Illinois Supreme Court puts Employers on Notice: No Notice Needed for Negligent Supervision Claims

When is an Illinois employer liable if one of its employees uses his or her position to commit a crime?  Until recently, the answer depended upon whether the employer knew or should have known—that is, had "notice"—that the employee was predisposed to commit the criminal act in question.  If the notice existed prior to hiring the employee, the employer could be liable for negligent hiring.  If it arose during the employment, the employer could be liable for either negligent retention or supervision.  But none of these types of "negligent employment" cases could be made against an employer without notice.  Indeed, Illinois law has considered employer liability for the criminal acts of employees to be such an extraordinary form of relief that the notice had to be of the "particular unfitness that caused the harm."  Thus, an employer's knowledge that a school bus driver was consistently late on his route, or even that he drank on the job, would not qualify as notice if the bus driver were accused of sexually assaulting a child on his bus.  Only notice evidencing a predisposition to sexually assault a child would count.  (For a case explaining the law under these facts, see, Giraldi v. Community Consolidated School District # 62, 279 Ill. App. 3d 679 (1st Dist. 1996).)

Last year, however, in Doe v. Coe, 2019 IL 123521 (2019), the Illinois Supreme Court held that, while notice remains a necessary element of negligent hiring and retention claims, it is no longer required to state a claim for negligent supervision. 

Coe involved allegations that Chad Coe, the director of youth ministries at the First Congregational Church of Dundee, used his position to rape Jane Doe, the fifteen-year-old daughter of Church members.  The trial court dismissed Jane Doe's claim for negligent supervision against the Church and its pastor, Coe's direct supervisor, because her complaint failed to allege that there had been any notice to the defendants that Coe was predisposed to sexually assault a minor.  The Appellate Court, however, reversed that decision, stating that notice was not a necessary element of Doe's negligent supervision claim.  On further review, the Illinois Supreme Court agreed.  As a result, it is now the law of Illinois that plaintiffs suing employers for negligent supervision need not show that the employer had notice that the employee was likely to commit the crime that caused the harm.

In its ruling, the Supreme Court explained that notice is not required in negligent supervision claims because the reasonable performance of an employer's duty to supervise all of its employees "will put the supervisor on notice of an employee's conduct or perhaps prevent the employee's tortious conduct all together."  Specifically, the Court held that there was no need for Jane Doe to allege notice because "it is generally foreseeable that abuse could occur in programs providing adults with unsupervised access to children." 

On this point, the Supreme Court adopted the rationale articulated by the Appellate Court.  After also stating that "it is generally foreseeable that abuse will occur in programs providing adults with unsupervised access to children," the Appellate Court explained: "for it is well known that pedophiles are drawn to such opportunities, in churches and elsewhere."  In support, the Appellate Court cited the Federal Judicial Center's Handbook for Working with Defendants and Offenders with Mental Disorders, which states: "Pedophiles will seek employment and volunteer work that gives them access to children.  Examples are teacher, clergyman, police officer, coach, scout leader, Big Brother or foster parent.  The pedophile will also find ways to get the child into a situation where other adults are absent."  Up until Coe, courts had told Illinois employers that they could not be held liable for negligently supervising employees who committed crimes without notice.  Now, the Court is telling Illinois employers that they must assume all of their employees are likely to use their positions to perform crimes.

Indeed, prior to the Supreme Court's decision in Coe, it would not have been enough for a plaintiff to claim that just because members of a class of employees—such as teachers, clergy, or scout leaders—have used their positions to commit sexual crimes against children, all employers should expect that every single employee within one of these groups is a pedophile.  Instead, to establish notice (which is still required for negligent hiring and retention claims), a plaintiff would have to establish evidence that this specific employer was aware (or should have been aware) that this specific employee had demonstrated a predisposition to commit this specific criminal act.   But now, the Illinois Supreme Court is telling all employers that serve minors, such as daycare providers, pediatric practices, and summer camps, that they may be liable for sexual crimes committed by their employees simply because the work involves access to minors.  One mark of how radically the Coe decision has changed employer liability in this area is the Appellate Court's reliance on a Handbook that is used to guide federal parole officers working with mentally disordered offenders.  Coe is in effect telling employers involved in serving minors that it must view all of its employees as though they were known offenders!

While one can take issue with the Coe decision, it is now the law of Illinois, and therefore employers must give consideration to the compliance issues it raises.  Coe places employers on notice that employees who have "unsupervised access" to minors may trigger liability if they commit a crime against a minor, regardless of whether there is prior notice.  Employers serving minors should therefore review or establish policies addressing "unsupervised access."  Many entities that provide services to minors will already have some version of a "two-adult policy," mandating that employees may not be alone with minors without the presence of another adult.  In light of Coe, such policies may need to be enhanced or expanded to limit, as much as possible, unsupervised access to minors.    

It is also worth pointing out that Coe's holding is not limited to employers providing services to minors.  Indeed, its ruling means that there is no longer any "notice" requirement for a claim of negligent supervision against any Illinois employer operating a business in any arena.  This means that plaintiffs who may not be able to satisfy the notice requirement the Court left in place for negligent hiring and retention claims may be still be able to proceed against an employer under the lowered standard for negligent supervision claims, where the notice requirement no longer exists.  All employers should take note of this significant change in the landscape of negligent employment cases under Illinois law, and consult with their employment law and human resource advisors about ways to address and manage the expansion of liability after Coe.