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Platson v. NSM

May 18, 2001

KIMBERLY A. PLATSON, PLAINTIFF-APPELLANT,
v.
NSM, AMERICA, INC., DEFENDANT-APPELLEE (MARK EIGENBAUER, DEFENDANT).



Appeal from the Circuit Court of Du Page County. No. 99--L--0288 Honorable Robert K. Kilander, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

Plaintiff, Kimberly A. Platson, appeals the judgment of the circuit court granting the motion to dismiss of defendant NSM, America, Inc. (NSM), under section 2--615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1998)). We reverse.

BACKGROUND

Plaintiff filed a complaint on March 12, 1999, alleging that, while employed by NSM through a work-study program offered through her high school, she was physically assaulted on NSM's premises by defendant Mark Eigenbauer, then an employee of NSM. In counts I through IV, plaintiff pleaded causes of action against Eigenbauer for, respectively, assault, battery, false imprisonment, and intentional infliction of emotional distress. On NSM's motion, the trial court dismissed without prejudice counts V, VI, and VII of the complaint against NSM, alleging, respectively, vicarious liability, negligent supervision, and breach of contract. On March 12, 1999, plaintiff filed an amended complaint against NSM. Counts V through IX alleged, respectively, negligent supervision, assault, battery, false imprisonment, and intentional infliction of emotional distress.

The relevant factual allegations in the complaint are as follows. NSM, whose principal place of business is located in the Village of Bensenville, Du Page County, Illinois, sells juke boxes, among other items. In June 1996, plaintiff, then a 16-year-old student at Lake Park High School, began part-time employment with NSM as part of a work-study program offered by her school. NSM had voluntarily agreed to participate in the program. NSM executed a document titled "Cooperative Education Agreement" (CEA). The CEA requires the employer and the student's teacher-coordinator to "design a training program for the student based on the student's job description" and to "periodically evaluate the student's progress." According to the CEA, the student earns wages as well as "job credit" through the employment. The CEA provides that the work site, referred to as the "training station," is "an extension of Lake Park High School" and that the student is bound by the rules and regulations of the school and by the policies of the training station. The CEA refers to the student as the "student- learner." The CEA further provides that the employer is to notify the teacher-coordinator of a change in the student's progress. Also, unless permitted by the teacher-coordinator, the student may not work on days the student is absent from school. Finally, the CEA states that the employer is to "provide adequate supervision at all times and safety training according to industry standards." Plaintiff incorporated a copy of the agreement into her complaint.

When she began working for NSM, plaintiff was assigned to administrative duties including office and clerical work. Based on plaintiff's satisfactory performance of these duties, NSM assigned her to the marketing department around August 1996. Beginning around November 1996 NSM's employee, Eigenbauer, would "from time to time" approach plaintiff while she was performing her job duties on NSM's premises and "with his hands touch [plaintiff's] body." The touching "included rubbing and massaging [plaintiff's] shoulders." Eigenbauer would also on occasion "intentionally brush his body against Plaintiff's body" while she was performing her job duties. A total of at least five supervisors and employees, including plaintiff's supervisor, witnessed the touching. Eigenbauer "did not touch the bodies of other employees" of NSM. It was "well known" throughout the office in which plaintiff worked "that Eigenbauer repeatedly sought out Plaintiff to touch her." At no time did plaintiff tell her supervisor or any other employee of NSM "that Eigenbauer's touching of her was appropriate, welcome or acceptable." At no time did plaintiff's supervisor demand that Eigenbauer stop the touching.

Despite NSM's "knowledge of the inappropriate conduct by Eigenbauer," plaintiff's supervisor scheduled her to work alone with Eigenbauer on March 13, 1997. At work that evening, Eigenbauer approached plaintiff while she was on break in the warehouse area and "physically grabbed her." Plaintiff freed herself and returned to her office. Eigenbauer followed plaintiff into her office and stood by her desk, blocking her exit from the office. Eigenbauer then "grabbed plaintiff's waist and pulled her toward him, causing plaintiff to fall to the floor on her knees." He then grabbed plaintiff from behind, "forced himself on top of her and pressed himself against her."

