                               Illinois Official Reports

                                       Appellate Court



                         Regions Bank v. Joyce Meyer Ministries, Inc.,
                                  2014 IL App (5th) 130193



Appellate Court           REGIONS BANK, d/b/a Regions Morgan-Keegan Trust, as
Caption                   Independent Administrator of the Estates of Sheri Coleman, Garett
                          Coleman, and Gavin Coleman, Deceased, Plaintiff-Appellant, v.
                          JOYCE MEYER MINISTRIES, INC., a Missouri Nonprofit
                          Corporation, Defendant-Appellee (Christopher Coleman, Defendant).

District & No.            Fifth District
                          Docket No. 5-13-0193

Filed                     August 12, 2014

                           In a wrongful death action against the employer of a man who
Held
                           murdered his wife and two sons after using his work computer for
(Note: This syllabus
                           several months to email death threats to himself, the decedents and his
constitutes no part of the
opinion of the court but employer, the trial court properly dismissed the count filed by the
has been prepared by the administrator of the decedents’ estates under a theory of negligent
Reporter of Decisions retention of the employee, since the complaint lacked sufficient
for the convenience of factual allegations to establish that his continued employment was a
the reader.)               substantial factor in the deaths; however, the counts based on the
                           employer’s negligent undertaking to protect the decedents from
                           threatened harm and the corresponding survival claims were
                           improperly dismissed, because the complaint adequately alleged that
                           the employer failed to perform or negligently performed its voluntary
                           undertaking to investigate the death threats made or received through
                           the employer’s communications systems and equipment and to
                           provide security at decedents’ home, especially when the anticipation
                           of harm to them was objectively reasonable, and therefore, those
                           counts were reinstated and the cause was remanded for further
                           proceedings.

Decision Under            Appeal from the Circuit Court of Monroe County, No. 11-L-14; the
Review                    Hon. Richard A. Aguirre, Judge, presiding.
     Judgment                 Affirmed in part and reversed in part; cause remanded.


     Counsel on               Antonio Romanucci, of Romanucci & Blandin, LLC, of Chicago, for
     Appeal                   appellant.

                              Dennis M. Field, of Strellis & Field, Chtrd., of Waterloo, and S. Greg
                              Pittman and Michael J. King, both of Winters & King, Inc., of Tulsa,
                              Oklahoma, pro hac vice, for appellee.



     Panel                    JUSTICE CATES delivered the judgment of the court, with opinion.
                              Presiding Justice Welch and Justice Chapman concurred in the
                              judgment and opinion.

                                               OPINION

¶1         The plaintiff, Regions Bank, d/b/a Regions Morgan-Keegan Trust, as independent
       administrator of the estates of Sheri Coleman, Garett Coleman, and Gavin Coleman, appeals
       from an order of the circuit court of Monroe County dismissing with prejudice its claims
       against the defendant, Joyce Meyer Ministries, Inc., on the ground that the plaintiff failed to
       state any claim upon which relief could be granted. For the reasons that follow, we affirm in
       part, reverse in part, and remand the case for further proceedings.
¶2         On May 5, 2009, Sheri Coleman and her young sons, Garett Coleman and Gavin Coleman
       (the decedents), were murdered in their home in Columbia, Illinois. Christopher Coleman, the
       husband of Sheri and the father of Garett and Gavin, was charged with and subsequently
       convicted of the murders. He was sentenced to life in prison without the possibility of parole
       for these crimes. On May 5, 2009, and for more than eight years prior, Christopher Coleman
       had been employed in high-level security positions by Joyce Meyer Ministries, Inc. It is
       alleged that in the months leading up to the murders, Coleman used his work computer to email
       death threats directed at himself, the decedents, and Joyce Meyer Ministries, Inc.
¶3         On May 4, 2011, the plaintiff filed a multicount complaint for wrongful death against
       Christopher Coleman, Joyce Meyer Ministries, Inc. (JMM), Joyce Meyer, and Daniel B.
       Meyer. Christopher Coleman has not entered an appearance in this case. Following a short
       period for discovery on the issue of personal jurisdiction, Joyce Meyer and Daniel Meyer were
       voluntarily dismissed from the case pursuant to a stipulation by the parties.
¶4         JMM entered its appearance and filed a motion to dismiss the counts against it pursuant to
       section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), on the
       ground that the plaintiff failed to state any claim upon which relief could be granted. The trial
       court granted JMM’s motion, but permitted the plaintiff to amend the complaint.
¶5         The first amended complaint contains three counts against JMM. Count III alleges
       wrongful death under a theory of a negligent undertaking to protect the decedents from
       threatened harm. Count IV is the corresponding survival action. Count V is brought under a
       theory of negligent retention of the employment of Christopher Coleman. JMM renewed its

