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Doe v. Big Brothers Big Sisters of America8/16/2005
from America.
Although America may have given some guidelines regarding child protection in some of its training or seminars and may have "participated" on this subject in the sense it may have given recommendations or printouts to Chicago , it is clear that America does not control what is done or is not done with respect to child protection. See Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 48, 817 N.E.2d 1207 (2004) (holding that a general contractor was not liable under section 414 because there was no evidence it "exercised the level of control" necessary since it "did not control the operative detail of [the subcontractor's] methods of work, such that [the subcontractor] was not entirely free to do the work in its own way," and where the general contractor did not direct the subcontractor's employees as to how to perform their tasks, did not hold safety meetings, and did not maintain safety rules for the subcontractors). But see Moorehead, 354 Ill. App. 3d at 460-61 (holding that the plaintiff sufficiently established a duty on the part of the defendant-general contractor under section 414 where there was evidence that the general contractor was responsible for initiating, maintaining and supervising all safety procedures; it initiated a specific safety program and designated an individual whose sole function was to investigate for safety hazards; and its safety manager was on-site on a weekly basis to ensure compliance with its safety standards); Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1063, 728 N.E.2d 726 (2000) (holding there was a factual question as to whether the general contractor was liable under section 414 based on its extensive control of safety standards, including 29 different safety measures and procedures that workers were subject to; it required workers to participate in its safety program; it had authority to instruct workers and stop work; and it had pervasive supervision and constant monitoring of the work).
We find that plaintiff failed to present evidence sufficient to create a genuine issue of material fact that, assuming section 414 was applicable, America owed a duty to John under the theory of retained control. Accordingly, we affirm the trial court's grant of summary judgment on this basis.
II. Special Relationship/Custodian
Plaintiff next maintains that America owed John a duty because it had a special relationship with him based on the fact it took custody of him. Plaintiff maintains that America voluntarily undertook custody of John since he was no longer under his mother's care and was placed in the care of another person. According to plaintiff, the fact that John was enrolled through the Chicago affiliate, rather than America, does not prevent a finding of a special relationship since the program John was enrolled in, One-To-One, was America's required program.
America contends that it did not take custody of John, it thus was not a custodian and, as such, there was no special relationship. In any event, America maintains that there is no evidence it had any control over John where it was separated from him by half a continent and had no authority over him.
"Generally, a person is not liable for harm to another resulting from the person's failure to defend the other against a third party's criminal attack." Platson v. NSM, America, Inc., 322 Ill. App. 3d 138, 146, 748 N.E.2d 1278 (2001). However, where the plaintiff bears "a 'special relationship' to the defendant when the attack by the third party occurred," an exception to the general rule exists. Platson, 322 Ill. App. 3d at 146. A special relationship exists, under section 314A(4) of the Restatement (Second) o
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