{ "id": 5388161, "name": "MELODY C. GEISE, Plaintiff-Appellant, v. PHOENIX COMPANY OF CHICAGO, INC., Defendant-Appellee (William Walthall, Defendant)", "name_abbreviation": "Geise v. Phoenix Co. of Chicago, Inc.", "decision_date": "1993-05-24", "docket_number": "No. 2-92-0642", "first_page": "441", "last_page": "459", "citations": [ { "type": "official", "cite": "246 Ill. App. 3d 441" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "181 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499490 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0954-01" ] }, { "cite": "680 F. Supp. 150", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3962399 ], "opinion_index": 0, "case_paths": [ "/f-supp/680/0150-01" ] }, { "cite": "815 S.W.2d 519", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9980331 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/sw2d/815/0519-01" ] }, { "cite": "552 So. 2d 1099", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7538873 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/so2d/552/1099-01" ] }, { "cite": "223 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5256208 ], "weight": 2, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0785-01" ] }, { "cite": "162 Ill. App. 3d 216", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5440837 ], "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0333-01" ] }, { "cite": "69 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241127 ], "weight": 4, "pin_cites": [ { "page": "931" }, { "page": "932" }, { "page": "932" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0920-01" ] }, { "cite": "151 Ill. 472", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5470483 ], "weight": 9, "pin_cites": [ { "page": "484" }, { "page": "485" }, { "page": "485" }, { "page": "485" }, { "page": "486-87" }, { "page": "485" }, { "page": "484" }, { "page": "485" }, { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill/151/0472-01" ] }, { "cite": "221 Ill. App. 3d 1095", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5797690 ], "weight": 5, "pin_cites": [ { "page": "1100" }, { "page": "1101" }, { "page": "1101" }, { "page": "1100-01" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/1095-01" ] }, { "cite": "395 A.2d 480", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "484" } ], "opinion_index": 1 }, { "cite": "284 Md. 160", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2083338 ], "pin_cites": [ { "page": "167" } ], "opinion_index": 1, "case_paths": [ "/md/284/0160-01" ] }, { "cite": "53 Chi.-Kent L. Rev. 717", "category": "journals:journal", "reporter": "Chi.-Kent L. Rev.", "year": 1977, "opinion_index": 1 }, { "cite": "597 F. Supp. 1325", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3709674 ], "year": 1983, "pin_cites": [ { "page": "1345-46" } ], "opinion_index": 1, "case_paths": [ "/f-supp/597/1325-01" ] }, { "cite": "331 N.W.2d 907", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10676999 ], "weight": 5, "pin_cites": [ { "page": "910" }, { "page": "912-13" }, { "page": "913" }, { "page": "913" }, { "page": "913" } ], "opinion_index": 1, "case_paths": [ "/nw2d/331/0907-01" ] }, { "cite": "492 So. 2d 435", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7579134 ], "weight": 2, "pin_cites": [ { "page": "438-39" }, { "page": "441" } ], "opinion_index": 1, "case_paths": [ "/so2d/492/0435-01" ] }, { "cite": "526 N.E.2d 1309", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "1311" } ], "opinion_index": 1 }, { "cite": "26 Mass. App. Ct. 289", "category": "reporters:state", "reporter": "Mass. App. Ct.", "case_ids": [ 1157079 ], "year": 1986, "pin_cites": [ { "page": "291" } ], "opinion_index": 1, "case_paths": [ "/mass-app-ct/26/0289-01" ] }, { "cite": "150 Ill. App. 3d 1025", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502964 ], "weight": 2, "pin_cites": [ { "page": "1030" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/150/1025-01" ] }, { "cite": "148 Ill. App. 3d 931", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642676 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/148/0931-01" ] }, { "cite": "146 Ill. App. 3d 265", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3571127 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/146/0265-01" ] }, { "cite": "111 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5440837 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/111/0333-01" ] }, { "cite": "69 Ill. 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App. 3d", "case_ids": [ 5797690 ], "pin_cites": [ { "page": "1100-01" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/221/1095-01" ] } ], "analysis": { "cardinality": 1456, "char_count": 46703, "ocr_confidence": 0.749, "pagerank": { "raw": 1.0652356785882083e-07, "percentile": 0.5582001112806191 }, "sha256": "32fc95a8399f9995adc0080437f7cb38a5f2aa8ab3d79d303e3f60b52bc7c223", "simhash": "1:333b5456091dd655", "word_count": 7442 }, "last_updated": "2023-07-14T16:15:27.018701+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MELODY C. GEISE, Plaintiff-Appellant, v. PHOENIX COMPANY OF CHICAGO, INC., Defendant-Appellee (William Walthall, Defendant)." ], "opinions": [ { "text": "JUSTICE GEIGER\ndelivered the opinion of the court:\nThe plaintiff, Melody C. Geise, brought this suit against her employer, the Phoenix Company of Chicago, Inc. (the company), and the company\u2019s national sales manager, William Walthall (the manager). The trial court dismissed the complaint counts against the company, with prejudice. It also found that there was no just reason to delay enforcement or appeal on that dismissal. (See 134 Ill. 2d R. 304(a).) The plaintiff brought this appeal from the court\u2019s dismissal of the company. We reverse.\nIn her complaint, the plaintiff alleged generally that on May 7, 1990, she was employed as an inside sales representative for the company. At all times relevant to the plaintiff\u2019s claims, the manager was the company\u2019s national sales manager. The plaintiff alleged that during the time she was employed the manager made numerous, specific, unsolicited and nonconsensual sexual advances toward her and that she made numerous reports of his conduct to her supervisors. Among other things, the plaintiff alleged the manager\u2019s unwanted physical advances, including attempts to kiss and touch her body, offensive placement of his hand on her body, and his placement of objects down the front of her blouse. According to the complaint, the company took no action on those reports until on or about January 21, 1991. Then, the company\u2019s president investigated and confirmed the plaintiff\u2019s allegations against the manager.