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     motion to dismiss all counts under section 2-615 of the Code for failure to state any claim upon
     which relief could be granted. In the motion, JMM argued that count III should be dismissed
     because it did not allege sufficient facts to establish that JMM undertook to protect the
     decedents from the harmful acts of a third party, and that count V should be dismissed because
     the plaintiff did not allege a logical connection between retaining Christopher Coleman as an
     employee and his murderous acts. After considering the briefs and arguments of counsel, the
     trial court granted JMM’s motion and dismissed counts III, IV, and V of the first amended
     complaint with prejudice.
¶6        On appeal, the plaintiff contends that the trial court erred in dismissing with prejudice its
     claims against JMM. The plaintiff argues that the first amended complaint contains sufficient
     allegations of fact to establish duties owed by JMM to the decedents under theories of a
     voluntary undertaking and negligent retention.
¶7        At the outset, it is important to point out that this case comes to us on the pleadings, and
     that the only issue is whether the plaintiff’s first amended complaint states a claim or claims
     against JMM upon which relief may be granted. A motion to dismiss brought pursuant to
     section 2-615 of the Code challenges the legal sufficiency of the complaint. Marshall v. Burger
     King Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048, 1053 (2006). In considering whether the
     allegations in the complaint are legally sufficient to state a cause of action, we accept as true all
     well-pleaded facts and all reasonable inferences that may be drawn from those facts, and we
     construe the factual allegations in a light most favorable to the plaintiff. Marshall, 222 Ill. 2d at
     429, 856 N.E.2d at 1053. A cause of action should not be dismissed under section 2-615 unless
     it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recover.
     Marshall, 222 Ill. 2d at 429, 856 N.E.2d at 1053. An order dismissing a cause of action with
     prejudice under section 2-615 is reviewed de novo. Marshall, 222 Ill. 2d at 429, 856 N.E.2d at
     1053.
¶8        The claims against JMM are negligence-based. In order to state a cause of action for
     negligence, a complaint must allege sufficient facts to establish the existence of a duty of care
     owed by the defendant to the plaintiff, a breach of the duty, and an injury proximately caused
     by the breach. Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 421, 804 N.E.2d 519,
     526 (2004). Whether a duty exists is a question of law for the court to decide. Bajwa, 208 Ill. 2d
     at 422, 804 N.E.2d at 526. Whether a duty was breached and whether the breach was a
     proximate cause of the plaintiff’s injuries are questions of fact for a jury to decide. Bajwa, 208
     Ill. 2d at 422, 804 N.E.2d at 526.
¶9        Initially, we consider whether the factual allegations in count III are sufficient to establish
     that JMM voluntarily undertook to protect the decedents from the criminal acts of a third
     person. Ordinarily, a person has no affirmative duty to protect another from harmful or
     criminal acts by a third person. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 228,
     745 N.E.2d 1166, 1178 (2000). Exceptions to this general principal have been recognized: (1)
     when the parties are in a “special relationship,” i.e., common carrier-passenger,
     innkeeper-guest, business invitor-invitee, or voluntary custodian-protectee, and the harmful or
     criminal acts were reasonably foreseeable; (2) when an employee is in imminent danger and
     this is known to the employer; (3) when a principal fails to warn an agent of an unreasonable
     risk of harm involved in the agency; and (4) when there is negligence in the performance of a
     voluntary undertaking. Petersen v. U.S. Reduction Co., 267 Ill. App. 3d 775, 779, 641 N.E.2d
     845, 848 (1994). The voluntary-undertaking exception is at issue here. In Illinois, this