Plaintiff freed herself and attempted to leave the room, but Eigenbauer physically blocked the exit. Plaintiff managed to get around Eigenbauer and sought to leave the building. Blocking the exterior door, Eigenbauer told plaintiff that he wanted to lock her in to prevent her from leaving. Plaintiff managed to leave but, due to the physical and emotional trauma caused by the attack, did not return to work until March 19, 1997, at which time she reported the attack to one of her supervisors.

In count V (negligent supervision), plaintiff alleges that NSM failed to fulfill its duty to supervise its employees in scheduling plaintiff to be alone with Eigenbauer, leading to an attack that was foreseeable to NSM given its knowledge of Eigenbauer's prior inappropriate physical touching of plaintiff. In counts VI through IX, plaintiff alleges three alternative bases upon which to hold NSM liable for Eigenbauer's intentional torts. First, plaintiff maintains that NSM's agreement to employ plaintiff, a minor and a high school student, in a work-study program and to supervise her at all times created between plaintiff and NSM what tort law recognizes as a "special relationship," according to which NSM had a duty to protect plaintiff from Eigenbauer's acts including certain acts committed outside the scope of his employment. Second, plaintiff contends that, because NSM knew or should have known that Eigenbauer posed a threat to plaintiff, NSM had a duty under section 317 of the Restatement (Second) of Torts (Restatement (Second) of Torts §317 (1965)) to exercise reasonable care to prevent its employee, Eigenbauer, from intentionally harming plaintiff. Third, plaintiff argues that, because NSM agreed to supervise plaintiff and thus "voluntarily undertook a duty to protect [her] during the course of her employment," NSM had a duty under section 324A of the Restatement (Second) of Torts (Restatement (Second) of Torts §324A (1965)) to exercise reasonable care to protect plaintiff.

On NSM's motion under section 2--615 of the Code, the court dismissed counts V through IX. Finding that the foreseeability of Eigenbauer's March 13 assault was an element of each count, the court held that the complaint's allegations did not demonstrate that Eigenbauer's touching of plaintiff put NSM on notice that Eigenbauer might commit an assault such as occurred on March 13, 1997. The court reasoned that because the "touching" described in the complaint was not "obviously offensive" but could mean "any number of things," such as "shak[ing] [plaintiff's] hand" or "taking her by the elbow and handing her a cup of coffee," it was not sufficient to warn NSM of the danger Eigenbauer posed to plaintiff.

On appeal, plaintiff argues that, by finding her complaint failed to state a cause of action because the "touching" she described could have been innocent touching, the trial court erroneously viewed her complaint in the light least favorable to her. Plaintiff generally argues that, when properly viewed in accordance with section 2--615, her complaint adequately pleads that NSM knew or should have known Eigenbauer had been touching her inappropriately and that NSM was remiss for failing to protect her from Eigenbauer. Specifically, plaintiff asserts she was not required to allege that she informed NSM of her objection to Eigenbauer's touching in order to state a cause of action.

NSM replies that plaintiff failed to state a cause of action for negligent supervision or for failure to control an employee under section 317 because she did not allege facts showing that Eigenbauer's assault was foreseeable to a reasonable person. NSM asserts that plaintiff's specific failure was in not alleging that she found Eigenbauer's prior touching objectionable and that she had communicated her objection to her supervisor. NSM also argues that there was no special relationship between plaintiff and NSM because the CEA obligated NSM to oversee the quality of plaintiff's work, not to insure her safety. For the same reason, NSM submits, plaintiff failed to state a cause of action under section 324A. NSM argues that plaintiff failed to bring a claim under section 324A for the additional reason that, even if the CEA could be construed to impose on NSM a duty to protect, NSM could not have assumed a duty to protect plaintiff against Eigenbauer's physical advances toward plaintiff, of which it necessarily had no knowledge at the time it executed the CEA.

ANALYSIS

A section 2--615 motion attacks the legal sufficiency of a complaint. The dismissal of a count in a complaint for legal insufficiency is appropriate under section 2--615 only if, when viewed in a light most favorable to the opposing party, the factual allegations underlying the count are insufficient to state a cause of action upon which relief can be granted. Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 391 (1999). A claim should not be dismissed on the pleadings unless it clearly appears that no set of ...


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