Doe v. Coe

2019 IL 123521

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 123521)

JANE DOE et al., Appellees, v. CHAD COE et al. (First Congregational Church of
Dundee, Illinois et al., Appellants).

Opinion filed May 23, 2019.

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

Justices Thomas, Kilbride, Burke, Theis, and Neville concurred in the judgment
and opinion.

Chief Justice Karmeier took no part in the decision.

OPINION

¶1 Plaintiffs, Jane Doe and her parents, brought suit against two individuals and
several entities including and affiliated with the United Church of Christ (UCC)
after Jane was sexually assaulted by a youth pastor. Relevant to this appeal,
plaintiffs alleged that the First Congregational Church of Dundee (FCCD) and its
 pastor, Aaron James, negligently and willfully and wantonly hired, supervised, and
retained FCCD’s director of youth ministries, Chad Coe.

¶2 Plaintiffs amended their complaint twice. All counts of the second amended
complaint were dismissed under section 2-615 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615 (West 2014)) as against FCCD and James. Plaintiffs
appealed the dismissal, and the appellate court affirmed in part, reversed in part,
and remanded for further proceedings. We granted FCCD and James’s petition for
leave to appeal. Ill. S. Ct. R. 315 (eff. Apr. 1, 2018). In this case, we are called on to
decide whether plaintiffs have adequately pled their causes of action against FCCD
and James, as well as whether the circuit court properly struck certain allegations
from the complaint.

¶3 BACKGROUND

¶4 Plaintiffs initially filed their complaint in the Kane County circuit court in
August 2015. They alleged various claims against Coe, James, and FCCD, as well
as the Fox Valley Association of the Illinois Conference of the United Church of
Christ, the Illinois Conference of the United Church of Christ, the United Church of
Christ, the General Synod of the United Church of Christ, and the United Church of
Christ Board (UCC defendants). FCCD and James moved to dismiss the counts
against them, and the circuit court granted the motion pursuant to section 2-615 of
the Code as to FCCD and section 2-619.1 of the Code as to James (735 ILCS
5/2-615, 2-619.1 (West 2014)). Plaintiffs filed an amended complaint, alleging four
counts—negligent supervision, negligent retention, willful and wanton failure to
protect, and willful and wanton retention and failure to supervise—against both
FCCD and James, with another count—negligent hiring—against FCCD alone.
FCCD and James moved again to dismiss under section 2-615 of the Code (id.
§ 2-615). FCCD and James also moved alternatively to strike certain paragraphs as
irrelevant or cumulative, also under section 2-615 (id.).

¶5 The circuit court agreed with FCCD and James that plaintiffs failed to state a
cause of action and dismissed the counts against them. The court found that nothing
in the complaint indicated that either FCCD or James knew or should have known
of Coe’s misconduct prior to his assault of Jane. Regarding the negligent hiring
count against FCCD, it found that plaintiffs’ allegation that an online search would

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 have revealed Coe’s activity on pornographic websites was not plausible because
Coe used a pseudonym.

¶6 The court denied plaintiffs leave to replead the willful and wanton counts
against FCCD or any of the counts against James. It reasoned that there was little
chance that plaintiffs would be able to plead the willful and wanton counts, which
alleged aggravated forms of negligence, if they failed to plead simple negligence
after two attempts. Further, it held, although James’s acts and omissions as an agent
of FCCD may form the basis for FCCD’s liability, James himself was not
personally liable. The court also granted in its entirety FCCD and James’s motion
to strike irrelevant or cumulative paragraphs from the complaint. The court allowed
plaintiffs to replead the negligence claims against FCCD and, after reconsidering,
against James.

¶7 The UCC defendants are not part of this appeal. The court also dismissed the
claims against them, and that appeal proceeded separately. See Doe v. Coe, 2017 IL
App (2d) 160875. Coe is also not part of this appeal.

¶8 Plaintiffs’ Second Amended Complaint

¶9 Plaintiffs’ second amended complaint, including the allegations stricken from
the first amended complaint realleged and preserved, is the subject of this appeal. In
it, plaintiffs alleged 22 counts against Coe, FCCD, James, and the UCC defendants.
Counts I through VII are against Coe. Counts XVII through XXII are against the
UCC defendants.

¶ 10 Against James, plaintiffs alleged counts VIII (negligent supervision), IX
(negligent retention), X (willful and wanton failure to protect), and XI (willful and
wanton retention and failure to supervise). Against FCCD, plaintiffs alleged counts
XII (negligent hiring), XIII (negligent supervision), XIV (negligent retention), XV
(willful and wanton failure to protect), and XVI (willful and wanton retention and
failure to supervise). These counts are at issue in this appeal.

¶ 11 Because this appeal resulted from a section 2-615 dismissal, the summary of
facts is drawn from plaintiffs’ second amended complaint. This appeal concerns
whether certain allegations were properly stricken from plaintiffs’ first amended

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 complaint and whether plaintiffs have adequately pled that FCCD and James acted
negligently or willfully and wantonly in hiring, supervising, and retaining Coe.

¶ 12 Plaintiffs’ second amended complaint was 564 paragraphs, including those
stricken and reserved against the UCC defendants. The appellate decision below
quoted a good number of the allegations from the complaint. 2018 IL App (2d)
170435, ¶ 43. We summarize them to the extent they are relevant to our decision.

