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. 229 Ill. 2d at 109-10, 112-13, 119-20. 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.” 229 Ill. 2d at 110. 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.) 229 Ill. 2d at 112. 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, on the same page it states that the relationship between the parties is a “contractual” one. 229 Ill. 2d at 119-20. 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.11, therefore, respectfully dissent.
An unfortunate byproduct of the court’s belief that defendant’s brief does not adequately address the Moorman issue (229 Ill. 2d at 111-12) 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 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 recoveiy by recognizing a professional standard of care with respect to veterinarians. 229 Ill. 2d at 120. 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 to 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 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.W2d 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 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 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 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 (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 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 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] 11 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 on 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 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. 229 Ill. 2d at 119. 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.” 229 Ill. 2d at 120. 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., 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 the 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 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 Moor-man analysis is “awkward at best” (229 Ill. 2d at 110-11) to its nonchalant recognition of a professional standard of care suggests that my colleagues have failed to understand the ramifications its opinion will have on 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.
I strongly disagree that it is “unnecessary” for the court to review the appellate court’s application of the Moorman doctrine to this case. 229 Ill. 2d at 111. The Moorman issue impacts on the jurisdictional question, as is aptly demonstrated in the court’s opinion. See 229 Ill. 2d at 120. 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. 229 Ill. 2d at 108. Regardless of whether the parties make it an issue, I would submit that proper procedure is not a matter 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.
This of course also distinguishes veterinarian malpractice from other types of professional malpractice, such as attorney malpractice and accountant malpractice.
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.
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.
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. 229 Ill. 2d at 121-22. While acknowledging decisions such as Janes v. Albergo, 254 Ill. App. 3d 951 (1993), and Kiersch v. Ogena, 230 Ill. App. 3d 57 (1992) (229 Ill. 2d at 121), 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.