Monday, October 27, 2014

The "High-Level Security Employee," Emails and Murder

This post examines an opinion the Appellate Court of Illinois issued recently: Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App (5th) 130193 (2014). As the court explains in the opening sentence of its opinion, the plaintiff in the civil suit,
Regions Bank, d/b/a Regions Morgan–Keegan Trust (“the Bank”), as independent administrator of the estates of Sheri Coleman, Garett Coleman, and Gavin Coleman, appeals from an order of the circuit court of Monroe County dismissing with prejudice its claims against the defendant, Joyce Meyer Ministries, Inc., on the ground that the plaintiff failed to state any claim upon which relief could be granted.
Regions Bank v. Joyce Meyer Ministries, Inc., supra.  As I have noted in earlier posts, and as Wikipedia explains, a motion asserting that the plaintiffs’ Complaint fails to state a claim upon which relief can be granted is how lawsuits with
insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a . . . motion. `While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).’ Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . .  
Regions Bank v. Joyce Meyer Ministries, Inc., supra.  Wikipedia is referring to a motion brought under Rule 12(b)(6) of the Federal Rules of Procedure while the motion in this case was brought under Illinois Code of Civil Procedure 5/2-615, but the process is the same under both. Regions Bank v. Joyce Meyer Ministries, Inc., supra. You can, if you are interested, read more about how § 5/1-615 works in the article you can find here.
The lawsuit arose from these events (and allegations):
In May 5, 2009, Sheri Coleman and her young sons, Garett Coleman and Gavin Coleman . . . were murdered in their home in Columbia, Illinois. Christopher Coleman, the husband of Sheri and the father of Garett and Gavin, was charged with and subsequently convicted of the murders. He was sentenced to life in prison without the possibility of parole for these crimes. On May 5, 2009, and for more than eight years prior, Christopher Coleman had been employed in high-level security positions by Joyce Meyer Ministries, Inc. It is alleged that in the months leading up to the murders, Coleman used his work computer to email death threats directed at himself, the decedents, and Joyce Meyer Ministries, Inc.
Regions Bank v. Joyce Meyer Ministries, Inc., supra.  You can, if you are interested, read more about the murders here and here.
The court goes on to explain that on May 4, 2011, the Bank filed a Complaint for
wrongful death against Christopher Coleman, Joyce Meyer Ministries, Inc. (JMM), Joyce Meyer, and Daniel B. Meyer. Christopher Coleman has not entered an appearance in this case. . . . Joyce Meyer and Daniel Meyer were voluntarily dismissed . . . pursuant to a stipulation by the parties.

JMM entered its appearance and filed a motion to dismiss the counts against it pursuant to section 2–615 of the Code of Civil Procedure (Code) . . on the ground that the plaintiff failed to state any claim upon which relief could be granted. The trial court granted JMM's motion, but permitted the plaintiff to amend the complaint.
Regions Bank v. Joyce Meyer Ministries, Inc., supra.  
The Bank filed an amended complaint that contained “three counts” against
JMM. Count III alleges wrongful death under a theory of a negligent undertaking to protect the decedents from threatened harm. Count IV is the corresponding survival action. Count V is brought under a theory of negligent retention of the employment of Christopher Coleman. JMM renewed its motion to dismiss all counts under section 2–615 of the Code for failure to state any claim upon which relief could be granted. . . .

