Jensen v. Chaddock
Filing
153
OPINION entered by Judge Sue E. Myerscough on 2/8/2021. Defendant Chaddock's Motion for Summary Judgment as to Count VII, d/e 61 is DENIED. (SEE WRITTEN OPINION) (MAS, ilcd)
3:18-cv-03087-SEM-TSH # 153
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E-FILED
Monday, 08 February, 2021 02:31:21 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KIM JENSEN, as the adoptive
parent and legal guardian of
KJ, a disabled minor,
Plaintiff,
v.
CHADDOCK,
Defendant.
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No. 18-cv-3087
OPINION
This cause is before the Court on Defendant Chaddock’s
Motion for Summary Judgment as to Count VII (d/e 61). Finding
that genuine issues of material fact exist as to whether Chaddock’s
conduct rose to the level of willful and wanton misconduct, the
Court denies the motion.
I. INTRODUCTION
This action stems from an alleged sexual assault perpetrated
against KJ, a minor and the adopted daughter of Plaintiff Kim
Jensen. At the time of the alleged sexual assault, KJ was a resident
of Defendant Chaddock, a non-profit residential treatment center
for children and adolescents with early childhood trauma.
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Jensen’s Complaint contains seven counts, which are 1:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Count I – Negligence;
Count II – Restatement (Second) of Torts § 314A
(Special Relations Giving Rise to Duty to Aid or
Protect);
Count III – Restatement (Second) of Torts § 324
(Duty of One Who Takes Charge of Another Who
is Helpless);
Count IV – Restatement (Second) of Torts § 318
(Duty of Possessor of Land or Chattels to Control
Conduct of Licensee);
Count V – Restatement (Second) of Torts § 319
(Duty of Those in Charge of Person Having
Dangerous Propensities);
Count VI – Restatement (Second) of Torts § 320
(Duty of Person Having Custody of Another to
Control Conduct of Third Persons); and,
Count VII – Gross Negligence / Willful and
Wanton Misconduct.
Each of the first six counts are essentially different theories of
negligence based on the same allegations, namely that Chaddock:
(a)
(b)
(c)
(d)
failed to properly monitor residents at night,
including KJ;
failed to provide adequate staff to monitor
residents at night, including KJ;
failed to adequately secure the exit for Wesley
Cottage in order to prevent disabled children from
walking out the front door and into neighboring
areas;
failed to take reasonable steps to ensure KJ’s
health and safety, including taking reasonable
The titles of the counts in the Complaint do not include the Restatement
section titles which appear in parentheses here; the Court has added them for
clarity.
1
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(e)
(f)
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precautions to prevent residents from leaving
Wesley Cottage at night;
failed to supervise residents who were known to
leave the campus and take other younger or more
vulnerable residents, like KJ, off-campus with
them at night; and,
failed to provide a reasonably safe environment
where KJ would be free from the threat of being
taken off-campus by older or more savvy
residents who were known by Defendant to
engage in such behavior.
See Compl. 5-13. Jensen’s willful and wanton conduct count
(Count VII) incorporates the above-referenced allegations and also
adds that Chaddock “suddenly and prematurely discharged KJ from
Chaddock and then refused to return to her family KJ’s medical
records necessary to her future treatment, all in retaliation for Kim
Jensen’s complaints about Chaddock’s failures to protect her
daughter.” Id. at 13-14. Chaddock has filed a motion for summary
judgment seeking judgment in its favor as to Count VII only.
II. JURISDICTION
This Court has jurisdiction over the subject matter of this
action and the parties pursuant to 28 U.S.C. § 1332 based on the
diversity of citizenship of the parties and the matter in controversy
exceeds $75,000. Jensen resides in Cedar Falls, Iowa, and is a
citizen of the State of Iowa, and Chaddock is an Illinois not-forPage 3 of 27
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profit corporation, with its principal place of business in Quincy,
Adams County, Illinois. Compl. ¶¶ 1-2. Venue is proper because a
substantial part of the events or omissions giving rise to Plaintiffs’
claims occurred in this district. See 28 U.S.C. § 1391(b)(2).
