dissenting:
From the record we know that on an average of more than once a week for the past two decades, a Cub Scout, Boy Scout or Explorer Scout of the Boy Scouts of America (Boy Scouts) has reported being sexually abused by an adult leader. P Boyle, Scout’s Honor, Washington Times, May 20, 1991, at 7.
The parties stipulated in this case that, between 1981 and 1988, 392 adult volunteer leaders were placed on ineligible lists because of alleged sexual abuse of scouts. In 1988 alone, the Boy Scouts headquarters was notified of over 100 allegations of molestation of troop members by adult leaders.
Furthermore, the record indicates that the Boy Scouts has taken steps to address sexual abuse of its scouts by: (1) publishing a pamphlet entitled Child Abuse: Let’s talk about it and a booklet called How to protect your children from child abuse and drug abuse-, and (2) producing and distributing a 90-minute videotape addressing sexual abuse and an educational video for scouts seeking help from being abused.
Yet the majority holds that if in fact Scout Doe was molested this act was not reasonably foreseeable so as to impose a duty on the Boy Scouts to protect him from an alleged criminal attack by his scout leader.
I cannot agree.
The majority’s first failing is to essentially reduce foreseeablitiy to a question of mere mathematical probability. They say that less than 0.011% of volunteers were suspected of committing sexual abuse against a scout in any given year. I take issue with this conclusion for two reasons. First, this statistic was not provided by either party, nor made part of the record on appeal. Second, and much more importantly, whether a risk is foreseeable is not a question of simple mathematical probability. W. Keeton, Prosser & Keeton on Torts § 31, at 171 (5th ed. 1984); see Gallagher v. Montpelier & Wells River R.R., 100 Vt. 299, 137 A. 207 (1927) (although the odds may be 1,000 to 1 that a train will enter a crossway at the precise moment a car is passing over the same track, the risk of death is serious enough to require precaution); see also Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981 (1974) (doctors negligent for failing to administer eye test even though risk of glaucoma in those under 40 was only 1 in 25,000). While the statistical chance a scout will be sexually abused may be small, I believe that the physical and psychological damage caused by sexual molestation of minors is so great that a duty should be placed upon the Boy Scouts to take steps to protect the young boys in their care.
Having found the harm foreseeable, I would impose a duty upon the Boy Scouts because they stand in a special relationship with the scouts. According to the Restatement of Torts, a special relationship is created when one voluntarily takes custody of another so as to deprive the other of his normal opportunities of protection. Restatement (Second) of Torts § 314A (1965).
Think about it. Each year thousands of young boys wave goodbye to mom and dad and go off to attend remote Boy Scout outings across the continent. Some of these expeditions last a week or more. There they are — out in the wilderness — no phone, no parents, no police, no teachers, none of the usual safety nets. Just the bircjs and the bears and the Boy Scout leaders. If that is not a description of taking custody so as to deprive one of normal opportunities of protection, I do not know what is.
The Boy Scouts and its volunteers are responsible for the care and well-being of these vulnerable and impressionable children. In effect, they voluntarily step into the shoes of the parents. With such an undertaking should come the duty to act within reasonable means to protect scouts from sexual abuse by their adult leaders. Other courts have imposed such a duty. See L.P. v. Oubre, 547 So. 2d 1320 (La. App. 1989) (court held Boy Scouts of America and local council owed individual scouts a duty of care to protect them from sexual abuse); Wallace v. Boys Club of Albany, Georgia, Inc., 211 Ga. App. 534, 439 S.E.2d 746 (1993) (person who undertakes the control and supervision of a child has the duty to use reasonable care to protect the child from molestation). Why not Illinois?
I do not wish to be understood as saying that the Boy Scouts will be found negligent in every case of sexual abuse of a scout. Although I would hold that the Boy Scouts owed Doe a duty of care, Doe still would have to show that the Boy Scouts breached that duty in order to recover. I simply believe that it is both absurd and dangerous for the majority to hold that no duty exists. While I am empathetic toward volunteer groups, my research reveals no case in which the duty analysis for eleemosynary organizations is any different than for civil organizations. Accordingly, I would reverse the entry of summary judgment and allow the case to proceed to trial.