E. Breach of Duty and Proximate Cause
Since I have determined that the United States owed a duty to Ms. Cuttle under negligent employment, special relationship, and voluntary undertaking theories, I must now determine whether the evidence supports a finding that the United States breached those duties so as to have proximately caused Ms. Cuttle's injuries. Under Illinois law, an injury is said to be proximately caused by a negligent act or omission if it is the "natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person ought to have foreseen the precise injury which resulted from the act." Neering v. Illinois Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497, 503 (Ill. 1943); Davis v. Marathon Oil Co., 64 Ill. 2d 380, 356 N.E.2d 93, 100, 1 Ill. Dec. 93 (Ill. 1976). "The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable." Id.
1. Negligent Hiring
To establish a claim under a negligent hiring theory, plaintiff must show that the United States breached its duty to refrain from "hiring or retaining an employee who is a threat to third persons to whom the employee is exposed." Bates, 502 N.E.2d at 458. The plaintiff must also show a "demonstrated connection between the [decedent's] injuries and the fact of employment." Id.
The record evidence is clearly sufficient for a trier of fact to conclude that the United States breached its duty to exercise due care in this regard. The Army hired as a soldier -- i.e., an individual who would be placed in highly sensitive positions requiring trust and discipline, would be provided with lethal weaponry, and would be permitted entry to secure residential military facilities -- an individual who was not only a convicted rapist, but one who was an unrehabilitated repeat offender who had been convicted of a felony less than 12 months prior to his enlistment in the Army.
Gates had advised his Army recruiter that he had a juvenile record (a record which included his rape conviction) (IG Report at 12), but was told that the Army was only interested in his adult convictions. He therefore did not reveal his juvenile rape conviction.
Moreover, the Army had actual notice that Gates likely had a criminal background when it received the results of his ENTNAC, and constructive notice of this background when Gates advised his recruiter that he had attended a high school which, in fact, was attended by incarcerated youths. Not only were the responses of Army personnel inconsistent with its own recruiting regulations, I conclude that its failure to further investigate Gates' criminal record -- after receiving multiple indications that he had one -- is a sufficient basis to find that the Army breached its duty to refrain from hiring an employee that it "knew or should have known" was a threat to third persons to whom he might be exposed.
See Easley, 387 N.E.2d at 1248.
Moreover, the record also supports a finding that Ms. Cuttle's injuries were proximately caused by Gates' employment by the Army. Had Gates not been permitted to enlist in the Army, he would not have been at the Conn Barracks on the night of Ms. Cuttle's abduction and murder. Although Gates was not on duty at the time of his attack on Ms. Cuttle, he was in a restricted area to which he had access solely because of his employment status. Thus, there is a demonstrated connection between the attack and the fact of his employment.
Bates, 502 N.E.2d at 459.
To be sure, had Gates not been a soldier, he might have committed the same crime against some other victim on a public street. But this is the case in any negligent hiring scenario. For example, in Tatham v. Wabash R. Co., 412 Ill. 568, 107 N.E.2d 735 (Ill. 1952), the Court found that the plaintiff stated a cause of action where he was beaten by a fellow employee who his employer knew to be "a vicious, contentious, pugnacious and ill-tempered person who was quarrelsome and frequently engaged in physical combats." 107 N.E.2d at 735. Clearly the employee in question could have beaten the plaintiff even if he had not been so employed, but his employment by the defendant made this event much more likely, and placed the plaintiff in unreasonable danger. See also Gregor v. Kleiser, 111 Ill. App. 3d 333, 443 N.E.2d 1162, 1166, 67 Ill. Dec. 38 (Ill.App. 1982) (host of party liable for hiring bouncer who attacked plaintiff-guest without provocation).
The fact that Gates could have committed rape and murder in any variety of places is thus beside the point. By permitting his enlistment into the Army, the United States made it more likely that persons like Ms. Cuttle, who was invited onto and encouraged to frequent restricted Army installations, would encounter Gates under circumstances favorable to the commission of a crime.
The evidence thus supports the conclusion that the Army's enlistment of Gates placed persons such as Ms. Cuttle in unreasonable danger.
2. Special Relationship
The evidence showing the United States' breach of its duty to refrain from negligent hiring of violent felons is also sufficient to show a breach of its duty to Ms. Cuttle which arose by dint of her special relationship with the Army. The United States owed a duty to invitees, including Ms. Cuttle, to protect them from reasonably foreseeable criminal acts of others. Just as the existence of Gates' unexamined juvenile record made it reasonably foreseeable that he would be a unreasonably dangerous employee, it also made it reasonably foreseeable that he would create an unreasonable danger to the invitees of the United States on its Army bases around the world.
3. Voluntary Undertaking
Finally, I find that there is sufficient evidence to support a finding that the United States breached its duty with respect to its voluntary undertaking to screen convicted felons from the Army. The United States, through the Army Inspector General, has admitted that eight different soldiers involved in the enlistment of Private Gates failed to follow Army regulations, and that had any one of them complied with regulations, Gates' ineligibility for enlistment would have been discovered. Thus, the United States clearly breached its duty, voluntarily undertaken, to screen convicted felons from the Army.
The evidence also supports a conclusion that this failure proximately caused Ms. Cuttle's death. As explained above, it was reasonably foreseeable that a convicted rapist and multiple felon would commit another crime of violence against a member of the military community were he permitted to enlist in the Army. By failing to properly screen Private Gates, as it had voluntarily undertaken to do, the Army made it reasonably foreseeable that someone in Ms. Cuttle's position would be Gates' next victim.
For the foregoing reasons, the United States' motion for summary judgment is DENIED.
Dated: August 30, 1996
NANCY GERTNER, U.S.D.J.
For the reasons set forth in the accompanying Memorandum, the United States' motion for summary judgment [docket entry # 45] is DENIED.
Dated: August 30, 1996
NANCY GERTNER, U.S.D.J.