Doe v. Brouillette

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Doe v. Brouillette

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-0633 Rel

Case Date: 03/31/2009

Preview:FIRST DIVISION Date Filed: March 31, 2009 No. 1-07-0633 JOHN DOE, ) ) Plaintiff-Appellant, ) ) v. ) ) ROBERT BROUILLETTE, Also Known ) as Robert Sullivan, THE ) CONGREGATION OF CHRISTIAN ) BROTHERS, Also Known as the ) Christian Brothers of Ireland, ) Also Known as the Christian ) Brothers, and ST. LAURENCE ) HIGH SCHOOL, ) ) Defendants ) ) (The Archdiocese of Chicago, ) ) Defendant-Appellee.) ) Appeal from the Circuit Court of Cook County.

No. 02 L 008522

Honorable Diane J. Larsen, Judge Presiding

JUSTICE HALL delivered the opinion of the court: The plaintiff, John Doe, filed a multicount complaint against the defendant, the Archdiocese of Chicago,1 alleging that he was sexually molested by a guidance counselor at a Catholic high school. The trial court granted summary judgment to the

Catholic Bishop on the grounds that the guidance counselor was not an employee of the Catholic Bishop. The plaintiff appeals, asserting that genuine issues of material fact exist precluding summary judgment. The plaintiff

1

Defendant maintains that it was incorrectly sued as the

Archdiocese of Chicago and that the correct name is the Catholic Bishop of Chicago. Catholic Bishop. We will refer to the defendant as the

No. 1-07-0633 raises the following specific issues: (1) whether the circuit

court erred in finding that the plaintiff failed to present any evidence of reliance to support an apparent agency claim; (2) whether a genuine issue of material fact existed as to whether Brother Brouillette was an employee or agent of the Catholic Bishop; (3) whether the plaintiff may assert a cause of action for breach of fiduciary duty; (4) whether a "special relationship" existed between the plaintiff and the Catholic Bishop requiring the Catholic Bishop to protect the plaintiff from the criminal acts of a third party; and (5) whether the plaintiff stated causes of action for fraudulent concealment and civil conspiracy. On April 16, 2003, the plaintiff filed his fifth amended complaint against the Catholic Bishop, Brother Robert Brouillette, the Congregation of the Christian Brothers (the Christian Brothers), and St. Laurence High School (St. Laurence). The plaintiff alleged that St. Laurence was owned by the Catholic Bishop. The plaintiff alleged that, during his freshman and

sophomore years at St. Laurence, 1996 to 1998, he was sexually molested by Brother Brouillette, who had served as his guidance counselor and mentor. The plaintiff further alleged that it was

not until 2002 that he realized that he had been injured by his sexual contact with Brother Brouillette. In count II of his fifth amended complaint, the plaintiff alleged that the Catholic Bishop was negligent in hiring Brother 2

No. 1-07-0633 Brouillette in that it knew or should have known of his history of pedophilia and therefore failed to exercise reasonable care in hiring Brother Brouillette to provide counseling and mentoring to children. In count V, the plaintiff alleged that the Catholic

Bishop had been placed on notice of Brother Brouillette's history of pedophilia but failed to supervise him, allowing him to perform services as a teacher and guidance counselor. In count

VIII, the plaintiff alleged that the Catholic Bishop violated the Sexual Exploitation Professional Health Services, and Professional Mental Health Services in Psychotherapy Act (740 ILCS 140/1 et seq. (West 2002)) (the Act) by allowing Brother Brouillette to provide counseling services to the plaintiff while sexually molesting him. In count XII, the plaintiff alleged that, as an educational and religious association, the Catholic Bishop owed a fiduciary duty to the plaintiff. The plaintiff further alleged that the

Catholic Bishop violated its duty to the plaintiff by its policy of tolerance of Brother Brouillette's sexual misconduct. Finally, in count XV, the plaintiff alleged that the Catholic Bishop engaged in a conspiracy to suppress Brother Brouillette's history of pedophilia and falsely represented that Brother Brouillette was an appropriate teacher, a fact on which the plaintiff and his family relied. The Catholic Bishop filed an answer to the fifth amended complaint asserting that, while St. Laurence was a Catholic high 3

No. 1-07-0633 school, the Catholic Bishop did not own, operate or control the school. The Catholic Bishop denied that Brother Brouillette was

its agent or employee. On April 30, 2004, the Catholic Bishop filed a motion for summary judgment asserting the statute of limitations set forth in section 13-202.2 of the Code of Civil Procedure (735 ILCS 5/13-202.2 (West 2002)). In its motion, the Catholic Bishop

reserved the right to assert that it did not exercise any control over St. Laurence or the Christian Brothers or that Brother Brouillette was not its agent or employee or under its control. Following the filing of the Catholic Bishop's motion for summary judgment, Brother Brouillette and the Christian Brothers reached settlement agreements with the plaintiff and were dismissed by the circuit court.2 Subsequently, the Catholic Bishop filed a supplementary motion for summary judgment. In its motion, the Catholic Bishop

asserted that it was entitled to summary judgment because no question of material fact existed as to whether Brother Brouillette was its employee or agent or under its control. The

