{ "id": 4260076, "name": "TAMMY MacDONALD, as Personal Representative of the Estate of Nicholas Michael James, Deceased, Plaintiff-Appellant, v. WILLIAM HINTON, a/k/a Bill Hinton, et al., Defendants-Appellees", "name_abbreviation": "MacDonald v. Hinton", "decision_date": "2005-09-30", "docket_number": "No. 1\u201405\u20140441", "first_page": "378", "last_page": "388", "citations": [ { "type": "official", "cite": "361 Ill. App. 3d 378" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "589 N.E.2d 638", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "640", "parenthetical": "discussing section 317 of the Restatement (Second) of Torts" } ], "opinion_index": 0 }, { "cite": "226 Ill. App. 3d 92", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5237815 ], "year": 1992, "pin_cites": [ { "page": "95", "parenthetical": "discussing section 317 of the Restatement (Second) of Torts" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0092-01" ] }, { "cite": "664 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 372", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75383 ], "year": 1996, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0372-01" ] }, { "cite": "628 N.E.2d 602", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "256 Ill. App. 3d 77", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383499 ], "year": 1993, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0077-01" ] }, { "cite": "437 N.E.2d 1237", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "1240" } ], "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3019530 ], "year": 1982, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0477-01" ] }, { "cite": "443 N.E.2d 1162", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "1166" } ], "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5440837 ], "year": 1982, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0333-01" ] }, { "cite": "495 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "486" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "255 Va. 216", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 513125 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "221-22" }, { "page": "221-22" } ], "opinion_index": 0, "case_paths": [ "/va/255/0216-01" ] }, { "cite": "439 N.W2d 914", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1989, "opinion_index": 0 }, { "cite": "176 Mich. App. 506", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2315486 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/mich-app/176/0506-01" ] }, { "cite": "342 N.W2d 599", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1983, "pin_cites": [ { "page": "606-07" } ], "opinion_index": 0 }, { "cite": "129 Mich. App. 535", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2253177 ], "year": 1983, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/mich-app/129/0535-01" ] }, { "cite": "874 P.2d 814", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10354876 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "816-17" }, { "page": "816-17" }, { "page": "816-17" }, { "page": "816-17" } ], "opinion_index": 0, "case_paths": [ "/p2d/874/0814-01" ] }, { "cite": "607 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "49" }, { "page": "47" }, { "page": "49" }, { "page": "49" }, { "page": "49" } ], "opinion_index": 0 }, { "cite": "79 Ohio App. 3d 210", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 1670902 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "217" }, { "page": "213" }, { "page": "216-17" }, { "page": "216-17" }, { "page": "216-17" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/79/0210-01" ] }, { "cite": "285 S.W. 685", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 10308720 ], "weight": 8, "year": 1926, "pin_cites": [ { "page": "685-86" }, { "page": "685" }, { "page": "685-86" }, { "page": "685" }, { "page": "686" }, { "page": "685" }, { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/sw/285/0685-01" ] }, { "cite": "40 A.L.R.5th 1", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "weight": 6, "year": 1996, "pin_cites": [ { "page": "13", "parenthetical": "hereinafter Sharp" }, { "page": "14", "parenthetical": "explaining that courts are split on the issue of whether the employer-employee relationship is a special relationship" }, { "page": "13-14" }, { "page": "14-15" } ], "opinion_index": 0 }, { "cite": "328 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "540" }, { "page": "542" } ], "opinion_index": 0 }, { "cite": "60 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415249 