 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Doe v. Big Brothers Big Sisters of America8/16/2005
ent to create a genuine issue of material fact that America stood in a special relationship with John, thus imposing a duty on it. Accordingly, we affirm the trial court's grant of summary judgment on this basis. Based on our resolution of the special relationship issue, we need not address the question of foreseeability.
III. Voluntary Undertaking
Plaintiff next contends, alternatively, that America voluntarily undertook a duty to protect John from sexual abuse under section 324A of the Restatement (Second) of Torts. Plaintiff maintains that America voluntarily assumed a duty to protect John and others from sexual abuse since it engaged in a range of activities designed to prevent sexual abuse. Specifically, plaintiff argues that issues with respect to sexual abuse were included in the Standards, which affiliates were required to comply with; America provided other information on the prevention of abuse; and America reviewed the policies and procedures of the affiliates.
America contends that there is no evidence that it undertook a duty to render the services alleged by plaintiff and, even if it did, its undertaking was limited in scope. America maintains that the extent of its undertaking to provide services was limited to the Standards and to present training and education programs on a voluntary basis. With respect to the Standards, America argues that this was created to ensure consistency in the kind of mentoring services provided and was not intended to be a child safety manual. Specifically, there is only one reference to child sexual abuse prevention in the Standards and this reference tells affiliates to create their own policies.
The "voluntary undertaking" theory of liability is set forth in section 324A of the Restatement (Second) of Torts and provides:
" 'One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.' " Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 415-16, 583 N.E.2d 538 (1991), quoting Restatement (Second) of Torts ยง324A.
" 'However, under the voluntary undertaking doctrine of liability, the duty of care to be imposed upon the defendant is limited to the extent of the undertaking.' [Citation.]" Chelkova v. Southland Corp., 331 Ill. App. 3d 716, 722, 771 N.E.2d 1100 (2002). "The Illinois Supreme Court has indicated that a 'narrow construction' of voluntary undertakings is 'supported by public policy.' [Citation.]" Jakubowski v. Alden-Bennett Construction Co., 327 Ill. App. 3d 627, 641, 763 N.E.2d 790 (2002). Moreover, with respect to the voluntary undertaking theory, courts have distinguished between nonfeasance and misfeasance. Jakubowski, 327 Ill. App. 3d at 640. Specifically, "where a duty of care is imposed by reason of a voluntary undertaking, breach of that duty can be found only where there is misfeasance rather than nonfeasance, unless plaintiff can show that he reasonably relied on the defendant for protection." Stephen v. Swiatkowski, 263 Ill. App. 3d 694, 704, 635 N.E.2d 997 (1994).
Initially, in Jakubowski, the court noted that the plaintiff's
"complaint not only did not raise the voluntary undertaking the
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|