Doe v. Coe , 2018 IL App (2d) 170435 ( 2018 )

Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and
integrity of this
document
Appellate Court Date: 2018.07.10
14:13:42 -05'00'
Doe v. Coe, 2018 IL App (2d) 170435
Appellate Court JANE DOE, a Minor, by Her Mother and Next Friend, Jane A. Doe,
Caption and by Her Father and Next Friend, John Doe; JANE A. DOE; and
JOHN DOE, Plaintiffs-Appellants, v. CHAD COE; THE FIRST
CONGREGATIONAL CHURCH OF DUNDEE, ILLINOIS; and
PASTOR AARON JAMES, Defendants (The First Congregational
Church of Dundee, Illinois, and Pastor Aaron James, Defendants-
Appellees).
District & No. Second District
Docket No. 2-17-0435
Filed March 30, 3018
Decision Under Appeal from the Circuit Court of Kane County, No. 15-L-216; the
Review Hon. James R. Murphy, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Cause remanded.
Counsel on Kevin M. Lyons, of Lyons Law Group, LLC, of Downers Grove, and
Appeal Francis C. Lipuma, of Chicago, for appellants.
Thomas P. Scherschel and Kaylea H. Weiler, of SmithAmundsen
LLC, of St. Charles, and Michael Resis, of SmithAmundsen LLC, of
Chicago, for appellees.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and
opinion.
OPINION
¶1 Plaintiffs, Jane Doe (Jane), Jane A. Doe, and John Doe, appeal the dismissal with prejudice
of their second amended complaint against defendants, the First Congregational Church of
Dundee, Illinois (FCCD), and its pastor, Aaron James. The complaint alleged that Chad Coe
sexually groomed and ultimately raped1 Jane while Coe was employed as FCCD’s director of
youth ministries and Jane was a member of FCCD’s youth group, which was overseen by Coe.
For the following reasons, we affirm in part, reverse in part, and remand for further
proceedings.
¶2 I. BACKGROUND
¶3 A. Plaintiffs’ Original and First Amended Complaints
¶4 Plaintiffs filed their initial complaint in August 2015. They named several defendants,
including Coe, James, and FCCD. FCCD is a local congregation of the United Church of
Christ (UCC) that employed James and Coe during the relevant period. Plaintiffs also named
the UCC itself and various entities within its loosely hierarchical organization (collectively,
the UCC defendants).
¶5 In January 2016, on the motion of FCCD and James, the trial court dismissed without
prejudice the counts against them. Plaintiffs filed their first amended complaint in February
2016. They alleged four causes of action against both FCCD and James: negligent supervision,
negligent retention, “willful and wanton failure to protect,” and “willful and wanton retention
and failure to supervise.” Against FCCD, plaintiff additionally alleged negligent hiring. The
core allegations of the complaint described a two-year period, from 2011 through 2013, in
which Coe abused his position as FCCD’s youth director through various forms of sexual
misconduct toward female minors who were members of FCCD’s youth and confirmation
groups. A particular focus of the allegations was Jane, whom Coe subjected to persistent
sexual advances before raping her in June 2013.
¶6 In the negligent-hiring count, plaintiffs alleged that, if FCCD had searched Coe’s online
activity prior to hiring him, it would have discovered that Coe maintained profiles on several
websites that featured adult or child pornography. In the remaining counts, plaintiffs alleged
that FCCD and James failed to properly supervise Coe. They also alleged that FCCD and
James knew or should have known of Coe’s misconduct prior to the rape of Jane.
1
The common-law crime of rape has been replaced with statutes defining the offenses of criminal
sexual assault and aggravated criminal sexual assault. See People v. Brown, 2013 IL App (2d) 110303,
¶ 61. Nonetheless, in keeping with plaintiffs’ terminology in their complaint, we will refer to Jane as
(allegedly) having been “raped” by Coe.
-2-
¶7 James, FCCD, and the UCC defendants filed motions to dismiss plaintiff’s first amended
complaint, pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS
5/2-619.1 (West 2014)). James and FCCD also moved the trial court to strike, as irrelevant or
cumulative, certain paragraphs of the first amended complaint, in case the court denied the
motions to dismiss or granted them with leave to refile. FCCD and James sought to have
stricken, inter alia, paragraphs alleging how FCCD and James responded after Jane disclosed
the rape and Coe was arrested for it.
¶8 The trial court agreed with FCCD and James that the counts against them failed to state a
cause of action. As to the negligent-hiring count against FCCD, the court reasoned that an
online search of Coe’s name would not necessarily have disclosed his activity on pornographic
websites because, according to the complaint, he conducted that activity under a pseudonym.
As to the remaining counts, the court found nothing in the complaint to indicate that either
FCCD or James was or should have been aware of Coe’s malfeasance prior to his sexual
assault of Jane.
¶9 The court denied plaintiffs leave to replead any of the counts against James or the
willful-and-wanton counts against FCCD. First, the court reasoned that, if plaintiffs could not
adequately plead simple negligence after two attempts, there was scant chance of their success
on a subsequent attempt to plead willful-and-wanton conduct (which is an aggravated form of
negligence (see Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL
112479, ¶ 19)). Second, the court held that, while James’s acts or omissions as an agent of
FCCD might form the basis for FCCD’s liability, James could not be held personally liable.
¶ 10 The court dismissed the negligence counts against FCCD without prejudice. The court also
granted in its entirety FCCD and James’s motion to strike portions of the first amended
complaint.
¶ 11 The court dismissed with prejudice the counts in the first amended complaint that were
particular to the UCC defendants. Subsequently, we reversed that dismissal and remanded for
further proceedings. See Doe v. Coe, 2017 IL App (2d) 160875.
¶ 12 Plaintiffs filed a motion to reconsider the dismissals of the counts against FCCD and
James. The court granted the motion only to the extent of permitting plaintiffs to replead the
negligence counts against James.
¶ 13 B. Plaintiffs’ Second Amended Complaint
¶ 14 1. Overview of Counts Against FCCD and James
¶ 15 In December 2016, plaintiffs filed their 70-page second amended complaint, which is the
subject of this appeal. Plaintiffs renewed their various claims against Coe and their claims
against FCCD and James for negligence and willful-and-wanton conduct. They pled 16 counts
in total. Counts I through VII named only Coe. James alone was named in counts VIII
(negligent supervision), IX (negligent retention), X (willful-and-wanton failure to protect), and
XI (willful-and-wanton retention and failure to supervise). FCCD alone was named in counts
XII (negligent hiring), XIII (negligent supervision), XIV (negligent retention), XV
(willful-and-wanton failure to protect), and XVI (willful-and-wanton retention and failure to
supervise).
¶ 16 We organize the general and specific allegations under the following headings.
-3-
¶ 17 2. The UCC, the IUCC, and the Safe Church Policy
¶ 18 Plaintiffs alleged that the UCC is “a religious organization composed of Local Churches,
Associations, Conferences, and a General Synod organized in a hierarchical structure.” The
UCC has an entity called the Insurance Board, one purpose of which is to “assist in creating
and maintaining safe church environments within the UCC organization, including, but not
limited to, Local Churches.” On August 21, 2006, the Insurance Board “sent a letter to the
UCC and its sub-entities to provide expectations and recommendations regarding the adoption
of written safe church abuse prevention policies at UCC Local Churches.” The August 21 letter
contained recommended “ ‘Internet Safety Guidelines’ ” (ISG). The ISG restricted
adult-minor online interaction and barred “improper” or “offensive” online content. The letter
also contained a sample policy on “ ‘Appropriate and Inappropriate Affection Between Staff
and Children,’ ” which provided specific examples of such inappropriate contact.
