{ "id": 3502964, "name": "KELLY ANN BATES, Plaintiff-Appellant, v. RICHARD DORIA et al., Defendants-Appellees", "name_abbreviation": "Bates v. Doria", "decision_date": "1986-12-24", "docket_number": "No. 2\u201485\u20140759", "first_page": "1025", "last_page": "1032", "citations": [ { "type": "official", "cite": "150 Ill. App. 3d 1025" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "415 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "83 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5472743 ], "year": 1984, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0388-01" ] }, { "cite": "34 A.L.R.2d 372", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1954, "opinion_index": 0 }, { "cite": "442 N.E.2d 1353", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 709", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2999165 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0709-01" ] }, { "cite": "166 N.E.2d 581", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "19 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2743567 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/19/0367-01" ] }, { "cite": "28 N.E. 241", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1960, "opinion_index": 0 }, { "cite": "370 N.E.2d 1235", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. 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App. 2d", "case_ids": [ 2452866 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0052-01" ] }, { "cite": "82 Ill. 2d 588", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "410 N.E.2d 610", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3173475 ], "year": 1980, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0443-01" ] }, { "cite": "96 Ill 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "446 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626612 ], "year": 1983, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0172-01" ] }, { "cite": "243 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853150 ], "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0361-01" ] }, { "cite": "107 N.E.2d 735", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "412 Ill. 568", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2663559 ], "weight": 2, "pin_cites": [ { "page": "572-73" }, { "page": "569-70" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0568-01" ] }, { "cite": "38 N.E. 241", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "151 Ill. 472", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5470483 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/151/0472-01" ] }, { "cite": "443 N.E.2d 1162", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1894, "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5440837 ], "weight": 4, "year": 1894, "pin_cites": [ { "page": "338" }, { "page": "338" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0333-01" ] }, { "cite": "387 N.E.2d 1241", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241127 ], "year": 1982, "pin_cites": [ { "page": "931" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0920-01" ] }, { "cite": "496 N.E.2d 1086", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 265", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3571127 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0265-01" ] }, { "cite": "148 Ill. App. 3d 931", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642676 ], "year": 1986, "pin_cites": [ { "page": "935" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0931-01" ] }, { "cite": "25 N.E.2d 60", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "373 Ill. 88", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2529276 ], "opinion_index": 0, "case_paths": [ "/ill/373/0088-01" ] }, { "cite": "19 N.E.2d 130", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "298 Ill. App. 529", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5614783 ], "year": 1939, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-app/298/0529-01" ] }, { "cite": "150 N.E.2d 383", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "17 Ill. App. 2d 292", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5183504 ], "year": 1939, "pin_cites": [ { "page": "298-99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/17/0292-01" ] }, { "cite": "394 N.E.2d 665", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3275853 ], "year": 1958, "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0739-01" ] }, { "cite": "426 F. Supp. 1153", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3904230 ], "opinion_index": 0, "case_paths": [ "/f-supp/426/1153-01" ] }, { "cite": "81 Ill. 2d 590", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "406 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 704", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3209565 ], "year": 1980, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0704-01" ] }, { "cite": "422 