Powell v. City of Chi.
| Docket Number | 1-19-2145 |
| Decision Date | 24 June 2021 |
| Citation | 2021 IL App (1st) 192145,197 N.E.3d 219,458 Ill.Dec. 806 |
| Parties | Anthony POWELL, Plaintiff-Appellant, v. The CITY OF CHICAGO and Carlyle Calhoun, Defendants (The City of Chicago, Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Lawrence Jackowiak, Jackowiak Law Offices, LLC, of Chicago, for appellant.
Mark A. Flessner, Corporation Counsel of the City of Chicago, of Chicago (Benna Ruth Solomon, Deputy Corporation Counsel; Myriam Zreczny Kasper, Chief Assistant Corporation Counsel; Suzanne M. Loose, Senior Counsel; of counsel), for appellee.
¶ 1 Plaintiff, Anthony Powell (Powell), appeals the circuit court of Cook County's dismissal of his claims against defendant City of Chicago (City) pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2018)). In his complaint, Powell alleged that defendant Carlyle Calhoun (Calhoun), an officer for the Chicago Police Department, sexually assaulted Powell while he was in Calhoun's custody and therefore both Calhoun and the City are liable. On appeal, Powell argues that the City can be held liable for a police officer's sexual assault under respondeat superior and the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/9-102 (West 2018) ). For the following reasons, we affirm.
¶ 3 Powell filed a civil complaint against Calhoun and the City, alleging that Calhoun was employed as an officer for the Chicago Police Department and was acting within the scope of his employment with the City on February 3, 2018. The complaint further alleged that on the day in question, Powell was in Calhoun's custody at St. Bernard Hospital when Calhoun sexually assaulted him.
¶ 4 The complaint included three claims. Count I alleged that Calhoun committed battery. Count II alleged that Calhoun's acts were within the scope of his employment and that the City was liable for his acts under the doctrine of respondeat superior. Count III similarly alleged that Calhoun's acts were within the scope of his employment and that the City was required to indemnify Calhoun for any judgments arising from his acts pursuant to the Tort Immunity Act ( 745 ILCS 10/9-102 (West 2018) ).
¶ 5 The City filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Code. Citing Illinois case law, the City argued that it was not liable since, as a matter of law, sexual assault is outside of a police officer's scope of employment, which excludes conduct solely for an employee's benefit. The City also argued that it did not hire Calhoun to perform the alleged acts of sexual assault and that these acts were inconsistent with a police officer's responsibilities.
¶ 6 In response, Powell acknowledged that Illinois courts have found that sexual assault is outside of the scope of employment but argued that cases involving police officers should be analyzed differently since they carry more authority. As support, Powell cited several federal cases finding that sexual assaults committed by police officers could be within the scope of their employment. In addition, Powell argued that a police officer's scope of employment could be interpreted more broadly but acknowledged that the Illinois Supreme Court has never decided the issue. Powell further contended that the issue of whether such conduct is within the scope of employment is a question of fact for the jury to decide.
¶ 7 In its reply, the City argued that Powell failed to cite any Illinois cases applying a heightened standard in incidents involving police officers. The City also disputed Powell's contention that a sexual assault can be within the scope of employment and is a question for the jury to determine. The City concluded that it cannot be liable, since Calhoun was acting only for his own benefit, and cited an Illinois case providing that a sexual assault by an employee cannot be imputed to the employer as a matter of law.
¶ 8 The circuit court determined that the alleged sexual assault could not have occurred within Calhoun's scope of employment as a matter of law and granted the City's motion as to counts II and III, dismissing them with prejudice. In rendering this determination, the circuit court observed that neither the Illinois Supreme Court nor the Illinois Appellate Court has decided the issue, but it agreed with the City that, under Illinois law, sexual assault generally is not considered within the scope of employment.
¶ 9 Thereafter, the circuit court entered a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that the order dismissing counts II and III was final and appealable and that there was no just reason to delay enforcement or appeal. This appeal followed.
¶ 11 On appeal, Powell asserts that the circuit court erred by dismissing his claims against the City pursuant to section 2-619(a)(9) ( 735 ILCS 5/2-619(a)(9) (West 2018)), arguing that the City can be held liable for a police officer's sexual assault under respondeat superior and the Tort Immunity Act ( 745 ILCS 10/9-102 (West 2018) ). Specifically, Powell argues that a sexual assault can be within a police officer's scope of employment and that the issue of whether such conduct falls within a police officer's scope of employment is a question of fact for the jury to determine.
