Webb v. Jewel Companies, Inc.

485 N.E.2d 409, 137 Ill. App. 3d 1004, 92 Ill. Dec. 598, 1985 Ill. App. LEXIS 2632
CourtAppellate Court of Illinois
DecidedOctober 25, 1985
Docket85-0574
StatusPublished
Cited by41 cases

This text of 485 N.E.2d 409 (Webb v. Jewel Companies, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Webb v. Jewel Companies, Inc., 485 N.E.2d 409, 137 Ill. App. 3d 1004, 92 Ill. Dec. 598, 1985 Ill. App. LEXIS 2632 (Ill. Ct. App. 1985).

Opinion

JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from the dismissal, for failure to state a cause of action, of the second amended count I 1 of a complaint filed on behalf of the minor plaintiff against defendants, Charles Hiley 2 and Jewel Companies, Inc. (Jewel), for damages because of injuries she suffered as a result of a sexual assault allegedly committed by Hiley while he was employed as a security guard for Jewel. The sole issue presented for review is the propriety of the dismissal.

In count I, as amended, plaintiff alleged in substance that she was a customer in a Jewel supermarket located in Chicago; that she had just purchased an item when Hiley, acting in his capacity as a security guard, stopped her and then led her to an enclosed office for the purpose of searching her; and that in the course of that search, he sexually molested her. The trial court granted Jewel’s motion to dismiss count I with prejudice, and this appeal followed.

Opinion

Initially, we note that a motion to dismiss admits all well-pleaded facts (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538), and any reasonable inferences which could be drawn therefrom (Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235), but not conclusions of fact or law unsupported by allegations of specific facts upon which such conclusions rest (Bagel v. American Honda Motor Co. (1985), 132 Ill. App. 3d 82, 477 N.E.2d 54; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 443 N.E.2d 1162); and although pleadings are to be liberally construed (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 603(c); Knox College v. Celotex Corp. (1981) , 88 Ill. 2d 407, 430 N.E.2d 976), a complaint nevertheless must be dismissed if it fails (a) to “set forth a legally recognized claim as its avenue of recovery” or (b) “plead facts which bring the claim within the legally recognized cause of action alleged” (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1009; Tru-Link Fence Co. v. Reuben H. Donnelley Corp. (1982) , 104 Ill. App. 3d 745, 748, 432 N.E.2d 1188,1191).

Plaintiff contends that the allegations in count I are sufficient to state a cause of action against Jewel on the theory of respondeat superior. It is Jewel’s position, however, that, count I is both legally and factually deficient and that dismissal was, therefore, proper.

Under the doctrine of respondeat superior, an employer may be liable for the negligent, wilful, malicious or even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the business of the employer; however, the employer is not liable to an injured third party where the acts complained of thereby were committed solely for the benefit of the employee. Johanson v. William Johnston Printing Co. (1914), 263 Ill. 236, 240, 140 N.E.2d 1046; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 443 N.E.2d 1162; Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 422 N.E.2d 925; Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235; Hoover v. University of Chicago Hospitals (1977), 51 Ill. App. 3d 263, 366 N.E.2d 925; Bolwin v. El Kay Manufacturing Co. (1975), 32 Ill. App. 3d 138, 336 N.E.2d 502.

In the instant case, plaintiff asserts that the trial court erred in ruling, as a matter of law, that Hiley was not acting within the scope of his employment, but rather acted solely for his own benefit in molesting her. Relying primarily on Metzler v. Layton (1939), 373 Ill. 88, 25 N.E.2d 60, Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 443 N.E.2d 1162, and Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 422 N.E.2d 925, she argues that this was a question of fact which should have been left to a jury for determination. We disagree.

In Metzler v. Layton (1939), 373 Ill. 88, 25 N.E.2d 60, plaintiff filed an action against his employer and another employee — the office manager — when he was shot by the latter during a pursuit of three, men who had, moments earlier, robbed the employer’s loan office. Noting that the office manager had a duty to protect the employer’s property and business; that in pursuing the robbers, he was acting in furtherance of the employer’s interests — albeit his own as well since personal property was stolen from him; and that the entire incident occurred within a short space of time, the court refused to reverse the judgment for plaintiff, stating that the questions of whether the office manager was negligent and, if so, whether the employer was liable to plaintiff therefor were matters properly presented to the jury for resolution.

Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 443 N.E.2d 1162, involved the dismissal of a complaint against the Kleisers and their son, William, for injuries received from an allegedly unprovoked assault by a person hired by William to act as a bouncer at a party he hosted. The complaint alleged, inter alia, that the Kleisers were guilty of wilful and wanton misconduct in inviting more than 200 teenagers to a party at which alcohol was served. The Gregor court held that plaintiff’s complaint failed to state a cause of action against the parents for wilful and wanton or any other tortious misconduct but that, although not intended, it sufficiently stated an action against William on the theory of respondeat superior. In so holding, the court observed that William had authorized and directed the tortfeasor to maintain discipline by physical force and that although not specifically alleged, it could reasonably be inferred that he was acting within the scope of those employment directives when he assaulted the plaintiff. 3

Finally, in Sunseri v. Pueda (1981), 97 Ill. App. 3d 488, 422 N.E.2d 925

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Bluebook (online)
485 N.E.2d 409, 137 Ill. App. 3d 1004, 92 Ill. Dec. 598, 1985 Ill. App. LEXIS 2632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-jewel-companies-inc-illappct-1985.