Illinois Supreme Court rules that former district owes duty of care to provide hiring district with accurate employment information
Doe-3 v. McLean Cnty. Unit Dist. No. 5, Nos. 112479/112501 (Ill. Aug. 9, 2012)
Abstract: In a 5-2 split, the Illinois Supreme Court has ruled that two students, who were sexually abused by a teacher, had stated a valid cause of action against the school district that previously employed that teacher based on its duty of care to the students to provide a second district with a factually accurate employment verification form. The Court’s majority affirmed the appellate court’s decision, but on different grounds. The majority concluded that the appellate court had erred in holding that the previous school district had a duty to the students when the first district: (1) failed to warn the second district of the teacher’s conduct; (2) failed to report the teacher’s conduct to authorities; and (3) created and tendered a false letter of recommendation for the teacher, which thereby created the opportunity for the teacher to commit further abuse at the second district.
Instead, the Court’s majority determined that the first district had engaged in conduct that gave rise to a duty when it falsely stated on the second district’s employment verification form that the teacher had worked for the entire 2004-05 school year. The majority pointed out that when the second district requested a completed form from the first district, that request gave rise to a duty for the first district to provide factually accurate information on the form. The majority concluded that the students had stated a colorable claim based on their allegation that the first district had breached its duty, creating a risk of harm to the students by falsely stating on an employment verification form that the teacher had worked for the first district for the entire 2004-05 school year.
Facts/Issues: Jon White was employed by Urbana School District No. 116 (USD116) as a teacher and assigned to Thomas Paine Elementary School. During his tenure there, he sexually abused two female students (the Plaintiffs). Prior to his employment with USD116, White had been employed by McLean County Unit District No. 5 (MCUD5) from 2002 to 2005 as an elementary school teacher. Between 2002 and 2005, Plaintiffs allege that MCUD5 acquired knowledge of White’s “teacher-on-student sexual harassment, sexual abuse, and/or sexual grooming” of minor female students. Plaintiffs claim that MCUD5 did not record those incidents in White’s personnel file or employment record, failed to make timely mandated reports of White’s abuse, and failed to investigate parental complaints.
According to the complaint, during the 2004-05 school year, MCUD5 disciplined White for alleged sexual misconduct by removing him from his classroom in October 2004, and again in April or May 2005. In 2005, prior to the close of the 2004-05 school year, MCUD5 entered into a severance agreement with White which concealed his sexual abuse of students. Also in 2005, MCUD5 “created a falsely positive letter of reference for White” which concealed known sexual abuse of female students.
Plaintiffs also claimed that MCUD5 “passed” White to USD116 while concealing his past sexual abuse by intentionally giving USD116 false information regarding White’s employment at MCUD5. Plaintiffs alleged that, during White’s transition to USD116 in 2005, MCUD5 falsified employment information about White on a USD116 “Verification of Employment Form” by stating that White had worked during the entire 2004-05 school year. This statement concealed the fact that White had been subject to disciplinary removal from his classroom twice during that school year, and left before the end of that same school year.
In August 2005, USD116 hired White as an elementary school teacher. Plaintiffs alleged that USD116 relied on false information provided by MCUD5 when it hired White. Plaintiffs’ complaints, which were consolidated for this appeal, alleged that MCUD5 administrators, individually, and MCUD5 (collectively “MCUD5″), on the theory of respondeat superior, acted willfully and wantonly by providing false information on the employment verification form. (The counts against USD116 and its officials are not at issue in this appeal.) The trial court dismissed the consolidated lawsuits on the ground that MCUD5 owed no legal duty to the students. It also ruled that even if such a duty existed, either the common law public duty rule or the Illinois Tort Immunity Act precluded any duty owed to the students.
The appellate court reversed the trial court, finding that Plaintiffs adequately alleged that MCUD5 owed them a duty of care. The appellate court held that MCUD5′s act of “creating and sending” a letter of recommendation on behalf of White supported a duty based on the theory of either voluntary undertaking or negligent misrepresentation involving risk of physical harm. The appellate court also held that MCUD5 owed a duty either to warn USD116 of White’s prior conduct or to report White’s conduct to the Department of Children and Family Services.
Ruling/Rationale: The Illinois Supreme Court affirmed the appellate court’s decision, reversing the trial court’s dismissal of Plaintiffs’ complaints and remanded for further proceedings. However, the five-justice majority disagreed with the grounds relied on by that court. Specifically, the majority found that there was no duty based on MCUD5′s failure to warn USD116 of White’s conduct, failure to report White’s conduct to the appropriate state agency, or having created and sent a false letter of recommendation for White. It stated that nowhere in Plaintiffs’ complaint had they “allege[d] that [MCUD5] had an affirmative duty either to protect them from the criminal acts of a third party or to warn [USD116] about White’s conduct during his prior employment with [MCUD5].” Nor did Plaintiffs allege that any of the “special relationships” recognized under state law apply to them, for which there would have arisen an affirmative duty to aid or protect them against an unreasonable risk of physical harm.
The majority also rejected the appellate court’s finding that a duty to Plaintiffs arose from MCUD5′s recommendation letter. The majority pointed out that even though the complaint alleged the recommendation letter was created, Plaintiffs did not plead that it was sent. Therefore, the creation of the letter cannot form the basis for a duty of care on the part of MCUD5. However, the majority agreed that MCUD5′s act of misstating White’s employment history on the employment verification form did give rise to a duty of care to Plaintiffs.
