author: JUSTICE GEIGER JUSTICE DOYLE,

text:
    MELODY C. GEISE, Plaintiff-Appellant, v. PHOENIX COMPANY OF CHICAGO, INC., Defendant-Appellee (William Walthall, Defendant).
    Second District
    No. 2 — 92—0642
    Opinion filed May 24, 1993.
    Rehearing denied July 30, 1993.

      DOYLE, J., concurring in part and dissenting in part.
    Thomas F. Howard, Jr., of Bloomingdale, for appellant.
    Paula S. Goldberg, of DiMonte & Lizak, of Park Ridge (Chester A. Lizak, of counsel), for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Melody C. Geise, brought this suit against her employer, the Phoenix Company of Chicago, Inc. (the company), and the company’s national sales manager, William Walthall (the manager). The trial court dismissed the complaint counts against the company, with prejudice. It also found that there was no just reason to delay enforcement or appeal on that dismissal. (See 134 Ill. 2d R. 304(a).) The plaintiff brought this appeal from the court’s dismissal of the company. We reverse.

In her complaint, the plaintiff alleged generally that on May 7, 1990, she was employed as an inside sales representative for the company. At all times relevant to the plaintiff’s claims, the manager was the company’s national sales manager. The plaintiff alleged that during the time she was employed the manager made numerous, specific, unsolicited and nonconsensual sexual advances toward her and that she made numerous reports of his conduct to her supervisors. Among other things, the plaintiff alleged the manager’s unwanted physical advances, including attempts to kiss and touch her body, offensive placement of his hand on her body, and his placement of objects down the front of her blouse. According to the complaint, the company took no action on those reports until on or about January 21, 1991. Then, the company’s president investigated and confirmed the plaintiff’s allegations against the manager.

After verifying the plaintiff’s allegations, and with knowledge of the manager’s “previous propensity for sexual harassment,” the complaint alleges, the company took no action against the manager. According to the complaint, the plaintiff’s employment was terminated by the manager on or about May 1, 1991. The complaint asserts that the plaintiff’s termination was in retaliation both for her failure to submit to the manager’s sexual advances and for her attempts to inform the company about his actions.

Counts I and II of the complaint were made against the manager. They charged, respectively, battery and intentional infliction of emotional distress. Those counts are not involved in this appeal.

In count III of the amended complaint, the plaintiff claimed “negligent retention of employee.” Therein, she alleged that the manager was employed (1) with primary supervisory duties; (2) to evaluate employees such as the plaintiff; and (3) to determine the professional advancement of numerous employees throughout the company. Count III further alleged that the plaintiff informed the company on numerous occasions of the manager’s harassment and that on at least one occasion the company investigated and acknowledged that the claims were accurate. Despite that acknowledgment, the complaint continues, the company failed to take “corrective action to remedy said harassment.”

Count III asserts that in view of the relationship of authority and control conferred on the manager, the company owed its employees a duty “to protect them from harm to their persons, property and career advancement.” The complaint charges that the company breached its duty of care to its employees when, after having factual knowledge and confirmation of the manager’s sexual harassment toward the plaintiff, it failed to take remedial action and, thus, ratified the manager’s actions.

Count III further alleged that prior to the manager’s assault and harassment of the plaintiff the company knew, or should have known, that the manager was unfit for his job assignment. That assignment required him to work with and have authority over women. Count III concludes with a claim that the company was negligent, reckless, and grossly negligent in hiring the manager.

Count IV of the complaint is based on a theory of negligent hiring. It adopts all the complaint’s preceding allegations and adds that when the company employed the manager, he had a history of sexual discrimination and harassment and had been dismissed from previous employment for reasons of sexual discrimination and harassment.

Count IV charges that the company owed the plaintiff a duty to investigate and that it breached its duty of care to the company employees by hiring the manager when it knew or should have known of his propensity for sexual harassment and discrimination. Count IV also charges that before it hired the manager, a reckless and grossly negligent act according to the complaint, the company knew or should have known that he was unfit for the manager position which required him to work with and have authority over women.

Count IV asserts that the manager’s behavior toward female employees of his former employer was discoverable by reasonable inquiry to the manager’s former employer. It also asserts that had the company known of that prior behavior, it would not have hired the manager. According to count IV, the company’s acts and omissions (1) in failing to discover the manager’s history and predisposition and (2) in retaining the manager were the direct and proximate cause of the plaintiff’s injuries.

The plaintiff’s complaint sought compensatory and exemplary damages, costs, and fees. The company brought a motion to dismiss under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615). In that motion, the company argued that the complaint failed to state a cause of action. The court’s order granted dismissal with prejudice of counts III and IV. This appeal is taken from that dismissal order.

On appeal, the plaintiff argues that the trial court should have recognized an employer’s duty to make a reasonable sexual harassment investigation into the employment history of a prospective manager. She also argues that the court erred in dismissing her negligent retention claim, because Illinois law has established an employer’s duty to protect employees from sexual harassment propensities known to it.

The company’s motion to dismiss under section 2 — 615 asserted (1) that there was no public policy requiring employers to check sexual harassment history of potential sales manager hirees; (2) that the plaintiff’s claim that the company “should have known” of the manager’s propensity for sexual harassment was not sufficient to state a cause of action for negligent hiring; and (3) that the plaintiff’s allegations of negligent retention were not sufficient, as there was no allegation that the manager sexually harassed the plaintiff after the company investigated and ascertained that there was a basis for the plaintiff’s complaints against him. The company also moved to strike the plaintiff’s prayers for punitive damages and attorney fees, asserting merely that “that there is no factual basis alleged that would allow” either.

A motion under section 2 — 615 addresses defects on the face of the pleading; it admits all well-pleaded facts and attacks only the legal sufficiency of the complaint on its face. (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100.) In reviewing a dismissal order, we must determine whether the complaint’s allegations, when interpreted in a light most favorable to the plaintiff, are sufficient to set forth a cause of action on which relief may be granted. (221 Ill. App. 3d at 1101.) A cause of action should not be dismissed unless it clearly appears that no set of facts could be proved which would entitle the plaintiff to recover. 221 Ill. App. 3d at 1101.

Illinois courts have a long history of recognizing the availability of tort damages for an employer’s negligent selection and employment of employees. In 1894, our supreme court observed that a “master” has a duty to exercise ordinary and reasonable care in the employment and selection of careful and skillful co-employees. (Western Stone Co. v. Whalen (1894), 151 Ill. 472, 484.) The court went on to state that ordinary care in the employment of “servants” requires a degree of diligence and caution proportionate to the exigencies of the particular service in question; the care required is what a reasonably prudent person would exercise in view of the consequences that might reasonably be expected if an incompetent or reckless person was employed. 151 Ill. at 485.

In Western Stone, the plaintiff was awarded tort damages against his employer, based on jury findings that his injury was the result of negligence by his co-employee, a captain of a steam propeller who had been hired by the defendant company. The court observed that where the service in which one is to be employed may endanger “the life and persons” of co-workers, upon the plainest principles of justice and good faith, the employer should be required to make a reasonable investigation into the potential hiree’s “character, skill and habits of life.” (151 Ill. at 485.) The court further observed that courts had been practically unanimous that a master’s failure to make such a reasonable investigation is negligence and that the master is held liable for a co-employee’s injury resulting from the “negligence, incapacity or intemperance” of the negligently hired servant. (151 Ill. at 485.) Furthermore, the court suggested that the employer’s actual knowledge of the offending employee’s character and habit was not necessary to the employer’s liability. 151 Ill. at 486-87.

The approach in Western Stone has also been followed in later cases. In Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, the defendant detective agency was held liable in tort to a female resident of the building for which the agency had hired a security guard. In the underlying incident, the security guard, unknown to the agency, had both a stained work history and a criminal arrest record. The guard used his passkey to enter the victim’s apartment, where he assaulted her.

The Easley court referred to settled Illinois law that there is a cause of action against an employer’s negligently hiring someone it knew, or should have known, was unfit for the job to be filled. (69 Ill. App. 3d at 931.) The court also found sufficient evidence to support a jury finding that the guard had been unfit for hiring, that a reasonably adequate investigation could have determined this fact, and that the agency’s virtually nonexistent investigation both exhibited a reckless disregard for the plaintiff’s safety and constituted the proximate cause of the plaintiff’s injury. 69 Ill. App. 3d at 932.

In Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 338, the plaintiff was a guest of a private party at the defendant’s home. He alleged that the host had engaged an employee, whom the host knew had both a reputation for and propensities for violence, to act at the party as a bouncer and to maintain discipline with physical force. The court found that the guest had a negligent hiring cause of action against the host, for injuries caused him by the employee.

In Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, the court considered a negligent hiring claim brought by a female hitchhiker who was picked up by the defendant company’s truck driver and raped by him in his truck’s sleeping compartment. The trial court denied summary judgment for the company, finding that the company had a duty to check the potential driver’s criminal record before hiring him. The appellate court affirmed. It found that the company entrusting its driver with a truck that had a sleeping compartment clearly had a duty to hire a fit employee. (146 Ill. App. 3d at 268.) It also observed that a lack of forethought may exist where one remains in voluntary ignorance of facts concerning particular danger. 146 Ill. App. 3d at 268.

The Malorney court found no evidence to justify the company’s contention that the cost of the suggested investigation of the potential employee was too high, compared with its potential utility. (146 Ill. App. 3d at 269.) It concluded, considering that the company probably knew or should have known of truck drivers’ tendency to give rides to hitchhikers, that the record demonstrated a triable question of fact as to whether, by failing to investigate the potential driver’s history as the plaintiff suggested, the company breached its duty to hire a competent driver. 146 Ill. App. 3d at 269.

In Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 931, the court considered tort claims against the school officials who hired and supervised physical education teachers of the sixth-grade victim. The victim suffered spinal injuries in a school trampoline accident. The court followed reasoning consistent with the cases above, observing that liability for negligent hiring arises only when an employer knew or should have known that a particular unfitness of an applicant created a danger of harm to a third person. (148 Ill. App. 3d at 935.) The court affirmed the trial court’s dismissal of the plaintiff’s negligent hiring claim, finding that the plaintiff’s mere allegation of failure to investigate the potential teachers’ credentials, without any allegation that the employers knew or should have known of the applicants’ particular unfitness that gave rise to a danger for third persons, was not legally sufficient. 148 Ill. App. 3d at 935.

In Bates v. Doria (1986), 150 Ill. App. 3d 1025, the plaintiff alleged negligent hiring of a sheriff's deputy who, during off-duty hours, assaulted her. Affirming summary judgment for the defendant employers, the court observed that where hiring created a danger of harm to third persons, there was a cause of action for negligently hiring or retaining an employee who was known or who should have been known to be unfit for the job. (150 Ill. App. 3d at 1030-31.) In that case, however, it found no factual basis for finding that the plaintiff’s injury was proximately caused by the allegedly negligent hiring. 150 Ill. App. 3d at 1032.

The declaration of a duty in a negligence case reflects the foreseeability of the harm, but emphasizes considerations of public policy and social requirements related to the magnitude of the burden of guarding against the harm and the consequences of placing that burden on the defendant; the determination of whether there exists a duty is inevitably the product of policy considerations related to which plaintiffs should be afforded protection by the tort law. (See Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1047-53.) Furthermore, an analysis of whether a duty exists is specific to the historical circumstances when it is made; duty is not a static concept, but one that changes with societal changes — a reflection of the needs, wishes, and tolerances of society as determined by the court facing a current duty issue. Zimmermann, 122 Ill. App. 3d at 1051.

According to the plaintiff’s analysis, in the case now before us the matter critical to whether the company was entitled to an involuntary dismissal is whether the plaintiff properly alleged legal duties upon which recovery may lie. We first consider the plaintiff’s count IV, based on negligent hiring. In supporting the legal viability of count IV, the plaintiff urges that we recognize a duty for this employer, who hired a male supervisor or manager to supervise women. That duty would apply, according to the plaintiff, to any employer hiring a person to supervise persons of the opposite sex; it would require prehiring inquiry into any such applicant’s history of workplace sexual harassment of subordinates.

As background for our analysis of count IV, we survey the significant body of sexual harassment law. Federal statutory prohibitions of sexual harassment are found at section 703(a)(1) of title VII of the Federal Civil Rights Act of 1964, as amended (see 42 U.S.C. §2000e— 2(a)(1) (1988)) and in section 703(a)(1)’s accompanying regulations (see 29 C.F.R. §1604.11 (1985)). These title VII regulations prohibiting sexual harassment in the workplace were first promulgated in the Equal Employment Opportunity Commission’s 1980 “Guidelines on Discrimination Because of Sex.” They received early judicial endorsement. See Meritor Savings Bank, F S B v. Vinson (1986), 477 U.S. 57, 65, 91 L. Ed. 2d 49. 58-59. 106 S. Ct. 2399. 2404-05.

In Illinois, the legislature has enacted numerous statutory prohibitions against sexual harassment. (See Ill. Rev. Stat. 1991, ch. 29, par. 17; ch. 68, par. 2 — 102(D); ch. 144, par. 189.21; see also Ill. Const. 1970, art. I, §18.) Furthermore, although Illinois courts have not directly addressed the question of the duty urged by the plaintiff, they have found the State’s prohibition of sexual harassment to be a strong one.

In Board of Directors, Green Hills Country Club v. Human Rights Comm’n (1987), 162 Ill. App. 3d 216, 220, for example, the court found that under the Illinois Human Rights Act prohibition against sexual harassment in the workplace (see Ill. Rev. Stat. 1991, ch. 68, par. 2 — 102(D)) an employer is liable for sexual harassment of its employees by supervisory personnel regardless of whether the employer knew of the offending conduct. In another example, Fitzgerald v. Pratt (1992), 223 Ill. App. 3d 785, the court excepted allegations of intentionally inflicted or authorized sexual harassment from the generally exclusive remedy of workers’ compensation. It allowed an employee alleging sexual harassment to sue her employer in tort, outside the workers’ compensation system. 223 Ill. App. 3d at 789; see also Byrd v. Richardson-Greenshields Securities, Inc. (Fla. 1989), 552 So. 2d 1099; Harman v. Moore’s Quality Snack Foods, Inc. (Tenn. Ct. App. 1991), 815 S.W.2d 519; cf. Cremen v. Harrah’s Marina Hotel Casino (D.N.J. 1988), 680 F. Supp. 150.

We consider the Illinois tradition of tort liability for negligent hiring in the context of the legislatively created and judicially acknowledged State policy against sexual harassment. In that context, we find without question that in this State workplace sexual harassment is considered to present a serious harm. (See Board of Directors, 162 Ill. App. 3d at 220.) Based on that finding, and even though sexual harassment does not necessarily comprise the sort of physical injury present in the other negligent hiring cases that other Illinois courts have decided, we find no reason to distinguish the quality of harm presented by the sexual harassment alleged here, particularly as it involves physical violation, from the quality of harm threatened in those other cases where employers were subjected to tort liability for allegedly negligent hiring. See Western Stone, 151 Ill. at 485.

In this case, the plaintiff alleged that her manager was hired for a job that included extensive supervision of personnel not of his gender. We accept the truth of that well-pleaded fact allegation. We also refer to the Illinois Human Rights Act’s underlying acknowledgment that sexually harassing conduct in the workplace must be guarded against and remedied. We then find that the legislatively acknowledged harm of sexual harassment to the manager’s supervisees was a foreseeable hazard of his employment.

Further, we find no basis to conclude that the burden to guard against the harm is of great magnitude for an employer such as the company here. To satisfy the burden in this case, the company might merely have needed to make slightly increased inquiry of the potential manager’s former employer; some inquiry of former employers is a standard practice for hiring management personnel. It might also have inquired of the management applicant, in an interview or in a screening application question.

Given the serious harm that sexual harassment has been legislatively deemed to constitute, the foreseeable hazard of that harm's occurring upon hiring a new manager of a staff comprised primarily of persons not of the manager’s gender, the plaintiff’s allegation that the employer could have but failed to learn through investigation that the manager had a predisposition to and work history of sexual harassment of female co-workers, and the plaintiff’s allegation of her proximate injury, including physical violations resulting from the employer’s failure to act, we find that the plaintiff adequately pleaded a cause of action in tort. See Zimmermann, 122 Ill. App. 3d at 1052, Easley, 69 Ill. App. 3d at 932.

Our judgment falls short of a declaration of a specific duty to investigate and fully learn potential management employees’ sexual harassment history and, thus, it is short of the duty declaration urged by the plaintiff. Rather, our conclusion is merely that the plaintiff’s pleadings support her cause of action, considering the Illinois courts’ long-held view that an employer has a duty to exercise ordinary and reasonable care in the employment and selection of careful and skillful co-employees (Western Stone, 151 Ill. at 484) and to discharge that duty with care commensurate with the perils and hazards likely to be encountered in the employee’s performance of his job (Western Stone, 151 Ill. at 485).

With reference to the serious concern now afforded the issue of sexual harassment in the workplace, we find that the plaintiff sufficiently pleaded a cause of action based on whether the company negligently breached its duty of diligent and cautious hiring in consideration of co-workers. (See Western Stone, 151 Ill. at 485.) In our judgment, that duty can comprise a need to make the sort of investigation urged by the plaintiff here, and even with that inclusion, it imposes no inappropriate administrative or economic burden for employers. (See Malorney, 146 Ill. App. 3d at 269.) We also find that in being sufficiently broad to address the harm of sexual harassment, that duty serves a prophylactic role in the interest of today’s ethical or moral thinking and in the general interest of justice. See Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1052.

