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Doe v. Boy Scouts of America

Court of Appeals of Illinois, Second District

January 24, 2014

JANE DOE, as Mother and Next Friend of JOHN DOE, a Minor, Plaintiff-Appellant,
BOY SCOUTS OF AMERICA and BLACKHAWK AREA COUNCIL OF BOY SCOUTS OF AMERICA, Defendants-Appellees (Charles Bickerstaff, Defendant)

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Winnebago County. No. 07-L-405. Honorable Eugene G. Doherty, Judge, Presiding.



The appellate court upheld the entry of summary judgment for two boy scout organizations in plaintiff's action alleging that the organizations were negligent in screening, hiring, and retaining a man who sexually assaulted her son after the man's employment with the organizations had been terminated, since she cited no authority for imposing liability on the organizations for an employee's posttermination actions, and even if such liability was recognized, plaintiff did not raise any issue of material fact that would bar summary judgment; furthermore, the appellate court rejected plaintiff's claims that defendants were liable under a voluntary undertaking or voluntary custody theory.

Mark R. McKenna and Evan M. Smola, both of Hurley, McKenna & Mertz, P.C., of Chicago, for Appellant.

Robert Marc Chemers, John J. Walsh III, David C. McMurtrie, and Scott L. Howie, all of Pretzel & Stouffer, Chtrd., of Chicago, for Appellee Boy Scouts of America.

Dana C. Crowley, of Dana Crowley & Associates, of Barrington, and L. Anita Richardson, of Dana Crowley & Associates, of Chicago, for Appellee Blackhawk Area Council of Boy Scouts of America, Inc.

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hudson and Spence concurred in the judgment and opinion.



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Plaintiff, Jane Doe, as mother and next friend of John Doe (John), a minor, appeals from the trial court's granting summary judgment in favor of defendants, Boy Scouts of America (BSA) and the Blackhawk Area Council of Boy Scouts of America (BAC), on plaintiff's negligence claims against them. (Plaintiff also brought negligence and battery claims against former BAC employee Charles Bickerstaff, which are not involved in this appeal.) For the following reasons, we affirm.


BSA is a national youth organization whose vision is implemented through local councils that it charters. The councils are divided into districts. BAC is one such council. There is no dispute in this litigation that BSA and BAC are legally separate organizations with separate employees. BAC, which is headquartered in Rockford, comprises several counties in northern Illinois.

Plaintiff's four-count amended complaint brought one negligence count each against BSA and BAC. The injuries at the heart of the lawsuit were Bickerstaff's sexual assaults of John in July 2006 and the following months. (Criminal charges were brought against Bickerstaff in connection with the assaults, and he is now serving an 80-year prison term.) Although the complaint did not so indicate, Bickerstaff was retired from his position with BAC when the assaults occurred.

Plaintiff's complaint alleged as follows. John met Bickerstaff when John was a scout with BAC and Bickerstaff was " a paid executive of [BAC]" and also an agent or apparent agent of BSA. Bickerstaff was a " pedophile" who " posed a constant threat to boys." Both BSA and BAC made representations to potential scouts and their parents that scouting is a wholesome and safe activity. Both entities, however, were aware that pedophiles had in the past infiltrated the leadership ranks of scouting. There were " warnings signs" prior to the summer of 2006 that Bickerstaff was a pedophile, but both entities ignored them. Exploiting his leadership roles in BSA and BAC, Bickerstaff " sought and gained [John's] trust, friendship, admiration, and obedience," and, consequently,

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John " was conditioned to comply with Bickerstaff's direction and to look to him as an authority figure." Bickerstaff also

" sought and gained the trust and confidence of [plaintiff] and gained [her] consent for [John] to attend a BSA memorabilia Trade-O-Ree in Lansing, Michigan, and thereafter on several occasions, over the next 9 to 10 months, to spend time alone with Bickerstaff at Bickerstaff's home and at other locations.