N.E.2d 925", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 488", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3111081 ], "year": 1980, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0488-01" ] }, { "cite": "366 N.E.2d 925", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 263", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3386128 ], "pin_cites": [ { "page": "266-67" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0263-01" ] }, { "cite": "104 N.E. 1046", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1977, "opinion_index": 0 }, { "cite": "263 Ill. 236", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4762187 ], "year": 1977, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill/263/0236-01" ] }, { "cite": "421 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 161", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469841 ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0161-01" ] }, { "cite": "392 N.E.2d 135", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 778", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3269096 ], "year": 1981, "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0778-01" ] }, { "cite": "466 N.E.2d 1271", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598809 ], "year": 1979, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0419-01" ] }, { "cite": "96 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "452 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3519091 ], "year": 1983, "pin_cites": [ { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0969-01" ] }, { "cite": "430 N.E.2d 1079", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "88 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082811 ], "year": 1983, "pin_cites": [ { "page": "463-64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0444-01" ] } ], "analysis": { "cardinality": 896, "char_count": 16712, "ocr_confidence": 0.768, "pagerank": { "raw": 3.6283151428789905e-07, "percentile": 0.8889991269761287 }, "sha256": "8a2ba467a88b8bb2d253ecd911e4b04dbb06f676fa026b373d8406102f98d834", "simhash": "1:3b55f9d74463af10", "word_count": 2782 }, "last_updated": "2023-07-14T17:09:44.674340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KELLY ANN BATES, Plaintiff-Appellant, v. RICHARD DORIA et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE NASH\ndelivered the opinion of the court:\nPlaintiff, Kelly Ann Bates, appeals from a summary judgment entered in favor of defendants, Sheriff Richard Doria, the County of Du Page and the Du Page County sheriff\u2019s merit commission. In this action, plaintiff sought recovery for damages sustained when she was assaulted by Du Page County Deputy Sheriff Richard A. Schramm, who was dismissed below by plaintiff as a defendant herein and is not a party to this appeal.\nThe circumstances from which this case arose are as follows. On July 22, 1981, plaintiff was walking her dog along the Illinois Prairie Path in West Chicago when she was approached by Richard Schramm, who was an off-duty Du Page County sheriff\u2019s deputy. Schramm was wearing army fatigues and carrying a Mac-10 machine gun and a stun gun. Upon passing the plaintiff, Schramm shot her in the leg with the stun gun. He then told her that she was trespassing on army property and would have to accompany him to army headquarters. When plaintiff refused and Schramm threatened to kill her, plaintiff followed Schramm into the woods where he raped her. After the rape, Schramm began talking about his problems and showed plaintiff his deputy\u2019s badge. Schramm offered to walk plaintiff home, and while they were walking Schramm took out a knife and cut plaintiff\u2019s back. Plaintiff struggled with Schramm and was able to grab the machine gun, strike Schramm over the head with it, and run away.\nPlaintiff subsequently filed a three-count complaint against Schramm and the other defendants. Count I sounded in tort against Schramm, individually, and against Du Page County and Sheriff Doria on a theory of respondeat superior. Count II alleged negligence on the part of Du Page County, the sheriff and the merit commission in the employing and retaining of Schramm as a deputy sheriff when it was known, or should have been known, he was psychologically unstable and incompetent. Count III alleged certain civil rights violations as to all defendants. As noted, plaintiff dismissed Schramm from the suit in the trial court and has not appealed from the dismissal of count III by the trial court for failure to state a cause of action.