JMM argued that count III should be dismissed because it did not allege sufficient facts to establish that JMM undertook to protect the decedents from the harmful acts of a third party, and count V should be dismissed because the plaintiff did not allege a logical connection between retaining Christopher Coleman as an employee and his murderous acts. After considering the briefs and arguments of counsel, the trial court granted JMM's motion and dismissed counts III, IV, and V of the first amended complaint with prejudice.
Regions Bank v. Joyce Meyer Ministries, Inc., supra.  
The Bank appealed, claiming “the first amended complaint contains sufficient allegations of fact to establish duties owed by JMM to the decedents under theories of a voluntary undertaking and negligent retention.”  Regions Bank v. Joyce Meyer Ministries, Inc., supra.  The Appellate Court began its analysis of the appeal by noting that a “cause of action should not be dismissed under section 2–615 unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recover.”  Regions Bank v. Joyce Meyer Ministries, Inc., supra.  
The court began its analysis of that issue by noting that the claims against JMM
are negligence-based. In order to state a cause of action for negligence, a complaint must allege sufficient facts to establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of the duty, and an injury proximately caused by the breach. Bajwa v. Metropolitan Life Insurance Co., 208 Ill.2d 414, 804 N.E.2d 519 (Illinois Supreme Court 2004). Whether a duty exists is a question of law for the court to decide. Bajwa v. Metropolitan Life, supra. Whether a duty was breached and whether the breach was a proximate cause of the plaintiff's injuries are questions of fact for a jury to decide. Bajwa v. Metropolitan Life, supra.
Regions Bank v. Joyce Meyer Ministries, Inc., supra.  If you are interested, Wikipedia explains more about the role of “duty” in negligence claims.
The Appellate Court began its analysis of the existence of a duty by noting that
we consider whether the factual allegations in count III are sufficient to establish JMM voluntarily undertook to protect the decedents from the criminal acts of a third person. Ordinarily, a person has no affirmative duty to protect another from harmful or criminal acts by a third person. Hills v. Bridgeview Little League Ass'n, 195 Ill.2d 210, 745 N.E.2d 1166 (Illinois Supreme Court 2000). Exceptions to this general principal have been recognized: (1) when the parties are in a `special relationship,’ i.e., common carrier-passenger, innkeeper-guest, business invitor-invitee, or voluntary custodian-protectee, and the harmful or criminal acts were reasonably foreseeable; (2) when an employee is in imminent danger and this is known to the employer; (3) when a principal fails to warn an agent of an unreasonable risk of harm involved in the agency; and (4) when there is negligence in the performance of a voluntary undertaking. Petersen v. U.S. Reduction Co., 267 Ill.App.3d 775, 641 N.E.2d 845 (Appellate Court of Illinois 1994). The voluntary-undertaking exception is at issue here. In Illinois, this exception has been narrowly construed and the duty imposed is limited by the extent of the undertaking. . . .
Regions Bank v. Joyce Meyer Ministries, Inc., supra.
It also noted that § 323 of the Second Restatement of Torts, which has “been recognized in Illinois,” addresses “liability on a voluntary undertaking to render services to another.” Regions Bank v. Joyce Meyer Ministries, Inc., supra.  Section 323 provides as follows:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
The Appellate Court went on to explain that a plaintiff’s complaint can allege
nonfeasance or misfeasance in the performance of a voluntary undertaking. Bourgonje v. Machev, 362 Ill.App.3d 984, 841 N.E.2d 96 (Illinois Appellate Court 2005). In the case of `nonfeasance,’ a plaintiff must allege facts to indicate (a) that the defendant voluntarily undertook to render services necessary for the protection of another person or took charge of another person's protection; (b) that the defendant failed to exercise reasonable care in that it wholly failed to perform the undertaking; and (c) that harm was suffered because of the other person's reliance on the defendant's undertaking. . . .

In the case of `misfeasance,’ a plaintiff must allege facts to indicate (a) that the defendant voluntarily undertook to render services necessary for the protection of another person or took charge of another person's protection; (b) that the defendant negligently performed the undertaking; and (c) that the defendant's negligence increased the risk of the harm to the other person or that the plaintiff suffered harm due to his reliance on the undertaking. See Wakulich v. Miraz, 203 Ill.2d 223, 785 N.E.2d 843 (Illinois Supreme Court 2003).
Regions Bank v. Joyce Meyer Ministries, Inc., supra.
The Appellate Court then analyzed the Complaint at issue here, in light of the principles outlined above.  It explained that the Complaint “generally alleges” that JMM employed
Christopher Coleman in high-level security positions from November 2000 through May 5, 2009; that during the period of [his] employment, JMM enacted an electronic communications policy (E–Comm policy) which governed its employees' use of its electronic communications systems and equipment; that JMM's E–Comm policy prohibited its employees from sending or viewing inappropriate, obscene, harassing, or abusive images, language, and materials on its electronic communications systems and equipment; that pursuant to the E–Comm policy, JMM reserved the right to monitor and inspect communications sent, received, and stored on its electronic communications systems and equipment; and JMM `management’ had the sole discretion to take disciplinary action against the violators of said policy.

It also alleges that from November 14, 2008, to May 5, 2009, Christopher Coleman created and transmitted via email harassing notes and death threats directed to himself, the decedents, and JMM, using his company-issued computer; that from November 14, 2008, to May 5, 2009, [he] created harassing notes and death threats directed to himself and the decedents, which were hand-delivered to the mailbox at the Colemans' home; and that prior to May 5, 2009, JMM was aware death threats had been made against Christopher Coleman and the decedents, and the death threats had been delivered to the Colemans' home and through Christopher Coleman's email account. . . .
Regions Bank v. Joyce Meyer Ministries, Inc., supra.
As to the Complaint, the Appellate Court explained that Count III alleges that
JMM recognized or in the exercise of reasonable care should have recognized that in light of life-threatening email, the provision of security services was necessary for the protection of the decedents. It further alleges that JMM undertook, gratuitously or for consideration, to provide security services for the protection and safety of the decedents, which included:
(a) monitoring, accessing, and inspecting communications sent, received, and stored on its electronic communications equipment, and conducting any necessary follow-up investigation regarding the content and source of those communications;
(b) taking disciplinary actions against the violators of its policy;
(c) stationing security at or around the decedents' residence;
(d) installing a security alarm and surveillance equipment at the decedents' residence; and
(e) monitoring and/or informing the local authorities of the numerous death threats made against the decedents.

