinary medicine and surgery is a “profession or trade”
(Restatement (Second) of Torts §299A, Comment b, at 73 (1965))
and that the medical or surgical treatment of an animal, with or
without a contract for such services, is an “undertaking” (Restatement
(Second) of Torts §299A, Comment c, at 73-74 (1965)).
As the appellate court observed, this court has previously cited
section 299A of the Restatement with approval. In Purtill v. Hess,
111 Ill. 2d 229, 242 (1986), we discussed the burden on the plaintiff
in a medical malpractice action to establish “the standard of care
against which the defendant physician’s alleged negligence is judged.”
We cited comment e to section 299A for the “similar locality” rule,
“which requires a physician to possess and to apply that degree of
knowledge, skill, and care which a reasonably well-qualified physician
in the same or similar community would bring to a similar case under
similar circumstances.” Purtill, 111 Ill. 2d at 242, citing Restatement
(Second) of Torts §299A, Comment e, at 74-75 (1965).
In Advincula v. United Blood Services, 176 Ill. 2d 1, 23 (1996),
this court cited section 299A in support of a statement that the
standard of care for all professionals is “the use of the same degree of
knowledge, skill and ability as an ordinarily careful professional would
exercise under similar circumstances.” We noted that standard of care
“is utilized to measure the conduct of a wide variety of both medical
and nonmedical professions,” including podiatry and dentistry.

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Advincula, 176 Ill. 2d at 23 (citing Dolan v. Galluzzo, 77 Ill. 2d 279,
281 (1979) (podiatric practitioner), and Rosenberg v. Miller, 247 Ill.
App. 3d 1023, 1028-29 (1993) (dentists)).
We conclude that section 299A of the Restatement (Second) of
Torts is an accurate statement of the common law of Illinois with
respect to the duty of care owed by members of professions or trades,
and we, therefore, agree with the appellate court’s holding that a
veterinarian owes a duty of care. See C. Bailey, Annotation,
Veterinarian’s Liability for Malpractice, 71 A.L.R.4th 811, §2(a)
(1989) (noting that “the gravamen of such an action is that in
providing veterinary care, the veterinarian failed to use such
reasonable skill, diligence, and attention as might ordinarily have been
expected of careful, skillful, and trustworthy persons in the
profession”). Thus, the duty owed by defendant arises independently
of his employment by the state and he was not performing a “uniquely
governmental function” (Jinkins, 209 Ill. 2d at 335) when he treated
plaintiffs’ horse.
Defendant protests that the appellate court’s recognition of a
common law duty of veterinarians “raises all animals–from domestic
pets to investments such as race horses–to the same level or plane as
human beings.” We note, however, that comment c to section 299A
states that “[i]n the ordinary case, the undertaking of one who renders
services in the practice of a profession or trade is a matter of contract
between the parties, and the terms of the undertaking are either stated
expressly, or implied as a matter of understanding.” (Emphasis added.)
Restatement (Second) of Torts §299A, Comment c, at 73-74 (1965).
This statement implicates the Moorman doctrine. In the typical case,
a veterinarian will be providing care to an animal after having formed
a contractual relationship with the owner of the animal. Thus, even
though the veterinarian is subject to a duty of care, the owner may be
limited to a contractual remedy for any breach of duty. The appellate
court in the present case held that plaintiffs’ claim comes within an
exception to the Moorman doctrine so that they are not limited to a
breach of contract claim. For the reasons explained previously, we
express no opinion on this issue.

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 (b) Whether the Relief Sought Would Operate to Control the
Actions of the State or Subject It to Liability
The relief sought by plaintiffs is money damages for two types of
loss: the reduction in the fair market value of the horse and the
revenue lost as a result of the horse’s inability to race. Plaintiffs argue
that a judgment in their favor will not control the actions of the state
and will not subject the state to liability.
At oral argument, counsel for defendant averred that if the
defendant were to be found liable in tort and if the plaintiff were
awarded such damages, the University would indemnify defendant. In
Jinkins, the defendant state employees did not argue that the state’s
statutory duty to indemnify them (see 5 ILCS 350/2(a) (West 2004)
(Indemnification Act)) would make the state liable for any judgment
against them. Nevertheless, this court remarked, in a footnote, that the
appellate court had, in two previous cases, rejected this argument
“based on the distinction between liability and indemnification.”
Jinkins, 209 Ill. 2d at 336 n.2 (citing Janes v. Albergo, 254 Ill. App.
3d 951, 965-66 (1993), and Kiersch v. Ogena, 230 Ill. App. 3d 57,
63-64 (1992)).
In the present case, the appellate court cited Jinkins, Janes, and
Kiersch in support of its conclusion that a judgment against defendant,
“in itself, would not subject the state to liability.” 375 Ill. App. 3d at
456. We agree.
In Kiersch, the defendant was being provided legal representation
and indemnification by his employer, Illinois State University, in
keeping with the University’s policy and the Indemnification Act. The
appellate court rejected defendant’s argument that a state university’s
providing legal representation and indemnification to its employees
transformed all suits against university employees in their individual
capacities into suits against the state. Kiersch, 230 Ill. App. 3d at 63.
Indemnification, which is the statutory or contractual obligation of the
indemnitor to reimburse the indemnitee for his loss, is not the same as
liability, which is a legal obligation or responsibility enforceable by
civil remedy or criminal punishment.
The statutory duty to indemnify runs from the state employer to
the state employee. In contrast, liability is imposed on the tortfeasor
himself, not upon the party who indemnifies him. As the appellate