\nThe remaining defendants\u2019 answer to plaintiff\u2019s complaint admitted that Schramm had been a deputy sheriff and had committed the assault upon plaintiff, but denied other allegations of the complaint. Defendants filed a motion for summary judgment as to counts I and II, supporting it with the affidavit of defendant Doria and an exhibit consisting of Schramm\u2019s personnel records from the sheriff\u2019s department. Plaintiff responded with additional personnel records, and excerpts from certain discovery depositions and exhibits. The following facts are established from the pleadings, exhibits, depositions, affidavits and admissions filed in the case: Richard Schramm applied for a position as a Du Page County sheriff\u2019s deputy in 1974. The sheriff\u2019s department conducted a background investigation on him which included a fingerprint and record check, verification of high school diploma, birth certificate, military discharge, credit check, verification of prior employment, oral interview, written examinations, medical examinations, psychological examination and agility test. No adverse information was disclosed. Although the department was informed that Schramm had been satisfactorily employed by the West Chicago police department, it was not disclosed that as a result of psychological tests arid a polygraph examination administered in West Chicago, Schramm had been determined to be untrustworthy and a high security risk. Schramm was hired as a deputy on November 29, 1976. In July 1981, Schramm applied for assignment to the special operations team but psychological testing indicated that he was unsuitable. Schramm\u2019s superiors rated him an average deputy; he received a few commendations and no citizen complaints were made against him.\nIn his affidavit, Sheriff Doria stated that Schramm was not on duty as a deputy sheriff at the time of the assault upon plaintiff and that the department had not issued Schramm any weapons or camouflage uniform. A police report admitted as an exhibit in the deposition of Officer Thomas Stuckey related that Schramm had shown the stun gun to Deputies Mulloy and Stuckey and had described how it could be used by a rapist in subduing his victim. Schramm had also brought \u00e1 Mac-10 machine gun to the department and had shown it to Stuckey and Doria.\nThe trial court granted defendants\u2019 motion for summary judgment finding, as a matter of law, that plaintiff could not recover on her theories of respondeat superior or negligent employment and retention as Schramm was not acting within the scope of his employment as a deputy sheriff when he assaulted plaintiff, and there could thus be no causal connection between a breach of defendants\u2019 duty and plaintiff\u2019s injuries, and also on the grounds that defendants did not owe a \u201cspecial duty\u201d to plaintiff.\nWe consider first plaintiff\u2019s contention that the trial court erroneously granted summary judgment on count I of the complaint in which plaintiff sought recovery under the doctrine of respondeat superior. Summary judgment should be granted only if the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1005; Murphy v. Urso (1981), 88 Ill. 2d 444, 463-64, 430 N.E.2d 1079; Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 975, 452 N.E.2d 649, appeal denied (1983), 96 Ill. 2d 560.) In deciding such a motion, the trial court must construe any evidence in support of it strictly against the movant and liberally in favor of the opponent. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 593.) If any facts upon which reasonable persons,may disagree are identified, or any inferences therefore, the circuit court must deny the motion for summary judgment and direct that the resolution of those facts and inferences be made at trial. Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423, 466 N.E.2d 1271; Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 794, 392 N.E.2d 135, aff'd, (1981), 85 Ill. 2d 161, 421 N.E.2d 864.\nThe circuit court found that since Schramm\u2019s acts of raping and assaulting the plaintiff were outside the scope of his employment as a matter of law, plaintiff could not recover from defendants on the basis of respondeat superior. Under that doctrine, an employer is liable for an employee\u2019s torts committed within the scope of his employment; but when the act is committed solely for the benefit of the employee, the employer is not liable to the injured third party. (Johanson v. William Johnston Printing Co. (1914), 263 Ill. 236, 240, 104 N.E. 1046; Hoover v. University of Chicago Hospitals (1977), 51 Ill. App. 3d 263, 266-67, 366 N.E.2d 925.) The fact that the employee has acted in an outrageous manner is evidence that he departed from the scope of employment and, instead, acted for purely personal reasons. (Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 493, 422 N.E.2d 925; Dzing v. City of Chicago (1980), 84 Ill. App. 3d 704, 706, 406 N.E.2d 121, appeal denied (1980), 81 Ill. 2d 590; Gambling v. Cornish (N.D. Ill. 1977), 426 E Supp. 1153, 1155; Restatement (Second) of Agency sec. 245, comment f (1958).) In Dzing v. City of Chicago, an intoxicated, off-duty policeman entered the plaintiff\u2019s apartment, mistaking it for his own, and shot her. In Gambling v. Cornish (N.D. Ill. 1977), 426 F. Supp. 1153, two off-duty policemen abducted the plaintiff and raped her. In both cases, it was held that the employee\u2019s conduct was too outrageous to be within the scope of their employment.