Pretzel & Stouffer

Appellate Court Affirms Summary Judgment for Boy Scouts of America

Robert Chemers and Scott Howie recently secured an affirmance in the Appellate Court of a summary judgment in favor of the Boy Scouts of America. The case involved the sexual assault of a minor Boy Scout by a former employee of a local scouting council. John Walsh and David McMurtrie obtained the summary judgment, after extensive briefing and oral argument before the trial court in Rockford, Illinois. Doe v. Boy Scouts of America, 2013 IL App (2d) 130121.

The plaintiff sued Boy Scouts of America (“BSA”) and a local council in northern Illinois on behalf of her minor son, identified in court papers as John Doe. She alleged that both defendants had been negligent in hiring and retaining Charles Bickerstaff, a former employee of the local council, who sexually assaulted John Doe. Bickerstaff, who had retired shortly before the alleged acts of abuse, was also named as a defendant. In a separate criminal proceeding, Bickerstaff was convicted of assaulting John Doe; he is currently serving an 80-year prison sentence in the Illinois penitentiary. The plaintiff also alleged that BSA and the local council had been negligent in failing to perform background checks on prospective employees.

The trial court, in an 11-page memorandum opinion, granted summary judgment in favor of both BSA and the local council. It held that neither party could be liable for negligently hiring or retaining Bickerstaff, because BSA had never employed him, and the local council no longer employed him when he committed the assaults. The court also found no fact question that BSA and the council had adequately executed all protective measures they voluntarily undertook.

The Appellate Court affirmed as to both the national organization and the local council. Observing that Bickerstaff had never been an employee of the BSA, the court rejected the plaintiff’s argument that BSA had “effectively hired” him; the organization’s power to block the hiring of volunteers who had previously been found ineligible was not a reason to overlook the elements of an employment relationship. Indeed, Bickerstaff did not meet the most significant element of such a relationship, as BSA did not have the right to control his work. The court went on to find that the local council could not be liable for negligent hiring or retention for Bickerstaff’s post-employment actions.

The court also rejected the plaintiff’s argument that the defendants had negligently performed a voluntary undertaking by failing to protect John Doe from Bickerstaff’s predatory tendencies. Even if they had undertaken such a duty, the court held, they were not obligated to continue it indefinitely, and certainly not past the term of Bickerstaff’s employment with the local council.

On a related issue, the Appellate Court also held that the trial court had properly declined to consider handwritten journals seized from Bickerstaff’s home, observing that they had not been authenticated. More importantly, the Appellate Court recognized that the journals did not tend to prove any issue relevant to the case. Though it was undisputed that Bickerstaff was a pedophile, his secret personal journals did not provide any notice of his activities to either BSA or the council, and they did not contribute anything to the dispute over whether the parties had breached a duty of protection to the minor Scout. The court also criticized the plaintiff for failing to identify anything specific in the voluminous writings to support her argument. The plaintiff did not petition the Illinois Supreme Court for further review, allowing the decision of the Appellate Court to be the final word in this appeal.

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