dissenting:
I respectfully dissent.
The Veterans of Foreign Wars of the United States (VFW) was created as a corporation by an act of Congress (36 U.S.C. §111 et seq. (1988)). The following powers were given to the VFW under that act:
“The corporation created by this chapter shall have the following powers: To have perpetual succession with power to sue and be sued in courts of law and equity; to receive, hold, own, use, and dispose of such real estate, personal property, money, contract, rights, and privileges as shall be deemed necessary and incidental for its corporate purposes; to adopt a corporate seal and alter the same at pleasure; to adopt, amend, apply, and administer a constitution, bylaws, and regulations to carry out its purposes, not inconsistent with the laws of the United States or of any State; to adopt, and have the exclusive right to manufacture and use such emblems and badges as may be deemed necessary in the fulfillment of the purposes of the corporation; to establish and maintain offices for the conduct of its business; to establish, regulate, or discontinue subordinate State and Territorial subdivisions and local chapters or posts; to publish a magazine or other publications, and generally to do any and all such acts and things as may be necessary and proper in carrying into effect the purposes of the corporation.” (36 U.S.C. §114 (1988).)
The above language clearly grants the VFW the power to regulate its local chapters, and this power is alleged in paragraph 5 of count I of plaintiff’s complaint. Therefore, if the VFW is negligent in its regulation of a local post, the national organization could be held responsible. The question is not whether the VFW was negligent in failing to regulate the local post’s raffle, but rather, whether the VFW could have done anything to regulate the use. of volunteers such as William Qualls. If so, can the VFW be held vicariously liable for the tort of Qualls under a theory of respondeat superior?
Under the doctrine of respondeat superior, an employer is liable for an employee’s torts committed within the scope of that employment. In determining the scope of employment, the focus is generally upon the issues of whether the employee’s act was conducted within the constraints of authorized time and location of employment and whether the conduct was actuated at least in part by a purpose to further the employer’s business. (Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 1089, 481 N.E.2d 840, 843.) The instant case is different in that Qualls was not an employee, but rather, a volunteer for a patriotic organization; however, other jurisdictions have found that the status of a negligent person as a volunteer worker for a charitable organization did not preclude a finding that a master-servant relationship existed between the organization and the volunteer. (Baxter v. Morningside, Inc. (1974), 10 Wash. App. 893, 521 P.2d 946.) Additionally, section 225 of the Restatement (Second) of Agency provides:
“One who volunteers services without an agreement for or expectation of reward may be a servant of the one accepting such services.” Restatement (Second) of Agency §225 (1958).
In the instant case, William Qualls volunteered to help sell tickets for a raffle which was sponsored by Post 2228. In the course of his selling these tickets, Qualls went to several establishments that served alcoholic beverages. Qualls became intoxicated and was involved in a motor vehicle accident. Under these circumstances, William Qualls was acting within the authorized time and location of his volunteer activities for the VFW. His drinking alcohol was actuated at least in part by the purpose of furthering the VFW’s business, as Qualls was attempting to sell raffle tickets to help a VFW member in distress.
Another aspect of the same duty question involving the statutory power of the VFW to regulate its local posts is the question of the concurrence of the right to control or the power to control the actions of another and the duty that may flow from that power, whether or not that power is exercised. In the instant case, plaintiff has alleged, as noted above, that the VFW had the power to regulate its component chapters stated in a very broad manner. This statutory grant of authority is analogous to the situation one finds in the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) wherein the right or power to control various operations residing in a party "having charge of” the work involved may result in imposition of liability under the Act regardless of whether that party exercised its right or power of control. In general, the Structural Work Act extends liability to those parties having some responsibility and opportunity to prevent dangerous work methods at construction sites without regard to their having a direct supervisory connection with the particular task that gave rise to the injury. (Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 440 N.E.2d 973.) An example of duty following the ability to exercise supervisory or regulatory power, whether exercised or not, is found in Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 410 N.E.2d 258, in which the court held that a party may be liable under the Structural Work Act as “having charge of” the work at a construction site when that party knew, or in the exercise of ordinary care could have discovered, another party’s violation of the Act, which conduct proximately caused the worker’s injury. In the instant case, the VFW had a statutory grant of power over its respective chapters to regulate or prohibit the type of conduct which, as alleged by plaintiff, caused the injuries. Whether defendant VFW chose to exercise that power is not determinative of this question concerning the existence of its duty to regulate or prohibit an activity which was reasonably foreseeable as noted in this dissent.
The majority claims that plaintiff has failed to allege that the VFW had a general duty to regulate the local post’s use of volunteers or supervise the activities of any volunteers. In fact, plaintiff’s complaint does allege in paragraph 5, as noted above, that the VFW had the power to regulate and alleges in paragraph 13(d) that the VFW failed to so regulate the local post. As the majority quite correctly noted, a motion to dismiss for failure to state a cause of action should not be granted by the trial court if that complaint states a good cause of action, even if not the one intended by plaintiff. (Pelham v. Griesheimer (1981), 93 Ill. App. 3d 751, 417 N.E.2d 882.) In this instance, the majority is affirming exactly that kind of dismissal in that plaintiff has adequately pleaded the opportunity, ability and the duty of the VFW to regulate its local posts in their engaging in this type of activity, even though the clarity of the pleading is diminished by the tangential issue of the legality of the raffle. The trial court’s dismissal of the count and this court’s affirming that dismissal erroneously precludes the pleading of this clearly existent cause of action.
Defendant argues that the facts in this case do not establish such a relationship between plaintiff and the VFW so as to impose a duty owed by the VFW to plaintiff because William Qualls’ actions and the resulting injuries were not foreseeable. In determining whether a duty exists for purposes of a negligence action, a court must apply a foreseeability test that brings within the scope of defendant’s liability any injury which is objectively reasonable to occur, and not everything which might conceivably occur. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 466, 343 N.E.2d 465, 471; Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 499, 519 N.E.2d 10, 14.) Contrary to the VFW’s argument, this court should find that the injuries sustained by plaintiff are within the category of those objectively reasonable to occur. It is objectively reasonable to foresee that one who volunteers to sell raffle tickets could undertake such a task at local taverns and at the same time consume enough alcohol to become sufficiently intoxicated to cause an automobile accident involving serious injury and death.
If plaintiff proves that the VFW was negligent in regulating Post 2228’s use of volunteers, the jury might find that William Qualls’ intervening tort is foreseeable and that it was the VFW’s failure to regulate its local post, as required by statute, that was the proximate cause of plaintiff’s injuries. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle a plaintiff to recover. (Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill. 2d 128, 133, 361 N.E.2d 575, 578.) Upon consideration of the pleadings, the trial court erred in dismissing count I of plaintiff’s third amended complaint, and the majority has erred in affirming this dismissal. I would reverse on the basis that a cause of action has been pleaded, and remand the cause for further proceedings.