UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JOHN BEAR, ) ) Plaintiff, ) ) No. 17 C 6312 v. ) ) Chief Judge Rubén Castillo JEFF MASON and THE UNIVERSITY _ ) OF CHICAGO, } ) Defendants. MEMORANDUM OPINION AND ORDER Jobn Bear (“Plaintiff”) filed this action against the University of Chicago (“University”) and Jeff Mason (“Mason”), the parent of a University football player, based on events precipitated by a confrontation between Plaintiff and Mason. (R. 1, Compl.) Plaintiff brings two claims against the University: (1) a claim of gender discrimination in employment under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000¢ e/ seq., and (2) a premises-liability claim. (Ud. ff 45-60.) The University moves to dismiss Plaintiff's premises-liability claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 17, Mot.) For the reasons stated below, the Court grants the University’s motion. BACKGROUND! In June 2016, Plaintiff was hired by the University as an assistant football coach. (R. 1, Compl. □ 8.) Plaintiff alleges that when he was recruited for the position, he was told by the University’s head football coach, Chris Wilkerson (“Wilkerson”), that the University bad a “strong athletic department” and that Plaintiff “had the support of an ‘up and coming athletic

These facts are recounted as averred in Plaintiffs complaint (R. 1).

director.’” Ud. { 9.) To entice Plaintiff to accept the position, Wilkerson allegedly made multiple statements to Plaintiff describing the University’s “commitment to excellence” and “desire to

have a winning football team.” (/d. {| 10.) After taking the position, Plaintiff realized that the University’s athletic director, Erin

McDermott (“McDermott”), allegedly had “little interest in cither treating male coaches fairly or

building a strong football team.” Ud. 12.) Instead, Plaintiff alleges, McDermott and the

University were principally interested in the profit to be gained from the football program. (Id. { 14.) To that end, McDermott allegedly encouraged unruly “tailgates” before and during University football games. (Jd. {fj 15-19.) According to Plaintiff, McDermott directed for tables

and tents to be set out atound the University football field on game days—specifically, on 56th

Street and its surrounding sidewalks in the Hyde Park neighborhood of Chicago. Ud. 915.) At

these tailgates, students, alumni, and parents of students allegedly drank alcohol excessively and

without restriction. Ud. {ff 15-16.) Plaintiff claims that the excessive drinking at tailgates led to

dangerous incidents. (/d. { 17.) Plaintiff alleges that on one occasion, for example, some parents of University students began shouting racial slurs at some other parents and a fight almost broke

out. (/d.) Plaintiff further alleges that the football coaching staff expressed concerns about the

danger posed by the tailgates, but McDermott and the University failed to take any action or put security measures in place at the tailgates. Ud. {fj 18-19.) Mason is the parent of a University football player. Ud. { 20.) Plaintiff alleges that Mason

had a history of disruptive behavior during University tailgates, including “excessive drinking, personal insults, and complaints and threats against the coaching staff for refusing to allow his

son to play more during games.” (Ud. {ff 21-22.) Plaintiff further claims that Mason would

“regularly email other parents of students and express frustration and disappointment with the

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football coaching staff.” (id. § 23.) Mason also allegedly “made repeated complaints throughout the 2016 football season to other parents regarding both [Plaintiff] and the other members of the

coaching staff, blaming the team’s inability to win every game on poor coaching and their refusal

to play Mason’s son more often.” (id, | 24.) According to Plaintiff, “some of the students’

parents began avoiding Mason given his tendency to get drunk and unruly at tailgates and engage

in derogatory treatment of the football coaching staff.” (Id. 4 25.) Plaintiff alleges that he,

Wilkerson, and other members of the football coaching staff repeatedly expressed their concerns

and frustrations regarding Mason to both McDermott and the University, Ud. 26.)

On November 12, 2016, Mason attended the 56th Street tailgate during a football game between the University and Washington University. Ud. ff 28-30.) Mason allegedly drank

excessive amounts of alcohol and became increasingly disorderly. (/d. § 30.) After the game, Plaintiff was in a restricted section of the football stadium with other coaches, players, and

members of his family. (id. $31.) Plaintiff alleges that Mason was belligerently shouting at

University employees to be let into the stadium and, because there was no security at the football

game, was able to force his way into the restricted section. (Jd. €{ 32-33.) Plaintiff claims that

Mason then violently grabbed him by the wrist, spun him around, and began yelling at him. (/d

{ 34.) According to Plaintiff, Mason shouted several derogatory remarks regarding Plaintiff's

management and coaching of the football team, such as “You don’t care about the players!” (dd.

