Jensen v. Chaddock
OPINION entered by Judge Sue E. Myerscough on 9/17/2018. Defendant's Motion to Dismiss the Complaint, d/e 20 is DENIED. (SEE WRITTEN OPINION) (MAS, ilcd)
Tuesday, 18 September, 2018 04:30:42 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SUE E. MYERSCOUGH, U.S. District Judge.
Before the Court is Defendant Chaddock’s Motion to Dismiss
the Complaint (d/e 20) pursuant to Federal Rule of Civil Procedure
12(b)(6), on the ground that the Complaint fails to state a claim
upon which relief may be granted. For the reasons stated herein,
the Motion to Dismiss (d/e 20) is DENIED.
The facts as stated in the Complaint must be accepted as true
by the Court when ruling on a motion to dismiss. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The following
information is taken from the allegations in the Complaint.
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Plaintiff Kim Jensen brings this suit on behalf of her minor
daughter, KJ, who was fifteen at the time of the events giving rise to
the claim. From September 2016 to September 2017, KJ resided at
Chaddock, a residential treatment facility for children and young
adults who have suffered trauma. Chaddock provides clinical,
educational, and therapeutic programing to its residents.
Plaintiff enrolled KJ at Chaddock to address KJ’s multiple
psychological and developmental issues. KJ reads at a secondgrade level and her general language function is at a third-tofourth-grade level. She suffers from several psychological disorders,
including post-traumatic stress disorder, major depressive disorder
with recurrent and severe psychotic symptoms, reactive attachment
disorder, and intermittent explosive disorder. While living at
Chaddock, KJ was also diagnosed with several developmental
disorders, such as major neurocognitive disorder, autism spectrum
disorder, and severe language disorder.
The events giving rise to this action occurred on August 27,
2017. That night, at about 11:00 pm, KJ and two other girls, ages
14 and 15, who were also residents of Chaddock, walked out of KJ’s
cottage to a home outside of the Chaddock property. While at the
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home for several hours, KJ was struck in the head and knee with a
pipe, pornography was played for the girls on the television, the
girls were given alcohol and drugs, adult males at the home had sex
with the other two girls in front of KJ, and KJ was also sexually
assaulted. The other two girls left KJ at the home that night, and
the adult males brought KJ back to Chaddock the following
This Court has jurisdiction over “all civil actions where the
matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of
different States.” 28 U.S.C. § 1332(a).
Plaintiff is a citizen of Iowa. Defendant is a not-for-profit
corporation incorporated in Illinois with its principal place of
business in Illinois. The factual content of the Complaint supports
a finding that the value of Plaintiff’s prayer for compensatory and
punitive damages exceeds $75,000. Therefore, the Complaint
invokes the Court’s diversity jurisdiction.
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III. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plausibility means that the alleged factual content is
sufficient to allow a court to reasonably infer that the defendant is
liable for the alleged misconduct. See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 547 (2007). A complaint must suggest a right to
relief, “raising that possibility above a speculative level.” Kubiak v.
City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016).
When considering a Rule 12(b)(6) motion to dismiss, the Court
construes the complaint in the light most favorable to the plaintiff,
accepting all well-pleaded allegations as true and construing all
reasonable inferences in the plaintiff’s favor. Roberts v. City of
Chicago, 817 F.3d 561, 564 (7th Cir. 2016).
In a case where federal jurisdiction is based on diversity of
citizenship under 28 U.S.C. § 1332, “[s]tate substantive law applies,
but federal procedural rules govern.” Doermer v. Callen, 847 F.3d
522, 529 (7th Cir. 2017). “To state a claim for negligence under
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Illinois law, a Plaintiff must plead that the defendant owed the
plaintiff a duty, the defendant breached that duty, and the breach
proximately caused the plaintiff's injury.” Allstate Indem. Co. v.
ADT LLC, 110 F. Supp. 3d 856, 862–63 (N.D. Ill. 2015) (citing
Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1097 (Ill. 2012)).