\nAfter verifying the plaintiff\u2019s allegations, and with knowledge of the manager\u2019s \u201cprevious propensity for sexual harassment,\u201d the complaint alleges, the company took no action against the manager. According to the complaint, the plaintiff\u2019s employment was terminated by the manager on or about May 1, 1991. The complaint asserts that the plaintiff\u2019s termination was in retaliation both for her failure to submit to the manager\u2019s sexual advances and for her attempts to inform the company about his actions.\nCounts I and II of the complaint were made against the manager. They charged, respectively, battery and intentional infliction of emotional distress. Those counts are not involved in this appeal.\nIn count III of the amended complaint, the plaintiff claimed \u201cnegligent retention of employee.\u201d Therein, she alleged that the manager was employed (1) with primary supervisory duties; (2) to evaluate employees such as the plaintiff; and (3) to determine the professional advancement of numerous employees throughout the company. Count III further alleged that the plaintiff informed the company on numerous occasions of the manager\u2019s harassment and that on at least one occasion the company investigated and acknowledged that the claims were accurate. Despite that acknowledgment, the complaint continues, the company failed to take \u201ccorrective action to remedy said harassment.\u201d\nCount III asserts that in view of the relationship of authority and control conferred on the manager, the company owed its employees a duty \u201cto protect them from harm to their persons, property and career advancement.\u201d The complaint charges that the company breached its duty of care to its employees when, after having factual knowledge and confirmation of the manager\u2019s sexual harassment toward the plaintiff, it failed to take remedial action and, thus, ratified the manager\u2019s actions.\nCount III further alleged that prior to the manager\u2019s assault and harassment of the plaintiff the company knew, or should have known, that the manager was unfit for his job assignment. That assignment required him to work with and have authority over women. Count III concludes with a claim that the company was negligent, reckless, and grossly negligent in hiring the manager.\nCount IV of the complaint is based on a theory of negligent hiring. It adopts all the complaint\u2019s preceding allegations and adds that when the company employed the manager, he had a history of sexual discrimination and harassment and had been dismissed from previous employment for reasons of sexual discrimination and harassment.\nCount IV charges that the company owed the plaintiff a duty to investigate and that it breached its duty of care to the company employees by hiring the manager when it knew or should have known of his propensity for sexual harassment and discrimination. Count IV also charges that before it hired the manager, a reckless and grossly negligent act according to the complaint, the company knew or should have known that he was unfit for the manager position which required him to work with and have authority over women.\nCount IV asserts that the manager\u2019s behavior toward female employees of his former employer was discoverable by reasonable inquiry to the manager\u2019s former employer. It also asserts that had the company known of that prior behavior, it would not have hired the manager. According to count IV, the company\u2019s acts and omissions (1) in failing to discover the manager\u2019s history and predisposition and (2) in retaining the manager were the direct and proximate cause of the plaintiff\u2019s injuries.\nThe plaintiff\u2019s complaint sought compensatory and exemplary damages, costs, and fees. The company brought a motion to dismiss under section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 615). In that motion, the company argued that the complaint failed to state a cause of action. The court\u2019s order granted dismissal with prejudice of counts III and IV. This appeal is taken from that dismissal order.\nOn appeal, the plaintiff argues that the trial court should have recognized an employer\u2019s duty to make a reasonable sexual harassment investigation into the employment history of a prospective manager. She also argues that the court erred in dismissing her negligent retention claim, because Illinois law has established an employer\u2019s duty to protect employees from sexual harassment propensities known to it.\nThe company\u2019s motion to dismiss under section 2 \u2014 615 asserted (1) that there was no public policy requiring employers to check sexual harassment history of potential sales manager hirees; (2) that the plaintiff\u2019s claim that the company \u201cshould have known\u201d of the manager\u2019s propensity for sexual harassment was not sufficient to state a cause of action for negligent hiring; and (3) that the plaintiff\u2019s allegations of negligent retention were not sufficient, as there was no allegation that the manager sexually harassed the plaintiff after the company investigated and ascertained that there was a basis for the plaintiff\u2019s complaints against him. The company also moved to strike the plaintiff\u2019s prayers for punitive damages and attorney fees, asserting merely that \u201cthat there is no factual basis alleged that would allow\u201d either.\nA motion under section 2 \u2014 615 addresses defects on the face of the pleading; it admits all well-pleaded facts and attacks only the legal sufficiency of the complaint on its face. (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100.) In reviewing a dismissal order, we must determine whether the complaint\u2019s allegations, when interpreted in a light most favorable to the plaintiff, are sufficient to set forth a cause of action on which relief may be granted. (221 Ill. App. 3d at 1101.) A cause of action should not be dismissed unless it clearly appears that no set of facts could be proved which would entitle the plaintiff to recover. 221 Ill. App. 3d at 1101.\nIllinois courts have a long history of recognizing the availability of tort damages for an employer\u2019s negligent selection and employment of employees. In 1894, our supreme court observed that a \u201cmaster\u201d has a duty to exercise ordinary and reasonable care in the employment and selection of careful and skillful co-employees. (Western Stone Co. v. Whalen (1894), 151 Ill. 472, 484.) The court went on to state that ordinary care in the employment of \u201cservants\u201d requires a degree of diligence and caution proportionate to the exigencies of the particular service in question; the care required is what a reasonably prudent person would exercise in view of the consequences that might reasonably be expected if an incompetent or reckless person was employed. 