¶ 19 Following the August 21 letter from the Insurance Board, the general counsel for the UCC
(General Counsel) sent a letter to local churches within the UCC “regarding compliance with
the Insurance Board’s recommendations.” The General Counsel included in the letter “a
sample safe church policy that the General Counsel drafted pursuant to the Insurance Board’s
recommendation for a more comprehensive safe church policy for Local Churches.” On
November 18, 2006, the Illinois Conference of the United Church of Christ (IUCC) “approved
the ‘Safe Church Policy-Abuse Prevention’ policy” (SCP), which was based on the safe church
policy provided by the General Counsel.
¶ 20 As FCCD is a local church within the IUCC, “[FCCD] employees and volunteers were
required to read and follow the [SCP]” and “to sign a disclosure statement attesting to and
acknowledging the [SCP].” The SCP required that (1) all employees and volunteers undergo a
background check prior to working with minors, (2) “at least two adults be present to supervise
any minor youth or child activities,” and (3) “incidents of child abuse observed by employees
or volunteers *** be reported to the Illinois Department of Children and Family Services.” The
SCP also defined “sexual exploitation” and “sexual harassment.”
¶ 21 3. FCCD’s Hiring of Coe
¶ 22 Plaintiffs alleged that, when Coe was hired as youth director by FCCD, his father, Douglas
Coe (Douglas), “held a senior position within the UCC as an Association Council Member of
[the Fox Valley Association]” (FVA), which is an “Association” within the IUCC. In hiring
Coe, FCCD relied on the recommendation of Douglas or the FVA and performed no further
investigation into Coe’s background or fitness for the position.
¶ 23 In their specific allegations within the negligent-hiring count (count XII) against FCCD,
plaintiffs alleged that FCCD “failed to conduct even a basic, cursory Google search, or any
investigation into the background and fitness of Coe for the position of Director of Youth
Ministries in violation of church policy.” They further alleged:
“A basic, cursory Google search into the online public presence of Coe would have
revealed Coe’s activity, which included posting public photos of his own genitalia, on
numerous websites, such as, ‘newbienudes,’ ‘motherless,’ ‘wouldyouhitthis,’
‘ratemybody,’ ‘ratemymelons,’ and ‘datehookup,’ among many others.”
¶ 24 In their general allegations—incorporated into the negligent-hiring count—plaintiffs
elaborated on the nature of Coe’s online presence:
-4-
“127. At all times relevant, Coe maintained public online profiles under his name
and under the username ‘BluesGod88’ that could be found using a basic, cursory
Google search.
128. At all times relevant, Coe commonly ‘friended’ employees, volunteers, and
members of [FCCD], including members of the Youth Group[,] on social media sites.
129. At all times relevant, Coe commonly ‘friended’ employees, volunteers, and
members of [FCCD], including members of the Youth Group, of [sic] social media
sites on which he maintained profiles as ‘BluesGod88.’
130. At all times relevant, Coe maintained profiles as ‘BluesGod88’ on numerous
pornographic Adult Obscenity or Child Pornography Internet Sites.
***
132. At all times relevant, Coe posted Obscene, pornographic images of himself,
including his genitals and erect penis, on the internet using ‘BluesGod88’ profiles.”
¶ 25 The complaint did not identify when FCCD hired Coe, but it alleged that his misconduct
occurred from 2011 through 2013 and that FCCD fired him on November 12, 2013. FCCD
hired James in May 2009 as its senior pastor. In that capacity, James was “the master and direct
supervisor of Coe.”
¶ 26 Coe’s responsibilities as FCCD’s youth director “included, among other things, counseling
of youth members and the planning and execution of all programming for the confirmation
class, as well as the middle and high school youth ministries at [FCCD].”
¶ 27 Coe worked from an office inside FCCD’s building. His office was near other church
administrative offices, such as James’s office. Coe and James typically were present together
in the building on weekdays from 8 a.m. to 5 p.m. (normal working hours) and for church
services and special events.
¶ 28 4. Coe’s Misconduct at FCCD
¶ 29 a. General Misconduct Involving Female Minors
¶ 30 Plaintiffs devoted 28 pages of their complaint to an inventory of Coe’s alleged misconduct
at FCCD. Some of the conduct is described in detail, but other descriptions are vague and make
frequent use of the capitalized catchall term, “Inappropriate,” which plaintiffs defined early in
the complaint to encompass:
“Inappropriate Content, Inappropriate Displays of Affection, Sexual Harassment and
Sexual Exploitation, as defined by UCC policies and materials, as well as conduct or
materials defined by Illinois law to be Grooming, Sex Offenses, Harmful to Minors,
Obscene, Adult Obscenity or Child Pornography Internet Site.”
¶ 31 Our recapitulation of the misconduct allegations is not exhaustive and need not be. In this
appeal, Coe’s conduct is relevant only as it impacts the potential liability of FCCD and James.
We are concerned particularly with alleged violations of the SCP by FCCD and James and with
allegations suggesting that they were or should have been aware of Coe’s unfitness for his
position.
¶ 32 Some of Coe’s misconduct at FCCD is not alleged to have directly impacted others in the
church. For instance, Coe is alleged to have used FCCD’s computers to visit and maintain
profiles on websites with adult and child pornography and to store pornographic pictures.
-5-
¶ 33 The remaining misconduct involves members of FCCD’s youth and confirmation groups,
which Coe oversaw as FCCD’s youth director. There are separate paragraphs in the complaint
for misconduct involving Jane in particular and for misconduct that Coe directed toward
multiple unnamed female minors who were members of the youth or confirmation groups at
FCCD. As for the latter, general misconduct, Coe is alleged to have used his cellular phone and
FCCD’s computers to (1) store pornographic images of underage female members of the youth
group, (2) store pornographic images of himself and send them to underage female members,
and (3) “ ‘friend’ ” underage female members on social media sites and “discuss [their]
romantic relationship or sexual relationships,” in violation of the ISG.
¶ 34 This general misconduct toward underage female members of the youth and confirmation
groups also allegedly included in-person misconduct. Plaintiffs alleged the following
misconduct by Coe, “commonly” or “habitually” with underage female members: (1) making
inappropriate physical contact, (2) making sexually suggestive remarks and engaging the
members in sexually charged banter and games, and (3) showing the groups videos with
“Inappropriate sexual content,” including pornographic content. Plaintiffs specifically
described the types of touches, remarks, games, and movies that constituted Coe’s misconduct.
¶ 35 Plaintiffs alleged no dates for the foregoing misconduct, except for an instance that
occurred at a “Confirmation event” in 2011. Infra ¶ 43.
