Querrey & Harrow Appellate Victory
Cited in New
Illinois
Pattern Jury Instruction on Employer Liability
Previously, we wrote on Q&H’s successful defense of the Cook County Sheriff before the Illinois Supreme Court in Adames v. Sheahan et al., 2009 WL 711297 (Ill. 2009) In the case, plaintiffs sought recovery against the Sheriff following the tragic accidental shooting of a child by the son of a Sheriff’s Correctional Lieutenant, asserting that the officer’s failure to safely store the gun in his home was within the course and scope of the officer’s employment with the Sheriff’s office, such that the Sheriff should be held liable under Respondeat Superior theories.
In defense, shareholders Dan Gallagher and Terrence Guolee argued that the storage of the gun in the officer’s home was not within the scope of employment as it was done when he was off-duty, that the officer did not - and actually was prevented from - taking the weapon to his work at the jail, and that any negligent storage of the gun was not done with a purpose to serve the Sheriff. Indeed, extensive evidence regarding the detailed training and general orders of the Sheriff mandating that any guns be stored such that they are rendered inaccessible to others was placed in evidence. This evidence showed that there was no expectation by the Sheriff or his officer that the gun would be maintained in any open or accessible manner. Thus, it was argued that it would be bad public policy to, in effect, find the Sheriff liable based on the fact that the Sheriff properly trained his officers on safe gun storage.
The trial court entered summary judgment in favor of the Sheriff. The First District Appellate Court then reversed, finding that the training by the Sheriff demonstrated control over the officer, such that his failure to store the gun properly could be attributed to the Sheriff as his employer. Dan and Terrence, with the assistance of Jennifer Medenwald, then sought leave to appeal to the Illinois Supreme Court. Following acceptance of the case, extensive briefing and oral argument, the Illinois Supreme Court, in a unanimous decision released on March 19, 2009, reversed the appellate court, finding that the evidence developed by Q&H documented that the storage of the gun was not within the course and scope of the officer’s employment.
Most recently, the court released a new Illinois Pattern Jury Instruction, number “50.06.01 Employee – Issue as to Scope of Employment,” which reads as follows:
One question for you to determine is whether or not (alleged employee name) was acting within the scope of his /her employment.
An employee is acting within the scope of his/her employment if each of the following is shown by the evidence:
IPI 50.06.01, Sept. 2009.
The comments to the new IPI then cite to the Adames decision as an example of the type of case where there would not be Respondiat Superior liability, because the actions of the employee were not the kind of conduct the employee was employed to perform, nor was such conduct motivated to serve the employer.
Compared to many prior decisions and readings of the law finding even illegal actions of employees leading to employer liability, the new jury instruction should act to properly have juries consider whether there was any advantage to the employer based on the employee’s actions before holding the employer liable. This revision to the instructions provided to juries in Illinois should be a huge benefit to employers throughout the state.
Congrats once again to Dan, Terrence and Jennifer on their important win!
A copy of the decision can be obtained at:
http://www.state.il.us/court/OPINIONS/SupremeCourt/2009/March/105789.pdf.
The jury instruction is available at:
http://www.state.il.us/court/CircuitCourt/JuryInstructions/50.06.01.pdf.
* * *
Jim Jendryk Scores Defense “Hat Trick”
Wheaton shareholder Jim Jendryk scored his third excellent trial result in the last two months in a case where the plaintiff claimed approximately $1 million in damages based upon $199,735.40 in medical expenses and $247,512.00 in loss of income. Jim obtained a jury verdict in McHenry County for only $22,728.00, despite having to admit liability, where the defendant, a 16-year-old driver, pulled from a stop sign, thinking that the intersection was a four-way stop, but instead failed to yield to the plaintiff on a through street, striking the plaintiff in a t-bone fashion.
The plaintiff put into evidence over $400,000 in specials and asked the jury for one million dollars. Jim countered the plaintiff's testimony of no prior knee problems and the testimony of the surgeon, by demonstrating the delay in complaints after the accident and the surgeon's inconsistency in the surgical records, including a noted procedure that he admitted was never performed.
See our reports at http://www.querrey.com/news-110.html and http://www.querrey.com/news-107.html for details on Jim’s two other recent trial victories.
* * *
Jillian Book Obtains Defense Verdict
Wheaton associate Jillian Book continued our suburban offices’ success in DuPage County with a motor vehicle v. pedestrian accident on a residential street. The parties to the lawsuit were neighbors and the plaintiff alleged that the defendant backed into her, knocking her down as she was crossing the street one night, directly in front of their homes. The undisputed evidence showed that this was a particularly dark street and that the plaintiff was wearing black sweats and a brown coat. In addition, the plaintiff was crossing the street mid-block, not within a crosswalk, and did not even see defendant’s vehicle until she was almost in the middle of the roadway.
Plaintiff claimed an aggravation of her prior chronic neck pain, requiring epidural steroid injections, along with cuts and extensive facial bruising. Plaintiff asked the jury for $42,000 for medical treatment, pain & suffering, loss of a normal life, disfigurement and lost wages. The defense argued that there was no causal connection with the neck pain aggravation based upon a two week gap in time before complaints were made to a medical doctor. In addition, contributory negligence was argued based on the plaintiff wearing dark clothing while crossing a dark street mid-block at night.
