Anderson v. Boy Scouts of America, Inc.

• Decision Date: 06 March 1992
• Docket Number: 1-91-1568,Nos. 1-90-2603,s. 1-90-2603
• Citation: 168 Ill.Dec. 492,589 N.E.2d 892,226 Ill.App.3d 440
• Parties: , 168 Ill.Dec. 492 Samantha ANDERSON, a minor, By and Through her mother and next friend, Deborah ANDERSON, and Terrance and Deborah Anderson, individually, Plaintiffs-Appellants, v. BOY SCOUTS OF AMERICA, INC., a foreign corporation; Du Page Area Council of Boy Scouts of America, Inc., an Illinois corporation, Defendants-Appellees (Greenbrook Parent Teacher Organization, Defendants.)
• Court: United States Appellate Court of Illinois

Page 892

589 N.E.2d 892

226 Ill.App.3d 440, 168 Ill.Dec. 492

Samantha ANDERSON, a minor, By and Through her mother and next friend, Deborah ANDERSON, and Terrance and Deborah Anderson, individually Plaintiffs-Appellants, v. BOY SCOUTS OF AMERICA, INC., a foreign corporation; Du Page Area Council of Boy Scouts of America, Inc., an Illinois corporation, Defendants-Appellees (Greenbrook Parent Teacher Organization, Defendants.)

Nos. 1-90-2603, 1-91-1568.

Appellate Court of Illinois First District, Fifth Division.

March 6, 1992.

Schwartz & Rubin, John B. Schwartz and Stephen J. Caron, Chicago, for plaintiffs-appellants.

Dana C. Crowley, Bullaro, Carton & Stone, Chicago, for defendants-appellees.

Justice MURRAY delivered the opinion of the court:

Plaintiffs, Samantha Anderson and her parents, Terrance and Deborah Anderson (the Andersons), appeal from two separate circuit court orders, one granting summary judgment in favor of the Du Page Area Council of Boy Scouts of America, Inc. (Du Page Area Council or Council) and the other granting summary judgment in favor of the national organization, Boy Scouts of America, Inc. (BSA), in a negligence action brought by the Andersons. We consolidated the appeals for review and now affirm the orders of the circuit court.

According to plaintiffs' complaint, as amended on June 21, 1990, Samantha Anderson, age 14 months, was injured on November, 26, 1988, when Daniel R. Searle (Searle) struck her with his car as he backed out of a driveway at a residence in Hanover Park, Illinois. Plaintiffs further alleged that at the time of the accident Searle was a webelos ¹ leader for Cub Scout Pack No. 421, Den No. 4, a scouting unit formed by the Greenbrook Parent Teacher Association and chartered by the Boy Scouts of America through the Du Page Area Council of the Boy Scouts of America and that immediately prior to the accident Searle had delivered craft materials, which were to be used for a scouting project, to the residence in Hanover Park. Based upon these alleged facts, plaintiffs sought to hold Greenbrook Parent Teacher Association, the Du Page Area Council and BSA vicariously liable for Searle's negligence on the theory of respondeat superior. ²

On April 12, 1990, BSA moved for summary judgment. BSA did not deny that an accident took place or that Searle was negligent. Rather, it merely argued that BSA did not supervise or exercise any control over the day-to-day activities of local scouting units or the volunteer adult leaders of these units, in general, nor did it have any control over the actions of Searle in reference to the specific incident cited here. Therefore, no agency relationship existed between BSA and adult scout leaders, such as Searle, and BSA could not be held vicariously liable on the basis of respondeat superior or any other agency theory. After a hearing before Judge Hoffman on August 2, 1990, BSA's motion for summary judgment was granted. The court analogized the matter to a franchisor/franchisee situation and found that nothing in the charter or bylaws of the BSA indicated that BSA retained the power to control the actions of adult leaders. Thus, the court found that no principal-agent relationship existed and the negligence of Searle could not be imputed to BSA.

On September 25, 1990, the Du Page Area Council filed its motion for summary judgment. It, too, claimed that agency principles could not be applied to impose liability on them. The council argued that, based upon the organizational scheme for scouting units, area councils exercised no direct control over the daily activities of local scouting units or their adult leaders. Thus, Searle, who was merely a webelos leader for a scouting unit within the council's geographical district, could not be deemed an agent of the Du Page Area Council. A hearing was held on the motion on April 15, 1991, at which time Judge Schiller granted the Du Page Area Council summary judgment in its favor, finding that there was no evidence that an agency relationship existed.

The sole issue raised in the appeals is whether a factual issue exists on the question of Searle's agency relationship with the defendant organizations sufficient to have precluded judgment as a matter of law. Jurisdiction is vested in this court over these consolidated appeals because the orders contain the language required by Supreme Court Rule 304(a), making these otherwise nonfinal orders final. Ill.Rev.Stat.1989, ch. 110A, par. 304(a).

Initially, we note, that with respect to the claim against BSA, plaintiffs argue on appeal that the law of the District of Columbia should apply rather than Illinois law. Plaintiffs maintain that because the charter, bylaws, rules and regulations of the BSA are what they rely upon to establish the extent of the power, control, rights and duties that BSA exerts over its adult scout leaders and because BSA is a District of Columbia corporation organized pursuant to Federal charter, the law of vicarious liability as followed in the District of Columbia should be controlling.

Plaintiffs did not raise the choice of law issue at the trial court level, nor does plaintiff explain how District of Columbia law differs from the law of Illinois on the matter of vicarious liability. Therefore, we question whether this is even a valid issue on review or whether plaintiffs have waived this issue. However, even if we were to assume that plaintiffs were entitled to introduce this issue at this time, we would find it to be wholly without merit. Plaintiffs appear to assume that the charter, bylaws, rules and regulations promulgated by the BSA constitute some sort of a contract between the national organization and the many thousands of scouting leaders throughout the country. This is a premise we are not prepared to accept.

Furthermore, even if the charter were a contract, it would not require that we apply out-of-state law since this so-called "contract" has no provision for choice of law. Therefore, the court would apply the Restatement (Second) of Conflicts of Law analysis and determine the most significant relationship to the transaction, as well as other relevant policy interests. (See Lyons v. Turner Construction Co. (1990), 195 Ill.App.3d 36, 141 Ill.Dec. 719, 551 N.E.2d 1062.) In doing so, it seems clear that Illinois law would apply in this case. In any event, regardless of whether Illinois or District of Columbia law applies, plaintiffs have failed to create a genuine issue of material fact on the issue of the vicarious liability of defendants.

A principal may be held vicariously liable for the wrong-doing of its agent. The test of agency is whether the alleged principal has the...