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Doe v. Big Brothers Big Sisters of America8/16/2005
f Torts where "one voluntarily takes custody of another so as to deprive the other of his normal opportunities for protection." Platson, 322 Ill. App. 3d at 146. However, " ven a person bearing a special relationship to another has a duty to protect that person only from reasonably foreseeable attacks by third parties." Platson, 322 Ill. App. 3d at 146. In Platson, the court noted that " hat it means to 'take custody of another' or 'deprive another of his normal opportunities for protection" is not addressed by section 314A(4), nor many Illinois cases. Platson, 322 Ill. App. 3d at 146. In looking to persuasive authority outside of Illinois, the Platson court relied on one case that held "that to assume custody of a child is to stand 'in loco parentis to the child, accepting all the rights and responsibilities that go with that status.' [Citation.]" Platson, 322 Ill. App. 3d at 147. In addition, " ' ypically, the plaintiff [in a section 314A(4) relationship] is in some respect particularly vulnerable and dependent on the defendant, who in turn holds considerable power over the plaintiff's welfare.' [Citation.]" Platson, 322 Ill. App. 3d at 147. Accordingly, the Platson court found that " ' o establish a custodial relationship between an employer and a minor employee [the situation in Platson], there must be proof that the employer voluntarily assumed the additional responsibilities of a custodian towards the child.' [Citation.]" Platson, 322 Ill. App. 3d at 147.
The only case in Illinois to address a situation or organization similar to that here is Doe v. Goff, 306 Ill. App. 3d 1131, 716 N.E.2d 323 (1999), in which the plaintiff-minor, a former Boy Scout, sued the BSA and the Rainbow Council Boy Scouts of America (the local group) after he was sexually molested while at a Boy Scouts' camp. Doe, 306 Ill. App. 3d at 1133. One of the theories the plaintiff relied upon to hold both the BSA and local council liable was that he had a "special relationship" with them by virtue of their taking voluntary custody of him. Doe, 306 Ill. App. 3d at 1134. Without analyzing the issue, the Doe court stated that " s the plaintiff's voluntary custodian, the appellees had a duty to protect him from foreseeable harm." Doe, 306 Ill. App. 3d at 1134. The court nonetheless declined to hold the defendants liable based on its finding that the criminal attack by the adult volunteer scout leader was not foreseeable. Doe, 306 Ill. App. 3d at 1134.
As noted above, Doe does not analyze the issue, it merely stated that a special relationship existed. Thus, Doe offers no aid in the instant case. The question here is whether America voluntarily took custody of John. "Custody" is defined as "control of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it." Webster's Third New International Dictionary 559 (1993). "Custodian" is defined as "one that guards and protects and maintains." Webster's Third New International Dictionary at 559. "Custodial" is defined as "relating to or marked by guardianship or maintaining safety." Webster's Third New International Dictionary at 559.
We find that there is no evidence and no basis to find that America took voluntary custody of John, thus imposing a duty upon it. First, America did not have actual or constructive possession of John. As America points out, it was half way across the country. Moreover, America did not assume any of the responsibilities associated with the status of custodian; it had no ability to guard or protect John; it had no authority over him; and it had no manner in which to dictate any of his activities, how he was cared for, etc. As such, we find that plaintiff failed to present evidence suffici
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