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No. 2--03--0964

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Plaintiff, Mary Maras, as the guardian of her disabled adult daughter, Shaharu Daniels, appeals the dismissal of the vicarious liability counts of her complaint against defendant, Milestone, Inc., theoperator of the home where her daughter lives. The court dismissed the counts, holding that, as amatter of law, plaintiff could not establish that an employee of defendant's committed the allegedbattery of Daniels in the course of his or her employment, an essential condition for vicarious liability. Because we believe that the court misapplied the standard for whether an act occurred in the courseof a person's employment, we reverse the judgment and remand the matter.

Plaintiff filed a personal injury action against defendant, claiming that it was vicariously liablefor injuries Daniels sustained in two batteries at the hands of its employee(s). She also claimed thatit was directly liable for negligently having failed to remove the responsible employee(s) after the firstincident. Defendant moved to dismiss the vicarious liability counts on the basis that "[n]owhere inPlaintiff's Complaint is it alleged that [defendant's employees] were acting in the course and scope oftheir employment or in anyway [sic] authorized to make physical contact with the disabled plaintiff." It contended that this alone was basis for judgment on the pleadings. It further argued that recklessor malicious behavior is legally outside the scope of a person's employment. The court granteddefendant's motion, but gave plaintiff leave to file an amended complaint.

As amended, the complaint alleged that defendant is in the business of providing care andtraining to the residents of the home it operates, who mostly are disabled children. On April 13,2000, and April 20, 2000, one or more of defendant's employees "while on-duty and performing theduties assigned to him/her/them, wantonly and willfully committed an aggravated battery uponSHAHARU DANIELS by striking her repeatedly. In so striking her, the employee(s) intended tocause, and did cause, harm to SHAHARU DANIELS." Defendant moved to dismiss all countspursuant to section 2--615 of the Code of Civil Procedure (Code). 735 ILCS 5/2--615 (West 2002). It alleged that it had "previously presented a motion *** based on the fact that no facts were pleadedwhich could support a finding that the alleged physical assault was within the scope of the assailant'semployment." It also noted that the only difference between the two complaints was that plaintiffadded the allegation that the batteries took place while the employees were " 'on-duty and performingthe duties assigned to him/her/them.' " It argued that "[p]laintiff has not pled one fact to suggest that[the] battery upon the plaintiff by 'striking her repeatedly' was the type of conduct that the employeeswere, in fact, employed to perform."

The court ruled that "under the facts presented in this case the Plaintiff is unable to state acause of action under the theory of respondeat superior as a matter of law, which would impute theintentional conduct of the unnamed Milestone employees upon Milestone." It therefore dismissedthe vicarious liability counts of the complaint with prejudice. Plaintiff timely appeals (see SupremeCourt Rule 304(a) (155 Ill. 2d R. 304(a))), contending that this ruling was incorrect. Defendantresponds, contending, inter alia, that plaintiff waived her argument in this court by failing to make itin the trial court.

A trial court should grant a motion to dismiss a complaint under section 2--615 of the Codeonly when the allegations in the complaint, construed in the light most favorable to the plaintiff, failto state a cause of action upon which relief can be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d134, 147 (2002). The court must accept as true all well-pleaded facts and inferences drawn fromthose facts. Oliveira, 201 Ill. 2d at 147. We review de novo a dismissal under section 2--615. Oliveira, 201 Ill. 2d at 147-48. The sole issue here is whether the nature of the alleged torts ofdefendant's employees precludes defendant's vicarious liability as a matter of law. That is the basisthe court gave for the dismissal, and defendant does not suggest that we should affirm the dismissalon some other basis.

An employer is vicariously liable for the tort of its employee only if the tort is committed whilethe employee is acting within the scope of his or her employment. Montgomery v. Petty ManagementCorp., 323 Ill. App. 3d 514, 517 (2001). Here, the court clearly implied that defendant's employees'alleged actions could not have been within the scope of their employment. A court should determineas a matter of law that an employee acted outside the scope of his or her employment only if noreasonable person could conclude from the evidence that the employee was acting within the scopeof his or her of employment. Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989).

This is not a case where a court could decide as a matter of law that the torts plaintiff allegesfell outside the scope of employment of defendant's employees. A tort can fall within the scope ofa person's employment even if the conduct was unauthorized or forbidden by the employer. Wilsonv. Clark Oil & Refining Corp., 134 Ill. App. 3d 1084, 1090-91 (1985), citing Restatement (Second)of Agency