IN THE CIRCUIT COURT OF COOK COUNTY, ZIL COUNTY DEPARTMENT, LAW DIVISION - JANE DOE, Plaintiff, LYFT, LYFT ILLINOIS, ANGELO and STERLING INFOSYSTEMS, INC. d/b/a STERLING TALENT SOLUTIONS, Defendants. ELECTRONICALLY FILED 2/15/2018 4:07 PM 2017-L-011355 CALENDAR: PAGE 1 01?9 MC 332013 LAW DIVISION CLERK DOROTHY BROWN Case No. l7-L-01 1355 Hon. Patricia O?Brien Sheahan Calendar DEFENDANT STERLING - MOTION TO DISMISS PURSUANT TO 735 ILCS Sig-615 1. ELECTRONICALLY FILED 2/15/2018 4 07 PM PAGE 2 of9 I. INTRODUCTION PlaintiffJane Doe?s (?Plaintiff?) Complaint, which arises from an alleged sexual assault committed by Defendant Angelo McCoy (?McCoy?) while McCoy was acting as a driver for Defendant Lyft, lnc. does not allege sufficient facts to state a cause of action for negligence against Defendant Sterling Infosystems, Inc. (?Sterling?). Specifically, Plaintiff has i not pleaded any facts to establish that Sterling owed Plaintiff a legal duty under the circumstances alleged in the Complaint. Plaintiff seeks to hold Sterling the background check company allegedly hired and with whoin Plaintiff had no contact liable for McCoy?s . criminal act because it allegedly ?[fjailed to conduct an adequate background check of [McCoy].? (Compl. at Count XI, ?l Plaintiff must allege more and very specific facts against Sterling in order to even make a threshold claim for negligence. It is well-settled that, under Illinois law, there is no duty imposed on one for the benefit of the other to prevent the criminal acts of a third party absent a legally?recognized ?special relationship? or ?voluntary undertaking.? Here, Plaintiff has not alleged even by conclusory allegations that such a special relationship exists between her and Sterling innkeeper- guest, carrier?passenger, business inviter-invitee, custodian-protectee) or between Sterling and McCoy parent-child, employer-employee, or principal?agent). Nor has Plaintiff alleged that Sterling voluntarily undertook a duty in this scenario. Therefore, as the Illinois Supreme Court has instructed, this Court must apply Illinois?s "no-af?rmative?duty? rule, which necessarily results in finding that Sterling did not owe Plaintiff a duty to protect her from McCoy?s criminal act, and requires the dismissal of Plaintiff?s negligence claim against Sterling. II. BACKGROUND According to the Complaint, at approximately 1 p.m. on July 7, 2017, Plaintiff requested a ride through Lylt?s ridesharing application. fl 83.) McCoy responded to her request and ELECTRONICALLY FILED 2/15/2018 4 07 PM 2017-14-01 1355 PAGE 3 of9 picked her up. (LL, ?l 84) Plaintiff fell asleep shortly after she got into his vehicle. (BL, 84- 85.) Later, McCoy allegedly parked the vehicle and sexually assaulted Plaintiff. (kl, fl 86.) Based on these factual allegations, Plaintiff asserts the following claims: assault and battery and false imprisonment against both McCoy and Lyft; negligence, negligent hiring, negligent supervision, negligent retention, and fraud against Lyft; and a single negligence count against Sterling. (S_ee generally Q) i Plaintiff?s claim against Sterling is based on a background check that Sterling allegedly prepared for regarding McCoy. at Count XI, 1] 100.) Plaintiffallegcs that ?Sterling had a duty to exercise reasonable care in conducting background checks of drivers who transport members ofthe general public, including [Plaintiff].? (Ld, at Count XI, 1] 101.) She further alleges that Sterling was negligent because it ?failed to conduct an adequate background check of [McCoy].? at Count XI, 1 Finally, Plaintiff alleges that as a result of Sterling?s alleged negligence, she ?was sexually assaulted, and suffered personal and pecuniary injuries.? i (ii. at Count XI, Tl l03.) Plaintiff does allege any contract or other relationship, or any . interaction, with Sterling. LEGAL