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Doe v. Big Brothers Big Sisters of America8/16/2005
tablish that no genuine issue as to any material fact exists and, therefore, the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998); Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 530, 675 N.E.2d 897 (1996). The purpose of summary judgment is determine whether a fact question exists, not to try a question of fact. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788 (1993). We review the trial court's granting of a summary judgment motion de novo. McNamee v. State of Illinois, 173 Ill. 2d 433, 438, 672 N.E.2d 1159 (1996).
I. Independent Contractor/Control
Plaintiff first contends that the trial court erred in granting summary judgment in favor of defendant because America owed a duty to John that derived from its retained control of Chicago . Plaintiff relies on the principle set forth in section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts, ยง414 (1965)), but fails to cite to this provision in her brief. Although plaintiff acknowledges this principle has been utilized primarily in construction work cases, she argues it has broader application, i.e., to the case here. Plaintiff also acknowledges that the Agreement specifically states Chicago is an independent contractor, but points to the following facts to show America retained actual and significant control over Chicago, creating a duty on its part: it created the model of mentoring (One-To-One) that Chicago was required to use; Chicago could only utilize this model; it dictated how to introduce its program to the public; it provided support services; it required affiliates to use a variation of America's name and logo; it required affiliates to adopt and adhere to the Standards; it provided consultation, resources, materials, programs, and procedures to affiliates; it planned and/or sponsored meetings, conferences, conventions, and training programs, including on the issue of sexual abuse; and it provided training for new executives and other staff.
America contends that section 414 is not applicable to a third party assault situation like the one here because it is a limited exception to the general principle that an employer or general contractor is not liable for the activities of an independent contractor and we should not extend it. America further contends that it retained no supervisory or operational control over Chicago sufficient to create a duty on its part.
Plaintiff relies on Coty v. United States Slicing Machine Co., 58 Ill. App. 3d 237, 373 N.E.2d 1371 (1978), and Foster v. Englewood Hospital, 19 Ill. App. 3d 1055, 313 N.E.2d 255 (1974), in support of her argument that section 414 has broader application than the construction work cases. In Coty, the employer of a franchise sued the franchisor after she was injured by a meat slicing machine. Coty, 58 Ill. App. 3d at 239. The plaintiff relied on the employer-independent contractor line of cases, including section 414, to impose liability on the franchisor. Coty, 58 Ill. App. 3d at 242. The court noted that these cases were "somewhat inapposite" because the franchisee was not in the usual sense an independent contractor of an "employer." Coty, 58 Ill. App. 3d at 242. Nonetheless, the Coty court found that "the general rationale of the cases, that a person who possesses a right to supervise the internal operations of another's enterprise, which includes a right to veto an unsafe procedure, may be liable for the negligent failure to do so, can be applied to the franchise cases." Coty, 58 Ill. App. 3d at 242. However, "th right to interdict unsafe practices must consist of something more than a general right to make suggestions or recommendations or to order the w
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