¶ 36 b. Misconduct Involving Jane
¶ 37 Plaintiffs alleged that Jane was the victim of a campaign of grooming by Coe that occurred
from 2011 through 2013. According to plaintiffs, the grooming “escalated” during the summer
of 2012, when Jane was 14 years old and Coe was 30 years old. Coe psychologically
manipulated Jane to increase her trust and emotional dependence on him. He “encouraged
[Jane] to spend large amounts of time telling Coe about intimate details of her life.” He
“stressed to [her] the importance of and necessity for secrecy and cautioned her repeatedly
against telling anyone about the ‘relationship’ between [them].”
¶ 38 Plaintiffs alleged that Coe used FCCD’s computer equipment to communicate with Jane.
Coe sent her sexually explicit pictures and videos, including some of himself. He also
“gradually encourage[d] and convince[d] [Jane] to remove her clothing during ‘games’ of
‘truth or dare.’ ” Coe accessed and viewed sexually explicit images of Jane.
¶ 39 In late 2012 and in 2013, Coe “began to make Inappropriate physical contact with Jane
Doe, including kissing [her] and touching [her] in a sexual manner.” Coe encouraged Jane to
use the pretext of church activities to visit him at his office at FCCD during normal working
hours. Coe “isolated [Jane] in areas of the church building, such as the downstairs classroom,
the sacristy, and the audio-visual booth, where Coe kissed [Jane] and touched her in a sexual
manner.” During at least one occasion when Coe played a movie for the youth group, he sat
with Jane in the back of the room and fondled her. Coe would also make sexual comments to
Jane. For instance, he developed a pet name for her genitalia and used it “openly in front of
other youths.”
¶ 40 In June 2013, Coe convinced Jane to volunteer at FCCD’s vacation bible school (VBS), a
daytime summer program for elementary-age children. Coe presented it as a way for the two to
be alone together. On June 14, 2013, Doe and Jane were alone together in a basement
classroom of the church when he raped her on a couch. The assault occurred during normal
working hours.
-6-
¶ 41 c. Visibility of Coe’s Misconduct
¶ 42 Plaintiffs alleged that Coe was the only adult present “[d]uring many of the times that [he]
engaged in acts of sexual innuendo and suggestion and other forms of Inappropriate physical
and sexual conduct with Youth Group participants.” Coe was also the only adult present with
the youth group when he showed them videos with sexual content. Coe was “habitually alone”
on FCCD’s premises with underage female members of the youth group. He would “habitually
isolate[ ] minor female members of the Youth Group for ‘private lessons’ *** and would send
away other Youth Group members who would attempt to watch or otherwise be present for the
‘private lessons.’ ”
¶ 43 In what follows, we recite verbatim the allegations on which plaintiffs rely in this appeal
for their position that FCCD and James knew or should have known of Coe’s unfitness for his
position as youth director, prior to the rape of Jane. Plaintiffs alleged:
“159. During the Confirmation event for the 2011 confirmation class at [FCCD],
Coe allowed underage girls to sit on his lap and engaged in Inappropriate bodily
contact (the ‘2011 Confirmation Incident’).
***
177. On one occasion, Coe represented to Jane Doe that he was waiting for a
colleague to come to Coe’s office and retrieve Coe for an employee meeting. While he
waited for the colleague to arrive and with the door to his office fully open to the
adjacent offices, Coe sent Jane Doe a picture of his erect penis with the caption ‘How’s
that?’
***
183. When Jane Doe visited Coe in his office during Normal Working Hours, Coe
routinely kept his office door open.
***
187. When Jane Doe visited Coe in his office during Normal Working Hours and
with his office door open, Coe routinely stroked her legs, breasts, buttocks, crotch, and
kissed Jane Doe.
***
196. During an FCC overnight retreat in late 2012, Coe maintained a sleeping area
in the same area as underage female Youth Group members and allowed the females in
or on his sleeping bag. Coe stayed up late with Jane Doe, who was in or on his sleeping
bag, while the rest of the participants slept. Later in the weekend, Coe isolated Jane
Doe in one of the dormitory buildings and told her he wanted to put her on one of the
dorm beds and ‘have sex’ with her, i.e., rape her.
***
239. Rev. James was present at [FCCD] during Normal Working Hours and at
Youth Group and [FCCD] functions to witness Coe’s interactions with youth.
240. Rev. James was present at [FCCD] during Normal Working Hours and at
Youth Group and [FCCD] functions to witness Coe’s Inappropriate interactions with
Jane Doe.
241. Rev. James knew or had reason to know that Coe’s behavior and interactions
with youth, including Jane Doe, were Inappropriate.
-7-
242. Rev. James knew or had reason to know that Coe’s behavior and interactions
with youth, including Jane Doe, were dangerous.
243. Specifically, Rev. James knew or should have known the following:
[repeating the allegations of Coe’s misconduct toward youth group members
and the allegation concerning Coe’s behavior at the 2011 confirmation event].
***
261. [FCCD] employees, members, or volunteers were present at [FCCD] during
Normal Working Hours and at Youth Group and [FCCD] functions to witness Coe’s
interactions with youth.
262. [FCCD] employees, members, or volunteers were present at [FCCD] during
Normal Working Hours and at Youth Group and [FCCD] functions to witness Coe’s
Inappropriate interactions with Jane Doe.
263. [FCCD] knew or had reason to know that Coe’s behavior and interactions with
youth, including Jane Doe, were Inappropriate.
264. [FCCD] knew or had reason to know that Coe’s behavior and interactions with
youth, including Jane Doe, were dangerous.
265. [FCCD] knew or should have known the following:
[repeating the allegations of Coe’s misconduct toward youth group members
and the allegation concerning Coe’s behavior at the 2011 confirmation event].
***
272. [FCCD] employees, volunteers, or members were present at [FCCD] during
Normal Working Hours and during church events to witness Coe’s Inappropriate
attentiveness, behavior, or physical contact with minor members of the Youth Group,
including Jane Doe.
273. Multiple adult employees, volunteers, or members witnessed behavior on the
part of Coe toward minor females in the youth group that those adults found unsettling
and Inappropriate.
274. Multiple adult employees, volunteers, or members received information from
the children of [FCCD] regarding Coe’s Inappropriate behavior toward minor females
in the Youth Group that the [sic] made the children feel uncomfortable, weird, isolated,
or frustrated.
275. Multiple adult [FCCD] employees, volunteers, or members witnessed Coe
alone in the sanctuary of the church with minor female members of the Youth Group.
276. Multiple adult [FCCD] employees, volunteers, or members witnessed Coe
alone in his office with minor female members of the Youth Group.
277. [FCCD] employees, volunteers, or members reported or discussed among
themselves the Inappropriate attentiveness, behavior, or physical contact by Coe with
female members of the Youth Group witnessed by those employees or volunteers.
***
279. [FCCD] employees, volunteers, or members were present at [FCCD] during
Normal Working Hours and during church events to witness Coe’s Inappropriate
attentiveness, behavior, or physical contact with Jane Doe during late 2012 and 2013.
280. In March 2013, at least [one] employee of [FCCD] observed Coe alone in the
-8-
audio-visual booth with Jane Doe with the lights out.
281. Multiple [FCCD] employees, volunteers, or members witnessed Coe’s
Inappropriate attentiveness, behavior, or physical contact with Jane Doe during late
2012 and 2013.
282. At least one [FCCD] employees, volunteers, or members [sic] confronted Coe
regarding his Inappropriate behavior.