In Illinois, “every person owes to all other persons a duty to exercise
ordinary care to guard against injury which naturally flows as a
reasonably probable and foreseeable consequence of his act.” Jane
Doe-3 v. McLean Cty. Unit Dist. No. 5 Bd. of Dirs., 973 N.E.2d 880,
890 (Ill. 2012). Whether this duty arises in a particular context
depends on “the reasonable foreseeability of the injury, the
likelihood of the injury, the magnitude of the burden of guarding
against the injury, and the consequences of placing the burden on
defendants.” Id. Whether a duty exists is a question of law to be
decided by the Court. Simpkins, 965 N.E.2d at 1096.
Counts I Through VI Sufficiently State Claims for
In support of her negligence claims, Plaintiff asserts that
Defendant agreed to take custody of and responsibility for KJ for
the purpose of providing residential treatment. Plaintiff alleges that
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a custodial relationship existed between Defendant and KJ that
gave rise to Defendant’s duty to adequately supervise, protect, and
provide a safe environment for KJ. Plaintiff also asserts that
Defendant’s duty to KJ and Defendant’s custodial relationship with
the other residents created Defendant’s duty to control other
residents to prevent them from harming KJ or exposing KJ to an
unreasonable risk of harm. Id. ¶¶ 30, 35, 40. These allegations
concerning the relationship between Defendant and its residents
allow the Court to infer that Defendant owed a duty of care to KJ.
See Ryan v. Yarbrough, 823 N.E.2d 259, 262 (Ill. App. Ct. 2005) (a
child’s caretaker has a duty to protect the child from harm).
The Complaint states that Defendant breached these duties in
several ways: (1) failing to adequately monitor residents at night; (2)
failing to take reasonable precautions to secure the cottage exits
and to otherwise prevent residents from walking off campus at
night; (3) failing to supervise residents who were known to leave the
campus and take vulnerable residents like KJ with them; and (4)
failing to provide a reasonably safe environment free from threat of
being taken off campus by other residents. Id. ¶¶ 14, 21, 26, 31,
36, 41. Plaintiff asserts that these failures caused KJ’s sexual
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assault and her other physical and emotional injuries. Id. ¶¶ 15,
22, 27, 32, 37, 42.
The Complaint also pleads facts to support an inference of
foreseeability. Plaintiff asserts that Defendant knew that the two
other girls had previously walked off campus at night and had been
sexually assaulted at the same home where KJ was assaulted.
Plaintiff further states that Defendant knew that the Quincy Police
Department had responded to more than 100 calls in the year
preceding September 2017 related to Chaddock’s minor residents
walking off campus. Based on these allegations, Plaintiff has
sufficiently pleaded negligence by Defendant.
Defendant makes several arguments against the existence of
such a duty in its Motion to Dismiss. First, Defendant seeks
dismissal of the claims against it on the ground that Defendant had
no duty to protect KJ from the criminal acts of third parties that
occurred off campus. Generally, there is no duty in Illinois to
protect another from the criminal acts of third parties. Doe v. Goff,
716 N.E.2d 323, 326 (Ill. App. Ct. 1999). An exception exists where
the defendant has a special relationship with the plaintiff and the
criminal act was foreseeable. Id. Defendant argues that its
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relationship with KJ as a residential treatment facility did not
extend to a voluntary assumption of a duty to supervise or protect
KJ while she was away from the facility. At such times, KJ was
outside of Defendant’s control and custody, and thus Defendant’s
special relationship was suspended during that time.
Defendant’s position does not directly address the duties and
breaches alleged in the Complaint. The counts of the Complaint
rest on Defendant’s duty to KJ when she was on campus, prior to
leaving. The Complaint asserts that Defendant breached its duties
to KJ to monitor her, to prevent her from leaving, and to prevent
other residents from taking her off campus. Such duties governed
Defendant’s conduct when KJ was on campus and was within
Defendant’s custody and control.
Second, Defendant argues that it had no duty to keep KJ on
campus due to contractual limits. In support of this argument,
Defendant attached to its Motion to Dismiss an affidavit of Mathias
Obert, Chaddock’s Vice President of Operations, to which are
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attached a Voluntary Placement Agreement and a Behavior
Management Notification. Mot. to Dismiss, Ex. A, 1, 2.1
Ordinarily, the court may not consider materials outside of the
pleadings when deciding a motion to dismiss under Rule 12(b)(6)
without converting the motion to dismiss into a motion for
summary judgment under Rule 56. Venture Assocs. Corp. v. Zenith
Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); Fed. R. Civ. P.