Count III further alleges that JMM breached one or more of the aforementioned duties in that it:
(a) failed to monitor, access, inspect, disclose, and conduct a follow-up investigation on the numerous death threats made against the decedents that were transmitted, received, or stored on JMM electronic communications equipment;
(b) failed to take necessary disciplinary action, including termination, regarding the death threats made against the decedents that were transmitted, received, or stored on JMM electronic communications equipment;
(c) failed to provide security in and around the decedents' residence after numerous death threats were made against the decedents;
(d) failed to monitor the decedents' residence and/or failed to install surveillance equipment in or around the residence after numerous death threats were made against the decedents; and
(e) failed to inform law enforcement authorities of the numerous death threats made against the decedents.
Regions Bank v. Joyce Meyer Ministries, Inc., supra.  It also noted that Count III
alleges that JMM's negligent performance of one or more of the aforementioned voluntary undertakings resulted in an increased risk of harm to the decedents, and that JMM's failure to perform one or more of the aforementioned voluntary undertakings resulted in harm to the decedents who, in reliance upon JMM's promises, failed to take precautions for their own protection.
Regions Bank v. Joyce Meyer Ministries, Inc., supra. 
The Appellate Court then concluded that
[w]hen pared to the core, count III alleges that JMM voluntarily undertook to investigate the source of the death threats directed at the decedents, which were made or received through JMM's electronic communications systems and equipment, and to provide security at the decedents' home for the protection of the decedents; that JMM failed to perform or negligently performed these undertakings; and that JMM's negligent acts or omissions increased the risk of danger to the decedents.

In our view, the factual allegations and the reasonable inferences therefrom, when liberally construed and taken in a light most favorable to the plaintiff, are sufficient to establish a duty of care owed by JMM to the decedents under a voluntary-undertaking theory.
Regions Bank v. Joyce Meyer Ministries, Inc., supra. 
It  also found that Count III “adequately” alleged that
negligent performance of its voluntary undertaking increased the risk of harm to the decedents. Accepting the allegations as true, it may be reasonable to infer that JMM increased the risk of harm to the decedents by failing to conduct an adequate investigation of its own communications systems and equipment, essentially electing to remain ignorant of facts concerning the source of the threats, when a reasonable person may have conducted an internal investigation of its systems and equipment. It may also be reasonable to infer that Sheri Coleman did not have an equal and independent means to investigate the threats, and that Sheri Coleman, relying on JMM's promises to investigate the threats and to provide security, did not take steps to protect herself and her children from the threatened harm.
Regions Bank v. Joyce Meyer Ministries, Inc., supra. 
The Appellate Court therefore held that Count III contained “sufficient allegations” of
act to state a cause of action for wrongful death based on a voluntary-undertaking theory and should not have been dismissed. It follows that count IV, the corresponding survival claim, should not have been dismissed. We pause here to note that we are only deciding a procedural issue and that neither party should take our resolution of this issue as a measure of the merits of the case.

The allegations in count III are broad and the plaintiff will have to present evidence to support them. If the plaintiff can produce evidence to support its factual allegations, the finderof fact will be asked to determine whether JMM breached a duty it undertook to provide to the decedents, and if so, whether the breach was a proximate cause of the harm.
Regions Bank v. Joyce Meyer Ministries, Inc., supra. 
The Appellate Court also found that after reviewing the allegations in Count V,
we conclude it lacks sufficient factual allegations to establish that the negligent retention of Christopher Coleman as a JMM employee was a substantial factor in bringing about the harm to the decedents. Count V does not set forth sufficient factual allegations to establish that Coleman's misuse of his position of employment was a substantial factor in bringing about the harm to the decedents. Nor does it set forth sufficient allegations of fact to establish that Coleman's misuse of the employer's chattel, a computer, was a substantial factor in bringing about the harm to the decedents.

The allegations that Christopher Coleman was particularly unfit for his management position in the security department, that his particular unfitness created a danger of harm to third persons, including the decedents, and that JMM breached its duty in retaining Coleman when it should have reasonably appreciated that Coleman's continued employment posed a risk of harm to the decedents and others, are conclusions unsupported by any specific facts. 
Regions Bank v. Joyce Meyer Ministries, Inc., supra. 
The Appellate Court therefore held that the trial judge’s
decision to dismiss count V with prejudice is affirmed, and its decision to dismiss counts III and IV is reversed. Counts III and IV are hereby reinstated and the cause is remanded for further proceedings consistent with this decision.

Regions Bank v. Joyce Meyer Ministries, Inc., supra. 

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