283. [FCCD] employees, volunteers, or members reported or discussed among
themselves the Inappropriate attentiveness, behavior, or physical contact by Coe with
Jane Doe witnessed during late 2012 and 2013.
***
286. Coe’s Inappropriate attentiveness, behavior, or physical contact with Jane Doe
was reported to Rev. James during late 2012 and 2013.
287. Coe’s attentiveness, behavior, or physical contact with Jane Doe was
witnessed by Rev. James during Normal Working Hours, and at Youth Group and/or
[FCCD] events during late 2012 and 2013.
288. On at least three (3) separate occasions, Rev. James walked into Coe’s office
when Coe was alone with Jane Doe.
289. During each of the three (3) separate occasions in which Rev. James witnessed
Coe alone with Jane Doe, Jane Doe was either lying on a sofa or sitting on Coe’s desk.
***
297. In June 2013, an [FCCD] volunteer was present during normal business hours
at [FCCD] for the purpose of assisting with the VBS program.
298. The [FCCD] volunteer assisting with the VBS program was an early
childhood education professional and, therefore, a mandatory reporter separate and
apart from her role at [FCCD] (the ‘Volunteer’).
299. Within less than two days of witnessing the interaction between Coe and Jane
Doe at VBS, the Volunteer recognized the interaction as Inappropriate or dangerous.
300. The Volunteer placed a phone call to Rev. James before the rape occurred to
report the Inappropriate conduct and reported the Inappropriate conduct to Rev. James
in a subsequent meeting.
***
302. At no point after the Volunteer reported the Inappropriate conduct to Rev.
James did James remove Coe as Director of Youth Ministries or otherwise restrict his
access to minors, including Jane Doe.”
¶ 44 5. Violations of the SCP
¶ 45 As noted, plaintiffs alleged that Coe was the only adult present when he showed the youth
group movies with sexual content. Plaintiffs further alleged that Coe was the only adult present
“[d]uring many” of the times in which he “engaged in acts of sexual innuendo and suggestion
and other forms of Inappropriate physical and sexual conduct” with youth group members.
(Plaintiffs did not identify which other adults were present on the other occasions.) Plaintiffs
also alleged that Coe was “habitually alone” in various parts of the church with underage
-9-
female members of the youth group. Regarding Jane specifically, plaintiffs alleged that Coe
would isolate her in various parts of the church and that on one of these occasions he raped her.
¶ 46 Plaintiffs alleged that FCCD and James “knew or should have known that Coe was
routinely the only adult supervising minor youths at [FCCD].” On three separate occasions,
James witnessed Coe alone with Jane in his office but did not enforce the two-adult policy.
According to plaintiffs, other FCCD employees, volunteers, or members also witnessed Coe in
his office or in the church sanctuary alone with Jane or other underage female members of the
youth group.
¶ 47 6. Events Subsequent to the Rape of Jane
¶ 48 Plaintiffs alleged that, in mid-June 2013, Jane shared with “ ‘Sally,’ ” a fellow member of
the youth group, text messages that Coe had sent Jane. After Sally revealed the texts to her
parents, her father went to Coe’s office at FCCD and loudly confronted him. Afterward,
Sally’s parents removed her from an upcoming youth trip to Costa Rica that Coe was planning
to lead. James allowed Coe to take the group to Costa Rica despite what James had been told
by the VBS volunteer and despite his knowing or having reason to know of the confrontation
between Sally’s father and Coe. Between June 28 and July 1, 2013, Jane told Jane A. that Coe
had raped her. Coe was arrested on July 3, 2013, and subsequently charged with sex crimes
against Jane. Several months later, after a search of his work computer, he was charged with
possession of child pornography.
¶ 49 Plaintiffs alleged that, on July 3, 2013, following Coe’s arrest, James conducted an open
meeting with FCCD’s employees, members, and volunteers. At the meeting, FCCD members
“questioned Rev. James regarding the lack of or ongoing failure of any safety plan, specifically
citing the 2011 Confirmation Incident.” James responded that FCCD currently had a safety
plan, which could be viewed on the church’s website. Plaintiffs alleged that, contrary to
James’s assertion at the meeting, there was no safety plan in place at FCCD as of July 3, 2013,
and that, if there were such a plan in place, it had not been followed. At the July 3 meeting,
James did not address any of Coe’s misconduct but expressed gratitude that Coe and his family
had strong support at FCCD.
¶ 50 On August 25, 2013, James held a meeting for the parents of youth group members. James
“represented that a ‘new’ safety policy was in place that would require at least two adult
supervisors in the presence of any child or minor youth.” James encouraged members to be
supportive of Coe but failed to inform them that the Illinois Department of Children and
Family Services had made an indicated finding of child abuse at FCCD or that the court in
Coe’s criminal case had prohibited him from having unsupervised contact with children.
FCCD terminated Coe’s employment on November 12, 2013.
¶ 51 C. FCCD and James’s Motion to Dismiss
¶ 52 FCCD and James filed a joint motion, pursuant to section 2-615 of the Code (735 ILCS
5/2-615 (West 2014)), to dismiss plaintiffs’ second amended complaint. The trial court agreed
with them that the complaint did not cure the deficiencies that led to the dismissal of the first
amended complaint. The court found that plaintiffs’ allegations still lacked factual detail as to
the misconduct of Coe that was observed, who observed it, and when it was observed. The
court held that, because plaintiffs failed to establish that Coe’s rape of Jane was reasonably
foreseeable to FCCD and James, plaintiffs failed to establish that FCCD and James had a duty
- 10 -
to prevent it. The court dismissed plaintiffs’ complaint with prejudice. The court found,
pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), that there was no just cause
for delaying enforcement or appeal.
¶ 53 Plaintiffs filed this timely appeal. FCCD and James filed a joint appearance and a joint
appellees’ brief.
¶ 54 II. ANALYSIS
¶ 55 A. Stricken Portions of the First Amended Complaint
¶ 56 Plaintiffs challenge the trial court’s grant of FCCD and James’s motion to strike portions of
plaintiffs’ first amended complaint as irrelevant or cumulative. FCCD and James brought the
motion pursuant to section 2-615(a) of the Code (735 ILCS 5/2-615(a) (West 2014)), which
permits the trial court to strike “immaterial matter” from a complaint. While the motion
covered diverse portions of the complaint, and the court granted it in its entirety, plaintiffs’
challenge on appeal is limited to the striking of allegations concerning events that occurred
after Jane disclosed the alleged rape and Coe was arrested (curiously, the parties seem to have
forgotten the breadth of the motion and rely on some allegations as if they were not stricken).
We review de novo the grant of a motion to strike pursuant to section 2-615(a). Department of
Healthcare & Family Services ex rel. Daniels v. Beamon, 2012 IL App (1st) 110541, ¶ 15.
¶ 57 Before addressing plaintiffs’ challenge, we briefly note plaintiffs’ remark that the motion
to strike “did not specify which allegations are immaterial or superfluous” and that the trial
court “did not specify which allegations were to be stricken.” Technically, if this assertion
were true, plaintiffs would not even have known that the allegations stricken were those
concerning post-rape events. In any case, the motion to strike did in fact identify precisely
which paragraphs it covered, and the trial court was clear that it was granting the motion in its
entirety.