The company’s argument against the recognition of a duty here is largely based on the fact that no precisely analogous duty has been recognized in Illinois. We, however, do not find that argument persuasive. It is clear that the concept of duty is an ever-evolving one. (See Zimmermann, 122 Ill. App. 3d at 1051-53.) Furthermore, in our mere recognition that an employer can violate its duty of nonnegligent hiring by a failure to make a “reasonable examination” of management candidates’ history of sexual harassment, we do not, contrary to the company’s assertion, begin a slippery slope of judicial involvement in the quality and breadth of the investigation requirement; courts have long relied on the feasibility of a rule of “reasonableness.” (See, e.g., Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, 269.) Lastly, we do not find, as the company suggests, that the propriety of our judicial recognition of a duty in this case is called into question by the absence of any specific, comparable legislative requirement.

In our conclusion here, we leave open the factual matter of whether the company violated its duty by its failure to act in this case. (See Malorney, 146 Ill. App. 3d at 269.) Additionally, we note, as does the plaintiff, that we do not effectively create a complete ban on the hiring of persons with a history of sexually harassing behavior for elevated employment roles. In the case that through prehiring investigation an employer learns of cause for caution concerning a potential employee’s history suggesting sexual harassment, the employer merely would have been made aware of the need to emphasize the proper bounds of that individual’s workplace conduct and to monitor the new employee’s treatment of his co-workers. Such caution would seem to be in the employer’s interest, given Illinois’ recognition of a form of strict employer liability for supervising employees’ acts of sexual harassment. See Board of Directors, 162 Ill. App. 3d at 220.

In conclusion, we find that taking all well-pleaded facts as true, and interpreting the plaintiff’s count IV in a light most favorable to her (see Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100 — 01), the plaintiff adequately alleged facts which could entitle her to relief for her employer’s negligent hiring, based on its failure to make a reasonable investigation in hiring the manager. Thus, we reverse the court’s section 2 — 615 dismissal of the plaintiff’s count IV.

Regarding the court’s dismissal of the plaintiff’s count III, the count based on the company’s retention of the manager in his employment, the company argues that the plaintiff failed to state a cause of action for two reasons. First, the company refers to the plaintiff’s acknowledgement in her brief that the harassment in this case ceased after the company’s president investigated and confirmed the plaintiff’s charges of sexually harassing behavior by the manager. Based on the absence of allegations that there was any sexual harassment after the company’s investigation, the company asserts that the manager’s discharge was not necessary. Secondly, the company asserts that the plaintiff’s count III fails sufficiently to allege damages. According to the company, (1) the plaintiff has brought an action that rests on allegations of stress anxiety; (2) such torts require damage allegations setting forth severe emotional distress; and (3) the plaintiff’s damage allegations do not rise to the required level of severe emotional distress.

We find, initially, that the company’s arguments miss the crucial issues related to the plaintiff’s count III claim, and we dispense with them with brief comment. Initially, we do not find that the plaintiff’s complaint is rendered insufficient by her acknowledgment that the manager’s sexual harassment ended after the company verified her complaints. The plaintiff’s complaint alleges (1) that before the harassing conduct ended, she complained of it to the company and (2) that despite her claim that the company “knew or should [have] known” of the conduct, the company took no responsive action. The plaintiff has, thus, alleged claims based on the company’s failure to act when on notice of its employee’s sexual harassment of a co-worker.

Further, we are not persuaded by the company’s argument regarding damages. Contrary to the company’s assertion, the plaintiff does not merely allege that she proximately suffered “severe and emotional distress” in the form of “stress anxiety, loss of weight and sleep, and *** a profound loss of self esteem [sic] and depression.” Count III also incorporates the plaintiff’s allegation that she was terminated from her employment in retaliation for her response to sexual harassment at her workplace. The sufficiency of the plaintiff’s emotional distress allegations is not determinative here. Cf. Miller v. Equitable Life Assurance Society of the United States (1989), 181 Ill. App. 3d 954.

Having disposed of the company’s arguments, we proceed to our more basic consideration of whether the plaintiff has alleged facts upon which recovery may be had. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615; Aguilar, 221 Ill. App. 3d at 1100-01.) As with our analysis of the plaintiff’s count IV, our analysis of the legal viability of the plaintiff’s count III is centered on whether the plaintiff has properly alleged a duty that is recognizable in tort law.

As we have noted in our preceding analysis, Illinois law has a clear prohibition against workplace sexual harassment. (See Ill. Rev. Stat. 1991, ch. 68, par. 2 — 102(D).) Furthermore, in Illinois an employer has been deemed responsible for sexual harassment of its employees by supervisory personnel, regardless of whether it knew of the conduct. (Board of Directors, Green Hills County Club v. Human Rights Comm’n (1987), 162 Ill. App. 3d 216, 220.) Also, just as it recognizes a cause of action for negligent hiring, Illinois law also recognizes a tort cause of action against an employer for negligently retaining in its employment an employee that the employer knew or should have known was unfit for the job so as to create a danger to third parties. Bates v. Doria (1986), 150 Ill. App. 3d 1025, 10300.

In her count III, the plaintiff alleged that she suffered proximate injury after she repeatedly informed the company of the manager’s sexually harassing conduct towards her and that the company took no action. With reference to our preceding analysis on the serious nature of sexual harassment, and to Illinois’ general recognition of a tort of negligent retention of an employee, we find that the plaintiff’s count III adequately alleged a cause of action and should not have been dismissed.

Based on the foregoing, we reverse the judgment of the circuit court of Du Page County. We remand the cause for further proceedings on both counts III and IV, consistent with this opinion.

Reversed and remanded.

WOODWARD, J., concurs.

JUSTICE DOYLE,

concurring in part and dissenting in part:

I concur in the majority’s recognition of plaintiff’s cause of action for negligent retention; however, I dissent from that portion of the opinion which allows plaintiff a cause of action for negligent hiring premised upon the failure to investigate for prior instances of sexual harassment based solely on the existence of a mixed-gender workplace.

I agree with the majority conclusion that plaintiff’s allegations addressing defendant’s failure to redress her complaints of sexual harassment were sufficient to state a cause of action for negligent retention. Negligent retention occurs “ ‘when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigation, discharge or reassignment.’ ” (Foster v. Loft (1988), 26 Mass. App. Ct. 289, 291, 526 N.E.2d 1309, 1311, quoting Garcia v. Duffy (Fla. Dist. Ct. App. 1986), 492 So. 2d 435, 438-39.) Taking all well-pleaded allegations in plaintiff’s complaint as true and viewing them in a light most favorable to plaintiff, as we must for the purposes of a section 2 — 615 motion to dismiss (see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615; Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100-01), I agree with.the majority conclusion that plaintiff alleged a claim based on the company’s failure to act after being placed on notice of an employee’s sexual harassment of her.

Turning now to plaintiff’s claim for negligent hiring, I must state at the outset.that I consider the majority’s attempt to fashion an additional means to redress the serious problem of workplace sexual harassment an excellent objective. I am concerned, however, with the creation of a rule of law that imposes on employers an affirmative duty to investigate all prospective managerial and supervisory employees for prior instances of sexual harassment based solely on the existence of a mixed-gender workplace. Although the majority states that the opinion falls short of declaring a specific duty to investigate potential management employees’ sexual harassment history, I interpret the opinion as doing precisely that. Setting aside considerations of actual and proximate cause, as I read the majority opinion, an employer’s mere failure to conduct a background investigation of prospective managerial or supervisory candidates concerning their propensities towards sexual harassment will result in a breach of that duty, thus subjecting the employer to liability. Carried to its logical extreme, I view the majority’s creation of such a duty as opening the door to imposing on employers a multitude of affirmative duties to conduct background investigations to expose various character traits or propensities of prospective employees regardless of their contemplated position in the hierarchical structure and without consideration of the particular circumstances of the workplace or exigencies of the particular employment. It is foreseeable that complex issues of privacy would ultimately be implicated in such a process and that employers’ efforts to respect the proper scope of preemployment inquiries, already limited by privacy concerns, would become even more difficult. For the reasons that follow, it is my opinion that (1) the existing body of negligent hiring cases does not support the creation of such a duty; (2) the absence in this State, and the express denunciation by other jurisdictions, of the imposition of a per se affirmative duty to inquire concerning prior instances of criminal conduct by prospective employees suggests that the imposition of an affirmative duty to investigate all prospective management employees for prior instances of sexual harassment is unwarranted; and (3) the focus of the analysis in such cases should be directed to the breach aspect of the tort rather than the creation of an affirmative duty to investigate.