III. FACTS
The court draws the following facts from the parties’ Local
Rule 7.1(D)(1)(b) statements of undisputed material facts. The
court discusses any material factual disputes in its analysis.
Immaterial facts or factual disputes are omitted. Any fact
submitted by any party that was not supported by a citation to
evidence will not be considered by the Court. See CDIL-LR
7.1(D)(2)(b)(2). In addition, if any response to a fact failed to
support each allegedly disputed fact with evidentiary
documentation, that fact is deemed admitted. Id.
Chaddock is a 24-hour residential treatment facility for
children and young adults who have experienced abuse, neglect, or
other trauma. Pl.’s Statement of Additional Material Facts (“Pl.’s
SOF”) ¶ 5. Chaddock is required to comply with Illinois Department
of Children and Family Services licensing rules which pertain to
Child Welfare Agencies, Foster Family Homes, Group Homes, and
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Institutional Centers. Def.’s Undisputed Material Facts (“Def.’s
SOF”) ¶ 13. Chaddock’s facilities include five residential cottages
set on a thirty-acre campus in Quincy, Illinois. Pl.’s SOF ¶ 6.
Residents are assigned to cottages based on age and gender. Id.
KJ became a resident at Chaddock for the second time in
September 2016. Id. at ¶ 11. At the time of the events giving rise
to this suit, KJ was 15 years old. Id. at ¶ 16. KJ had been
diagnosed with Reactive Attachment Disorder, Bipolar Disorder,
Post Traumatic Stress Disorder, Autism, and Intellectual Disability.
Id. at ¶ 4. KJ’s placement at Chaddock was governed by a
Voluntary Placement Agreement executed by Jensen. Def.’s SOF ¶
4. The Voluntary Placement Agreement provided that a resident
could be discharged from Chaddock on 14 days’ written notice or
within a 24-hour timeframe if the resident could not be managed in
a safe or secure manner. Id.
KJ’s treatment at Chaddock was carried out in part in
accordance with an Individual Care Plan (ICP). Id. at ¶ 6.
According to the ICP, KJ was not to be alone with peers and was
permitted to be unsupervised on-campus for small segments of time
but required supervision off-campus. Pl.’s SOF ¶ 13. Bed checks
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were to be performed every thirty to forty-five minutes or every
fifteen minutes if KJ was showing unsafe behaviors. Id.
The ICP also set forth the procedures to be followed in the
event that KJ left the facility or campus without permission. Def.’s
SOF ¶ 9. The ICP provided that, if KJ went AWOL (left Chaddock’s
facility without permission), that staff were not to chase KJ, but
were to immediately notify a supervisor. Pl.’s SOF ¶ 13. Staff with
a radio were to follow KJ and keep her within eyesight while
attempting to engage her with supervisory counseling as often as
possible. Id. If KJ ran away (left Chaddock’s campus entirely), staff
were to follow the same procedures for going AWOL and also to
notify police, supervisors, and parents. Id. Chaddock prepared a
Run Profile for KJ which noted her residence as Wesley Cottage,
and included the name of KJ’s legal guardian, and a physical
description and photograph of KJ for use by the Quincy Police
Department in the event of a ‘run.’ Def.’s SOF ¶ 10.
Jensen executed a Behavior Management Notification which
stated that behavior management techniques and discipline
administration would be carried out in accordance with the ICP. Id.
at ¶ 6. Jensen also acknowledged that there were limitations to
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what Chaddock’s staff could do if KJ were to run from the facility.
Id. at ¶¶ 6-7. The notice of limitations also states that Chaddock is
not a locked facility. Id. at ¶ 7.
