Brooks v. MV Transp., Inc.

TARA BROOKS, ELOISE BROOKS and ROBERT BROOKS,both individually and as Special Administratorsof the Estate of Tommie Moore, deceased, Plaintiffs, v. MV TRANSPORTATION, INC. a/k/a MV TRANSPORTATION, INC.OF CALIFORNIA, Defendant.

Case No. 18-cv-3940

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

January 15, 2019

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiffs Tara Brooks, Eloise Brooks, and Robert Brooks ("Plaintiffs"), individually and as Special Administrators of the Estate of Tommie Moore, bring suit against Defendant MV Transportation, Inc. a/k/a MV Transportation, Inc. of California ("Defendant") for negligence. Currently before the Court is Defendant's motion to dismiss Plaintiffs' complaint for failure to state a claim [9]. For the reasons explained below, Defendant's motion [9] is granted.

I. Background¹

Plaintiffs are the adult siblings and sole descendants of Tommie Moore ("Moore"), who was violently assaulted and killed by Roger Scoby ("Scoby") on March 30, 2017. At the time of Moore's death, Scoby was employed by Defendant to provide patient care transportation services. Moore met Scoby when he provided her with patient care transportation services and developed apersonal relationship with him. Scoby killed Moore in her home, at a time when Scoby was not on duty working for Defendant. See [15] at 1-2.

In 1993 (many years before he was hired by Defendant), Scoby was convicted of criminal trespass to vehicle and sentenced to probation. In 1994, Scoby was convicted of armed robbery and served ten years in prison. On information and belief, Defendant performed a background check on Scoby prior to hiring him. Therefore, the complaint alleges, Defendant knew or should have known of Scoby's criminal convictions and propensity for violence. Further, the complaint alleges, Defendant knew or should have known that Scoby was particularly unfit to perform patient care transportation services and be exposed to members of the general public and that allowing Scoby to perform such services "would allow and permit personal relationships to develop and expose members of the general public *** to physical harm." [1-1] at 2.

According to the complaint, Defendant knowingly allowed and permitted Scoby to provide patient care transportation services to Moore and to develop and maintain a personal relationship with her, exposing her to the risk of bodily harm and ultimately leading to her death. More particularly, the complaint alleges that Defendant committed the following negligent acts, which proximately caused Moore's death:

a. Failing to supervise and control its employee to ensure that he was not a danger to members of the general public;

b. Permitting and allowing an employee to remain in a position which required interaction with members of the general public, when Defendant knew that the employee had a history of criminal and violent behavior;

c. Failing to provide any warning of the employee's history of criminal and violent behavior;d. Failing to institute procedures and rules to prevent or prohibit employees from establishing personal relationships with individuals who received patient care transportation services;

e. Failing to monitor and supervise the activities of employees who were known to have a history of criminal and violent behavior;

f. Allowing an employee with a history of criminal and violent behavior to hold a position in which he interacted and communicated with members of the general public; and

g. Failing to perform proper pre-hiring and employment-placement procedures.

Plaintiffs bring this negligence action against Defendant as the Special Administrators of Moore's estate and as her next of kin. Plaintiffs filed their complaint in the Circuit Court of Cook County, Illinois. Defendant removed the case to federal court on the basis of diversity jurisdiction. See [1]. Currently before the Court is Defendant's motion to dismiss Plaintiffs' complaint for failure to state a claim [9].

II. Legal Standard

A Rule 12(b)(6) motion challenges the legal sufficiency of the complaint. For purposes of a motion to dismiss under Rule 12(b)(6), the Court "'accept[s] as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff.'" Calderon-Ramirez, 877 F.3d at 275 (quoting Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016)). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint must allege facts which, when taken as true, "'plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level.'" Cochran v. Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (quoting EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007)). TheCourt reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

III. Analysis

"Because this is a diversity case, state substantive law controls, which means we will attempt to interpret and apply Illinois law." Zahn v. North American Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016) (citing Blood v. VH-1 Music First, 668 F.3d 543, 546 (7th Cir. 2012)). Plaintiffs' complaint is premised on a theory of negligence. "To prove a defendant's negligence under Illinois law, a plaintiff must establish 'the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.'" Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1022 (7th Cir. 2018) (quoting Buechel v. United States, 746 F.3d 753, 763-64 (7th Cir. 2014)). "Whether a duty is owed presents a question of law for the court to decide, while breach of duty and proximate cause present questions of fact for the jury to decide." Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011); see also Hutchison, 910 F.3d at 1022.

