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Appellate Court Date: 2017.10.10
12:52:13 -05'00'
Doe v. Catholic Bishop of Chicago, 2017 IL App (1st) 162388
Appellate Court JOHN DOE, Plaintiff-Appellee, v. THE CATHOLIC BISHOP OF
Caption CHICAGO and DANIEL McCORMACK, Defendants (The Catholic
Bishop of Chicago, Defendant-Appellant).
District & No. First District, First Division
Docket No. 1-16-2388
Filed July 17, 2017
Rehearing denied August 18, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 2013-L-9901; the
Review Hon. Clare E. McWilliams, Judge, presiding.
Judgment Certified question answered.
Counsel on Forde Law Offices LLP (Kevin M. Forde and Joanne R. Driscoll, of
Appeal counsel), Patricia C. Bobb & Associates, P.C. (Patricia C. Bobb, of
counsel), and Burke, Warren, MacKay & Serritella, P.C. (James C.
Geoly, Susan M. Horner, Jay S. Dobrutsky, and Elizabeth M. Pall, of
counsel), all of Chicago, for appellant.
Law Offices of Eugene K. Hollander (Eugene K. Hollander, Paul W.
Ryan, and Jonathon L. Hoeven, of counsel), for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Connors and Justice Simon concurred in the
judgment and opinion.
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.
¶2 JURISDICTION
¶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”).
¶5 BACKGROUND
¶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.”
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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 that the trial
court denied. Upon defendant’s motion, the trial court certified the question on appeal, which
we answer in the negative.
¶8 ANALYSIS
¶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., 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, cmt. 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 417. 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, 116 (1998).
¶ 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 and demonstrate defendant’s conscious disregard or
willful and wanton conduct by alleging that defendant had “actual knowledge” of
McCormack’s “propensity to sexually assault children.”
¶ 12 We disagree. Our supreme court has discussed the difference between acts of ordinary
negligence and the willful and wanton disregard for others’ rights that is required to support an
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award for punitive damages. In Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994), the
court acknowledged that our jurisprudence on the degree to which negligent acts are similar to
willful and wanton conduct “has not been wholly consistent.” While some cases have found
that willful and wanton acts more resemble intentionally tortious conduct, other cases have
determined that they are more similar to acts of ordinary negligence. Id. The court noted that
the phrase “ ‘willful and wanton conduct’ has developed in this State as a hybrid between acts
considered negligent and behavior found to be intentionally tortious.” Id. at 275. Since the type
of fault associated with ordinary negligence and willful and wanton conduct “is a matter of
degree, a hard and thin line definition should not be attempted.” Id. As our supreme court
reasoned, “[u]nder the facts of one case, willful and wanton misconduct may be only degrees
more than ordinary negligence, while under the facts of another case, willful and wanton acts
may be only degrees less than intentional wrongdoing.” Id. at 275-76.
¶ 13 A defendant’s knowledge of the surrounding circumstances, or utter indifference to or
conscious disregard for the safety of others given that knowledge, are factors to consider when
determining whether conduct amounts to willful and wanton misconduct. Oelze v. Score
Sports Venture, LLC, 401 Ill. App. 3d 110, 122-23 (2010). Although defendant is correct that
punitive damages require proof beyond that needed for a basic negligence claim, the same set
of facts could support both a finding of negligence and an award for punitive damages.
Plaintiff “may plead in alternative counts that certain conduct constitutes either negligence or
willful and wanton misconduct.” Bryant v. Livigni, 250 Ill. App. 3d 303, 312 (1993). Then, the
question properly “becomes one for the jury to determine, whether the conduct amounted to
simple negligence or rose to the level of willful and wanton misconduct.” Id.; see also Oelze,
401 Ill. App. 3d at 123 (“[w]hether conduct amounts to willful and wanton negligence is
generally a question of fact for the jury to determine”). At this point in the proceedings, for this
court to essentially dictate what constitutes a showing of willful and wanton conduct, as
defendant suggests, would infringe upon the jury’s duty to make that finding after presentation
of the evidence.
¶ 14 Simply put, the trial court may allow a claim for punitive damages if the evidence would
reasonably support a finding that defendant acted “willfully, or with such gross negligence as
to indicate a wanton disregard of the rights of others.” Kelsay, 74 Ill. 2d at 186; Loitz, 138 Ill.
2d at 415. The trial court found that plaintiff here “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” hiring, supervising, and retaining McCormack and therefore allowed plaintiff to
submit a punitive damages claim. The trial court used the appropriate standard.
¶ 15 For the foregoing reasons, we answer the certified question in the negative to the extent
that it requires evidence of defendant’s actual knowledge of McCormack’s propensity to
sexually abuse children to support plaintiff’s claim for punitive damages.
¶ 16 Certified question answered.
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