4 35.) Plaintiff alleges that he “verbally defended himself from Mason’s remarks, while

_ reasonably believing he was being attacked and assaulted.” Ud. { 36.) Plaintiff then left the

restricted area and returned to his office. (Id. ¢ 37.) After waiting in his office for someone from

the athletic department to come speak to him about the incident, Plaintiff went home. Ud. 38-

40.)

On November 14, 2016, two days after the confrontation between Plaintiff and Mason,

MeDermott informed Plaintiff that the University was placing him on “investigative suspension.” (id, 741.) Plaintiff alleges that, during its investigation, the University received an email from another parent that described Mason’s “long, violent history of .. . behavior at football games and his history of harassing other parents, students, and football coaches.” (Ud. 42.) Plaintiff

claims that other parents and coaches voiced support for him as well and acknowledged to the

University that Mason assaulted Plaintiff. (Id. { 43.) Despite this support, the University ultimately offered Plaintiff a choice between resigning or having his employment terminated. □□□ q 44.) Plaintiff clected to resign “under duress,” rather than be fired, in order to protect his effort

to find other employment. (/@.) Plaintiff brings federal and state-law claims against both the University and Mason based on what transpired. In Count J, Plaintiff claims that by terminating his employment in response

to the altercation, the University discriminated against him on the basis of his gender in violation

of Title VIL. Ud. 45-50.) Plaintiff alleges generally that the University has a “pattern of

treating male coaches differently than female coaches.” (/d. 13.) Plaintiff claims more

specifically that similarly situated female coaches and other University employees were treated

less harshly when involved in altercations, disputes, and assaults. (id. □ 48.) As an example, Plaintiff asserts that female coach Amy Reifert was involved in a “oud verbal incident” during the 2015-2016 school year, but that this resulted only in a policy change rather than termination

of her employment. (/d. ¢ 13.) □ In Count IL, Plaintiff asserts a premises-liability claim against the University under

Illinois law. Ud. $f 51-60.) Plaintiff alleges that the University encouraged and facilitated the

tailgates, had a duty of reasonable care to ensure the safety of students, alumni, parents, and

employees after inviting them onto the campus, and breached its duty of reasonable care by “allowing and encouraging unruly tailgates with no security” and “failing to ensure a safe work

environment for its staff.” Ud. { { 53-57.) Because the University breached its duty of reasonable

care, Plaintiff alleges, Mason was “able to access the restricted area of the football stadium

where he assaulted [Plaintiff],” and Plaintiff suffered physical, economic, and emotional

damages as a result. (fd. Ff] 58-60.) Against Mason, Plaintiff asserts claims for assault (Count IID), battery (Count IV), tortious interference with business contracts (Count V), and defamation

(Count VI)? Ud. {J 61-85.) PROCEDURAL HISTORY On September 8, 2017, Plaintiff filed this suit against the University and Mason. (R. I,

Compl.) On November 7, 2017, the University filed its present motion to dismiss. (R. 17, Mot.)

The University contends that Plaintiff's premises-liability claim should be dismissed on either of

two independent grounds: (1) the claim is preempted by the Illinois Workers’ Compensation Act

(“IWCA”), which provides the exclusive remedy for alleged employer negligence against employees; and (2) under the no-duty rule, the University cannot be held liable for the alleged criminal actions of a third party. (7d. { {j 2-4; R. 18, Mem. at 1-2.) In response, Plaintiff argues that the IWCA does not preempt his premises-liability claim

because the University is liable to him in a dual capacity: both as his employer and as a business

invitor. (R. 33, Resp. at 3-5.) Plaintiff further argues that the University can be held liable for the

criminal actions of a third party because, by hosting tailgates, the University created a “volatile

environment.” (/d. at 5.)

2 Because the claims against Mason are not at issue in the University’s motion, the Court need not recount the supporting allegations in detail. .