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "555" }, { "page": "559-60" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0552-01" ] }, { "cite": "641 N.E.2d 845", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1994, "pin_cites": [ { "page": "848" }, { "page": "848" }, { "page": "849" }, { "page": "849" }, { "page": "849" }, { "page": "849" }, { "page": "849" }, { "page": "850" } ], "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 775", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333115 ], "weight": 8, "year": 1994, "pin_cites": [ { "page": "779" }, { "page": "779" }, { "page": "780" }, { "page": "780-81" }, { "page": "781" }, { "page": "781" }, { "page": "780" }, { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0775-01" ] }, { "cite": "821 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1125" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448906 ], "year": 2004, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0351-01" ] }, { "cite": "531 N.E.2d 1358", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "1364" }, { "page": "1364" } ], "opinion_index": 0 }, { "cite": "125 Ill. 2d 203", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554811 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "215" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0203-01" ] }, { "cite": "688 N.E.2d 1172", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1175" } ], "opinion_index": 0 }, { "cite": "179 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801348 ], "year": 1997, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0338-01" ] }, { "cite": "789 N.E.2d 1216", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1221" } ], "opinion_index": 0 }, { "cite": "204 Ill. 2d 363", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609705 ], "year": 2003, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0363-01" ] }, { "cite": "798 N.E.2d 724", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "733" } ], "opinion_index": 0 }, { "cite": "207 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974987 ], "year": 2003, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0331-01" ] } ], "analysis": { "cardinality": 967, "char_count": 23890, "ocr_confidence": 0.801, "pagerank": { "raw": 1.1242192055877836e-07, "percentile": 0.5742271074491215 }, "sha256": "b27d2a60eb17bb3b0bbef3421e70fa093852e6e35c30de21ed6cb00ee2ef789c", "simhash": "1:1af81e112c57109d", "word_count": 4002 }, "last_updated": "2023-07-14T19:43:20.596028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TAMMY MacDONALD, as Personal Representative of the Estate of Nicholas Michael James, Deceased, Plaintiff-Appellant, v. WILLIAM HINTON, a/k/a Bill Hinton, et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nPlaintiff Tammy MacDonald appeals from the order of the circuit court of Cook County granting defendant William Hinton\u2019s motion to dismiss her complaint for failure to state a claim pursuant to section 2- \u2014 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 2004)). Plaintiff sued defendant, who employed her son Nicholas Michael James until he was murdered by one of his coworkers, convicted murderer David Maust, for damages under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2004)), the \u201csurvival statute\u201d of the Probate Act of 1975 (755 ILCS 5/27 \u2014 6 (West 2004)), and the family expense statute (750 ILCS 65/15 (West 2004)) based on breach of a duty to warn James of the danger posed by Maust. On appeal, plaintiff contends that the circuit court erred in dismissing her complaint because she stated a claim that: (1) defendant breached his duty to warn James that Maust was a convicted murderer; and (2) that \u201c[defendants are directly liable for negligently hiring and retaining a violent person known to pose a risk to others, without issuing a simple warning.\u201d We affirm.\nOn May 20, 2004, plaintiff filed a three-count complaint against defendant. In response, on June 4, 2004, defendant filed a motion for judgment on the pleadings, requesting that plaintiff\u2019s complaint be dismissed pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2004)) on two primary grounds. First, defendant contended that plaintiff was statutorily barred from asserting such a claim by the exclusive remedy provided in the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 2004)). Second, defendant argued that plaintiff sought to impose a duty on employers to warn employees about violent tendencies of other employees and to anticipate their possible criminal acts, which is not required by law. Plaintiff filed a memorandum in opposition to defendant\u2019s motion. On August 30, 2004, the court declined to grant defendant\u2019s motion for judgment on the pleadings, but directed plaintiff to file an amended complaint by September 27, 2004.