ALICIA FREEMAN v. THE STATE OF ILLINOIS (2003)

ORDER

This cause comes before the Court upon Respondent's Motion for Summary Judgment, Claimant's Response and Respondent's Reply. The parties have submitted briefs and arguments with pertinent exhibits.

Oral argument was duly scheduled and notice given the parties. Claimant was detained and unable to appear but sent a representative to request a continuance well after the time for argument had passed. (The transcript indicates Claimant was accorded the courtesy of a delay to allow for his expected arrival.) Claimant's representative was advised a continuance would not be granted but that the Court would consider written submissions if deemed necessary by Claimant. Claimant subsequently requested additional oral argument asserting prejudice would result for unstated reasons. The request was denied as the Court was presented no new facts or legal issues beyond those previously addressed in the briefs and motions of record prior to oral argument and no specific prejudice was demonstrated. (No presentations of new issues or evidence were made at oral argument.)

Procedural History

The Claimant filed a single-count negligence Complaint against the Respondent., the State of Illinois, the University of Illinois, and the Board of Governors University of Illinois, (hereinafter collectively University) for a November 9, 1994 incident that allegedly occurred at the University of Illinois in Chicago. The Complaint alleges that Claimant was employed by Allied Security Inc. (hereinafter Allied) and was assigned by Allied to the University's Campus Housing Department in Chicago, and while assigned there she was sexually molested by Benjamin Addison, an Allied Security guard. Claimant alleged that University: negligently hired workers with known or reasonably known, deviant and violent tendencies; failed to adequately screen and check the backgrounds of employees by and through its agents or employees; failed to establish proper procedures for screening and hiring employees; and were otherwise careless or negligent proximately causing injury to Claimant. (Complaint, paragraph 6, pg. 2).

University's answer denies all allegations of Claimant's Complaint as to its liability and proximate cause of her injury.

Claimant was deposed on June 13, 2000.

University entered into a contract with Allied Security in January, 1993 to provide security services at its West and East Campus in Chicago, Illinois which was in full force and effect on the date of Claimant's alleged injury. Claimant was employed by Allied. Proofs are of record as to Claimant's employment, the contract between Allied and University and Claimant's full deposition transcript.

University seeks summary judgment upon the facts adduced in Claimant's deposition, the contract between University and Allied for security services and proofs of Claimant's and Benjamin Addison's employment by Allied.

University alleges the proofs of record and pleadings cannot support a legally cognizable claim of negligence against University.

Claimant's Complaint relies upon the existence or imputed existence of an employment contract rather than a contract with an independent contractor between University and Allied. She also asserts that Benjamin Addison is an agent or servant of University under applicable law. Claimant further submits that the determination of the legal classification of the parties and their respective business relationships are matters of fact which may not be considered on a Motion for Summary Judgment.

Facts/Claimant's Deposition

Claimant's Deposition Claimant was employed by Allied on May 6, 1994. She submitted to a background check by Allied for the purpose of determining any prior criminal history which was Allied's requirement for placement at University. After screening, Claimant was assigned by Allied to work at University on general patrol. She was headquartered at the dormitories. On November 9, 1994, Claimant had been an employee of Allied for some six months and assigned only to University premises. She advised her supervisor, an Allied employee, of her intent to take her scheduled lunch break between 11:00 p.m. and 11:30 p.m. in the women's locker room. Claimant stated she proceeded to the basement level of the dormitory where the Allied women's locker room was located and took a nap on a lounge. She locked the door as was procedure and was awakened some 30 minutes later to find Benjamin Addison, an Allied employee, standing over her exposing himself and fondling Claimant. Claimant sprang from her prone posture on the lounge and chased Addison up the stairs to the landing and security desk manned by Claimant's Allied supervisor.

Claimant reported the attack to Ida Washington, her Allied boss and Ms. Washington called law enforcement authorities and for additional backup from another Allied supervisor who assisted in apprehending and subduing Addison. Addison was arrested and taken into police custody. Claimant was given aid and comfort by her Allied cohorts and gave statements to law enforcement for Addison's prosecution. Addison was subsequently convicted.

Claimant refused medical treatment immediately after the incident. Claimant received one week's paid leave from Allied following the attack. She testified that she suffered emotional upset, sleep disturbance and feelings of anger and distrust toward men.

Claimant alluded to the cruel irony of such an assault by a fellow Allied security officer while in the performance of her duties as a protector of other people's children at University. There is no question that Claimant is dedicated to her chosen profession and believed her employment by Allied at University offered some degree of personal safety as a result of the requisite credentials for Allied employees who sought service on campus. Claimant was the victim of the very criminal acts she worked to prevent at the hands of a fellow employee.

Claimant testified she had not seen Addison before 9:30 p.m. on November 9, 1999. She believed he was an Allied employee by his clothing, a new uniform. She also believed Addison had arrived at 9:30 p.m. for an Allied shift which began at 7:00 p.m. Claimant noted she had observed Addison's uniform was pinned rather than hemmed and thought he was newly hired. She subsequently confirmed her speculation as to Addison's employment and its commencement on November 9, 1999.

Claimant testified that she was assigned by Allied to security duties at a True Value warehouse after returning to work at the end of her paid leave. It is unclear whether Claimant resigned or was terminated by Allied but Claimant states she felt no confidence in her employer due to the attack and sought other employment as a security officer. She subsequently became an employee of the U.S. Postal Service and has been employed in various security officer positions continually since the incident at issue.

Claimant testified that she believed she was hired by Allied for the specific purpose of placement at University based upon her particular qualifications. She was emphatic that her completion of 100 hours of training (at her own expense) for security service and her spotless criminal record (confirmed by a required background check) were requirements for placement at University by her employer, Allied. She stated her personal knowledge that other allied clients did not require similar qualifications of Allied employees working upon their respective premises. (Dep. @ pgs. 50-51). While Claimant had no personal knowledge of the explicit terms of the contract between Allied and University, she was clearly aware of the requirements of special training and criminal background checks for employees of Allied to serve at University.

Claimant stated she became aware that Addison was hired by Allied and placed at University despite having a criminal record which should have precluded him from working at University if Allied had followed its contract with University. Claimant learned of Addison's prior criminal record in the process prosecution of her assault. She directly attributed her injury to Allied's conduct. (Dep. @ pgs. 48-50).

The exhibits of record support Claimant's statements that Allied breached its contract with University by failing to obtain a criminal background check before placing Addison as a security officer on University premises. The Claimant's Exhibits indicate a report on Addison's criminal history from the Illinois State Police Division of Forensic Services and Identification was not received by Allied until at least January 18, 1995. Proper compliance by Allied would have prevented Addison from working at University.

Claimant testified that during her employment by Allied at University she was at all times under supervision of Allied employees. She had no knowledge of development or implementation of policy, procedure or administrative practices of University beyond required submission of reports by Allied to University. Claimant had no routine interaction with University employees. Certain daily routine reports were tendered by Claimant's Allied supervisor to unspecified University personnel and the Allied supervisor was apparently required to report unusual incidents (i.e., Claimant's assault) to unspecified University personnel.

Claimant testified that a female resident advisor living in the dormitory came to the security desk after the assault to express her personal concern for Claimant's welfare. No testimony was adduced to infer that the resident advisor (apparently a senior or graduate student) had any authority to act for University or direct Allied concerning Claimant's issues.

Claimant has not filed a bill of Particulars with her Complaint. No medical costs were incurred per her testimony and no lost wages accrued contrary to her verified Complaint at paragraph 7. Claimant further testified she had no knowledge of filing or attempting recovery under the Workmen's Compensation Act. She took no other action for recovery against Addison personally nor Allied for the injury claimed.

Claimant did not recall the payor on her pay checks while employed at Allied. The Contract between Allied and University provides that Allied is responsible for payment of its employees assigned to duty at University and withholding all applicable taxes.

Additional Facts of Record

Benjamin Addison was hired by Allied on October 27, 1994 and terminated by Allied on November 9, 1994. University asserts that Addison was placed at University by Allied on November 9, 1994 which is consistent with Claimant's testimony that Addison had just begun working on the date of the assault.

Claimant has not testified or alleged exhaustion of remedies against Addison, Allied or any attempt at possible recovery under Workman's Compensation as stated above. She specifically stated she had no knowledge of any tort feasor(s) other than Allied and Addison. (Dep. @ pgs. 50-51).

Respondent's Exhibit B indicates Claimant was discharged by Allied on March 27, 1995 due to lateness. Claimant states she simply decided she would not return to work at Allied and sought other employment. Claimant was employed by Allied for 10 months, 2 weeks. Respondent's Exhibit G indicates Claimant received her work uniforms from Allied on May 4, 1994. Claimant returned her uniforms to Allied on April 4, 1995 per Respondent's Exhibits.