STANDARD A section 2?6 motion to dismiss1 challenges the legal suf?ciency of a complaint based on defects apparent on its face. SE 735 ILCS 5/2-615; Marshall v. Burger King Cm, 222 Ill. 1 Pursuant to Paragraph 8 of this Court?s Standing Order, Sterling moves to dismiss the Complaint pursuant to 735 ILCS 5/2-615 (?Sterling?s 2-615 motion?) prior to moving to dismiss pursuant to 735 ILCS 5/2-619. Here, has separately filed its Motion to Dismiss Pursuant to 735 5/2-619 or to Stay the Proceedings and Compel Arbitration (?Lyft?s 2?619 motion?) contemporaneously with Sterling?s 2?6 I 5 motion. If this Court denies Sterling?s 2?615 motion, but grants Lylt?s 2?619 motion, Sterling intends to file a similar motion to compel arbitration. Under federal law, which governs the arbitration provision, Sterling can enforce the provision as to the claim against Sterling. Paragon Micro, Inc. v. Bundy, 22 F. Supp. 3d 880, 890 (ND. Ill. 2014) (non?signatory can compel arbitration ?when the signatory raises ELECTRONICALLY FILED 2/15/2018 4 07 PM 2017?1r011355 PAGE 4 of 9 2d .422, 429 (2006). To avoid dismissal, a pleading ?must assert a legally recognized cause of action and it must plead which bring the particular case within that cause of action.? Chandler v. Ill. Cent. R.R. Co., 207 Ill. 2d 331, 348 (2003) (emphasis added). In determining the sufficiency of a pleading, a court must ?disregard any conclusions of fact or law that are not supported by allegations of specific fact.? Riehco Plastic Co. v. IMS Co., 288 Ill. App. 3d 782, 784-85 (1st Dist. 1997). If a court finds that, after disregarding any legal or factual conclusions, there are insufficient allegations of fact to state a claim, it should dismiss the complaint. Knox Coll. v. Celotcx Corp., 88 Ill. 2d 407, 426 (1981). Here, Plaintiff alleges only legal conclusions and not facts - to support her negligence claim against Sterling. Compl. at Count XI, 97-103). Therefore, the single claim against Sterling should be dismissed. See Bogenberger v. - Pi Kappa Alpha Corp., 2018 IL 120951, 37, 42 (affirming dismissal ofnegligence claim - where plaintiff failed to allege facts establishing a duty owed by defendant to plaintiff to prevent criminal acts of third parties). ARGUMENT Plaintiff? negligence claim against Sterling should be dismissed because she has not sufficiently alleged facts to support the conclusion that Sterling owed her a duty to protect her from McCoy?s criminal act, a necessary element of a negligence claim. This Court is no doubt well?versed in the elements of a negligence claim: the existence of a duty owed by the defendant to the plaintiff; (ii) a breach of that duty; and an injury proximately caused by that breach. Bogenberger, 2018 IL 120951,1l 21 (citation omitted). Here, Sterling?s motion challenges the existence ofa duty, which ?is a question of law for the court to decide.? 1d,, Ifno allegations of ?substantially interdependent and concerted misconduct by both the non-signatory and one or more of the signatories to the contract?? (citations omitted?. -3- ELECTRON ICALLY FILED 2/15/2018 4 07 PM PAGE 5 of9 duty exists, a negligence claim necessarily fails. Iseberg v. Gross, 366 Ill. App. 3d 857, 861 (lst Dist. 2006). A. There Is No Duty to Protect Others From Criminal Attack by Third Persons. It is well-established that, under Illinois law, there is ?no duty to act affirmatively to protect others from criminal attack by third persons absent a ?special relationship? between the parties.? Iseberg v. Gross, 227 Ill. 2d 78, 94 (2007); see 3139 Bogenberger, 2018 IL 120951, fl 41 (no duty to another to prevent criminal act of third party); Bills v. Bridg?iew Little League Ass?n, 195 Ill. 2d 210, 228 (2000) (same). Indeed, the Illinois Supreme Court very recently ruled that ?Illinois jurispmdence regarding an affirmative duty is clear,? and reaf?rmed that the I so?callcd "no-af?rmative?duty" rule ?stands as the law of this state.? Bogenberger, 2018 IL 120951, 37, 41- (quoting Iseberg, 227 Ill. 2d at 101); al_sg Iseberg, 227.111. 