Illinois Appellate Court Reverses Judgment in Favor of Plaintiff Based Upon an Admission of Negligence Under the Theory of Agency

In a 2-1 decision, the Illinois Appellate Court reversed a judgment that resulted in a $1 million verdict in punitive damages and a $163,327 in compensatory damages. The suit was brought against Pan-Oceanic Engineering Co. for reckless conduct that allegedly caused a motor vehicle crash, injuring Fletcher McQueen.  It was alleged that McQueen was injured because (1) Pan-Oceanic conceded it was liable for any negligence by its employee, Lavonta M. Green, and (2) the jury decided Green was not negligent.

Justice Mary L. Mikva dissented because she relied on the line of cases supplied by the majority – which concluded that “once an employer admits responsibility under respondeat superior, a plaintiff may not proceed against the employer on another theory of imputed liability such as negligent entrustment or negligent hiring,” Gant v. LU Transport Inc., 331 Ill.App.3d 924 (2002) – “as being at odds with several well-reasoned decisions of this court.”

And even if Gant should be followed, Justice Mikva believed “the majority unnecessarily and unfairly extends application of the rule in that case beyond its principled parameters.”

In this case, Green drove the truck with a flatbed trailer to a repair facility to pick up a skid-steer loader. After the skid-steer loader was placed onto the trailer bed, Green thought the machinery was crooked and that it “didn’t look right.”

But when Green called his boss, the supervisor allegedly conferred with someone at the repair shop and told Green the load was okay. The trailer began bouncing as Green accelerated on an expressway.  Slamming on the brakes, Green and the tractor trailer spun out of control and hit the McQueen vehicle.

The decision in this case is a Supreme Court Rule 23 opinion, which means that it cannot be used in other cases as supportive legal authority.

The majority opinion stated that Pan-Oceanic argued that the trial court erred by omitting the last sentence of Illinois Pattern Jury Instructions, Civil No. 50.01, which would have instructed the jury that if it found for Green, it must also find for Pan-Oceanic. Pan-Oceanic pressed forward because it admitted agency; thus the plaintiff could not maintain an independent charge of negligence against it.

It was said that both parties and the court seemed to have labored under the misunderstanding that Green and Pan-Oceanic could be treated separately. Yet, Illinois case law directs that their liability was tied together in this instance because of agency, and so the last sentence of IPI Civil No. 50.01, should have been included.

Count I of plaintiff’s complaint asserted negligence against Green, and Count II asserted negligence against Pan-Oceanic. Count III sought punitive damages against Green and Pan-Oceanic on the basis that their acts or omissions demonstrated a reckless disregard for the safety of others.

Pan-Oceanic admitted that Green was its employee. There was no dispute that Pan-Oceanic was liable for Green’s torts under the theory of respondeat superior.

At trial, negligence against Pan-Oceanic was framed in terms of failing to train Green in various respects in ordering and/or permitting Green to take the load.

In Illinois, the plaintiff who is injured in a motor vehicle crash cannot also maintain a claim for negligent hiring, negligent retention or negligent entrustment against an employer where the employer admits responsibility for the conduct of the employee under respondeat superior. Gant v. LU Transport, 331 Ill.App.3d 924 (2002).

A negligent entrustment claim is derivative of the employee’s negligence. The employer is responsible for all fault attributed to the negligent employee, but only the fault attributed to the negligent employee. Gant at 929. As such, once an employer admits responsibility for its employee’s negligence, “then any liability alleged under an alternative theory, such as negligent entrustment or negligent hiring, it becomes irrelevant and should properly be dismissed.” Neuhengen v. Global Experience Specialists, 2018 IL App (1st) 160322 (citing Neff v. Davenport Packing Co., 131 Ill.App.2d 791 (1971)).

This principle applies even though claims such as negligent hiring and retention are based on the employer’s negligence in hiring or retaining the employee, and not the employee’s wrongful act.  Gant, 331 Ill.App.3d at 927.

Therefore, once Pan-Oceanic admitted liability under respondeat superior, the jury should not have been permitted to find that Pan-Oceanic could be independently negligent.

Plaintiff tries to avoid this outcome by asserting that the case did not go to the jury under negligent hiring, retention, or entrustment, but only under the separate and distinct theory of negligence training, which is not derivative of the employee’s negligence. No Illinois cases have directly addressed whether negligent training should be treated differently than negligent entrustment.

The appeals panel stated that it was error to treat negligent training differently from the other negligent claims that are barred once an employer admits liability under respondeat superior. Green’s and Pan-Oceanic’s liability had to rise and fall together because Pan-Oceanic admitted liability under respondeat superior.

However, a principal may be found guilty of willful and wanton misconduct even though the agent was only negligent. Lockett v. Bi-State Transit Authority, 94 Ill.App.2d 56 (1983).

The negligence of the employee is a prerequisite for finding the employer willful and wanton where the employer has admitted liability under respondeat superior.  See Johnson v. Kirkpatrick, 11 Ill.App.2d 214 (1956).

Here the jury’s findings that Green was not negligent, but Pan-Oceanic acted with an aggravated form of negligence, were legally inconsistent. Therefore, the trial court should have granted Pan-Oceanic’s motion for a new trial for these reasons and appellate court’s majority reversed the judgments and remanded the case back for a new trial.

McQueen v. Green, 2020 IL App (1st) 190202-U (Aug. 21, 2020).

Kreisman Law Offices has been handling tractor-trailer accident lawsuits, catastrophic injury cases, intersection crash cases, car accident cases, bicycle accident lawsuits and motorcycle accident cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including LaGrange, Western Springs, Bellwood, Hillside, Oak Park, River Grove, Schiller Park, Morton Grove, Evanston, Northfield, Palatine, Elmhurst, Hickory Hills, Palos Hills, Crestwood, Midlothian, Dixmoor, South Holland, Hazel Crest, Orland Park, Chicago (Avalon Park, South Chicago, Calumet Heights, South Side, Chicago Lawn, Back of the Yards, Fuller Park, Bronzeville, Douglas, Woodlawn, Kenwood, Humboldt Park, Wicker Park, Lakeview, River North, Uptown, Andersonville, Sauganash), Norridge, Harwood Heights, Elk Grove Village, Bensenville and Naperville, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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