As originally conceived, a common-law cause of action for negligent hiring/retention was devised as an exception to the common-law fellow-servant doctrine. The fellow-servant doctrine absolved an employer of liability to one engaged in his employment for injuries incurred because of the carelessness or misconduct of others also employed by that employer and who were engaged in the same general employment as the injured employee. (53 Am. Jur. 2d Master & Servant §295, at 327 (1970).) An exception to the fellow-servant rule was recognized, however, in cases where an employer was negligent in employing incompetent co-employees. (See, e.g., Western Stone Co. v. Whalen (1894), 151 Ill. 472, 484.) The result of this exception was not to impose a form of imputed liability on employers for the actions of their employees against fellow employees, but to recognize a direct cause of action by an injured employee against an employer for its failure to exercise reasonable care in the selection of careful and skilled co-employees (Western Stone, 151 Ill. at 485). As early as Western Stone and before, courts wrestled with the problem of what precisely was the exercise of reasonable care in such cases. See Western Stone, 151 Ill. at 484.

As the rule evolved in Illinois, and other jurisdictions (see Ponticas v. K.M.S. Investments (Minn. 1983), 331 N.W.2d 907, 910 (list of citations)), actions predicated on direct employer liability for failure to exercise reasonable care in the selection and retention of employees expanded the scope of the employer’s duty to encompass not only injured co-employees but nonemployee third parties as well (see, e.g., Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 931-32 (employee hired as security guard assaulted apartment tenant)). Although the present case involves alleged instances of assault and sexual harassment perpetrated by a manager against a subordinate level employee, I agree with the majority’s implicit determination that the third-party cases are nevertheless instructive. See Bates v. Doria (1986), 150 Ill. App. 3d 1025; Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 931; Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333; Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920.

The rule, as often articulated, in its present-day form states that a cause of action exists against an employer for negligently hiring, or retaining in his employment, an employee he knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. (Bates, 150 Ill. App. 3d at 1030.) While I am in complete agreement with the imposition of the well-established duty which requires employers to exercise reasonable care in the selection and retention of employees, I consider it an unnecessary expansion of this principle to impose in all cases a specific duty on employers to inquire about past instances of sexual harassment by prospective management employees based solely on the circumstance that men and women will be working together. In reaching its determination to impose this affirmative duty, I believe that the majority either fails to acknowledge, or intentionally abrogates, a critical element of the existing negligent hiring cases. The majority essentially eliminates any consideration of the circumstances and particular type of employment that the prospective employee will be engaged in as a means of determining what constitutes the exercise of reasonable care. Although the majority identifies a supervisory or management role in a mixed-gender workplace as the particular circumstance by which its newly recognized duty to investigate is triggered, this is a circumstance which is by no means peculiar but, on the contrary, is common to the majority of workplaces in this country.

A common thread running through the negligent hiring cases cited by the majority is the existence of an inherent quality concerning the circumstances of the offending employee’s occupation that places third parties at some heightened level of risk. For example, in Western Stone the offending employee was a steamship captain charged with the safe operation of a hazardous ship towing operation; in Easley, the offending employee was an armed security guard entrusted with a passkey to a number of apartments; in Gregor, the defendant employed a bouncer with an alleged vicious propensity for physical violence upon others to maintain order at a social gathering; in Malorney, the court interestingly found it significant that the offending employee was operating an over-the-road truck with a sleeping compartment which that court believed presented a special danger to female hitchhikers; in Fallon, the alleged offending employees were hired as physical education instructors teaching trampoline techniques to sixth-grade children; and in Bates, the offending employee was an off-duty sheriff’s deputy. In each of these cases, where the court assigned significance to the necessity of conducting a background investigation into particular behavior, it was borne out of a consideration of the particular task to which the offending employee was assigned and the potential for heightened risk to others.

As our supreme court stated in Western Stone, the duty placed on employers to exercise “ordinary care in the employment of servants require[d] a degree of diligence and caution proportionate to the exigencies of the particular service.” (Emphasis added.) (Western Stone, 151 Ill. at 485; accord Focke v. United States (D. Kan. 1982), 597 F. Supp. 1325, 1345-46; Ponticas v. K.M.S. Investments (Minn. 1983), 331 N.W.2d 907, 912-13; see generally Note, The Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 Chi.-Kent L. Rev. 717 (1977).) The court further declared that it is “such care as a reasonably prudent person would exercise, in view of the consequences that might reasonably be expected to result if an incompetent, careless or reckless servant was employed for the particular duty.” (Emphasis added.) (Western Stone, 151 Ill. at 485.) What becomes apparent from the court’s early pronouncement is that the extent of an employer’s duty to exercise ordb nary care in the selection of employees would be determined by the peculiarities of a particular occupation. As the court itself concluded, “[w]here *** a master employs a servant to engage in a business known to be hazardous, and where the proper and safe discharge of the duty requires a high degree of care, skill and diligence, the master will be held in the selection of the servant to the exercise of care reasonably commensurate with the perils and hazards likely to be encountered in the performance of the duty.” Western Stone, 151 Ill. at 485.

I agree with the majority that there is no basis for distinguishing the quality of harm presented by the sexual harassment alleged by plaintiff from the quality of harm threatened in other cases in which tort liability for negligent hiring has been recognized. The majority opinion seems to be predicated, however, on the notion that anytime persons of the opposite sex are commingled in a work environment the risk of harm is so elevated that an employer must guard against the potential danger by investigating the backgrounds of all supervisory employees. Although I recognize that sexual harassment is all too prevalent and has the potential for infliction of serious harm, I am unwilling to take such a dismal overall view of the American workplace. The fact that serious abuses sometimes occur is not a reason to assume that danger lurks in every employment relationship to such an extent that it is reasonable to require employers to launch background investigations of all supervisory personnel before any hint of impropriety is even suspected. To be perfectly clear, I am not suggesting that there would never be a circumstance where it would be reasonably prudent for an employer to investigate a prospective employee’s background for prior instances of sexual harassment. My concern is that the majority has imposed on employers a blanket duty to investigate for prior instances of workplace sexual harassment for no reason other than the circumstance of mixed-gender workplace.

As analogous support for my position, I note that at least two other jurisdictions have expressly rejected the notion that there exists a duty upon an employer to make an inquiry as to a prospective employee’s criminal record even where it is known that the employee is to deal regularly with members of the public. (See Ponticas, 331 N.W.2d at 913; Evans v. Morsell (1978), 284 Md. 160, 167, 395 A.2d 480, 484.) As noted by the court in Ponticas:

“If the employer has made adequate inquiry or otherwise has a reasonably sufficient basis to conclude the employee is reliable and fit for the job, no affirmative duty rests on him to investigate the possibility that the applicant has a criminal record. *** Liability of an employer is not to be predicated solely on failure to investigate criminal history of an applicant, but rather, in the totality of the circumstances surrounding the hiring, whether the employer exercised reasonable care. This is generally a jury question.” (Ponticas, 331 N.W.2d at 913.)

In light of the above jurisdictions’ express rejection of any affirmative duty to inquire about a prospective employee’s criminal background and the absence of any such duty in Illinois, it seems to follow that liability here should not be predicated solely on the failure to investigate for prior instances of sexual harassment; rather, the focus should be on the totality of the circumstances and whether the employer exercised reasonable care in light thereof. Moreover, considering the competing burdens and important public policy concerns that are implicated by the imposition of such an affirmative duty, I further question whether such a determination is better left to the legislature.

In my view, existing negligent hiring precedent, and a recognition of the already existing duty to exercise reasonable care in the selection and retention of employees based upon the totality of the circumstances and the particular exigencies of an individual’s employment, already provide plaintiffs with a suitable recourse in these cases. The inquiry here should not be whether, as plaintiff urges and the majority agrees, to impose on employers a duty to investigate all prospective managerial employees for prior instances of sexual harassment where that prospect will be employed in a mixed-gender workplace; rather, the inquiry should be whether plaintiff has alleged facts sufficient to establish that defendant breached its duty to exercise reasonable care in the selection of management employees. By focusing the analysis on the breach aspect of the tort, existing precedent is left undisturbed, it becomes unnecessary to fashion a specific duty to investigate in all cases for prior instances of sexual harassment, and it allows the trier of fact to consider more fully the totality of the circumstances surrounding the nature of the employment and an employer’s hiring practices.

In determining the necessity and scope of a background investigation, the type of work to be performed should be considered (Garcia, 492 So. 2d at 441), and, if it is concluded that such an investigation is required, its scope should be directly related to the severity of risk third parties are subjected to by an incompetent employee (Ponticas, 331 N.W.2d at 913).

I further suggest that when analyzing whether an employer is required to conduct an investigation into specific instances of prior conduct, the inquiry should consider such factors as whether the employer at the time of hiring had actual or constructive knowledge of an employee’s unfitness and whether the exigencies of the particular employment presented a heightened risk of harm to third parties, thus necessitating an investigation.

Applying the foregoing to the circumstances of the present case, it is my conclusion that plaintiff failed to allege facts sufficient to establish a breach of the duty to exercise reasonable care in hiring. Plaintiff alleged that defendant owed a “duty to Plaintiff to investigate and breached its duty of care to its employees by hiring an employee in the person of Defendant Walthall when Defendant Phoenix knew, or should have known of his propensity for sexual harassment and discrimination.” Plaintiff further alleged Walthall’s behavior was “discoverable *** through reasonable inquiry.”