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       exception has been narrowly construed and the duty imposed is limited by the extent of the
       undertaking. Wakulich v. Mraz, 203 Ill. 2d 223, 242-43, 785 N.E.2d 843, 855 (2003); Pippin v.
       Chicago Housing Authority, 78 Ill. 2d 204, 209, 399 N.E.2d 596, 599 (1979).
¶ 10        Sections 323 and 324A of the Second Restatement of Torts (Restatement (Second) of Torts
       §§ 323, 324A (1965)), both of which have been recognized in Illinois, address liability based
       on a voluntary undertaking to render services to another. See Frye v. Medicare-Glaser Corp.,
       153 Ill. 2d 26, 32, 605 N.E.2d 557, 560 (1992); Pippin, 78 Ill. 2d at 210-11, 399 N.E.2d at
       599-600.
¶ 11        Section 323 of the Restatement provides as follows:
                    “One who undertakes, gratuitously or for consideration, to render services to
                another which he should recognize as necessary for the protection of the other’s person
                or things, is subject to liability to the other for physical harm resulting from his failure
                to exercise reasonable care to perform his undertaking, if
                    (a) his failure to exercise such care increases the risk of such harm, or
                    (b) the harm is suffered because of the other’s reliance upon the undertaking.”
                Restatement (Second) of Torts § 323 (1965).
¶ 12        Section 324A of the Restatement provides as follows:
                    “One who undertakes, gratuitously or for consideration, to render services to
                another which he should recognize as necessary for the protection of a third person or
                his things, is subject to liability to the third person for physical harm resulting from his
                failure to exercise reasonable care to protect his undertaking, if
                    (a) his failure to exercise reasonable care increases the risk of such harm, or
                    (b) he has undertaken to perform a duty owed by the other to the third person, or
                    (c) the harm is suffered because of reliance of the other or the third person upon the
                undertaking.” Restatement (Second) of Torts § 324A (1965).
¶ 13        A plaintiff may allege nonfeasance or misfeasance in the performance of a voluntary
       undertaking. Bourgonje v. Machev, 362 Ill. App. 3d 984, 996, 841 N.E.2d 96, 107 (2005). In
       the case of “nonfeasance,” a plaintiff must allege facts to indicate (a) that the defendant
       voluntarily undertook to render services necessary for the protection of another person or took
       charge of another person’s protection; (b) that the defendant failed to exercise reasonable care
       in that it wholly failed to perform the undertaking; and (c) that harm was suffered because of
       the other person’s reliance on the defendant’s undertaking. See Bourgonje, 362 Ill. App. 3d at
       996, 841 N.E.2d at 107. In the case of “misfeasance,” a plaintiff must allege facts to indicate
       (a) that the defendant voluntarily undertook to render services necessary for the protection of
       another person or took charge of another person’s protection; (b) that the defendant negligently
       performed the undertaking; and (c) that the defendant’s negligence increased the risk of the
       harm to the other person or that the plaintiff suffered harm due to his reliance on the
       undertaking. See Wakulich, 203 Ill. 2d at 244-46, 785 N.E.2d at 856-57; Doe-3 v. White, 409
       Ill. App. 3d 1087, 1097-99, 951 N.E.2d 216, 227-29 (2011).
¶ 14        Mindful of these rules and legal principles, we consider the complaint at issue. The first
       amended complaint sets out a series of factual allegations that are generally applicable to all
       counts, followed by allegations specific to each count and theory of liability. The complaint is
       21 pages in length and contains 80 paragraphs. For purposes of this decision, we will
       consolidate and summarize the basic allegations rather than restate them verbatim.

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¶ 15       The complaint generally alleges that JMM employed Christopher Coleman in high-level
       security positions from November 2000 through May 5, 2009; that during the period of
       Coleman’s employment, JMM enacted an electronic communications policy (E-Comm policy)
       which governed its employees’ use of its electronic communications systems and equipment;
       that JMM’s E-Comm policy prohibited its employees from sending or viewing inappropriate,
       obscene, harassing, or abusive images, language, and materials on its electronic
       communications systems and equipment; that pursuant to the E-Comm policy, JMM reserved
       the right to monitor and inspect communications sent, received, and stored on its electronic
       communications systems and equipment; and that JMM “management” had the sole discretion
       to take disciplinary action against the violators of said policy. It also alleges that from
       November 14, 2008, to May 5, 2009, Christopher Coleman created and transmitted via email
       harassing notes and death threats directed to himself, the decedents, and JMM, using his
       company-issued computer; that from November 14, 2008, to May 5, 2009, Christopher
       Coleman created harassing notes and death threats directed to himself and the decedents,
       which were hand-delivered to the mailbox at the Colemans’ home; and that prior to May 5,
       2009, JMM was aware that death threats had been made against Christopher Coleman and the
       decedents, and that the death threats had been delivered to the Colemans’ home and through
       Christopher Coleman’s email account.
¶ 16       The factual allegations regarding the duties voluntarily undertaken by JMM are set forth in
       count III. Count III alleges that JMM recognized or in the exercise of reasonable care should
       have recognized that in light of life-threatening email, the provision of security services was
       necessary for the protection of the decedents. It further alleges that JMM undertook,
       gratuitously or for consideration, to provide security services for the protection and safety of
       the decedents, which included:
                    (a) monitoring, accessing, and inspecting communications sent, received, and
                stored on its electronic communications equipment, and conducting any necessary
                follow-up investigation regarding the content and source of those communications;
                    (b) taking disciplinary actions against the violators of its policy;
                    (c) stationing security at or around the decedents’ residence;
                    (d) installing a security alarm and surveillance equipment at the decedents’
                residence; and
                    (e) monitoring and/or informing the local authorities of the numerous death threats
                made against the decedents.
¶ 17       Count III further alleges that JMM breached one or more of the aforementioned duties in
       that it:
                    (a) failed to monitor, access, inspect, disclose, and conduct a follow-up
                investigation on the numerous death threats made against the decedents that were
                transmitted, received, or stored on JMM electronic communications equipment;
                    (b) failed to take necessary disciplinary action, including termination, regarding the
                death threats made against the decedents that were transmitted, received, or stored on
                JMM electronic communications equipment;
                    (c) failed to provide security in and around the decedents’ residence after numerous
                death threats were made against the decedents;



