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Hargan v. Southwestern Electric Cooperative, Inc., No. 5-99-0010

5th District, 2 March 2000

JUSTICE KUEHN delivered the opinion of the court:

Plaintiff, William Hargan, appeals from the trial court's December 4, 1998, order granting defendant Southwestern ElectricCooperative, Inc.'s motion to dismiss plaintiff's second amended complaint for alienation of affection. We affirm.

Plaintiff William Hargan (Hargan) married Susan on February 21, 1970. Susan had always been employed outside the homeas a clerical worker. During the mid-1980s, Hargan and Susan had some marital difficulties but managed to work out anyproblems. Hargan alleged that he and Susan had a very loving and secure relationship. In the fall of 1992, Susan started anew job working as a clerical employee of defendant Southwestern Electric Cooperative, Inc. (Southwestern Electric).Defendant Allan Libbra (Libbra) is president of the board of directors of Southwestern Electric. Sometime after she beganworking for Southwestern Electric, Susan met Libbra. During her employ, Susan took three business trips in the companyof Libbra. Hargan alleged that Libbra pursued the affection of Susan, ultimately acquiring an improper and undue influenceover her. On March 31, 1996, Susan informed Hargan that she no longer loved him and that she was leaving him. Harganand Susan were divorced on May 10, 1996.

Hargan initially filed suit against Southwestern Electric and Libbra on May 8, 1998. Defendants filed various motions todismiss the complaint. The complaint was dismissed, as was the subsequently filed, first amended complaint. On bothoccasions, the trial court granted Hargan leave to file an amended complaint. The second amended complaint, filed onOctober 13, 1998, is the subject of this appeal.

In count I of the second amended complaint, Hargan alleges that Libbra acquired an improper and undue influence overSusan while serving in his capacity as agent of Southwestern Electric and while pursuing a business interest or endeavor onbehalf of and for Southwestern Electric. In count II of his complaint, Hargan makes essentially the same allegations againstLibbra personally. In both counts, Hargan alleges actual damages stemming from the loss of Susan's salary.

Southwestern Electric filed a motion to dismiss count I of this complaint pursuant to section 2-619(a)(9) of the Code ofCivil Procedure (735 ILCS 5/2-619(a)(9) (West 1996)). In this motion, Southwestern Electric argued that assuming theallegations were true, it could not be held liable as a matter of law because alienation of affection is an intentional tort andLibbra was not acting on behalf of Southwestern Electric.

After oral argument, the trial court concluded that as a matter of law, an employer could not be held responsible for thealienation-of-affection actions of one of its employees. The trial court entered judgment on behalf of Southwestern Electricand found that pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) there was no just reason to delay appeal of thejudgment.

On the appeal of a dismissal based upon a section 2-619 motion, the standard of review is "'whether the existence of agenuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal isproper as a matter of law.'" Vuagniaux v. Korte, 273 Ill. App. 3d 305, 307, 652 N.E.2d 840, 841 (1995), quoting Kedzie &103^rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 736 (1993).

Alienation of affections is an intentional tort that is subject to close and strict judicial scrutiny. See Coulter v. Renshaw, 94Ill. App. 3d 93, 95, 418 N.E.2d 489, 490 (1981). In order to sustain an alienation-of-affections cause of action, the plaintiffmust plead and prove the following:

"(a) love and affection of the spouse for the plaintiff; (b) actual damages; and (c) overt acts, conduct[,] or enticementon the part of the defendant causing those affections to depart." Coulter, 94 Ill. App. 3d at 95, 418 N.E.2d at 490-91.

In this case, Hargan clearly alleges that Susan loved him and that he sustained actual damages in the form of her lost wages.Those two elements are not really at issue. Hargan also alleges that Southwestern Electric, through its agent Libbra,committed acts, conduct, or enticement resulting in the departure of Susan's affections for Hargan. This element is disputed.At issue is whether or not a corporate defendant can be held responsible for the overt acts, conduct, or enticement on thepart of its employee.

An employer can be held vicariously responsible for the acts of its employees under the doctrine of respondeat superior.See Moy v. County of Cook, 159 Ill. 2d 519, 524, 640 N.E.2d 926, 928 (1994). The employer will only be held responsiblefor the employee's acts if the acts were committed within the scope of the employee's employment. See Pyne v. Witme, 129Ill. 2d 351, 359, 543 N.E.2d 1304, 1308 (1989). Whether or not the employee's act is intentional or merely negligent is notthe defining factor. Instead, the focus is on whether or not the act was performed within the "scope of employment." Illinoisutilizes the following three criteria from the Restatement (Second) of Agency in determining whether or not an employee'sacts are within the scope of employment:

(1) if the acts are of the type the employee is employed to perform;

(2) if the acts at issue occur substantially within the authorized time and space limits; and

(3) if the acts are done, at least in part, by an intent to serve the employer.

See Pyne, 129 Ill. 2d at 360, 543 N.E.2d at 1308, citing Restatement (Second) of Agency