Notwithstanding plaintiff’s conclusional allegation that defendant knew, or should have known, of Walthall’s prior instances of sexual harassment, reading the complaint as a whole, I find no well-pleaded factual allegations sufficient to establish that defendant had notice, either actual or constructive, of Walthall’s alleged prior instances of sexual harassment at the time of hiring. Additionally, plaintiff pleads no facts to establish that the exigencies and circumstances surrounding Walthall’s employment were such as to place defendant on notice that a background inquiry into prior instances of sexual harassment was necessary. Accordingly, I would affirm the circuit court’s dismissal of count IV of plaintiff’s first amended complaint.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD R. LANGFORD, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0522
    Opinion filed July 1, 1993.
    Rehearing denied July 29, 1993.
    William R. Kelly, of Peoria, for appellant.

      Michael Kiley, State’s Attorney, of Shelbyville (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant appeals from his conviction of the offense of buying timber while his license was revoked. (Ill. Rev. Stat. 1989, ch. 111, par. 713.) Defendant raises three issues on appeal, but due to our ruling, we discuss only the first issue raised: Whether the trial court erred in denying defendant’s motion for substitution of judge. For reasons more fully explained below, we hold that the court erred in not granting defendant’s motion for change of judge, and thus, we reverse and remand for a new trial.

In order to clarify our decision, we relate only those facts pertaining to the issue regarding the motion for substitution. On April 30, 1990, defendant was charged with the offense of buying timber while his license was revoked (Ill. Rev. Stat. 1989, ch. 111, par. 713), and on the same day, defendant was informed that Judge E.C. Eberspacher was assigned as the presiding judge on the case. Judge Eberspacher had not made any rulings on defendant’s case at that time.

Nine days later, defendant filed a motion for substitution of judge, consisting of four paragraphs. The first three paragraphs alleged that the cause was pending before Judge Eberspacher, that the cause had been placed on his trial docket less than 10 days prior to filing the motion, and that defendant believed that he could not receive a fair and impartial trial before Judge Eberspacher. The fourth paragraph alleged that defendant feared he would not receive a fair and impartial trial before a second judge, Richard Brummer. The motion did not include any supporting affidavits or any reference to the statute under which it was brought.

The day the motion for substitution was filed, Judge Eberspacher ruled on the motion, via docket sheet entry and without notice to either party or any hearing. The order stated that defendant’s motion for substitution of the two judges was filed pursuant to section 114— 5(d), rather than section 114 — 5(a), of the Code of Criminal Procedure of 1963, because section 114 — 5(a) specifically provides that a defendant may name only one judge as prejudiced. (Ill. Rev. Stat. 1989, ch. 38, pars. 114 — 5(a), (d).) The judge ruled in the May 9 docket order that the motion for substitution claimed actual prejudice pursuant to section 114 — 5(d). (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(d).) The judge set the motion for hearing before Judge Plummer 22 days after the case had been assigned to Judge Eberspacher. The judge further ordered the clerk of the court to send a copy of the docket order to all counsel of record.

Defendant did not request to amend his motion for substitution of judge, nor did he file any affidavits in support of his motion. At the hearing on the motion for substitution, Judge Plummer treated the motion as one for cause rather than for automatic substitution, over defendant’s statements to the contrary. Because the arguments of defendant’s attorney and the findings of the court are essential to our determination of this case, we set forth the relevant portions of that hearing verbatim:

“THE COURT: *** We have a motion for substitution of judge, is that correct?
MR. KELLY [attorney for defendant]: That is correct.
* * *
MR. KELLY: *** We have attempted to file a motion, a ten-day motion as a matter of right asking for substitution of judge pursuant to section 114 — 5 of chapter 38 of the Illinois Revised Statutes. The statute is clear that upon the filing of such a motion, the court shall proceed no further in the cause and we believe it was error *** for Judge Eberspacher to have made any kind of ruling with regard to the motion we filed. The statute is clear that he shall transfer it to another judge not named in the motion. I am not clear why the Judge felt compelled to make some kind of ruling that we had filed a motion *** alleging actual prejudice when it is obvious we have attached no affidavit which the statute would require if we were making such a motion so by some circular reasoning, he has ruled that our motion for substitution of judge by right is not such a motion and that it is another motion ***. For the record, we have filed a motion requesting a change from Judge Eberspacher as a matter of right. That’s all we have asked.
* * *
THE COURT: *** I take it, counsel, *** your position is that the defendant need not present any argument in support of the motion on the basis that by the filing of the motion, that should have resulted in automatic transfer.
MR. KELLY: I will say, judge, I made one error and I want to state on the record I made that error. I drafted the motion for substitution without having the statute in front of me and I added as a fourth paragraph to the motion a second judge *** and I had in my mind that the statute did allow the defendant to designate two judges. However, upon reading the statute, the statute only allows the designation of two judges where the offense charged is a class X felony or may be punished by life imprisonment so I would withdraw or I think it is meaningless the paragraph 4 of my motion for substitution of judge but beyond that, I think it is a motion for automatic substitution provided by statute.
* * *
THE COURT: Well, counsel, it would appear to the court that the motion that was filed on its face appeared to be a motion to substitute two judges for cause. *** Now, it may very well be that *** defense counsel made an error and added that language to the motion but once that is filed, it changed the character of the motion and there was no supporting affidavit attached to the motion. *** I believe I have to treat that as a motion for substitution for cause. Since there is no attached affidavit and nothing supporting the motion, I am going to deny it.
* * *
MR. KELLY: Judge, are you denying our request to have paragraph 4 withdrawn from our motion?
THE COURT: That is correct, counsel.
MR. KELLY: *** I would like the record to be clear that the intent of the defendant was to file a motion asking for an automatic substitution of judge within the ten days of it being set on Judge Eberspacher’s calendar.
THE COURT: I understand the representations of counsel. The matter is placed back on Judge Eberspacher’s calendar.
* * *
MR. KELLY: *** [I]s it the court’s position that because paragraph 4 alleges that the defendant fears he would not receive a fair and impartial trial before Judge Brummer, *** that it is that language that the court feels it is a motion for substitution alleging actual prejudice as to Judge Eberspacher?
THE COURT: That is correct, counsel.”

On June 19, 1990, defendant filed a motion to strike the May 9 docket entry, raising the same arguments he made at hearing on the motion for substitution, requesting the court to strike the docket entry and grant his motion for substitution under section 114 — 5(a). (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(a).) The motion to strike also contained a paragraph admitting that the motion for automatic substitution as to Judge Brummer should be denied and alleging that the decision as to the second judge should have no effect on the motion as it relates to the judge assigned to the case.

The next hearing was a pretrial conference, over which Judge Eberspacher presided. Defendant argued that Judge Eberspacher should not preside over any other matters due to defendant’s earlier filing of the motion for substitution. Judge Eberspacher responded that the motion for substitution had been resolved by his order of May 9, 1990, and Judge Plummer’s order of May 23, 1990. Over defendant’s continued objection, Judge Eberspacher continued to preside over all subsequent hearings.

On July 3, 1990, the judge conducted a hearing on defendant’s motion to strike the May 9 docket order. At that hearing, defendant argued that the effect of the May 9 docket entry was to deny the motion for substitution, since defendant had not attached any affidavit in support of the motion. Defendant again asked the court to consider the motion as one for automatic substitution. Judge Eberspacher agreed to consider the motion as one for automatic substitution but then denied it because it attempted to name two judges, rather than only one. Defendant again requested that the motion as to Judge Brummer be denied, but the court denied that request. The judge ruled that the motion failed to meet the requirements of the statute because it named more than one judge, and “judges should not have to guess which one of the two the defendant is really serious about recusing and which one he is not.”

Defendant went on to argue that the defect of naming the second judge should be considered a technical defect, and that, as to Judge Eberspacher, the motion should be granted, since it was not filed for the purpose of delay and motions for substitution are to be liberally construed. In denying the motion to strike, the judge stated that a motion for substitution does not affect any constitutional rights of the defendant. The order basically found that naming two judges was not a mere technical defect and warranted a denial of the request for substitution. Judge Eberspacher presided over defendant’s jury trial. The jury found defendant guilty of buying timber while his license was revoked. (Ill. Rev. Stat. 1989, ch. 111, par. 713.) The judge entered judgment on the guilty verdict and defendant appeals.

The statute authorizing a criminal defendant to request a substitution of judges states:

“Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may-name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.” Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(a).

If the requirements of the statute are met, the right to substitution is automatic and absolute. (People v. Redisi (1989), 188 Ill. App. 3d 797, 544 N.E.2d 1136.) If defendant fails to file a motion for automatic substitution within 10 days of the case being placed on the trial call of a judge, he may file a motion alleging actual prejudice if he has facts to support the allegations of actual prejudice and supports the motion with an affidavit. A motion for cause pursuant to section 114 — 5(d) may be brought at any time. Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(d).

