Why should the employer of a man who murdered his wife and two sons potentially be liable for wrongful death? According to an Illinois Appellate Court decision, the company’s electronic communications policy could constitute a voluntary undertaking to protect the decedents. That means the employer must defend against claims that it failed to monitor its former employee’s death threats made through the employer’s communication systems and equipment. 
Murder, he wrote
Christopher Coleman was employed by Joyce Meyer Ministries, Inc. (JMM), for more than eight years in high-level security positions. On May 5, 2009, Coleman’s wife, Sheri, and their young sons, Garrett and Gavin, were murdered in their home in Columbia, Illinois. Coleman was charged with and later convicted of the murders. He is serving a life sentence in prison.
In 2011, the administrator of the estates of the decedents, Regions Bank, filed suit against Coleman and his employer, JMM. The claims against JMM included wrongful death and negligent retention of Coleman as its employee. The Circuit Court of Monroe County dismissed all claims against JMM, and Regions appealed.
On the negligent retention claim, the appellate court acknowledged that Illinois courts have recognized that an employer may be held liable for the negligent hiring, supervision, or retention of an employee who intentionally harms someone while acting outside the scope of his employment. In this case, however, Regions’ complaint lacked sufficient factual allegations to show that the negligent retention of Coleman as a JMM employee was a substantial factor in bringing about the harm to the decedents. Thus, the negligent retention claim was properly dismissed.
Policy may be voluntary undertaking
The more remarkable portion of the appellate court’s decision dealt with the claim that JMM voluntarily undertook to protect the decedents from the criminal acts of a third person, Coleman. Ordinarily under Illinois law, a person has no affirmative duty to protect another from harmful or criminal acts by a third person. Certain exceptions to this general rule exist. One exception is when the parties are in a “special relationship,” such as a passenger on a common carrier. Another exception applies when an employer knows an employee is in imminent danger.
In this case, Regions asserted claims against JMM under a different doctrine—when there is negligence in the performance of a voluntary undertaking. Under the doctrine, one who undertakes to render services necessary for the protection of another and negligently performs that undertaking may be liable for harm suffered because of the other’s reliance on the undertaking.
Regions alleged that JMM enacted an electronic communications policy that governed its employees’ use of its electronic communications systems and equipment. It further alleged that JMM’s policy prohibited employees from sending or viewing inappropriate, obscene, harassing, or abusive images, language, and materials and that the company reserved the right to monitor and inspect information transmitted on its systems. (We suspect this type of policy language may sound quite familiar to many of our readers.)
Failure to monitor and investigate?
According to the complaint, from November 14, 2008, to May 5, 2009, Coleman created and transmitted via e-mail numerous harassing notes and death threats directed to himself, the decedents, and JMM via his company-issued computer. Importantly, the complaint also alleged that JMM was aware that death threats had been made and had been delivered to Coleman’s home through his e-mail account. Finally, the suit alleged that JMM failed to monitor or investigate the situation, take necessary disciplinary action against Coleman, or provide security to the decedents, contrary to its alleged voluntary undertaking.
In short, Regions had made adequate allegations to establish that JMM was aware that specific death threats had been made against the decedents using its e-mail system and that it voluntarily undertook the responsibility to investigate the threats and protect the decedents from harm. Based solely on what Regions alleged in the complaint—and without making any judgment on the merits of the case—the appellate court concluded that the complaint contained enough factual allegations that, if proven, would render JMM liable for the wrongful deaths of the decedents based on its voluntary undertaking.
Therefore, JMM must defend against a wrongful death lawsuit for failing to monitor and investigate Coleman’s murderous e-mail threats. Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App. (5th) 130193.
Beware of what your policies provide
Employers have heard for years that they should have policies governing employees’ acceptable use of their computer and e-mail systems. It appears that JMM followed that advice and had implemented such a policy. The appellate court’s decision is troubling for employers because it indicates that such a policy could amount to a voluntary undertaking to assume obligations that, if performed negligently, may result in liability for harm to third parties.
It’s important to realize that the decision passes no judgment on the merits of the claims. Nevertheless, the case reminds employers of the importance of monitoring employee use of company-owned systems and equipment and taking appropriate investigatory and corrective actions for known or suspected violations. In addition, employers that wish to limit the chance their acceptable-use policies will be construed as a voluntary undertaking to protect others may wish to review and modify their policies.
Steven L. Brenneman is a partner and chair of the Employment Law Group at Fox, Swibel, Levin & Carroll, LLP in Chicago, Illinois. He may be contacted at sbrenneman@fslc.com.