Krickl v. Girl Scouts

SECOND DIVISION
June 15, 2010
No. 1-09-2454
DONNA K. KRICKL, ) Appeal from
) the Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. )
)
GIRL SCOUTS, ILLINOIS CROSSROADS )
COUNCIL, INC., ) No. 07 L 005564
)
Defendant-Appellee )
)
(Phillip R. Arends, ) Honorable
) Randye Kogan,
Defendant). ) Judge Presiding.
JUSTICE THEIS delivered the opinion of the court:
Plaintiff, Donna Krickl, appeals from the order of the circuit court granting summary
judgment in favor of defendant, Girl Scouts, Illinois Crossroads Council, Inc. (Council). Plaintiff
was a pedestrian in a grocery store parking lot when she was struck by a car driven by Philip
Arends, a volunteer assistant leader of his daughter’s Brownie troop, who had just finished
supervising the troop’s cookie sale. Plaintiff filed a two-count complaint alleging that Arends was
negligent and that he was acting as an agent of the Council, which was vicariously liable for his
alleged negligence. The Council moved for summary judgment on the second count and argued
that Arends was not acting as its agent. The circuit court granted the Council’s motion. Plaintiff
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timely appealed and contends that the circuit court erred in granting summary judgment because
the court improperly focused on the Council’s right to control Arends at the time of the accident
and improperly intertwined the agency analysis with the scope of employment analysis. We find
that Arends was not an agent of the Council at the time of the accident and, therefore, we affirm.
BACKGROUND
Arends was an assistant troop leader for his daughter’s Brownie troop. On March 3,
2007, Arends and his wife, the troop leader, were supervising the troop’s Girl Scout cookie sale
outside a grocery store in Des Plaines. The night before the sale, Arends had packed a table and
some chairs that he had borrowed from a friend into his minivan. The morning of the sale, he
packed the boxes of cookies that were going to be sold at the site and drove to the site with his
daughter. His wife drove her car to the site with a few of the girls and a few of the girls were
dropped off at the site by their own parents. Arends pulled his minivan up to the front of the
grocery store, unloaded the cookies, the table and chairs, and then parked his minivan in the
store’s lot. The sale was scheduled to run from 11 a.m. to 1 p.m., but the girls sold out of
cookies before the scheduled end of the sale.
Arends drove his minivan up to the front of the store and loaded the table and chairs into
the back. He then drove his minivan, with one of the girls as a passenger, around the parking lot
to where his wife was parked and called her cell phone to discuss taking the girls to lunch.
Arends and his wife previously had talked about taking the girls out to lunch after the sale as a
reward. They decided to take the girls, who had complained during the sale about being cold and
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hungry, to McDonald’s for lunch. However, one of the girls was picked up from the grocery
store by her parents and did not join the group for lunch.
Arends does not recall many details about the accident, but the relevant facts are not in
dispute. Arends drove forward toward where his wife was parked, struck a parked car, hit
plaintiff, struck a pole and then backed up and ran over plaintiff, trapping her under his rear tire.
Plaintiff was seriously injured as a result of the accident.
At the time of the accident, the Council was the administrative head of the Girl Scouts for
the northeast Illinois geographic area, which contained approximately 15 vistas, essentially smaller
geographic units within northeastern Illinois. Although the Council created an application for
approval of a cookie site sale, these applications were not submitted to the Council, but were
instead submitted to and reviewed by the cookie site coordinator for the applicable vista. The site
coordinator approved the troop's application for the March 3 sale. The application did not
contain any information about a lunch to be held after the cookies were sold. The Council did not
exercise direct control over the regular activities of the troop and there were no officers or
members of the Council present at the March 3 site sale. Neither Arends nor his wife informed
the Council about their plan to take the girls to lunch after the sale and the Council was not
otherwise aware of the lunch plan. No trip forms or permission slips were completed for the
lunch at McDonald’s.