¶ 13 Plaintiffs alleged that FCCD and James were bound to follow a recommended
“Safe Church Policy,” which was provided to UCC local churches. The complaint
defined the term “Inappropriate” as “Inappropriate Content, Inappropriate Displays
of Affection, Sexual Harassment, and Sexual Exploitation, as defined by UCC
policies and materials, as well as conduct or materials defined by Illinois law to be
Grooming, Sex Offenses, Harmful to Minors, Obscene, Adult Obscenity or Child
Pornography Internet Site.” Plaintiffs further alleged that Coe was under the direct
supervision of James, who was under the direct supervision and employ of FCCD;
that no background check was completed on Coe when he was hired or at any time
thereafter; that Coe’s office was near James’s and that James and other adults were
often present when Coe was working; and that Coe used the same pseudonym,
“BluesGod88,” to “friend” youth and adult members of the church on social media
sites and to post obscene photos of himself on pornographic websites. They alleged
that the pseudonym “BluesGod88” could be associated with Coe’s name by way of
a simple Google search and that he used the same pseudonym on child pornography
websites.

¶ 14 Plaintiffs further alleged that Coe habitually engaged in inappropriate behavior
such as permitting underage girls to sit on his lap, tickling them, and touching their
buttocks. They alleged that Coe showed youth group members pornographic
videos. Coe was often the only adult present during this inappropriate behavior, and
he habitually isolated young girls. On June 14, 2013, in a middle school classroom
in the basement of the church, Coe had sex with Jane on a couch. Jane was 15 and
Coe 31.

¶ 15 Plaintiffs alleged that James was the direct supervisor of all FCCD employees
and volunteers, that he was a mandatory reporter under the Abused and Neglected
Child Reporting Act (325 ILCS 5/4 (West 2012)), and that he was aware or should
have been aware of the Safe Church policy and UCC recommendations for

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 minor-to-adult online relationships and communications. James was either trained
to recognize the type of interactions between adults and children that create
dangerous situations for the children or was not trained and should have been.
James was present at the church during normal working hours and at youth group
meetings from time to time such that he knew or should have known that Coe’s
interactions with youth, including Jane, were inappropriate. Plaintiffs made all of
the same allegations regarding training and knowledge against FCCD.

¶ 16 Plaintiffs further alleged that FCCD employees, volunteers, and members were
present to witness Coe’s inappropriate attention, behavior, or physical contact with
minor members of the youth group, including Jane. Multiple people found that
behavior unsettling or received information from children in the group that the
behavior made the children uncomfortable. Employees, volunteers, or members
discussed among themselves Coe’s inappropriate behavior with Jane. At least one
employee, volunteer, or member confronted Coe about his behavior, and the
behavior was reported to James in late 2012 and 2013. On at least three occasions,
James walked into Coe’s office while Coe was in the office alone with Jane and left
them alone together, despite his knowledge that the Safe Church Policy directed
that at least two adults be present with children. In June 2013, a vacation bible
school volunteer, who was an early childhood education professional, recognized
the interaction between Coe and Jane as inappropriate after witnessing them
together for less than two days and called James to report the inappropriate
conduct. She subsequently discussed the conduct again with James in a meeting. At
no point did James take any action to further investigate, report to DCFS,
communicate with Jane’s parents, or restrict Coe’s access to Jane or other children,
nor did he implement the Safe Church Policy or any other policy to protect minors.

¶ 17 FCCD and James again moved to dismiss, and the circuit court dismissed all
counts against them with prejudice. The circuit court found no reason to delay
enforcement or appeal (Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016)), and plaintiffs
timely appealed. The appellate court affirmed in part, reversed in part, and
remanded for further proceedings. 2018 IL App (2d) 170435, ¶ 108. It affirmed the
circuit court’s decisions to strike portions of the first amended complaint as well as
its dismissal of the negligent retention counts against FCCD and James and the
willful and wanton counts to the extent they overlapped with the negligent retention
counts. Id. ¶ 106. It reversed the circuit court’s dismissal of the negligent hiring

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 count against FCCD, the negligent supervision count against FCCD and James, and
the willful and wanton counts to the extent they overlapped with the negligent
supervision counts. Id.

¶ 18 FCCD and James petitioned for leave to appeal, asking that this court review
the appellate court’s decision to reverse the trial court in part. We granted leave. Ill.
S. Ct. R. 315 (eff. Apr. 1, 2018). In their response to FCCD and James’s brief,
plaintiffs cross-appealed the appellate court’s decision to affirm the trial court in
part. Thus, all of the counts dismissed by the circuit court, as well as the stricken
allegations, are before us. The Illinois Trial Lawyers Association sought, and we
granted, leave to file an amicus brief. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 19 ANALYSIS

¶ 20 The circuit court struck certain allegations from plaintiffs’ first amended
complaint and dismissed all counts against FCCD and James from the second
amended complaint. Both actions were taken under section 2-615(a) of the Code
(735 ILCS 5/2-615(a) (West 2014)). We review the grant of a motion pursuant to
section 2-615 de novo. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006);
see also Department of Healthcare & Family Services ex rel. Daniels v. Beamon,
2012 IL App (1st) 110541, ¶ 15 (citing Marshall and applying the standard to a
motion to strike). In reviewing a motion granted pursuant to section 2-615, “we
accept as true all well-pleaded facts and all reasonable inferences that may be
drawn from those facts. [Citation.] We also construe the allegations in the
complaint in the light most favorable to the plaintiff.” Marshall, 222 Ill. 2d at 429.