LEGAL ANALYSIS

Claimant's brief argues that Respondent's Motion for Summary Judgment must be denied because:

[I]n essence, the University has retained the right in the agreement to interfere for the purpose of ensuring that Allied employees maintain minimum standards.

Because University retained the right to discharge, which is one of the factors in determining whether an employee or independent contractor relationship exists, it is possible that if the other duties that University reserved for itself are scrutinized, that an employment relationship existed between Allied and the University. Illinois courts have consistently held that the issue of employment versus an independent contractor relationship is not a matter of law but rather an issue for the jury to decide. Ware v. Industrial Comm'n, 318 Ill.App.3d 1117, 1122 (2000).

[B]asic agency law states that any agent of a principal can impute liability to a principal if the agent commits a negligent act, which Allied committed in this case. Additionally, the University reserved enough control, and even kept the right to discharge for itself. Accordingly, an issue of fact existed as to whether Benjamin Addison was an employee of the University precluding summary judgment. (Pgs. 4-5, Claimant's Brief).

Summary judgment is properly granted where the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 607 N.E.2d 1204 (1992); Mobile Oil Corp. v. Maryland Casualty Co.,_288 Ill.App.3d 743, 681 N.E.2d 552 (1st Dist. 1997). The court may entertain motions for summary judgment where the only evidence considered is plaintiff's own deposition testimony. Austin v. St. Joseph's Hospital, 187 Ill.App.3d 891, 543 N.E.2d 932 (1st Dist. 1989). Although a plaintiff need not prove her case at the summary judgment stage of the proceedings, if she fails to present sufficient evidentiary facts to support the elements of her cause of action, then summary judgment in favor of the defendant is proper. Barker v. Eagle Food Centers, Inc., 26 Ill.App.3d 1068, 634 N.E.2d 1276 (2nd Dist. 1994).

Respondent argues summary judgment is appropriate because the Claimant cannot present any evidence that Respondents: (1) were in any way responsible for the negligent hiring of Benjamin Addison, (2) were in any way vicariously liable for the individual actions of Benjamin Addison, and (3) had any duty to protect her from the criminal conduct of third-parties.

The parties agree that as a general rule, one who employs an independent contractor is not liable for the act or omissions of the latter. Rangel v. Brookhaven Constructors, Inc. 307 Ill.App.3d 835, 719 N.E.2d 174 (1st Dist. 1995). Whether a person is an employee or an independent contractor depends on the facts of the particular case. Netzel v. Industrial Commission et al., 286 Ill.App.3d 550, 676 N.E.2d 270 (1st Dist. 1997).

Many factors must be considered in making the determination as to whether an individual is an employee or independent contractor. Wenholdt v. Industrial Commission et al., 95 Ill.2d 76, 447 N.E.2d 404 (1983). The court further noted that although no single factor is determinative, the right to control the manner in which the work is done is the most important factor to be considered. Id.

Claimant argues that in the event of a negligent hiring a company can be held liable for the actions of its agent, even for intentional conduct, despite the fact the agent is an employee or even an independent contractor of the principal citing Strickland v. Communications and Cable of Chicago, Inc., 304 Ill.App.3d 679 (1st Dist. 1999). However, Strickland granted summary judgment to defendants based upon Claimant's failure to establish the elements of negligent hiring, forseeability of harm, particular unfitness for a job and that from this particular unfitness proximately caused injury.

Claimant further asserts that she has alleged that Allied negligently hired Benjamin Addison. Therefore, the University's liability does not rest solely on the acts of Mr. Addison as an employee but rather on its principal-agent relationship with Allied. She further states the law is well settled that a principal is liable for the negligent acts of its agents when they occur in the furtherance of employment. Bryant v. Livigni, 250 Ill.App.3d, 303, 314 (5th Dist. 1993).

Finally, Claimant contends that the issue of an employment relationship versus an independent contractor relationship is an issue for a jury (finder of fact) to decide and cites Ware v. Industrial Comm'n, for this principle.