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court observed in Janes, “the State’s obligation to indemnify its
employees for liability incurred by them does not constitute the State’s
assumption of direct liability.” Janes, 254 Ill. App. 3d at 965.
This distinction is further enforced by the language of the
Indemnification Act itself, which provides in section 2(d) that “unless
the court or jury finds that the conduct or inaction which gave rise to
the claim or cause of action was intentional, wilful or wanton
misconduct and was not intended to serve or benefit interests of the
State, the State shall indemnify the State employee for any damages
awarded and court costs and attorneys’ fees assessed as part of any
final and unreversed judgment, or shall pay such judgment.”
(Emphasis added.) 5 ILCS 350/2(d) (West 2004). Jury trials are not
available in the Court of Claims. Kiersch, 230 Ill. App. 3d at 64. See
also Seifert v. Standard Paving Co., 64 Ill. 2d 109, 120 (1976) (the
lack of a provision for jury trials before the Court of Claims does not
violate the state constitutional guarantee of the right to trial by jury).
Thus, the Indemnification Act anticipates that there will be cases tried
in the circuit court in which a state employee will be found liable and,
unless the court or jury finds that his actions were wilful or wanton,
he will be indemnified by the state. If the availability of indemnification
were sufficient to confer exclusive jurisdiction in the Court of Claims,
there would be no role for a jury. Janes, 254 Ill. App. 3d at 966.
We agree with the appellate court that a judgment against
defendant would not subject the state to liability.
The appellate court also rejected the premise that a judgment
against defendant in circuit court would operate to control the state.
“Surely,” the appellate court remarked, “the College of Veterinary
Medicine does not have a policy of performing unauthorized
surgeries.” 375 Ill. App. 3d at 455.
In Jinkins, we considered whether a judgment against a
psychiatrist and a counselor employed by a state mental health facility
would operate to control the actions of the state. The defendants
asserted that a judgment for the plaintiff, the administrator of the
estate of a deceased patient, might cause the state to change its
policies so that health-care professionals would be required to
involuntarily admit individuals to state mental health facilities as a
precautionary measure, even if admission was not necessary. This,
they argued, could increase the number of lawsuits brought by

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involuntarily admitted patients and place a strain on scarce resources.
Jinkins, 209 Ill. 2d at 336.
We found the argument “speculative” and without basis in the
record. And, in any event, we noted that judgment for the plaintiff
would merely have had the effect of reinforcing the policy, expressed
in state law, that requires “both state and private institutions to devote
resources and fashion policy to adhere to the standard of care.”
Jinkins, 209 Ill. 2d at 337, citing 20 ILCS 1705/4.1 (West 1996). We
concluded that a judgment for the plaintiff would not operate to
control the actions of the State, which would continue to make policy
decisions and expend resources in keeping with “the goal of meeting
the standard of care already directed by existing state law.” Jinkins,
209 Ill. 2d at 337.
In Fritz, we formulated the “operate to control” inquiry as
whether a verdict for the plaintiff in circuit court “ ‘would limit the
employee’s ability to engage in lawful activity on behalf of the
State.’ ” Fritz, 209 Ill. 2d at 315, quoting Wozniak v. Conry, 288 Ill.
App. 3d 129, 133 (1997). We concluded that if the allegedly tortious
acts of a state employee “cannot properly be characterized” as lawful
actions on behalf of the state, then a circuit court judgment that would
tend to curb such actions does not violate sovereign immunity.
We agree with the appellate court that a judgment against
defendant will not operate to control the state or limit the ability of a
member of the veterinary faculty of the University of Illinois to engage
in lawful activity.
Thus, the Court of Claims does not have exclusive jurisdiction
over a claim that a veterinarian employed by the state has breached the
duty of care applicable to veterinarians because that duty arises from
the common law, independently of state employment, and a judgment
against such a veterinarian will neither operate to control the state nor
subject the state to liability.

(3) Whether Defendant Is Immune From Liability
Defendant argues that notwithstanding any duty that might be
imposed upon veterinarians under state law, he is immune from
liability because he is “completely and utterly exempt from the
provisions” of the Practice Act. Specifically, he points to section 4 of