On the night of August 26, 2017, KJ and two other girls, B
and L, left Chaddock without permission and went on a run. Id. at
¶¶ 15-17. A Chaddock staff worker, Jennifer Meyer, followed KJ,
but Meyer lost sight of KJ in the dark. Id. at ¶ 17. Meyer and Duty
Officer Pam Sheeley looked for the girls in Sheeley’s pickup truck
but could not locate the girls. Id. After leaving the Chaddock
campus, the three girls ended up at the home of Tanner Williams.
Id. at ¶ 18. The alleged sexual assault of KJ occurred at Williams’
home. Id. at ¶ 19. KJ returned to Chaddock the following morning,
August 27, 2017. Id. at ¶ 22.
Upon her return, KJ was met by a Chaddock staff worker,
Brienne Hickman, and a Quincy Police Officer before being
transported to Blessing Hospital. Pl.’s SOF ¶ 19. A sexual assault
examination was not conducted at Blessing Hospital during this
visit, and KJ was discharged. Id. Meanwhile, Jensen arrived in
Quincy and took KJ back to Blessing Hospital to obtain a sexual
assault examination. Id. at ¶ 20. Blessing Hospital staff referred
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Jensen to St. Louis Children’s Hospital (SLCH), and Jensen took KJ
to SLCH where a sexual assault examination of KJ was ultimately
performed. Id. The Sexual Assault Nurse Examiner who performed
that physical examination concluded that the physical evidence she
found was consistent with sexual assault. Id. at ¶ 21.
KJ briefly returned to Chaddock before Jensen and KJ went
back to Iowa for home visit. Def.’s SOF ¶¶ 23-26. KJ never
returned to Chaddock following the home visit. Id. at ¶ 26. On
September 5, 2017, Chaddock provided written notice to Jensen
that Chaddock was discharging KJ effective fourteen days from the
date of the notice. Id. at ¶ 32.
DCFS subsequently conducted an investigation of Chaddock
and the events surrounding KJ on the night of August 26, 2017,
based on a report of neglect. Id. at 34. DCFS ultimately found the
report to be unfounded and took no further action. Id. at ¶ 35.
IV. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
genuine dispute as to any material fact exists if “the evidence is
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such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In resolving summary judgment motions, “facts must
be viewed in the light most favorable to,” and all reasonable
inferences from that evidence must be drawn in favor of, “the
nonmoving party[–but] only if there is a ‘genuine’ dispute as to
those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007); Blasius v.
Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016) (citing Cairel v.
Alderden, 821 F.3d 823, 830 (7th Cir. 2016)).
The party seeking summary judgment has the burden of
establishing that there is no genuine dispute as to any material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013)
(explaining that Rule 56 “imposes an initial burden of production on
the party moving for summary judgment to inform the district court
why a trial is not necessary” (citation omitted)). After “a properly
supported motion for summary judgment is made, the adverse
party must” go beyond the pleadings and “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S.
at 255 (quotation and footnotes omitted); see also Modrowski, 712
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F.3d at 1169 (stating party opposing summary judgment “must go
beyond the pleadings (e.g., produce affidavits, depositions, answers
to interrogatories, or admissions on file), to demonstrate that there
is evidence upon which a jury could properly proceed to find a
verdict in her favor”) (citations and quotations omitted). Summary
judgment is warranted only when the nonmoving party cannot
establish an essential element of its case on which it will bear the
burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964
(7th Cir. 2012).
V. ANALYSIS
Under the summary judgment standard, this Court must view
all material facts in the light most favorable to the plaintiff.
Therefore, for purposes of this opinion only, the Court accepts as
true Jensen’s factually supported version of events. The issue is
whether, if Jensen proves her version of events, a jury could find
that Chaddock’s conduct rose to the level of willful or wanton
misconduct.
