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Easley v. Apollo Detective Agency

OPINION FILED FEBRUARY 20, 1979.

DOROTHY EASLEY, PLAINTIFF-APPELLEE,

v.

APOLLO DETECTIVE AGENCY, INC. DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant, Apollo Detective Agency, Inc. (Apollo), appeals from a jury verdict in favor of plaintiff, Dorothy Easley, for damages suffered when an Apollo security guard, William Lee Brown, used a passkey to enter plaintiff's apartment and then assaulted her. The jury found Apollo guilty of wilful and wanton misconduct in hiring the guard and returned a verdict of $7,500 punitive damages on count I of the fifth amended complaint. Count II alleged that Apollo was responsible by statute for the conduct of its employee; the court directed a verdict against Apollo on the issue of liability, and the jury fixed compensatory damages at $20,000. *fn1

Apollo appeals from the denial of its motion for a directed verdict on count I, from certain evidentiary rulings by the trial court, and from the amount of compensatory damages assessed by the jury on count II. No questions are raised on the pleadings or as to Apollo's liability under count II. The issues on appeal are: (1) whether the court erred in denying Apollo's motion for a directed verdict on the issue of wilful and wanton misconduct; (2) whether the court erred in admitting evidence of an ordinance of the City of Chicago pertaining to licensing of "special policemen," and evidence that Apollo's employee was not required to be so licensed; (3) whether the court erred in admitting evidence of the fact that Brown had twice been arrested prior to his employment by Apollo; (4) whether the court erred in admitting into evidence personnel files compiled by Brown's prior employers; (5) whether the court erred in admitting evidence of a threat made to plaintiff by Brown after a criminal court proceeding which arose out of Brown's assault on plaintiff; and (6) whether the award of compensatory damages is excessive.

The pertinent facts are as follows. On February 1, 1972, plaintiff moved into an apartment in the Chicago Beach Tower Apartments at 5050 South Lake Shore Drive, Chicago, Illinois. Plaintiff went to bed that evening at about 10 p.m., after locking the doors to her apartment. At about 4 a.m. the next morning, February 2, plaintiff was awakened by the sound of footsteps in the apartment. She rose, donned a robe, picked up a glass bottle, and left the bedroom to investigate. Plaintiff discovered Brown, the building security guard, standing in her kitchen with his .357 magnum handgun pointed at her head and wearing his Apollo security guard uniform.

Upon discovering Brown, plaintiff threw the bottle into the air and began screaming and continued screaming as Brown brought the gun close to her head. Brown then grabbed her and shook her until she stopped screaming. He told her that he had used his passkey to enter her apartment and that he wanted to make love to her. Plaintiff broke away and tried to reach the kitchen door; Brown caught her, grabbed her again, pointed the gun at her head and said, "If you do that again, I will blow your head off." Brown then told her that he wanted to rape her, whereupon plaintiff threw up. Brown started pulling and shoving her, again threatened to kill her, and slammed the gun across her face, although on cross-examination plaintiff testified that Brown did not strike her with the gun.

Plaintiff tried to dissuade Brown while he held her for about 10 or 15 minutes. She then tried to break away but Brown caught her by the robe and threw her into the bedroom onto the bed. While holding his gun on her, Brown proceeded to run his other hand all over her body. He then started to undress and again threatened to kill her, while plaintiff continued trying to dissuade him. After about an hour, plaintiff was finally able to persuade Brown to leave, whereupon she became hysterical for a time. About a half-hour later, plaintiff used a phone in a neighbor's apartment to call the police, who brought Brown to plaintiff for an identification. Over objection, plaintiff testified that she next saw Brown two or three weeks later, after a proceeding in criminal court, at which time he was accompanied by Apollo's supervisor of guards, Captain Glenn. Brown walked up to her, pointed at her, and said, "I am going to get you."

Plaintiff testified that she was "a nervous wreck" as a result of her experience with Brown, that she would be awakened by the slightest sound and be unable to get back to sleep. She testified that it was two years before she could sleep through a complete night without waking up thinking that someone was breaking into her apartment, and if she heard a sound and did not see a person directly in front of her, she would start screaming, believing that she was going to be attacked.

At the time of the incident, plaintiff was a staff employee in a political primary campaign. She had been in sales before working in the primary campaign, and had always found meeting and talking to people easy. However, after her position in the campaign terminated, she took an office job where she would not have to meet strangers, because meeting people frightened her after the incident. It was approximately seven or eight months before she was able to resume her sales career. Plaintiff sought no medical attention and incurred no medical expenses. Her only direct out-of-pocket expenses from the incident resulted from her missing seven or eight days of work at her political campaign job, at which she was paid $650 per month.

In her case-in-chief, plaintiff called several other witnesses. Frank Rogers, Apollo's office manager at the time Brown was hired, and president and part owner of Apollo at the time of trial, was called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). Rogers was hired to act as personnel director and office manager for Apollo. Although he had prior experience in interviewing, he had no prior contact or experience with the security industry. It was Rogers' duty to check the background of each Apollo job applicant, as reflected in an employment application, with particular emphasis on prior work history. This background check was made primarily by telephoning prior employers. Apollo had no formal inquiry letters in 1970-71, nor did it have any forms to record information received over the phone. Rather, any verification was accomplished by simply marking "ok" or "not ok" on the application, along with any other comments.

