APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals two orders of the circuit court of Tazewell County, one of which entered summary judgment for the defendant Atchison, Topeka and Santa Fe Railway Company (Santa Fe), and the second of which denied plaintiff leave to amend her complaint.
This cause has been on appeal once before and the factual situation is adequately set forth in the prior opinion. (Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1979), 76 Ill. App.3d 898, 395 N.E.2d 592.) It will be reiterated here only insofar as may be necessary for clarity.
Counts I and II were disposed of by the prior appeal. These were counts alleging wrongful death pursuant to section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2) and are not involved in the current appeal. Count III sounded in the theory of negligent hiring and retaining, a common law tort. It had been severed from counts I and II prior to trial and this was affirmed in the prior appeal. On remand, Santa Fe filed a motion for summary judgment as to count III, and it was allowed by the trial court. This is the first issue on appeal.
The gist of Santa Fe's motion was that the appellate court found that Payton and McCasky were beyond the scope of their employment when the death occurred; that this finding was res judicata and the law of the case; that negligent hiring actions cannot exst if the injury complained of occurs while the employee is beyond the scope of his employment and not in the performance of a duty; and that therefore summary judgment was proper.
Plaintiff maintains, contra, that res judicata in this case would apply only if count III sounded in the theory of respondeat superior; that it does not; that it sounds in negligent hiring and retention; that the prior finding on appeal has no bearing on the instant count III; and that therefore summary judgment was improper.
We agree with the trial court and affirm. Otherwise, we would be extending the negligent-hiring tort theory into an area not yet sanctioned by prior authority. The power to make such an alteration in the common law of this State lies elsewhere than in this court.
Illinois recognizes the tort of negligent hiring. It has been applied, with limitations, in the master-servant relationship. More commonly, it has been applied in cases of independent contractors or where a special statutory situation existed.
The principal case dealing with the master-servant relationship is Tatham v. Wabash R.R. Co. (1952), 412 Ill. 568, 107 N.E.2d 735. In that case the plaintiff was severely beaten by a fellow employee who was known to the employer to be vicious, contentious, pugnacious and ill-tempered. He was also quarrelsome and frequently engaged in physical combats, and the employer knew when it hired him that he created an unreasonable danger to plaintiff and other employees. In upholding the complaint, the supreme court relied in party on section 213 of the Restatement (Second) of Agency (1958), and quoted a portion of Comment d to that section. Section 213(d) reads as follows:
"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(d) In permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control."
It is thus apparent that the holding in Tatham is rather narrow, being limited to incidents which occur on the premises of the employer or with instrumentalities under his control. Such is obviously not the case at bar. We believe that it is also significant that the injury in Tatham was intentional.
Other jurisdictions have split widely on the question as to whether an employer is liable for hiring and retaining unfit and incompetent employees. It appears, however, that the majority of cases in which the rule has been applied involve either intentional torts or criminal conduct on the part of the employee. (See 53 Am.Jur.2d Master and Servant § 422 (1970).) Illinois, therefore, appears to follow the majority rule.
• 1 In the instant case there is no contention that the conduct of Payton and McCasky was either intentional or criminal. In fact, all of the ...