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the Practice Act, which states that “Nothing in this Act shall apply to
*** (3) Veterinarians employed by colleges or universities or by state
agencies, while engaged in the performance of their official duties.”
225 ILCS 115/4(3) (West 2000). This provision, according to
defendant, evinces a legislative intent to exempt professors of
veterinary medicine not only from the license requirement (225 ILCS
115/3(b) (West 2000)), and the continuing education requirement
(225 ILCS 115/16 (West 2000)), but from even forming a
“veterinarian client-patient relationship” as that term is defined in the
statute (225 ILCS 115/3(a)(G) (West 2000)).
Plaintiffs respond that the Practice Act is a licensing statute, not
a tort immunity act. The exemption in section 4(3) is, in plaintiffs’
view, “intended to allow Illinois universities to attract and employ
learned professionals in veterinary science, without imposing the
additional burden of acquiring an Illinois license, or being subject to
a regulatory agency.”
We agree. Defendant’s argument is, in effect, that the only source
of duty for a member of a licensed and regulated profession or
occupation is the governing statute and that, therefore, one who is
exempt from the statute cannot be held to a standard of care in the
practice of his profession or occupation.
The Practice Act is codified in chapter 225 of the Illinois
Compiled Statutes, which is titled “Professions and Occupations.”
This chapter codifies the licensing and regulation of a multitude of
occupations including acupuncture (225 ILCS 2/1 (West 2004)),
funeral directors and embalmers (225 ILCS 41/1–1 (West 2004)),
professional boxers and wrestlers (225 ILCS 105/1 (West 2004), as
well as physicians (225 ILCS 60/1–1 (West 2004)), and dentists (225
ILCS 25/1 (West 2004)). If we were to accept defendant’s reading of
the Practice Act, we would also have to conclude that the only duty
that may apply to any member of any of the regulated occupations and
professions arises through the statute.
For example, section 17 of the Illinois Dental Practice Act lists 10
separate acts that constitute the practice of dentistry. 225 ILCS 25/17
(West 2004). Section 17 further provides that the practice of dentistry
by a clinical instructor in the course of his or her teaching duties in an
approved dental school or college is “exempt from the operation of
this Act” if either of two conditions is met. 225 ILCS 25/17(d) (West

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2004). Under defendant’s reasoning, a clinical instructor of dentistry
who is exempt from the licensing provision of the Dental Practice Act
would owe no duty to his dental patients to exercise the same degree
of skill and knowledge as licensed members of the profession. Such a
result would be absurd.
Defendant asks this court to infer a legislative intent to grant tort
immunity to a certain class of people in the absence of express
statutory language granting such immunity. Our research reveals no
authority for making such an inference and defendant cites none. Our
constitution, however, contains a guarantee that “[e]very person shall
find a certain remedy in the laws for all injuries and wrongs which he
receives to his person, privacy, property or reputation. He shall obtain
justice by law, freely, completely, and promptly.” Ill. Const. 1970, art.
I, §12.
When the legislature intends to confer immunity from tort liability,
it is likely to do so expressly. See, e.g., 225 ILCS 25/36 (West 2004))
(granting immunity from civil or criminal liability for good-faith
reporting of any violation of the Dental Practice Act); 225 ILCS 60/30
(West 2004) (granting immunity from civil liability to physician who
provides emergency care under the Good Samaritan Act); 620 ILCS
20/3 (West 2004) (extending immunity under Local Governmental and
Governmental Employees Tort Immunity Act to airport employees).
Because of the constitutional guarantee of a certain remedy for every
legal wrong, we will not imply tort immunity in the absence of such
express language.
We, therefore, conclude that section 4(3) of the Practice Act is
intended to exempt certain veterinarians from the license requirement
and other requirements of the act, but not to provide immunity from
liability in tort for those exempted. Defendant is not immune from
liability.

(4) Whether Plaintiffs Have Stated a Claim for Conversion
Under its analysis of the Moorman issue, the appellate court
considered both the negligence count and the conversion count. With
respect to the conversion count (which was dismissed by the circuit
court on other grounds), the appellate court reasoned that defendant’s
“duty to refrain” from operating on the horse’s right stifle “did not

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arise exclusively from the service contract.” 375 Ill. App. 3d at 457.
Because defendant performed the surgery in violation of an express
instruction from the plaintiffs, it was outside the scope of the parties’
contract and, therefore, not barred by Moorman. The appellate court
concluded that:
“Contract or no contract, if one cuts, carves, lacerates, incises,
or otherwise alters someone else’s property except as
authorized by that person, one commits a classic tort: either
trespass to chattels or conversion, depending on the extent of
the alteration.” 375 Ill. App. 3d at 458.
As noted above, defendant has forfeited consideration of the
Moorman issue before this court, so we turn to the question whether
plaintiffs have stated a cause of action for conversion.
“To prove conversion, a plaintiff must establish that (1) he has a
right to the property; (2) he has an absolute and unconditional right to
the immediate possession of the property; (3) he made a demand for
possession; and (4) the defendant wrongfully and without
authorization assumed control, dominion, or ownership over the
property.” Cirrincione v. Johnson, 184 Ill. 2d 109, 114 (1998).
In count II of their amended complaint, plaintiffs alleged that they
were the owners of the horse with the “absolute and unconditional
right to immediate possession of the horse,” and that a demand for
possession of the horse would have been “useless” because the
defendant could not have returned their personal property to them “in
its unaltered state.” With regard to the element of assumption of
control, dominion, or ownership, the plaintiffs alleged that defendant’s
performing unauthorized surgery, in violation of their express
instructions, constituted “an unauthorized assumption of the right to
possession or ownership of the horse.”
Defendant’s motion to dismiss argued that count II failed to plead
a cause of action for conversion because plaintiffs did not allege that
he had “permanently deprived them of possession of the horse.” The
circuit court granted the motion, dismissing the conversion claim with
prejudice.
The appellate court reversed, relying on section 226 of the
Restatement (Second) of Torts, which provides: “ ‘One who
intentionally destroys a chattel or so materially alters its physical

