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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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