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SECOND DIVISION
August 16, 2004

No. 1-04-1985

PRESIDING JUSTICE BURKE delivered the opinion of the court:

Plaintiff Jane Doe, as mother and next friend of John Doe, a minor, appeals from an order of the circuit court granting summary judgment in favor of defendant Big Brothers Big Sisters of America (America) on the basis that America owed no duty to protect John from criminal conduct, particularly, sexual abuse by Philip Kaszynski, a mentor for Big Brothers Big Sisters of Metropolitan Chicago (Chicago), while John was enrolled in the Big Brothers program. On appeal, plaintiff contends that America owed John a duty based on: (1) its retained control over Chicago; (2) a special relationship, i.e., it took custody of John; and (3) it voluntarily undertook to protect children from sexual abuse. For the reasons set forth below, we affirm.

America is an not-for-profit organization whose mission

"is to make a positive difference in the lives of children and youth, primarily through a professionally-supported One-to-One relationship with a caring adult, and to assist them in achieving their highest potential as they grow to become confident, competent, and caring individuals, by providing committed volunteers, national leadership, and standards of excellence."

Chicago is a member affiliate of America pursuant to a "Membership Affiliation Agreement" (Agreement) and provides community-based mentoring services to children in the Chicago area. Chicago has its own board of directors, officers, professional staff, including case managers, and volunteers.

Pursuant to the Agreement, America controls Chicago's service area, and requires it to utilize a derivative of America's name and logo. Under the Agreement, America has the following obligations:

"7.1 To recognize the Member's autonomy in being responsible for the administration of its program ***.

7.2 To set guidelines for the practice and operation of a Member and to reassess and review such guidelines when deemed appropriate by [America]. Such guidelines are currently referred to as the 'Standards of Practice for One-To-One Service' [(Standards)] ***.

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7.4 To review the member's policies and procedures at least every five years ***.

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7.6 To provide an opportunity for consultation, resources, materials, programs and procedures in the areas of the Member's management, administration, programs, diversity, service delivery, public relationships, volunteer development, research and fund raising.

7.7 To plan and/or sponsor, conduct, and implement meetings, conferences, conventions, training programs, and institutes for professionals and volunteers *** in a timely and continuing way.

7.12 To make available to the Member rules and regulations and other standard materials required for the operation of a Member.

7.13 [America] will provide training for newly-employed Chief Professional Officer and other staff, on a timely basis."

Under the Agreement, Chicago has the following obligations:

"8.1 To provide One-To-One Mentoring Service ***.

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8.3 To satisfy the Standards of Practice for One-To-One Service ***.

8.4 To adopt and adhere to the Standards of Practice for One-To-One Service ***. The Member will agree to conduct a self-assessment and participate in a review of policies, procedures and practices at least once every five years pursuant to guidelines developed by [America].

8.10 To participate in activities of [America] such as: Annual meetings, Regional meetings, National Professional Association meetings, institutes, workshops, study projects, etc. ***

8.11 To operate solely as a[n] [America] Affiliate not allied with any other organization unless specifically authorized by [America] ***.

8.14 To require any newly employed chief professional officer and other staff to attend training presented by [America] in a timely manner."

With respect to the relationship of the parties, the Agreement provides:

"13.1 This Agreement shall not constitute the Member an agent, *** employee, or servant of [America] for any purpose whatsoever, and it is understood between the parties hereto that the Member shall be an independent contractor ***."

Additionally, the Agreement provides:

"The parties, in addition to their recognition in Section 13.1 that an agency relationship is not intended, further recognize that (i) the Member is an autonomous organization, (ii) the Member has an independent and separate board of directors and officers responsible to manage its operations and affairs, *** (v) the Member, and not [America], has the right and power to hire, supervise and fire its employees, (vi) the Member, and not [America] has the function of selecting the volunteer Big Brothers and Big Sisters and carrying out and supervising its One-To-One Mentoring Service, and (vii) [America] does not control the day-to-day operations and affairs of the Member."