151 Ill. at 485.\nIn Western Stone, the plaintiff was awarded tort damages against his employer, based on jury findings that his injury was the result of negligence by his co-employee, a captain of a steam propeller who had been hired by the defendant company. The court observed that where the service in which one is to be employed may endanger \u201cthe life and persons\u201d of co-workers, upon the plainest principles of justice and good faith, the employer should be required to make a reasonable investigation into the potential hiree\u2019s \u201ccharacter, skill and habits of life.\u201d (151 Ill. at 485.) The court further observed that courts had been practically unanimous that a master\u2019s failure to make such a reasonable investigation is negligence and that the master is held liable for a co-employee\u2019s injury resulting from the \u201cnegligence, incapacity or intemperance\u201d of the negligently hired servant. (151 Ill. at 485.) Furthermore, the court suggested that the employer\u2019s actual knowledge of the offending employee\u2019s character and habit was not necessary to the employer\u2019s liability. 151 Ill. at 486-87.\nThe approach in Western Stone has also been followed in later cases. In Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, the defendant detective agency was held liable in tort to a female resident of the building for which the agency had hired a security guard. In the underlying incident, the security guard, unknown to the agency, had both a stained work history and a criminal arrest record. The guard used his passkey to enter the victim\u2019s apartment, where he assaulted her.\nThe Easley court referred to settled Illinois law that there is a cause of action against an employer\u2019s negligently hiring someone it knew, or should have known, was unfit for the job to be filled. (69 Ill. App. 3d at 931.) The court also found sufficient evidence to support a jury finding that the guard had been unfit for hiring, that a reasonably adequate investigation could have determined this fact, and that the agency\u2019s virtually nonexistent investigation both exhibited a reckless disregard for the plaintiff\u2019s safety and constituted the proximate cause of the plaintiff\u2019s injury. 69 Ill. App. 3d at 932.\nIn Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 338, the plaintiff was a guest of a private party at the defendant\u2019s home. He alleged that the host had engaged an employee, whom the host knew had both a reputation for and propensities for violence, to act at the party as a bouncer and to maintain discipline with physical force. The court found that the guest had a negligent hiring cause of action against the host, for injuries caused him by the employee.\nIn Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, the court considered a negligent hiring claim brought by a female hitchhiker who was picked up by the defendant company\u2019s truck driver and raped by him in his truck\u2019s sleeping compartment. The trial court denied summary judgment for the company, finding that the company had a duty to check the potential driver\u2019s criminal record before hiring him. The appellate court affirmed. It found that the company entrusting its driver with a truck that had a sleeping compartment clearly had a duty to hire a fit employee. (146 Ill. App. 3d at 268.) It also observed that a lack of forethought may exist where one remains in voluntary ignorance of facts concerning particular danger. 146 Ill. App. 3d at 268.\nThe Malorney court found no evidence to justify the company\u2019s contention that the cost of the suggested investigation of the potential employee was too high, compared with its potential utility. (146 Ill. App. 3d at 269.) It concluded, considering that the company probably knew or should have known of truck drivers\u2019 tendency to give rides to hitchhikers, that the record demonstrated a triable question of fact as to whether, by failing to investigate the potential driver\u2019s history as the plaintiff suggested, the company breached its duty to hire a competent driver. 146 Ill. App. 3d at 269.\nIn Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 931, the court considered tort claims against the school officials who hired and supervised physical education teachers of the sixth-grade victim. The victim suffered spinal injuries in a school trampoline accident. The court followed reasoning consistent with the cases above, observing that liability for negligent hiring arises only when an employer knew or should have known that a particular unfitness of an applicant created a danger of harm to a third person. (148 Ill. App. 3d at 935.) The court affirmed the trial court\u2019s dismissal of the plaintiff\u2019s negligent hiring claim, finding that the plaintiff\u2019s mere allegation of failure to investigate the potential teachers\u2019 credentials, without any allegation that the employers knew or should have known of the applicants\u2019 particular unfitness that gave rise to a danger for third persons, was not legally sufficient. 148 Ill. App. 3d at 935.\nIn Bates v. Doria (1986), 150 Ill. App. 3d 1025, the plaintiff alleged negligent hiring of a sheriff's deputy who, during off-duty hours, assaulted her. Affirming summary judgment for the defendant employers, the court observed that where hiring created a danger of harm to third persons, there was a cause of action for negligently hiring or retaining an employee who was known or who should have been known to be unfit for the job. (150 Ill. App. 3d at 1030-31.) In that case, however, it found no factual basis for finding that the plaintiff\u2019s injury was proximately caused by the allegedly negligent hiring. 150 Ill. App. 3d at 1032.\nThe declaration of a duty in a negligence case reflects the foreseeability of the harm, but emphasizes considerations of public policy and social requirements related to the magnitude of the burden of guarding against the harm and the consequences of placing that burden on the defendant; the determination of whether there exists a duty is inevitably the product of policy considerations related to which plaintiffs should be afforded protection by the tort law. (See Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1047-53.) Furthermore, an analysis of whether a duty exists is specific to the historical circumstances when it is made; duty is not a static concept, but one that changes with societal changes \u2014 a reflection of the needs, wishes, and tolerances of society as determined by the court facing a current duty issue. Zimmermann, 122 Ill. App. 3d at 1051.\nAccording to the plaintiff\u2019s analysis, in the case now before us the matter critical to whether the company was entitled to an involuntary dismissal is whether the plaintiff properly alleged legal duties upon which recovery may lie. We first consider the plaintiff\u2019s count IV, based on negligent hiring. In supporting the legal viability of count IV, the plaintiff urges that we recognize a duty for this employer, who hired a male supervisor or manager to supervise women. That duty would apply, according to the plaintiff, to any employer hiring a person to supervise persons of the opposite sex; it would require prehiring inquiry into any such applicant\u2019s history of workplace sexual harassment of subordinates.\nAs background for our analysis of count IV, we survey the significant body of sexual harassment law. Federal statutory prohibitions of sexual harassment are found at section 703(a)(1) of title VII of the Federal Civil Rights Act of 1964, as amended (see 42 U.S.C. \u00a72000e\u2014 2(a)(1) (1988)) and in section 703(a)(1)\u2019s accompanying regulations (see 29 C.F.R. \u00a71604.11 (1985)). These title VII regulations prohibiting sexual harassment in the workplace were first promulgated in the Equal Employment Opportunity Commission\u2019s 1980 \u201cGuidelines on Discrimination Because of Sex.\u201d They received early judicial endorsement. See Meritor Savings Bank, F S B v. Vinson (1986), 477 U.S. 57, 65, 91 L. Ed. 2d 49. 58-59. 106 S. Ct. 2399. 2404-05.\nIn Illinois, the legislature has enacted numerous statutory prohibitions against sexual harassment. (See Ill. Rev. Stat. 1991, ch. 29, par. 17; ch. 68, par. 2 \u2014 102(D); ch. 144, par. 189.21; see also Ill. Const. 1970, art. I, \u00a718.) Furthermore, although Illinois courts have not directly addressed the question of the duty urged by the plaintiff, they have found the State\u2019s prohibition of sexual harassment to be a strong one.\nIn Board of Directors, Green Hills Country Club v. Human Rights Comm\u2019n (1987), 162 Ill. App. 3d 216, 220, for example, the court found that under the Illinois Human Rights Act prohibition against sexual harassment in the workplace (see Ill. Rev. Stat. 1991, ch. 68, par. 2 \u2014 102(D)) an employer is liable for sexual harassment of its employees by supervisory personnel regardless of whether the employer knew of the offending conduct. In another example, Fitzgerald v. Pratt (1992), 223 Ill. App. 3d 785, the court excepted allegations of intentionally inflicted or authorized sexual harassment from the generally exclusive remedy of workers\u2019 compensation. It allowed an employee alleging sexual harassment to sue her employer in tort, outside the workers\u2019 compensation system. 223 Ill. App. 3d at 789; see also Byrd v. Richardson-Greenshields Securities, Inc. (Fla. 1989), 552 So. 2d 1099; Harman v. Moore\u2019s Quality Snack Foods, Inc. (Tenn. Ct. App. 1991), 815 S.W.2d 519; cf. Cremen v. Harrah\u2019s Marina Hotel Casino (D.N.J. 1988), 680 F. Supp. 150.\nWe consider the Illinois tradition of tort liability for negligent hiring in the context of the legislatively created and judicially acknowledged State policy against sexual harassment. In that context, we find without question that in this State workplace sexual harassment is considered to present a serious harm. (See Board of Directors, 162 Ill. App. 3d at 220.) Based on that finding, and even though sexual harassment does not necessarily comprise the sort of physical injury present in the other negligent hiring cases that other Illinois courts have decided, we find no reason to distinguish the quality of harm presented by the sexual harassment alleged here, particularly as it involves physical violation, from the quality of harm threatened in those other cases where employers were subjected to tort liability for allegedly negligent hiring. See Western Stone, 151 Ill. at 485.\nIn this case, the plaintiff alleged that her manager was hired for a job that included extensive supervision of personnel not of his gender. We accept the truth of that well-pleaded fact allegation. We also refer to the Illinois Human Rights Act\u2019s underlying acknowledgment that sexually harassing conduct in the workplace must be guarded against and remedied. We then find that the legislatively acknowledged harm of sexual harassment to the manager\u2019s supervisees was a foreseeable hazard of his employment.\nFurther, we find no basis to conclude that the burden to guard against the harm is of great magnitude for an employer such as the company here. To satisfy the burden in this case, the company might merely have needed to make slightly increased inquiry of the potential manager\u2019s former employer; some inquiry of former employers is a standard practice for hiring management personnel. It might also have inquired of the management applicant, in an interview or in a screening application question.\nGiven the serious harm that sexual harassment has been legislatively deemed to constitute, the foreseeable hazard of that harm's occurring upon hiring a new manager of a staff comprised primarily of persons not of the manager\u2019s gender, the plaintiff\u2019s allegation that the employer could have but failed to learn through investigation that the manager had a predisposition to and work history of sexual harassment of female co-workers, and the plaintiff\u2019s allegation of her proximate injury, including physical violations resulting from the employer\u2019s failure to act, we find that the plaintiff adequately pleaded a cause of action in tort. See Zimmermann, 122 Ill. App. 3d at 1052, Easley, 69 Ill. App. 3d at 932.\nOur judgment falls short of a declaration of a specific duty to investigate and fully learn potential management employees\u2019 sexual harassment history and, thus, it is short of the duty declaration urged by the plaintiff. Rather, our conclusion is merely that the plaintiff\u2019s pleadings support her cause of action, considering the Illinois courts\u2019 long-held view that an employer has a duty to exercise ordinary and reasonable care in the employment and selection of careful and skillful co-employees (Western Stone, 151 Ill. at 484) and to discharge that duty with care commensurate with the perils and hazards likely to be encountered in the employee\u2019s performance of his job (Western Stone, 151 Ill. at 485).