\nThis reasoning is consistent with that expressed in the Restatement:\n\u201cThe liability of a master for the use of force by a servant is not prevented by the fact that the servant acts in part because of a personal motive, such as revenge. The master, however, is relieved from liability under the rule stated in this Section if the servant has no intent to act on his master\u2019s behalf, although the events from which the tortious act follows arise while the servant is acting in the employment and the servant becomes angry because of them. The fact that the servant acts in an outrageous manner or inflicts a punishment out of all proportion to the necessities of his master\u2019s business is evidence indicating that the servant has departed from the scope of employment in performing the act.\u201d Restatement (Second) of Agency sec. 245, comment/, at 541 (1958).\nAlthough the questions of whether an employee has departed from the scope of employment by acting purely for his own interest is normally one for the jury to determine (Wallace v. Smith (1979), 75 Ill. App. 3d 739, 748, 394 N.E.2d 665; Bonnem v. Harrison (1958), 17 Ill. App. 2d 292, 298-99, 150 N.E.2d 383; Metzler v. Layton (1939) 298 Ill. App. 529, 535, 19 N.E.2d 130, aff'd (1939), 373 Ill. 88, 25 N.E.2d 60), in the present case it is an undisputed fact that Schramm raped and assaulted the plaintiff. Applying the \u201coutrageous conduct\u201d rule to these facts, we agree with the trial court that Schramm\u2019s conduct was beyond the scope of his employment as a deputy sheriff, and summary judgment was incorrectly entered as to count I.\nPlaintiff next contends that the trial court erroneously granted summary judgment as to count II of the complaint, which was premised upon a theory of negligent hiring and retention.\nIt is well established that a cause of action exists against an employer for negligently hiring, or retaining in his employment, an employee he knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. (Fallon v. Indian Trail School (1986), 148 Ill. App. 3d 931, 935; Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, 268, 496 N.E.2d 1086; Easley v. Appollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 931, 387 N.E.2d 1241; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 338, 443 N.E.2d 1162; Western Stone Co. v. Whalen (1894), 151 Ill. 472, 38 N.E. 241.) The Restatement describes the cause of action as follows:\n\u201cA person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:\n(b) in the employment of improper persons or instrumentalities in work involving risk or harm to others.\u201d Restatement (Second) of Agency sec. 213 (1958); see Tatham v. Wabash R.R. Co. (1952), 412 Ill. 568, 572-73, 107 N.E.2d 735.\nThe circuit court found, in part, that plaintiff could not sustain the action for negligent hiring and retention absent a showing that the defendants owed her a special duty. Plaintiff argues that the \u201cspecial duty\u201d exception to the rule that a municipality is not liable for failure to exercise its general police powers is inapplicable to an action for negligent hiring and retention, and we agree.\nA municipality is not liable for its failure to provide the public at large with police protection (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363, 243 N.E.2d 214) except where the police have assumed a special relationship to a particular individual (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 176, 446 N.E.2d 1183, appeal denied (1983), 96 Ill 2d 541; Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 446, 410 N.E.2d 610, appeal denied (1980), 82 Ill. 2d 588). The public-duty doctrine is inapplicable to the present case where plaintiff seeks to impose liability based upon the defendants\u2019 negligent employment of a law-enforcement officer, not upon defendants\u2019 failure to prevent the commission of crimes. However, as earlier noted, an employer does have a duty to refrain from hiring or retaining an employee who is a threat to third persons to whom the employee is exposed (Pascoe v. Meadowmoor Dairies (1963), 41 Ill. App. 2d 52, 56, 190 N.E.2d 156, appeal denied (1963), 27 Ill. 2d 625), and such a cause of action arises in favor of a person who is injured as the proximate result of the employer\u2019s negligence in hiring or retaining the employee. In the present case, summary judgment was improperly granted as to count II on the stated basis that plaintiff was required to show a special duty.