A. The Definition of Willful and Wanton Conduct
To state a claim under Illinois law for willful and wanton
misconduct, a plaintiff must plead facts establishing the elements
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of a negligence claim—duty, breach, proximate causation, and
harm—and “either a deliberate intention to harm or an utter
indifference to or conscious disregard for the welfare of the
plaintiff.” Kirwan v. Lincolnshire–Riverwoods Fire Prot. Dist., 811
N.E.2d 1259, 1263 (Ill. App. Ct. 2004) (quoting Adkins v. Sarah
Bush Lincoln Health Ctr., 544 N.E.2d 733, 743 (Ill. 1989)). The
Illinois Supreme Court has described willful and wanton conduct as
a hybrid between negligent and intentionally tortious behavior.
Ziarko v. Soo Line R.R. Co., 641 N.E.2d 402, 406 (Ill. 1994). The
Illinois Supreme Court observed that there is a “thin line” between
simple negligence and willful and wanton acts. Id. “Under the facts
of one case, willful and wanton misconduct may be only degrees
more than ordinary negligence, while under the facts of another
case, willful and wanton acts may be only degrees less than
intentional wrongdoing.” Id.
Willful and wanton behavior “does not occupy a precise point
on the continuum of liability between negligent and intentional
conduct.” Hill v. Galesburg Cmty. Unit Sch. Dist. 205, 805 N.E.2d
299, 305 (Ill. App. Ct. 2004). The Illinois Supreme Court has
described two types of willful and wanton misconduct: ‘intentional’
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and ‘reckless.’ Poole v. City of Rolling Meadows, 656 N.E.2d 768,
771 (Ill. 1995). These two types of willful and wanton misconduct
are distinguished by the actor’s mental state. Intentional willful
and wanton misconduct is committed with “actual” or “deliberate”
intent to harm. Ill. Pattern Jury Instr., Civ., No. 14.01. By
contrast, reckless willful and wanton misconduct falls in between
actual intent to harm and mere negligence. Poole, 656 N.E.2d at
771. The Illinois Supreme Court has defined reckless willful and
wanton misconduct as conduct committed with “utter indifference”
to or “conscious disregard” for the safety of others. Pfister v.
Shusta, 657 N.E.2d 1013, 1016 (Ill. 1995). In American National
Bank & Trust Co. v. City of Chicago, the Illinois Supreme Court
described the required mental state as a “reckless disregard” for the
safety of others. Am. Nat’l Bank, 735 N.E.2d at 557 (Ill. 2000).
Whether willful and wanton misconduct has been committed
in any given case requires close scrutiny of the facts as disclosed by
the evidence. O’Brien v. Twp. High Sch. Dist. 214, 415 N.E.2d
1015, 1018 (Ill. 1980). The Illinois Supreme Court, in American
National Bank, provided two examples of conduct from which a
“reckless disregard” for the safety of others can be inferred. The
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first is “a failure, after knowledge of impending danger, to exercise
ordinary care to prevent it.” Am. Nat’l Bank, 735 N.E.2d at 557.
The second is “a failure to discover [a] danger through recklessness
or carelessness when it could have been discovered by the exercise
of ordinary care.” Id.
Illinois appellate courts have similarly noted that a defendant’s
failure to follow procedures and applicable standards could lead to
a finding of willful and wanton misconduct and therefore preclude
summary judgment. See Washington v. City of Evanston, 782
N.E.2d 847, 853-58 (Ill. App. Ct. 2002). “[I]n general, ‘[w]hether
conduct is “willful and wanton” is ultimately a question of fact for
the jury.’” Murray v. Chi. Youth Ctr., 864 N.E.2d 176, 194 (Ill.
2007) (quoting Doe v. Calumet City, 641 N.E.2d 498, 506 (Ill. 1994))
(other citation omitted).
B. Issues of Material Fact Exist as to Whether Chaddock’s
Actions Constituted Willful and Wanton Misconduct.
Chaddock argues that it is entitled to summary judgment on
Jensen’s willful and wanton count for two reasons. First, Chaddock
argues that Chaddock’s conduct relating to the discharge of KJ does
not constitute willful and wanton misconduct. And second,
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Chaddock argues that the DCFS report of findings demonstrates
that Jensen’s willful and wanton count fails as a matter of law.