\nWith reference to the serious concern now afforded the issue of sexual harassment in the workplace, we find that the plaintiff sufficiently pleaded a cause of action based on whether the company negligently breached its duty of diligent and cautious hiring in consideration of co-workers. (See Western Stone, 151 Ill. at 485.) In our judgment, that duty can comprise a need to make the sort of investigation urged by the plaintiff here, and even with that inclusion, it imposes no inappropriate administrative or economic burden for employers. (See Malorney, 146 Ill. App. 3d at 269.) We also find that in being sufficiently broad to address the harm of sexual harassment, that duty serves a prophylactic role in the interest of today\u2019s ethical or moral thinking and in the general interest of justice. See Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1052.\nThe company\u2019s argument against the recognition of a duty here is largely based on the fact that no precisely analogous duty has been recognized in Illinois. We, however, do not find that argument persuasive. It is clear that the concept of duty is an ever-evolving one. (See Zimmermann, 122 Ill. App. 3d at 1051-53.) Furthermore, in our mere recognition that an employer can violate its duty of nonnegligent hiring by a failure to make a \u201creasonable examination\u201d of management candidates\u2019 history of sexual harassment, we do not, contrary to the company\u2019s assertion, begin a slippery slope of judicial involvement in the quality and breadth of the investigation requirement; courts have long relied on the feasibility of a rule of \u201creasonableness.\u201d (See, e.g., Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, 269.) Lastly, we do not find, as the company suggests, that the propriety of our judicial recognition of a duty in this case is called into question by the absence of any specific, comparable legislative requirement.\nIn our conclusion here, we leave open the factual matter of whether the company violated its duty by its failure to act in this case. (See Malorney, 146 Ill. App. 3d at 269.) Additionally, we note, as does the plaintiff, that we do not effectively create a complete ban on the hiring of persons with a history of sexually harassing behavior for elevated employment roles. In the case that through prehiring investigation an employer learns of cause for caution concerning a potential employee\u2019s history suggesting sexual harassment, the employer merely would have been made aware of the need to emphasize the proper bounds of that individual\u2019s workplace conduct and to monitor the new employee\u2019s treatment of his co-workers. Such caution would seem to be in the employer\u2019s interest, given Illinois\u2019 recognition of a form of strict employer liability for supervising employees\u2019 acts of sexual harassment. See Board of Directors, 162 Ill. App. 3d at 220.\nIn conclusion, we find that taking all well-pleaded facts as true, and interpreting the plaintiff\u2019s count IV in a light most favorable to her (see Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100 \u2014 01), the plaintiff adequately alleged facts which could entitle her to relief for her employer\u2019s negligent hiring, based on its failure to make a reasonable investigation in hiring the manager. Thus, we reverse the court\u2019s section 2 \u2014 615 dismissal of the plaintiff\u2019s count IV.\nRegarding the court\u2019s dismissal of the plaintiff\u2019s count III, the count based on the company\u2019s retention of the manager in his employment, the company argues that the plaintiff failed to state a cause of action for two reasons. First, the company refers to the plaintiff\u2019s acknowledgement in her brief that the harassment in this case ceased after the company\u2019s president investigated and confirmed the plaintiff\u2019s charges of sexually harassing behavior by the manager. Based on the absence of allegations that there was any sexual harassment after the company\u2019s investigation, the company asserts that the manager\u2019s discharge was not necessary. Secondly, the company asserts that the plaintiff\u2019s count III fails sufficiently to allege damages. According to the company, (1) the plaintiff has brought an action that rests on allegations of stress anxiety; (2) such torts require damage allegations setting forth severe emotional distress; and (3) the plaintiff\u2019s damage allegations do not rise to the required level of severe emotional distress.\nWe find, initially, that the company\u2019s arguments miss the crucial issues related to the plaintiff\u2019s count III claim, and we dispense with them with brief comment. Initially, we do not find that the plaintiff\u2019s complaint is rendered insufficient by her acknowledgment that the manager\u2019s sexual harassment ended after the company verified her complaints. The plaintiff\u2019s complaint alleges (1) that before the harassing conduct ended, she complained of it to the company and (2) that despite her claim that the company \u201cknew or should [have] known\u201d of the conduct, the company took no responsive action. The plaintiff has, thus, alleged claims based on the company\u2019s failure to act when on notice of its employee\u2019s sexual harassment of a co-worker.\nFurther, we are not persuaded by the company\u2019s argument regarding damages. Contrary to the company\u2019s assertion, the plaintiff does not merely allege that she proximately suffered \u201csevere and emotional distress\u201d in the form of \u201cstress anxiety, loss of weight and sleep, and *** a profound loss of self esteem [sic] and depression.\u201d Count III also incorporates the plaintiff\u2019s allegation that she was terminated from her employment in retaliation for her response to sexual harassment at her workplace. The sufficiency of the plaintiff\u2019s emotional distress allegations is not determinative here. Cf. Miller v. Equitable Life Assurance Society of the United States (1989), 181 Ill. App. 3d 954.\nHaving disposed of the company\u2019s arguments, we proceed to our more basic consideration of whether the plaintiff has alleged facts upon which recovery may be had. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 615; Aguilar, 221 Ill. App. 3d at 1100-01.) As with our analysis of the plaintiff\u2019s count IV, our analysis of the legal viability of the plaintiff\u2019s count III is centered on whether the plaintiff has properly alleged a duty that is recognizable in tort law.\nAs we have noted in our preceding analysis, Illinois law has a clear prohibition against workplace sexual harassment. (See Ill. Rev. Stat. 1991, ch. 68, par. 2 \u2014 102(D).) Furthermore, in Illinois an employer has been deemed responsible for sexual harassment of its employees by supervisory personnel, regardless of whether it knew of the conduct. (Board of Directors, Green Hills County Club v. Human Rights Comm\u2019n (1987), 162 Ill. App. 3d 216, 220.) Also, just as it recognizes a cause of action for negligent hiring, Illinois law also recognizes a tort cause of action against an employer for negligently retaining in its employment an employee that the employer knew or should have known was unfit for the job so as to create a danger to third parties. Bates v. Doria (1986), 150 Ill. App. 3d 1025, 10300.\nIn her count III, the plaintiff alleged that she suffered proximate injury after she repeatedly informed the company of the manager\u2019s sexually harassing conduct towards her and that the company took no action. With reference to our preceding analysis on the serious nature of sexual harassment, and to Illinois\u2019 general recognition of a tort of negligent retention of an employee, we find that the plaintiff\u2019s count III adequately alleged a cause of action and should not have been dismissed.\nBased on the foregoing, we reverse the judgment of the circuit court of Du Page County. We remand the cause for further proceedings on both counts III and IV, consistent with this opinion.\nReversed and remanded.\nWOODWARD, J., concurs.", "type": "majority", "author": "JUSTICE GEIGER" }, { "text": "JUSTICE DOYLE,\nconcurring in part and dissenting in part:\nI concur in the majority\u2019s recognition of plaintiff\u2019s cause of action for negligent retention; however, I dissent from that portion of the opinion which allows plaintiff a cause of action for negligent hiring premised upon the failure to investigate for prior instances of sexual harassment based solely on the existence of a mixed-gender workplace.\nI agree with the majority conclusion that plaintiff\u2019s allegations addressing defendant\u2019s failure to redress her complaints of sexual harassment were sufficient to state a cause of action for negligent retention. Negligent retention occurs \u201c \u2018when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigation, discharge or reassignment.\u2019 \u201d (Foster v. Loft (1988), 26 Mass. App. Ct. 289, 291, 526 N.E.2d 1309, 1311, quoting Garcia v. Duffy (Fla. Dist. Ct. App. 1986), 492 So. 2d 435, 438-39.) Taking all well-pleaded allegations in plaintiff\u2019s complaint as true and viewing them in a light most favorable to plaintiff, as we must for the purposes of a section 2 \u2014 615 motion to dismiss (see Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 615; Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100-01), I agree with.the majority conclusion that plaintiff alleged a claim based on the company\u2019s failure to act after being placed on notice of an employee\u2019s sexual harassment of her.\nTurning now to plaintiff\u2019s claim for negligent hiring, I must state at the outset.that I consider the majority\u2019s attempt to fashion an additional means to redress the serious problem of workplace sexual harassment an excellent objective. I am concerned, however, with the creation of a rule of law that imposes on employers an affirmative duty to investigate all prospective managerial and supervisory employees for prior instances of sexual harassment based solely on the existence of a mixed-gender workplace. Although the majority states that the opinion falls short of declaring a specific duty to investigate potential management employees\u2019 sexual harassment history, I interpret the opinion as doing precisely that. Setting aside considerations of actual and proximate cause, as I read the majority opinion, an employer\u2019s mere failure to conduct a background investigation of prospective managerial or supervisory candidates concerning their propensities towards sexual harassment will result in a breach of that duty, thus subjecting the employer to liability. Carried to its logical extreme, I view the majority\u2019s creation of such a duty as opening the door to imposing on employers a multitude of affirmative duties to conduct background investigations to expose various character traits or propensities of prospective employees regardless of their contemplated position in the hierarchical structure and without consideration of the particular circumstances of the workplace or exigencies of the particular employment. It is foreseeable that complex issues of privacy would ultimately be implicated in such a process and that employers\u2019 efforts to respect the proper scope of preemployment inquiries, already limited by privacy concerns, would become even more difficult. For the reasons that follow, it is my opinion that (1) the existing body of negligent hiring cases does not support the creation of such a duty; (2) the absence in this State, and the express denunciation by other jurisdictions, of the imposition of a per se affirmative duty to inquire concerning prior instances of criminal conduct by prospective employees suggests that the imposition of an affirmative duty to investigate all prospective management employees for prior instances of sexual harassment is unwarranted; and (3) the focus of the analysis in such cases should be directed to the breach aspect of the tort rather than the creation of an affirmative duty to investigate.\nAs originally conceived, a common-law cause of action for negligent hiring/retention was devised as an exception to the common-law fellow-servant doctrine. The fellow-servant doctrine absolved an employer of liability to one engaged in his employment for injuries incurred because of the carelessness or misconduct of others also employed by that employer and who were engaged in the same general employment as the injured employee. (53 Am. Jur. 2d Master & Servant \u00a7295, at 327 (1970).) An exception to the fellow-servant rule was recognized, however, in cases where an employer was negligent in employing incompetent co-employees. (See, e.g., Western Stone Co. v. Whalen (1894), 151 Ill. 472, 484.) The result of this exception was not to impose a form of imputed liability on employers for the actions of their employees against fellow employees, but to recognize a direct cause of action by an injured employee against an employer for its failure to exercise reasonable care in the selection of careful and skilled co-employees (Western Stone, 151 Ill. at 485). As early as Western Stone and before, courts wrestled with the problem of what precisely was the exercise of reasonable care in such cases. See Western Stone, 151 Ill. at 484.