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condition as to change its identity or character is subject to liability for
conversion to another who is in possession of the chattel or entitled
to its immediate possession.’ ” 375 Ill. App. 3d at 458, quoting
Restatement (Second) of Torts §226, at 439 (1965). Comment d to
this section suggests that a claim for conversion of a horse on the
basis of physical injury to the animal is not unheard of and that one
may indeed be liable for the conversion of a horse without
permanently depriving the owner of possession: “ ‘If a horse is
permanently lamed, it remains a horse, the owner may still be in
possession, and the horse may have value to a glue works, but it has
become useless for the ordinary purposes of a horse. In such a case
there is a conversion.’ ” 375 Ill. App. 3d at 458, quoting Restatement
(Second) of Torts §226, Comment d, at 440-41 (1965). Thus, the
appellate court concluded, the claim for conversion was properly
pleaded.
In the portion of their brief addressing the Moorman issue,
plaintiffs argue that the doctrine does not bar a claim for the
intentional tort of conversion. They argue, further, that the appellate
court was correct that their amended complaint did state a claim for
conversion. They also point out that defendant failed to raise any
issues related to the conversion claim in his petition for leave to
appeal.
Nevertheless, we have a duty to consider sua sponte whether the
Court of Claims has exclusive jurisdiction with respect to the
conversion claim. Eastern v. Canty, 75 Ill. 2d 566, 570 (1979)
(explaining that a court has a duty to examine its jurisdiction, even if
no question is raised by the parties).
Section 8(d) of the Act confers exclusive jurisdiction upon the
Court of Claims “in cases sounding in tort.” 705 ILCS 505/8(d) (West
2004). This provision is not limited to claims of negligence. By its
plain language, this section applies to all tort claims, including
intentional torts such as trespass to chattel and conversion.
We noted in Healy, 133 Ill. 2d at 309, that an action is against the
state when there is “ ‘no allegation[ ] that an agent or employee of the
State acted beyond the scope of his authority through wrongful acts.”
The essence of a claim for conversion is an allegation that the
defendant engaged in an intentional, wrongful act.

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 Further, regarding the relief sought, holding the defendant liable
for the intentional tort of conversion cannot operate to control the
actions of the state because the University simply cannot have a policy
requiring its employees to commit the intentional tort of conversion.
Further, as noted above, the State’s indemnification of defendant,
should he be found liable for conversion, will not operate to control
the actions of the State.
We therefore, conclude, that plaintiffs’ claim for conversion
should not have been dismissed by the circuit court.

CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate
court, without having reached the question whether plaintiffs’
negligence claim is barred by the Moorman doctrine, which reversed
the dismissal of both counts of the amended complaint and remanded
the cause to the circuit court for further proceedings.

Affirmed.

JUSTICE FREEMAN, dissenting:
I cannot join in the court’s opinion because it does not adequately
address the issues that have been raised with respect to count I. One
of the main reasons why this is so is because the court cannot decide
whether count I, ostensibly for “negligence,” is really a contract claim.
The court appears to treat it as both. Slip op. at 4, 6, 12. Specifically,
in section (1) of its analysis, the court states that the Moorman
doctrine applies to service contracts, “which would seem to include
the veterinary care at issue in the present case.” Slip op. at 4. Two
pages later, however, the court, in addressing the jurisdictional issue,
speaks of the analysis used in determining “whether a particular tort
action is ‘against the State’ ***.” (Emphasis added.) Slip op. at 6. If
the court believes that the parties’ relationship is that of a service
contract, as alluded to on page 4, then why is the court talking about
a tort action on page 6? This same type of contradiction continues
throughout the opinion. On page 12, for example, the court holds that
the duty of care in this case arises from notions founded in tort law,
but, later, the same page it states that the relationship between the

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parties is a “contractual” one. Slip op. at 12. These types of internal
inconsistencies indicate to me that we need to more carefully examine
the nature of the claim alleged in count I. The best way to do this, in
my view, is to identify the precise nature of the relationship between
the parties. The reward of such an analysis would be an opinion that
cleanly resolves the central issues–the jurisdictional question, as well
as the application of the Moorman doctrine.1 I, therefore, respectfully
dissent.
An unfortunate byproduct of the court’s belief that defendant’s
brief does not adequately address the Moorman issue (slip op. at 5-6)
is that the reinstatement of count I is left standing. This is so despite
the fact this court has never addressed the question of whether a
general negligence claim is the proper legal vehicle to compensate
animal owners such as plaintiffs. This is particularly disappointing

1
I strongly disagree that it is “unnecessary” for the court to review the
appellate court’s application of the Moorman doctrine to this case. Slip op.
at 5. The Moorman issue impacts on the jurisdictional question, as is aptly
demonstrated in the court’s opinion. See slip op. at 12. Indeed, the confused
nature of the court’s treatment of count I is attributable to the court’s
unjustified decision to hold the Moorman issue forfeited. By so doing, the
court is, in actuality, refusing to address whether count I actually states a
valid cause of action for negligence. It must be pointed out that the circuit
court ruled that count I did not state a cause of action because under
Moorman, the economic damages being sought under the negligence theory
were barred. The appellate court reversed, holding that an exception to the
doctrine was satisfied, and reinstated the count. In so doing, the appellate
court correctly recognized that Moorman is properly asserted under section
2–615 of the Code of Civil Procedure and not, as an affirmative defense,
under section 2–619(a)(9). 375 Ill. App. 3d at 448. I note in passing that the
court today is satisfied to simply “accept the appellate court’s
characterization of the procedural posture of the case” because the parties
have not bothered to make it an issue here. Slip op. at 3. Regardless of
whether the parties make it an issue, I would submit that proper procedure
is not a matter of for a court’s acquiescence. Since the mislabeling of a
motion is generally not cause for reversal absent prejudice (Scott Wetzel
Services v. Regard, 271 Ill. App. 3d 478, 481 (1995)), there is simply no
reason why the court could not have clarified the propriety of the motion
practice below.