¶ 21 We first examine the stricken allegations before turning to the dismissed
claims.

¶ 22 Stricken Allegations

¶ 23 The circuit court granted FCCD and James’s motion to strike certain allegations
in plaintiffs’ first amended complaint as irrelevant or cumulative under section
2-615(a) of the Code (735 ILCS 5/2-615(a) (West 2014)). The appellate court
affirmed. 2018 IL App (2d) 170435, ¶ 106.

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¶ 24 A party may move to strike immaterial matter from a complaint. 735 ILCS
5/2-615(a) (West 2014). “[A] fact is ‘relevant’ if it tends to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” People v. Pawlaczyk, 189 Ill.
2d 177, 193 (2000); see also Ill. R. Evid. 401 (eff. Jan. 1, 2011). Plaintiffs argue that
the stricken allegations, including allegations of post-assault conduct by James and
other FCCD employees, support their willful and wanton claims. They argue that
the appellate court erred in finding the allegations “neutral on the question of
whether those parties acted culpably prior to the alleged rape” (2018 IL App (2d)
170435, ¶ 58) because all allegations are construed in the light most favorable to
plaintiffs.

¶ 25 In their motion to strike, FCCD and James challenged paragraphs 1 to 3, 25 to
35, 48 to 54, 74 to 83, 168 to 203, 208 to 224, 243, and 304 to 345. The circuit court
granted the motion, and the appellate court affirmed (id. ¶ 106), noting that
plaintiffs only challenged the dismissal of the post-assault allegations (id. ¶ 56).

¶ 26 On cross-appeal to this court, “Plaintiffs seek reversal of the blanket striking of
allegations in the Amended Complaint, including the post-rape allegations, to the
extent this Court determines that those allegations may be material to the Plaintiffs’
causes of action against James and FCCD.” Other than mentioning that FCCD and
James did not challenge paragraph 265 but did challenge paragraph 243, which
alleged the same allegations against James, plaintiffs only discuss the post-assault
facts in their cross-appeal. FCCD and James point out that by failing to develop
argument, plaintiffs forfeited any such argument. Ill. S. Ct. R. 341(h)(7) (eff. Nov.
1, 2017). Plaintiffs respond that this court can grant any relief warranted by the
record and request that we reverse the grant of the motion to strike in its entirety. Ill.
S. Ct. R. 318(a) (eff. July 1, 2017). The appellate court found that plaintiffs had not
argued for reversal of the entirety of the motion (2018 IL App (2d) 170435, ¶ 56),
yet in their first brief to this court plaintiffs did not broaden their argument to
address the other allegations. We find that plaintiffs forfeited review of stricken
allegations other than the post-assault allegations. We decline to further consider
them.

¶ 27 As to the post-assault allegations, plaintiffs argue that they demonstrate the
aggravated nature of FCCD’s and James’s negligence necessary to plead their

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 willful and wanton claims. They alleged, for example, that after Coe’s arrest James
called a meeting of church members, specifically excluding the Does; that James
did not tell youth group parents at another meeting about an “indicated”
Department of Children and Family Services (DCFS) report finding that Doe’s
allegation was substantiated; and that a sign-up sheet was posted in the church for
members to attend Coe’s trial to support him. Plaintiffs disagree with the appellate
court’s finding that the allegations were neutral on preassault culpability, correctly
arguing that allegations are to be construed in the light most favorable to them, the
nonmoving party. Marshall, 222 Ill. 2d at 422. The allegations do not, however,
prove preassault culpability.

¶ 28 Plaintiffs argue that the post-assault allegations help establish that FCCD and
James were either aware of Coe’s inappropriate conduct before the assault or
unqualified and unprepared to recognize and respond to such conduct. Plaintiffs
cite Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL
112479, ¶ 19, for the proposition that plaintiffs must support their willful and
wanton claims with allegations of an “ongoing conscious disregard for Jane Doe’s
welfare.” Doe-3 does not mention any “ongoing” conscious disregard. The act at
issue therein was not of an ongoing nature, nor did it occur after the acts that caused
the injury. Rather, the act from which the duty arose—misstating the abuser’s
employment history—occurred before the abuser was hired. Id. ¶ 27.

¶ 29 FCCD’s and James’s post-assault actions do not support plaintiffs’ claims of an
ongoing conscious disregard for Jane’s welfare or a pattern of conduct prior to the
assault. That FCCD or James took certain actions or failed to take others after Coe
assaulted Jane does not make it more likely or less likely that they acted negligently
before the assault. We find that the allegations were properly stricken. We affirm
the appellate court in affirming the circuit court’s grant of the motion to strike.

