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Stein v. Burns Internat'l Security Serv.

OPINION FILED DECEMBER 23, 1981.

EMANUEL STEIN, PLAINTIFF-APPELLEE,

v.

BURNS INTERNATIONAL SECURITY SERVICES, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM B. KANE, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Emanuel Stein, brought this action in the circuit court of Cook County seeking damages from defendant, Burns International Security Services, Inc. In count I of the complaint, plaintiff sought compensatory damages for injuries incurred as a result of the negligent or intentional conduct of defendant's employee, Lish Garner. In count II plaintiff sought punitive damages charging that defendant had wilfully and wantonly failed to perform an adequate background investigation of its employee Garner before defendant hired Garner as a security guard. Following a jury trial, the jury returned a verdict for plaintiff on count I of the complaint and found defendant liable for $175,000 in compensatory damages. The jury returned a verdict in favor of defendant on count II of the complaint.

On appeal, defendant contends: (1) there was no evidence to support the wilful and wanton count of the complaint (count II) and the trial court's submitting that count to the jury for determination prejudiced its verdict on count I of the complaint; (2) defendant was denied a fair trial by the admission of evidence relating to plaintiff's charitable works; and (3) defendant was denied a fair trial by improper comments of plaintiff's counsel during closing argument.

We affirm.

BACKGROUND

Count I

In count I of the complaint, plaintiff charged that he had suffered injury as a result of the negligent or intentional conduct of defendant's employee, Garner. Garner was a security guard employed by defendant, a licensed detective agency. The theory of liability was based on the general grounds of defendant's vicarious liability for the acts of its servant and on section 10b(10) of the Detectives and Investigators Act (Ill. Rev. Stat. 1979, ch. 111, par. 2622(10)) which provides that defendant, as a licensed detective agency, is "legally responsible for the good conduct" of its security guards.

As to count I, the evidence presented at trial showed that on the evening of October 15, 1975, plaintiff and his wife drove to the Edgewater Hospital in Chicago to visit his daughter. Plaintiff parked his car on the lot of a vacant gas station near the hospital. Plaintiff and his wife were inside the hospital for an hour and then returned to the car. They discovered that another car had parked behind their car, blocking plaintiff's exit.

Plaintiff waited a few minutes and then tried to open the front door of the other car so that he could push the car out of the way. At that moment, plaintiff was struck in the back of the neck by Garner, defendant's employee, who was on duty as a security guard at the hospital. Garner then grabbed plaintiff's left arm and pinned it behind plaintiff, forcing plaintiff's left hand up towards the back of his neck. Garner accused plaintiff of attempting to steal the car. Garner then dragged plaintiff one-half block back to the hospital. While doing so, Garner repeatedly struck plaintiff on the back of the neck. Garner forced plaintiff into the hospital lobby where they were met by another security guard. An argument ensued and plaintiff and his wife departed and went back to their car. The car that was blocking their exit was gone and plaintiff drove home.

Later that night, plaintiff's wife took him to a hospital in Skokie. Over the next couple of years, plaintiff spent several weeks in the hospital. As a result of the incident, plaintiff suffered permanent nerve damage to his neck and arm and his arm is partially disabled today. As a result of the injuries, plaintiff was required to close his solely owned business which was a small discount store selling clothes, rugs, draperies and other related goods. The business frequently required plaintiff to lift heavy objects and he could no longer do so. Plaintiff has also suffered frequent bouts of depression since the incident and no longer engages in sexual relations with his wife.

At the time of the incident, plaintiff was 66 years old. Garner was in his early twenties. The day of the incident was Garner's first day of employment with defendant. Garner disappeared immediately after the incident and has never been located. The jury returned a verdict for plaintiff on count I and awarded him $175,000 in compensatory damages.

Count II

In count II of the complaint, plaintiff sought punitive damages alleging that defendant had wilfully and wantonly failed to perform a proper background investigation of Garner. Plaintiff alleged that if the background investigation had been properly performed, Garner would not have been hired and the incident would not have occurred.

The only thing of importance plaintiff showed defendant had failed to do was to check with Garner's previous employer, another detective agency, to ascertain whether that agency would have recommended Garner's employment. Plaintiff showed that Garner's prior employer would not have recommended employment because Garner had failed to show up for work one day and was terminated as a result. The day before Garner was terminated, Garner had arrived for work intoxicated and was sent ...


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