Catholic Bishop further maintained that tort duties may not be imposed based on the interpretation of religious doctrine. The

Catholic Bishop also maintained that, under Illinois law, there
2

While there are references in the record that St. Laurence

also reached a settlement with the plaintiff, a copy of the order dismissing St. Laurence could not be located in the record. 4

No. 1-07-0633 is no cause of action for breach of fiduciary duty between a cleric and a church member and that no special relationship existed to allow the imposition of a duty to protect the plaintiff from a criminal act. Finally, the Catholic Bishop

asserted that the plaintiff failed to properly allege his fraudulent concealment and civil conspiracy claims. The

following evidence taken from deposition testimony and affidavits is pertinent to the issues raised in this appeal. Sister Margaret Rose Farley, the Catholic Bishop's director of school personnel, testified that there were two types of high schools located within the Archdiocese of Chicago: those sponsored by religious communities and those sponsored by the archdiocese. A school sponsored by a religious organization is

owned and operated by that organization with its own specific mission and purpose and financial liability. Schools sponsored

by the archdiocese are part of the corporation of the archdiocese (the Catholic Bishop), and it is responsible for them. Laurence is sponsored by the Christian Brothers. According to Sister Farley, the cardinal must give permission before a Catholic school can be established within the geographic limits of the archdiocese. revoke that permission. The cardinal could also St.

The cardinal was the ultimate authority

for all Catholic activity in the archdiocese, including what is conducted by religious orders and schools. The cardinal would

not fire a teacher for teaching something against the Catholic 5

No. 1-07-0633 faith, but he could call for an investigation. While the

cardinal does not have the right to investigate charges of sexual misconduct between a member of a religious order and a student, he has the right to ensure that it is investigated. Sister Farley did staff recruitment for the whole Catholic school system. The Catholic Bishop did not have a role in the

operation, such as salary scale or budget, of an nonarchdiocesan Catholic school such as St. Laurence. Thomas J. Ondrla, currently president of St. Laurence, was principal of the school from 1993 to 2000. St Laurence was a

school in the archdiocese but was not an archdiocesan school. The cardinal would have some oversight in religious matters; the school's right to call itself Catholic was at the cardinal's discretion. Mr. Ondrla did not know if the Catholic Bishop had

the right to involve itself in an investigation or discipline of a teacher at St. Laurence. The "archbishop" was not expected to Mr.

conduct daily supervision of the activities at the school.

Ondrla agreed that the cardinal was responsible for the moral and spiritual welfare of the students attending schools in the geographic area of the archdiocese. Mr. Ondrla testified further that there was a liaison person between the Office of Catholic Schools and St. Laurence who transferred information and attended the monthly council meetings held by the high schools. There was no requirement that St. None of

Laurence personnel attend the monthly council meetings. 6

No. 1-07-0633 the policies and procedures of the Catholic Bishop between 1994 and 1999 applied to St. Laurence. Mr. Ondrla acknowledged that information was collected from St. Laurence by the Catholic Bishop by way of surveys filled out by personnel at St. Laurence. The information was used by the

Catholic Bishop to make general statements regarding the test scores in the Catholic high schools in the archdiocese. The

survey required St. Laurence to provide information about the duties performed by paid personnel, all monies received by the school, the salaries and related costs and other types of information to aid the Catholic Bishop's planning efforts for fund raising. St. Laurence was required to pay a fee to the Catholic Bishop for each student to defray the costs of the Office of Catholic Schools for services and workshops in which the schools participated. St. Laurence could still call itself a Catholic

school even if it did not pay the annual assessment for each student. Mr. Ondrla denied that St. Laurence took out a loan with the Catholic Bishop. The Catholic Bishop had entered into an

agreement to purchase natural gas for the archdiocese; it was made available to grammar schools and high schools. The Catholic

Bishop was not providing natural gas to the schools without cost. Rather, it saved the schools money if they purchased the natural gas through the Catholic Bishop. 7 When the gas prices escalated,

No. 1-07-0633 the Catholic Bishop offered to convert the normal reconciliations to no-interest loans. Mr. Ondrla acknowledged that a letter from