The specific and narrow question presented by this case is, where a motion for substitution of judge mistakenly names more judges than allowed, is the defendant allowed to clarify and amend his mistake? Our review of the applicable case law brings us to the conclusion that an ambiguous motion for substitution should not be summarily denied without allowing defendant to clarify his mistake, if he requests such an opportunity.

Contrary to the trial judge’s statement, section 114 — 5(a) “effectuates the right to a fair trial — a right of constitutional dimension [citation] — by affording a defendant the substantive right to substitute a judge who appears to be prejudiced.” (People v. Walker (1988), 119 Ill. 2d 465, 480, 519 N.E.2d 890, 895.) “To fully implement the automatic-substitution-of-judge statute and thereby safeguard the basic right to a fair trial, [the supreme] court has held in a long and unbroken line of cases that the provisions of the statute are to be construed liberally ‘to promote rather than defeat’ substitution, and that reversible error occurs where the statute is not so construed.” (Walker, 119 Ill. 2d at 480-81, 519 N.E.2d at 896.) If a motion for automatic substitution is improperly denied, all action by the trial court subsequent to the improper denial is void. People v. Pace (1992), 225 Ill. App. 3d 415, 587 N.E.2d 1257.

A motion for automatic substitution basically complies with the statute when it is in writing, is filed within 10 days of the case being placed upon the trial call of a judge, and alleges that the judge is so prejudiced that defendant believes he cannot receive a fair trial. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(a).) The first three paragraphs of the motion filed by defendant in the case sub judiee conformed to these requirements. The problem lies in the addition of the fourth paragraph, an addition we feel amounts only to surplusage. The motion was ambiguous: it did not state whether it was under the authority of section 114 — 5(a) or 114 — 5(d); the fourth paragraph named a second judge, but that judge had not been assigned to the case; and the motion did not allege facts necessary to support a finding of actual prejudice under section 114 — 5(d), nor did it include an affidavit of those facts as required for a section 114 — 5(d) motion for cause. (Ill. Rev. Stat. 1989, ch. 38, pars. 114 — 5(a), (d).) Therefore, when filed, without further instruction from the defendant, the trial court could not tell whether the motion was intended to be for automatic substitution under section 114 — 5(a) or for cause under section 114 — 5(d).

The judge presiding at the hearing on the motion for substitution stated that he believed he had to treat the motion as one for cause, even after defendant indicated that he had made a mistake and had intended to file a motion for automatic substitution. In ruling on defendant’s motion to strike, Judge Eberspacher ruled that, as a matter of law, he could not grant the motion because it named two judges. However, we do not agree with either analysis but believe that the real issue is whether a defendant can be prohibited from amending a defective and ambiguous motion. Under the rule of liberal construction, and under the facts of this case, we do not believe that the trial court was authorized to deny the motion after defendant had made it clear that the motion was intended to be filed under section 114 — 5(a) and that the motion was not intended to be for cause.

Two main reasons have emerged for the denial of an otherwise correct motion: where the motion is determined to be brought for the purpose of delaying or avoiding trial (People v. Walker (1988), 119 Ill. 2d 465, 519 N.E.2d 890) or where the judge named in the motion has already ruled on a substantive issue in the case. (People v. Howell (1974), 16 Ill. App. 3d 989, 307 N.E.2d 172.) Neither factor is alleged to have been present in this case, and we do not find either from our review of the record. Other defects in a motion for substitution are often held to be “technical defects” not warranting denial of the motion under the liberal construction rule set forth by the Illinois Supreme Court in cases up through People v. Walker (1988), 119 Ill. 2d 465, 519 N.E.2d 890. See People v. Mosley (1962), 24 Ill. 2d 565, 182 N.E.2d 658 (where a defendant’s oral motion was held to entitle him to file a later written motion complying with the statute); People v. Thomas (1978), 58 Ill. App. 3d 460, 374 N.E.2d 795 (where filing the motion more than 10 days after the case assigned to a trial judge was held not to bar the automatic substitution of that judge in a case involving multiple defendants where the defendant filing the motion could not be charged with actual knowledge of the assignment to the judge until the 10 days had passed).

However, there are cases upholding the denial of motions naming more judges than allowed, on the basis that the statute has not been “substantially complied with.” A general allegation of prejudice will not support a motion to substitute more judges than the statute allows, and naming more judges than allowed can warrant denial of the motion. (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50.) However, none of the cases cited by the State, and no case we have found, deals precisely with the factual situation presented by this case, that the motion mistakenly named two judges but defendant acknowledged and sought to amend the mistake at his first opportunity.

Where the facts of the cases show that the defendant has made a mistake in filing the motion and then requested to correct the mistake, however, the rule favors amendments. Denying a motion for automatic substitution of judge for failure to comply with a strict construction of the statute without a chance to correct the mistake defeats rather than promotes substitution of judges, an outcome which is contrary to the purpose of the law. (People v. Dieckman (1949), 404 Ill. 161, 88 N.E.2d 433.) Furthermore, a court should not take it upon itself to rule against an ambiguous motion for substitution by construing it in a way that necessarily defeats the requested substitution. People v. Dieckman (1949), 404 Ill. 161, 88 N.E.2d 433.

One case worthy of mention, although not cited by either party, is People v. Burns (1989), 188 Ill. App. 3d 716, 544 N.E.2d 466. That case is significant in that it rules that an amendment to a motion for substitution, made later than 10 days after the case is assigned to a judge, is improper. (People v. Burns (1989), 188 Ill. App. 3d 716, 544 N.E.2d 466.) The amendment in that case added language alleging prejudice, since the original motion made no such allegation. Thus Burns is distinguishable on the basis that the motion made within 10 days in that case was incomplete, whereas, in the case at bar, the 10-day motion was complete but merely added surplus and unnecessary language, which, in our opinion, did not detract from the soundness of the motion otherwise. To the extent, however, that the ruling of Burns conflicts with the ruling in this case, we decline to follow it.

We hold that the trial court did not provide defendant with a reasonable opportunity to file a motion in compliance with section 114 — 5(a) (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(a)), and that the denial of defendant’s motion for substitution was improper. Therefore, all rulings by the trial court after May 23, 1990, are void. (People v. Pace (1992), 225 Ill. App. 3d 415, 587 N.E.2d 1257.) We wish to make it clear, however, that we are not ruling that a defendant is always entitled to amend a motion for substitution. Facts could arise in a particular case showing that the amendment was made for an improper purpose, such as delaying or avoiding trial, or the initial motion could be clear and unambiguous, so that an amendment would not be necessary. Nevertheless, under the facts of this case, the trial court should have allowed the defendant to clear up his mistake and should have granted the motion for substitution. Accordingly, we reverse defendant’s conviction and remand the case for a new trial.

Reversed and remanded.

GOLDENHERSH and MAAG, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    JANET ENGLUND, Indiv. and as Special Adm’r of the Estate of Lauren Englund, a Minor, Deceased, Plaintiff-Appellant, v. ANDREW ENGLUND et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0961
    Opinion filed June 18, 1993.
    Rehearing denied July 21, 1993.

      Stewart D. Stoller, of Stoller & Garstki, of Chicago (Steven E. Garstki, of counsel), for appellant.
    Joseph P. Bonaccorsi, of Fraterrigo, Best & Beranek, of Chicago, and Fraterrigo, Best & Beranek, of Wheaton (James F. Best, of counsel), for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

This appeal comes from an order of the circuit court of Du Page County granting summary judgment for Andrew and Dianne Englund (the homeowners) in a tort action brought by Janet Englund (plaintiff), individually and as special administrator of the estate of her deceased daughter, Lauren Englund (Lauren). Three-year-old Lauren drowned in the homeowners’ above-ground swimming pool during a party on August 20, 1989. Plaintiff filed her suit on August 14, 1991, alleging causes of action under the Wrongful Death Act (Ill. Rev. Stat. 1991, ch. 70, par. 1 et seq.) and the Survival Act (Ill. Rev. Stat. 1991, ch. 1101/2, par. 27 — 6), and requesting payment of expenses for which she became liable under the family expenses provision of the Rights of Married Persons Act (Ill. Rev. Stat. 1991, ch. 40, par. 1015(a)(1)). The trial judge granted summary judgment for the homeowners and plaintiff appeals.

Plaintiff claims in this court that the homeowners owed Lauren a duty to protect her from unreasonably dangerous conditions existing in their backyard and that a material issue of fact exists regarding proximate cause. The homeowners argue that they had no duty to supervise Lauren at the party and that plaintiff’s failure to watch Lauren adequately was the proximate cause of her death. We affirm.