\nPlaintiff filed an amended complaint on September 13, 2004. Therein, plaintiff alleged that in May 2003, defendant employed Maust and plaintiffs 19-year-old son James at his trophy business, Trophies Are Us II, in Dolton, Illinois. Defendant also owned a residential apartment building in Hammond, Indiana, and leased an apartment to James and another to Maust. Occasionally, defendant also employed James and Maust to perform repair work at the apartment building. Maust befriended James at work and frequently provided James with transportation to and from their mutual places of residence and work.\nSubsequently, Maust assaulted and killed James. Maust buried James\u2019s body in the basement of defendant\u2019s apartment building. The homicide did not occur while the men were engaged in the course of their employment at Trophies Are Us.\nPlaintiff alleged that defendant knew that Maust was \u201ca convicted killer who constituted a mortal danger to young men such as [James] with whom he was able to make acquaintance through mutual employment or otherwise.\u201d Defendant also knew of the relationship that had developed between James and Maust and that James was not likely to become aware of the \u201cmortal danger\u201d posed by Maust on his own. Therefore, plaintiff asserted, defendant was negligent insofar as he breached a duty to warn James that Maust was \u201ca convicted killer,\u201d whose \u201cprevious victims were young males,\u201d and that \u201cMaust had established an acquaintance or some other sort of personal relationship with his previous victims prior to killing them *** suddenly, brutally and without warning.\u201d Plaintiff concluded that James\u2019s death was proximately caused by defendant\u2019s breach of duty to warn James about Maust.\nAccordingly, in count I of the complaint, plaintiff sought damages for James\u2019s death pursuant to the Wrongful Death Act (740 ILCS 180/ 0.01 et seq. (West 2004)). In count II, plaintiff sought damages for mental and physical injuries to James leading to his death, as well as damages for \u201ccertain items of clothing, valuables and personal effects belonging to [James] [which] were lost or destroyed in the course of Maust\u2019s assault,\u201d pursuant to section 27 \u2014 6 of the Probate Act of 1975 (755 ILCS 5/27 \u2014 6 (West 2004)). In count III, plaintiff sought compensation for the expenses of James\u2019s funeral and cremation pursuant to the Illinois family expense statute, which is section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2004)).\nOn January 12, 2005, following more briefing and argument, the circuit court granted defendant\u2019s motion and dismissed plaintiff\u2019s complaint with prejudice. The court specifically found that plaintiff failed to plead any cognizable duty on the part of defendant. Plaintiff filed her timely notice of appeal from that order on February 10, 2005.\nOn appeal, plaintiff first contends that she stated a claim of negligence against defendant based on a breach of defendant\u2019s duty to warn James about Maust. Specifically, plaintiff relies on section 471 of the Restatement (Second) of Agency (Restatement (Second) of Agency \u00a7 471 (1958)) to assert that defendant should have warned James that Maust was \u201ca convicted murderer\u201d with the \u201cpropensity to befriend boys and young men and then, having won their confidence, to kill them.\u201d\nA section 2 \u2014 615 motion to dismiss attacks the legal sufficiency of the complaint, alleging that the complaint is defective on its face. Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d 724, 733 (2003). The question presented by a section 2 \u2014 615 motion to dismiss is whether the allegations in the complaint, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Beahringer v. Page, 204 Ill. 2d 363, 369, 789 N.E.2d 1216, 1221 (2003). Because ruling on a section 2 \u2014 615 motion to dismiss does not require a court to weigh facts or to determine credibility, our review is de novo. Vernon v. Schuster, 179 Ill. 2d 338, 344, 688 N.E.2d 1172, 1175 (1997).