The Council filed a motion for summary judgment pursuant to section 2-1005 of the
Illinois Code of Civil Procedure (735 ILCS 5/2-1005 (West 2008)) and argued that Arends was
not acting as an agent of the Council at the time of the accident. The circuit court granted the
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Council’s motion and found “[t]here is no issue of fact and as a matter of law there is no basis
upon which to support the allegation in the complaint of agency.” Plaintiff filed a motion for
reconsideration. The circuit court continued the motion and permitted the parties to conduct
additional discovery. The Council then filed a response in which it reiterated its argument that
there was no agency relationship and also argued that even if there were an agency relationship,
Arends was not acting within the scope of that relationship at the time of the accident. The circuit
court denied plaintiff’s motion for reconsideration and stated that the order granting summary
judgment in favor of the Council would stand. Plaintiff and the Council moved for a special
finding that there was no just reason for delaying the appeal of the order. The circuit court
granted the motion. Plaintiff now appeals pursuant to Supreme Court Rules 301 and 304(a).
155 Ill. 2d R. 301; 210 Ill. 2d R. 304(a).
ANALYSIS
Plaintiff argues that Arends was an agent 1 of the Council because the “Council controlled
almost every aspect of the cookie sale from beginning to end and Arends was essentially
supervising a sales branch of a multi-million dollar corporation.” Plaintiff states in her brief there
is no case law in Illinois that establishes the nature of the relationship between a Girl Scout
1
Although plaintiff uses the terminology “master” and “servant” in her initial brief, the
complaint alleges that Arends was an agent of the Council. Further, plaintiff’s reply brief analyzes
the relationship between Arends and the Council as one of principal and agent. The distinction is
not relevant for this analysis and we consider whether Arends was an agent of the Council. Cnota
v. Palatine Area Football Ass’n, 227 Ill. App. 3d 640, 653 (1992).
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council and its adult volunteers. She then cites extensively to the “2007 Cookie Program
Guidebook for Girl Scouts and Their Families” (Guidebook) and the “Safety-Wise” manual
(Safety-Wise) as support for her position that Arends was an agent of the Council. She also relies
on the fact that Arends was a registered member of the Girl Scouts who had submitted to a
background check and attended a training session for the cookie sale program. Plaintiff concludes
that Arends was an agent of the Council for purposes of the cookie sale and the only question is
whether Arends was acting within the scope of that agency at the time of the accident.
Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
2008). “In determining whether a genuine issue of material fact exists, the pleadings, depositions,
admissions and affidavits must be construed strictly against the movant and liberally in favor of
the opponent.” Adames v. Shehan, 233 Ill. 2d 276, 295-96 (2009). To survive a motion for
summary judgment, “the nonmoving party must present a factual basis that would arguably entitle
him [or her] to a judgment.” Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002). “A genuine
issue of material fact precluding summary judgment exists where the material facts are disputed,
or, if the material facts are undisputed, reasonable persons might draw different inferences from
the undisputed facts.” Adames, 233 Ill. 2d at 296. The standard of review of an order granting
summary judgment is de novo. Adames, 233 Ill. 2d at 296.
A principal is liable for the tort of his agent under the doctrine of respondeat superior
when the tort is committed within the scope of the agent’s agency. Adames, 233 Ill. 2d at 298;
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Anderson v. Boy Scouts of America, Inc., 226 Ill. App. 3d 440, 443 (1992). “The test of agency
is whether the alleged principal has the right to control the manner and method in which work is
carried out by the alleged agent and whether the alleged agent can affect the legal relationships of
the principal.” Anderson, 226 Ill. App. 3d at 443. “The ability or right to control is a key element
to the determination, regardless of whether or not the principal exercises that right to control.”
Anderson, 226 Ill. App. 3d at 443-44; see also Eychaner v. Gross, 202 Ill. 2d 228, 268-69 (2002).
A principal may be liable for the torts of an agent even where that agent is a volunteer. Alms v.
