Chicago Accident Law Blog
Fixing liability on prior employers of known sexual abusers who withhold information of that abuse to subsequent employers where employee proceeds to sexually abuse additional minors has never been addressed by the Illinois high court. The Illinois Supreme Court in Doe-3 v. Mc Lean County Dist. 5, 973 N.E. 2d 880 (2012) addressed this issue head on. In Doe-3, the trail court dismissed action by two minor sexual abuse victims against prior school district employer of pedophile that alleged failure to disclose to subsequent employer of pedophile that he had been disciplined for “sexual harassment, sexual grooming, and/or sexual abuse.” The trial court found that prior school district had no duty to minor sexual abuse victims. The appellate court reversed the dismissal and the high court affirmed the appellate court’s holding albeit on different grounds.
The Supreme Court acknowledged that: “In Illinois an affirmative duty to aid or protect another against an unreasonable risk of physical harm arises only in the context of a legally recognized duty.” Doe-3, 973 N.E. 2d 880, 888; Simkus v. CSX Transportation, 965 N.E. 2d 1092 (Ill. Sup. Ct. 2012); and Iseberg v. Gross, 227 Ill. 2d 78, 87-88, 879 N.E. 2d 278 (2007). The Supreme Court noted that plaintiffs had not plead any of the recognized “special relationships”. The Doe-3 court stated: “Nevertheless, we find that plaintiffs have alleged circumstances which do give rise to a duty owed by defendants in this case.” 973 N.E. 2d 880, 889.
The issue the Doe-3 court dealt with encompasses a school districts’ duty to disclose prior history of sexual abuse by one of its teachers to a subsequent school district employer of that teacher. The court began its duty analysis observing: “…every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseen consequence of an act, and such a duty does not depend on privity of contract, privity of interest or the proximity of relationship but extends to remote and unknown persons.” 973 N.E. 2d 880, 887-888.
The Supreme Court then addressed the “duty” analysis under the traditional “relationship” test. The high court stated: “…relationship is a shorthand description of four factors: (1) reasonable foreseeability of the injury, (2) likelihood of the injury, (3) magnitude of the burden of guarding against the injury, and (4) consequences of placing burden on defendant.” 973 N.E. 2d 880, 888. The court held that in light of defendant’s awareness of teacher’s past sexual abuse and their false statement on employment form that they could not say that the injuries were unforeseeable. As to the second factor the court held that: “nothing in the the alleged facts that would suggest thet the suffered by the plaintiffs are too remote or unlikely…” 973 N.E. 2d at 891. The court also held that the magnitude of guarding against the injury-requiring employer to accurately complete an employment form-would not be great. In addressing the fourth prong of the duty analysis the court concluded that : “it is difficult to see how many adverse consequences could result from imposing such a slight burden on a school district.” 973 N.E. 2d at 891.
The Doe-3 court in finding a duty stated: “Having undertaken the affirmative act of filling out White’s employment verification form, defendants had a duty to use reasonable care in ensuring the the information was accurate.” 973 N.E. 2d at 891-892. The Illinois Supreme Court’s holding in Doe-3 is extremely important for the victims of sexual abuse. No longer will prior employers be able to shield pedophiles by failing to disclose their knowledge of sexual abuse to subsequent employers. In Illinois a duty to disclose is now the law. Hopefully the holding in this important case will prevent further instances of childhood sexual abuse. Feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free consultation.