\nIn order to state a claim for negligence, the plaintiff must set out sufficient facts to allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 215, 531 N.E.2d 1358, 1364 (1988). Whether a duty of care exists is a question of law to be determined by the court. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 391, 821 N.E.2d 1099, 1125 (2004). In the absence of allegations that would show the existence of a duty, no recovery by the plaintiff is possible. See Rowe, 125 Ill. 2d at 215, 531 N.E.2d at 1364.\nOrdinarily, a party owes no duty of care to protect another from the harmful or criminal acts of third persons. Petersen v. U.S. Reduction Co., 267 Ill. App. 3d 775, 779, 641 N.E.2d 845, 848 (1994), citing Fancil v. Q.S.E. Foods, Inc., 60 Ill. 2d 552, 555, 328 N.E.2d 538, 540 (1975); see also L. Sharp, Employer\u2019s Liability to Employee or Agent for Injury or Death Resulting from Assault or Criminal Attack by Third Person, 40 A.L.R.5th 1, 13 (1996) (hereinafter Sharp). However, the law recognizes at least four exceptions to this rule: (1) when the parties are in a special relationship and the harm is foreseeable; (2) when an employee is in imminent danger and this is known to the employer; (3) when a principal fails to warn his agent of an unreasonable risk of harm involved in the agency; and (4) when any party voluntarily or contractually assumes a duty to protect another from the harmful acts of a third party. Petersen, 267 Ill. App. 3d at 779, 641 N.E.2d at 848; Sharp, 40 A.L.R.Sth at 13-14; see also W. Keeton, Prosser & Keeton on Torts \u00a7 56 (5th ed. 1984) (discussing when an individual is hable to another for the failure to act).\nThe first exception to the rule is set forth in section 314A of the Restatement (Second) of Torts (1965), which provides that when a special relationship exists between the plaintiff and the defendant, the defendant owes the plaintiff a duty to protect him from unreasonable risks of physical harm arising within the scope of the relationship. Petersen, 267 Ill. App. 3d at 780, 641 N.E.2d at 849, citing Fancil, 60 Ill. 2d at 559-60, 328 N.E.2d at 542; Sharp, 40 A.L.R.Sth at 13 n.4. However, Illinois does not consider the employer-employee relationship to be one of the special relationships covered by the section 314A exception. Petersen, 267 Ill. App. 3d at 780-81, 641 N.E.2d at 849; see also Sharp, 40 A.L.R.5th at 14 (explaining that courts are split on the issue of whether the employer-employee relationship is a special relationship); Restatement (Third) of Torts \u00a7 40 (Proposed Final Draft 2005) (including the employer-employee relationship on the list of special relationships, but only where the employee is in imminent danger or injured and thereby helpless). The second exception to the rule against tort liability for the criminal activities of third persons comes from section 512(1) of the Restatement (Second) of Agency (Restatement (Second) of Agency \u00a7 512(1) (1958)). Petersen, 267 Ill. App. 3d at 781, 641 N.E.2d at 849; Sharp, 40 A.L.R.5th at 13 n.5. That exception imposes a duty on employers \u201cto exercise reasonable care to protect an employee who \u2018comes into a position of imminent danger or serious harm and this is known\u2019 to the employer.\u201d Petersen, 267 Ill. App. 3d at 781, 641 N.E.2d at 849, quoting Restatement (Second) of Agency \u00a7 512(1), at 478 (1958). The fourth exception is based on an express assumption of duty. See Petersen, 267 Ill. App. 3d at 780, 641 N.E.2d at 849; Sharp, 40 A.L.R.5th at 13-14.\nHere, plaintiff relies upon the third exception, which is based on section 471 of the Restatement (Second) of Agency (Restatement (Second) of Agency \u00a7 471 (1958)), to allege the existence of a duty. Petersen, 267 Ill. App. 3d at 782, 641 N.E.2d at 850; Sharp, 40 A.L.R.5th at 13 n.6. Section 471 of the Restatement (Second) of Agency discusses when a principal would be liable for a breach of his duty to warn his agent of a particular risk, resulting in injury to the agent. Section 471 provides:\n\u201cA principal is subject to liability in an action of tort for failing to use care to warn an agent of an unreasonable risk involved in the employment, if the principal should realize that it exists and that the agent is likely not to become aware of it, thereby suffering harm.\u201d (Emphasis added.) Restatement (Second) of Agency \u00a7 471, at 405 (1958).\nAccordingly, based on section 471 of the Restatement (Second) of Agency, a duty for an employer to issue a warning to an employee would arise only where the risk is (1) unreasonable, (2) involved in the employment, and (3) foreseeable, and (4) the employee is not likely to become aware of it on his own. Restatement (Second) of Agency \u00a7 471 (1958).