The Standards set forth the organization's vision, mission, and values as well as the following "standards of practice" with respect to affiliates:

"5. The affiliate has a quality assurance system that ensures that all aspects of the affiliate's operations are reviewed and assessed on an annual basis, to include a review of its policies and procedures to ensure compliance with Standards ***, and ensures that the affiliate is in compliance with its own casework manual.⁽¹⁾

9. The affiliate employs a full time executive who is responsible to the board for the overall administration of agency operations.

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b) The Executive has the overall responsibility for employing, supervision, evaluating, and terminating all paid and volunteer staff in accordance with the affiliate's personnel policies.

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10. The affiliate *** has a human resource development and management system that is designed to effectively manage all paid, volunteer, and intern personnel.

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12. The casework manual contains the policies, procedures, and forms to be used in implementing all One-To-One services.

a) The casework manual contains written board approved policies which address the following phases of One-To-One service delivery; written eligibility criteria for volunteer and youth participants, youth outreach, volunteer recruitment, referrals, inquiry, intake, matching, supervision, closure, and case record keeping.

b) The casework manual contains written board approved policies which address risk management issues for all One-To-One services offered by the affiliate, at a minimum: *** child sexual abuse prevention orientation, education and training ***." (Italics in original, designating terms defined in the Standards).

With respect to volunteers, the Standards provide for an intake process where "[t]he professional staff conducts an in-person interview with the volunteer [to] elicit[] necessary information enabling the professional staff to prepare recommendations based upon the volunteer's ability to help meet the needs of the child." The intake process requires the following: an application, references, criminal history record, in-person interview, home environment assessment, and the opportunity for training.⁽²⁾ Although America contemplates that all affiliates will follow the One-To-One mentoring program, the Standards provide a procedure for an affiliate to request that a different model be accepted.

In August 1998, Chicago employed Philip Kaszynski as a full-time case manager whose responsibility was to match volunteers to children. At this time, Kaszynski was trained by Susan McGee, assistant director, and Janet Takehara, another case manager. Both of these individuals, as well as others, supervised Kaszynski. Thereafter, Kaszynski switched to part-time and applied to become a volunteer. After McGee interviewed Kaszynski, he was accepted as a volunteer. In 1999, plaintiff enrolled her 10-year-old son, John, in the Big Brothers program upon the recommendation of a grief counselor following the death of John's grandfather. In November 2000, Kaszynski was matched with John as a mentor. Subsequently, Kaszynski sexually abused John until approximately March 2002, when he was arrested for pornography and sexual abuse of several children, including John.

On March 25, 2002, plaintiff filed a complaint against Kaszynski, America, and Chicago, alleging that Kaszynski sexually abused John. Count I was a claim against Kaszynski for sexual abuse, count II was a claim against Chicago and America (no theory stated), and count III was a claim against Chicago and America based on negligence. Thereafter, both America and Chicago moved to dismiss the complaint. Before the trial court ruled on the motions, it allowed plaintiff to file an amended complaint. On August 27, plaintiff filed her amended complaint. Count I was a negligence claim against Kaszynski, count II a claim against Chicago based on respondeat superior, count III a claim against Chicago based on negligent hiring and supervision, count IV a claim against America based on respondeat superior, and count V a claim against America based on negligent hiring and supervision. Chicago and America again moved to dismiss.

On January 17, 2003, the trial court granted Chicago's motion to dismiss count II pursuant to section 2-615 of the Code of Civil Procedure (730 ILCS 5/2-615 (West 2004)) with prejudice and granted America's motion to dismiss counts IV and V pursuant to both sections 2-615 and 2-619 with prejudice. Although the trial court dismissed these counts with prejudice, it nonetheless granted plaintiff leave to amend her complaint, but only with respect to America. On February 13, plaintiff filed her second amended complaint. On July 24, plaintiff filed her third amended complaint. Count I was a claim for negligence against Kaszynski, count II against Chicago for negligent hiring and supervision, and count III against America for negligent hiring and supervision.