12(d). The court may, however, consider documents attached to a
motion to dismiss to be part of the pleadings “if they are referred to
in the plaintiff’s complaint and are central to his claim.” Wright v.
Assoc. Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994). The
documents attached by Defendant here are not specifically referred
to in Plaintiff’s complaint, but while “[a] plaintiff is under no
obligation to attach to her complaint documents upon which her
action is based, . . . a defendant may introduce certain pertinent
1 The court notes that the exhibit (d/e 21-1) was previously stricken from the
record by text order dated June 4, 2018, for noncompliance with Federal Rule
of Civil Procedure 5.2 and Local Rule 5.11. However, the attachments remain
publicly accessible. The clerk is therefore directed to seal the affidavit and the
exhibits attached thereto (d/e 21-1). In her response, Plaintiff asks the court
to sanction Defendant for noncompliance with the Rules. The court denies the
request for sanctions, but cautions the parties to comply with these
requirements of the Rules in all future filings.
Page 9 of 17
documents if the plaintiff failed to do so.” Venture Assocs., 987
F.2d at 431 (citation omitted). The Voluntary Placement Agreement
and the Behavior Modification Notification attached to the Motion to
Dismiss form the basis of the parties’ relationship and help to
explain precisely how and why KJ was in the care of Defendant.
The court will therefore consider the attachments to the Motion to
Dismiss without converting the Motion to Dismiss into one for
summary judgment. That said, even taking these documents into
consideration, the conclusion reached is the same. For that reason,
the court denies Plaintiff’s request, made in her response, to file a
Defendant cites to the Notification of Limitations contained in
the Behavior Management Notification, which Plaintiff
acknowledged. The Notification states that Chaddock is not a
locked facility and that if a child should attempt to run away,
Chaddock would make every effort to stop the child, but there are
limitations to its ability to do so. Mot. to Dismiss Ex. 2 (d/e 21-1).
The Notification is a contractual limitation on Defendant’s duty of
care, but the Notification is not a complete waiver of duty to
monitor and to attempt to prevent residents from leaving the
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campus. The Notification merely clarifies the scope of Defendant’s
duty to make efforts to stop and return runaways.
Third, Defendant argues that it had no duty because the
sexual assault was not reasonably foreseeable. Defendant argues
that none of its staff had notice of where KJ and the others were
going that night. Nonetheless, the Complaint alleges that
Defendant knew that the two other girls had previously left campus
and that they were sexually assaulted in the same home as KJ at
that time. The Complaint sufficiently alleges a duty and a
reasonably foreseeable injury arising from the breach of that duty at
this stage of the proceedings.
Fourth, Defendant argues that it had no duty to control the
two other girls. Defendant relies on the common law doctrine that
one who acts as a parent is generally not liable for the torts of the
minor. Pesek v. Discepolo, 475 N.E.2d 3, 3, 5 (Ill. App. Ct. 1985).
However, when the defendant has a special relationship with the
minor and the defendant knows or should know that the minor is
likely to cause bodily harm or an unreasonable risk of harm to
others, a duty to control the minor’s conduct arises. Restatement
(Second) of Torts §§ 318, 319, 320. The Complaint has sufficiently
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alleged that Defendant, as the custodian of the two other girls, had
a duty to control them.
Finally, Defendant argues that the Complaint fails to state a
claim for relief because the Background section does not provide
Defendant with notice as to the nature of the claims against it. The
Complaint begins with a three-page Background section. The
section provides a summary of the factual allegations that are
referenced in the counts for relief. The Background section is
coherently written and clearly correlates to the paragraphs of the
counts. Far from confusing the claims such that they must be
dismissed, the Background Section provides additional clarification
and detail to support the paragraphs of each count.
The Complaint, including the Background section, is more
than sufficient to survive dismissal. The Complaint gives Defendant
notice of the basis for Plaintiff’s negligence claims and is sufficient
to establish that Plaintiff has a plausible, as opposed to speculative,
right to relief against Defendant.
Page 12 of 17
Although Duplicative, Counts II Through VI Should Not Be
Dismissed at This Stage of the Proceedings.