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because neither the jurisdictional question nor the Moorman question
can be fully resolved without first identifying the nature of count I.
Nevertheless, the court insists on answering the jurisdictional question
without first addressing the viability of count I in general. In so doing,
the opinion seemingly endorses a negligence theory of recovery by
recognizing a professional standard of care with respect to
veterinarians. Slip op. at 12. I do not believe that a general negligence
claim is the appropriate remedy to compensate animal owners such as
plaintiffs. Rather, given the relationship between the animal owner and
the veterinarian and the classification of animals as personal property,
the proper theory of recovery is a contractual claim based on bailment.
Therefore, although the circuit court correctly recognized that count
I was subject to dismissal, I would allow plaintiffs the opportunity
replead count I as a contract claim, specifically a breach of bailment.
A bailment constitutes the delivery of personal property “for the
accomplishment of some purpose, upon a contract, express or implied,
that after the purpose has been fulfilled, it shall be redelivered to the
person who delivered it, otherwise dealt with according to his
directions or kept until he reclaims it.” Smalich v. Westfall, 440 Pa.
409, 413, 269 A.2d 476, 480 (1970); see also 8A Am. Jur. 2d
Bailments §1 (1997). A bailment is a “contractual arrangement” and,
as such, is governed by the same rules of law that govern contracts in
general. 8A Am. Jur. 2d Bailments §29 (1997). A bailment contract
may be oral or written. 19 Williston on Contracts §53:1, at 10 (2001).
Generally, three categories of bailments exist. Bailments can be made
for the sole benefit of the bailor, for the sole benefit of the bailee, or
for the mutual benefit of both. 8A Am. Jur. 2d Bailments §1 (1997).
One form of mutual benefit bailment is the “hire of labor and
services.” J. Story, Commentaries on the Law of Bailments with
Illustrations from the Civil and Foreign Law §421, at 381 (9th ed.
1878) (hereinafter, Commentaries on the Law of Bailments). Those
undertaking the performance of services under a bailment agreement
are obliged to “do the work; to do it at the time agreed on; to do it
well; to employ the materials furnished by the employer in a proper
manner; and lastly, to exercise the proper degree of care and diligence
about the work.” Commentaries on the Law of Bailments §428, at
389. The bailee’s duties arise from the nature of the parties’
agreement, but the “law fixes the standard of care that the bailee must

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exercise in the performance of the functions the bailee has
undertaken.” 19 Williston on Contracts §53:5, at 21-22 (2001). With
respect to bailments for mutual benefit, generally, the bailee will be
liable for losses that are proximately the result of the bailee’s own
negligence. 19 Williston on Contracts §53:5, at 22 (2001). Although
standards of care included in a bailment contract “more nearly
approximate the law of torts than that of contracts, the rights and
obligations of the parties under a contract of bailment may include, by
implication, rights and duties imposed upon the bailee by law.” 19
Williston on Contracts §53:5, at 23-24 (2001). See also St. Paul-
Mercury Indemnity Co. v. City of Hughes, 231 Ark. 530, 331 S.W.2d
106 (1960) (holding that action can be maintained against municipality
despite tort immunity of the bailee municipality). “Where skill, as well
as care, is required in performing the undertaking, there, if the party
purports to have skill in the business, and he undertakes for hire, he is
bound, not only to ordinary care and diligence in securing and
preserving the thing, but also to the exercise of due and ordinary skill
in the employment of his art or business about it.” Commentaries on
the Law of Bailments §431, at 392. Under the law of bailments,
damages will lie against the party undertaking the work if “he applies
less [skill] than the occasion requires.” Commentaries on the Law of
Bailments §431, at 393. This is so because “where a person is
employed in a work of skill, the employer buys both his labor and his
judgment.” (Emphasis added.) Commentaries on the Law of Bailments
§431, at 393.
Illinois jurisprudence has long recognized the operation of these
principles. This court has held that, in order to establish a bailor-bailee
relationship, “there must be either an express agreement *** or an
agreement by implication, which may be gathered from the
circumstances surrounding the transaction, such as the benefits to be
received by the parties, their intentions, the kind of property involved,
and the opportunities of each to exercise control over the property.”
Wall v. Airport Parking Co. of Chicago, 41 Ill. 2d 506, 509 (1969).
Under the bailment, the bailee has a duty to exercise the skill or
knowledge pertaining to the “nature of the business.” Mayer v.
Brensinger, 180 Ill. 110, 113-14 (1899) (recognizing in breach of
contract action on a bailment that “[t]he obligation to discharge such
duty is implied from the relation between the parties”); see also