¶ 30 Dismissal of the Second Amended Complaint

¶ 31 Plaintiffs’ second amended complaint was dismissed pursuant to section 2-615
of the Code (735 ILCS 5/2-615 (West 2014)). A section 2-615 motion to dismiss
challenges the legal sufficiency of a complaint based on defects apparent on its
face. Marshall, 222 Ill. 2d at 429; City of Chicago v. Beretta U.S.A. Corp., 213 Ill.
2d 351, 364 (2004). “[A] cause of action should not be dismissed pursuant to

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 section 2-615 unless it is clearly apparent that no set of facts can be proved that
would entitle the plaintiff to recovery.” Marshall, 222 Ill. 2d at 429.

¶ 32 Illinois is a fact-pleading jurisdiction. Id.; Weiss v. Waterhouse Securities, Inc.,
208 Ill. 2d 439, 451 (2004). The plaintiff is not required to set forth evidence in the
complaint but “must allege facts sufficient to bring a claim within a legally
recognized cause of action (Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997)), not
simply conclusions (Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 408 (1996)).”
Marshall, 222 Ill. 2d at 429-30.

¶ 33 Under a common-law negligence cause of action, an employer can be liable for
an employee’s torts in one of two ways, depending on whether the employee was
acting within the scope of his employment. Vancura v. Katris, 238 Ill. 2d 352, 375
(2010). If the employee was within the scope of his employment, the employer can
be found liable for his actions under a theory of vicarious liability, or
respondeat superior. Id. If an employee acts outside the scope of his employment,
however, the plaintiff can bring a direct cause of action against the employer for the
employer’s misconduct. Id. Negligent hiring, negligent supervision, and negligent
retention are all direct causes of action against the employer for the employer’s
misconduct in failing to reasonably hire, supervise, or retain the employee.

¶ 34 Plaintiffs’ claims against FCCD and James are common-law negligence claims.
Willful and wanton conduct is regarded as an aggravated form of negligence.
Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 235 (2010). “To recover
damages based upon negligence, a plaintiff must prove that the defendant owed a
duty to the plaintiff, that the defendant breached that duty, and that the breach was
the proximate cause of the plaintiff’s injury.” Id. at 225. A plaintiff must allege and
prove the same elements for a willful and wanton cause of action. Id. at 235-36.

¶ 35 Defendants’ Alleged Duty of Care

¶ 36 We begin by determining whether FCCD, James, or both owed a duty of care to
plaintiffs. “Whether a duty exists is a question of law to be determined by the
court.” Doe v. McKay, 183 Ill. 2d 272, 278 (1998). We first note that “[w]here the
law does not impose a duty, one will not generally be created by a defendant’s rules
or internal guidelines. Rather, it is the law which, in the end, must say what is

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 legally required.” Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 238 (1996).
Self-imposed policies can exist coextensively with the law. See, e.g., Bogenberger
v. Pi Kappa Alpha Corp., 2018 IL 120951, ¶ 46 (“Hazing is not only against the law
in Illinois, it is against the university’s rules as well as the Pi Kappa Alpha
fraternity’s rules.”). Penalizing a defendant by imposing a duty on it to comply with
self-imposed safety measures that exceed any duty imposed by law, however,
would discourage employers from creating policies intended to protect their
employees and the public. We decline to do so. Neither the Safe Church Policy nor
any other policy or procedure created or adopted by FCCD creates any duty beyond
that already imposed by the law. To the extent that FCCD and James developed or
adopted the Safe Church Policy or any other measure as a means of fulfilling their
existing duties, any failure to comply would be relevant to breach, not to the
existence of a duty.

¶ 37 “We have long recognized that ‘ “every person owes a duty of ordinary care to
all others to guard against injuries which naturally flow as a reasonably probable
and foreseeable consequence of an act, and such a duty does not depend upon
contract, privity of interest or proximity of relationship ***.” ’ ” Id. ¶ 22 (quoting
Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 19, quoting Widlowski v.
Durkee Foods, 138 Ill. 2d 369, 373 (1990)). “In deciding whether a duty exists in a
particular case, a court will consider the foreseeability of the plaintiff’s injury, the
likelihood of the occurrence, the magnitude of the burden of guarding against it,
and the consequences of placing that burden on the defendant.” McKay, 183 Ill. 2d
at 278. Employers have a duty to act reasonably in hiring and retaining employees.
Van Horne v. Muller, 185 Ill. 2d 299, 310 (1998). A master also has a duty to
supervise his servant. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 229
(2000). In other words, the initiation and existence of an employment relationship
imposes a duty upon the employer to exercise reasonable care in employing only
competent individuals. These duties are to all foreseeable individuals who might be
impacted by the employee or his employment, such as a customer of a defendant
business or a member of a defendant church.

¶ 38 Certainly it is foreseeable and likely that a youth group member could be
harmed by a failure to act reasonably in hiring, supervising, and retaining a director
of youth ministries. The magnitude of the burden of guarding against the harm
alleged here is small, as reasonably hiring, supervising, and retaining employees

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 are duties that benefit the employer even apart from preventing potential harm to
third parties. The burden seems even smaller when compared with the magnitude of
the harm to be prevented. Finally, the consequences of placing the burden on the
defendant are small; employers typically already strive to perform these duties in a
reasonable manner. To the extent that plaintiffs have pled and can prove that
FCCD, James, or both hired, supervised, and retained Coe, we find that they had a
duty to plaintiffs to do so reasonably.

