2021 IL App (1st) 192145
Ill. App. Ct.2021Background
- Plaintiff Anthony Powell alleged that Chicago police officer Carlyle Calhoun sexually assaulted him while Powell was in Calhoun’s custody at St. Bernard Hospital on February 3, 2018.
- Powell sued Calhoun (battery) and the City of Chicago (respondeat superior and indemnity under the Tort Immunity Act) for acts allegedly committed while Calhoun was on duty.
- The City moved to dismiss counts against it under 735 ILCS 5/2-619(a)(9), arguing sexual assault is outside an employee’s scope of employment as a matter of law.
- Powell argued police sexual assaults should be treated differently and that federal/out-of-state authority supports liability; he also argued scope is a jury question.
- The trial court dismissed the City from counts II and III with prejudice and entered a Rule 304(a) finding; the appellate court affirmed, applying Illinois scope-of-employment law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a police officer’s sexual assault can be within the scope of employment for respondeat superior and Tort Immunity Act indemnity | Powell: officer authority and opportunity mean such assaults can fall within scope; cited federal and out-of-state cases | City: sexual assault is solely for the officer’s personal benefit and, under Illinois law, is outside scope as a matter of law | Court: affirmed dismissal — assault not the kind of conduct officer was employed to perform and did not further City’s business; outside scope as matter of law |
| Whether scope-of-employment here is a jury question or decidable as a matter of law | Powell: issues of scope are factual and for a jury | City: scope can be resolved on a 2-619 motion when no reasonable person could find scope exists | Court: where no reasonable person could conclude the act was within scope, court may decide as a matter of law; dismissal proper |
Key Cases Cited
- Bagent v. Blessing Care Corp., 224 Ill. 2d 154 (Ill. 2007) (adopted Restatement §228 three-part scope-of-employment test)
- Pyne v. Witmer, 129 Ill. 2d 351 (Ill. 1989) (scope-of-employment principles applied)
- Stern v. Ritz Carlton Chicago, 299 Ill. App. 3d 674 (Ill. App. Ct. 1998) (sexual assault by masseur held outside scope)
- Deloney v. Board of Education of Thornton Township, 281 Ill. App. 3d 775 (Ill. App. Ct. 1996) (truant officer’s sexual assault outside scope)
- Webb v. Jewel Cos., 137 Ill. App. 3d 1004 (Ill. App. Ct. 1985) (employee sexual assault a deviation unrelated to employer’s business)
- Doe v. City of Chicago, 360 F.3d 667 (7th Cir. 2004) (Seventh Circuit declined to decide indemnity before liability; noted debate over scope for police assaults)
- Mary M. v. City of Los Angeles, 814 P.2d 1341 (Cal. 1991) (California en banc decision applying a different test for employer liability for employee sexual misconduct)
- Cox v. Evansville Police Dept., 107 N.E.3d 453 (Ind. 2018) (Indiana Supreme Court used a different standard in police-assault context)