APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
541 N.E.2d 735, 185 Ill. App. 3d 400, 133 Ill. Dec. 524 1989.IL.965
Appeal from the Circuit Court of Williamson County; the Hon. Robert Howerton, Judge, presiding.
JUSTICE HARRISON delivered the opinion of the court. WELCH, P.J., and CHAPMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
Plaintiff, Misty Mitchell, by her mother and next friend, Darlene Kigin, filed an action in the circuit court of Williamson County to recover damages for personal injuries she sustained when she was sexually molested while a guest at a youth camp operated by defendant Woodmen of the World Insurance Company (Woodmen). According to plaintiff's second amended complaint, the person who molested her was defendant Vadar Stultz, who was employed at the time as a counselor at the camp. Plaintiff's complaint was in two counts. Count I was directed against defendant Stultz. Count II sought recovery from defendant Woodmen. On Woodmen's motion, the circuit court dismissed count II with prejudice pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) for failure to state a cause of action. In entering that order, the circuit court made an express written finding that there was no just reason for delaying enforcement or appeal. This appeal followed (see 124 Ill. 2d R. 304(a)), and the sole question for our review is whether the circuit court erred in granting Woodmen's motion to dismiss. For the reasons which follow, we hold that it did. We therefore reverse and remand.
The general rule in this State is that in determining the legal sufficiency of a complaint on a motion to dismiss, all well-pleaded facts are to be taken as true, and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Chef's No. 4, Inc. v. City of Chicago (1983), 117 Ill. App. 3d 410, 413, 453 N.E.2d 892, 895.) A pleading should be dismissed with prejudice only where it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiff to recover. Fayette County Farms v. Vandalia Farms (1988), 167 Ill. App. 3d 471, 476, 521 N.E.2d 300, 303.
In this case, plaintiff alleged in her second amended complaint that on July 31, 1983, she was a guest at a youth camp operated by defendant Woodmen. She was 15 years old at the time. Defendant Stultz, who was 41 years old, was a counselor at the camp and was, in fact, the "counselor in charge."
That evening, Stultz became intoxicated after consuming alcohol, and he provided liquor to plaintiff, which she consumed. At about 11:30 p.m., after having become intoxicated and given plaintiff liquor to drink, defendant Stultz allegedly assaulted plaintiff by placing his hands upon her genital area and breasts. This apparently occurred "at a remote location outside the presence of other sober adults." At the same time, he is said to have attempted to persuade plaintiff to engage in sexual intercourse with him. Plaintiff alleged that these actions by defendant Stultz were done intentionally and in an offensive manner and that as a direct and proximate result of the assault, she suffered "a severe nervous shock and has suffered and will suffer great emotional and mental distress."
In her complaint, plaintiff sought to impose liability for her injuries not only on Stultz, but also on Woodmen, Stultz's employer. As grounds for its motion to dismiss, Woodmen argued, inter alia, that even though it employed Stultz, it could not be held liable under traditional respondeat superior analysis because when Stultz molested plaintiff he was not acting within the scope of his employment, but rather was acting solely for his own benefit. Whether an employee has departed from the scope of his employment by acting purely for his own interest, rather than at least in part for the employer, is normally a question for the jury. (Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 964-65, 524 N.E.2d 966, 968.) Assuming, however, that this is a case in which we could hold as a matter of law that Stultz was not acting within the scope of his employment when he molested plaintiff, we nevertheless believe that plaintiff's complaint established a basis for imposing liability on Woodmen.
Even when an employee is acting outside the scope of his employment, his employer may still have a duty to exercise reasonable care to control him in order to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them under certain conditions. According to the Restatement (Second) of Torts section 317 (1965), this duty exists if:
(i) is upon the premises in possession of the master or upon which the servant is privileged to ...