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Doe v. Big Brothers Big Sisters of America8/16/2005
ory, but none of the allegations involve any misfeasance or affirmative negligent acts on the part of [the defendant] with respect to a voluntary undertaking. Rather, plaintiff, under an ordinary negligence theory, alleged only acts of nonfeasance, such as allowing or permitting conditions to exist unguarded or unprotected, failing to implement safety measures, failure to institute safeguards, failing to post warnings and failing to place fencing on barricades around the premises." Jakubowski, 327 Ill. App. 3d at 640.
The Jakubowski court concluded that such allegations "cannot be a basis for tort liability to a third party * under a voluntary undertaking theory." Jakubowski, 327 Ill. App. 3d at 640. The same is true here. Plaintiff did not allege the voluntary undertaking theory in her complaint. Similarly, plaintiff did not allege misfeasance, but rather nonfeasance. We could affirm summary judgment on this basis alone.
Plaintiff relies on Platson in support of her argument that America voluntarily undertook a duty to protect John. However, Platson does not aid plaintiff. In Platson, a high school student, involved in a work-study program, sued the defendant-employer after she was sexually abused on its premises by one of its employees. Platson, 322 Ill. App. 3d at 140. The trial court dismissed the plaintiff's complaint, but the appellate court reversed, finding that the plaintiff sufficiently stated a cause of action with respect to the defendant's liability under section 324A. Platson, 322 Ill. App. 3d at 149. Specifically, the Platson court found that the employer had specifically, in the work-study program agreement, agreed to provide adequate supervision of the student at all times. Platson, 322 Ill. App. 3d at 150. According to the Platson court, by this agreement, the defendant assumed the school's duty to protect the student, i.e., it voluntarily undertook such a duty. Platson, 322 Ill. App. 3d at 150-51. Here, America, unlike the Platson defendant, did not specifically assume a duty to supervise or protect John in its agreement with Chicago . As such, Platson is distinguishable and does not command the same conclusion here.
Several other Illinois cases are illustrative on when a voluntary undertaking will be found and when it will not. In Chelkova, the court held that the franchisor of a convenience store did not voluntarily undertake a duty to provide security to the franchisee's employees where, although the franchisor made security recommendations to the owner, the owner was responsible for disseminating such information to its employees; these recommendations were not mandatory; the franchisor did not have the ability to enforce the recommendations; the franchisor could not terminate the franchise agreement if the franchisee failed to comply with the recommendations; although the franchisor had installed a security system for the owner, it did not instruct the owner on how to operate it; and the franchisor was not responsible for management of the employees or the day-to-day operations of the store. Chelkova, 331 Ill. App. 3d at 723. Similarly, in Castro v. Brown's Chicken & Pasta, 314 Ill. App. 3d 542, 732 N.E.2d 37 (2000), the court held that the franchisor did not voluntarily undertake a duty to provide security for stores where the franchisor did not mandate any security measures, it did not provide the franchisees with any written materials addressing security, and the franchisees were free to operate their stores in the way they saw fit and could implement any security measures they deemed necessary. Castro, 314 Ill. App. 3d at 550.
Conversely, in Decker v. Domino's Pizza, Inc., 268 Ill. App. 3d 521, 644 N.E.2d 515 (1994), the court concluded tha
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