¶ 58 On the merits, plaintiffs claim that the reactions of FCCD and James to Jane’s disclosure of
the alleged rape and Coe’s arrest for it are relevant to show that they acted willfully and
wantonly prior to the rape. According to plaintiffs, those allegations “not only support a
pattern of behavior by [FCCD] and James to willfully ignore Inappropriate conduct but also
help demonstrate an ongoing disregard for Jane Doe’s welfare.” We disagree. The allegations
in question portray FCCD and James as mistaken that FCCD had a safety policy in force, as
hesitant to accept Jane’s accusations against Coe, and as unwilling to immediately remove Coe
from contact with youth. Plaintiffs see this conduct as a “pattern” of indifference that predated
the alleged rape, but in fact the conduct is perfectly consistent with FCCD and James having
not acted wrongly prior to the alleged rape. “[A] fact is ‘relevant’ if it tends to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” People v. Pawlaczyk, 189 Ill. 2d 177, 193
(2000). The alleged actions of FCCD and James following Jane’s accusations and Coe’s arrest
are simply neutral on the question of whether those parties acted culpably prior to the alleged
rape. Consequently, the allegations are immaterial and were properly stricken. Notably, even if
the court had denied the motion to strike, we would still have considered the allegations
irrelevant to whether the complaint stated a cause of action for willful-and-wanton conduct.
- 11 -
¶ 59 B. Dismissal of the Second Amended Complaint
¶ 60 1. Review of a Dismissal Under Section 2-615 of the Code
¶ 61 The following principles guide our review of a dismissal under section 2-615 of the Code:
“A motion to dismiss brought pursuant to section 2-615 of the Code attacks the legal
sufficiency of the complaint. [Citation.] When ruling on such a motion, the court must
accept as true all well-pleaded facts in the complaint, as well as any reasonable
inferences that may arise from them. [Citation.] However, a court cannot accept as true
mere conclusions unsupported by specific facts. [Citation.] A complaint should be
dismissed under section 2-615 only if it is clearly apparent from the pleadings that no
set of facts can be proven that would entitle the plaintiff to recover. [Citation.] The
critical inquiry is whether the allegations of the complaint, when construed in the light
most favorable to the plaintiff, are sufficient to establish a cause of action on which
relief may be granted. [Citation.] Our review of an order granting a section 2-615
motion to dismiss is de novo.” In re Estate of Powell, 2014 IL 115997, ¶ 12.
¶ 62 2. General Principles Governing a Negligence Claim
¶ 63 Plaintiffs’ claims against FCCD and James are all common-law negligence claims, even
the claims of willful-and-wanton conduct, which is a species of common-law negligence
(Doe-3, 2012 IL 112479, ¶ 19). To state a cause of action for common-law negligence, the
plaintiff must plead facts establishing (1) a duty of care owed to the plaintiff by the defendant,
(2) the defendant’s breach of that duty, and (3) injury to the plaintiff proximately caused by
that breach. Tyrka v. Glenview Ridge Condominium Ass’n, 2014 IL App (1st) 132762, ¶ 44.
¶ 64 The specific issue on appeal is whether plaintiffs sufficiently alleged that FCCD and James
owed Jane a duty to protect her from being raped by Coe. Unless a duty of care is owed, there
can be no negligence. Doe v. Boy Scouts of America, 2014 IL App (2d) 130121, ¶ 36.
Generally, one has no duty to protect another from the harmful acts of a third party. O’Rourke
v. McIlvaine, 2014 IL App (2d) 131191, ¶ 19. Exceptions to this rule depend on the existence
of a recognized “special relationship.” Id. First, the special relationship can exist between the
injured party and the party alleged to owe the duty. Id. These relationships include common
carrier-passenger, innkeeper-guest, business invitor-invitee, and voluntary
custodian-protectee. Iseberg v. Gross, 227 Ill. 2d 78, 88 (2007). Second, the special
relationship can exist between the party who is the source of the harm and the party alleged to
owe the duty. O’Rourke, 2014 IL App (2d) 131191, ¶ 19. Such relationships include
parent-child and master-servant or employer-employee. Id.
¶ 65 Finally, a duty of care can exist even in the absence of a special relationship, where the
defendant has voluntarily undertaken a duty. Lewis v. Heartland Food Corp., 2014 IL App
(1st) 123303, ¶ 14.
¶ 66 Here, plaintiffs claim the existence of both types of a special relationship and a voluntary
undertaking. FCCD and James present their arguments monolithically except with respect to
negligent hiring, the only cause of action that was not against them both.
¶ 67 3. Negligent Hiring—FCCD only
¶ 68 Count XII of plaintiffs’ second amended complaint alleged negligent hiring against FCCD.
To state a cause of action for negligent hiring, the plaintiff must plead facts establishing that
- 12 -
(1) the employer knew or should have known that the employee had a particular unfitness for
the position so as to create a danger of harm to third persons, (2) this particular unfitness was
known or should have been known at the time of the hiring, and (3) this particular unfitness
proximately caused the plaintiff’s injury. Van Horne v. Muller, 294 Ill. App. 3d 649, 656-57
(1998), aff’d in part & rev’d in part on other grounds, 185 Ill. 2d 299 (1998).
¶ 69 There is no dispute on appeal that FCCD should have conducted a reasonable background
check on Coe before hiring him. There is also no dispute that a reasonable background check
would have included a reasonable search for Coe’s online activity as it bore upon his fitness for
the position of youth director. The dispute on appeal concerns what was feasible for FCCD to
learn about Coe from an online search of the kind that plaintiffs alleged FCCD should have
done prior to hiring him.
¶ 70 In their specific allegations within their negligent-hiring count, plaintiffs alleged that “[a]
basic, cursory Google search into the online presence of Coe would have revealed Coe’s
activity, which included posting public photos of his own genitalia, on numerous pornographic
websites, such as, ‘newbienudes,’ ‘motherless,’ ‘wouldyouhitthis,’ ‘ratemybody,’
‘ratemymelons,’ and ‘datehookup,’ among many others.” In their general allegations, plaintiffs
asserted that Coe’s profiles on pornographic websites were maintained not under his given
name but under the pseudonym “ ‘BluesGod88.’ ”
¶ 71 FCCD claims that there are two major deficiencies in plaintiffs’ allegations pertaining to
negligent hiring. First, FCCD asserts that plaintiffs “do not *** explicitly allege that Coe was
visiting the [pornographic] websites before he was hired *** in May 2009.” In reviewing the
sufficiency of a complaint, we accept all reasonable inferences from the allegations. Powell,
2014 IL 115997, ¶ 12. In their specific allegations within the negligent-hiring count, plaintiffs
alleged that Coe maintained profiles on pornographic websites “[a]t all times relevant,” which
we construe to include before Coe’s hire. Moreover, the negligent-hiring claim implies, indeed
depends on, the (alleged) fact that Coe maintained such objectionable online profiles before his
hire.
¶ 72 Second, FCCD contends that, even if plaintiffs have alleged that Coe maintained the
profiles prior to his hire, they have failed to establish how FCCD could have become aware of
those profiles before hiring Coe. FCCD notes that Coe is alleged to have maintained the
profiles under the pseudonym “ ‘BluesGod88,’ ” and FCCD questions how it could have
become aware of those profiles prior to Coe’s hire when it did not know his pseudonym.