LEGAL STANDARD Under federal pleading standards, a complaint must contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). A motion to

dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint on the grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fep, R. Crv. P. 12(6)(6). To survive a

motion to dismiss, a complaint must “contain sufficient factual matter, accepted as true, to “state

a claim to relief that is plausible on its face.”” Asheroft v. Igbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim has facial plausibility when “the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Jd. Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”

. In evaluating a motion to dismiss,

the Court must accept the factual allegations in the complaint as true and draw all reasonable

inferences in Plaintiff's favor. Tobey v. Chibucos,

(7th Cir. 2018). ANALYSIS The Ulinois Workers’ Compensation Act, 820 ILL, COMP. STAT. 305/1 ef seq., “provides

an administrative remedy for employees’ injuries arising out of and in the course of the[ir] employment.” Baylay v. Etihad Airways P.JS.C.,

(7th Cir. 2018) (citation and internal quotation marks omitted), petition for cert. filed (June 5, 2018) (No. 17-1691). Section 5 of the IWCA provides that “[n]o common law or statutory right to recover damages from the employer . . . for injury or death sustained by any employee while engaged in the line of

his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act[.]” 820 ILL. Comp. STAT. 305/5(a).

Section 11 similarly provides that “[t]he compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer” covered by the

IWCA. 820 ILL. Comp. STAT. 305/11. Together, these provisions “abrogate[| employer liability for all common law negligence claims,” such that the WCA “provides the exclusive means by which an employee can recover against an employer for a work-related injury in [Linois.” Baylay,

(citation omitted). T he exclusivity provisions are “part of the quid

pro quo in which the sacrifices and gains of employees and employers are to some extent put in

balance.” Jd. at 1039 (citation omitted). “Injured employees can recover for their injuries without

establishing their employer’s negligence but also relinquish their rights to maintain common law

actions against their employers.” /d. (citation and internal quotation marks omitted). If an employer is sued in common law, “the employer may raise the [WCA’s exclusivity

provisions as an affirmative defense.” Jd. “Tf it establishes the elements of the affirmative

defense, then the burden shifts to the plaintiff to show that his claims are not subject to the

IWCA or its exclusivity provisions.” Jd. To avoid the IWCA’s exclusivity provisions, a plaintiff must show that his injury either: (1) was not accidental; (2) did not arise from his employment; (3) was not received during the course of employment; or (4) was not compensable under the

IWCA.

In Count II, Plaintiff asserts a claim of premises liability against the University based on

the “assault” by Mason. (R. 1, Compl. { {] 51-60.) Premises liability is a theory of common-law

negligence on the part of an owner or possessor of land.’ Rhodes v. Illinois Cent. Gulf R.R.,

(Il. 1996); see also Spencer v. KFC Corp., No. 06 4615,

There is a related statute, the Illinois Premises Liability Act, 740 ILL. COMP. STAT. 130/1 et seq., but that statute merely “abolished the common law distinction between the duties owed . . . to an invitee and a licensee.” Rhodes, 665 N.E.2¢d at 1268.

249230, at *8 (N.D. ILL. Feb. 3, 2009) (“To prevail on a premises liability .. . claim, a plaintiff must prove all elements of a common law negligence claim.”). Accordingly, this claim would ordinarily be preempted by the IWCA. See Baylay,

. Plaintiff does not dispute that he and the University are covered by the IWCA and its

exclusivity provisions, nor does he argue or attempt to establish that any of the above four

exceptions applies. Plaintiff instead asserts that his claim “falls into the dual capacity exception.” (R. 33, Resp. at 3.) Illinois courts have reco gnized the dual-capacity doctrine as “a limited exception to the exclusive remedy provision|s]” of the IWCA. Garland y. Morgan Stanley &

Co.,

, 200 (Ill. App. Ct. 2013). Under the doctrine, “an employer normally shielded .. . by the exclusive remedy principle may become liable in tort to his own employee if

he occupies, in addition to his capacity as employer, a second capacity that confers on him

obligations independent of those imposed on him as employer.” Jd. (citation omitted). “[T]o imvoke the dual capacity doctrine . . . the plaintiff has the burden of establishing both that: (1) the

employer was acting in two ‘capacities,’ such that the second capacity confers upon him

obligations unrelated to those flowing from the first, that of employer; and that (2) the employer

was acting as a distinct separate legal persona.” /d. at 201. T]he key question... is whether an

employer is acting as a ‘separate legal entity.” Td. (citation omitted). Plaintiff contends that, by inviting himself, other employees, students, alumni, parents, and random passersby onto University premises for the tailgates, the University was “acting in

two distinct legal capacities” —as both an employer and a business invitor. (R. 33, Resp. at 4; see

also R. 35, Reply at 2 (“Plaintiff argues that . . . the University is liable to him in a dual capacity; both as his employer and [as] a business invitor.”).) As a result, Plaintiff argues, the University

