FILED DATE: 7/21/2021 1024 AM. 20211004728 FILED 7/21/2021 10:24 AM SEL/kaj/sly 20-051 7/21/21 #21683 IRIS Y. MARTINEZ CIRCUIT CLERK COOK COUNTY, IL STATE OF ILLINOIS) 20211004728 ) ss COUNTY OF COOK ) IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION JOHN DOE, Plaintiff, No. 2021 L 4728 vs. CHICAGO BLACKHAWK HOCKEY TEAM, INC., Defendant. PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS COMPLAINT PURSUANT TO 2-619(A)(1). (5) AND (9) ‘There is no merit to any of the three arguments raised by defendant, Chicago Blackhawk Hockey Team, Inc. “Blackhawks” or “defendant”) in support of its motion to dismiss. First, this case is not preempted by the Illinois Human Relations Act (“THRL”). Second, the matter is not barred by the exclusive remedy provision of the Illinois ‘Workers’ Compensation Act, 820 ILCS 305/S(a). And third, this case is not barred by the pertinent two-year statute of limitations. As defendant is required to take every factual allegation as true, plaintiff will only discuss the facts as they are relevant to the arguments that follow.FILED DATE: 7121/2021 10:24 AM. 2021L004728 ARGUMENT L This matter is not preempted by the IHRL. Defendant acknowledges that plaintifi's claims are for “personal injuries” (Def. Mo. at 4), but then erroneously contends that these personal injury claims have no “independent basis” and that they “fall squarely within the four-corners of the IHIRA and are, therefore, expressly preempted.” (Id. ) Sinkule v. Fisher Dev., 2002 U.S. Dist. LEXIS 10681, *6-8, 2002 WL 1308642, is on point and provides persuasive authority in support of plaintiff's position here that plaintiff's common law claims are viable. In Sinkule, the plaintiffs filed a sexual harassment action against their employer alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and vicarious liability under the Illinois ‘common law of torts, assault and battery by the defendant’s employees and liability under the Illinois common law for negligent supervision. More specifically, plaintiff alleged in Count IV that defendant was vicariously liable for the Ilinois common law torts of assault and battery by defendant’s employees and in Count V plaintiff alleged that defendant was liable under Illinois common law for negligent supervision in failing to exercise reasonable care to prevent assault and battery. ‘The plaintiffs in Sinkule alleged that they repeatedly attempted to remedy the situation, but the offending employees did not alter their behavior. Further, they alleged that one of the plaintiffs repeatedly reported the specific instances of offensive conduct to defendant’s vice-president and other management personnel, but that they failed to 2FILED DATE: 7721/2021 1028 AM. 2021L004728 investigate the claims, failed to take corrective actions, and instructed plaintiff not to document the complaint in writing. ‘The defendant employer sought dismissal of the common law counts, asserting that, the court lacked subject matter jurisdiction to hear those counts because they were preempted by the [HRA ‘The Honorable John W. Darrah, of the federal district court for the Northen District of Illinois, summarized the applicable Illinois principles for determining whether a court has jurisdiction over a tort claim involving sexual harassment. His summary is Girectly on point and applicable here: Pursuant to Illinois law, courts lack subject matter jurisdiction to hear tort claims that are inextricably linked to civil rights violations under the IHRA. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 515-516, 203 Ill Dec. 454, 639 N.E.2d 1273 (Ill. 1994) (Geise). Employment discrimination, including sexual harassment and retaliation, are included under the IHRA’s definition of “civil rights violation”. 