\nOne issue presented by plaintiff\u2019s complaint is whether she pled that the risk posed by Maust was \u201cinvolved in the employment\u201d relationship between defendant and James. Our research has failed to yield any cases from any jurisdiction in the United States that have discussed whether a particular risk was \u201cinvolved in the employment\u201d as defined in section 471 of the Restatement (Second) of Agency. However, we find instructive three cases from other jurisdictions which discuss similar issues.\nThe case that most closely resembles the factual scenario in the case at bar is the 80-year-old case of Dell v. Lancaster, 285 S.W. 685 (Tex. Civ. App. 1926). In that case, the Court of Civil Appeals of Texas affirmed the dismissal of an employee\u2019s complaint because the employee failed to plead that injuries he sustained in an assault had any connection to his employment. Dell, 285 S.W. at 685-86. The employee was hired by the defendant employer to paint railroad coaches during a strike; however, the employer did not inform the employee of the strike. Dell, 285 S.W at 685. Sometime after he began his employment, while walking in town with his wife, the employee \u201cwas, for some reason not disclosed, attacked while on the street by lawless characters for whose acts [the employer was] not responsible.\u201d Dell, 285 SW at 685-86.\nThe employee claimed that his employer was liable for his injuries because the employer was \u201cnegligent in not informing [him] that a strike was on\u201d before he began work. Dell, 285 S.W. at 685. However, the court found that the employee should have known of the circumstances on his own and held that a strikebreaker assumed the risk of violence from strikers while off the premises of the employer and while the employee was off duty. Dell, 285 S.W. at 686. In so holding, the court observed that the complaint contained\n\u201cno allegation that [the employee] was not protected from violence while at work, *** [but] it is affirmatively stated that [the employee] and [his] wife were on the street and not on the premises of [the employer] when attacked. The cause of the attack is not given, and it is not alleged that [the employee] was a strike breaker, or what is known as a \u2018scab,\u2019 and that he was attacked on that ground. There is no allegation that in any manner connects the assault upon [the employee] with his service for [the employer]. The facts show a criminal assault upon [the employee] by lawbreakers upon the streets of Marshall, but give no inkling of the cause of such attack.\u201d Dell, 285 S.W. at 685.\nSimilarly, in Slagle v. White Castle Systems, Inc., 79 Ohio App. 3d 210, 217, 607 N.E.2d 45, 49 (1992), the Court of Appeals of Ohio declined to hold an employer liable for injuries sustained by an employee who was assaulted on his way home from work. The plaintiff-employee in that case sought to hold his employer liable under the section 314A special relationship exception. Restatement (Second) of Torts \u00a7 314A (1965). The employee contended that his employer should have been held liable for the injuries he sustained in the assault because the employer assigned him to work the overnight shift, then allowed him to walk home by himself at 3:15 a.m. Slagle, 79 Ohio App. 3d at 213, 607 N.E.2d at 47. The court found the employer not liable because the assault occurred while the employee was traveling home from work, which was outside the course of the victim\u2019s employment. Slagle, 79 Ohio App. 3d at 216-17, 607 N.E.2d at 49. The court explained that an employer has no duty to protect an employee from harm arising outside the scope of the employment relationship under section 314A. Slagle, 79 Ohio App. 3d at 216-17, 607 N.E.2d at 49.\nIn Jackson v. Remington Park, Inc., 874 P.2d 814, 816-17 (Okla. Civ. App. 1994), the Court of Appeals of Oklahoma found an employer not liable when one of its employees assaulted the plaintiff after the plaintiff went to the defendant-employer\u2019s racetrack in order to repay a debt to the employee. Although the employee was at work at the time he committed the assault, the court found that the assault was not within the scope of his employment at the racetrack and absolved the defendant of liability. Jackson, 874 P.2d at 816-17. The court explained that even though the employer\u2019s business was a racetrack, the employee\u2019s efforts to collect an old personal debt could not have been said to further the business of the employer. Jackson, 874 P.2d at 816-17.