Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 2013 L 9901
Honorable Clare E. McWilliams, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with
opinion. Presiding Justice Connors and Justice Simon
concurred in the judgment and opinion.
1 Plaintiff John Doe filed a negligent employment claim
against defendant, the Catholic Bishop of Chicago, alleging
that Daniel McCormack, a former priest employed at St.
Agatha's school, sexually molested him while plaintiff
attended St. Agatha's. The trial court subsequently
granted plaintiff leave to amend his complaint to add a claim
for punitive damages.
3 The trial court certified, for permissive interlocutory
review, the following question pursuant to Illinois Supreme
Court Rule 308 (eff. Jan. 1, 2016): "Does a claim for
punitive damages require proof of an employer's conscious
disregard for an employee's 'particular
unfitness' where the underlying claim is for negligent
hiring, supervision, and retention of that employee?"
which this court allowed.
4 Furthermore, in this permissive interlocutory appeal we
decline to address any issues that were raised in the briefs
outside of the certified question. See McMichael v.
Michael Reese Health Plan Foundation, 259 Ill.App.3d
113, 116 (1994) (since an appeal pursuant to Rule 308 is an
exception to the general rule that a party can appeal only
from final judgments, a permissive interlocutory appeal is
strictly limited to the question certified by the trial court
and "this court should not expand upon the question to
answer other issues that might have been included").
6 In the underlying complaint, plaintiff alleged that
McCormack sexually molested him when he was in the third
grade at St Agatha's school, an institution owned,
operated, and maintained by defendant. Plaintiff also alleged
that defendant was negligent in hiring, retaining, and
supervising McCormack, and he sought punitive damages arguing
that defendant "consciously disregarded the known risk
McCormack posed to [plaintiff] and its parishioners." In
support of his motion for punitive damages, plaintiff cited
evidence showing that defendant (1) had knowledge of scandal
and sexual misconduct involving their priests and minors; (2)
failed to follow record-keeping policies adopted in response
to the scandal; (3) knew of McCormack's misconduct while
he was a seminary student at Niles College and Mundelein
Seminary, and failed to investigate; and (4) failed to
investigate reports of McCormack's misconduct after he
was ordained a priest, and failed to report suspicious
incidents involving McCormack and minors to the Department of
Children and Family Services (DCFS).
7 The trial court granted plaintiff leave to add a claim for
punitive damages to his complaint. The trial court disagreed
with defendant's argument that, to claim punitive
damages, plaintiff must show that defendant had actual
knowledge of McCormack's "particular
unfitness." Rather, the trial court determined that the
proper standard for submission of a claim for punitive
damages in a negligent employment action is whether plaintiff
"presented sufficient facts that would allow a jury to
reasonably find that the defendants showed an utter
indifference to the rights and safety of others in ordaining
Defendant McCormack, " and it found that plaintiff
satisfied that standard. Defendant filed a motion to
reconsider which the trial court denied. Upon defendant's
motion, the trial court certified the question on appeal
which we answer in the negative.
9 The certified question as written is quite broad, so we
look to the more specific arguments defendant makes in its
briefs to consider the certified question. Essentially, the
question asks whether plaintiff must show evidence that
defendant knew of McCormack's propensity to sexually
abuse children in order to claim punitive damages in a
negligent employment complaint. Punitive damages "are
not awarded as compensation, but serve instead to punish the
offender and to deter that party and others from committing
similar acts of wrongdoing in the future." Loitz v.
Remington Arms Co., Inc., 138 Ill.2d 404, 414 (1990).
Our supreme court described circumstances in which a punitive
damages award is appropriate, such as "when torts are
committed with fraud, actual malice, deliberate violence or
oppression, or when the defendant acts willfully, or with
such gross negligence as to indicate a wanton disregard of
the rights of others." Kelsay v. Motorola,
Inc., 74 Ill.2d 172, 186 (1978). However, "
'[p]unitive damages are not awarded for mere
inadvertence, mistake, errors of judgment and the like, which
constitute ordinary negligence.' " Loitz,
138 Ill.2d at 415, quoting Restatement (Second) of Torts
§ 908, comment b, at 465 (1979).
10 For complaints alleging negligence and involving personal
injury, plaintiffs must demonstrate at a pretrial hearing
that the evidence would support a punitive damages award
before they may submit a claim for punitive damages.
Id., at 415-16. In those cases, the trial court
makes the initial determination whether punitive damages may
be imposed. Id. at 414. While the question of
whether punitive damages is appropriate in a particular case
is a matter of law, whether defendant's conduct was
sufficiently willful and wanton to support an award of
punitive damages is generally a question of fact for the jury
to decide. Cirrincione v. Johnson, 184 Ill.2d 109,
11 Plaintiff filed a complaint alleging negligent hiring or
retention of an employee. In such an action, plaintiff must
plead and prove "(1) that the employer knew or should
have known that the employee had a particular unfitness for
the position so as to create a danger of harm to third
persons; (2) that such particular unfitness was known or
should have been known at the time of the employee's
hiring or retention; and (3) that this particular unfitness
proximately caused the plaintiff's injury." Van
Horne v. Muller, 185 Ill.2d 299, 311 (1998). In this
context, the "particular unfitness" of the employee
"must have rendered the plaintiff's injury
foreseeable to a person of ordinary prudence in the
employer's position." Id. at 313. Defendant
argues, however, that to support a claim for punitive
damages, plaintiff here must go beyond the pleadings of a
negligent employment tort ...