¶ 12 A section 2-619(a)(9) motion is properly presented to determine questions regarding an employee's scope of employment. See Masters v. Murphy , 2020 IL App (1st) 190908, ¶ 13, 448 Ill.Dec. 374, 176 N.E.3d 911 ; Houston v. Quincy Post 5129, Veterans of Foreign Wars , 188 Ill. App. 3d 732, 735-36, 135 Ill.Dec. 929, 544 N.E.2d 425 (1989). Section 2-619(a)(9) allows for the dismissal of an action on the ground that "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2018). An affirmative matter may be apparent on the face of the complaint or established by external submissions that defeat the claim. Perez v. Chicago Park District , 2016 IL App (1st) 153101, ¶ 10, 407 Ill.Dec. 337, 63 N.E.3d 261. A motion to dismiss under section 2-619 "admits well-pleaded facts but does not admit conclusions of law and conclusory factual allegations unsupported by allegations of specific facts." Better Government Ass'n v. Illinois High School Ass'n , 2017 IL 121124, ¶ 21, 417 Ill.Dec. 728, 89 N.E.3d 376. When considering a dismissal under section 2-619(a)(9), we must determine whether the existence of a genuine issue of material fact should have precluded the dismissal or whether dismissal is proper as a matter of law. Id. We review a section 2-619 dismissal de novo , which means that we perform the same analysis that a trial judge would perform. Elam v. O'Connor & Nakos, Ltd. , 2019 IL App (1st) 181123, ¶ 23, 436 Ill.Dec. 290, 142 N.E.3d 393.
¶ 13 Powell first argues that the alleged sexual assault committed by Calhoun can be within his scope of employment. In response, the City asserts that we may reject this argument outright as he fails to cite any Illinois authority in support. See Neuhengen v. Global Experience Specialists, Inc. , 2018 IL App (1st) 160322, ¶ 155, 424 Ill.Dec. 718, 109 N.E.3d 832 ; Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).
¶ 14 We first address the City's forfeiture argument. As the circuit court noted, neither the Illinois Supreme Court nor the Illinois Appellate Court has determined whether a sexual assault committed by a police officer is outside of his scope of employment as a matter of law. Thus, this is an issue of first impression for this court. Moreover, Neuhengen does not support the proposition that Powell must cite Illinois law; under Neuhengen , a party forfeited its argument on appeal by failing to cite any authority. Neuhengen , 2018 IL App (1st) 160322, ¶ 155, 424 Ill.Dec. 718, 109 N.E.3d 832. As is further discussed below, although Powell cites only federal decisions and out-of-state cases to support his contention, he has not forfeited his argument. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); Wasleff v. Dever , 194 Ill. App. 3d 147, 156, 141 Ill.Dec. 86, 550 N.E.2d 1132 (1990). We therefore now proceed to Powell's argument regarding respondeat superior.
¶ 15 Respondeat superior allows an injured party to hold a principal vicariously liable for the conduct of its agent. McNerney v. Allamuradov , 2017 IL App (1st) 153515, ¶ 67, 416 Ill.Dec. 455, 84 N.E.3d 437. For an employer to be vicariously liable under respondeat superior , the employee's tort must have been committed within the scope of employment. Pyne v. Witmer , 129 Ill. 2d 351, 359, 135 Ill.Dec. 557, 543 N.E.2d 1304 (1989). Similarly, pursuant to the Tort Immunity Act, a local public entity is directed to pay compensatory damages for any tort judgment or settlement for which "an employee while acting within the scope of his employment is liable." 745 ILCS 10/9-102 (West 2018). Thus, both of Powell's claims against the City turn on the same issue: whether the alleged sexual assault committed by Calhoun is outside of his scope of employment as a matter of law.
¶ 16 In Bagent v. Blessing Care Corp. , 224 Ill. 2d 154, 308 Ill.Dec. 782, 862 N.E.2d 985 (2007), our supreme court adopted section 228 of the Restatement (Second) of Agency, which states that, to be within the scope of employment, an employee's conduct must satisfy three criteria: " ‘ ‘‘(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the [employer]." ’ ’’ Id. at 164, 308 Ill.Dec. 782, 862 N.E.2d 985 (quoting Pyne , 129 Ill.2d at 360, 135 Ill.Dec. 557, 543 N.E.2d 1304, quoting Restatement (Second) of Agency § 228 (1958) ). An employee's conduct must satisfy all three criteria...
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