The tragic facts of the case are these: The homeowners had a party to celebrate one of their children’s birthdays on August 20, 1989, at the homeowners’ house in Lombard. The house had a large deck connected to the back and an above-ground swimming pool in the backyard. The pool was about four feet deep, and there was a deck connected to the pool at the side of the pool that was farthest away from the house. The pool deck ringed the edge of the pool for about a quarter of the pool’s circumference. The pool deck had a four-foot fence along its outer edges and was aligned in such a way that its surface area could be seen from the house deck.

The pool took up a good portion of the homeowners’ yard. Next to the pool was a garage and behind the garage was a swing set with sand spread underneath it to eliminate mud under the swings. Because the sand area was behind the garage, very little of it could be seen from the house deck. A set of permanent wooden steps leading to the pool deck began just across from the sand area. At the top of the wooden steps was a gate with a latch. The gate, which was four feet high, was not self-closing. There was a dispute as to whether a small child could open the latch from outside the deck.

On the day of the incident, plaintiff, her husband, and their five children, including Lauren, came to the homeowners’ house for the party in the mid to late afternoon. Plaintiff brought three pairs of child flotation aids called “water wings” for her children to use. At that time Lauren, her brother Patrick, and her sisters, Stephanie and Michelle, went into the pool, where a number of other children were already swimming. Plaintiff helped Lauren into the water. Lauren was wearing her water wings. While the children were swimming, plaintiff watched them either from the house deck or from the yard and twice noticed that the gate on the pool deck was open. During the party and up until the incident, other party guests including plaintiff’s husband were coming and going between the house deck and the inside of the house.

Most of the children got out of the pool after swimming for about a half hour. Lauren dried off on the house deck and then went to play in the sand behind the garage. At this time, there were no adults near the pool or the sand area. Plaintiff checked on Lauren in the sand area after about five minutes and then returned to the house deck. She did not notice whether the pool deck gate was open or closed when she checked on Lauren in the sand area. After 10 to 15 more minutes passed, plaintiff again left the house deck to get her son Patrick from the pool and Lauren from the sand area so they could eat. Lauren was playing in the sand and appeared to be fine. Lauren said that she was not hungry and asked to be allowed to continue playing in the sand. Patrick exited the pool and went to the house deck with plaintiff.

Plaintiff returned to her seat on the house deck, which afforded her a view of the yard but not the sand area, and talked with her father-in-law. After 5 to 10 minutes, plaintiff got up from the house deck to chase down her two-year-old son Sean, who was running toward the pool deck. She caught him at the top of the pool deck stairs. The gate at the top of the stairs was open. Plaintiff then heard her son Patrick say, “Mom, something’s wrong with Lauren.” Patrick was outside the pool, holding Lauren’s arm up out of the water. Lauren was facedown in the pool among various pool toys and rafts.

Plaintiff put Sean down, screamed for her husband and jumped in the pool. Lauren was taken out of the water and given CPR while paramedics were called. She was unconscious. Lauren was taken to the hospital where she died nine days later without ever regaining consciousness. Plaintiff noticed a red, protruding bruise on Lauren’s right temple when she first saw Lauren at the hospital. Plaintiff did not see the bruise when she checked on Lauren in the sand area and did not know whether the bruise was present when Lauren was taken out of the pool.

Plaintiff brought this suit alleging, inter alia, that the homeowners were negligent in failing to supervise the children at the party; that the homeowners negligently constructed a defective pool deck that had no self-closing and self-locking gate and had permanent stairs rather than stairs that would swing up and lock out of the way; and that the homeowners negligently allowed pool toys to clutter the surface of the water after the children had left the pool. Plaintiff later claimed that the pool deck was also defective because it had a deck plank that would depress when stood upon. The safety instructions that came with the pool recommended that any pool deck be professionally manufactured; that ladders be either removable or of the type that swings up and out of the way, and that ladders be in the up position or removed when the pool is not in use; and that pools be protected by fences with self-closing and self-latching gates that do not allow toddlers to open the latches. Although plaintiff also alleges that the safety instructions accompanying the pool cautioned owners to remove flotation devices when the pool was not in use, we have not found such a precaution in the instructions in the record.

The trial judge granted summary judgment to the homeowners, stating, “Proximate cause was the lack of supervision that, in my opinion, shifted from the homeowner to the parents.” The judge implicitly found that the homeowners had no duty to supervise Lauren under the circumstances.

Summary judgment should be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).) Summary judgment “is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt.” (.Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Further, summary judgment should not be granted where conflicting inferences can be drawn from the same set of facts. (Neumann v. Gloria Marshall Figure Salon (1986), 149 Ill. App. 3d 824, 826.) When deciding a motion for summary judgment, the trial court must construe the pleadings, depositions, and affidavits on file strictly against the movant and liberally in favor of the movant’s opponent. Winnetka Bank v. Mandas (1990), 202 Ill. App. 3d 373, 387.

Plaintiff’s main theory in this case is that Lauren climbed the stairs of the pool deck, entered the deck through the gate, tripped on the loose deck plank, bumped her head and fell or rolled into the pool, where she was obscured from view by the various pool toys left in the pool by the homeowners. If this had actually transpired, it would certainly be arguable that the homeowners should have fixed the loose plank or warned of its existence since a hidden, loose plank that depresses when stood upon would not reasonably be anticipated on a pool deck. However, whether Lauren encountered the loose plank at all is pure speculation, as are questions whether the loose plank caused Lauren to fall or whether Lauren’s weight was sufficient to depress the plank. It is just as probable that Lauren fell into the pool while reaching for a pool toy floating near the edge of the pool.

With regard to this theory of plaintiff’s, the case of Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, is instructive. There, a woman slipped and fell on a ramp while leaving a grocery store. She did not know what caused her to fall and she produced no witnesses to the fall. She did notice grease spots in the general area of her fall, but did not know if she had stepped on one. The trial court granted summary judgment for the store owner. (Kimbrough, 92 Ill. App. 3d at 814.) The appellate court affirmed, noting, “Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that defendant’s acts caused the injury.” (Kimbrough, 92 Ill. App. 3d at 817.) Plaintiff’s theory that the loose deck plank somehow caused Lauren to fall is conjecture not supported by the evidence, and such conjecture is not enough to defeat summary judgment on this specific issue.

Plaintiff offers the affidavit of a pool safety expert to support her version of the accident. The affidavit states that the loose plank contributed to Lauren’s death. The affidavit, however, contains no additional facts concerning the incident. Consequently, plaintiff’s expert is merely guessing as to whether Lauren encountered the loose plank. The affidavit does not provide evidence that Lauren tripped over the plank, but only posits that she could have. The affidavit thus does not create a genuine issue of material fact that would, by itself, preclude the entry of summary judgment.

Absent evidence that the loose plank contributed to Lauren’s death, it is clear only that Lauren got onto the pool deck and somehow entered the water. Given Lauren’s age and the four-foot height of the pool, it must be assumed that Lauren gained access to the pool deck by climbing the deck’s permanent stairs and going through the gate. The question we must answer is whether a jury should have been allowed to decide whether the homeowners were responsible for Lauren’s death based on their failure to construct a pool deck with the proper removable stairs and self-closing and self-latching gate, their failure to remove pool toys from the pool after the swimmers had exited, their failure to place the sand area in a location that could be more readily monitored, or their failure to supervise Lauren adequately. We believe that the question of the homeowners’ liability was properly decided as a matter of law in this case, since the homeowners had no duty to protect Lauren from obvious dangers, especially those apparent to Lauren’s parents, who undertook to supervise Lauren.

The law in Illinois is that landowners generally do not have a duty to protect children on their premises from dangers that are open and obvious, such as the dangers of fire, water and falling from a height. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 325-27.) Because children are expected to avoid obvious dangers, no reasonably foreseeable risk of harm exists. Cope v. Doe (1984), 102 Ill. 2d 278, 286.

Whether a defendant has a duty for purposes of negligence analysis is a question of law for the court. (Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 187.) “Factors relevant in determining whether a duty exists are (1) foreseeability of the injury, (2) magnitude of the burden of guarding against the injury, and (3) desirability or consequence of placing the burden upon the defendant.” Stutz v. Kamm (1990), 204 Ill. App. 3d 898, 904.

Here, the homeowners rely primarily on O’Clair v. Dumelle (N.D. Ill. 1990), 735 F. Supp. 1344, and Stevens v. Riley (1991), 219 Ill. App. 3d 823, to argue that they had no duty to Lauren. Both cases are on point.

In O’Clair, the three-year-old daughter of a houseguest of the defendant homeowners drowned in the defendants’ above-ground pool. The pool was connected to the house by a deck which was accessible through a sliding glass door in the living room. The houseguest was familiar with the home’s layout, as she had stayed there before. She also knew that the uncovered pool had water in it, that her daughter could open the sliding glass door if it was not locked and that the door was usually kept unlocked by the defendants. O’Clair, 735 F. Supp. at 1345-46.