\nAs the rule evolved in Illinois, and other jurisdictions (see Ponticas v. K.M.S. Investments (Minn. 1983), 331 N.W.2d 907, 910 (list of citations)), actions predicated on direct employer liability for failure to exercise reasonable care in the selection and retention of employees expanded the scope of the employer\u2019s duty to encompass not only injured co-employees but nonemployee third parties as well (see, e.g., Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 931-32 (employee hired as security guard assaulted apartment tenant)). Although the present case involves alleged instances of assault and sexual harassment perpetrated by a manager against a subordinate level employee, I agree with the majority\u2019s implicit determination that the third-party cases are nevertheless instructive. See Bates v. Doria (1986), 150 Ill. App. 3d 1025; Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 931; Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333; Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920.\nThe rule, as often articulated, in its present-day form states 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. (Bates, 150 Ill. App. 3d at 1030.) While I am in complete agreement with the imposition of the well-established duty which requires employers to exercise reasonable care in the selection and retention of employees, I consider it an unnecessary expansion of this principle to impose in all cases a specific duty on employers to inquire about past instances of sexual harassment by prospective management employees based solely on the circumstance that men and women will be working together. In reaching its determination to impose this affirmative duty, I believe that the majority either fails to acknowledge, or intentionally abrogates, a critical element of the existing negligent hiring cases. The majority essentially eliminates any consideration of the circumstances and particular type of employment that the prospective employee will be engaged in as a means of determining what constitutes the exercise of reasonable care. Although the majority identifies a supervisory or management role in a mixed-gender workplace as the particular circumstance by which its newly recognized duty to investigate is triggered, this is a circumstance which is by no means peculiar but, on the contrary, is common to the majority of workplaces in this country.\nA common thread running through the negligent hiring cases cited by the majority is the existence of an inherent quality concerning the circumstances of the offending employee\u2019s occupation that places third parties at some heightened level of risk. For example, in Western Stone the offending employee was a steamship captain charged with the safe operation of a hazardous ship towing operation; in Easley, the offending employee was an armed security guard entrusted with a passkey to a number of apartments; in Gregor, the defendant employed a bouncer with an alleged vicious propensity for physical violence upon others to maintain order at a social gathering; in Malorney, the court interestingly found it significant that the offending employee was operating an over-the-road truck with a sleeping compartment which that court believed presented a special danger to female hitchhikers; in Fallon, the alleged offending employees were hired as physical education instructors teaching trampoline techniques to sixth-grade children; and in Bates, the offending employee was an off-duty sheriff\u2019s deputy. In each of these cases, where the court assigned significance to the necessity of conducting a background investigation into particular behavior, it was borne out of a consideration of the particular task to which the offending employee was assigned and the potential for heightened risk to others.\nAs our supreme court stated in Western Stone, the duty placed on employers to exercise \u201cordinary care in the employment of servants require[d] a degree of diligence and caution proportionate to the exigencies of the particular service.\u201d (Emphasis added.) (Western Stone, 151 Ill. at 485; accord Focke v. United States (D. Kan. 1982), 597 F. Supp. 1325, 1345-46; Ponticas v. K.M.S. Investments (Minn. 1983), 331 N.W.2d 907, 912-13; see generally Note, The Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 Chi.-Kent L. Rev. 717 (1977).) The court further declared that it is \u201csuch care as a reasonably prudent person would exercise, in view of the consequences that might reasonably be expected to result if an incompetent, careless or reckless servant was employed for the particular duty.\u201d (Emphasis added.) (Western Stone, 151 Ill. at 485.) What becomes apparent from the court\u2019s early pronouncement is that the extent of an employer\u2019s duty to exercise ordb nary care in the selection of employees would be determined by the peculiarities of a particular occupation. As the court itself concluded, \u201c[w]here *** a master employs a servant to engage in a business known to be hazardous, and where the proper and safe discharge of the duty requires a high degree of care, skill and diligence, the master will be held in the selection of the servant to the exercise of care reasonably commensurate with the perils and hazards likely to be encountered in the performance of the duty.\u201d Western Stone, 151 Ill. at 485.\nI agree with the majority that there is no basis for distinguishing the quality of harm presented by the sexual harassment alleged by plaintiff from the quality of harm threatened in other cases in which tort liability for negligent hiring has been recognized. The majority opinion seems to be predicated, however, on the notion that anytime persons of the opposite sex are commingled in a work environment the risk of harm is so elevated that an employer must guard against the potential danger by investigating the backgrounds of all supervisory employees. Although I recognize that sexual harassment is all too prevalent and has the potential for infliction of serious harm, I am unwilling to take such a dismal overall view of the American workplace. The fact that serious abuses sometimes occur is not a reason to assume that danger lurks in every employment relationship to such an extent that it is reasonable to require employers to launch background investigations of all supervisory personnel before any hint of impropriety is even suspected. To be perfectly clear, I am not suggesting that there would never be a circumstance where it would be reasonably prudent for an employer to investigate a prospective employee\u2019s background for prior instances of sexual harassment. My concern is that the majority has imposed on employers a blanket duty to investigate for prior instances of workplace sexual harassment for no reason other than the circumstance of mixed-gender workplace.