Second District Illinois Appellate Court rules that the plaintiff may plead claim for punitive damages in a complaint consisting entirely of intentional tort-based claims

November 23, 2015

In Fiala v. Bickford Senior Living Group., LLC, the plaintiff appealed the judgment of the circuit court of Kane County, dismissing his medical-battery and civil-conspiracy claims against defendant Dr. Rabia Naveed and striking his request for punitive damages. (This case may sound familiar. This matter previously came before the Appellate Court when defendant Bickford Senior Living Group, LLC, appealed the judgment of the trial court denying its petition to compel arbitration. The Second District Appellate Court reversed, holding that the arbitration clause in plaintiff’s contract with Bickford was enforceable. Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 141160 (April 30, 2015). Bickford was not a party to the most recent appeal.)

According to Plaintiff’s complaint, while a resident Bickford’s long-term-care facility in St. Charles, he was administered the medication Paxil ordered by the defendant without his or his children’s consent in spite of an indication in his chart that his children held the medical powers of attorney and that no medications were to be given to plaintiff without prior consent. The chart contained a specific prohibition against Paxil.

Defendant Dr. Naveed moved to strike Plaintiff’s claim for punitive damages against him, arguing that it was barred by Section 2-204.1 of the Illinois Code of Civil Procedure. Section 2-204.1 provides that a complaint may not contain a prayer for relief seeking punitive damages in all actions on account of bodily injury or physical damage to property, based on negligence, or product liability based on strict tort liability. A plaintiff may only seek punitive damages in such actions if he or she establishes at a court hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.

Relying on the plain language of Section 2-204.1, the Second District Illinois Appellate Court ruled that Section 2-204.1 applies only to negligence or product-liability actions, and not to any other type of actions, such as an intentional tort. In the instant case consisting entirely of intentional tort-based claims, the Court ruled, the protections against punitive damages provided by Section 2-204.1 are not applicable.

Of concern to Illinois long term care providers is commentary voluntarily provided by the Section District concerning the definition of “actions” in Section 2-204.1. The Appellate Court noted that various cases have held that Section 2-604.1 applies to the entire action, so a request for punitive damages is not allowed where even part of the complaint sounds in negligence. The Second District however, offered an alternative definition of “action”: “While ‘action’ may refer to a complaint, it may also refer to a cause of action or claim. This is especially evident if a plaintiff were to engage in alternative pleading and set forth a claim based on negligence and, alternatively, a claim based on an intentional tort: it would not make sense, based on our reading of section 2-604.1 as not applying to intentional torts, to preclude a request for punitive damages in a claim for an intentional tort simply because the plaintiff chose to also plead a claim sounding in negligence.”

The Second District’s discussion constitutes non-binding dicta, and is not a Supreme Court decision. However, with the Court’s language in Fiala, we anticipate we will begin seeing complaints pleading alternative counts based on intentional torts seeking damages including punitive damages.

To obtain a copy of Fiala v. Bickford Senior Living Grp., LLC, 2015 IL App (2d) 150067 (Nov 19, 2015), you may contact Anne Nelson by telephone (312-673-7810) or email (

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