¶ 39 Plaintiffs have alleged five causes of action against FCCD and four of the same
counts against James. We examine them separately.

¶ 40 Count XII—Negligent Hiring

¶ 41 Plaintiffs alleged that FCCD was negligent when it hired Coe. They initially
alleged this count against both parties, but after learning that Coe was hired before
James, they did not replead it against James. The appellate court reinstated the
claim against FCCD after the circuit court dismissed it. 2018 IL App (2d) 170435,
¶ 106. In a negligent hiring action, a 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,
185 Ill. 2d at 311.

¶ 42 At issue is whether FCCD knew or should have known at the time it hired Coe
that he had a sexual interest in children. Plaintiffs alleged that FCCD failed to
conduct a background check. They further alleged that a simple Google search of
Coe’s name would have revealed his pseudonym, BluesGod88, and that he used
that pseudonym on certain adult and child pornography websites, including to post
obscene photos of himself. Plaintiffs did not allege that Coe had a criminal record
or any known or discoverable illicit relationships with children.

¶ 43 FCCD responds to plaintiffs’ allegations by stating that the allegations are
insufficient; plaintiffs must allege not only that no background check was

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 performed but also what a background check would have uncovered. It states that
an inference that a Google search of someone’s name would reveal that person’s
history of visiting pornographic websites is implausible.

¶ 44 At the pleading stage, all inferences are drawn in plaintiffs’ favor. Marshall,
222 Ill. 2d at 429. To prove a negligent hiring claim, a plaintiff must show not just
that an employee was unfit but that the employee was unfit in a particular manner,
which particular unfitness “must have rendered the plaintiff’s injury foreseeable to
a person of ordinary prudence in the employer’s position.” Van Horne, 185 Ill. 2d at
313. Plaintiffs allege that “[a] basic, cursory Google search into the online public
presence of Coe would have revealed Coe’s activity, which included posting public
photos of his own genitalia, on numerous pornographic websites.” They maintain
that they have evidence that such a Google search at or before Coe’s hire would
have alerted FCCD to Coe’s visits to child pornography websites and thus put it on
notice of Coe’s particular unfitness—his sexual interest in children—that later
proximately caused plaintiffs’ injuries.

¶ 45 At the pleading stage, we will not guess what the evidence will show. Rather,
we need only determine whether “it is clearly apparent that no set of facts can be
proved that would entitle the plaintiff to recovery.” Marshall, 222 Ill. 2d at 429. We
acknowledge FCCD’s argument that a background check is unlikely to produce an
individual’s Internet browsing history, but that is a factual dispute. Myriad
businesses offer to perform detailed background checks for employers and youth
activity sponsors, and plaintiffs will have to carry their burden in proving their
claim.

¶ 46 Plaintiffs have alleged that a background check, by way of a cursory Google
search, would have put FCCD on notice of Coe’s sexual interest in children at or
before his hire. This is a factual allegation and more than a mere conclusion. Coe’s
sexual interest in children is the particular unfitness alleged to have proximately
caused plaintiffs’ injuries. Thus, if proven, these facts might entitle plaintiffs to
recovery. We affirm the appellate court in reinstating count XII.

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¶ 47 Counts VIII and XIII—Negligent Supervision

¶ 48 Plaintiffs alleged that after hiring Coe, both FCCD and James negligently
supervised him. The appellate court reinstated the claim after the circuit court
dismissed it. 2018 IL App (2d) 170435, ¶ 106.

¶ 49 The parties disagree as to what the elements of a negligent supervision cause of
action are. This court set out the elements of negligent hiring and negligent
retention in Van Horne, 185 Ill. 2d at 311. This court did not, however, set out the
elements for a negligent supervision claim in that decision. See Vancura, 238 Ill. 2d
at 371-72 (noting that in Van Horne this court focused on negligent hiring and
retention, not negligent supervision).

¶ 50 Plaintiffs argue that this court set out the elements of a negligent supervision
claim in Vancura: “As in any claim for negligence, a plaintiff must establish the
existence of a duty, a breach of the duty, and an injury to the plaintiff that was
proximately caused by the breach.” 238 Ill. 2d at 375 (citing Hills, 195 Ill. 2d at
228). As the quote states, however, these are merely the general elements of a
negligence claim.

¶ 51 FCCD and James argue that it would be nonsensical for this court to require
notice of the employee’s particular unfitness in a negligent hiring and a negligent
retention claim but not in a negligent supervision claim. They argue that prior
notice of a particular unfitness is required in a negligent supervision action outside
the employment context, citing Norskog v. Pfiel, 197 Ill. 2d 60, 84 (2001) (holding
that a plaintiff must show that a parent was “aware of specific instances of prior
conduct sufficient to put them on notice that the act complained of (in [that] case,
[a] murder) was likely to occur”).

¶ 52 Appellate court panels have differed as to the elements of negligent
supervision. The appellate court below held that the elements of a negligent
supervision claim are that “(1) the defendant had a duty to supervise the harming
party, (2) the defendant negligently supervised the harming party, and (3) such
negligence proximately caused the plaintiff’s injuries.” 2018 IL App (2d) 170435,
¶ 90; see also Hills v. Bridgeview Little League Ass’n, 306 Ill. App. 3d 13, 18
(1999), rev’d, 195 Ill. 2d 210; Van Horne v. Muller, 294 Ill. App. 3d 649, 657

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 (1998), reversed in part on other grounds, 185 Ill. 2d 299; Mueller v. Community
Consolidated School District 54, 287 Ill. App. 3d 337, 342-43 (1997).