2d at 87, 94 (noting the Illinois Supreme Court?s ?long history of adherence? to ?no-af?rmative?duty" rule (citations omitted?. B. Plaintiff Has Not Alleged A Special Relationship or Voluntary Undertaking. While the general rule applicable to the circumstance as alleged in the Complaint is the "no-affirmative-duty? rule, Plaintiff has nonetheless not alleged? any facts that bring her into either the ?special relationship? or undertaking? exceptions to the no?af?rmative-duty rule. Plaintiff has not alleged even in conclusory fashion that one of the legally?recognized special relationships existed between her and Sterling or between Sterling and McCoy, the tortfeasor. Likewise, Plaintiff has not alleged that Sterling voluntarily undertook a duty to protect her from McCoy?s criminal behavior, let alone facts that support such an allegation. ELECTRONICALLY FILED 4 07 PM PAGE 6 of?) Illinois courts have recognized four types ofrelationships between a plaintiffand defendant that may give rise to a duty2 to protect the plaintiff from a third?party's criminal act: innkeeper-guest; (ii) common eai'riet'?passenget'; business inviter-invitee; and (iv) custodian-protectee. $99- Bogenberger, 2018 IL 120951, 11 33 (citation omitted); sci al? 227 111. 2d at 87-88 (noting same four relationshipLs). Illinois courts have also recognized three types of relationships between'a defendant and the tortfcasor that may also give rise to a duty to protect another from the tortfeasor?s criminal act: parent-child; (ii) principal-agent; and employer-employee. See Bogenberger, 2018 IL 120951, 11 33 (citation omitted). Finally, absent one of these special relationships, Illinois courts have held a party may ?voluntarily or contractually assume[] a duty to protect another from the harmful acts of a third party.? Iseberg, 366 Ill. App. 3d at 861. Plaintiff?s negligence claim against Sterling is based on a few conelusory allegations that McCoy sexually assaulted her because Sterling ?[?ailed to conduct an adequate background check for Lyft. (Compl._at Count XI, 100-102.) However, Plaintiff?s only allegation regarding the existence ofa duty is purely conelusory, that ?Sterling had a duty to exercise reasonable care in conducting background checks of drivers who transport members ofthe general public, including [Plaintiff]." (Q at Count XI, 101.) Further, Plaintiff alleges only that contracted with Sterling, at Count XI, 1] 99), but does not (and cannot) allege that Sterling somehow voluntarily assumed a duty to protect Plaintiff by that contract. 2 Even if a legally-recognized ?special relationship" exists or a defendant voluntarily undertakes a duty to protect a plaintiff from the criminal act of a third party, the criminal act must still be foreseeable to give rise to a duty. SQ Sameer v. Butt, 343 Ill. App. 3d 78, 86 (1st Dist. 2003) (citation omitted). Here, however, Plaintiffh?as also failed to allege any facts that would establish the foreseeability of McCoy?s alleged criminal conduct. -5- ELECTRONICALLY FILED 2/15/2018 4 07 PM PAGE 7 of9 The Illinois Supreme Court?s position is clear: conclusory allegations that a duty exists) are insuf?cient to withstand dismissal under section 2?615. S_e? Bogenberger, 2018 IL 120951, 11 33; Egg, 227 Ill. 2d at 86-87. Plaintiff has not alleged facts that establish any of the legally?recognized special relationships existed between her and Sterling or between Sterling and McCoy. Further, Plaintiff does not allege facts that establish Sterling voluntarily undertook a duty. Accordingly, Plaintiff has not pleaded sufficient facts to impose a duty on Sterling a background check company with