1. Chaddock’s Conduct Relating to KJ’s Discharge
Chaddock argues first that it is entitled to summary judgment
on Count VII of the Complaint because Chaddock’s conduct relating
to KJ’s discharge did not rise to the level of willful and wanton
conduct. Def.’s Mot. Summ J. 14. Chaddock argues that the
“evidence clearly shows that Chaddock did not discharge or do
anything else to KJ in retaliation against Plaintiff.” Id. Chaddock
asserts that its staff attempted to accommodate KJ and Jensen by
making new living arrangements for KJ, but that Jensen made
unreasonable demands in that regard, specifically that Chaddock
discharge B and L, the other two girls who went on the run with KJ
on the night in question. Id. Chaddock further asserts that the
decision to discharge KJ was based both on the broken trust
relationship between Jensen and KJ and Chaddock as well as the
recommendation of KJ’s neuropsychologist, Dr. Ronald Federici,
that KJ belonged at a facility that treated intellectually disabled and
autistic children, which Chaddock was not. Id.
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The parties dispute the reasons for KJ’s discharge. Jensen
has presented some evidence that KJ was discharged in violation of
Chaddock’s policies and procedures and that the discharge may
have been in retaliation for Jensen’s complaints to state regulators.
Jensen asserts that Chaddock did not follow its own discharge
policies and procedures which require, among other things, a
discharge physical thirty days prior to discharge, obtaining three
months of prescription medications to provide to Jensen, a
discharge staffing by KJ’s core treatment team sixty to ninety days
prior to discharge, participating in treatment planning with the next
placement, and preparing a comprehensive treatment plan. Pl.’s
Resp. to Def.’s Mot. Summ. J. (“Resp.”) 31, d/e 73; Pl.’s Resp. to
Def.’s SOF ¶ 4. In a letter to Jensen from Chaddock dated
September 12, 2017—a week after the fourteen-day discharge
notice issued—Chaddock’s medical director wrote that at the time of
KJ’s discharge “there was a fair amount of confusion and the
determination of next placement was not permitted to be completed
at that time.” Def.’s Ex. R.
Jensen also points to an email sent by a Chaddock staff
worker to Dr. Federici, which read in relevant part that Chaddock
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was “looking a[t] discharge” and asked if Dr. Federici “would
possibl[y] write a letter regarding your belief that Chaddock is not
the best placement for [KJ] therapeutically based off her specific
needs.” Pl.’s Grp. Ex. C, Bates No. 6681. According to the email,
such a letter from Dr. Federici “would be helpful in supporting our
discharge so it is not viewed as reactionary and/or in retaliation.”
Id. That email was dated August 31, 2017—several days before
Chaddock issued the fourteen-day discharge notice.
Chaddock responds that the discharge policies and procedures
must be read in conjunction with the Voluntary Placement
Agreement’s fourteen-day discharge notice and considered in light
of the circumstances at the time of the discharge—namely that
Jensen and KJ had left Chaddock to return to Iowa for a home visit
and that Jensen had threatened to file a lawsuit and contact
legislators and the media. Def.’s Reply 35, d/e 76. Nonetheless,
viewing the facts in the light most favorable to the plaintiff as the
Court must do, the evidence presented could reasonably support a
finding that Chaddock did not follow its own policies and
procedures when Chaddock discharged KJ.
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If proven, a failure by Chaddock to follow its policies and
procedures concerning discharge of residents could allow a jury to
find that Chaddock’s actions were willful and wanton. See Am.
Nat’l Bank, 735 N.E.2d at 557; Kirwan, 811 N.E.2d at 1264.