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                    (d) failed to monitor the decedents’ residence and/or failed to install surveillance
                equipment in or around the residence after numerous death threats were made against
                the decedents; and
                    (e) failed to inform law enforcement authorities of the numerous death threats made
                against the decedents.
¶ 18        Count III also alleges that JMM’s negligent performance of one or more of the
       aforementioned voluntary undertakings resulted in an increased risk of harm to the decedents,
       and that JMM’s failure to perform one or more of the aforementioned voluntary undertakings
       resulted in harm to the decedents who, in reliance upon JMM’s promises, failed to take
       precautions for their own protection.
¶ 19        When pared to the core, count III alleges that JMM voluntarily undertook to investigate the
       source of the death threats directed at the decedents, which were made or received through
       JMM’s electronic communications systems and equipment, and to provide security at the
       decedents’ home for the protection of the decedents; that JMM failed to perform or negligently
       performed these undertakings; and that JMM’s negligent acts or omissions increased the risk
       of danger to the decedents. In our view, the factual allegations and the reasonable inferences
       therefrom, when liberally construed and taken in a light most favorable to the plaintiff, are
       sufficient to establish a duty of care owed by JMM to the decedents under a
       voluntary-undertaking theory.
¶ 20        We note that the trial court struggled with the “reasonable foreseeability” component of the
       duty analysis. In comments to the parties from the bench, the trial judge stated that in this
       particular case, he could not “concede in any way where this ministry is responsible for not
       having foreseen the brutal murder of this family by one of their employees.” In order to satisfy
       the foreseeability component, it is not necessary that a defendant must have foreseen the
       precise nature of the harm or the exact manner of occurrence; it is sufficient if, at the time of
       the defendant’s action or inaction, some harm could have been reasonably foreseen. Marshall,
       222 Ill. 2d at 442, 856 N.E.2d at 1060-61; Hernandez v. Rapid Bus Co., 267 Ill. App. 3d 519,
       641 N.E.2d 886 (1994). In this case, the threats of harm were specific and targeted against the
       decedents. Given the gravity of the threats, it was objectively reasonable to anticipate that
       some harm might come to them. After reviewing the first amended complaint, we find that
       there are adequate factual allegations to establish that JMM was aware that specific death
       threats had been made against the decedents using JMM email communications, and that JMM
       voluntarily undertook to investigate those threats and to protect the decedents from the
       threatened harm.
¶ 21        In addition, we find that count III adequately alleges that JMM’s negligent performance of
       its voluntary undertaking increased the risk of harm to the decedents. Accepting the allegations
       as true, it may be reasonable to infer that JMM increased the risk of harm to the decedents by
       failing to conduct an adequate investigation of its own communications systems and
       equipment, essentially electing to remain ignorant of facts concerning the source of the threats,
       when a reasonable person may have conducted an internal investigation of its systems and
       equipment. It may also be reasonable to infer that Sheri Coleman did not have an equal and
       independent means to investigate the threats, and that Sheri Coleman, relying on JMM’s
       promises to investigate the threats and to provide security, did not take steps to protect herself
       and her children from the threatened harm.