Baum, 343 Ill. App. 3d 67, 71 (2003). The purpose for which a volunteer acts may be important
when determining whether he or she is an agent. Cnota, 227 Ill. App. 3d at 649; Restatement
(Second) of Agency §225, Comment b (1958). The burden of proving the existence and scope of
an agency relationship is on the party seeking to impose liability on the principal. Adames, 233
Ill. 2d at 299. Although the existence of an agency relationship usually is a question of fact, it is
an issue of law where the facts relating to the relationship are undisputed or no liability exists as a
matter of law. Ioerger v. Halverson Construction Co., 232 Ill. 2d 196, 202 (2008); Anderson,
226 Ill. App. 3d at 444.
After reviewing the record and considering the evidence presented by plaintiff, we find no
genuine issue of material fact with respect to whether Arends was an agent of the Council. The
undisputed facts in the record establish that Arends was not acting as an agent of the Council at
the time of the accident. The cookie site sale was over because the girls had finished selling all of
the cookies. The table and chairs had been reloaded into the minivan that was owned and
operated by Arends. One of the girls had been picked up by her parents. Arends had driven away
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from the front of the grocery store, where the troop had sold the cookies, to the other side of the
parking lot and was calling his wife to confirm where they were going to take the remaining girls
for lunch. The Council was not aware that Arends and his wife planned to take some of the girls
to lunch after the sale and no permission slips were completed for the lunch. Arends and his wife
decided of their own accord to take the girls to lunch as a reward for their hard work and because
they were complaining about being cold and hungry. The lunch did not further the purposes of
the Council. Cnota, 227 Ill. App. 3d at 649 (stating that an end of the season pizza party at which
participation awards were distributed did not further the purpose of a youth football association).
Therefore, Arends was not an agent of the Council at the time of the accident with plaintiff.
Plaintiff has not cited any Illinois decisions holding that a volunteer assistant scout troop
leader is an agent of the local scouting council. Indeed, plaintiff cites to only one case, from
another jurisdiction, in which a court found that summary judgment in favor of a national scouting
organization was not proper. Mayfield v. Boy Scouts of America, 95 Ohio App. 3d 655, 660,
643 N.E.2d 565, 569 (1994). In Mayfield, an adult supervisor for a camping trip violated a Boy
Scout regulation requiring that scouts be supervised during all activities. Mayfield, 95 Ohio App.
3d at 657, 643 N.E.2d at 566. A boy scout, who was collecting sticks for use in his scouting
project, was seriously injured when a tree limb broke off and scratched his eye. Mayfield, 95
Ohio App. 3d at 657, 643 N.E.2d at 566. The scout’s mother said that in deciding to send her
son on the camping trip, she had relied on the regulation and believed that her son would be
supervised at all times. Mayfield, 95 Ohio App. 3d at 658, 643 N.E.2d at 568. Here, plaintiff has
not identified a specific Council regulation on which she relied and which was violated by Arends.
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Moreover, the scouting activity, the cookie site sale, had ended and Arends was driving one of the
girls to lunch with some of the other girls from the troop.
The facts of this case are more analogous to those in Anderson. In Anderson, a scout
leader drove his car to drop off craft materials for a scouting project. Anderson, 226 Ill. App. 3d
at 441. After dropping off the materials, he was backing out of a driveway when he hit a
pedestrian. Anderson, 226 Ill. App. 3d at 441. The plaintiff filed a complaint alleging that the
local scouting council was liable for the negligence of the scout leader under the doctrine of
respondeat superior. Anderson, 226 Ill. App. 3d at 441-42. This court found that the plaintiff
had failed to establish an agency relationship and affirmed summary judgment in favor of the local
council. Anderson, 226 Ill. App. 3d at 444-45. This court stated that the scouting rules and
regulations were insufficient to establish the local council’s control over the scout leader’s
conduct. Anderson, 226 Ill. 3d at 444-45 (stating that the court found “no provisions in the
charter, bylaws, rules and regulations promulgated by the [Boy Scouts of America], nor can
plaintiffs cite to any provisions within these documents, which specifically grant BSA or its
district councils direct supervisory powers over the method or manner in which adult volunteer
scout leaders accomplish their tasks”).
