May 18, 2001

APPELLATE COURT OF ILLINOIS

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, Kimberly A. Platson, appeals the judgment of thecircuit court granting the motion to dismiss of defendant NSM,America, Inc. (NSM), under section 2--615 of the Illinois Code ofCivil Procedure (Code) (735 ILCS 5/2--615 (West 1998)). Wereverse.

BACKGROUND

Plaintiff filed a complaint on March 12, 1999, alleging that,while employed by NSM through a work-study program offered throughher high school, she was physically assaulted on NSM's premises bydefendant Mark Eigenbauer, then an employee of NSM. In counts Ithrough IV, plaintiff pleaded causes of action against Eigenbauerfor, respectively, assault, battery, false imprisonment, andintentional infliction of emotional distress. On NSM's motion, thetrial court dismissed without prejudice counts V, VI, and VII ofthe complaint against NSM, alleging, respectively, vicariousliability, negligent supervision, and breach of contract. On March12, 1999, plaintiff filed an amended complaint against NSM. CountsV through IX alleged, respectively, negligent supervision, assault,battery, false imprisonment, and intentional infliction ofemotional distress.

The relevant factual allegations in the complaint are asfollows. NSM, whose principal place of business is located in theVillage of Bensenville, Du Page County, Illinois, sells juke boxes,among other items. In June 1996, plaintiff, then a 16-year-oldstudent at Lake Park High School, began part-time employment withNSM as part of a work-study program offered by her school. NSM hadvoluntarily agreed to participate in the program. NSM executed adocument titled "Cooperative Education Agreement" (CEA). The CEArequires the employer and the student's teacher-coordinator to"design a training program for the student based on the student'sjob description" and to "periodically evaluate the student'sprogress." According to the CEA, the student earns wages as wellas "job credit" through the employment. The CEA provides that thework site, referred to as the "training station," is "an extensionof Lake Park High School" and that the student is bound by therules and regulations of the school and by the policies of thetraining station. The CEA refers to the student as the "student-learner." The CEA further provides that the employer is to notifythe teacher-coordinator of a change in the student's progress. Also, unless permitted by the teacher-coordinator, the student maynot work on days the student is absent from school. Finally, theCEA states that the employer is to "provide adequate supervision atall times and safety training according to industry standards." Plaintiff incorporated a copy of the agreement into her complaint.

When she began working for NSM, plaintiff was assigned toadministrative duties including office and clerical work. Based onplaintiff's satisfactory performance of these duties, NSM assignedher to the marketing department around August 1996. Beginningaround November 1996 NSM's employee, Eigenbauer, would "from timeto time" approach plaintiff while she was performing her job dutieson NSM's premises and "with his hands touch [plaintiff's] body." The touching "included rubbing and massaging [plaintiff's]shoulders." Eigenbauer would also on occasion "intentionally brushhis body against Plaintiff's body" while she was performing her jobduties. A total of at least five supervisors and employees,including plaintiff's supervisor, witnessed the touching. Eigenbauer "did not touch the bodies of other employees" of NSM. It was "well known" throughout the office in which plaintiff worked"that Eigenbauer repeatedly sought out Plaintiff to touch her." Atno time did plaintiff tell her supervisor or any other employee ofNSM "that Eigenbauer's touching of her was appropriate, welcome oracceptable." At no time did plaintiff's supervisor demand thatEigenbauer stop the touching.

Despite NSM's "knowledge of the inappropriate conduct byEigenbauer," plaintiff's supervisor scheduled her to work alonewith Eigenbauer on March 13, 1997. At work that evening,Eigenbauer approached plaintiff while she was on break in thewarehouse area and "physically grabbed her." Plaintiff freedherself and returned to her office. Eigenbauer followed plaintiffinto her office and stood by her desk, blocking her exit from theoffice. Eigenbauer then "grabbed plaintiff's waist and pulled hertoward him, causing plaintiff to fall to the floor on her knees." He then grabbed plaintiff from behind, "forced himself on top ofher and pressed himself against her."

Plaintiff freed herself and attempted to leave the room, butEigenbauer physically blocked the exit. Plaintiff managed to getaround Eigenbauer and sought to leave the building. Blocking the exterior door, Eigenbauer told plaintiff that he wanted to lock herin to prevent her from leaving. Plaintiff managed to leave but,due to the physical and emotional trauma caused by the attack, didnot return to work until March 19, 1997, at which time she reportedthe attack to one of her supervisors.

In count V (negligent supervision), plaintiff alleges that NSMfailed to fulfill its duty to supervise its employees in schedulingplaintiff to be alone with Eigenbauer, leading to an attack thatwas foreseeable to NSM given its knowledge of Eigenbauer's priorinappropriate physical touching of plaintiff. In counts VI throughIX, plaintiff alleges three alternative bases upon which to holdNSM liable for Eigenbauer's intentional torts. First, plaintiffmaintains that NSM's agreement to employ plaintiff, a minor and ahigh school student, in a work-study program and to supervise herat all times created between plaintiff and NSM what tort lawrecognizes as a "special relationship," according to which NSM hada duty to protect plaintiff from Eigenbauer's acts includingcertain acts committed outside the scope of his employment. Second, plaintiff contends that, because NSM knew or should haveknown that Eigenbauer posed a threat to plaintiff, NSM had a dutyunder section 317 of the Restatement (Second) of Torts (Restatement(Second) of Torts