Litigation

SECTION 324: AN EXCEPTION TO THE ILLINOIS RULE THAT ONE CANNOT BE HELD LIABLE FOR FAILING TO PROTECT ANOTHER FROM CRIMINAL ATTACK

By Mark P. Loftus, Esq.

I am presently fighting a Motion to Dismiss in a horrible case that arose in a hospital. My client was was in the hospital for cardiac symptoms. After sedating my client with Morphine and rendering her unable to defend herself, a male nurse allegedly sexually asaulted her. [ I hate to qualify with "allegedly" but I was at a conference last night where a bigshot with the Illinois Attorney Registration and Disciplinary Commission told us to be careful with blog entries.] So better safe than sorry.

Back to the point. The Hospital has already succeeded in getting my first complaint dismissed, arguing that it is not liable for the criminal acts of an employee. Additionally, they argued, as defendants in these cases always do, that there were not on notice the nurse posed a danger. I filed a slightly modified Amended Complaint and of course they basically filed the exact same motion to dismiss, which will be argued shortly.

In doing some research, I stumbled across an interesting case that gave me a glimmer of hope. In Platson v. NSM America, a high school student took an internship position with a company and some scumbag allegedly sexually assaulted her. She sued the company, and of course the company moved to dismiss, arguing it wasn't responsible for the plaintiff's safety.

The Motion was granted and the plaintiff appealed. The Appellate Court said, Not So Fast, and ruled that the plaintiff did state a cause of action. Of particular interest to me was that portion of the opinion where the Court found a cause of action under Section 324 of the Restatement. Section 324 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 ...(b) he has undertaken a duty owed by the other to the third person" What does that mean in English? I'm not entirely sure, but I think it basically means: If Party A normally cares for an John Doe and, for whatever reason, Party B then assumes caring for John Doe,[knowing A usually does so] then Party B is liable if John Doe gets hurt...even if due to the criminal acts of a third party. Additionally, Party B doesn't have to be on notice that John Doe might be in danger. Great language - now I have to figure out how I can use 324 to beat this motion. To be continued...

Full post as published by Illinois Lawyer Blog on March 16, 2011 (boomark / email).