¶ 53 Other panels, however, have held that notice is required. See, e.g., Doe v.
Brouillette, 389 Ill. App. 3d 595, 606 (2009); Vancura v. Katris, 391 Ill. App. 3d
350, 366 (2008), aff’d in part, rev’d in part, 238 Ill. 2d 352.

¶ 54 Still others have held that this court has not distinguished the tort of negligent
supervision from negligent retention. See, e.g., Helfers-Beitz v. Degelman, 406 Ill.
App. 3d 264, 268 (2010); Zahl v. Krupa, 399 Ill. App. 3d 993, 1018 (2010); Platson
v. NSM, America, Inc., 322 Ill. App. 3d 138, 144 (2001).

¶ 55 We first note that, while we have not before determined the elements, we have
acknowledged that a separate and distinct cause of action for negligent supervision
exists. See Vancura, 238 Ill. 2d at 375 (noting that a plaintiff can assert a negligent
supervision claim based on a particular duty or a general duty based on the
employment relationship).

¶ 56 FCCD and James’s reliance on Norskog, 197 Ill. 2d at 84, is misplaced. A
parent-child relationship is much different from an employer-employee
relationship, and one’s duty to reasonably supervise one’s child is not the same as
one’s duty to reasonably supervise one’s employee. Compare Restatement
(Second) of Torts § 316 (1965), with id. § 317. Thus in Norskog we required that,
among other things, a parent have knowledge of the child’s previous conduct
before a duty to control the child may arise. 197 Ill. 2d at 84.

¶ 57 Similarly, in an employment or master-servant context, a duty to reasonably
control the servant can exist, which duty requires that the master “ ‘knows or
should know of the necessity and opportunity for exercising such control.’ ” Hills,
195 Ill. 2d at 229 (quoting Restatement (Second) of Torts § 317(a)(ii) (1965)). A
duty of a master or employer to control her agent can arise when the employer has
reason to know or suspect that a certain employee or employees will engage in
potentially dangerous or tortious conduct if they are not prohibited from doing so.

¶ 58 An employer’s duty to supervise, in contrast, is general in nature. An employer
has a duty to supervise all employees; the extent to which she must do so depends
on many factors, such as the work performed, the employees performing it, the size

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 of the business, the type of work, and the employer’s clientele, among others. These
duties are closely related and often overlap, but a distinction exists. This court’s
analysis in Hills provides a good example of the difference. Id. at 229-34.

¶ 59 In that case, this court examined whether Bridgeview Little League Association
(Bridgeview) was negligent in failing to control its coaches, who physically
assaulted another coach. Id. at 229-30. In doing so, the court considered whether
the head coach was the master of the assistant coaches. Id. at 230-34. At trial, two
Bridgeview board members testified that the head coach “had general supervisory
authority over his players and coaches.” Id. at 232. That authority included the
responsibility to make sure that players and coaches engaged in good
sportsmanship and followed the behavioral rules. Id. Although not expressly
discussed in that decision, this describes the head coach’s duty to supervise.
Similarly, an employer has a duty to generally supervise her employees to make
sure that they engage in appropriate behavior and follow the law and the
employer’s rules.

¶ 60 Because the head coach was entrusted with the authority to generally supervise,
the court found that he could be considered “master” for purposes of establishing
the notice and ability to control required for a duty to control. Id. at 232-33. Thus,
although not explicitly stated, the court found that the head coach’s duty to
generally supervise the assistant coaches and players was a precursor to a
determination that he could have had a duty to control the assistant coaches when
they acted in a particular way and attacked another coach.

¶ 61 Regarding the negligent supervision count, we agree with the elements laid out
by the appellate court below. We do not require that the supervisor have prior
notice of a particular unfitness because reasonable performance of the duty to
supervise will put the supervisor on notice of an employee’s conduct or perhaps
prevent the employee’s tortious conduct all together. Rather, we agree with the
appellate court that, to impose a duty to supervise, only general foreseeability is
required in an employment context. 2018 IL App (2d) 170435, ¶ 99. Although prior
notice might sometimes be a factor in determining whether a supervisor reasonably
performed her duty, to always require prior notice of the particular unfitness as an
element of the duty analysis would be to extinguish this cause of action in many
circumstances. In this case, for example, no amount of supervision could suffice if

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 FCCD and James were aware of Coe’s sexual interest in children and the claim
would therefore become a negligent retention claim. We decline to limit the
negligent supervision cause of action in this way.

¶ 62 As the appellate court recognized, it is generally foreseeable that abuse could
occur in programs providing adults with unsupervised access to children. Id. This
state’s public policy strongly favors the protection of children (id. (citing Doe-3,
2012 IL 112479, ¶ 36)), especially from sex offenders (id. (citing Doe-3, 2012 IL
112479, ¶ 37)). FCCD’s and James’s duty to reasonably supervise Coe, predicated
on the employment relationship and this general foreseeability, is sufficient to
confer constructive knowledge of Coe’s actions, assuming plaintiffs can prove their
allegations.