Cardinal George listed St. Laurence as a Catholic secondary school and indicated that it was a part of the Archdiocese of Chicago. In an affidavit, Maureen O'Brien, director of real estate for the Catholic Bishop, averred that the Catholic Bishop deeded the property on which St. Laurence was built to the Christian Brothers in 1961. She further averred that the Catholic Bishop

did not own, operate or control St. Laurence. Fred J. Van Den Hende, the Catholic Bishop's director of human resources, testified that the cardinal has some authority over any institution within the geographic boundaries of the archdiocese that calls itself Catholic, if he feels that it is not following the teachings of the Church. The cardinal did not

have the right to name and approve teachers at nonarchdiocesan schools. The witness was uncertain whether the cardinal had the

authority to remove religion teachers from such a school; it could depend on circumstances of which the witness was unaware. The Catholic Bishop did not provide any financial assistance to St. Laurence. According to the Catholic Bishop's employee

database, Brother Brouillette was not on the Catholic Bishop's payroll. Mr. Van Den Hende acknowledged that, due to its size, However, there was no

the database was not accurate or complete.

record of Brother Brouillette receiving benefits; those records 8

No. 1-07-0633 were more complete for religious employees than lay employees. The Catholic Bishop never provided human resource services to nonarchdiocesan schools. A search revealed no personnel file for Religious

Brother Brouillette in the human resources office.

high schools were not tied by policy to the Catholic Bishop, and the Catholic Bishop had no right to hire or fire employees of a religious (order) high school. Brother Donald Houde is a member of the Clerics of St. Viator and had served as principal of St. Viator High School and Spalding Institute, also a high school. He was certified by the

State of Illinois as a school administrator and been employed by the Catholic Bishop as curriculum director in what is now known as the Office of Catholic Schools. administrative affairs. He later became director of

His duties included being in charge of

the budget and marketing of Catholic schools and serving as spokesperson for the Office of Catholic Schools. Brother Houde testified that members of a religious order, such as the Christian Brothers, were not directly responsible to the cardinal or local bishop as diocesan priests were but were responsible through their superiors. A Catholic school seeking

to be established within the geographical confines of the archdiocese required the permission of the Catholic Bishop. However, he had never seen anything in writing giving such permission. According to Brother Houde, the cardinal's purview would be 9

No. 1-07-0633 Catholic dogma and would extend to all Catholic schools located within the geographical confines of the Archdiocese of Chicago. The teaching and operating of nonarchdiocesan schools were not subject to governance by the Catholic Bishop. The cardinal would

not directly remove a teacher; it would be done through the superiors of the religious order. Brother Houde explained the difference between the two types of high schools as follows: "Archdiocesan high schools or schools sponsored by the Archdiocese of Chicago - and there are a few of them - are more directly administered through the Office of Catholic Education. The private schools are just that; they - they're in they're totally independent in their operation. archdiocesan school, the principal, curriculum, administration of the school is supervised more directly through the Office of Catholic Education. In the pri - I was an administrator of a high school. I - and our local team were independent. evaluated everything on our own. We hired, fired, An

The principals of the

archdiocesan school are hired through the Office of Catholic Education, and the contracts were signed by the superintendent of schools."3
3

The witness clarified that "private schools" referred to

those run by religious orders. 10

No. 1-07-0633 Brother Houde further explained that in the event a nonarchdiocesan high school was not following Catholic dogma, the facts would be investigated. The cardinal or someone from his

office and the superintendent would be involved, and it could result in the dismissal of the teacher. The circuit court granted the Catholic Bishop's supplementary motion for summary judgment.4 The court found that

the Catholic Bishop and the Christian Brothers were separate corporations. It found that there was no evidence that the

Catholic Bishop was in control of the hiring, supervision or retention of employees at St. Laurence. The court further found

that there was no evidence of reliance to support an apparent agency claim. The plaintiff filed a timely notice of appeal. ANALYSIS The plaintiff contends that genuine issues of material fact preclude summary judgment for the Catholic Bishop. I. Standard of Review

The court reviews an order granting summary judgment under the de novo standard of review. Luise, Inc. v. Village of

Skokie, 335 Ill. App. 3d 672, 678, 781 N.E.2d 353 (2002). "Summary judgment is proper if, and only if, the pleadings, depositions, admissions, affidavits and other relevant matters on
4

The circuit court did not rule on the statute of

limitations defense. 11

No. 1-07-0633 file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Prowell v. Loretto Hospital, 339 Ill. App. 3d 817, 822, 791 N.E.2d 1261 (2003). In determining whether a genuine issue of

material fact exists, the pleadings, admissions and affidavits are construed strictly against the movant and liberally in favor of the nonmovant. Prowell, 339 Ill. App. 3d at 822. "A triable

issue precluding summary judgment exists where the material facts are disputed or where reasonable persons might draw different conclusions from undisputed facts." 822. II. A. Discussion Apparent Agency Prowell, 339 Ill. App. 3d at

The plaintiff contends that the circuit court erred when it found that the plaintiff had failed to prove the element of reliance with regard to an apparent agency claim. Apparent authority arises when the principal holds an agent out as possessing the authority to act on its behalf. Letsos v.

Century 21-New West Realty, 285 Ill. App. 3d 1056, 1065, 675 N.E.2d 217 (1996). "To prove the existence of apparent

authority, the proponent must show: (1) the principal consented to or knowingly acquiesced in the agent's exercise of authority; (2) based on the actions of the principal and agent, the third person reasonably concluded that the party was an agent of the principal; and (3) the third person justifiably relied on the 12

No. 1-07-0633 agent's apparent authority to his detriment." App. 3d at 1065. Letsos, 285 Ill.

The plaintiff need not specifically plead

apparent agency; the issue can be considered where the plaintiff has alleged an agency or employee relationship. Casey v. Forest

Health System, Inc. of Illinois, 291 Ill. App. 3d 261, 264, 683 N.E.2d 936 (1997). When a defendant moves for summary judgment, he bears the initial burden of production. Nedzvekas v. Fung, 374 Ill. App. That burden may be met by

3d 618, 624, 872 N.E.2d 431 (2007).

either affirmatively showing that some element of the case must be resolved in the defendant's favor or by establishing that there is no evidence to support the nonmovant's case. 374 Ill. App. 3d at 624. Nedzvekas,

In order to establish that the

plaintiff has provided insufficient evidence to prove an essential element, a defendant must do more than argue the absence of the evidence. Nedzvekas, 374 Ill. App. 3d at 624.

Once the movant satisfies his initial burden, the burden shifts to the nonmovant to present a factual basis to entitle it to a favorable judgment. Nedzvekas, 374 Ill. App. 3d at 624. The plaintiff acknowledges that he did not offer any evidence on the issue of reliance. However, he argues that

because discovery was not complete and the Catholic Bishop failed to offer any evidence on the issue of apparent agency, he was entitled to rely on his complaint. Williams v. Covenant Medical

Center, 316 Ill. App. 3d 682, 689, 737 N.E.2d 662 (2000). 13

No. 1-07-0633 The Catholic Bishop does not argue that it presented evidence on the issue of reliance in its supplemental motion for summary judgment and does not argue that the plaintiff failed to plead reliance in his complaint. The Catholic Bishop responds

that the plaintiff's settlement with Brother Brouillette and the Christian Brothers extinguished any potential vicarious liability that it had as the alleged principal. See Illinois State Bar

Ass'n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill. App. 3d 156, 163, 821 N.E.2d 706 (2004) (this court may sustain the circuit court's decision on any basis in the record). Our supreme court has held that a settlement between an agent and the plaintiff extinguishes the principal's vicarious liability. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d For example, in Casey, the

511, 528, 622 N.E.2d 788 (1993).

plaintiff alleged that the hospital was liable for the negligence of the doctor. While finding that the plaintiff did not need to

specifically allege an apparent authority theory, the court upheld summary judgment for the hospital based on the plaintiff's settlement with the doctor. Casey, 291 Ill. App. 3d at 264.

The fact that the settlement orders in this case provided that the settlements did not affect the plaintiff's causes of action against the Catholic Bishop did not preserve them. As the

court in Gilbert held, the above rule "stands regardless of whether the plaintiff's covenant not to sue the agent expressly reserves the plaintiff's right to seek recovery from the 14

No. 1-07-0633 principal." Gilbert, 156 Ill. 2d at 528-29.

The Catholic Bishop acknowledges that the torts of negligent hiring and negligent supervision do not require the wrongful act of the employee. N.E.2d 610 (1994). Young v. Lemons, 266 Ill. App. 3d 49, 52, 639 To the extent that the plaintiff's claims do

not require the wrongful act of Brother Brouillette, they will be addressed below B. Negligent Hiring and Negligent Supervision

A claim for negligent hiring requires the plaintiff to prove that the employer knew or should have known that the person hired "had a 'particular' unfitness for the job that would create a foreseeable danger to others" and that "this particular unfitness was the proximate cause of the plaintiff's injury." Strickland

v. Communications & Cable of Chicago, Inc., 304 Ill. App. 3d 679, 682, 710 N.E.2d 55 (1999). "In order to hold an employer liable

for injuries resulting to third persons from negligent training or supervision of an employee, it must be established 'that the employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, having this knowledge, failed to supervise the employee adequately, or take other action to prevent the harm.'" Vancura

v. Katris, No. 1-06-2750, slip op. at 23 (December 26, 2008), quoting 30 C.J.S. Employer-Employee

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