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¶ 22       Count III contains sufficient allegations of fact to state a cause of action for wrongful death
       based on a voluntary-undertaking theory and should not have been dismissed. It follows that
       count IV, the corresponding survival claim, should not have been dismissed. We pause here to
       note that we are only deciding a procedural issue and that neither party should take our
       resolution of this issue as a measure of the merits of the case. The allegations in count III are
       broad and the plaintiff will have to present evidence to support them. If the plaintiff can
       produce evidence to support its factual allegations, the finder of fact will be asked to determine
       whether JMM breached a duty it undertook to provide to the decedents, and if so, whether the
       breach was a proximate cause of the harm.
¶ 23       We next consider whether count V states a cause of action. Count V is captioned “negligent
       retention.” It alleges that JMM knew or should have known that Christopher Coleman had a
       particular unfitness for his security position so as to create a danger of harm to third persons,
       including the decedents; that despite knowledge of Coleman’s particular unfitness, JMM
       retained Coleman as an employee; and that the retention of Coleman as an employee was a
       proximate cause of the death of the decedents.
¶ 24       There are reported cases in which Illinois courts have recognized that an employer may be
       held liable for the negligent hiring, supervision, or retention of an employee who intentionally
       harmed someone while acting outside the scope of his employment. See, e.g., Kigin v.
       Woodmen of the World Insurance Co., 185 Ill. App. 3d 400, 541 N.E.2d 735 (1989); Malorney
       v. B&L Motor Freight, Inc., 146 Ill. App. 3d 265, 496 N.E.2d 1086 (1986); Gregor v. Kleiser,
       111 Ill. App. 3d 333, 443 N.E.2d 1162 (1982); Easley v. Apollo Detective Agency, Inc., 69 Ill.
       App. 3d 920, 387 N.E.2d 1241 (1979). In Kigin, this court found that the plaintiff’s complaint
       established a basis under section 317 of the Second Restatement of Torts (Restatement
       (Second) of Torts § 317 (1965)) for imposing liability on the employer of a camp counselor
       who molested a young camper. Kigin, 185 Ill. App. 3d at 402-03, 541 N.E.2d at 736.
¶ 25       Section 317 of the Second Restatement of Torts states, in pertinent part, that an employer is
       under a duty to exercise reasonable care to control his employee while the employee is acting
       outside the scope of his employment in order to prevent his employee from intentionally
       harming others, if (a) the employee is on the employer’s premises or using a chattel of the
       employer and (b) the employer knows or has reason to know that he has the ability to control
       his employee, and knows or should know of the necessity and opportunity for exercising
       control over the employee. Restatement (Second) of Torts § 317 (1965). The comments in this
       section state that the employer is required to exercise his authority as a master to prevent his
       employees from misusing chattels which he has entrusted to them for use as employees of his
       company, and that this is true even when the employee is using the chattels for his own
       purposes and, therefore, outside the scope of his employment. See Restatement (Second) of
       Torts § 317 cmt. b (1965).
¶ 26       After reviewing the allegations in count V, we conclude that it lacks sufficient factual
       allegations to establish that the negligent retention of Christopher Coleman as a JMM
       employee was a substantial factor in bringing about the harm to the decedents. Count V does
       not set forth sufficient factual allegations to establish that Coleman’s misuse of his position of
       employment was a substantial factor in bringing about the harm to the decedents. Nor does it
       set forth sufficient allegations of fact to establish that Coleman’s misuse of the employer’s
       chattel, a computer, was a substantial factor in bringing about the harm to the decedents. The
       allegations that Christopher Coleman was particularly unfit for his management position in the

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       security department, that his particular unfitness created a danger of harm to third persons,
       including the decedents, and that JMM breached its duty in retaining Coleman when it should
       have reasonably appreciated that Coleman’s continued employment posed a risk of harm to the
       decedents and others are conclusions unsupported by any specific facts. Thus, count V does
       not fit within the parameters of section 317 of the Second Restatement of Torts, and the
       above-cited cases are not comparable. For the reasons stated, we find that count V fails to state
       a claim upon which relief may be granted and that the trial court did not err in dismissing it.
¶ 27        Accordingly, the circuit court’s decision to dismiss count V with prejudice is affirmed, and
       its decision to dismiss counts III and IV is reversed. Counts III and IV are hereby reinstated and
       the cause is remanded for further proceedings consistent with this decision.

¶ 28      Affirmed in part and reversed in part; cause remanded.




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