whom Plaintiff had no contact to protect her from the criminal behavior of a third party such as McCoy. - C. Plaintiff Has Not Suf?ciently Alleged A Duty Owed By Sterling. According to the Illinois Supreme Court, absent factual allegations that establish a legally-recognized special relationship or a voluntary undertaking, a court must apply the general rule that no duty exists and dismiss the negligence claim pursuant to section 2615. Iseberg, 227 1. Ill. 2d at 87?88, gm Bogenberger, 2018 IL 120951, 1111 37, 41-42 (affirming dismissal of negligence claim where no allegations that exception to no duty rule applied); Mg, 366 Ill. App. 3d at 862 (?The complaint does not. allege that one of the special relationships between plaintiff and the defendants exists that would impose a duty on defendants; accordingly, we must apply the general rule?). Based on the well?established law, and the allegations in the Complaint, this Court should dismiss Plaintiff's negligence claim (Count XI) against Sterling pursuant to 735 ILCS 5/2-615. IV. CONCLUSION Sterling respectfully requests that this Court grant this motion; (ii) dismiss Count XI of Plaintiff? Complaint pursuant to 735 ILCS 5/2-615; and grant such other relief as this Court deems just and proper. ELECTRONICALLY FILED 2/15/2018 4 07 PM 2017-L011355 PAGE 8 of9 Dated: Febmmy 15, 2018 Respectfully submitted, STERLING INFOSYSTEMS, INC. By: Bruce R. Van Baren Michael O?Neil Caroline C. Plater Bruce R. Van Barcn REED SMITH LLP (44486) 10 S. Wacker D12, 40th Floor Chicago, IL 60606-7507 (312) 207-1000 michael.oneil@reedsmith.com cplatcr@reedsmith.com bvanbarcn@recdsmith.com De/Eandam ngfosystems, Inc. ELECTRONICALLY FILED 2/15/2018 4 07 PM PAGE 9 of 9 CERTIFICATE OF SERVICE 1 certify that 1 served the foregoing on the following parties and counsel of record: Via First-Class Mail to: Angelo McCoy (No. 2017-0721223) c/o Cook County Department of Corrections P.O. Box 089002 Divl 1-1 3015 S. California Blvd. Chicago, IL 60608 Defendant Via Electronic Mail to: Timothy s. TOmasik Patrick J. Giese TOMASIK KOTIN KASSERMAN LLC 161 North Clark Street, Suite 3050 Chicago, Illinois 60601 3 (312)605-8800 tim?1kklawcom )at a tkklawcom Counselfor Plainti?Jaue Doe Dated: February 15, 2018 Beth Stewart Emily A. Rose WILLIAMS CONNOLLY LLP 725 Twelfth Street, NW Washington, DC 20005 (202) 434-5075 and Anthony J. Carballo Martin Syvertsen FREEBORN PETERS LLP 31 1 S. Wacker Drive, Suite 3000 Chicago, Illinois 60606 312.360.6000 tcarballo@freeborn.com msyx'el?tsenGQ?'eeborncom Counsel for Ly]? Illinois Inc. Lyfl, Inc. 5/ Bruce R. Van Bare}: Bruce R. Van Baron EWLED 811012018 4131 PM DOROTHY BROWN IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS CIRCUIT CLERK COUNTY DEPARTMENT, LAW DIVISION COOK COUNTY. IL JANE DOE, 20171.011355 Plaintiff, Case No. l7-L-011355 I Judge Patricia O?Brien Sheahan LYFT, LYFT ILLINOIS, ANGELO and STERLING INFOSYSTEMS, INC. d/b/a STERLING TALENT SOLUTIONS, Defendants. ORDER ON DEFENDANT LYFT, PARTIAL MOTION TO AIM PURSUANT 735 ILC DISMISS FOR FAILURE TO STATE A CL ?5/2-615 Upon Defendant Lyft, Ine.?s Partial Motion to Dismiss for Failure to State a Claim Pursuant to 735 ILCS 5/2-615, IT IS ORDERED Defendant Ly?, Inc.?s Partial Motion to Dismiss for Failure to State a Claim Pursuant to 735 ILCS 5/2-615 is granted. Counts IV, V, VI, VII, and are dismissed with prejudice and without leave to replead. Dated: ENTERED: Hon. Patricia O?Brien Sheahan PREPARED BY: Anthony J. Carballo Martin Syversten FREEBORN PETERS LLP . 311 S. Wacker Drive, Suite 3000 Chicago, IL 60606 (312) 360-6000 Firm No. 71182 tearballo@freeborn.com msyversten@freeborn.com Beth Stewart (pro hac vice) Emily A. Rose (pro hac vice) WILLIAMS CONNOLLY LLP 725 Twelfth Street, NW. Washington, DC 20005 (202) 434-5000 bstewart@wc.com erose@wc.com Aftorneysfor Defendant Lyft, Inc.