Disposition of the instant motion turns on the "duty" element of the negligence claim. "The general rule in Illinois tort law is that one person has no duty to prevent the criminal acts of another." Anicich v. Home Depot U.S.A., Inc., 852 F.3d 643, 649 (7th Cir. 2017) (citing Simmons v. Homatas, 925 N.E.2d 1089, 1099 (Ill. 2010)); see also Hills v. Bridgeview Little League Ass'n, 745 N.E.2d 1166, 1178 (Ill. 2000). "However, the law recognizes at least four exceptions to this rule: (1) when the parties are in a special relationship and the harm is foreseeable; (2) when an employee is in imminent danger and this is known to the employer; (3) when a principal fails to warn his agent of an unreasonable risk of harm involved in the agency; and (4) when any party voluntarily or contractually assumes a duty to protect another from the harmful acts of a thirdparty." MacDonald v. Hinton, 836 N.E.2d 893, 898 (Ill. App. 2005). The second exception plainly does not apply because Moore was not Defendant's employee; the third does not apply because Moore was not Defendant's agent; and the fourth does not apply because there are no allegations in the complaint that Defendant contractually agreed to protect Moore from the harmful acts of third parties. Thus, the only one of the four exceptions that requires extensive analysis is the first, involving a special relationship.

Illinois courts have "recognized a duty to a third party to control the individual who is the source of the harm when a defendant has a special relationship with that person, such as *** a master-servant or employer-employee relationship." Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1098 (Ill. 2012) (citing RESTATEMENT (SECOND) OF TORTS § 317 (1965)); see also Bogenberger v. Pi Kappa Alpha Corporation, Inc., 104 N.E.3d 1110, 1121 (Ill. 2018) (citing Simpkins, 965 N.E.2d at 1098). In particular, "employers have a duty to act reasonably in hiring, supervising, and retaining their employees" to prevent them from harming others. Anicich, 852 F.3d at 649 (citing Van Horne v. Muller, 705 N.E.2d 898, 904 (Ill. 1998); Platson v. NSM, America, Inc., 748 N.E.2d 1278, 1284 (Ill. App. 2001)).

Plaintiffs clarify in their response brief that their "duty" theory is based on RESTATEMENT (SECOND) OF TORTS § 317 (1965), which provides:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and(ii) knows or should know of the necessity and opportunity for exercising such control.

Illinois courts have adopted this section of the Restatement and "used it to limit employers' liability for negligent hiring, supervision, or retention" that results in an employee harming a third person. Anicich, 852 F.3d at 650. In particular, they "appl[y] this rule to avoid holding an employer liable simply because the tortfeasor and the victim know each other through work." Id. at 650-51 (citing MacDonald, 836 N.E.2d at 901-02; Carter v. Skokie Valley Detective Agency, Ltd., 628 N.E.2d 602, 605-06 (Ill. App. 1993); Escobar v. Madsen Const. Co., 589 N.E.2d 638, 638-40 (Ill. App. 1992)).

The Court agrees with Defendants that, under the facts pled in the controlling complaint, Plaintiff fails to state a claim for negligence based on section 317 or the line of Illinois cases applying that provision. Plaintiffs concede that Scoby was acting outside the scope of his employment when he killed Moore. See [15] at 1-2 ("Scoby was not officially working at the time of the deadly assault"); see also Bremen State Bank v. Hartford Acc. & Indem. Co., 427 F.2d 425 (7th Cir. 1970) (recognizing that,...