Stern v. Ritz Carlton Chicago

• Citation: 299 Ill.App.3d 674,702 N.E.2d 194
• Decision Date: 30 September 1998
• Docket Number: Nos. 1-97-2148,1-97-2451,s. 1-97-2148
• Parties: , 234 Ill.Dec. 28, 14 IER Cases 735 Judith STERN and Yvette Schlumpf, Plaintiffs-Appellants, v. RITZ CARLTON CHICAGO, Svetlin Tanev, Indiv., and Arnold Vodovosov, Indiv., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 194

702 N.E.2d 194

299 Ill.App.3d 674, 234 Ill.Dec. 28,

14 IER Cases 735

Judith STERN and Yvette Schlumpf, Plaintiffs-Appellants, v. RITZ CARLTON CHICAGO, Svetlin Tanev, Indiv., and Arnold

Vodovosov, Indiv., Defendants-Appellees.

Nos. 1-97-2148, 1-97-2451.

Appellate Court of Illinois,

First District, Sixth Division.

Sept. 30, 1998.

Rehearing Denied Nov. 5, 1998.

R.S.Hoover & Associates of Cook County, Chicago, (R. Sam Hoover and Robert E. Hoover, of counsel), for Plaintiffs-Appellants.

LaBarge, Campbell & Lyon, L.L.C. of Cook County, Chicago (Kevin Campbell and Deborah J. Spector, of counsel), for Defendants-Appellees.

Justice QUINN delivered the opinion of the court:

While guests at defendant Ritz Carlton Hotel (the Ritz), plaintiffs Judith Stern (Stern) and Yvette Schlumpf (Schlumpf) allege that defendants Svetlin Tanev (Tanev) and Arnold Vodovosov (Vodovosov) sexually assaulted them during the course of each plaintiff's massage. Plaintiffs filed a three-count complaint against the Ritz and Tanev and Vodovosov, individually. The Ritz filed a motion for summary judgment, which the trial court granted. On appeal, plaintiffs contend that the trial court erred in granting summary judgment in favor of the Ritz because Tanev and Vodovosov's conduct was within the scope of their employment. For the reasons that follow, we affirm.

Plaintiff Stern alleges that on September 15, 1995, while she and her husband were guests at the Ritz, Stern made arrangements to receive a massage. A female attendant took Stern to a small room with a table and told her to disrobe and recline on the table under a sheet. After the attendant left the room, Tanev entered, made small talk with Stern, and began the massage. ¹ Tanev massaged Stern's shoulders, back and legs while she laid on her abdomen. Tanev then asked Stern to turn onto her back and exposed her abdomen and legs to the groin. Tanev massaged her legs and abdomen. While rubbing her lower abdomen, he said "you like?" He then proceeded to place his fingers in her pubic hair, by the vaginal opening, and touched the side of her vagina. Stern objected and ordered Tanev out of the room.

Stern immediately informed a hotel manager of the incident. The manager told Stern that he would "look into" making an investigation. Stern discussed the incident with her husband and then notified the police. After a police investigation, Tanev was charged with battery and sexual assault. Tanev was subsequently convicted of battery and sentenced to one year of social service supervision.

Plaintiff Schlumpf alleges that on February 4, 1995, while a guest at the Ritz, she made arrangements to receive a massage. A female attendant led Schlumpf to a small room where she reclined on a table under a large towel. Vodovosov, director of the spa at the Ritz, entered the room, made small talk with Schlumpf and began the massage. He first massaged her arms, shoulders and neck. He then asked her if she wanted her chest massaged and she answered "yes." Whereupon he exposed her breasts by folding the towel down and began to massage them. She became uncomfortable and said "no thank you" and Vodovosov partially recovered her breasts and moved on to massage other parts of her body. At Vodovosov's suggestion, she removed herself from the massage table, stood up and took off her panties. She was completely naked after taking off her panties. She then reclined on the table and Vodovosov massaged her abdomen, legs and thighs. While massaging her lower abdomen Vodovosov also massaged her pubic area and while doing so, he inserted a finger into her vagina. He entered her vagina two times, once from each side of the table. Each time she said "no thank you" and he stopped without comment and moved on to another phase of the massage.

After the massage, Schlumpf paid for it and made no complaint to hotel management at the time. Later, Schlumpf informed her husband of what happened during the course of the massage. Schlumpf's husband contacted the hotel manager and informed the manager of what happened to his wife. After talking with Schlumpf, the managers at the Ritz promised that they would conduct an investigation. The following month, Schlumpf discovered that Vodovosov was not terminated or otherwise disciplined. Two and one-half months later, Schlumpf reported the incident to the police and filed battery and sexual assault charges against Vodovosov. At Vodovosov's trial, the court granted a motion for directed verdict in his favor.

As part of their contracts, massage therapists at the Ritz were obligated to follow the code of ethics of the american Massage Therapy Association, which instructs massage therapists to refrain from the type of conduct alleged by plaintiffs. Both Vodovosov and Tanev have denied plaintiffs' allegations.