Respondent argues Ware is distinguishable from the present case in that it is an appeal from an Illinois Industrial Commission ruling based upon statutory provisions contained within the Worker's Compensation Act. Respondent argues that to create a genuine issue of material fact, it is insufficient to simply state that the issue is a factual one within the purview of a jury. Respondent cites Dildine v. Hunt Transp., Inc., 196 Ill.App.3d 392, 553 N.E.2d 801 (3rd Dist. 1990). In Dildine, the plaintiff argued that the trial court could not determine as a matter of law the plaintiff's employment relationship with his employer since the court would have to necessarily balance a number of factors. The court held that such consideration does not relieve the trial court of its responsibility and obligation to decide questions of law. In ruling on motions such as a motion to dismiss and a motion for summary judgment, the trial court will inevitably have to make determinations of law, based on the uncontroverted facts. Dildine, Id.

FINDINGS

We shall first address the matter of applicable law regarding consideration of summary judgment in this cause. We believe the standard of review is set forth in Downs v. University of Illinois, 50 Ill.Ct. Cl. 260 (1997) at 268:

Summary judgment is proper if and only if the pleadings, depositions, admissions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (735 ILCS 5/2-1005(c)); Purtill v. Hess (1986); Ill.2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867.) Although a plaintiff need not prove his case at this preliminary stage, he must present facts sufficient to support the elements of his claim, (Kuwik v. Starmark Star Marketing & Administration, Inc. (1992), 232 Ill.App.3d 8, 12, 173 Ill.Dec. 543, 597 N.E.2d 251) or some factual basis which would arguably entitle (him) to judgment. Barber - Coleman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill.App.3d 1065, 1071, 177 Ill.Dec. 841, 603 N.E.2d 1215.

To recover in a suit for negligence, a plaintiff must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Wojdyla v. City of Park Ridge (1992), 148 Ill.2d 417, 421, 170 Ill.Dec. 416, 592 N.E.2d 1098.) When a defendant files a motion for summary judgment, the plaintiff must come forward with evidence of negligence on the part of the defendant and with evidence that defendant's negligence was the proximate cause of the plaintiff's injuries. (Lindenmier v. City of Rockford (1987), 156 Ill.App.3d 76, 85, 108 Ill.Dec. 624, 508 N.E.2d 1201.) Liability must be premised on evidence and not on conjecture or speculation. Lindenmier, 156 Ill.App.3d at 85, 108 Ill.Dec. 624, 508 N.E.2d 1201.

Under Downs, and Dildine, the legal status of Addison as a possible employee or agent is properly considered in the absence of any other alleged genuine issue of material fact. Hence, Claimant must present facts sufficient to support the elements of her claim which would arguably entitle her to judgment.

When considered in a light most favorable to Claimant, the evidence and pleadings before us do not support a finding that Claimant may prove the negligence claim she has pled in her Complaint and argued in her Brief. She has introduced no evidence nor offered proofs to rebut the plain language of the Service Contract between Allied and University which explicitly states that Allied is an independent contractor. Allied is charged with hiring, training, payment and every common aspect of employment of its employees as well as performing criminal background checks. Contrary to Claimant's allegation that University retained the right to discharge Allied employees, the contract gives University the right to require replacement of Allied employees at University who prove unsuitable for work at University with other Allied employees. University has no right to discharge an Allied employee from other Allied work.

Claimant's testimony at deposition indicates she did not suffer or incur expenses for damages as alleged and argued her testimony also revealed no personal knowledge of any University negligence in Addison's employment.

Claimant's statement that it is possible that if other duties reserved by University are scrutinized, that an employment relationship existed between Allied and University is not persuasive given the history of this cause. Claimant was well aware of the facts and identity of the parties on November 9, 1994 and has had full opportunity to discover the necessary facts and obtain testimony to support her case. An inference that additional evidence may be available is not adequate to rise to an offer of proof at this point in this cause some 9 years after the event in question.

Claimant's testimony clearly states her belief that Allied's actions caused her injury and that she was under the direct supervision of Allied employees while assigned to security duty at University. Claimant made no attempt to support the allegation that University knew or should have known that Allied had not performed the contractually required background check of Addison prior to assigning him to University duty or that University had a duty to protect Claimant from criminal conduct of a third party which was blatantly outside and contrary to the furtherance of duties of employment as a security guard by Allied. Further, there is no evidence to connect Addison's prior act of unlawful use of a weapon in 1984 with foreseeable sexual assault 10 years later under the Strickland analysis.

Claimant has failed to set forth facts adequate to survive Respondent's Motion for Summary Judgment. Summary Judgment is hereby granted and this cause is dismissed

JANN, J.