\nNevertheless, in order to withstand defendants\u2019 motion for summary judgment as to count II, plaintiff was required to show that any negligence of defendants in hiring or retaining Schramm was the proximate cause of her injuries. (See Annot., 48 A.L.R.3d 359, 361 (1973); 53 Am. Jur. 2d Master & Servant sec. 422 (1970).) The circuit court also found that as Schramm was not acting within the scope of his employment, there could be no causal connection between a breach of defendants\u2019 duty and plaintiff\u2019s injuries. Plaintiff argues that a cause of action for negligent hiring and retention will lie even where the employee\u2019s actions are outside the scope of his employment, citing Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 338, 443 N.E.2d 1162, appeal denied (1983), 93 Ill. 2d 542.\nOur supreme court long ago recognized that an employer\u2019s direct liability for negligent hiring and retention differs from his liability by way of respondeat superior (Tatham v. Wabash R.R. Co. (1952), 412 Ill. 568, 569-70, 107 N.E.2d 735), and it has been held that the former action may be maintained even if the employee\u2019s conduct falls outside the scope of employment (Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 338, 433 N.E.2d 1162; Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 964, 370 N.E.2d 1235).\nAlthough the scope of employment is not a pertinent consideration in an action for negligent hiring and retention, proximate cause is an essential element which must be pleaded and proved in any cause of action in tort for negligence, and plaintiff\u2019s injuries here must be shown to have been brought about by reason of employment of the incompetent servant. Thus, in ascertaining whether there is a causal connection between the employer\u2019s negligence and plaintiff\u2019s injuries, it is necessary to inquire whether the injury occurred by virtue of the servant\u2019s employment. The Restatement provides that liability attaches in such a case \u201cbecause of the employment.\u201d (Restatement (Second) of Agency sec. 213, comment d, at 460 (1958).) In the reported cases considering this cause of action it is apparent that liability attached only where there was demonstrated some connection between the plaintiff\u2019s injuries and the fact of employment. (See, e.g., Western Stone Co. v. Whalen, (1894), 151 Ill. 472, 28 N.E. 241; Peters v. Bellinger (1960), 19 Ill. 2d 367, 166 N.E.2d 581; Malorney v.B&L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, 496 N.E.2d 1086; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 443 N.E.2d 1162, appeal denied (1983), 93 Ill. 2d 542; Biggs v. Terminal R.R. Association (1982), 110 Ill. App. 3d 709, 442 N.E.2d 1353; Pascoe v. Meadowmoor Dairies (1963), 41 Ill. App. 2d 52, 190 N.E.2d 156, appeal denied (1963), 27 Ill. 2d 625; Annot., 34 A.L.R.2d 372 (1954); Annot., 48 A.L.R.3d 359 (1973).) Were such a connection not required, an employer would essentially be an insurer of the safety of every person who happens to come into contact with his employee simply because of his status as an employee. We find no support for such a consideration.\nIn the present case, we conclude that summary judgment was properly granted as to count II since , there was no factual basis alleged to show that plaintiff\u2019s injuries were occasioned in any way because of Schramm\u2019s employment as a sheriff\u2019s deputy. The undisputed facts are that at the time of the assault Schramm was not on duty, not issued departmental weapons or uniform, nor engaged in conducting any of his duties as a sheriff\u2019s deputy. Plaintiff has failed to present any evidence to raise issues of fact upon which she could recover in a cause of action for negligent hiring and retention. As the trial court properly granted summary judgment in favor of the defendants as to counts I and II of plaintiff\u2019s complaint, its judgment is affirmed.\nAffirmed.\nLINDBERG and REINHARD, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE NASH" } ], "attorneys": [ "Greene, Jones & Brisske, of Wheaton, and Debra O. Elder and Jeffrey B. Whitt, both of William J. Harte, Ltd., of Chicago, for appellant.", "James R. Schirott, Charles E. Hervas, and James G. Sotos, all of Schirott & Associates, of Itasca, for appellees." ], "corrections": "", "head_matter": "KELLY ANN BATES, Plaintiff-Appellant, v. RICHARD DORIA et al., Defendants-Appellees.\nSecond District\nNo. 2\u201485\u20140759\nOpinion filed December 24, 1986.\nGreene, Jones & Brisske, of Wheaton, and Debra O. Elder and Jeffrey B. Whitt, both of William J. Harte, Ltd., of Chicago, for appellant.\nJames R. Schirott, Charles E. Hervas, and James G. Sotos, all of Schirott & Associates, of Itasca, for appellees." }, "file_name": "1025-01", "first_page_order": 1047, "last_page_order": 1054 }