Bickerstaff, both using " the power, authority, and trust of his positions" and " availing himself of [BSA's and BAC's] representations to parents and scouts that the BSA is a moral and safe place for boys, *** enticed, induced, directed, coerced, and forced [John] to engage in deviant sexual acts with [Bickerstaff] over a 9 to 10 month period."

Plaintiff alleged that BSA and BAC were " negligent in the manner that [they] screened, hired, retained, and supervised Bickerstaff when [they] knew or should have known that Bickerstaff posed a threat of sexual abuse to children." Plaintiff also made the broader allegation that BSA and BAC " [f]ailed to conduct background checks on new or existing scouting leaders, employees, agents, volunteers, agents and/or apparent agents or more carefully screen scout leaders who did not then and never had sons in Scouting."

BSA and BAC separately moved for summary judgment. Plaintiff filed a combined response to their motions, and BSA and BAC filed replies in support of their motions. The parties filed numerous attachments, including multiple depositions, from which we derive the following statement of facts.

Over his decades of work in scouting, Bickerstaff held the position of district executive or senior district executive at several local councils. A district executive is assigned to a particular district within a local council. The role of the district executive is to recruit and work with volunteers to raise funds, form scout units (or " packs" ), and recruit scouts. A senior district executive has similar responsibilities but also has oversight of other district executives. All district executives within a council are responsible ultimately to the scout executive, the highest position in the council. District executives do not report to BSA.

In 1973, Bickerstaff became a district executive with the Twin Valley Council. In 1975, he left that position and joined the United States Navy as an officer. According to Bickerstaff, he underwent a background check by the Federal Bureau of Investigation as a condition of joining the Navy. In 1978, Bickerstaff received an honorable discharge from the Navy. The record contains an " Office Separation Questionnaire" completed by Bickerstaff, in which he indicated that he was asked to resign on suspicion of " 'homosexual tendencies'" and possession and sale of drugs. In 1978, Bickerstaff became a district executive with the Heart of America Council. Bickerstaff received a promotion in 1985 and was installed as senior district executive with the Coronado Area Council.

In 1989, Bickerstaff accepted overseas work and became a district executive for the Transatlantic Council (T.C.), where he was officed in Germany. The process by which Bickerstaff's credentials were reviewed by T.C. was consistent with the councils' hiring practices with respect to experienced council executives. According to the deposition testimony of numerous council executives, a council with a need for an executive will advertise the position and also notify BSA. BSA assists councils in finding candidates; one council executive described BSA as a " clearinghouse" for information

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on candidates for council positions. Another council executive described BSA as a " broker of human resources to other councils." When a candidate with no prior council-executive experience applies to a council and is turned down, the candidate's application information is forwarded to BSA, which will then distribute it as requested to other councils. BSA also receives and distributes information on candidates who have prior experience as council executives and are seeking reemployment in that position. When a council requests names of such experienced candidates, BSA forwards candidates' resumes, " career summar[ies]" of past employment with councils, and performance reviews from those councils. Typically, the performance reviews will cover only the one or two most recent years of scouting employment. An information packet forwarded by BSA does not purport to comprise the entirety of the candidate's employment file, but the scout executive of the hiring council can request the remainder of the file. In conjunction with reviewing this partial employment information, the hiring scout executive will ordinarily contact the scout executive(s) under whom the candidate had worked. The hiring scout executive also has discretion to contact non-scout employers, but typically does not. The hiring scout executive may also conduct a background check, but ordinarily relies on the background check that would have been done by BSA when the candidate was first hired as an executive. While it is clear from the record that candidates who are currently, or were most recently, employed as council executives receive this streamlined review, it is unclear whether the policy extends further to anyone previously employed by a council, no matter how remotely in time.

The record shows that BSA maintains an " ineligible volunteer list" (IV list) consisting of individuals deemed unfit for volunteer or paid positions within scouting. When a council approves an individual for a paid position, the paperwork is sent to BSA, which, in addition to performing a background check, references the candidate's name against the IV list. BSA has authority to reject any candidate who appears on the IV ...

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