¶ 63 Plaintiffs alleged that FCCD and James failed to monitor Coe’s interactions
with FCCD’s youth and confirmation groups. Id. ¶ 92. They alleged, for example,
that Coe was often the only adult present for youth group meetings, which allowed
him to engage in inappropriate and unlawful conduct during those meetings. They
alleged that James observed Jane alone with Coe in his office on at least three
occasions and allowed them to remain alone together. Whether plaintiffs’
allegations are sufficient to prove a breach is a question of fact. We do not, at this
stage, determine whether negligence has been proven but merely whether facts
have been alleged that, if proven, could entitle plaintiffs to recovery. Marshall, 222
Ill. 2d at 429.

¶ 64 We find that plaintiffs have alleged facts sufficient that the fact-finder could
find that FCCD and James breached their duty to supervise Coe by failing to
monitor his conduct and that the breach proximately caused their injuries. This is
sufficient at this stage. We affirm the appellate court in reversing the circuit court’s
dismissal of counts VIII and XIII.

¶ 65 Counts IX and XIV—Negligent Retention

¶ 66 Plaintiffs alleged that both FCCD and James negligently retained Coe. The
appellate court affirmed the circuit court’s dismissal of the negligent retention
counts. 2018 IL App (2d) 170435, ¶ 106. The elements for a claim of negligent
retention are the same as for negligent hiring. Plaintiffs must

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 “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,
185 Ill. 2d at 311.

Also like a negligent hiring claim, a plaintiff must show that the employee was unfit
in a particular manner, which particular unfitness “must have rendered the
plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s
position.” Id. at 313.

¶ 67 The appellate court found that James was not Coe’s employer and thus could
not be held liable for negligent retention. We disagree. The decision on which the
appellate court below relied found that no employment relationship existed
between the Boy Scouts of America (BSA) and a district executive of the local area
boy scout council. Doe v. Boy Scouts of America, 2014 IL App (2d) 130121, ¶ 40.
That court so decided, however, after examining several factors and determining
that “ ‘[w]hile no one single factor is considered determinative, the right to control
the work is considered to be the predominant factor.’ ” Id. (quoting Brouillette, 389
Ill. App. 3d at 606). “[I]t is the right to control rather than the actual exercise of
control that is significant.” Brouillette, 389 Ill. App. 3d at 606. The Boy Scouts of
America court found that this “most significant factor” weighed heavily against
finding an employment relationship with BSA because the abuser reported to the
local organization, not BSA. 2014 IL App (2d) 130121, ¶ 40. In this case,
conversely, plaintiffs have alleged that Coe reported directly to James and that
James “was the master and direct supervisor of Coe.”

¶ 68 This court has considered similar factors. In Hills, we noted that the
master-servant relationship is not one that is exactly defined and “is generally left
to the trier of fact to determine whether the relationship exists.” 195 Ill. 2d at 235.

“ ‘The question as to whether or not the relationship of master and servant
exists is dependent upon certain facts and circumstances. These facts include
the question of hiring, the right to discharge, the manner of direction of the
servant, the right to terminate the relationship, and the character of the
supervision of the work done. Unless these facts clearly appear, the relationship

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 cannot become purely a question of law.’ ” Id. (quoting Merlo v. Public Service
Co., 381 Ill. 300, 319-20 (1942)).

¶ 69 Those facts do not clearly appear in James’s favor. Plaintiffs have alleged, for
example, that Coe was under James’s direct supervision and control. As above, we
merely determine at this stage whether facts have been alleged that, if proven, could
entitle plaintiffs to recovery. Marshall, 222 Ill. 2d at 429. We find that plaintiffs
have sufficiently pled facts from which a trier of fact could conclude that James had
the ability to control Coe’s employment.

¶ 70 Like the negligent hiring count above, the issue here is whether FCCD and
James had notice of Coe’s sexual interest in children. The appellate court below
found that “[i]n all 70 pages of their complaint, plaintiffs failed to allege
(1) specific misconduct that (2) was observed by FCCD’s agents and (3) was of a
nature that placed FCCD on notice of Coe’s particular unfitness for the position of
youth director.” 2018 IL App (2d) 170435, ¶ 87.

¶ 71 We find the facts of this case, as alleged, closely matched on this count. We
recognize that an employer must “deal justly with its employees and not take lightly
the decision to terminate.” Boy Scouts of America, 2014 IL App (2d) 130121, ¶ 48.
In that case, a scout’s mother brought an action against BSA and the local boy scout
organization alleging negligent hiring and retention after her son was sexually
abused by a local district executive. Id. ¶¶ 1-7. That court held that, even with the
boy scouts organization’s “appropriately heightened sensitivity to danger,” the
abuser’s conduct of allegedly positioning himself so as to watch a boys’ swim team
change in a locker room “was not so clearly prurient, and did not signal such an
immediate danger to scouts, as to warrant depriving him of any opportunity to
explain himself.” Id. ¶ 48. Notably, however, that case was on appeal after a grant
of summary judgment (id. ¶ 1), which is granted and reviewed on a standard less
favorable to the plaintiff than a section 2-615 dismissal (id. ¶ 34).

