The mother of a disabled minor argues that a sexual assault complaint against Special Olympics Illinois contains sufficient facts, and specific details should not have to be made public in order to avoid dismissal.
“Keeping in mind that this case concerns the abuse of a disabled minor, certain things should not be fleshed out in public documents concerning disabled minors,” Wood River attorney Thomas Maag of Maag Law Firm wrote in response to a motion to dismiss filed by the defendant.
Maag filed the response on Sept. 13 on behalf of plaintiff Yang Kim, as parent and next friend of K.
“Plaintiff, a disabled minor, is not required to plead every dirty detail on how she was abused,” he wrote. “If this court is to require same, plaintiff requests that this file be sealed. However, such is not required, and this file should remain open to the public.”
Special Olympics Illinois filed its motion to dismiss on Aug. 31 through Peoria attorney Matthew Hefflefinger of Heyl Royster Voelker & Allen.
The defendant argues that the complaint alleges “mere conclusions” and does not provide enough facts. Specifically, Special Olympics Illinois argues that the complaint fails to include what event the incident occurred at, where the event was located and the actions giving rise to the lawsuit.
“Without these basic allegations, it is impossible for SOIL to properly answer the complaint,” Hefflefinger wrote. “Thus, the complaint falls short of the pleading requirements of this state and should be dismissed.”
The defendant adds that it is not liable because the complaint fails to allege that Special Olympics Illinois encouraged or assisted defendant Richard Henley in the alleged assault.
“[F]ailure to supervise does not rise to encouragement or assistance,” the motion states.
Maag, however, argues in the plaintiff’s response that the complaint provides adequate facts. He wrote that the complaint makes clear that the event took place on Jan. 15, 2020 and “provides enough factual information to allow defendant to determine where the event was located. Defendant certainly is not alleging that there exists more than one such event.”
“Defendant, understandably not wanting to be sued, tried to throw mud on what is clear and straightforward,” Maag wrote.
In its motion to dismiss, Special Olympics Illinois also argues that Henley was a volunteer rather than an employee or agent.
“Even if plaintiff alleges such agency, she must also allege that Henley’s conduct is of the kind he volunteered to perform; Henley’s conduct occurs substantially within the authorized time and space limits of what he volunteered for; and Henley’s conduct is actuated, at least in part, by a purpose to serve the master,” Hefflefinger wrote.
He added that the complaint fails because it only alleges that Special Olympics Illinois received complaints pertaining to Henley’s behavior and should have known of his alleged “unfitness.”
“Plaintiff pleads no affirmative conduct on behalf of SOIL that encouraged or assisted any alleged action on behalf of Henley,” the motion states.
In response, Maag wrote that “it matters naught” whether Henley was a volunteer or employee.
He added that the defendant is accused of negligent retention, arguing that the allegations “are specific facts, prior warnings that, if heeded, would have avoided a child being molested.”
The lawsuit was filed on Jan. 13 in the Madison County Circuit Court, alleging violations of the Illinois Gender Violence Act.
According to the complaint, K is a disabled minor and was participating in an event sponsored by Special Olympics Illinois on Jan. 15, 2020. Henley was working at the event for Special Olympics Illinois, the suit states.
Maag wrote that Henley made “unwanted and highly offensive contact with K, the minor, when he thought no-one (sic) would see him, based, at least in part, on K’s gender, by taking K out of the building and into a parked car.”
Maag alleges Special Olympics Illinois has received several complaints about Henley concerning inappropriately touching others like K. The suit states that Special Olympics knew or should have known that Henley had a “particular unfitness” for the position, creating danger of harm to others.
“That the particular unfitness of propensity for offensive battery of Henley proximately caused the plaintiff’s injury,” Maag wrote.
Kim seeks damages in excess of $50,000 under the Illinois Gender Violence Act, including injunctive relief, actual damages, damages for emotional distress, punitive damages, attorney’s fees and court costs.
Madison County Circuit Court case number 22-LA-43