Plaintiffs alleged, however, that “[a] basic, cursory Google search” would have revealed Coe’s
profiles on pornographic websites. From this allegation we draw the reasonable inference that
a search under Coe’s given name would have revealed his pseudonym (which in turn would
have led FCCD to the profiles on pornographic websites). Whether the search would indeed
have revealed that information is a question of fact. At this stage of the proceeding, we merely
accept this well-pled allegation as true. See Olson v. Hunter’s Point Homes, LLC, 2012 IL App
(5th) 100506, ¶ 10 (on motion to dismiss complaint for fraud and misrepresentation in the sale
of homes, it was a question of fact whether purchasers could have discovered the alleged
misrepresentations in the exercise of ordinary prudence).
¶ 73 For these reasons, we reverse the dismissal of the negligent-hiring claim (count XII)
against FCCD.
- 13 -
¶ 74 4. Negligent Retention
¶ 75 Plaintiffs alleged negligent retention against both FCCD (count XIV) and James (count
IX). To state a cause of action for negligent retention, the plaintiff must plead facts establishing
that (1) the employer knew or should have known that the employee had a particular unfitness
for the position so as to create a danger of harm to third persons, (2) the employer retained the
employee in his or her employment even after the employer knew or should have known about
the unfitness, and (3) the unfitness proximately caused the claimed injury. Van Horne, 294 Ill.
App. 3d at 656-57. “[T]he particular unfitness of the employee must have rendered the
plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.”
Platson v. NSM, America, Inc., 322 Ill. App. 3d 138, 144 (2001).
¶ 76 Obviously, as the tort of negligent retention assumes the capacity of the defendant to have
terminated the employment of the harming party, the tort does not apply outside the
employment relationship. See Doe, 2014 IL App (2d) 130121, ¶ 40 (no cause of action for
negligent retention where no employment relationship existed). Accordingly, since James was
not Coe’s employer, but rather both were employed by FCCD, we affirm the dismissal of count
IX, the negligent-retention count against James.
¶ 77 As for the claim against FCCD, plaintiffs have failed to plead facts establishing that FCCD
learned or should have learned during Coe’s tenure that he had a particular unfitness for the
position of youth director at FCCD. For purposes of our analysis, knowledge held by an agent
of FCCD is imputable to FCCD itself. See Bryant v. Livigni, 250 Ill. App. 3d 303, 308-09
(1993).
¶ 78 To facilitate our analysis, we group as follows the allegations on which plaintiffs rely in
claiming that FCCD had notice of misconduct by Coe. The first group of allegations describes
specific instances of misconduct, or patterns of misconduct, that Coe would “habitually”
engage in, apparently during youth group meetings. Plaintiffs alleged that Coe was “habitually
alone” with, or he “habitually isolated,” underage female members of the youth group.
Interestingly, plaintiffs appeared to imply at one point that another adult was present on some
occasions when Coe engaged in misconduct: “During many of the times that Coe engaged in
acts of sexual innuendo and suggestion and other forms of inappropriate physical and sexual
conduct with Youth Group participants, Coe was the only adult present.” (Emphasis added.)
However, plaintiffs did not indicate which other adult was present on these occasions.
¶ 79 Also, plaintiffs repeatedly alleged that James or other persons affiliated with FCCD were
present on FCCD’s premises, including during youth group functions, “to witness Coe’s
Inappropriate interactions with Jane Doe” (emphasis added). Even if, however, we interpreted
this to mean that such persons actually witnessed “Inappropriate” conduct by Coe toward Jane
(and were not just present on the premises when the misconduct occurred), we would hold that
the allegations failed for lack of specificity as to what conduct was actually witnessed.
Conclusions of fact, such as of “Inappropriate” conduct, fail where, as here, they are not
supported by specific allegations. Powell, 2014 IL 115997, ¶ 12. Thus, while this set of
allegations describes many outrageous acts by Coe, it simply does not establish that FCCD
knew or should have known of Coe’s malfeasance.
¶ 80 The second group of allegations, which describes Coe’s conduct in settings other than
youth group functions, likewise fails to establish notice to FCCD. Plaintiffs alleged:
- 14 -
(a) On one occasion, Coe was in his office during normal business hours when he
took and sent Jane a picture of his erect penis. At the time, Coe’s office door was fully
open and he was waiting for a colleague to retrieve him for an employee meeting.
(b) Jane spent lengthy amounts of time alone with Coe during normal business
hours, and during these visits Coe would routinely fondle and kiss Jane while the office
door was fully open.
(c) “During the Confirmation event for the 2011 class at [FCCD], Coe allowed
underage girls to sit on his lap and engaged in Inappropriate bodily contact ***.”
¶ 81 Regarding allegations (a) and (b), plaintiffs invite us to infer that someone must have
witnessed Coe’s behavior, given his brazenness in leaving the door fully open during normal
business hours. We decline the invitation. Our standard of review directs us to make only
reasonable inferences in judging the sufficiency of a complaint. Id. Given no concept of how
Coe’s office was configured or who was present at FCCD when these incidents occurred, it
would be an overreach to make the inference that plaintiffs invite.
¶ 82 As for allegation (c), it does not indicate who was present for the “Confirmation event” and
might have witnessed Coe’s behavior. Plaintiffs assert in their brief that “parents, staff and
other members [of FCCD] [were] present” for the event, but this fact is not alleged in the
complaint. Plaintiffs also point to their allegation that, at the July 2013 church meeting
following Coe’s arrest, FCCD members complained to James about the “2011 Confirmation
Incident.” Obviously, such notice to FCCD after the abuse and ultimate rape of Jane does not
support a claim that FCCD should have terminated Coe prior to the abuse of Jane.
¶ 83 The third group of allegations describes specific conduct of Coe that was observed by
James or others affiliated with FCCD. Plaintiffs alleged:
(d) On three separate occasions, James saw Coe alone in his office with Jane, who
was “either lying on a sofa or sitting on Coe’s desk,” and James left Coe alone with
Jane. Plaintiffs provided no dates for these instances.
(e) In March 2013, at least one FCCD employee witnessed Coe alone with Jane in
FCCD’s audio-visual booth with the lights turned off.
(f) “Multiple adult [FCCD] employees, volunteers, or members” observed Coe
alone in the sanctuary or in his office with underage female members of the youth
group. Plaintiffs provided no dates here.
¶ 84 As no dates were provided for allegations (d) and (f), they cannot establish notice to FCCD
of a problem with Coe in time for FCCD to take action. Moreover, none of the incidents is
sinister on its face. For instance, Coe and Jane were not alone together in just any darkened
room, but in an audio-visual booth where low light or darkness would not have been unusual
during, say, a production. Also, Jane’s posture inside Coe’s office suggests at most a sense of
ease or familiarity. While the alleged instances might arguably have been violations of the
SCP’s two-adult policy, and indicate that Coe was not properly mindful of it, they do not in
themselves suggest that Coe took an improper interest in Jane or other underage female
members of the youth group.
¶ 85 The fourth and final set of allegations we consider are those in which plaintiffs’
oft-repeated term “Inappropriate” bears much of the weight. We quoted above the core
allegations featuring the term (supra ¶ 43). The following are representative paragraphs:
- 15 -
“273. Multiple adult employees, volunteers, or members witnessed behavior on the
part of Coe toward minor females in the youth group that those adults found unsettling
and Inappropriate.