Chaddock’s failure to provide medical care including a predischarge physical and an adequate supply of medication and to
ensure continuity of care with KJ’s subsequent placement could be
considered in “reckless disregard” of KJ’s well-being. Therefore,
whether Chaddock followed its policies and procedures concerning
the discharge of KJ is an issue of material fact which prevents
summary judgment.
Moreover, Plaintiff has also proposed an alternative motivation
for the discharge—that Chaddock discharged KJ in retaliation for
Jensen’s complaints to state regulatory agencies following the
events of August 26-27, 2017. While Chaddock contends that the
discharge was due to the breakdown of the trust relationship and
because Chaddock was not the best placement for a child with KJ’s
diagnoses, Plaintiff contends that KJ was discharged in retaliation
for Jensen’s complaints to the Illinois Department of Human
Services and DCFS about Chaddock. Plaintiff has presented
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evidence, namely the August 31, 2017 email to Dr. Federici, that
Chaddock was aware that its discharge of KJ could be seen as
retaliatory. That fact alone could allow a jury to draw the inference.
When considered in conjunction with the allegations that Chaddock
did not follow its own discharge policies and procedures, if proven,
the inference is all the more reasonable.
Based on the evidence presented by Plaintiff, a jury could
conclude that retaliation was a motivating factor for the discharge,
even if Chaddock’s reasons for the discharge were also true and all
relevant policies and procedures relating to discharge were followed
by Chaddock. The two conclusions are not mutually exclusive, and
it is entirely possible that a jury could find both to be true.
Therefore, whether Chaddock’s discharge of KJ was motivated in
whole or in part by retaliatory intent is an issue of material fact
which prevents summary judgment.
2. The DCFS Report
Chaddock also argues that is entitled to summary judgment
as to Plaintiff’s willful and wanton conduct count because the DCFS
report of findings demonstrates that that Count fails as a matter of
law. Def.’s Mot. Summ J. 15-16. Chaddock argues that DCFS
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concluded that the neglect complaint was unfounded because DCFS
found no evidence of neglect by Chaddock as to Chaddock’s care
and supervision of KJ. Id. at 15.
Jensen takes issue with the DCFS report, disputing that DCFS
reviewed all of Chaddock’s records, policies, and procedures and
that DCFS conducted a complete investigation. Specifically, Jensen
notes that DCFS did not interview B and L, the two girls who went
on the run with KJ and that DCFS did not review a prior Quincy
Police Department report from May 2017 that involved a run by
four girls from the same cottage as KJ (including B and L) and
which also resulted in the girls going to Tanner Williams’ residence
in Quincy, drinking alcohol, consuming cannabis, and allegedly
being sexually assaulted. Pl.’s Resp. to Def.’s SOF ¶ 34; see also
Pl.’s Ex. Q, Quincy Police Department Report, May 2017. Jensen
asserts that the scope of the DCFS investigation was narrowly
focused on determining whether KJ was sexually abused while on
Chaddock’s campus and did not investigate the larger issues of the
frequency of residents running from Wesley Cottage and being
sexually assaulted in the Quincy community. Pl.’s Resp. to Def.’s
SOF ¶ 35.
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Another issue of fact which, if proven to be true, could be
found by the jury to be to willful and wanton misconduct is
Jensen’s assertion that Chaddock was aware of the impending
danger and failed to take ordinary care to prevent that danger.
Jensen asserts that Chaddock was aware of the impending danger
specifically posed to KJ on the date in question—that KJ and the
other girls intended to go on a run that day—and also that
Chaddock was aware of the larger danger posed to Chaddock
residents by certain people in the community and yet failed to take
reasonable measures to prevent the danger. As to the first point—
the specific danger to KJ on the date of the incident—evidence has
been produced in discovery that Chaddock staff workers were aware
of a run being planned for the night of August 26, 2017.