“owed all of those □□□□□□□□□□□□□□□□□□□□□ included—“a separate and distinct duty to exercise

reasonable care in maintain[ing] the premises in a reasonably safe condition.” (R. 33, Resp. at 4.) As the owner or possessor of the land where the tailgates were held, the University may have had common-law duties to the non-employees that were invited. See Rhodes,

(explaining landowner duties to invitees). However, the Illinois Supreme Court has

explained that “mere ownership of land does not endow fan employer] with a second legal

persona or entity” for purposes of the dual-capacity exception. Sharp v. Gallagher, 447 N.¥.2d

786, 788 (Ill. 1983). Were it otherwise, the WCA’s exclusivity would be “reduced to shambles”

because “[a]n employer, as part of his business, wil] almost always own or occupy premises, and

maintain them as an integral part of conducting his business.” Jd. (citation omitted). Thus, the

mere fact that the University owned or possessed the land on which the confrontation with □

Mason occurred is insufficient to trigger the dual-capacity exception. See

Plaintiff principally relies on Marcus v. Green,

(IIL. App. Ct. 1973), in

support of his position. (R. 33, Resp. at 4.) While Marcus does provide limited support for Plaintiff's position, the continuing precedential value of that decision is “doubtful,” as courts

have repeatedly questioned Marcus’s reasoning and declined to follow it. Hilgart v. 210 Mittel’

Drive P’ship,

(fl. App. Ct. 2012) (collecting cases and declining to follow

Marcus); see also Hyman vy. Sipi Metals Corp.,

(ill. App. Ct, 1987) (“Cases following in the wake of Marcus v. Green declined to follow its reasoning[.]”). In any event, the

circumstances here are distinguishable. In Marcus, the plaintiff, a carpenter, was injured while

working at a construction site when the scaffolding on which he was standing collapsed,

. His employer, an individual doing business as a construction company, was also a

part-owner of the construction site through a partnership in which the employer was a partner,

QO

at 513-14. In addition to filing a workers’ compensation claim, the plaintiff sued his employer under the Illinois Structural Work Act. Jd. The court held that the Structural Work Act claim was

not preempted by the IWCA because the employer was being sued “in a different legal capacity than that of an employer.” Jd. at 518. Because the employer was exposed to liability under the Structural Work Act only by virtue of his distinct and separate legal status as a member of the partnership—which, in turn, owned the land in question—the claim was “not against the employer as employer” but rather “against an employer who is also an owner.” Jd. at 517-18. Here, by contrast, Plaintiff seeks to hold the University liable as itself, not as a separate legal persona or in a distinct legal capacity. See Hyman,

(explaining that

courts have distinguished Marcus as involving “an employee’s action against a separate and. distinct legal entity in which the employer had an ownership interest rather than against the employer per se”); Sharp, 447 N.E.2d at 788 (“A mere separate theory of liability against the

same legal person as the employer is not a true basis for use of the dual capacity doctrine; the doctrine, instead, requires a distinct separate legal persona.” (citation omitted)). In addition, the football stadium is “an integral part of conducting” the University’s business, so far as it relates

to Plaintiff's employment as a University football coach, Sharp, 447 N.E.2d at 788. The construction site in Marcus, by contrast, was not; the premises instead belonged to the construction company’s customer, even if that customer happened to be partly owned by the employer. Marcus,

. The Court concludes that the dual-capacity exception does not apply, and Plaintiff's premises-liability claim (Count II) is therefore preempted by the IWCA. 820 ILL. COMP. STAT. 305/5(a); 820 ILL. Comp. STAT. 305/11. Because this is a sufficient basis for dismissal, the Court

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need not address the University’s alternate argument that it cannot be held liable for the alleged criminal actions of a third party. CONCLUSION For the foregoing reasons, the University’s motion to dismiss (R. 17) is GRANTED and Plaintiff’ s premises-liability claim (Count I) is DISMISSED with prejudice. The parties shall

appear for a status hearing on July 24, 2018, at 9:45 a.m. The parties are DIRECTED to reevaluate their settlement positions in light of this opinion and to exhaust all settlement possibilities,

ENTERED: KE. (7 Chief Judge Rubén Castillo United States District Court

Dated: July 20, 2018

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