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Saddler v. National Bank of Bloomington, 403 Ill. 218, 229 (1949)
(stating same principle); Schaefer v. Washington Safety Deposit Co.,
281 Ill. 43, 48 (1917) (same). Bailees will be liable for losses that
result from their negligence or, more precisely, for their failure to
exercise the skill or knowledge pertaining to the nature of their
businesses. Saddler, 403 Ill. at 229.
In light of these principles, when an animal or pet is left with a
veterinarian for care, it is part and parcel of the contract itself that the
veterinarian will exercise his or her specialized medical skill and
judgment in treating the animal. Such a rule recognizes the notion that
a bailor does not just hire the bailee for his labor, but for his judgment
as well. Commentaries on the Law of Bailments §431, at 393. In other
words, the bailor expects, as part of the bargain, that the bailee will
use the requisite skill and judgment pertaining to the nature of the
business.
Accordingly, I see the relationship between an animal owner and
a veterinarian, such as that described in count I, as a bailment
relationship. Indeed, plaintiffs in count I alleged that they “entrusted”
their horse to defendant for care and treatment. They “consented” to
defendant’s performing a specific surgery on the left carpel bone of
their horse and “consented” specifically to defendant’s draining fluid
from the horse’s right stifle. Plaintiffs specifically “instructed”
defendant “not to perform surgery” on the right stifle because such
surgery “is very risky.” According to the complaint, defendant “in
violation of [plaintiffs’] express instructions” (emphasis added)
performed surgery on the horse’s right stifle, which “ruined” the
animal for “future use in racing. Plaintiffs alleged that defendant owed
them a duty to exercise “reasonable care” in his “care and treatment”
of the horse and to “render” such care and treatment “in compliance
with the standards of a qualified veterinarian.” According to plaintiffs,
defendant failed to do so when he (i) failed “to adhere to the specific
instructions” of plaintiffs “as to the scope of the surgery to be
performed on the horse by performing surgery on the right stifle”; (ii)
performed a surgery on the horse that “was unnecessary”’ and (iii)
performed a surgery on the horse that “was in violation of the
standard of care of a veterinarian.” According to the complaint,
defendant’s negligence was the proximate cause of the damages
plaintiffs suffered in that the surgery on the horse’s right stifle “ruined

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the horse for future use in racing.” Plaintiffs alleged damage to their
personal property “in the amount of the difference between the [fair
market value] of the property immediately before the occurrence and
its [fair market value] immediately after the occurrence.”
The thrust of these allegations is that defendant performed a
surgery on the horse that was specifically forbade by the property
owner at the time of the property’s delivery. The allegations also make
clear that defendant purportedly did not exercise the skill or
knowledge that plaintiffs expected as part of their bargain. In my view,
these types of allegations present a classic breach-of-bailment
situation. Indeed, bailments for mutual benefit have long been
recognized as being particularly amenable to situations involving
animal care. See Commentaries on the Law of Bailments §431, at 393
(acknowledging that “if a farrier undertakes the cure of a diseased or
lame horse, he is bound to apply a reasonable exercise of skill to the
cure; and if through his ignorance or bad management, the horse dies,
he will be liable for the loss”).
Recognizing plaintiffs’ allegations as contractual in nature
eliminates the problems inherent in attempting to recover under a
negligence theory. Indeed, plaintiffs, in their brief, acknowledge that
no Illinois court has expressly held that a cause of action exists for
veterinary malpractice. This scarcity of case law owes not to any lack
of sympathy for animal owners but, rather, to the legal realities that
exist with respect to the relationship between the parties. As an initial
matter, the victim of veterinary malpractice is incapable of bringing a
cause of action against the veterinarian. Oberschlake v. Veterinary
Associates Animal Hospital, 151 Ohio App. 3d 741, 745, 785 N.E.2d
811, 814 (2003); Price v. Brown, 545 Pa. 216, 228, 680 A.2d 1149,
1155 (1996) (Castile, J., dissenting). Under Illinois law, animals are
recognized as personal property. See Jankoski v. Preiser Animal
Hospital, Ltd., 157 Ill. App. 3d 818 (1987). As personal property, an
animal cannot bring suit against a veterinarian. Rather, the owner must
institute the suit, and the owner is legally not the direct victim of the
malpractice.2 Additionally, the classification of animals as personal

2
This of course also distinguishes veterinarian malpractice from other
types of professional malpractice, such as attorney malpractice and

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property limits the amount of damages that are available. Animals
have long been designated as personal property under the common
law. See G. Eichinger, Veterinary Medicine: External Pressures on
an Insular Profession and How Those Pressures Threaten to Change
Current Malpractice Jurisprudence, 67 Mont. L. Rev. 231, 242
(Summer 2006) (tracing classification of animals). Because of this
classification, damages resulting from the negligence are limited to the
animal’s fair market value, or “economic damages,” which generally
means the difference in the fair market value of the animal before and
after injury. 67 Mont. L. Rev. at 242. Thus, there is little if any
financial incentive to sue for injuries and the types of damages
available are often inadequate to address the injury to the animal or its
owner. W. Root, “Man’s Best Friend”: Property or Family Member?
An Examination of the Legal Classification of Companion Animals
and Its Impact on Damages Recoverable for Their Wrongful Death
or Injury, 47 Vill. L. Rev. 423, 442 (2002).
Having properly framed the relationship of the parties as one of
bailment and the complained of conduct as a breach of the bailment,
the questions that are presented in this appeal can be addressed in the
proper context. Given the above, especially the differences between
the doctor-patient relationship and the veterinarian-animal owner
relationship, it would appear that economic damages for damage to or
loss of personal property arising from malpractice would be barred by
the Moorman doctrine. See Anderson Electric, Inc. v. Ledbetter
Erection Corp., 115 Ill. 2d 146 (1986) (holding that Moorman
doctrine applies to service contracts).3 Under a bailment theory of

accountant malpractice.
3
It is critical to distinguish this case, which involves a bailment and the
attendant duties arising directly from the bailment relationship, from the line
of cases which recognize duties arising outside of contract
relationships–sometimes referred to as being duties ex contractu See
Congregation of the Passion, Holy Cross Province v. Touche Ross & Co.,
159 Ill. 2d 137, 163 (1994) (discussing cases). The latter cases do not
involve bailments and, as such, their analyses are inapplicable to cases like
this one.