On February 11, 2004, America filed a motion for summary judgment. America alleged that it owed no duty to protect John from another's criminal conduct; that plaintiff did not allege any special relationship imposing a duty on it; and that there was no evidence of any voluntary undertaking by it creating a duty in favor of John. Attached to the motion were the depositions of Mack Koonce, executive vice president and CEO of America, Susan McGee, Janet Takehara, Jane Doe, and John Doe. Also attached were the Agreement and Standards. According to Koonce's deposition, America's main office was in Philadelphia and it had eight regional offices, none of which were in Chicago. Koonce stated that the purpose of the regional offices was to work with affiliate members, such as Chicago. With respect to the relationship between America and Chicago, Koonce testified that America grants its name and support services to the affiliates in connection with marketing, fund development, and training and education. However, America and Chicago are separate corporations. With respect to training, Koonce stated that the training America offered to affiliates was periodic and optional and dealt with management (the basics of matching children to mentors), fund development, marketing, partnership development, and the board of directors. Koonce further stated that affiliates can have their employees trained by America through the regional office and that case managers are trained at the regional office. According to Koonce, if affiliates send their employees to a training program, they are supplied with manuals, which would include any training on sexual abuse prevention. Koonce stated that America requires all new chief professional officers and executive directors of affiliates to receive training, but that it does not directly train mentors.

With respect to control over Chicago, Koonce testified that America does not provide any type of supervision of the affiliates' employees, it does not provide operation manuals, and it does not provide a skeleton outline of appropriate behavior of a mentor--it is up to the affiliates to establish their own policies in these matters. Koonce admitted that America could cancel an affiliation for the reasons set forth in the Standards. Koonce further stated that America only reviews an affiliate's performance every five years and this is the only time America is able to randomly check the affiliate's policies or employees.

Thereafter, plaintiff responded to America's motion for summary judgment, attaching plaintiff's "Declaration" and Koonce's deposition.⁽³⁾ On May 3, plaintiff moved to supplement her response, seeking to attach the America Bar Association's Criminal Sexual Abuse Study (ABA Study) that was undertaken by America in connection with claims and allegations of sexual abuse in its organization. Although the trial court originally denied this motion, after America stipulated to same, the trial court allowed plaintiff to supplement her response. On May 20, plaintiff filed a supplemental brief in response to America's motion for summary judgment, maintaining that the ABA's Study showed the extent to which America engaged in activities to prevent sexual abuse at its member affiliates. On June 8, plaintiff filed an emergency motion to supplement her response, seeking to include a new expert witness on America's duty and its breach of same. The same day, the trial court granted plaintiff's motion to file a fourth amended complaint against Chicago, but denied her motion to file a fourth amended complaint against America. On June 21, the trial court denied plaintiff's emergency motion to supplement her response.

The trial court then conducted a hearing on America's motion for summary judgment. At the hearing, the court noted, to plaintiff, that her arguments made in connection with summary judgment did not track the allegations of her complaint. Specifically, her complaint alleged only negligent hiring and supervision; there were no allegations with respect to America's duty to protect John from criminal conduct. Plaintiff agreed with the court that either a special relationship or voluntary undertaking was required to impose liability on America. After hearing arguments, the court granted summary judgment in favor of America, concluding there was no special relationship and no voluntary undertaking. Accordingly, the court entered an order granting America's motion for summary judgment and included Supreme Court Rule 304(a) language. 155 Ill. 2d R. 304(a). This appeal followed.

A motion for summary judgment is properly granted when the pleadings, depositions, admissions, and affidavits on file establish that no genuine issue as to any material fact exists and, therefore, the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998); Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 530, 675 N.E.2d 897 (1996). The purpose of summary judgment is determine whether a fact question exists, not to try a question of fact. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788 (1993). We review the trial court's granting of a summary judgment motion de novo. McNamee v. State of Illinois, 173 Ill. 2d 433, 438, 672 N.E.2d 1159 (1996).

Plaintiff first contends that the trial court erred in granting summary judgment in favor of defendant because America owed a duty to John that derived from its retained control of Chicago. Plaintiff relies on the principle set forth in section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts,