Abraham v. Wayside Cross Rescue Mission

No. 2--96--1142

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

BRISSY ABRAHAM, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
) No. 95--L--485
v. )
)
WAYSIDE CROSS RESCUE MISSION, ) Honorable
) Hollis L. Webster,
Defendant-Appellee. ) Judge, Presiding.
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JUSTICE THOMAS delivered the opinion of the court:

Plaintiff, Brissy Abraham, appeals the entry of summary
judgment for defendant, Wayside Cross Rescue Mission, in
plaintiff's negligence action. The issue for review is whether
defendant had a duty to plaintiff to supervise one of its residents
and to report any unauthorized absences.
The complaint alleged that defendant operated an inpatient
rehabilitation center and "halfway house" in Aurora. Plaintiff's
estranged husband, Abraham Abraham, was violent and abusive and had
been sentenced to the Du Page County jail for violating a juvenile
court order of protection. On March 18, 1994, pursuant to a court
order, Abraham was transferred from the jail and accepted as a
resident at defendant's facility. Defendant allegedly knew or
should have known of Abraham's history of and propensity for
violence directed towards his family and plaintiff. On April 4,
1994, defendant permitted Abraham to leave the facility
unsupervised. Abraham travelled to the family home in Elmhurst and
stabbed plaintiff numerous times.
The complaint further alleged that defendant should have been
aware that Abraham's prolonged, unauthorized absence was likely to
enable him to inflict harm on others, specifically plaintiff.
Defendant allegedly had a duty to monitor Abraham's comings and
goings and to report any unexplained or unauthorized absences.
Defendant breached this alleged duty by negligently supervising
Abraham's activities; by failing to monitor his whereabouts when he
was absent from the premises for extended periods; by failing to
notify timely a law enforcement agency; and by allowing Abraham to
absent himself freely from the premises so as to create a danger to
others including plaintiff.
Defendant moved for summary judgment arguing that it had no
duty to plaintiff. It submitted the affidavit of Rick Thomas, the
chaplain at defendant's facility. Thomas averred that he oversaw
Abraham's treatment while he was at the shelter. Abraham was
enrolled pursuant to his own request. Defendant does not accept
referrals from the court system, nor does it provide care pursuant
to a court order. Defendant is privately funded and is not
affiliated with any court system or governmental body. Abraham was
not transferred from the Du Page County court pursuant to a court
order. Defendant agreed only to provide Abraham rehabilitative
assistance for alcoholism; it did not provide any psychological
evaluation. While Abraham was at the shelter, he did not exhibit
violent tendencies and made no threats of violence. Because
defendant's program accepts only those who request to be there,
Abraham was free to leave any time during his enrollment at
defendant's facility.
Plaintiff responded with the discovery deposition of Evelyn
Pharms, the Department of Children and Family Services (DCFS)
caseworker assigned to the Abrahams. The department had been
involved with the family since November 1992. Pharms testified
that Abraham had a history of drug abuse and violence towards
plaintiff. He had threatened to physically harm the family "to the
point where the police were involved." On March 4, 1994, a
juvenile order of protection was entered prohibiting Abraham from
having contact with plaintiff or their children. Abraham violated
the order of protection and was sentenced to 30 days in jail.
However, Abraham was allowed to be released from jail if he entered
a halfway house for alcoholism treatment. A jail social worker
gave Pharms and Abraham the names of facilities, including
defendant. The criteria for an acceptable halfway house were that
it be willing to inform the court about Abraham's progress, have an
alcohol treatment program where he could go for Alcoholics
Anonymous (AA), and provide housing.
Pharms further testified that, when she called defendant's
facility, she spoke to George Patterson, who told her the length of
the program and "that it was run like a dormitory and that their
clients are allowed to go out on furloughs." Pharms' understanding
of the furlough system was that Abraham would be given approval to
go specific places at times authorized by DCFS and the court.
However, leaving the premises for a short time within the community
would not be considered a furlough. She also understood that
Abraham would not be allowed to leave the premises without prior
approval from his counselor at defendant's facility.
Pharms went to juvenile court and got an order to release
Abraham to go to defendant's facility. Pharms took Abraham to the
facility, where she met with Thomas. She informed him of the
juvenile court's involvement, the concerns about Abraham's
drinking, and that the court wanted him to be in an alcoholism
treatment program. Pharms also discussed Abraham's domestic
violence problems and police contacts and the order conditioning
Abraham's release on enrollment in the halfway house. Pharms also
stated that she told Thomas she needed to be contacted for, and
DCFS needed to approve, furloughs because Abraham could not have
contact with plaintiff. Between Abraham's entry into defendant's
program and April 4, 1994, he was conforming to the program, was
working, and denied that he was having any problems.
Pharms also testified that Abraham had a court date on April
4 and that someone at defendant's facility advised her that Abraham
would be transported to the court hearing. Pharms admitted that
she was aware of defendant's policy that clients were allowed free
time in the evening until 9:30 p.m. This meant that Abraham was
free to come and go during that time. She also admitted that, as
defendant's was not a locked facility, she was aware that Abraham
could walk away at any time.
Pharms related that, prior to the April 4 incident, defendant
informed her that there were no suspicions that Abraham was using
alcohol nor did he smell of alcohol. According to Pharms, Abraham
was perceived as a risk "primarily when he was drinking."
The trial court granted defendant summary judgment, finding
that defendant did not have a duty to be responsible for Abraham's
whereabouts. The court used the test set forth in Reynolds v.
National R.R. Passenger Corp., 216 Ill. App. 3d 334 (1991). The
court also noted that Abraham did not make any threats against
plaintiff while he was at defendant's facility. The court
emphasized that, in considering the foreseeability of the injury
and the magnitude of guarding against it, the prevailing public
policies concerning alcoholism treatment militated against imposing
a duty. In the absence of specific threats against a specific
third party, imposing a duty on alcohol treatment centers and
shelters would be unreasonable. As the court explained, "such a
duty is inconsistent with the public policy [so] that treatment
centers would close their doors if [the court] imposed such a
policy and the good work that they do would become more difficult
to obtain."
Plaintiff's motion to reconsider the entry of summary judgment
was denied, and she timely appealed.
Summary judgment is proper when the pleadings, affidavits, and
other documents on file, construed in favor of the nonmovant, show
that there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Espinoza v. Elgin, Joliet
& Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment
is a drastic means of resolving litigation and should be allowed
only when the right of the moving party to judgment is clear and
free from doubt. Espinoza, 165 Ill. 2d at 113. While a plaintiff
need not prove her case at the summary judgment stage, she must
come forward with some facts that would arguably entitle her to
judgment. Jones v. Minster, 261 Ill. App. 3d 1056, 1059 (1994).
We review the entry of summary judgment de novo. In re Estate of
Hoover, 155 Ill. 2d 402, 411 (1993).
In a negligence action, the plaintiff must establish that the
defendant owed the plaintiff a duty, breached that duty, and the
breach proximately caused the injury. Boyd v. Travelers Insurance
Co., 166 Ill. 2d 188, 194-95 (1995). The existence of a duty is a
question of law that depends on whether the parties stood in such
a relationship that the law imposes an obligation on the defendant
to act reasonably to protect the plaintiff. Gouge v. Central
Illinois Public Service Co., 144 Ill. 2d 535, 542 (1991). In
making the determination, generally, courts consider the
foreseeability and the likelihood of the injury, the magnitude of
the burden of guarding against it, and the consequences of placing
that burden on the defendant. Gouge, 144 Ill. 2d at 542. The
court in Reynolds, on which the trial court relied, included an
additional factor, "the currently prevailing public policies and
social attitudes of the community." (Internal quote marks
omitted.) Reynolds, 216 Ill. App. 3d at 338, quoting Eckhardt v.
Kirts, 179 Ill. App. 3d 863, 870 (1989), quoting Leesley v. West,
165 Ill. App. 3d 135, 141 (1988).
In Reynolds, an Amtrak employee, Robert Krabec, was
voluntarily admitted to a hospital and assigned to the alcoholism
treatment unit. During his course of treatment, Krabec eloped from
the hospital and went to Union Station, where he had been employed
as a security officer. Krabec entered the security office and
firearms locker and then shot and killed a fellow employee at Union
Station. The hospital and the doctors were unaware of Krabec's
absence for several hours. Amtrak and Union Station sued the
hospital and the doctors for contribution, alleging, among other
things, that those defendants failed to control Krabec's behavior
and activities. The trial court dismissed the third-party
complaints, finding that they failed to allege a duty.
The appellate court set forth the following test to determine
whether a duty arose under the circumstances:
"(1) [T]he patient must make specific threat(s) of
violence; (2) the threat(s) must be directed at a specific and
identified victim; and (3) a direct physician-patient
relationship between the doctor and the plaintiff or a
'special relationship' between the patient and the plaintiff
[must exist]." Reynolds, 216 Ill. App. 3d at 338.
The court noted that there was no indication that Krabec made any
specific threats towards the co-worker while Krabec was a patient
at the hospital. As such, the third-party plaintiffs could not
prevail on the first two elements. Reynolds, 216 Ill. App. 3d at
338.
On the third element, Amtrak argued that there was a special
relationship in the form of a voluntary custodian-protectee because
Krabec was under inpatient care at the hospital. The hospital and
its medical staff voluntarily provided care and treatment for
Krabec. The court rejected Amtrak's argument, finding that the
third-party defendants owed no duty to the co-worker because he was
"a remote unidentified, unknown third party." The court reasoned
that it was not reasonably foreseeable that Krabec would shoot a
co-worker whom he never mentioned to any of the hospital staff.
Reynolds, 216 Ill. App. 3d at 339.
Plaintiff asserts that Reynolds is distinguishable. We agree.
Here there was an identified victim, and, unlike in Reynolds, the
custodian was aware of Abraham's violent propensities. Reynolds's
analysis derives from the general rule that a person has no duty to
prevent a third party from harming the plaintiff unless there is a
special relationship between the defendant and the third person or
between the defendant and the plaintiff. See Restatement (Second)
of Torts 315 (1965) (Restatement). Plaintiff instead urges us to
rely on section 319 of the Restatement which provides:
"One who takes charge of a third person whom he knows or
should know to be likely to cause bodily harm to others if not
controlled is under a duty to exercise reasonable care to
control the third person to prevent him from doing such harm."