Plaintiffs filed a three-count complaint against the Ritz, Tanev and Vodovosov. In counts I and II, plaintiffs allege that Tanev and Vodovosov, acting individually and in their capacity as agents and servants of the Ritz, made harmful and offensive contact by touching plaintiffs' sexual organs without permission. In count III, plaintiffs allege that the Ritz negligently supervised the conduct and operations of the masseurs at the Ritz, negligently hired these masseurs without investigating their backgrounds and failed to provide reasonable safeguards to protect women who were receiving massages from offensive and unwelcome contact. Count III remains pending in the trial court and is not at issue in this appeal.

The Ritz filed a motion for summary judgment as to count I and count II contending that it was not liable for the conduct of Tanev or Vodovosov because their actions fell outside the scope of their employment. The trial court granted summary judgment in favor of the Ritz and plaintiffs' appeal immediately followed.

Initially, we note that a reviewing court conducts a de novo review of the evidence in summary judgment cases. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). The reviewing court must construe all evidence strictly against the movant and liberally in favor of the nonmoving party. Espinoza, 165 Ill.2d 107 at 113, 208 Ill.Dec. 662, 649 N.E.2d 1323. Where the pleadings, depositions and affidavits show that there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Quirke v. City of Harvey, 266 Ill.App.3d 664, 668, 203 Ill.Dec. 536, 639 N.E.2d 1355 (1994). If reasonable persons could draw different inferences from undisputed facts, summary judgment should be denied. Smith v. Armor Plus Co., 248 Ill.App.3d 831, 839, 187 Ill.Dec. 625, 617 N.E.2d 1346 (1993).

Plaintiffs contend that both Vodovosov and Tanev were acting within the scope of their employment with the Ritz at the time plaintiffs were assaulted. Generally, summary judgment is inappropriate in scope-of-employment cases. Pyne v. Witmer, 129 Ill.2d 351, 359, 135 Ill.Dec. 557, 543 N.E.2d 1304 (1989). "Only if no reasonable person could conclude from the evidence that an employee was acting within the course of employment should a court hold as a matter of law that the employee was not so acting." Pyne, 129 Ill.2d at 359, 135 Ill.Dec. 557, 543 N.E.2d 1304.

In the context of respondeat superior liability, an employer may be liable for the " 'negligent, wilful, malicious or even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the business of the employer.' " Deloney v. Board of Education, 281 Ill.App.3d 775, 784, 217 Ill.Dec. 123, 666 N.E.2d 792 (1996), quoting Webb v. Jewel Companies, Inc., 137 Ill.App.3d 1004, 1006, 92 Ill.Dec. 598, 485 N.E.2d 409 (1985). The burden is on the plaintiff to show the contemporaneous relationship between the tortious act and scope of employment. Pyne, 129 Ill.2d at 360, 135 Ill.Dec. 557, 543 N.E.2d 1304.

Plaintiffs specifically argue that summary judgment is too drastic and arbitrary a measure for a scope-of-employment issue where the deviations from job duties are slight and transient. Plaintiffs urge this court to characterize the alleged intentional conduct of Tanev and Vodovosov as a detour. Illinois courts have long recognized the distinction between "detour" and "frolic." A detour occurs where the employee's deviation for personal reasons is seen as sufficiently related to the employment. Laird v. Baxter Health Care Corp., 272 Ill.App.3d 280, 288, 208 Ill.Dec. 758, 650 N.E.2d 215 (1994). A frolic occurs where the employee's personal business is seen as unrelated to employment. Laird, 272 Ill.App.3d at 288, 208 Ill.Dec. 758, 650 N.E.2d 215. " 'Where an employee's deviation from the course of employment is slight and not unusual, a court may find as a matter of law that the employee was still executing the employer's business. [Citation.] Conversely, when a deviation is exceedingly marked and unusual, as a matter of law the employee may be found to be outside the scope of employment.' " Laird, 272 Ill.App.3d at 288, 208 Ill.Dec. 758, 650 N.E.2d 215, quoting Pyne, 129 Ill.2d at 361, 135 Ill.Dec. 557, 543 N.E.2d 1304.

Plaintiffs rely on St. Paul Fire & Marine Insurance Co., v. Downs, 247 Ill.App.3d 382, 187 Ill.Dec. 130, 617 N.E.2d 338 (1993), to support their contention that the sexual assault was a detour committed within the scope of employment and therefore created respondeat superior liability for the employer. In St. Paul, a psychotherapist engaged in sexual intercourse with a client allegedly as part of therapy. The client filed a complaint against the psychotherapist's employer alleging, inter alia, that the employer was vicariously liable for the acts of the psychotherapist. The plaintiff, St. Paul, issued a professional liability insurance policy to the employer and filed a declaratory judgment action seeking a determination that no coverage existed under the professional liability...