Anderson is consistent with the numerous cases from around the country holding that
national organizations and local councils do not retain control over the actions of their scout
leaders and, therefore, are not liable for the negligence of the scout leaders under the doctrine of
respondeat superior. See, e.g., McGarr v. Baltimore Area Council, Boy Scouts of America, Inc.,
74 Md. App. 127, 141, 536 A.2d 728, 735 (1988) (local council not liable under doctrine of
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respondeat superior for injury to scout resulting from negligence of scoutmaster during camping
excursion); Wilson v. St. Louis Area Council, Boy Scouts of America, 845 S.W.2d 568, 571 (Mo.
App. 1993) (troop leaders not agents of local council while participating in trip because leaders
made decision to participate in the trip without informing council and, therefore, council did not
control leaders’ actions); Alessi v. Boy Scouts of America Greater Niagara Frontier Council, Inc.,
668 N.Y.S.2d 838, 838, 247 A.D.2d 824, 824 (App. Div. 1998) (holding that court erred in
failing to grant local council’s motion to dismiss complaint for injuries to scout while on troop
sledding trip because the local council did not have supervision or control over the activities of
the scoutmaster and, therefore, local council was not liable for scoutmaster’s actions under
doctrine of respondeat superior); Santho v. Boy Scouts of America, 168 Ohio App. 3d 27, 39,
2006-Ohio-3656, 857 N.E.2d 1255, at ¶ 27 (distinguishing Mayfield and holding that troop leader
was not an agent of local council when he organized a skating party for the troop because there
was no evidence that the local council knew about the party or had any control over the troop
leader’s conduct); Glover v. Boy Scouts of America, 923 P.2d 1383, 1389 (Utah 1996) (affirming
trial court dismissal of complaint against local council arising out of scoutmaster’s negligent
transportation of troops after weekly meeting because local council did not have control over
scoutmaster and, therefore, he was not agent of local council); Mauch v. Kissling, 56 Wash. App.
312, 317, 783 P.2d 601, 605 (1989) (holding as a matter of law that local council was not liable
for negligence of scoutmaster under agency theory).
Plaintiff’s reliance on the Guidebook and Safety-Wise manual do not establish the
Council’s control over Arends’ conduct at the time of the accident. The Guidebook, which
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generally is provided to scouts and their families, sets forth the logistics related to the cookie
program (e.g., dates, varieties of cookies, and how to handle the proceeds), the requirements for
cookie site sales (e.g., two adults must supervise, the troop determines how many site sales to
hold, the Vista site coordinator approves the troop’s requested site, and participants must wear
Girl Scout clothing) and general tips for a successful site sale (e.g., be polite, know the product,
have a goal and leave your site in better condition than you found it). The Guidebook does not
include travel to or from the site sale as part of the site activity nor does it require that the troop
have lunch together after a site sale. Moreover, plaintiff fails to cite to any provisions in the
Guidebook that specifically grant the Council direct supervisory powers over the method or
manner in which adult volunteers, such as Arends, carry out their tasks. Plaintiff also fails to cite
to any provisions that give Arends the power to affect the legal relations of the Council.
Similarly, the Safety-Wise manual does not establish the Council’s control over Arends.
Safety-Wise requires that if a private vehicle is used to transport scouts, that vehicle must comply
with applicable state laws and be operated by a licensed driver. Safety-Wise also states that if
travel is part of an activity, then it should be regulated by Safety-Wise. The Guidebook, however,
does not list travel as part of a cookie site sale. The general guidelines in Safety-Wise do not
establish the Council’s right to control the manner or method by which Arends drove to lunch.