In interviews with Rachel Wright, Wesley Cottage Program
Coordinator, and Amanda Gallagher, a youth counselor, both
Chaddock staff workers reported to the DCFS investigator that KJ
told the staff workers about the plans for the run. Pl.’s Ex. B, DCFS
Report at 53-56. According to the interviews, KJ initially told staff
that she planned to run that night, although she later told staff that
she did not intend to do so. Id. At a minimum, Chaddock was on
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notice of the possibility of a run including KJ, and also that KJ
appeared agitated as KJ was cussing at the counselor and
attempting to hit and kick her. Id.
Jensen has presented evidence, as has Chaddock, regarding
the overall frequency of runs from Chaddock’s facility. See, e.g.,
Pl.’s Ex. O, Quincy Police Department records for missing persons
at Chaddock for the period from January 2016 thorough October
2017; Pl.’s Ex. R, Report of Lisa Thorson 10-13; Def.’s Ex. W, Report
of Marlin Livingston 35-42. However, the parties view this data
differently. Jensen contends the frequency of runs from Chaddock,
and Wesley Cottage in particular, points to a failure by Chaddock to
protect its residents. Chaddock contends that the occurrence of
runs and missing person reports are overstated.
The evidence produced in this case demonstrates that
Chaddock was well aware that runs from the facility were a regular
occurrence. Jamey Brown, a program coordinator at Chaddock,
testified at a deposition that “At Wesley we had some girls that
would run more often than others.” Pl.’s Ex. D, 29:19-30:2.
Similarly, Erick Lewis, the cottage manager of Wesley Cottage,
testified that the frequency of residents running from Wesley
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Cottage was “frustrating to the point where it was a concern for
their safety, scared for their well-being.” Pl.’s Ex. E., 43:2-6.
Jensen has also presented evidence that Chaddock staff were
aware of the susceptibility of their residents to exactly the type of
sexual assault Jensen alleges KJ suffered. For example, Lewis also
testified about attending a seminar about sex trafficking and
acknowledged that minors like those who reside at Chaddock were
targets for sex trafficking. Id. at 32:2-23. Chaddock’s policies and
procedures also acknowledged the risk of off-campus sexual
assault, mandating that sexual assaults that occurred during runs
be reported to the police and requiring STD and/or pregnancy
testing following runs as appropriate, and the provision of physical
examinations and rape kits as necessary. Pl.’s Ex. C at Bates Nos.
3067, 3220.
Moreover, Jensen has presented evidence that Chaddock was
not only aware of the general danger of sexual assault for residents,
but also that Chaddock was aware of the particular danger of
certain residents of the community in relation to Chaddock’s
residents. Both Brown and Lewis testified that they were aware
that girls on runs were known to go to Tanner Williams’ residence
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in Quincy. Lewis testified that on at least one occasion when L and
B, the two girls that KJ ran with on August 26-27, 2017, were on a
prior run, Lewis went to Williams’ residence to look for them. Pl.’s
Ex. E, 30:2-10. Brown testified that L and B had told him after
previous runs that they had been at Williams’ home, that they used
drugs and alcohol in the home, and that they would have sex with
Williams and his friends in exchange for letting them stay the night.
Pl.’s Ex. D. 35:23-34:9.
Finally, Jensen has presented the opinion of retained expert
Dr. Lisa Thorsen that Chaddock and its staff knew that residents
had a history of running, that Chaddock and its staff knew the
residents were at risk of physical harm and sexual assault during
runs, that Chaddock and its staff knew the residents planned a run
on the night of KJ’s run, and that Chaddock failed to take sufficient
measures to deter or prevent particular runs or to generally address
the larger issue of the frequency of runs. See generally Pl.’s Ex. R.,
Thorsen Report. Dr. Thorsen concludes that Chaddock’s failure to
deter or prevent KJ’s run on August 26-27, 2017, as well as
Chaddock’s failure to put into place reasonable and effective
mechanisms to deter or prevent runs in general, constitute a
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blatant disregard for KJ’s safety that exposed KJ to an increased
risk of harm and contributed to the alleged sexual assault. Pl.’s Ex.