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recovery, the Moorman doctrine would have no application since the
economic damages being sought are recoverable in contract.
That leaves only the jurisdictional question. Before turning to it,
some additional procedural details that have been ignored in today’s
opinion need addressing. The complaint we address today is plaintiffs’
second amended complaint. When plaintiffs filed their original
complaint, defendant moved for dismissal on the basis that jurisdiction
rested in the Court of Claims and not in the circuit court. The circuit
court rejected the argument, ruling that defendant was a licensed
veterinarian. Defendant thereafter sought reconsideration in the trial
court, and when that proved unsuccessful, he sought an interlocutory
appeal under Rule 308(c). The appellate court declined to hear the
case under Rule 308, and the case then proceeded in the circuit court.
When the circuit court ultimately dismissed the complaint at issue
here, plaintiffs appealed. Defendant, as the appellee, then renewed his
jurisdictional argument by moving to dismiss the appeal in the
appellate court Defendant argued that the Court of Claims was the
appropriate tribunal for the litigation based on the fact that defendant
was acting in the course of his employment as a professor at the
University of Illinois College of Veterinary Medicine. Attached to the
motion were four affidavits, two from defendant, one from the
associate counsel of the University’s Office of Legal Counsel, and
another from the head of the Department of Veterinary Clinical
Medicine at the University.
Defendant, in his affidavit, stated that he had been employed at the
College of Veterinary Medicine at the University of Illinois since
1994, when he was first hired as an assistant professor “to teach,
instruct, and train students, as well as to do research and educate
students through clinical service, all at the College of Veterinary
Medicine.” At the time of his treatment of plaintiffs’ horse in 2001,
defendant was an associate professor. Defendant did not engage in the
private practice of veterinary medicine while employed at the
University, and, at no time, did he hold “himself out to the public as
an equine surgeon or privately practicing veterinarian.” In fact,
defendant had not been in private practice since 1973. Defendant
further stated that he “does not hold a license to practice veterinary
medicine with the State of Illinois and has not held any such license”
due to his being exempt, as a professor of veterinary medicine at the

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University, from Illinois licensing laws. Since 1994, defendant taught,
instructed, and trained veterinarian students “for purposes of
examination and treatment of horses brought to the Large Animal
Clinic at the University of Illinois.” Defendant stated that it was “while
he was employed as an instructor teaching veterinarian students at the
University” and while he “was in performance of his duties of
employment while officially employed with the University” that he
“treated and examined the horse brought by the plaintiffs to the
University.”
Professor Warwick A. Arden, department head of Veterinary
Clinical Medicine at the University, stated in his affidavit that since
April 1994, defendant “had been employed as an instructor, faculty
member and Professor” at the University. Defendant’s duties
throughout the time of his employment included “teaching veterinary
students and examining and treating horses brought to the University
of Illinois Large Animal Clinic.” While in the course of his
performance of official duties as an instructor and faculty member,
defendant “was exempt” from the need for a veterinarian license.
Associate university counsel of the Office of Legal Counsel Mark
D. Henss stated in his affidavit that the University, through its
University Office of Risk Management currently had in place a self-
insurance program under which defendant “is entitled to protection,
provided he is employed by the University and acting within the scope
of his University duties.
Plaintiffs, in their objection to the motion to dismiss, did not
dispute the facts as set forth in the affidavits. Rather, they asserted
that defendant could not seek to “turn” a regulatory and licensing
statute into an immunity act.
Section 8(b) of the Court of Claims Act states that the Court of
Claims shall have exclusive jurisdiction to hear “[a]ll claims against the
State founded upon any contract entered into with the State of
Illinois.” 705 ILCS 505/8(b) (West 2004). Whether a claim is one
“against the State” does not depend upon the state being named as a
party. Healy v. Vaupel, 133 Ill. 2d 295, 308 (1990). Rather, the
determination depends the issues involved and the relief sought.
Healy, 133 Ill. 2d at 308. The prohibition “ ‘against making the State
of Illinois a party to a suit cannot be evaded by making an action
nominally one against the servants or agents of the State when the real