274. Multiple adult employees, volunteers, or members received information from
the children of [FCCD] regarding Coe’s Inappropriate behavior toward minor females
in the Youth Group that the [sic] made the children feel uncomfortable, weird, isolated,
or frustrated.
***
277. [FCCD] employees, volunteers, or members reported or discussed among
themselves the Inappropriate attentiveness, behavior, or physical contact by Coe with
female members of the Youth Group witnessed by those employees or volunteers.
***
297. In June 2013, an [FCCD] volunteer was present during normal business hours
at [FCCD] for the purpose of assisting with the VBS program.
***
299. Within less than two days of witnessing the interaction between Coe and Jane
Doe at VBS, the Volunteer recognized the interaction as Inappropriate or dangerous.
300. The Volunteer placed a phone call to Rev. James before the rape occurred to
report the Inappropriate conduct and reported the Inappropriate conduct to Rev. James
in a subsequent meeting.” (Emphases added.)
Early in the complaint, plaintiffs defined “Inappropriate” to include:
“Inappropriate Content, Inappropriate Displays of Affection, Sexual Harassment
and Sexual Exploitation, as defined by UCC policies and materials, as well as conduct
or materials defined by Illinois law to be Grooming, Sex Offenses, Harmful to Minors,
Obscene, Adult Obscenity or Child Pornography Internet Site.”
“Illinois is a fact-pleading jurisdiction; although the plaintiff is not required to set forth
evidence in the complaint, the plaintiff must allege facts sufficient to bring a claim within a
legally recognized cause of action, not simply conclusions.” Rubin & Norris, LLC v.
Panzarella, 2016 IL App (1st) 141315, ¶ 26. Plaintiffs were required to specify the allegedly
objectionable conduct. Adjectives such as “Inappropriate,” “unsettling,” and “dangerous” are
not stand-ins for specific facts.
¶ 86 Plaintiffs rely on Platson, where we reversed the dismissal of the plaintiff’s complaint for
negligent supervision. The plaintiff was an intern at NSM, America, Inc. (NSM), when she was
physically assaulted by NSM’s employee, Mark Eigenbauer, while he and the plaintiff were
working alone together. Specifically, Eigenbauer grabbed the plaintiff’s waist and pulled her
to him. This caused her to fall to her knees, at which point Eigenbauer “ ‘forced himself on top
of her and pressed himself against her.’ ” Platson, 322 Ill. App. 3d at 141-42. We held that the
plaintiff sufficiently pleaded that NSM had been on notice that Eigenbauer posed a danger to
the plaintiff. She alleged that Eigenbauer had on previous occasions rubbed and massaged her
shoulders and brushed up against her body. She alleged that this behavior had been witnessed
by other employees, as well as supervisors, and that it was well known throughout the office
that Eigenbauer would single her out for such touching. Id. at 141. We held that the plaintiff
“adequately alleged a cause of action for negligent supervision based on NSM’s failure to take
- 16 -
reasonable measures to protect plaintiff from Eigenbauer once NSM was aware of
Eigenbauer’s inappropriate touching of plaintiff.” Id. at 145.
¶ 87 The plaintiff in Platson did what plaintiffs here failed to do: allege specific behavior
witnessed by the defendant’s agents that was of a kind that put the defendant on notice of the
assailant’s dangerous tendencies. In all 70 pages of their complaint, plaintiffs failed to allege
(1) specific misconduct that (2) was observed by FCCD’s agents and (3) was of a nature that
placed FCCD on notice of Coe’s particular unfitness for the position of youth director.
¶ 88 For these reasons, we uphold the dismissal of the negligent-retention claims (counts IX and
XIV) against FCCD and James.
¶ 89 5. Negligent Supervision/Custodial Relationship/Voluntary Undertaking
¶ 90 Counts VIII and XIII alleged, inter alia, negligent supervision against FCCD and James.
To state a cause of action for negligent supervision, the plaintiff must plead facts establishing
that (1) the defendant had a duty to supervise the harming party, (2) the defendant negligently
supervised the harming party, and (3) such negligence proximately caused the plaintiff’s
injuries. Van Horne, 294 Ill. App. 3d at 657. Negligent supervision applies not just in the
employment context but wherever it is appropriate to find a duty to supervise. See, e.g., State
Farm Fire & Casualty Co. v. Mann, 172 Ill. App. 3d 86, 92 (1988) (alleged parental negligence
in supervision of child). FCCD and James do not appear to contest that James, as senior pastor,
had a duty to supervise Coe during their time together at FCCD.
¶ 91 Counts VIII and XIII are omnibus counts because they alleged sources for a duty of care
other than the employment relationship between FCCD and Coe and the supervisory
relationship between James and Coe. First, plaintiffs alleged the existence of a voluntary
custodial relationship between FCCD and Jane. Such a relationship exists when one
voluntarily takes custody of another so as to deprive the other of her normal opportunities for
protection. Platson, 322 Ill. App. 3d at 146. Second, plaintiffs alleged that FCCD and James
voluntarily undertook a duty to protect Jane. “Pursuant to the voluntary undertaking theory of
liability, one who undertakes, gratuitously or for consideration, to render services to another is
subject to liability for bodily harm caused to the other by one’s failure to exercise due care in
the performance of the undertaking.” Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 239
(1996).
¶ 92 The counts alleged failures by FCCD and James to monitor both Coe’s Internet activity at
FCCD and his interaction with the members of FCCD’s youth and confirmation groups.
Prominent in these counts is the SCP. Plaintiffs alleged that, when Coe exploited youth group
members in the absence of another adult, all churches within the IUCC were required to follow
the SCP, which mandated that “at least two adults be present to supervise any minor youth or
child activities.” Plaintiffs alleged that FCCD and James violated the two-adult policy by
allowing Coe to conduct youth activities with no other adult present and that Coe used that
unsupervised access to abuse Jane and other youths.
¶ 93 Critically, the trial court overlooked the fact that the claims in counts VIII and XIII are not
premised on notice to FCCD and James of Coe’s misconduct or the potential for it. Liability is
based on a duty to supervise that plaintiffs alleged existed independently of what was known or
should have been known about Coe himself. Moreover, under Illinois law, neither negligent
supervision nor the other causes of action alleged in counts VIII and XIII have as an essential
element that the defendant have notice of the unfitness of the party that caused the harm.
- 17 -
¶ 94 FCCD and James devote most of their brief to defending the trial court’s specific and only
rationale for dismissing plaintiffs’ claims: that plaintiffs failed to allege that FCCD and James
had notice that Coe had any particular unfitness. As noted, these arguments miss the point of
the omnibus negligent-supervision counts. FCCD and James do reserve a small portion of their
brief for an argument that at least in part pertains to those counts. The argument is narrow,
however. Before reaching its merits, we briefly address a forfeiture claim that FCCD and
James raise. They contend that plaintiffs have forfeited any argument that FCCD and James
voluntarily undertook a duty to protect Jane during the VBS program. FCCD and James claim
forfeiture on the basis that, in its section on voluntary undertaking, plaintiffs’ response to the
motion to dismiss their second amended complaint did not refer to the VBS program. We reject
the claim since FCCD and James cite no authority for it. See Ill. S. Ct. R. 341(h)(7), (i) (eff.
