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Gregg Lansing v. Southwest Airlines Company

June 8, 2012

GREGG LANSING,
PLAINTIFF-APPELLANT,
v.
SOUTHWEST AIRLINES COMPANY, A FOREIGN CORPORATION,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 06 L 8221 Honorable Kathy M. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Lampkin

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Robert E. Gordon and Justice Garcia concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Gregg Lansing sued defendant Southwest Airlines Company for negligent supervision of its employee. Plaintiff alleged that he notified defendant that its employee was threatening and harassing him but defendant failed to supervise the employee and take steps to stop his misconduct. The alleged misconduct included the employee's use of defendant's computer, Internet and telephone facilities to send harassing and threatening e-mails and text messages.

¶ 2 The trial court granted summary judgment in favor of defendant based on a finding that section 230 of the Communications Decency Act of 1996 (CDA) (47 U.S.C. § 230 (2000)) afforded defendant immunity from plaintiff's claims that arose from the e-mails and text messages. Plaintiff appealed, arguing that the CDA was inapplicable because his cause of action did not treat defendant as the publisher or speaker of the offensive e-mails and text messages but, rather, was based on defendant's failure to supervise its employee after defendant had received notice of the employee's misconduct.

¶ 3 For the reasons that follow, we reverse the judgment of the trial court.

¶ 4 I. BACKGROUND

¶ 5 In August 2006, plaintiff filed a two-count complaint against defendant Southwest Airlines Company, alleging direct negligence and vicarious liability/ratification. Defendant filed a motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2006)) for failure to properly plead a cause of action.

¶ 6 In June 2007, plaintiff filed a first amended complaint, which alleged that defendant: failed to adequately supervise its employee, Thomas McGrew; allowed McGrew to use defendant's computer, Internet and telephone facilities to threaten and harass plaintiff; and failed to take appropriate disciplinary action against McGrew despite notice from plaintiff about McGrew's misconduct.

¶ 7 In February 2008, defendant filed a motion for summary judgment pursuant to section 2-1005(e) of the Code (735 ILCS 5/2-1005(e) (West 2008)), asserting, inter alia, that section 230 of the CDA preempted plaintiff's state law claim and gave defendant immunity from liability for plaintiff's alleged negligence claim.

¶ 8 In October 2008, the trial court granted defendant's motion for summary judgment, finding that defendant was afforded immunity under the CDA for the claims arising out of McGrew's use of the Internet because defendant was a provider or user of an interactive computer service and would be deemed the publisher of the harassing e-mails and text messages at issue in plaintiff's cause of action. The trial court noted, however, that the issue of defendant's liability for the harassing telephone calls remained pending.

¶ 9 In December 2008, defendant moved for summary judgment pursuant to section 2-1005(e) of the Code, asserting, inter alia, that plaintiff could not prove that McGrew made any threatening telephone calls from one of defendant's telephones or while under the supervision of defendant.

¶ 10 In June 2009, plaintiff filed his second amended complaint, which sought damages against defendant based on its alleged negligent failure--despite repeated notice from plaintiff--to stop McGrew, who was a flight attendant and supervisor employed by defendant, from using his position with defendant and defendant's resources to threaten and harass plaintiff and his friends, family members and professional colleagues. Specifically, plaintiff alleged that McGrew met plaintiff's friend on a Southwest Airlines flight in June of 2004 and then perceived plaintiff as a rival to McGrew's relationship with that friend. McGrew, as defendant's employee, had access to defendant's offices, network, computer terminals, work stations, telephone facilities, customer data information, and business calling cards, and a cell phone provided by defendant.

¶ 11 Plaintiff also alleged that McGrew, from June 2004 through August 2006, used his access to defendant's resources to make harassing telephone calls and send over 1,000 harassing and threatening text messages or e-mails to plaintiff. According to plaintiff, McGrew threatened that, as a supervisor, he knew when people made reservations on his flights and would prevent plaintiff and his family members from flying by placing them on terrorism "no fly" lists with defendant and its affiliated airlines. Further, McGrew emphasized his position and authority with defendant, threatened to "haunt" and "completely ruin" plaintiff, and asserted that no one would believe any complaints plaintiff might lodge against McGrew. As time progressed, McGrew's messages and e-mails became increasingly violent, mentioned plaintiff's family members by name, and were transmitted directly to plaintiff's family members and professional colleagues.

¶ 12 In addition, plaintiff alleged that in April of 2005 and January, March, April and May of 2006, he contacted defendant's customer relations department, reported McGrew's harassment and requested that defendant take measures to stop McGrew's wrongful conduct and harassment. Despite that notice, however, McGrew's wrongful conduct and harassment continued until his employment with defendant was terminated on August 22, 2006. Plaintiff asserted that, as a result of McGrew's conduct and defendant's failure to adequately supervise him, plaintiff changed his telephone number several times in an attempt to avoid McGrew's harassment; was ostracized by his family members, friends and professional colleagues; and suffered embarrassment, humiliation, distress and anxiety.

¶ 13 In July 2009, defendant filed a motion under section 2-615 of the Code (735 ILCS 5/2-615 (West 2008)) to strike certain allegations and dismiss plaintiff's second amended complaint.

Defendant argued that plaintiff ignored the trial court's October 2008 ruling that the CDA preempted plaintiff's claims that arose from the e-mails or text messages McGrew allegedly sent to plaintiff. Defendant also requested sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994), asserting that plaintiff knew his claim of negligent supervision was neither well-grounded in fact nor supported by existing law and included allegations that disregarded the trial court's October 2008 ruling concerning preemption under the CDA.

¶ 14 In August 2009, plaintiff moved the trial court to reconsider its October 2008 ruling about defendant's immunity under the CDA. Plaintiff argued, inter alia, that no Illinois state or federal court interpreted the immunity afforded by the CDA so broadly and plaintiff's negligent supervision cause of action did not treat defendant as a publisher of McGrew's e-mails and texts.

¶ 15 In September 2009, the trial court denied plaintiff's motion for reconsideration, granted defendant's motion to strike and dismiss plaintiff's second amended complaint, and denied defendant's motion for Rule 137 sanctions. The trial court granted plaintiff leave to file a third amended complaint.

¶ 16 In November 2009, plaintiff filed a third amended complaint, which made the same allegations that were set forth in his second amended complaint. In the third amended complaint, plaintiff referenced and attached additional exhibits and emphasized certain allegations concerning McGrew's statements about his employment and position with defendant. Plaintiff elected to stand on his third amended complaint.

ΒΆ 17 In April 2010, the trial court held that its October 2008 grant of summary judgment in favor of defendant with regard to the CDA stood as the trial court's ruling on plaintiff's third amended complaint. Accordingly, the trial court entered summary judgment in favor of defendant and against plaintiff on the third amended complaint. The trial court determined that there was no just ...


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