775 ILCS 5/1-101; 775 ILCS 5/1-103(D). In Geise, the Llinois Supreme Court found that the circuit court did not have jurisdiction over plaintiff's claims of negligent hiring and retention of a manager who sexually harassed the plaintiff because there was “no independent basis [outside the IHRA’s prohibition of sexual harassment] for imposing liability on (Plaintiff's) former employer.” Geise, 159 Ill. 2d at 517. That the plaintiff's claims were framed in terms of “negligent hiring” and “negligent retention” did not “alter the fundamental nature of [plaintiff's] cause of action.” Geise, 159 IIL 2d at 518. Three years later, in Maksimovic v. Tsogalis, 177 Il. 2d 511, 519, 227 Ill. Dec. 98, 687 N.E.2d 21 (1997) (Tsogalis), the Minois Supreme Court clarified its ruling in Geise. The plaintiff in Tsogalis filed a complaint with the IHRC, alleging that she was a victim of sexual assault. Several months later, the plaintiff filed an action for damages, alleging assault, battery, and false imprisonment. The trial court ruled that the plaintif's claims were barred by the IHRA under Geise; the appellate court affirmed,FILED DATE: 7721/2021 10:24 AM 2021L008728, ‘The Illinois Supreme Court, however, reversed the decision, holding: that a common Jaw tort claim is not inextricably linked with a civil rights violation where a plaintiff can establish the necessary elements of the tort independent of any legal duties created by the Illinois Human Rights Act. In such a case, the plaintiff has established a basis for imposing liability on the defendant independent of any statutory cause of action under the Act, and therefore the circuit court does have jurisdiction to adjudicate the plaintiff's common law tort claim. ‘Tsogalis, 177 Ul. 2d at 518. Thus, to ascertain whether a tort claim is “inextricably tinked” to the discrimination claims, it must be determined whether the plaintiff alleged the elements of the tort claim “without reference to the legal duties created by the IHRA”. Westphal v. City of Chicago, 8 F. Supp. 2d 809, 812 (N.D.I11. 1998). The tort claim must be independent of the civil rights laws. Rapier v. Ford Motor Co., 49 F. Supp. 2d 1078, 1080 (N.D.IIl. 1999). Based on these indisputable principles, the court held that plaintiff's vicarious liability law tort claims and their negligent supervision claims were not “inextricably linked” to the discrimination claims. Most pertinently, as to Count V, sounding in negligent failure to exercise reasonable care to prevent assault and battery of plaintiffs,the lig court ruled: Count V alleges that Defendant is actually liable for its own negligence, not vicariously liable for the actions of Defendant's employees. Defendant is subject to a common law duty, outside the IHRA, for which it can be held liable to Plaintiffs for negligent supervision. Hills v. Bridgeview Little League Association, 195 Ill.2d 210, 228-231, 253 Ill. Dec. 632, 745 N.B.2d 1166 (2000). Though the allegations of negligent supervision in Count V pertain to assault and battery of a sexual nature, if all allegations of sexual Giscrimination in the Complaint are disregarded, Plaintiffs can still “establish the necessary elements of the tort independent of any legal duties created by the Ilinois Human Rights Act.” Tsogalis, 177 Ill.2d at 518. The negligent supervision claims remain fully intact because they do not “depend on the prohibitions against sex discrimination for [their] 4FILED DATE: 7721/2021 10:24 AM. 2021004728 survival.{”] See Hardison v. Galaxy Recovery Sys., Inc., 2000 U.S. Dist. LEXIS 18154, 2000 WL 1847624(N.D.IN Dec 14, 2000). Accordingly, Defendant’s Motion to Dismiss Count V for lack of subject matter jurisdiction is denied. Sinkule v. Fisher Development, No. 01 C 9969, 2002 U.S. Dist. LEXIS 10681, at *13-14 (ND. Ill, June 13, 2002). Santos v. Boeing Co., No. 02 C 9310, 2004 U.S. Dist. LEXIS 8337 (N-D. Ill. May 10, 2004), provides further persuasive authority in support of plaintiff” position that his cause of action is not preempted. In that case a former employee alleged that a former employer had negligently retained a knowingly violent co-worker. Some of the facts alleged were also asserted with regard to the employee's Title VII of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. § 20006e et seq., race discrimination and retaliation claims, but, in ruling on the defendant employer’s motion to dismiss the negligent retention claim. based on preemption, the district court judge (Samuel Der-Yeghiayan) held that the Title ‘VII facts were not necessary to establish the elements of the negligent retention claim and that the employee had sufficiently shown that his negligent retention claim was based on a duty other than one created by the IHRA. Further still, in Naeem v. McKesson Drug Co., 444 F.3d 593, 604 (7th Cir. 2006), the Seventh Circuit cited Maksimovic, supra, and added: “The distinction between claims