Count 1 of the Complaint brings a common law negligence
claim against Defendant. Counts 2 through 6 assert various
negligence claims as set forth by the Second Restatement of Torts:
Count 2: taking custody of another so as to deprive her of a normal
opportunity for protection (Restatement § 314(A)(4)); Count 3:
taking charge of another who is helpless (Restatement § 324);
Count 4: controlling the behavior of a licensee or invitee
(Restatement § 318); Count 5: taking charge of a third harmful
person (Restatement § 319); and Count 6: taking custody of another
so as to deprive her of self-protection or to subject her to a
dangerous person (Restatement § 320).
Counts 2 through 6 are each based on a certain theory of
negligence. Each of the Restatement Sections that the counts rely
on illustrate a category of duty or negligence claim. They are not
separate causes of action, but are different allegations of the
general negligence claim. Each involves the same events and the
same elements of negligence: duty and foreseeability, breach, and
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Defendant argues that Claims 2 through 6 should be
dismissed as duplicative of Claim 1. While the claims do not
represent separate causes of action, it is premature to dismiss them
at this stage. As the case develops, the facts may take the shape of
certain of the relied-upon Restatement Sections more than others.
Therefore, the Court declines to dismiss any of the negligence
claims at this stage in the proceedings. Should it become relevant
at a later time, the Court will address any duplication issues at that
Count VII Sufficiently Pleads a Willful and Wanton
Misconduct Claim Against Defendant.
To state a claim under Illinois law for willful and wanton
misconduct, a plaintiff must plead facts establishing the elements
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 Protection 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)).
Reckless willful and wanton misconduct is conduct committed with
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an utter indifference of or a conscious disregard for the safety of
others. Kirwan, 811 N.E.2d at 1263. To meet this standard, the
defendant “must be conscious of his conduct, and, though having
no intent to injure, must be conscious, from his knowledge of the
surrounding circumstances and existing conditions, that his
conduct will naturally and probably result in injury.” Id.
Defendant argues that Count VII fails to state a claim for
willful and wanton misconduct because it is based on the same
facts as the negligence claims. However, Plaintiff properly has
incorporated the allegations comprising her negligence claim into
her willful and wanton misconduct claim. First, under Illinois law,
“[t]he same acts by a defendant, if sufficiently egregious, can
constitute both negligence and willful and wanton conduct.”
Bastian v. TPI Corp., 663 F. Supp. 474, 476 (N.D. Ill. 1987) (citing
Smith v. Seiber, 469 N.E.2d 231, 235 (Ill. App. Ct. 1984)).
Therefore, “one can plead the same facts in two counts, one
characterizing them as negligence and the other as willful and
wanton conduct, if the same facts could support both theories.” Id.
at 476 (citing O’Brien v. Twp. High Sch. Dist. 214, 415 N.E.2d
1015, 1018 (Ill. 1980)).
Page 15 of 17
Second, Plaintiff has additionally pled in Count VII that
Defendant acted with “deliberate indifference” and “reckless
disregard” for KJ’s safety by failing to supervise KJ and the other
residents at night, by failing to secure the exits, by failing to prevent
KJ and the other residents from leaving at night, and by failing to
prevent other residents from taking KJ off campus. The Complaint
alleges that Defendant acted recklessly or with gross negligence by
failing to adequately monitor its residents and to take necessary
safety precautions. Compl. ¶ 44. Plaintiff additionally alleges that
Defendant intentionally retaliated against Plaintiff’s complaints by
suddenly and prematurely discharging KJ from the facility and by
refusing to return KJ’s medical records, which are necessary for her
future treatment. Id. ¶ 44(g).
Plaintiff has sufficiently pleaded a willful and wanton
misconduct claim against Defendant. See Worthem v. Gillette Co.,
774 F. Supp. 514, 517 (N.D. Ill. 1991) (plaintiff sufficiently pleaded
willful and wanton misconduct where she alleged that “willful and
wanton acts or omissions [were] committed or omitted with
conscious indifference to existing circumstances and conditions”
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and she “enumerate[d] specific instances of willful and wanton
For the reasons stated herein, Defendant’s Motion to Dismiss
the Complaint (d/e 20) is DENIED.
ENTER: September 17, 2018
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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