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claim is against the State of Illinois itself and when the State of Illinois
is the party vitally interested.’ ” Healy, 133 Ill. 2d at 308, quoting
Sass v. Kramer, 72 Ill. 2d 485, 491 (1978). Sovereign immunity is not
implicated, however, by allegations that the state’s agent acted in
violation of statutory or constitutional law or in excess of his
authority, and, in those instances, the action can be heard in the circuit
court. Healy, 133 Ill. 2d at 308.
An action that is brought nominally against a state employee in his
individual capacity, but “could operate to control the actions of the
State or subject it to liability,” is considered an action against the
State. Currie v. Lao, 148 Ill. 2d 151, 158 (1992). Thus, an individual
defendant will be protected by sovereign immunity only if the suit
against the individual is truly against the state. See Currie, 148 Ill. 2d
at 158-59. This court has held that an action against a state employee
is considered one against the state when (1) there are no allegations
that an employee or agent of the state acted beyond the scope of his
authority through wrongful acts; (2) the duty alleged to have been
breached was not owed by the employee independently of his state
employment; and (3) the complained-of actions involve matters
ordinarily within that employee’s normal and official functions. Jinkins
v. Lee, 209 Ill. 2d 320, 330 (2004).
The court holds today that the source of the duty involved here
arose independent from the duties of the state employment. Slip op.
at 12. Not even one paragraph later, however, the court clouds this
holding by acknowledging that the Moorman doctrine has an impact
on the question because, in the “typical” case, a veterinarian “will be
providing care to an animal after having formed a contractual
relationship with the owner of the animal.” Slip op. at 12. What does
this mean? I do not understand what exactly is being held because, on
the one hand, it appears that the court is recognizing that the duty that
is independent of state employment arises from notions of common
law relating to professional standards of care. On the other hand, it
also seems to concede that this independent duty is a contractual one.
How the contractual duty squares with the state employment issue is,
apparently, a question left for another day. I remind my colleagues
that, because we are the highest court in the state, the legal
community relies on our opinions “to map the evolving course of the
law.” People v. Jung, 192 Ill. 2d 1, 17 (2000) (McMorrow, J.,

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specially concurring, joined by Miller and Freeman, JJ.). The court’s
analysis with respect to the jurisdictional question certainly raises
more questions than answers.
Not surprisingly, I believe the jurisdictional question should be
approached differently in light of the bailment relationship that existed
between the parties and the University of Illinois. I have already
demonstrated that the duties assumed by defendant in this case arose
from a bailment relationship that existed between him and the
plaintiffs–this much was clear from the limited facts surrounding the
horse’s treatment contained in the complaint.4 However, the affidavits
attached to the motion to dismiss make clear the bailment relationship
between plaintiffs and defendant “would not have had a source outside
the employment status of the defendant[ ].” Healy, 133 Ill. 2d at 313.
Whatever duties arose from the relationship existed because of status
of the defendant as a professor at the University of Illinois’ College of
Veterinary Medicine. Defendant could only accept the bailment and
the duties imposed by it solely because of his state employment.
Without that employment, defendant was not authorized to practice
veterinary medicine in Illinois and would not have been able to legally
perform the surgery at a veterinarian hospital. See 225 ILCS 115/5
(West 2004) (Prohibiting the “practice [of] veterinary medicine and
surgery in any of its branches without a valid license to do so”).
Defendant was, at the time of the bailment and the surgery, a
professor at the College of Veterinary Medicine of the University of
Illinois. His duties as a professor consisted of performing research and
training students by operating on animals in the College’s large-
animal clinic. Defendant was not licensed at the time to practice
veterinary surgery in Illinois. He was not in private practice and did
not possess a veterinary license because, as a professor at a state
university, he was exempt from Illinois’ licensing requirements.
Defendant did not carry malpractice insurance and has not been in

4
Indeed, the complaint speaks consistently in terms such as “consent” and
“instructions” yet the complaint does not refer to a consent form or written
instructions. No such printed documents are attached as exhibits. Given the
allegations, it is clear that some consultation had to occur at the university
clinic before the equine procedures described in the complaint could have
been scheduled. Clearly, this was not a “walk-in” procedure.

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private practice since 1973.5 Defendant therefore was acting in his
normal and official role as a professor of at the College of Veterinary
Medicine when he accepted the bailment and performed the surgery.
I note that, in 2000, there was “nearly one pet for every two
Americans” and that, in 2001, “approximately 124 million dogs and
cats live in American households.” 47 Vill. L. Rev. at 423. In a society
that increasingly values animals and household pets, the issues in this
case deserve more than the short shrift given to them by a majority of
the court. Everything about today’s opinion, from its acknowledgment
that the appellate court’s Moorman analysis is “awkward at best” (slip
op. at 5) to its nonchalant recognition of a professional standard of
care suggests that my colleagues have failed to understand the
ramifications its opinion will have the development of the law in this
area. For this reason, I cannot join in the opinion and respectfully
dissent.

JUSTICE BURKE joined in this dissent.

JUSTICE KILBRIDE also dissents, without opinion.

5
Given the lack of a license, it is not surprising that the University
provided for indemnification for any liability arising from defendant’s
employment. Although I express no opinion on how the indemnity issue
impacts on the jurisdictional question, I must point out that the issue is not
nearly as cut and dry as the court makes it out to be. Slip op. at 13-14. While
acknowledging decisions such as Janes v. Albergo, 254 Ill. App. 3d 951
(1993), and Kiersch v. Ogena, 230 Ill. App. 3d 57 (1992) (slip op. at 13),
the court ignores Oppe v. State of Missouri, 171 Ill. App. 3d 491 (1988), a
decision which takes a decidedly different view on the effect of indemnity
upon the doctrine of sovereign immunity. Oppe was cited with approval in
Currie. See Currie, 148 Ill. 2d at 167.

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