that are preempted and claims that are not preempted tums on the legal duty that the defendant allegedly breached; “that is, if the conduct would be actionable even aside from its character as a civil rights violation because the IHRA did not ‘furnish [ ] the legal duty that the defendant was alleged to have breached,” the IHRA does not preempt a state law 5FILED DATE: 7121/2021 10:24 AM 2021L004728, claim seeking recovery for it.” Accordingly if the plaintiff's claims “rest [ ] not just on behavior that is sexually harassing, but rather behavior that would be a tort [regardless of defendant's] motives,” they are not preempted. Jd. at 605. Based on these principles and examples, plaintiff's claims against defendant should ‘withstand dismissal. Plaintiff has not simply alleged that defendant is vicariously liable for Aldtich’s abuse of Doe or that it merely tolerated sexual assault and harassmentby its employee. Plaintiff has alleged that defendant knew of Aldrich’s wrongful behavior prior to his abuse of Doe (Count J, 45) yet it provided no program for dealing with this conduct whatsoever, including failing to provide any policies for dealing with the improper conduct, including investigating the claim, interviewing the victim or witnesses, taking corrective action, including termination of the perpetrator. (Count I, 7.) Plaintiff also alleged that defendant attempted to and actually fraudulently concealed the tort (Count II). Moreover, plaintiff specifically alleged that despite defendant's actual knowledge that the offending employee had sexually assaulted another team player and not only did nothing about it (Count I, {ff 5-6), the team counselor convinced plaintiff that the sexual assault was his own fault, that he was culpable for what shad happened and that he permitted the sexual assault to occur. (Count Il, 6.) Plaintiff further alleged that defendant knew or should have known that these statements were false and that they were made with the intent to deceive plaintiff into believing that he had not been sexually assaulted. (Count Il, 8.) These allegations are wholly distinct from a civil rights violation, They involve a 6FILED DATE: 7/21/2021 10:24 AM 20011008728, complete dereliction of duty to protect plaintiff from a dangerous employee and attemptto convince plaintiff that if anything happened, it was his fault. This is a separate, independent tort that exists independently of defendant's motives. The fact that the specific allegations of negligence in paragraph 7 of Count I mention the words “sexual harassment” does not Jead to or allow the conclusion that the claim is dependent on the IHRA. The negligence claim turns on failure to have adequate hiring and employment policies. Had they existed, plaintiff contends, the abuse would have been prevented, Defendant's reliance on Giese v. Phoenix Co. of Chicago, Inc., 159 Ill. 24 507 (1994) (Def, Mo. at 6) is misplaced. The plaintiff in that case, who alleged negligent hiring and retention, relied exclusively on Title VII of the Civil Rights Act and its accompanying regulations for liability. Jd. at $18. Plaintiff's claims here do not dependon Title VIT or the IHRA. Accordingly, the IHRA does not preempt this court’s jurisdiction and plaintiff was not required to exhaust his administrative remedies. m. Plaintiff's claims are not barred by the Illinois Workers’ Compensation Act. Unquestionably, the Illinois Workers Compensation Act (“IWCA”) bars an employee from bringing a common law suit against his employer for accidental injuries sustained in the course of employment and compensable under the IWCA. 820 ILCS 305/5(a). (Def. Br. at 9.) “An injury intentionally inflicted by a co-worker may still be ‘accidental’ within the meaning of the WCA if the employer did not direct, encourage,FILED OATE: 721/202 1024 AM. 2021L004728 or expressly authorize the co-worker’s conduct.” Mobley v. Kelly Kean Nissan, Inc., 864 F. Supp. 726, 729 (ND. IIL 1993), citing Meerbrey v. Marshall Field & Co., 139 Wl.2d 455 (1990). The IWCA, however, does not preempt all sexual harassment claims. In Seantos v. Boeing Co., No. 02 C 9310, 2004 U.S. Dist. LEXIS 8337 *10 (N.D. Ill. May 10, 2004), the court, citing Illinois law, stated: However, the IWCA does not bar claims based upon certain torts. Meerbrey, 564 N.E.2d at 1229-30. The IWCA