United States District Court, Northern District of Illinois, E.D
December 19, 1961
JACK RAKOWSKY, PLAINTIFF,
THE UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Will, District Judge.
This cause is submitted for decision on a stipulation of facts
which discloses the following.
On Sunday, April 27, 1958, at about 4:30 p.m. plaintiff's car,
while stopped for a red light at Roosevelt Road and Clark
Streets, Chicago, Illinois, was struck from behind by a post
office truck driven by Waymon Shaw, an employee of the Post
Office Department. At the time of the accident Shaw was on an
errand at the request of several co-workers to secure coffee and
sandwiches at an outside restaurant since the Post Office Canteen
was closed on Sundays. He was aware from previous experience that
restaurants on Harrison Street were also closed on Sunday so he
decided to take truck #1900 to the nearest open restaurant which
was in the vicinity of Wabash Avenue and Twelfth Street.
Shaw was employed as a garageman by the Post Office Department
during the period September 16, 1957 to May 2, 1958. In this
capacity he performed general servicing duties on motor vehicles.
On the Sunday in question his duties also involved parking trucks
on the first floor of the Central Post Office Garage located at
740 South Canal Street, Chicago, Illinois.
This Court's jurisdiction is founded on 28 U.S.C.A. § 1346(b)
which provides in part that Federal District Courts have
exclusive jurisdiction of all claims brought against the United
States as a result of the negligence of any government employee
"while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place
where the act or omission occurred." It is clear, therefore, that
in determining the question of liability, this Court is bound to
look to the law of Illinois for its resolution. Williams v.
United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761.
The Government acknowledges that it owned the truck which
struck plaintiff's car and that the truck was driven by one of
its employees. It concedes that these facts under Illinois law
give rise to a presumption not only that the driver was the agent
of the owner, but also that the agent was acting within the scope
of his employment. Howard v. Amerson, 1925, 236 Ill. App. 587.
This presumption constitutes a prima facie case on the
questions of agency and control, and shifts the burden of
proceeding to the defendant.
The Government contends, however, that the prima facie case
dissolves with the introduction of evidence to the effect that
its employee was hired to work on and park vehicles within the
Central Post Office garage, the inference being that he was not
authorized to drive outside the garage. The issue here is not
In the instant case, the Government has not effectively
rebutted the presumption that its employee was acting within the
scope of his employment while driving the truck in question
simply by showing that his principal responsibility was to work
on and park postal trucks in the garage. There is no evidence
that any regulations or instructions either published, posted or
oral were ever given to the employee or issued generally with
respect to such employee's driving postal trucks outside of the
Accordingly, it would appear that even under the narrow "scope
of employment" test the defendant would be liable in the absence
of a clear showing that the employee's conduct was unauthorized
and contrary to express instructions. In this connection, it
should be pointed out that even those Illinois decisions which
deal with liability in terms of scope of employment recognize a
wider latitude of responsibility when a third party is injured by
an employee's negligence than when the question involves simply
the employer and the employee as in Workmen's Compensation cases.
Parotto v. Standard Paving Co., 1952, 345 Ill. App. 486, 494,
104 N.E.2d 102.
There appears, however, to be a second ground for defendant's
liability. The United States is to be treated, in the words of
the statute, as "if a private person, * * * liable * * * in
accordance with the law of the place where the act or omission
occurred." The law referred to is the relevant law of Illinois
which recognizes that the question of the liability of an owner
of property which causes damage to an innocent third person is
broader than that fragment of the law listed under the headnote
"Scope of employment".
In Ney v. Yellow Cab Company, 1954, 2 Ill.2d 74, 117 N.E.2d 74,
51 A.L.R.2d 624, the Supreme Court of Illinois held the defendant
responsible for an injury to an innocent third party caused by
one of its taxi cabs while driven by a thief who was enabled to
steal the cab in question because of the negligence of the driver
who left it unattended on the street without stopping the engine,
locking the ignition or removing the key. After pointing out the
increasingly important role of automobiles and their potential
for injury or damage, the Court concluded that the jury might
properly have found that defendant's negligence or lack of due
care was a proximate cause of plaintiff's injury and that there
was no impelling reason to hold as a matter of law that defendant
could not be liable under the circumstances.
Here, defendant's conduct in making available a garage filled
with trucks which could easily and conveniently be used and the
use of one of which resulted in injury to plaintiff, raises a
serious question as to whether defendant's negligence was not in
fact the proximate cause of plaintiff's injury quite apart from
the question of whether the employee was acting within the scope
of his employment in driving the truck outside of the garage.
For all of the foregoing reasons, judgment will be entered for
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