The Volokh Conspiracy
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From Ward v. Kutak Rock, LLP, decided Wednesday by the Appellate Court of Illinois (Justice Eileen O'Neill Burke, joined by Justices Margaret Santon-McBride and Jesse Reyes):
Plaintiff's amended complaint, which is at issue in this appeal, alleged that MacKelvie was an employee of Kutak Rock with "of counsel" status. In February 2021, plaintiff retained Kutak Rock and MacKelvie to represent her in an appellate probate matter. The parties had a contingency fee agreement under which MacKelvie's "hourly fee would be taken from any amount recovered by" him, and "no amount would be due or owing until and unless there was a recovery of money in the probate case."
However, the firm sent several bills to plaintiff, which she indicated that she could not pay, and MacKelvie responded that "there were other ways to pay for his services." MacKelvie then began a series of communications with plaintiff in which he said that he would only work on the appellate brief if plaintiff sent him naked photographs of herself. Plaintiff "felt pressure to send the naked photos of herself to [MacKelvie] as she needed the legal work to be completed in [a] timely fashion." In December 2021, MacKelvie demanded that plaintiff have sex with him at a hotel in Deerfield and said that he would not work on plaintiff's case if she refused. Plaintiff alleged that MacKelvie forced her to have sex with him and "engaged in unwanted and inappropriate sexual contact with [her] that amounted to assault and battery," which caused her to develop depression and post-traumatic stress disorder.
Plaintiff sued McKelvie personally and also Kutak Rock, on a "negligent supervision" theory:
The negligent supervision claim alleged that Kutak Rock had a duty "to exercise a reasonable degree of care and supervision in supervising and managing" MacKelvie, and a general duty to supervise its employees "to make sure that they engage[d] in appropriate behavior and follow the law and the employer's rules and procedures."
No, said the court:
"[T]o impose a duty to supervise, only general foreseeability is required in an employment context." "[F]oreseeability means that which is objectively reasonable to expect, not merely what might conceivably occur." An employer's duty to supervise an employee arises when the employer knows or reasonably should know that the employee is likely to engage in dangerous conduct. It is not necessary that the employer "have prior notice of a particular unfitness." …
Our supreme court's decision in Doe v. Coe (Ill. 2019) provides a helpful illustration of a properly pled negligent supervision claim. In that case, the plaintiff alleged that Coe, a church director of youth ministries, sexually assaulted her in a church basement when he was 31 and she was 15. The plaintiff alleged a negligent supervision claim against the church that employed Coe. The circuit court dismissed the negligent supervision claim and the appellate court reversed. Our supreme court affirmed, concluding that the plaintiff adequately pled the church's duty to supervise Coe because (1) "it is generally foreseeable that abuse could occur in programs providing adults with unsupervised access to children" and (2) the plaintiff alleged that church leadership often saw Coe alone with her in his office and allowed them to remain alone together. The plaintiff also alleged that the church could have discovered Coe's use of child pornography websites by a Google search of his internet pseudonym, that Coe inappropriately touched church youth group members and showed them pornography, and that church members confronted Coe about and reported his inappropriate behavior when they witnessed it.
Coe involved a relationship that presents an inherently foreseeable danger of sexual abuse: a relationship between an adult and a child in a religious organization. An attorney-client relationship between two adults does not present the same inherent danger or foreseeability. Moreover, plaintiff has not alleged facts establishing that Kutak Rock knew, could have known, or should have known that MacKelvie was behaving in a sexually inappropriate manner toward her. On the contrary, plaintiff alleges that MacKelvie's sexual harassment of her consisted of direct communications between her and him, and that the sexual assault occurred at a hotel in Deerfield, apparently with no connection to the firm or its offices. The complaint in Coe was much more factual, specific, and concrete than plaintiff's amended complaint in this case, which is why Coe does not compel reversal of the dismissal of plaintiff's negligent supervision claim.
This case is more analogous to Dennis v. Pace Suburban Bus Service (Ill. App. Ct. 2014), in which the plaintiff alleged that she boarded a Pace bus while intoxicated, confused, and slipping in and out of consciousness. Instead of calling for help, the bus driver took the plaintiff to his home and sexually assaulted her. The circuit court dismissed the plaintiff's negligent supervision claim against Pace and this court affirmed, explaining that the plaintiff "alleged no facts that Pace had any reason to know or even suspect that [the driver] would somehow entice a passenger off of the bus after his shift had ended, take her to his home and sexually assault her." This court found that the plaintiff's allegation that Pace had a general duty to prevent drivers from taking passengers home to sexually assault them was "entirely conclusory *** and insufficient to survive a 2-615 motion to dismiss." The same is true of plaintiff's allegations in this case. Plaintiff's amended complaint, on its face, presents no facts establishing that Kutak Rock had reason to foresee, or even suspect, that MacKelvie would sexually harass and assault plaintiff.
Plaintiff's amended complaint suggests that Kutak Rock was on notice that something unusual was happening in MacKelvie's representation of plaintiff because the firm was not receiving payment on her file. Plaintiff alleges that she received multiple bills for MacKelvie's work, which she did not pay, because MacKelvie insisted on being compensated with sexual favors instead.
However, she also alleges that she had a contingency fee agreement with Kutak Rock, under which MacKelvie's "hourly rate would be taken from any amount recovered by" him at the conclusion of her case. We struggle to understand why Kutak Rock would issue and expect payment of regular bills for MacKelvie's work if the firm was supposed to be paid on contingency. Even accepting these facts as true, they do not create a duty of supervision. The fact that Kutak Rock was not receiving payment for MacKelvie's work did not make it foreseeable that he would sexually harass and assault plaintiff. We cannot see, and plaintiff's briefs do not explain, the connection between these two things….
Plaintiff also contends that that public policy supports the imposition of a duty to supervise in this case because "'those who utilize legal services place a great deal of trust in their attorneys; consequently, the attorney-client relationship presents a significant potential for abuse.'" As a general principle, we agree, and we strongly encourage law firms to do everything in their power to protect clients from sexual harassment by attorneys.
However, that does not change our conclusion. The question is whether plaintiff's amended complaint alleges facts that made it foreseeable to Kutak Rock that MacKelvie would sexually harass and assault plaintiff. It does not. Moreover, plaintiff cites no authority holding that the attorney-client relationship presents an inherent danger of sexual abuse such that attorneys sexually assaulting clients is always foreseeable to law firms. On the contrary, the commission of a serious crime, like sexual assault, is generally not foreseeable to an employer because an employee is not expected or employed to commit crimes….
Plaintiff's citation to Kling v. Landry (Ill. App. Ct. 1997), is unpersuasive. We agree with Kling's conclusion that "an attorney breaches his fiduciary duty to his client by exploiting his position as an attorney to gain sexual favors." However, negligent supervision claim is a direct claim against an employer for its own misconduct, so the fact that MacKelvie breached his fiduciary duty to plaintiff does not mean that Kutak Rock had or breached a duty to supervise MacKelvie….