\nIn each of the above cases, the assaults did not arise from the nature of the employment relationship. Although Slagle was a case about whether the plaintiffs injuries were sustained within the scope of his employment, and the phrase \u201cinvolved in the employment\u201d in section 471 may have been meant to encompass a broader class of risks than those confined within the scope of the employment (compare Restatement (Second) of Agency \u00a7 471 (1958), with Restatement (Third) of Torts \u00a7 40 (Proposed Final Draft 2005), and Restatement (Second) of Torts \u00a7 314A (1965)), Slagle emphasizes how there will be no employer liability for an employee\u2019s injuries where the injuries have no connection to the employment relationship. See Slagle, 79 Ohio App. 3d at 216-17, 607 N.E.2d at 49. As demonstrated in Jackson, even where the employee is supposed to be working at the time he commits a criminal act, if the act is not related to the employer\u2019s business, it cannot serve as a basis for employer liability. See Jackson, 874 P.2d at 816-17. As suggested in Dell, to state a claim for negligent failure to warn of a risk involved in the employment, the employee must allege some direct connection to the nature of the employment relationship. See Dell, 285 S.W at 685. We therefore hold that in order for the risk to be \u201cinvolved in the employment,\u201d it must arise from the particular nature of the employment.\nHere, plaintiffs complaint fails to allege that James\u2019s injuries arose from the particular nature of his employment at Trophies Are Us. Flaintiff specifically alleged that the murder did not occur while the two men were engaged in the course of their employment at Trophies Are Us. The complaint also contains no allegations to suggest that the murder occurred on the premises of Trophies Are Us. Rather, plaintiff asserted that Maust buried James\u2019s body in the basement of their apartment building. The only connection to the employment plaintiff alleged in the complaint was that Maust and James became friends through work. However, friendship is not a risk peculiar to the employment at Trophies Are Us. Maust could have become acquainted with James under other circumstances. We therefore find that James\u2019s injuries were not involved in his employment relationship with defendant. Accordingly, defendant cannot be liable for James\u2019s injuries under section 471.\nAnother issue posed by plaintiff\u2019s complaint is whether the harm inflicted by Maust was foreseeable. The risk of a criminal assault on an employee is foreseeable if the employer knew or should have known of facts evidencing a threat of harm particular to his employees, but not common to all persons in the area. See Sharp, 40 A.L.R. 5th at 14-15. For example, in Blake v. Consolidated R. Corp., 129 Mich. App. 535, 546, 342 N.W2d 599, 606-07 (1983), appeal after remand, 176 Mich. App. 506, 439 N.W2d 914 (1989), the Court of Appeals of Michigan found that an employer, a railroad, had a duty to protect its employees from assaults by one Rudy Bladel, who had murdered at least three other employees of the same branch of the railroad while they were working because of a \u201cvendetta\u201d he had against the railroad.\nWhere the harm is not confined to a particular group of employees, the harm is not foreseeable and the employer has no duty to warn of it. See, e.g., A.H. v. Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482 (1998). For instance, in A.H., the Supreme Court of Virginia found that injuries sustained by the plaintiff, a paper carrier, when he was sexually assaulted by one of the patrons on his early morning route in Harrisonburg, Virginia, were not foreseeable. A.H., 255 Va. at 221-22, 495 S.E.2d at 486. The court relied on section 56 of Prosser & Keeton on Torts (W Keeton, Prosser & Keeton on Torts \u00a7 56 (5th ed. 1984)) and explained that even though the defendant publishing company knew of three prior sexual assaults on early morning paper carriers in the city in the five years prior to the plaintiff\u2019s assault, the defendant had no reason to believe that the plaintiff would be assaulted on his particular paper route. A.H., 255 Va. at 221-22, 495 S.E.2d at 486.