Glover, 923 P.2d at 1388 (Boy Scouts’ rules and guidelines on transportation “do little more than
set forth minimum qualifications and rules that are largely coextensive with state law and common
sense”). Similarly, the fact that the Council provided Arends training regarding the cookie
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program or that Arends wore a Girl Scout t-shirt do not establish the Council’s right to control
his actions. See Glover, 923 P.2d at 1387-88.
Even if Arends were an agent of the Council, he was not acting within the scope of that
agency when he drove his minivan to lunch after the site sale. Section 228 of the Restatement
(Second) of Agency provides criteria to consider when determining whether an agent is acting
within the scope of employment. Adames v. Sheahan, 233 Ill. 2d 276, 298-99 (2009). Section
228 states:
“(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space
limits;
(c) it is actuated, at least in part, by a purpose to serve the master
***[.]
***
(2) Conduct of a servant is not within the scope of employment if it is
different in kind from that authorized, far beyond the authorized time or space
limits, or too little actuated by a purpose to serve the master.” Restatement
(Second) of Agency §228, at 504 (1958).
The first three criteria must be satisfied for an agent to be considered acting within the scope of
employment. Adames, 233 Ill. 2d at 299. The plaintiff must establish the “contemporaneous
relationship between the tortious act and the scope of employment.” Adames, 233 Ill. 2d at 299.
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The facts of this case do not satisfy any of the three criteria. Arends was an assistant
Brownie troop leader who was at the grocery store to supervise a cookie site sale. He was not
there because the Council instructed or required him to treat the girls to lunch. Although the
accident with plaintiff occurred in the grocery store parking lot, the sale had ended, Arends had
loaded the table and chairs into his minivan and driven away from the site of the sale and he was
preparing to exit the parking lot on his way to lunch. Finally, rewarding the girls for their efforts
does not serve the Council’s purpose. The lunch was not a mandatory activity for the troop and,
in fact, at least one of the girls did not attend the lunch. Moreover, plaintiff has not cited any
evidence in the record supporting her argument that the lunch served the purpose of the Council
because it created a positive feeling about Council activities or created an incentive for future
sales. The facts in the record do not satisfy any of the three criteria necessary to establish that
Arends was acting within the scope of employment. Therefore, even if Arends were an agent of
the Council, he was not acting within the scope of that agency when he attempted to drive out of
the parking lot on his way to lunch. See Alms, 343 Ill. App. 3d at 77-78 (holding that camp
leader was not acting within the scope of his employment when he gratuitously transported fellow
leaders to and from a bar after a mandatory meeting); Anderson, 226 Ill. App. 3d at 445.
CONCLUSION
For the reasons discussed above, Arends was not an agent of the Council when the
accident occurred. Even if Arends were an agent of the Council, he was not acting within the
scope of that agency at the time of the accident. Therefore, summary judgment in favor of the
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Council was proper and we affirm the circuit court’s order granting summary judgment and
denying plaintiff’s motion for reconsideration.
Affirmed.
CUNNINGHAM, P.J., and HOFFMAN, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________
DONNA K. KRICKL,
Plaintiff-Appellant,
v.
GIRL SCOUTS, ILLINOIS CROSSROADS COUNCIL, INC.,
Defendant-Appellee
(Philip R. Arends, Defendant).
______________________________________________________________
No. 1-09-2454
Appellate Court of Illinois
First District, Second Division
Filed: June 15, 2010
______________________________________________________________
JUSTICE THEIS delivered the opinion of the court.
Cunningham, P.J., and Hoffman, J., concur.
______________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Randye Kogan, Judge Presiding.
______________________________________________________________
For PLAINTIFF- Robert H. Hanaford For DEFENDANT- Esther Joy Schwartz
APPELLANT Brett J. Swanson APPELLEE Donald E. Stellato
Law Offices of Elise D. Allen
Robert Hanaford Stellato & Schwartz, Ltd.
222 South Riverside Plaza, 120 N. LaSalle Street,
Suite 1550 34th Floor
Chicago, Illinois 60606 Chicago, Illinois 60602