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Landmark Decision Defines Cause Of Action For "Negligent Supervision" Of Employees, Personal Liability For Supervisors

On May 23, 2019 the Illinois Supreme Court ruled, in Jane Doe v. Chad Coe et al. - a case of first impression for the court - what elements are necessary to pursue a lawsuit for "negligent supervision" of an employee. Most state courts recognize claims against employers for negligence regarding their employees who harm others, and Illinois is no exception. "Negligent hiring" generally involves hiring an employee who foreseeably would harm someone, who in fact does go on to harm someone (e.g. hiring an individual to work at a day-care who is known, or through a reasonable background check should have been known, was a convicted pedophile who poses a risk to children, if the employee later molests a child). Conversely, a claim of "negligent retention" may exist where an employer fails to discharge an employee known (or who reasonably should have been known) to present a foreseeable risk to others, who then goes on to do harm. Yes, that's right - employers sometimes have a legal duty to fire an employee! The recent Coe case involved claims for both negligent hiring and negligent retention, but also a claim for "negligent supervision." As the name suggests, a claim for negligent supervision involves an employer's failure to properly supervise employee(s) to avoid foreseeable risks of harm to others. While the Illinois Supreme Court had previously recognized the existence of a claim for negligent supervision, it had not addressed what elements are required to pursue such a claim. In doing so the court paved a relatively easy path for plaintiffs to sue not only employers for negligent supervision, but also individuals who direct and control workers. Employers, owners, managers and front-line supervisors in Illinois will want to take notice of this important decision and pay particular attention to the kinds of specific responsibilities expected of them (perhaps even doing a "Google search" on some applicants).

The Coe case began in Kane County Circuit Court. The plaintiff, named under the alias "Jane Doe" because she was a 15 year old minor at the time, was allegedly sexually molested by a 31 year old youth pastor at the First Congregational Church of Dundee (FCCD). The lawsuit consisted of numerous claims, including allegations of negligent hiring, negligent retention and negligent supervision (of Coe) against the FCCD as well as James, the church's pastor and allegedly Coe's direct supervisor. The trial court twice dismissed these claims on the pleadings for failing to set forth facts sufficient to permit the case to proceed. Among other things, the plaintiff alleged that defendants failed to conduct a background check and that a simple Google search would have revealed before Coe was hired that he visited certain adult and child pornography websites. The complaint also alleged that multiple people, including volunteers, employees and church members, had observed Coe's inappropriate behavior toward young girls, including plaintiff Doe and had reported their concerns to James, but nothing was done about it. Despite these alarming allegations it was necessary to appeal the case before the lawsuit was allowed to proceed. Here are some poignant quotes from the Supreme Court of Illinois' decision:

  • "Negligent hiring, negligent supervision, and negligent retention are all direct causes of action against the employer for [its] misconduct in failing to reasonably hire, supervise, or retain the employee."
  • "...the initiation and existence of an employment relationship imposes a duty upon the employer to exercise reasonable care in employing only competent individuals. These duties are to all foreseeable individuals who might be impacted by the employee or his employment, such as a customer of a defendant business or [in this case] a member of a defendant church."
  • "To the extent that plaintiffs have pled and can prove that FCCD, James, or both hired, supervised, and retained Coe, we find that they had a duty to  do so reasonably." 
  • The court acknowledged that a background check is unlikely to produce an individual's Internet browsing history, "but that is a factual dispute" [for trial]. The court made specific reference to "[m]yriad businesses that offer to perform detailed background checks" these days.
  • Another factual dispute the court noted, was plaintiff's allegation that a cursory Google search would have put defendants on notice of Coe's sexual interest in children, for he used the same pseudonym with church members that he used in visiting pornographic sites.
  • The court articulated only three elements to state a claim for negligent supervision: "(1) the defendant had a duty to supervise the harming party, (2) the defendant negligently supervised the harming party, and (3) such negligence proximately caused the plaintiff's injuries."
  • "We do not require that the supervisor have prior notice of a particular unfitness because reasonable performance of the duty to supervise will put the supervisor on notice of an employee's conduct or perhaps prevent the employee's tortious conduct all together.... only general foreseeability is required in an employment context."

In summary, this decision by the highest court in Illinois (thus, binding on all courts in that state) serves as a warning to employers that certain duties are imposed on them by law from the moment an employment relationship exists and throughout its existence. While not mandated in all cases, or perhaps not even this case depending on what happens at trial, the court opened the door to the possibility that failing to go beyond a standard background search, for example conducting a Google or other on-line search before hiring applicants for certain jobs, may constitute negligence. Finally, the Coe decision paved the way for plaintiffs to sue employers, as well as any individuals who hire, supervise, manage employees, as defendants in negligent hiring, supervision, and/or retention lawsuits.

Questions? Contact Attorney James B. Sherman in our Minneapolis office at (952) 746-1700 or by email at [email protected].

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