\nHere, as in A.H., although plaintiff alleged that defendant was aware that Maust was \u201ca convicted killer who constituted a mortal danger to young men such as [James] with whom he was able to make acquaintance through mutual employment or otherwise,\u201d and that Maust\u2019s \u201cprevious victims were young males,\u201d with whom \u201cMaust had established an acquaintance or some other sort of personal relationship with *** prior to killing them *** suddenly, brutally and without warning,\u201d plaintiff failed to allege that an employee such as James was particularly at risk. Plaintiffs allegation that Maust would kill individuals he befriended through \u201cmutual employment or otherwise\u201d (emphasis added) leaves the threat of harm open to a very broad group of individuals who are not necessarily employees of Trophies Are Us, like James. Therefore, the harm inflicted by Maust was not foreseeable, and defendant is not liable for breach of a duty to warn James about Maust\u2019s background.\nPlaintiff next contends that \u201cdefendants are directly hable for negligently hiring and retaining a violent person known to pose a risk to others, without issuing a simple warning to other employees.\u201d In support of that contention, plaintiff relies upon section 213 of the Restatement (Second) of Agency, which provides that a principal \u201cis subject to liability for harm resulting from his conduct if he is negligent or reckless *** [inter alia\\ in the employment of improper persons or instrumentalities in work involving risk of harm to others\u201d (Restatement (Second) of Agency \u00a7 213 (1958)), and cases discussing employer liability for negligent hiring.\nHowever, as defendant points out, plaintiff did not include a claim of negligent hiring in her complaint. Rather, plaintiff merely alleged that defendant \u201chad a duty to use care to warn\u201d James of the risks posed by Maust.\nAlthough a motion to dismiss does not lie if a good cause of action is stated in a complaint, even if that cause of action was not intended by the plaintiff (Gregor v. Kleiser, 111 Ill. App. 3d 333, 337, 443 N.E.2d 1162, 1166 (1982)), the pleadings must contain sufficient facts to support the claim and to inform the defendant of the nature, circumstances of, and theory behind it (Moore County Water Cooperative v. City of Waterloo, 107 Ill. App. 3d 477, 481, 437 N.E.2d 1237, 1240 (1982)). In order to state a claim for negligent hiring, a plaintiff must allege that the employer hired or retained an employee whom he knew, or should have known, was unfit for the job in the sense that the employment would place the employee in a position where his unfitness would create a foreseeable danger to others. Carter v. Skokie Valley Detective Agency, Ltd., 256 Ill. App. 3d 77, 80, 628 N.E.2d 602, 604 (1993). An action for negligent hiring can be maintained even where an employee commits a criminal or intentional act which is outside the scope of the employment if the employee is on the employer\u2019s premises or using the chattel of the employer, and the employer has reason to know of the need and opportunity for exercising control over the employee. Johnson v. Mers, 279 Ill. App. 3d 372, 376, 664 N.E.2d 668, 672 (1996); Escobar v. Madsen Construction Co., 226 Ill. App. 3d 92, 95, 589 N.E.2d 638, 640 (1992) (discussing section 317 of the Restatement (Second) of Torts).\nHere, plaintiff\u2019s complaint contains no facts that would support a negligent hiring claim. Plaintiff alleged that Maust killed James outside the scope of their employment at Trophies Are Us, but failed to allege that Maust killed James on defendant\u2019s premises or with the instrumentalities of the employment. Thus, plaintiff\u2019s complaint, even liberally construed, was insufficient to state a claim of negligent hiring.\nWe therefore affirm the order of the circuit court of Cook County dismissing plaintiffs complaint.\nAffirmed.\nKARNEZIS and ERICKSON, JJ., concur.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "William H. Tobin, of South Holland, for appellant.", "Michael Buckley Bolan, of Durkin & Roberts, of Chicago, for appellee." ], "corrections": "", "head_matter": "TAMMY MacDONALD, as Personal Representative of the Estate of Nicholas Michael James, Deceased, Plaintiff-Appellant, v. WILLIAM HINTON, a/k/a Bill Hinton, et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 1\u201405\u20140441\nOpinion filed September 30, 2005.\nWilliam H. Tobin, of South Holland, for appellant.\nMichael Buckley Bolan, of Durkin & Roberts, of Chicago, for appellee." }, "file_name": "0378-01", "first_page_order": 396, "last_page_order": 406 }