On the day of the drowning, the defendants left their home to pick up some horses, and they left behind the houseguest, her daughter and a friend of the houseguest. The daughter, whom the house-guest had left in the living room, drowned while the houseguest was talking with her friend in one of the home’s bedrooms. The house-guest had never cheeked the sliding glass door to see if it was locked prior to leaving her daughter in the living room to watch TV. O’Clair, 735 F. Supp. at 1346.

The district court held that, under Illinois law, the defendants owed no duty to the daughter because it was not foreseeable that the houseguest would fail to watch her daughter or prevent her access to the pool by locking the sliding glass door. (O’Clair, 735 F. Supp. at 1350-51.) The court noted that its analysis was consistent with other Illinois cases in which children were injured on lands of another while under the supervision of their parents. See Mooney v. Etheridge (1978), 65 Ill. App. 3d 847 (girl struck by car after being dropped off by mother for ballet lessons); Kay v. Ludwick (1967), 87 Ill. App. 2d 114 (child injured by defendant’s power riding mower while under care of mother); Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398 (11-month-old child fell from bed onto uninsulated steam pipe); Keller v. Mols (1984), 129 Ill. App. 3d 208 (child injured playing floor hockey at friend’s house within sight of parents’ home); Campbell v. Northern Signal Co. (1981), 103 Ill. App. 3d 154 (child burned while using gasoline at his grandmother’s farm while child’s mother was in area).

The 0’Clair court further rebuffed the houseguest’s argument that the defendants breached a duty to her daughter by virtue of the pool’s condition, specifically that the pool was not properly drained or covered, that the pool ladder was not replaced and that toys were not removed from the pool. (O’Clair, 735 F. Supp. at 1346-47, 1351-52.) The court explained that these conditions merely made the girl’s drowning possible and that her mother’s objectively unforeseeable failure to prevent her daughter from reaching the pool was the proximate cause of the girl’s death. O’Clair, 735 F. Supp. at 1352, citing Dunaway v. Ashland Oil, Inc. (1988), 172 Ill. App. 3d 712.

In Stevens, a 17-month-old girl was seriously injured when she fell into a creek behind the defendant homeowners’ house. The girl’s parents had crossed the street to visit with the defendants and brought their daughter. The girl wandered off unbeknownst to the adults and was found in the creek. (Stevens, 219 Ill. App. 3d at 825-27.) This court held that the creek presented an obvious risk to the child even though it was surrounded by tall prairie grass and had a steep bank that suddenly dropped off to the water. (Stevens, 219 Ill. App. 3d at 829-34.) The defendants owed no duty to the girl because the girl’s parents knew of the creek’s existence and the fact that it was partially obscured, and were primarily responsible for watching her. Stevens, 219 Ill. App. 3d at 829-34.

O’Clair and Stevens persuade us that the homeowners under the circumstances presented here owed no duty to protect Lauren from the danger of drowning in the pool. First, bodies of water have long been held to present an obvious danger of drowning, even to children. (See Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316 (water-filled ditch with steep slope presented obvious danger to child); Prince v. Wolf (1981), 93 Ill. App. 3d 505 (retention pond with deep water adjacent to shore presented obvious danger).) Second, plaintiff knew of the pool’s existence, knew that the stairs to the pool deck were permanent and that Lauren could climb them, knew that the gate to the pool deck was open on earlier occasions that day, and knew that Lauren was playing alone in an area hidden from plaintiff’s view and only a short distance from the steps to the pool deck. Moreover, plaintiff testified in her deposition that the homeowners were busy attending to the various party guests and were not devoting their time to watching the children playing in the pool or yard. It was plaintiff’s responsibility to make sure that Lauren did not gain access to the pool, and she could have done so by positioning herself in an area from which she could have seen Lauren play in the sand, or by latching the pool gate herself. Under the previously noted factors from Stutz v. Kamm (1990), 204 Ill. App. 3d 898, it was not foreseeable that plaintiff would fail to supervise her daughter adequately, and it is more desirable to place the substantial burden of supervising plaintiff’s daughter upon plaintiff rather than the homeowners. As in O’Clair and Stevens, we will not require the homeowners to anticipate negligence on plaintiff’s part and guard against it.

Plaintiff argues that, under Ward v. K mart Corp. (1990), 136 Ill. 2d 132, the question of the obviousness of the danger presented is for the jury to decide and should not be decided as a matter of law. In Ward, our supreme court stated, “[T]o the extent that the [obvious danger] rule may have held that the duty of reasonable care owed by an owner or occupier to those lawfully on his premises does not under any circumstances extend to conditions which are known or obvious to such entrants, that rule is not the law in this State.” (Emphasis in original.) (Ward, 136 Ill. 2d at 145.) The court explained that, in negligence cases in which an obvious danger defense is raised, “[t]he inquiry is whether the defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but who may reasonably be expected to be distracted *** or forgetful of the [obvious] condition after having momentarily encountered it.” (Ward, 136 Ill. 2d at 152.) Ward also noted that a defendant need not anticipate a plaintiff’s negligence. Ward, 136 Ill. 2d at 152.

Ward does not require that a jury pass on the question of obviousness in this case. In Ward, a customer encountered a five-foot-high concrete post near a store’s door when entering the store and then collided with it on his way out while carrying a large mirror that blocked his view. (Ward, 136 Ill. 2d at 136-38.) The customer saw the post only momentarily upon entering the store and was not cognizant of it when he left the store. (Ward, 136 Ill. 2d at 137-38.) Here, the pool dominated the homeowners’ backyard and presented an obvious risk to plaintiff, if not to Lauren. (See Corcoran, 73 Ill. 2d at 327-29 (danger of water-filled ditch was deemed obvious to two-year old).) Notably, Ward stated:

“Certainly a condition may be so blatantly obvious and in such position on the defendant’s premises that he could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition. Even in the case of children on the premises, this court has held that the owner or possessor has no duty to remedy conditions presenting obvious risks which children would generally be expected to appreciate and avoid.” Ward, 136 Ill. 2d at 148, citing Cope v. Doe (1984), 102 Ill. 2d 278, 286 (dealing with ice-covered retention pond).

We believe that the homeowners’ pool presented such a blatantly apparent danger of drowning that it can be deemed obvious as a matter of law. Thus, a jury was not required to pass on whether the danger encountered here was latent or obvious.

Plaintiff next argues that the homeowners voluntarily assumed a duty to make their backyard safe when they installed the pool and sand area, and when they designed and built their own pool deck in derogation of the suggestions in the pool safety manual. We agree with the court in O’Clair that defects such as the yard’s design, which made it difficult for the plaintiff to see Lauren in the sand area, and defects in the deck, which allowed Lauren to gain access to the water, merely made Lauren’s drowning possible. (O’Clair, 735 E Supp. at 1352.) While the homeowners could have done many things which would have prevented this tragedy, the evidence shows that the proximate cause of Lauren’s death was her mother’s and father’s failure to make sure that Lauren did not get into the water. Proximate cause is ordinarily a question for the jury, but it may be decided as a matter of law when “there can be no reasonable differences in the inferences to be drawn by reasonable men from the undisputed facts.” (Novander v. City of Morris (1989), 181 Ill. App. 3d 1076, 1078.) Although the homeowners’ actions made it possible for Lauren to reach the surface of the pool deck, it is indisputable that plaintiff could have, and should have, prevented Lauren from entering the water. That the yard and pool deck were not as safe as plaintiff would have had them be does not result in liability-being placed on the homeowners under the circumstances in this case.

Finally, plaintiff argues that summary judgment was improper because the homeowners admitted their negligence. At the hospital the day after Lauren was admitted, Dianne Englund, one of the homeowners, told plaintiff, “We just got too relaxed.” Plaintiff interpreted this statement to mean that Dianne and Andrew Englund, the homeowners, were the “we” referred to in the assertion and that the homeowners did not take all the precautions necessary to prevent Lauren’s injuries. However, in her deposition plaintiff admitted that the “we” in the declaration could have referred to both Dianne Englund, Andrew Englund, and plaintiff and her husband. Dianne Englund never elaborated on the statement.

Even if Dianne England’s statement referred to Dianne and Andrew, the assertion obviously concerns Lauren’s supervision and the fact that Lauren was able to enter the pool undetected. We have previously found that the homeowners did not have the primary duty to watch Lauren, but that plaintiff and her husband did. Thus, even if the homeowners acknowledged that they were lax in their attention to Lauren, this does not relieve plaintiff of her duty to Lauren and does not render the homeowners liable for Lauren’s death.

Andrew Englund also admitted in his deposition that he did not follow the advice in the pool safety manual when constructing the pool deck and that he should have locked the gate when the children left the pool. As previously noted, the condition of the pool deck merely made Lauren’s death possible; it was not the proximate cause of her drowning. As a consequence, these admissions do not establish liability on the part of the homeowners, either.

In sum, we hold that the homeowners had no duty to prevent Lauren’s access to the pool where the plaintiff undertook to watch Lauren and did, in fact, supervise her at the party. The homeowners are not liable for her death, and summary judgment was properly granted to them. The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.