Rogers testified concerning Brown's job application, which he took from Brown when he interviewed him. The application indicated that Brown had been referred to Apollo by Apollo's supervisor of guards. Two numbers appearing on the application were identified as Illinois and Chicago gun registration numbers. Brown's application listed a present address but not the number of years he had lived there. Rogers did not check the prior addresses; he said that he had probably instructed an office girl to do it, as the responsibility for checking the applications was diffused throughout the office. While Rogers testified that there should have been marks on the application indicating that Brown's prior Illinois addresses had been checked, there were no such marks, nor were there any letters in the file to indicate that Brown's prior out-of-State addresses had been checked. Neither were there any marks indicating that Brown's personal references had been checked, although it was the practice of Apollo to mark "ok" if someone had been contacted.

The application revealed that Brown had completed 2 1/2 years of high school. He was not required to take any intelligence or psychological tests. Rogers stated that Brown showed him a security training program certificate and that this impressed him, but he did not retain a copy for the file. Brown stated on his application that he had never been arrested. Rogers testified that he was not aware of Brown's prior arrests until after Brown had assaulted plaintiff. He further testified that Apollo would not have hired Brown if Apollo knew that he had been arrested for something other than a minor traffic violation. The only way that Apollo would attempt to verify that an applicant had no such arrest record was by sending identifying information on the applicant to the State, which would send back an identification card after checking the applicant. In this case the card was not received until February 5, 1973, and thus, while the State did not prohibit employment of the applicant pending completion of the investigation, Apollo did not have the benefit of the State's investigation of Brown when Apollo hired him. Rogers further testified that although the two partners in the business at the time, Reiter and Kirk, were both Chicago Police officers, neither attempted to check whether Brown had an arrest record with the Chicago Police Department, nor did Rogers ask Brown to authorize such a check. Rogers testified that information on arrest records was not available to Apollo.

During her examination of Rogers, plaintiff introduced into evidence and read from sections of the Illinois detectives and investigators act (Ill. Rev. Stat. 1975, ch. 38, pars. 201-1 et seq.) and an ordinance of the City of Chicago relating to licensing of "special policemen" (Chicago Municipal Code 1973, ch. 173). Rogers testified that it was his understanding that Apollo was only required to comply with the State statute and not the ordinance, and thus Apollo did not require Brown or any employee to be licensed as special policemen by the City of Chicago.

Brown's application listed two previous employers, Interstate Service and Task Power, both security guard firms. With regard to Brown's denial of previous arrests, Rogers testified that he relied on the fact that these firms had both hired Brown, as they had more experience than Apollo, although Rogers then admitted that he knew nothing about either firm. Brown's prior work experience was also reflected by the fact that he was given only four hours of on-the-job training, rather than 16, and was permitted to carry a gun from the outset of his employment, rather than waiting a month or two. *fn2 Rogers also testified to the fact that Apollo was under contract to provide security at Chicago Beach Towers at the time of the incident.

Rogers testified that the initials "ok, JR" appeared next to the names of Brown's prior employers, and that the final decision to hire Brown was made by Joe Reiter, one of the founding owners of Apollo. Rogers testified over objection that if he, Reiter, or anyone at Apollo had determined upon checking with Interstate that Brown had been fired for sleeping on duty, for "making eyes at a newly-hired female," and for trying to borrow money from the vice-president of the store to which he was assigned, Brown would not have been hired.

Joseph Reiter next testified for plaintiff under section 60. Reiter testified that as holder of the State license for Apollo, he had final responsibility for hiring decisions. Reiter stated that Apollo's inquiry into a job applicant's background was limited to the veracity of the applicant, which was checked primarily through prior employers. It was Apollo's policy to ask prior employers about the applicant's work history as listed on the job applications contained in their files; if any discrepancies between the two applications appeared, Apollo would contact any newly discovered employers. Apollo also regarded criminal activities as important matters to be checked out.

Reiter testified that he participated in the decision to hire Brown and that he personally called Interstate and Task Power, about which he testified that he knew nothing except that they were both security agencies. He said he spoke to "some woman" at Interstate and that he took notes of his conversation, but no notes appeared in Brown's file. Reiter stated that he learned that Brown had been licensed at Interstate, that he had been found asleep at his post once and had been late once or twice. Over objection he testified that he was not told that Interstate had fired Brown for sleeping on the job, that Interstate had found Brown to be unreliable and would not rehire him, that four days before he applied to Apollo, Brown had been put on probation for nonperformance of his duties, and that there had been a complaint against Brown for making eyes at a female employee and trying to borrow money from the vice-president of a store to which he was assigned. He testified that most of what he learned about Brown was positive and that the fact that Brown was already licensed was "half the battle." He then stated that he was told that Brown had left Interstate for "better employment."

Reiter testified that he also checked with Task Power and was told that Brown was also licensed when he was with Task Power, although Reiter never attempted to verify the licensing at either job. Reiter stated that he was told that Brown had been late a few times, but not that Brown had been fired for abandoning his watch post, or else he would never have been hired. He testified that he was told that Brown had left Task Power for better employment.

Reiter stated that when anyone from Apollo contacted references, it was required that notes be made and be inserted in the applicant's file, but no such notes appeared in Brown's file and Reiter had no personal knowledge whether Brown's references had been checked.

Reiter further testified that he did not attempt to check the records of the Chicago Police Department to determine if Brown had an arrest record because departmental regulations prohibited personal inquiries of that nature. He stated that he relied on the applicant's word and the fact that he had been licensed with two prior employers. Reiter also said that he never asked Brown to present a certificate of appointment ...


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