The majority rejected MCUD5′s argument that any claim by Plaintiffs based on a misrepresentation on the employment verification form was merely an attempt to “repackage” a nonviable claim of fraudulent misrepresentation or negligent misrepresentation. The majority stated that “[i]n the instant case, plaintiffs’ claims are not based on the tort of fraudulent misrepresentation or negligent misrepresentation, but on willful and wanton conduct,” which requires Plaintiffs to establish the elements of negligence, the first of which is duty, as well as a deliberate intention to harm or a conscious disregard for Plaintiffs’ welfare.
The majority stated that “[w]hether the misstatements on the verification form gave rise to a legally recognized duty to plaintiffs here depends upon the ‘relationship’ between the parties, that is, the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on [MCUD5].”
In analyzing the four factors the “relationship” inquiry, the majority first decided that “[a]t the time [USD116] hired White, it had no reason to believe that White’s nonrenewal by [MCUD5] was the result of misconduct,” and therefore, as a matter of law, the majority could not say that the injuries suffered by Plaintiffs were unforeseeable. Second, the majority found nothing in the alleged facts that would suggest that the injuries suffered by Plaintiffs were too remote or unlikely as a matter of law, stating that “where a teacher who is known to have abused children is hired in a teaching position at another school, the likelihood that students at the next school will be abused by that teacher is within the realm of reasonable probability.” Third, the majority stated that it is “not an undue burden to require an employer to accurately complete an employment form. Imposing this obligation is not so unreasonable and impractical as to negate the imposition of a legal duty.” Finally, the majority stated that “it is difficult to see how any adverse consequences could result from imposing such a slight burden on a school district.”
The majority concluded that Plaintiffs had alleged sufficient facts to support the finding that MCUD5 owed them a duty of care: “Having undertaken the affirmative act of filling out White’s employment verification form, [MCUD5] had a duty to use reasonable care in ensuring that the information was accurate.” The majority also found that its holding was “bolstered by the public policy in Illinois favoring the protection of children,” and “weigh in favor of finding a duty under the facts of this case.”
The majority then turned to the issue of whether Plaintiffs’ claims were precluded by the public duty rule or the state’s Tort Immunity Act. The majority stated that the public duty rule “provides that government officials owe no duty to protect individual citizens.” The majority found that it was of no moment in this case, because Plaintiffs did not “allege that [MCUD5] failed to protect them or that [MCUD5] owed any affirmative duty to do so.” Likewise, it found the Tort Immunity Act was not applicable here because Plaintiffs did “not claim that [MCUD5 is] vicariously liable for the conduct of White.”
Justice Freeman, one of the five justices in the majority, filed a special concurring opinion “to make clear that the duty in this case arises not from any statutory authority, but rather from the common law doctrine of negligence.” Justice Freeman stated that a previous employer “is obliged to use reasonable care in passing along whatever information it chooses to give regarding the former employee’s character when so asked if the employee presents a risk to third parties.” Justice Freeman also stated that based on amendments to the state constitution that abolished all forms of governmental immunity except as provided by the General Assembly, the public duty rule ceased to exist as a basis to assess liability.
Justice Garman, though also in the five-justice majority, filed a separate opinion, concurring in part and dissenting in part. Justice agreed with the majority that a duty of ordinary care arose, but identified other circumstances, “rather than any conduct by [MCUD5], [that] inform the duty analysis.” In the dissenting portion of the opinion, Justice Garman stated that the majority’s discussion of Section 2-210 of the Tort Immunity Act was both premature and inadequate, since Section 2-210 was not raised as an affirmative defense by MCUD5 in the motions to dismiss.
The Justices Karmeier and Theis dissented, stating that the “majority has created this new cause of action on a framework of skeletal complaints that do not adequately state a cause of action, fabricating the cause out of whole cloth, while utilizing inadequate or incomplete analyses of several major issues.” The dissent said, “In the end, the majority reaches a decision which may well be popular, given the facts and circumstances of this case and a laudable desire to protect children, but one that is not well-grounded, one that disregards pertinent statutory authority, and one that appears to do violence to precedent.” The dissenting opinion also stated that the majority did not provide any analysis of this case in terms of the Abused and Neglected Child Reporting Act.
Doe-3 v. McLean Cnty. Unit Dist. No. 5, Nos. 112479/112501 (Ill. Aug. 9, 2012)
[Editor's Note: In May 2012, Legal Clips summarized a Miami Herald story in Education Week, which reported that Governor Rick Scott signed into law a bill that requires anyone to report known or suspected cases of child sex abuse. The “Protection of Vulnerable Persons” law also gives Florida the toughest mandatory reporting requirements in the nation for sex abuse violations on schools and university campuses, said victims' advocates.
In March 2012, Legal Clips summarized a decision by the California Supreme Court in C.A. v. William S. Hart Union High Sch. Dist., which held that a student who was the victim of sexual abuse by a high school guidance counselor had stated a valid cause of action against a school district on the theory of vicarious liability based on the district’s supervisory and administrative employees’ negligent hiring, supervision, and retention of the guidance counselor. It concluded there was sufficient caselaw that established “that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable.” ]