exclusivity provisions does “not bar a common law cause of action against an employer . . for injuries which the employer or its alter ego intentionally inflicts upon an employee or which were commanded or expressly authorized by the employer.” Id. A plaintiff may escape the IWCA exclusivity provision bar for claims, by showing “(1) the injury was not accidental; (2) the injury did not arise from Z] employment; (3) the injury was not received during the course of [7 employment; [or] (4) the injury is not compensable under the Act.” Hunt-Golliday, 104 F 34 at 1016. See also Walker v. Doctors Hosp. of Hyde Park, 110 F. Supp.2d 704, 714 (N.D. Ill. 2000)(explaining that “if the employer, or its alter ego, acts with a specific intent to injure the employee through the acts of the employee’s coworkers, the injury that results no Jonger remains an accident.”)(emphasis added). In the case at bar, plaintiff has alleged that defendant fraudulently concealed the sexual abuse by specifically alleging that defendant had actual knowledge that the offending employee had sexually assaulted another team player and not only did nothing about it (Count I, {| 5-6) but that the team counselor convinced plaintiff that the sexual assault was his own fault, that he was culpable for what had happened and that he permitted the sexual assault to occur. (Count II, 4 6.) Plaintiff further alleged that defendant knew or should have known that these statements were false and that they wereFILED DATE: 72212021 10:24 aN 2021L004728, made with the intent to deceive plaintiff into believing that he had not been. sexually assaulted. (Count IL, 8.) Thus, plaintiff has alleged that (1) the injury was not accidental; 2) the injury did not arise from employment; and (3) the injury was not received during the course of employment. It should not be deemed barred by the IWCA. IL. Plaintiff's claims are not time-barred. Plaintiff generally agrees with the proposition that the statute of limitations for personal injuries begins to run when the plaintiff is injured, rather than when the plaintiff realizes the consequences of the injury or the full extent of his injuries. (Def. Mo. at 8), But there is more to the law and application of that general proposition does not defeat plaintiffs claims here. Illinois law is settled that the statute of limitations does not begin to run until the plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 24 72, 77-18 (1995), citing Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249 (1994). “This rule developed to avoid mechanical application of a statute of limitations in situations where an individual would be barred from suit before he was aware that he was injured.” Hermitage, supra, “The issue of when the statute of limitations commences running is a question of fact, unless reasonable minds could not differ, then it, is a question of law.” Ogle v. Hotto, 273 Il. App. 3d 313, 321 (Sth Dist. 1995), citing Knox College v. Celotex Corp. 88 Ill. 2d 407 (1981); Witherell v. Weimer, 85 Til. 2 146FILED DATE: 77212021 1024 AM. 2021004728 (1981); Nolan v, Johns-Manville Asbestos, 85 Il. 2d 161 (1981); Jackson Jordare, Inc. v. Leydig, Voit & Mayer, 158 Ill. 24.240 (1994). In this case, plaintiff reported the assault, and the team psychologist mininaized the assault and blamed plaintiff for it. The assaulter, Mr. Aldrich, threatened to rain plaintiff's hockey career if he did not keep quiet about the assault. Plaintiff spent the next 9 years ignoring and suppressing memories of the assault until he learned that Mr. Aldrich was convicted of molesting a 17-year-old boy. It was only at this time that plaintiff reflected on his own victimization and how it had affected his life. Based on these facts, 2 question of fact exists as to when plaintiff was injured — at the time of the assault or at the time he realized the source of his misery. ‘These facts create a question of fact as to when plaintiff was injured. CONCLUSION For all of the reasons stated above, plaintiff, John Doe, asks this Court to deny defendant’s motion to dismiss. Respectfully submitted, /s/ SUSAN E, LOGGANS ‘Attorney for Plaintiff SUSAN E, LOGGANS & ASSOCIATES, P.C. 180 N, LaSalle Street, Suite 2640 Chicago, IL 60601 312) 201-8600 Service by fax: (312) 201-1180 Service by email: thefirm@logganslaw.com Firm LD. 21683 10