\nAs analogous support for my position, I note that at least two other jurisdictions have expressly rejected the notion that there exists a duty upon an employer to make an inquiry as to a prospective employee\u2019s criminal record even where it is known that the employee is to deal regularly with members of the public. (See Ponticas, 331 N.W.2d at 913; Evans v. Morsell (1978), 284 Md. 160, 167, 395 A.2d 480, 484.) As noted by the court in Ponticas:\n\u201cIf the employer has made adequate inquiry or otherwise has a reasonably sufficient basis to conclude the employee is reliable and fit for the job, no affirmative duty rests on him to investigate the possibility that the applicant has a criminal record. *** Liability of an employer is not to be predicated solely on failure to investigate criminal history of an applicant, but rather, in the totality of the circumstances surrounding the hiring, whether the employer exercised reasonable care. This is generally a jury question.\u201d (Ponticas, 331 N.W.2d at 913.)\nIn light of the above jurisdictions\u2019 express rejection of any affirmative duty to inquire about a prospective employee\u2019s criminal background and the absence of any such duty in Illinois, it seems to follow that liability here should not be predicated solely on the failure to investigate for prior instances of sexual harassment; rather, the focus should be on the totality of the circumstances and whether the employer exercised reasonable care in light thereof. Moreover, considering the competing burdens and important public policy concerns that are implicated by the imposition of such an affirmative duty, I further question whether such a determination is better left to the legislature.\nIn my view, existing negligent hiring precedent, and a recognition of the already existing duty to exercise reasonable care in the selection and retention of employees based upon the totality of the circumstances and the particular exigencies of an individual\u2019s employment, already provide plaintiffs with a suitable recourse in these cases. The inquiry here should not be whether, as plaintiff urges and the majority agrees, to impose on employers a duty to investigate all prospective managerial employees for prior instances of sexual harassment where that prospect will be employed in a mixed-gender workplace; rather, the inquiry should be whether plaintiff has alleged facts sufficient to establish that defendant breached its duty to exercise reasonable care in the selection of management employees. By focusing the analysis on the breach aspect of the tort, existing precedent is left undisturbed, it becomes unnecessary to fashion a specific duty to investigate in all cases for prior instances of sexual harassment, and it allows the trier of fact to consider more fully the totality of the circumstances surrounding the nature of the employment and an employer\u2019s hiring practices.\nIn determining the necessity and scope of a background investigation, the type of work to be performed should be considered (Garcia, 492 So. 2d at 441), and, if it is concluded that such an investigation is required, its scope should be directly related to the severity of risk third parties are subjected to by an incompetent employee (Ponticas, 331 N.W.2d at 913).\nI further suggest that when analyzing whether an employer is required to conduct an investigation into specific instances of prior conduct, the inquiry should consider such factors as whether the employer at the time of hiring had actual or constructive knowledge of an employee\u2019s unfitness and whether the exigencies of the particular employment presented a heightened risk of harm to third parties, thus necessitating an investigation.\nApplying the foregoing to the circumstances of the present case, it is my conclusion that plaintiff failed to allege facts sufficient to establish a breach of the duty to exercise reasonable care in hiring. Plaintiff alleged that defendant owed a \u201cduty to Plaintiff to investigate and breached its duty of care to its employees by hiring an employee in the person of Defendant Walthall when Defendant Phoenix knew, or should have known of his propensity for sexual harassment and discrimination.\u201d Plaintiff further alleged Walthall\u2019s behavior was \u201cdiscoverable *** through reasonable inquiry.\u201d\nNotwithstanding plaintiff\u2019s conclusional allegation that defendant knew, or should have known, of Walthall\u2019s prior instances of sexual harassment, reading the complaint as a whole, I find no well-pleaded factual allegations sufficient to establish that defendant had notice, either actual or constructive, of Walthall\u2019s alleged prior instances of sexual harassment at the time of hiring. Additionally, plaintiff pleads no facts to establish that the exigencies and circumstances surrounding Walthall\u2019s employment were such as to place defendant on notice that a background inquiry into prior instances of sexual harassment was necessary. Accordingly, I would affirm the circuit court\u2019s dismissal of count IV of plaintiff\u2019s first amended complaint.", "type": "concurrence", "author": "JUSTICE DOYLE," } ], "attorneys": [ "Thomas F. Howard, Jr., of Bloomingdale, for appellant.", "Paula S. Goldberg, of DiMonte & Lizak, of Park Ridge (Chester A. Lizak, of counsel), for appellee." ], "corrections": "", "head_matter": "MELODY C. GEISE, Plaintiff-Appellant, v. PHOENIX COMPANY OF CHICAGO, INC., Defendant-Appellee (William Walthall, Defendant).\nSecond District\nNo. 2 \u2014 92\u20140642\nOpinion filed May 24, 1993.\nRehearing denied July 30, 1993.\nDOYLE, J., concurring in part and dissenting in part.\nThomas F. Howard, Jr., of Bloomingdale, for appellant.\nPaula S. Goldberg, of DiMonte & Lizak, of Park Ridge (Chester A. Lizak, of counsel), for appellee." }, "file_name": "0441-01", "first_page_order": 459, "last_page_order": 477 }