R. 18.
Chaddock responds that Dr. Thorsen’s conclusion that
Chaddock’s actions constituted “blatant disregard” for KJ’s wellbeing applies the wrong standard, as that phrase, as defined by the
Illinois Abused and Neglected Child Reporting Act, sounds in mere
negligence, rather than willful and wanton misconduct. Def.’s Mot.
Summ. J. 15. Chaddock also asserts that Dr. Thorsen’s conclusion
that Chaddock is guilty of statutory neglect is contrary to the
findings of the DCFS report, which concluded that Jensen’s
complaint of neglect was unfounded. Id.
The Court has previously decided that Dr. Thorsen’s opinions
should be heard by the jury. See Order 4, d/e 152. The opinions of
Dr. Thorsen’s that Chaddock challenges in the instant motion for
summary judgment are the same opinions that Chaddock
challenged in its motion in limine which the Court denied.
Chaddock has retained its own expert, Marlin Livingston, who will
testify regarding the standard of care and the conclusions of the
DCFS report. Dr. Thorsen is also expected to testify regarding
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additional measures that she believes Chaddock could have taken
or precautions that could have been implemented, such as door
alarms, delayed locks on doors, or surveillance cameras, to deter or
prevent runs, like that of KJ on August 26-27, 2017. Ultimately it
is a question for the jury to decide which expert’s opinions to credit,
but Jensen has presented sufficient evidence to allow her willful
and wanton count to go to the jury. Thorsens’ opinions, in
conjunction with the deposition testimony of Chaddock staff Lewis
and Brown that Chaddock was aware of the frequency of runs, the
general possibility of sexual assault during runs, and the specific
danger to Chaddock residents presented by Tanner Williams and
others in the Quincy community, are cumulatively sufficient to
allow a jury to find that Chaddock knew of impending danger—both
to Chaddock’s residents in general and to KJ in particular on the
night in question—and that Chaddock failed to exercise ordinary
care to prevent the danger. See Am. Nat’l Bank, 735 N.E.2d at 557.
To summarize, the Illinois Supreme Court has defined willful
and wanton misconduct as “a failure, after knowledge of impending
danger, to exercise ordinary care to prevent it” or “a failure to
discover [a] danger through recklessness or carelessness when it
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could have been discovered by the exercise of ordinary care.” Am.
Nat’l Bank, 735 N.E.2d at 557. The Illinois case law strongly
suggests that a fact-finder can find that a defendant’s conduct is
willful and wanton if the defendant fails to follow applicable
guidelines and procedures. Id.; see also Kirwan, 811 N.E.2d at
1264-65; Washington, 782 N.E.2d at 853.
Chaddock’s failure to follow the applicable policies and
procedures related to the discharge of residents when discharging
KJ could also amount to willful and wanton misconduct. See Am.
Nat’l Bank, 735 N.E.2d at 557. Whether Chaddock did indeed fail
to follow the applicable policies and procedures or whether this
failure amounted to willful and wanton conduct on the part of
Chaddock is a question for the jury. The facts also raise a question
for the jury whether Chaddock failed, after being informed of an
impending danger, to exercise ordinary care to prevent it. See id.
“Whether specific acts amount to willful and wanton conduct
is ordinarily a question of fact for the jury, and only in an
exceptional case will the issue of willful and wanton misconduct be
taken from the jury’s consideration or be ruled on as a question of
law.” Prowell v. Loretto Hosp., 791 N.E.2d 1261, 1265 (Ill. App. Ct.
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2003). In this case, Jensen has raised issues of material fact
which, if true, could be found by the jury to amount to willful and
wanton conduct on the part of Chaddock, and, therefore, summary
judgment is not appropriate.
VI. CONCLUSION
For the reasons set forth in this Opinion, Defendant
Chaddock’s Motion for Summary Judgment as to Count VII (d/e 61)
is DENIED.
ENTER: February 8, 2021
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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