Restatement (Second) of Torts 319 (1965).
Plaintiff contends that defendant, as the operator of a
"halfway house," should be held liable for injuries to third
parties caused by improper supervision of its "inmates." Plaintiff
cites cases from other jurisdictions which she argues are similar
to the present cause. These cases are distinguishable. First, the
defendant in Dudley v. Offender Aid & Restoration of Richmond,
Inc., 401 S.E.2d 878 (Va. 1991), operated a residential prerelease
facility in which convicts were to become acclimated for eventual
release from prison. The defendant had a contract with the
Department of Corrections that required it to notify the Department
whenever an inmate was absent without authorization for more than
two hours. The court there found that the "custodial duties" of
the defendant surpassed those of a parole officer and met the
criterion of section 319 for "one who takes charge" of a person.
Dudley, 401 S.E.2d at 882. Similarly, the defendants in Doe v.
United Social & Mental Health Services, Inc., 670 F. Supp. 1121 (D.
Conn. 1987), operated a halfway house under a contract with the
Department of Corrections (Doe, 670 F. Supp. at 1123 n.3), and they
violated the state standards imposed by the Department of
Corrections (Doe, 670 F. Supp. at 1133). The defendants also were
aware that the inmate was potentially dangerous to others and in
need of treatment.
Plaintiff asserts that defendant's facility is a "halfway
house" because Abraham was allowed to reside there instead of
serving time in jail and he had assigned daily duties, mandatory
attendance at group sessions and AA support groups, and a 9:30 p.m.
curfew. What plaintiff neglects to note is that there were no
guards at the facility, it was not a locked facility, and the
residents could leave whenever they chose to do so. Furthermore,
defendant's facility did not have a contract with the Department of
Corrections or the county jail and, in fact, did not accept
referrals from the court system. The facts in the record show that
defendant's facility was an alcohol treatment facility and shelter
and was not a halfway house for paroled felons. Regardless of
defendant's designation, we must determine whether Abraham was
nevertheless under defendant's control.
In Bailor v. Salvation Army, 51 F.3d 678 (7th Cir. 1995), the
United States Court of Appeals for the Seventh Circuit discussed
section 319 of the Restatement in light of Indiana law. The court
explained:
"[U]nder 319, '[f]or the duty to exist there must therefore
not only be an actual taking charge of the third person, there
must also be a knowledge of the likelihood that he will cause
bodily harm.' Further, *** the entity taking charge must
possess 'the right to intervene or control the actions of a
third person.' " Bailor, 51 F.3d at 682, quoting Estate of
Mathes v. Ireland, 419 N.E.2d 782, 784 (Ind. Ct. App. 1981)
and Sports, Inc. v. Gilbert, 431 N.E.2d 534, 538 (Ind. Ct.
App. 1982).
The court there found that the Salvation Army did not take control
of the inmate because he was under the custody of the Attorney
General and the Bureau of Prisons; the Salvation Army's ability or
right to control him was limited; it had minimal discretion and its
personnel were not authorized to possess lethal weapons; they could
not use physical force to restrain a resident; and the Salvation
Army had limited disciplinary discretion. Bailor, 51 F.3d at 682-
83. In addition, it could not detain a resident, as residents were
free to leave, provided they signed a sign-out sheet. The facility
could not be " 'locked down' " to prevent residents from leaving.
Like defendant's facility here, the "residents could leave the
facility at any time, subject only to the consequences that could
be imposed by the courts or by the Bureau of Prisons." Bailor, 51 F.3d at 683.
Defendant's facility is similar to the Salvation Army in that it
did not have disciplinary discretion, it did not have armed guards, it
could not be locked down, the residents could not be restrained, and
the residents could leave the facility at any time. We therefore
conclude that defendant did not exert sufficient control over Abraham
so as to create a duty.
Moreover, plaintiff cannot meet the section 319 standard, or the
first factor of the Reynolds test, because the evidence does not
establish that defendant knew Abraham was likely to cause bodily harm.
Abraham made no threats while in treatment, and he was thought to be
doing well. Indeed, he was viewed as a danger only when he was
drinking. Because he was abstaining from alcohol, it was not
reasonably foreseeable to defendant that Abraham would travel to
Elmhurst and harm his wife.
Finally, we believe that the public policy concerns militate
against imposing a duty on defendant. Defendant offers important
rehabilitative services to alcoholics and homeless people in the
community. Unlike a halfway house for inmates about to be released
from prison (see Bailor, 51 F.3d at 684), there is no concomitant
interest in protecting the public here, because defendant's residents
are not inmates serving out part of a sentence. We therefore conclude
that the evidence established that defendant had no duty to plaintiff
and the trial court properly granted defendant summary judgment.
The judgment of the circuit court of Du Page County is affirmed.
Affirmed.
COLWELL and RATHJE, JJ., concur.