¶ 72 Plaintiffs argue that they are not required to set out evidence in their complaint
but only the ultimate facts to be proved. Beretta, 213 Ill. 2d at 369. They argue that
requiring plaintiffs to plead evidentiary facts sufficient to show knowledge would
raise the bar and benefit defendants who “circle the wagons.” They argue that they
are not required to allege facts that are much more within the defendants’

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 knowledge, citing Marshall v. David’s Food Store, 161 Ill. App. 3d 499, 501
(1987).

¶ 73 In that case, a plaintiff who was accosted in the parking lot of a grocery store
and sexually assaulted sued the grocery store and the security company hired by the
grocery store. Id. at 500. Defendants successfully moved to dismiss, arguing that
the plaintiff had failed to plead that they had notice that the area was dangerous. Id.
The appellate court reversed, finding that the grocery store’s act of hiring a security
company gave rise to an inference that the defendants had notice of potential
danger in the parking lot. Id. at 501. That court also found that the plaintiff did not
have to “allege facts which, to a much greater degree of exactitude, are more within
the knowledge of a defendant” and that discovery might produce more evidence of
the defendants’ knowledge. Id.

¶ 74 Here, plaintiffs have alleged certain facts of which, they further alleged, FCCD
and James were or should have been aware. They alleged, for example, that Coe
had physical contact with underage girls at youth group and other activities,
including touching their buttocks. Although they alleged that Coe was “many of the
times *** the only adult present,” they later alleged that FCCD employees,
members, or volunteers, including James, were present for at least some of these
activities. They alleged that an early childhood professional reported to James
certain interactions between Coe and Jane that she believed to be sufficiently
inappropriate to be worthy of a phone call to James and discussion in a subsequent
meeting. This allegation reasonably implies that Coe’s actions toward Jane, even
when he was in front of other adults, were sufficiently indicative of his sexual
interest in her such that a reasonably prudent person, trained to recognize such an
interest, would have noticed. They alleged that James and other FCCD employees
and volunteers were or should have been so trained.

¶ 75 Under the standard upon which we review these allegations, “we accept as true
all well-pleaded facts and all reasonable inferences that may be drawn from those
facts. [Citation.] We also construe the allegations in the complaint in the light most
favorable to the plaintiff.” Marshall, 222 Ill. 2d at 429. “[A] cause of action should
not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of
facts can be proved that would entitle the plaintiff to recovery.” Id. Plaintiffs have
alleged that Coe engaged in conduct with underage girls that a reasonably prudent

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 person might consider, especially cumulatively, to be inappropriate or sexual in
nature. They have also alleged that FCCD and James had constructive or actual
knowledge by way of witnessing the conduct or receiving reports from volunteers
who witnessed it, which, they further alleged, was sufficient to put them on notice
of Coe’s sexual interest in children. Accepting those well-pled allegations as true,
we cannot say that no set of facts can be proved that would entitle plaintiffs to
recovery.

¶ 76 This case is at the pleading stage, and we thus accept as true the allegations that
plaintiffs will have to carry their burden in proving. Should they prove them, they
may be entitled to recovery. We reverse the appellate court and reinstate counts IX
and XIV.

¶ 77 Counts X, XI, XV, and XVI—the Willful
and Wanton Counts

¶ 78 No separate and distinct tort exists for willful and wanton conduct. Krywin, 238
Ill. 2d at 235. Rather, willful and wanton conduct is regarded as an aggravated form
of negligence. Id. A plaintiff must allege and prove the same elements for a willful
and wanton cause of action as she does for a negligence action. Id. at 235-36.

¶ 79 The appellate court below found that plaintiffs “alleged willful-and-wanton
conduct against FCCD and James” and that the counts therefore “overlap[ped] in
part with the negligence counts against FCCD and James.” 2018 IL App (2d)
170435, ¶ 104. The appellate court did not reinstate the willful and wanton counts
inasmuch as they overlapped with the negligent hiring count. On appeal to this
court, plaintiffs do not claim that the appellate court erred in failing to do so, despite
addressing the overlap with the negligent supervision and negligent retention
counts. Thus, either they agree that the willful and wanton counts do not overlap
with the negligent hiring count or they have forfeited such an argument.

¶ 80 For the reasons stated above, we affirm the appellate court in reinstating the
willful and wanton counts inasmuch as they overlap with the negligent supervision
counts and reverse dismissal inasmuch as they overlap with the negligent retention
counts.

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¶ 81 CONCLUSION

¶ 82 In sum, we affirm the appellate court in affirming the circuit court’s grant of the
motion to strike portions of the plaintiffs’ complaint. We also affirm the appellate
court in reinstating the negligent hiring and negligent supervision counts and
reverse the appellate court in affirming dismissal of the negligent retention counts.
We affirm as to reinstating the willful and wanton counts inasmuch as they overlap
with the negligent supervision counts and reverse inasmuch as they overlap with
the negligent retention counts. As a result of our decision, the allegations stricken
by the circuit court remain stricken, but all counts against FCCD and James are
reinstated.

¶ 83 Appellate court judgment affirmed in part and reversed in part.

¶ 84 Circuit court judgment affirmed in part and reversed in part.

¶ 85 Cause remanded.

¶ 86 CHIEF JUSTICE KARMEIER took no part in the consideration or decision of
this case.

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