July 1, 2017) (arguments of the appellee containing no citation to authority are forfeited).
¶ 95 Moving to the substance, we note that FCCD and James do not appear to contest the
existence of the special relationships alleged by plaintiffs. What they argue, first, is that
plaintiffs’ allegations did not establish that FCCD and James voluntarily undertook to protect
Jane or other youths through the SCP. Second, they argue alternatively, and broadly with
respect to any claim of negligence based on the SCP, that plaintiffs failed to establish that the
rape of Jane was a reasonably foreseeable result of the alleged failures of FCCD and James to
enforce the SCP.
¶ 96 For their first argument, FCCD and James cite case law for the principle that “[w]here the
law does not impose a duty, one will not generally be created by a defendant’s rules or internal
guidelines” (Rhodes, 172 Ill. 2d at 238). In Rhodes, the supreme court held that, assuming an
individual found lying on the defendant railroad’s property was a trespasser, the common law
did not impose on the railroad a duty to check on his welfare. Id. at 228-37. The railroad had
internal policies requiring that railroad and municipal police be summoned to check on reports
of injured persons, but the court held that these policies did not of themselves create a duty of
care. “Rather, it is the law which, in the end, must say what is legally required.” Id. at 238.
¶ 97 In Blankenship v. Peoria Park District, 269 Ill. App. 3d 416, 422 (1994), cited in Rhodes,
the appellate court held that the internal rules of the Peoria Park District requiring the presence
of at least one lifeguard during an adult swim did not create a duty of care toward adult
swimmers where “the Park District’s common law duty to supervise the patrons of its
swimming pool [did] not extend to adult swimmers.”
¶ 98 Under Rhodes and Blankenship, a defendant’s internal policies do not create a duty of care
that the law would not otherwise impose. In those cases, there was no special relationship upon
which to base a duty of care, and the courts held that the defendants’ internal policies did not of
themselves give rise to a duty. In the present case, FCCD and James do not appear to dispute
the existence of the special relationships alleged by plaintiffs. Moreover, we hold that, under
the facts alleged, the law imposed on FCCD and James a standard of care coextensive with the
two-adult policy of the SCP.
¶ 99 The nature and scope of the two-adult policy plainly reveals the concerns that motivated
the IUCC in imposing the SCP on all churches within the conference. The two-adult policy
requires that “at least two adults be present to supervise any minor youth or child activities”
(emphasis added). Evidently, the IUCC did not believe that it was enough to provide adult
coleaders just for those adults who the church had specific reason to know were capable of
abuse (assuming such adults would even be permitted to serve). Rather, the IUCC must have
- 18 -
believed that the general risk of the sexual abuse of children within settings like church youth
activities warranted a precautionary measure for all such activities. See Bruntjen v. Bethalto
Pizza, LLC, 2014 IL App (5th) 120245, ¶ 50 (in suit based on death caused by restaurant
franchisee’s pizza delivery driver, franchisor’s standards for delivery drivers formed the
standard of care, where, inter alia, the standards evinced the franchisor’s own belief in the
general foreseeability of accidents caused by drivers with poor driving records). Indeed, it is, in
our view, generally foreseeable that abuse will occur in programs providing adults with
unsupervised access to children, for it is well known that pedophiles are drawn to such
opportunities, in churches and elsewhere. See Federal Judicial Center, Handbook for Working
with Defendants and Offenders with Mental Disorders, 80 (3rd ed. 2003) (“Pedophiles will
seek employment and volunteer work that gives them access to children. Examples are teacher,
clergyman, police officer, coach, scout leader, Big Brother, or foster parent. The pedophile will
also find ways to get the child into a situation where other adults are absent.”). The existence of
a duty “turns largely on public policy considerations.” City of Chicago v. Beretta U.S.A. Corp.,
213 Ill. 2d 351, 391 (2004). Public policy in Illinois favors the protection of children. Doe-3,
2012 IL 112479, ¶ 36. The statutes of this state also manifest “a specific *** policy *** which
favors, in particular, the protection of children from sex offenders.” Id. ¶ 37. In deference to
this policy, we hold that FCCD and James had a duty of care requiring them to enforce the
SCP’s two-adult policy, regardless of their actual or constructive knowledge of Coe’s
predatory potential.
¶ 100 Having so held, we can reject in short order FCCD and James’s second argument, on
foreseeability. Here they revert to their approach on the negligent-retention counts: since
plaintiffs failed to allege that FCCD was or should have been aware of any specific misconduct
by Coe leading up to the rape of Jane, they failed to establish that Jane’s rape was reasonably
foreseeable. As explained, this argument is inapposite to the claims in the omnibus
negligent-supervision counts.
¶ 101 At oral argument, counsel for FCCD and James argued that not every violation of the
two-adult policy alleged in the complaint made it reasonably foreseeable that Coe would rape
Jane. For instance, counsel pointed to the alleged occasions when James witnessed Coe alone
with Jane in his office. We agree that these instances were apparently innocuous, at least as
described in the complaint. This is beside the point, however. The IUCC obviously fashioned
the two-adult policy in the belief that even the most apparently virtuous adult should not be left
alone with children because it is generally foreseeable that abuse will occur in such a setting.
The IUCC did not intend for the two-adult policy to be enforced on a rolling, case-by-case
basis. We hold that the common law of this state, whose public policy strongly favors the
protection of children, required FCCD and James to enforce the two-adult policy as the IUCC
intended.
¶ 102 For these reasons, we reverse the dismissal of counts VIII (James) and XIII (FCCD), the
omnibus negligent-supervision counts.
¶ 103 6. Willful-and-Wanton Counts
¶ 104 Counts X, XI, XV, and XVI alleged willful-and-wanton conduct against FCCD and James,
specifically, “willful and wanton failure to protect” and “willful and wanton retention and
failure to supervise.” These counts overlap in part with the negligence counts against FCCD
and James. Willful-and-wanton conduct is an aggravated form of negligence. Id. ¶ 19.
- 19 -
Consequently, we uphold the dismissal of the willful-and-wanton counts to the extent that they
overlap with the negligent-retention counts. However, we reverse the dismissal of the
willful-and-wanton counts to the extent that they overlap with the omnibus
negligent-supervision counts. Whether a defendant has acted willfully and wantonly is a
question of fact. Id. ¶ 45.
¶ 105 7. Summary
¶ 106 For the foregoing reasons, we (1) affirm the trial court’s decision to strike portions of
plaintiffs’ first amended complaint, (2) reverse the dismissal of the negligent-hiring count
(XII) in plaintiffs’ second amended complaint, (3) affirm the dismissal of the
negligent-retention counts (IX and XIV) and of the willful-and wanton-counts (X, XI, XV, and
XVI) insofar as they overlap with the negligent-retention counts, and (4) reverse the dismissal
of the omnibus negligent-supervision counts (VIII and XIII) and of the willful-and-wanton
counts to the extent that they overlap with the negligent-supervision counts.
¶ 107 III. CONCLUSION
¶ 108 The judgment of the circuit court of Kane County is affirmed in part and reversed in part,
and the cause is remanded for further proceedings consistent with this opinion.
¶ 109 Affirmed in part and reversed in part.
¶ 110 Cause remanded.
- 20 -